JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard learned counsel for the parties and perused the record. 2. The order dated 19.3.2005 passed by the District Inspector of Schools, Chitrakoot (hereinafter referred to as the D.I.O.S.) Annexure 10 to the writ petition has been assailed by the three petitioners, Bal Krishan, Chandra Datt and Shiv Ganesh on the ground that despite repeated judgments and orders by this Court the D.I.O.S. is adamant not to recognize appointment of the petitioners and hence the impugned order is not only illegal but also contemptuous and deserves to be set aside. 3. Facts in brief, as evident from record, are as under. 4. Subhash Inter College, Itwa District Chitrakoot is a recognized college by the Board of High School and Intermediate, U.P. Allahabad under the provisions of U.P. Intermediate Education Act, 1921 (hereinafter referred to as the 1921 Act). It was recognized upto High School till 1980 and was upgraded and recognized upto Intermediate in 1980. It is said that at the time of upgradation of the college three class IV employees were actually working and three posts of Class IV were lying vacant since some employees have tendered their resignation. The Principal of the college sought permission of D.I.O.S. for filling in three vacancies of Class IV vide letter dated 5.1.1983 which was granted by D.I.O.S. vide letter dated 17.1.1984 (Annexure 1 to the writ petition). Consequently selection was made and the appointment letters were issued to the petitioners on 30.10.1984 (Annexure 2 to the writ petition). The petitioners were directed to join by 1.11.1984. Consequently the petitioners actually joined on the date provided in the appointment letters. The documents of appointment were sent to D.I.O.S. seeking his approval for the purpose of payment of salary. The approval was granted by the then D.I.O.S. vide letter dated 19.8.1987 (Annexure 3 to the writ petition). The petitioners were accordingly paid salary from July, 1987 and in respect of arrears of salary a bill was submitted to respondent No. 2. Since no order was passed on the arrears salary bill, the petitioners made representations, but immediately thereafter on 23.9.1987 the D.I.O.S. passed an order informing that Principal misrepresented about 9 sanctioned posts and, in fact, there were only 6 sanctioned posts which were already occupied, hence appointment of petitioners were got approved by misrepresentation. Since no order was passed on the arrears salary bill, the petitioners made representations, but immediately thereafter on 23.9.1987 the D.I.O.S. passed an order informing that Principal misrepresented about 9 sanctioned posts and, in fact, there were only 6 sanctioned posts which were already occupied, hence appointment of petitioners were got approved by misrepresentation. He further says that one Awadh Narain died on 15.3.1985 in place whereof one Prem Narain was appointed whose appointment was approved on 8.6.1987, hence there was no vacancy and only 7 posts were sanctioned for the purpose of financial liability from State Exchequer and, therefore, the letter of approval granted earlier was cancelled. 5. The petitioners aggrieved by the said order filed Writ Petition No. 18914 of 1987 wherein the order dated 23.9.1987 was stayed on 16.10.1987. The Principal of the college despite the interim order did not allow petitioners to resume their duties and instead he (Principal of college) appointed three other persons namely respondent Nos. 5,6 and 7. Their appointments were approved by the D.I.O.S. on 1.2.1991 (Annexure 6) to the writ petition. 6. Writ Petition No. 18914 of 1987 appears to be finally decided by judgment dated 10.5.1987 wherein this Court noticed the mischief on the part of D.I.O.S. in as much as, on the one hand, he says that three vacancies on which the petitioners were appointed did not exist but simultaneously he granted approval for appointment of three new incumbents in 1991 and despite repeated opportunity this was not explained by D.I.O.S. in the counter-affidavit. The observations made by this Court are as follows : “I have heard Mr. P. Padia, learned counsel for the petitioners and the learned Standing counsel. Mr. Padia draws my attention to annexure -13 which has been brought in way of amendment. It appears that three other persons have been accorded sanction in the same school in the category of IVth Class employee on 1st February, 1991. If the three posts could be said to be not available, under what circumstances, the said three posts could be available and sanction could be accorded to three other different persons has not been explained. No Counter-affidavit is forth coming the petitioners allege that they were continuously working till 15th Dec. 1990, on which date the said three persons were given appointment.“ 7. No Counter-affidavit is forth coming the petitioners allege that they were continuously working till 15th Dec. 1990, on which date the said three persons were given appointment.“ 7. The writ petition was disposed of by the Court by directing authority concerned to reconsider matter after giving opportunity to the petitioners. Thereafter D.I.O.S. passed a fresh order on 31.3.2003 wherein he observed that appointment of three incumbents made in 1991 have been validly approved and hence petitioners’ appointment cannot be said to be valid ignoring the fact that the petitioners were appointed in 1984 and the order of approval was revoked on the ground that only 6 posts were sanctioned and not 9, but still simultaneously treating the three vacancies existing, three new incumbent were appointed in 1991. The D.I.O.S. did not point out any error or illegality in the appointment of the petitioners made in 1984 except simply reiterating what was stated by the earlier D.I.O.S. in his order revoking approval made of the petitioners’ appointment. This order was also challenged in Writ Petition No. 40935 of 2003 which was allowed by this Court vide judgment dated 7.12.2004. This Court while castigating approach of D.I.O.S. observed as under : “After respective arguments have been advanced, factual position which is emerging is to the effect that petitioners were appointed as class IV employees in the institution on 30.10.1984, and their appointments were duly approved on 19.8.1987, and immediately thereafter on 23.9.1987, appointment of petitioners were cancelled on the ground that there were only six sanctioned posts, and the Managing committee of the institution had misled the authorities that there were three posts vacant, on account of which permission was accorded to fill up the vacancies on 17.1.1984. It has also been mentioned therein that it was not clear as to when petitioners had been appointed in the institution. Much emphasis has been laid on the fact that appointment had been made without there being any post in existence. Thereafter, respondents 5 to 7 have been appointed and their appointments have been approved. Submission of petitioners right from beginning had been that appointment of respondents 5 to 7 was bad as there was no post in existence, further while canceling appointment of petitioners, it was contended that there was no post, whereas, on the other hand, three fresh appointments have been made, and thus totally contradictory stand was sought to be taken. Submission of petitioners right from beginning had been that appointment of respondents 5 to 7 was bad as there was no post in existence, further while canceling appointment of petitioners, it was contended that there was no post, whereas, on the other hand, three fresh appointments have been made, and thus totally contradictory stand was sought to be taken. Petitioners submit that District Inspector of Schools was obliged to go into all these questions, as to whether ground, which has been taken for non-suiting claim petitioners was correct and genuine ground, specially in view of the circumstances that on subsequent occasion fresh appointments have been made making strength of sanctioned post to be 9 whereas on earlier occasion it was mentioned that there were only six sanctioned posts. District Inspector of Schools in the impugned order, in fact, has not undertaken any exercise worth the name and has not at all adverted itself on all this important aspect of the matter. On earlier occasion, this Court had given categorical direction of providing opportunity of hearing to the petitioners as well as Committee of Management and the said three persons who had been appointed, and once it was provided for then claim made by respective parties was to be adverted to, and thereafter reasoned order ought to have been passed. But from the impugned order nothing is reflected to have been done, that there has been any objective consideration by the District Inspector of Schools while determining the controversy in question.” 8. In the circumstances the D.I.O.S. was again obliged to consider the matter but he has proceeded and reiterated what has been earlier done without applying his mind to the real question that if vacancy said to have occurred before 1984, in which petitioners were appointed actually, then how and in what circumstances the respondents 5, 6 and 7 were appointed in 1991 and for that when vacancy occurred. 9. It is not the case of D.I.O.S. at any stage that vacancies against which the respondent Nos. 5, 6 and 7 were appointed occurred as early as after 1987 and before 1991. 10. 9. It is not the case of D.I.O.S. at any stage that vacancies against which the respondent Nos. 5, 6 and 7 were appointed occurred as early as after 1987 and before 1991. 10. Sri V.P.Shukla, learned counsel for the petitioners vehemently contended that it appears that D.I.O.S. repeatedly is following the same track without any application of mind on his part and having failed to consider as to how the respondents 5, 6 and 7 could have been appointed when the question of appointment of the petitioners was already sub-judice before this Court and yet this aspect has not been considered by him despite a clear direction issued by this Court in its judgment dated 7.12.2004. 11. On behalf of respondent Nos. 1, 2 and 4 a counter-affidavit has been filed through learned standing counsel. In the counter-affidavit also what has been stated in the impugned order by the D.I.O.S. has been reiterated without explaining as to how appointment of petitioners was illegal and if there did not exist sanctioned posts or vacancies where against petitioners could have been appointed, how the respondent Nos. 5,6 and 7 could be validly appointed, in the absence of any findings recorded about the occurrence of vacancy on Class IV posts after appointment of the petitioners and before appointment of the respondent Nos. 5,6 and 7. In paragraph 3 of the counter-affidavit, however, it says that the story set up by college that before appointment of petitioners, three vacancies occurred due to resignation of Sri Shyam Lal, Chhotey Lal and Shiv Shankar was not correct. 12. On behalf of respondent No. 7 a separate counter-affidavit has been filed wherein they have challenged the very appointment letters of the petitioners and has stated that these appointment letters are forged and fictitious. 13. This matter was heard by this Court on 12.8.2009 and the Court required learned standing counsel to inform as to how sanctioned post were available upto 1984 and what was the position of the incumbents appointed against the said posts. The order dated 12.8.2009 may be produced as under : “Supplementary affidavit filed today is taken on record. Though pursuant to the query of this Court, instruction has been provided by the District Inspector of Schools, Chitrakoot that 10 posts of class IV employees are sanctioned in the institution concerned against which the employees are working and no post is vacant. Though pursuant to the query of this Court, instruction has been provided by the District Inspector of Schools, Chitrakoot that 10 posts of class IV employees are sanctioned in the institution concerned against which the employees are working and no post is vacant. Learned counsel for the petitioners submits that since the opposite parties 5, 6 and 7 are working, they are included within these 10 sanctioned posts whereas the petitioners questioned the appointment of opposite parties 5, 6 and 7 on the ground that once the petitioners’ appointment has been negated on the ground that no post was sanctioned, how the appointments of opposite parties 5, 6 and 7 have been made beyond the sanctioned posts. Keeping in view the submission of learned counsel for the petitioners, I hereby issue direction to the learned Standing Counsel to file supplementary counter-affidavit stating therein the position of total sanctioned strength of class IV employees as well as the vacancy on the date of petitioners’ appointment as well as on the date of appointment of opposite parties 5, 6 and 7. The opposite parties shall also specify as to once the petitioners’ appointment were negated on the ground that they have been appointed against sanctioned posts, how the opposite parties have been appointed and when their posts were sanctioned, for appropriate orders. Ten days’ time is allowed to learned Standing Counsel to file supplementary counter-affidavit. List on 24.8.2009.” 14. In compliance of the aforesaid order a supplementary counter-affidavit has been filed on behalf of the respondents 1, 2 and 4. It has been specifically stated therein that at the time of appointment of the petitioners on 30.10.1984 there existed 10 sanctioned posts of Class IV employees against which only 7 Class IV employees were working hence three posts were lying vacant. In view of this stand taken in the Supplementary counter-affidavit filed on behalf of respondents 1, 2 and 4 the things have become much straight and easier. In view of this stand taken in the Supplementary counter-affidavit filed on behalf of respondents 1, 2 and 4 the things have become much straight and easier. The earliest order dated 19.8.1987 whereby approval was granted to the petitioners’ appointment was cancelled by D.I.O.S. on 28.9.1987 recording a categorical finding that a false information was given that there were 9 sanctioned post of Class IV employees though actually there were only 6 posts which were all occupied and on account of this false information that three vacancies existed in Class IV employee, approval was obtained for filling in those vacancies though sanctioned posts were not vacant. It is evident from the following recorded on 28.9.1987 : ^^vkids i= fnukad 5-1-1983 us bl dk;kZy; dks Hkzked vkSj vlR; lwpuk nh x;h Fkh fd vkids fo|ky; esa ifjpkjdksa ds 9 in gSaA tcfd okLro esa 6 in gh Fks vkSj mu ij mDr 6 deZpkjh dk;Zjr FksA vkids bl Hkzked rF; izLrqr djus ij fd vkids fo|ky; es prqFkZ oxhZ; deZpkfj;ksa ds rhu in fjDr gSaA bl dk;kZy; ds i=kad @fo0iz02@19109@83&84 fnukad 17&1&1984 }kjk mDr rFkk dfFkr fjDr inksa ij fu;qfDr inksa dh vuqefr nh x;hA vkius iqu% vius Åij fyf[kr i=ksa }kjk fnukad 1&11&1984 vkSj mlds yxHkx 3 o"kksZa ckn fnukad 22&7&1987 }kjk iqu% mDr rFkk dfFkr prqFkZ oxhZ; deZpkfj;ksa ds inksa ij fu;qfDr gsrq vuqeksnu pkgkA vkius ;g Hkh fy[kk gS fd Jh ';ke yky] Jh f’ko 'kadj rFkk Jh NksVs yky ds R;kx i= nsus ds dkj.k rhu fjfDr;ka gqbZ Fkh ftu ij vkius Jh ckyd`".k] Jh f’ko x.ks’k Jh pUnz nRr dh fu;qfDr dk vuqeksnu pkgk ijUrq vkids i=ksa ls Li"V ugha gS fd Jh ';ke yky] Jh f’ko’kadj rFkk Jh NksVs yky dh fu;qfDr dc fd;k] fdu inks ij fd;k vkSj mudk vuqeksnu bl dk;kZy; ds fdl vkns’k }kjk fd;k x;kA tcfd ;g in l`ftr gh ugha Fks D;ksafd bl dk;kZy; }kjk bu inksa ij fdlh Hkh deZpkjh dh fu;qfDr dk vuqeksnu ugha fn;k x;kA Jh vo/k ukjk;.k dh e`R;q fnukad 15-3-85 dks gks tkus ds dkj.k muds Lfkku ij Jh izse ukjk;.k dh fu;qfDr vkids }kjk fd;s tkus ij mldk vuqeksnu bl dk;kZy; ds i=kad fo0iz0 02@ 5523&24@87&88 fnukad 18-6-87 }kjk fn;k tk pqdk gS bl rjg 7 ifjpkjdksa ds l`ftr inksa ij 7 ifjpkjd orZeku esa dk;Zjr gSA dksbZ Hkh LFkku fjDr ugha gSA foRrh; losZ{k.k rFkk Qkyrw deZpkfj;ksa ls lEcfU/kr tks vk[;k,sa bl dk;kZy; dks vkids }kjk izkIr gqbZ gS muesa 7 in l`ftr gSa vkSj 7 inksa ij ifjpkjd dk;Zjr gSaA** 15. It is this order which has been reiterated in the subsequent order dated 31.3.2003 passed by D.I.O.S. pursuant to the judgment dated 12.5.1987 in Writ Petition No. 18914 of 1987 as also referred to in the impugned order by the D.I.O.S.. It is this order which has been reiterated in the subsequent order dated 31.3.2003 passed by D.I.O.S. pursuant to the judgment dated 12.5.1987 in Writ Petition No. 18914 of 1987 as also referred to in the impugned order by the D.I.O.S.. Assuming that the alleged resignation of Shri Shyam Lal, Chhotey Lal and Shiv Shankar who is said to be working as Class IV employees was not correct, the fact remains that in 1984 there existed 10 sanctioned post of Class IV out of which three were vacant as admitted by the respondent Nos. 1, 2 and 4 in para 3 of their supplementary counter-affidavit. In the three vacancies there existed, the petitioners were selected and appointed and those appointments were approved by D.I.O.S. The said approval cannot be said to have obtained on account of fraud or misrepresentation with respect to vacancies on the basis whereof the disapproval order was passed on 23.9.1987. This Court failed to understand when validity of appointment of the petitioners was sub-judice before this Court, how it could be open to Principal of the College to make fresh appointment against the same vacancies in 1991 and the D.I.O.S. also approved it without looking to the fact that claim of the persons already appointed is sub-judice before this Court. The D.I.O.S., it appears, has deliberately omitted the relevant aspects to be considered in this matter. It is only when this Court made him to file an affidavit giving details of the vacancies, for the first time it has been stated in para 3 of the supplementary counter-affidavit that as a matter of fact, there were 10 posts sanctioned in 1984 and three vacancies were available for appointment. The approach, in the case in hand, of the D.I.O.S., from time to time, and despite the clear judgment of this Court, appears to lack bona fide. In my view it could not have been for any reason except malice i.e. malice in law. The appointment of the respondents 5 to 7, therefore, can not be said to have been made validly, when the petitioners were already appointed on the said posts and were not terminated. 16. In the result, the writ petition is allowed. The impugned order dated 19.3.2005 is hereby set aside. The appointment of the respondents 5 to 7, therefore, can not be said to have been made validly, when the petitioners were already appointed on the said posts and were not terminated. 16. In the result, the writ petition is allowed. The impugned order dated 19.3.2005 is hereby set aside. The petitioners shall be treated to be validly appointed since the date of their appointment on 13.10.1984 and shall also be entitled for salary in accordance with law. However, for the period petitioners could not work for any reason whatsoever and their salary has been paid to some other persons, no arrears of salary shall be paid to the petitioners but such period shall be counted as service and for other consequential benefits including pension and other retiral benefits. 17. Here is a case where the petitioners have been compelled to go on litigation frequently solely on account of mindless order passed by D.I.O.S. for the reasons constituting malice in law. It is thus high time when justice requires that this writ petition should be allowed with exemplary cost against respondent No. 2. The petitioners thus shall also be entitled for cost which is quantified to Rs. One lac. The cost shall be paid to the petitioners by respondent No. 1 at the first instance, but it shall be at liberty to recover the said amount from respondent No. 2 in general and the concerned officials who were responsible for such illegal orders in due proportion at different times, in particular. 18. Registrar General is directed to send a copy of this order to the Secretary, Basic Education, U.P. Lucknow for information and compliance, who shall be at liberty to look into this matter as to how and in what circumstances the official holding the office of respondent No. 2 at the relevant time passed such reckless and mindless orders without little caring to find out the correct facts, and thereafter pass appropriate order. ——————