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2010 DIGILAW 971 (ALL)

SUSHIL KUMAR UPADHYAY v. STATE OF U. P.

2010-03-23

SUDHIR AGARWAL

body2010
JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri A.K. Pandey, learned counsel for the petitioner, learned Standing Counsel representing respondents 1 to 5 and Sri Abhishek Rai, holding brief of Sri Chandan Sharma, counsel for applicant seeking impleadment in the writ petition. 2. With the consent of the learned counsel for the parties, the writ petition was heard finally and is being decided under the Rules of the Court at this stage. 3. Aggrieved by the order dated 27.3.2006 passed by District Inspector of Schools, Ballia (hereinafter referred to as “DIOS”), respondent No. 3 (Annexure 1 to the writ petition), the petitioner has filed the present writ petition under Article 226 of the Constitution of India seeking a writ of certiorari for quashing the aforesaid order. He has also sought a writ of mandamus commanding the respondents to start payment of salary to the petitioner on the post of Assistant Teacher (L.T. Grade). 4. The facts in brief, as borne out from the record, are as under. 5. Raj Kumar Uchchattar Madhyamik Vidyalaya, Karo, Ballia (hereinafter referred to as “College”) is a secondary education institution governed by the provisions of U.P. Intermediate Education Act, 1921 (hereinafter referred to as “1921 Act”) and for the purpose of salary of teaching and non-teaching staff of the College, it is governed by U.P. High School and Intermediate Colleges (Teachers and other Employees) (Payment of Salary) Act, 1971 (hereinafter referred to as “1971 Act”). The recruitment of teaching staff of the College is governed by the provisions of U.P. Secondary Education (Service Selection Board) Act, 1982 (hereinafter referred to as “1982 Act”) and Rules and Regulations framed and Removal of Difficulties Orders issued thereunder. 6. On a short term vacancy occurred due to promotion of one Sri Doodh Nath Sharma, Assistant Teacher (L.T. Grade) as officiating Principal, it is said that the Committee of Management of the College advertised the vacancy and the petitioner was ultimately selected. The Committee of Management vide resolution dated 30.8.1990 resolved to appoint the petitioner on short term vacancy and consequently letter of appointment was issued to the petitioner on 1.9.1990 by the Manager, Committee of Management of the College pursuant whereto the petitioner joined the College on 3.9.1990. The Committee of Management vide resolution dated 30.8.1990 resolved to appoint the petitioner on short term vacancy and consequently letter of appointment was issued to the petitioner on 1.9.1990 by the Manager, Committee of Management of the College pursuant whereto the petitioner joined the College on 3.9.1990. It is said that the papers were sent to DIOS seeking his approval for payment of salary but since no decision was conveyed by him, the petitioner filed a Writ Petition No. Nil of 1992, which was disposed of vide judgment dated 12.8.1992 directing the DIOS to complete the enquiry, if any, against the petitioner within two weeks and if the enquiry is not completed, to start payment of salary to the petitioner according to law. Pursuant to the aforesaid order, the DIOS granted approval for payment of salary to the petitioner on 6.1.1993. It is said that thereafter some complaint was made regarding illegal appointments made in various Schools of District Ballia whereupon prima facie about 350 such illegal appointments were noticed by DIOS and ultimately the investigation was referred to C.B.C.I.D. who has submitted charge sheet on 17.6.2005 which included the name of the petitioner also. It is said that on account of the aforesaid proceedings now the petitioner’s salary has been stopped and therefore a writ of mandamus has been sought directing the respondents not only to continue pay his salary but also to consider him for regularization under Section 33-B of 1982 Act. 7. On behalf of the respondents No. 1 to 4, a counter-affidavit has been filed admitting that the salary of the petitioner has been stopped by order dated 27.3.2006 which is a consequential order pursuant to the Director of Education (Secondary)’s order dated 27.3.2006 which has not been challenged in the writ petition. It is said that the C.B.C.I.D. has found the matter of forgery etc. in the matter of alleged appointment of several teachers including that of petitioner and a criminal proceeding is going on, hence, the respondents have rightly withheld payment of salary to the petitioner. 8. It is said that the C.B.C.I.D. has found the matter of forgery etc. in the matter of alleged appointment of several teachers including that of petitioner and a criminal proceeding is going on, hence, the respondents have rightly withheld payment of salary to the petitioner. 8. A separate counter-affidavit on behalf of Committee of Management of the College, respondent No. 6, has also been filed stating that one Doodh Nath Verma and not Doodh Nath Sharma was promoted as officiating Principal resulting in a short term vacancy on the post of Assistant Teacher (L.T. Grade) in which the petitioner was appointed on the recommendation of the Selection Committee and pursuant to the resolution of the Committee of Management. His continuous working in the College is also admitted. In fact the respondent No. 6 has supported the claim of the petitioner. 9. Learned counsel for the petitioner submitted that once his salary was paid after an order passed by DIOS as long as back as on 6.1.1993, the same could not have been withheld by the respondents and that too without giving any show cause notice or opportunity to the petitioner particularly when it is not being said as to how the appointment of the petitioner was illegal disentitling him payment of salary. He reiterated the stand taken in the writ petition that the appointment of the petitioner was made strictly in accordance with the procedure prescribed in U.P. Secondary Education (Removal of Difficulties) (Second) Order, 1981 (hereinafter referred to as the “Second Order”) and therefore, non-payment of salary to the petitioner is wholly illegal and arbitrary. He also placed reliance on a Single Judge Judgment of this Court in Harendra Kumar Singh v. State of U.P. and others, 2008 (8) ADJ 605 . 10. It is no doubt true that if a person is validly appointed on a post, he is entitled for payment of salary admissible on such post pursuant to such an appointment. However, when a person approaches an equity Court under Article 226 of the Constitution of India seeking a writ of mandamus, first of all it is incumbent upon him to establish that he has a right and only then a writ of mandamus can be claimed. However, when a person approaches an equity Court under Article 226 of the Constitution of India seeking a writ of mandamus, first of all it is incumbent upon him to establish that he has a right and only then a writ of mandamus can be claimed. In the matter of payment of salary, one has to show or place on record the relevant facts and material demonstrating that he was validly appointed on the post concerned to entitle him for salary from the employer concerned. The petitioner, in the case in hand, simply refer to the resolution passed by the Committee of Management on 30.8.1990, the letter of appointment issued by the Manager of the Committee of Management of the College on 1.9.1990, the High Court’s Judgment dated 12.8.1992 in the writ petition filed by the petitioner and the District Inspector of Schools’ order dated 6.1.1993 whereby his salary was allowed to be paid to support his claim that he was validly appointed on the post in question and, therefore, entitled for salary. 11. However, from the record, I find that this Court in the earlier writ petition did not examine the validity of appointment of the petitioner on the post of Assistant Teacher (L.T. Grade) while disposing of the same on 12.8.1992 at the time of admission itself without inviting any counter-affidavit from the respondents. Similarly, DIOS in its order dated 6.1.1993 did not examine the correctness or validity of the appointment of the petitioner, but in a mechanical way only to ensure compliance and to avoid consequences of the order regarding payment of salary in case enquiry is not completed within two weeks, complied the same as such. 12. Learned counsel for the petitioner despite of repeated reference to the said orders, could not show any consideration by this Court or educational authorities regarding validity of his appointment on the post of Assistant Teacher (L.T. Grade). 13. Assuming for a moment and without going into the question as to whether there was any sanctioned post or not, or whether the short term vacancy on the post of Assistant Teacher (L.T. Grade) validly occurred or not, I proceed assuming that due to ad hoc promotion of Doodh Nath Verma as officiating Principal of the College, a short term vacancy on the post of Assistant Teacher (L.T. Grade) occurred, though it has been disputed by the official respondents. Counsels for the parties admitted that in such a case the appointment of the petitioner on the post of Assistant Teacher (L.T. Grade) could have been made in accordance with the procedure prescribed in Second Order, para 2 whereof reads as under : “2. Procedure for filling up short-term vacancies.—(1) If short-term vacancy in the post of a teacher caused by grant of leave to him or on account of his suspension duly approved by the District Inspector of Schools or otherwise, shall be filled by the Management of the Institution by promotion of the permanent senior-most teacher of the institution, in the next lower grade. The Management shall immediately inform the District Inspector of Schools of such promotion along with the particulars of the teacher so promoted. (2) Where any vacancy referred to in Clause (1) cannot be filled by promotion, due to non-availability of a teacher in the next lower grade in the institution, possessing the prescribed minimum qualifications, it shall be filled by direct recruitment in the manner laid down in Clause (3). (3) (i) The management shall intimate the vacancies to the District Inspector of Schools and shall also immediately notify the same on the notice board of the institution, requiring the candidates to apply to the Manager of the Institution along with the particulars given in Appendix “B” to this Order. The selection shall be made on the basis of quality point marks specified in the Appendix to the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, issued with Notification No. Ma-1993/XV-7(79)-1981, dated July 31, 1981, hereinafter to be referred to as the First Removal of Difficulties Order, 1981. The compilation of quality point marks shall be done under the personal supervision of the Head of Institution. (ii) The names and particulars of the candidate selected and also of other candidates and the quality point marks allotted to them shall be forwarded by the Manager to the District Inspector of Schools for his prior approval. (iii) The District Inspector of Schools shall communicate his decision within seven days of the date of receipt of particulars by him failing which the Inspector will be deemed to have given his approval. (iii) The District Inspector of Schools shall communicate his decision within seven days of the date of receipt of particulars by him failing which the Inspector will be deemed to have given his approval. (iv) On receipt of the approval of the District Inspector of Schools or, as the case may be, on his failure, to communicate his decision within seven days of the receipt of papers by him from the Manager, the Management shall appoint the selected candidate and an order of appointment shall be issued under the signature of the Manager. Explanation.—For the purpose of this Paragraph— (i) the expression “senior-most teacher” means the teacher having longest continuous service in the institution in the Lecturer’s grade or the Trained graduate (L.T.) grade or Trained under-graduate (C.T.) grade or J.T.C. or B.T.C. grade as the case may be; (ii) in relation to institution imparting instructions to women, the expression ‘’District Inspector of Schools’ shall mean the Regional Inspectress of Girls’ Schools; (iii) short-term vacancy which is not substantive and is of a limited duration.” 14. Neither the date of occurrence of vacancy on the post of Principal has been given nor the date of promotion of Sri Doodh Nath Verma as officiating Principal has been mentioned anywhere nor the date of advertisement of short term vacancy is mentioned. Only this much is stated in para 6 of the writ petition that the post of Assistant Teacher (L.T. Grade) was advertised by the Committee of Management and, thereafter, the petitioner was selected. The petitioner has not sought to claim the benefit of the plea normally taken in such matters that the requirement of advertisement in two news papers as held by the Full Bench in Radha Raizada v. Committee of Management, 1994 (2) ESC 345 decided in 1994 is prospective and therefore there was no requirement of such advertisement earlier thereto, but here is a case where the petitioner’s clear stand is that the short term vacancy of Assistant Teacher (L.T. Grade) was duly advertised and thereafter the petitioner was selected. However, neither the date of such advertisement nor other details are on record. 15. However, neither the date of such advertisement nor other details are on record. 15. Learned counsel for the petitioner further could not show that after making selection of the petitioner, the papers were sent to DIOS seeking his prior approval and after failure on his part to convey his decision within seven days, thereafter the appointment of the petitioner was made. On the contrary, it is admitted case of the petitioner that as soon as the resolution was passed by the Committee of Management on 30.8.1990, the letter of appointment was issued on 1.9.1990 and the petitioner jointed on 3.9.1990. Hence there was clearly no compliance of Clause 3 (iii) which provides for prior approval of DIOS. The effect of non-observance of Para 3 (iii) of Second Order has been considered in detail by a Division Bench of this Court in Joint Director of Education, Azamgarh Region, Azamgarh and another v. Udai Raj Vishwakarma and another, 2007(3) ADJ 121 (DB) : 2007(2) ESC 1116 (All)(DB) decided on 6.2.2007 wherein this Court held as under : “Since payment has to be made from the State Exchequer, the appointment can be made only when the entire selection procedure as well as particulars of the candidate selected are scrutinized and examined by the DIOS and he has an occasion to convey his approval to the selection prior to appointment. Under clause 2(3) of the Second Order, “prior approval” is required after the selection but before appointment. A well defined and unambiguous procedure for short term appointment has been provided in the Second Order which does not admit of any doubt. ......where the statute specifically provides “prior approval” before passing any order, what its effects would be has been considered in some other cases which we propose to refer as under. Rule 11 of U.P. Recognized Basic Schools (Recruitment and Conditions of Service of Teachers and other Conditions) Rules, 1975 provides that no service can be terminated without prior permission from the District Basic Officer. A Division Bench of this Court in Ms. Shailja Shah v. Executive Committee, Bharat Varshiya National Association and another, 1995 (25) ALR 88 held that expression “prior approval” and “approval” connotes different situation. Where a statute uses the term “prior approval” anything done without prior approval is nullity. Where a statute employs expression “approval”, however, in such cases subsequent ratification can make the act valid. Shailja Shah v. Executive Committee, Bharat Varshiya National Association and another, 1995 (25) ALR 88 held that expression “prior approval” and “approval” connotes different situation. Where a statute uses the term “prior approval” anything done without prior approval is nullity. Where a statute employs expression “approval”, however, in such cases subsequent ratification can make the act valid. Section 59(1)(a) of U.P. Urban Planning and Development Act, 1973 provides for “prior approval”. The Apex Court in U.P. Avas Evam Vikas Parishad and another v. Friends Coop. Housing Society Ltd. and another, 1995 (Suppl-3) SCC 456 held that “prior approval” and “approval” are two different connotations and if the statute does not mention “prior approval” what is material would be only “approval”. The earlier judgment in Life Insurance Corporation of India v. Escorts Ltd., 1986 (1) SCC 264 was also referred where it was held that the word ‘’prior’ and ‘’previous’ may be implied if the contextual situation or circumstances justify such reading and the Act which requires only approval, the action holds good until it is disapproved. Section 9 of the 1971 Act provides for “prior approval”. In Director of Education and others v. Gajadhar Prasad Verma, AIR 1995 SC 1121 , it was held that the absence of “prior approval” would not have an effect of creation of post and therefore the State is not obliged to reimburse salary to the management without “prior approval” of the Director or the competent authority under the Act. In Shiv Gorakh Nath Charitable Society, Kanpur and others v. Cantonment Board, Kanpur and others, 1997 (3) ALR 616, a Division Bench while considering the effect of “prior permission” held where construction is made without “prior permission” a “post permission” cannot be granted and the construction, so made, has to be dismantled. Same view has been taken by another Division Bench in Vivek Srivastava v. Union of India and others, 2005 (3) ESC (All) 1790 -(Para 51). At this stage learned counsel for the petitioner pointed out that since under para 2(3) of Second Order there is a provision for deemed approval and therefore strict construction of the statute requiring “prior approval” as such may not apply and a deemed approval may be treated, if after making appointment, documents were subsequently sent to DIOS and he failed to communicate his decision within seven days. The appointment would not be invalid for all times to come. The appointment would not be invalid for all times to come. We are unable to accept the aforesaid submission in view of the binding precedent of the Apex Court providing for strict observance of the procedure prescribed under the First and Second Order. .............It is well settled when law requires something to be done in particular manner anything otherwise is prohibited and illegal and would not confer any right upon the person appointed in a manner not provided under the statute. This Court in District Inspector of Schools v. Naresh Chandra, 2006(2) ESC 1483 (All)(DB), held as under : “Thus when the law requires some thing to be done in a particular manner no other way is permissible and any action not in accordance with such procedure would be void and illegal. The provision of statute and the rigor of statutory procedure cannot be diluted by holding the same to be mere irregularity, since it would be very difficult in such case to restrict or define the extent of such irregularity. For illustration, in one case, the management, who has made appointment after 58 days instead of 60 days may claim it to be a mere irregularity and in another matter the management after making appointment even within a week instead of waiting for 60 years may claim the similar protection. Such interpretation would result in making the period prescribed under Section 18 to be ununiform, illusory and virtually redundant. A statutory provision cannot be read in a manner, which will bring redundancy to any part of the statutory provision. In this view of the matter, we are clearly of the view that any infraction of the procedure prescribed under Section 18 of the Act would vitiate the appointment being void and illegal and such deviation cannot be said to be a mere irregularity.” In view of the aforesaid discussions thus it cannot be held that the appointment of the petitioner was made validly by observing the procedure prescribed in para 2(3) of Second Order.” 16. Apparently, there was no compliance of the procedure laid down in the Second Order. Apparently, there was no compliance of the procedure laid down in the Second Order. In a case where there is no compliance of the procedure prescribed in the Second Order, the Apex Court in Prabhat Kumar Sharma and others v. State of U.P. and others, (1996) 10 SCC 62 : AIR 1996 SC 2638 has held that the order is absolutely void ab-initio and does not confer any right either to hold the post or to claim salary. The relevant observations are as under : “Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointee.“ (Para-7) 17. The above view has been reiterated in a recent decision in Shesh Mani Shukla v. District Inspector of Schools Deoria and others, JT 2009 (10) SC 309. 18. Besides from the letter dated 9.3.2006 (Annexure 10 to the writ petition), it appears that Sri Doodh Nath Verma was promoted on ad hoc basis on 6.8.1990. The counsel for petitioner informs that the vacancy on the post of Principal occurred due to retirement of incumbent concerned on 30.6.1990 and, thereafter, the appointment was made on the post of Principal on officiating basis on 6.8.1990. It also appears that the Management, thereafter, claimed that another person Sri Rishidev Prasad Yadav was appointed in the aforesaid short term vacancy caused due to ad hoc promotion of Sri Doodh Nath Sharma as officiating Principal by Management’s resolution dated 30.5.1990 and payment of salary was allowed by the then District Inspector of Schools on 19.9.1994 but the same was suspended in June 1995 whereagainst Sri Rishidev Prasad Yadav filed a Civil Suit in the Court of Civil Judge, Ballia, i.e. Suit No. 39 of 1993 which is still pending. 19. Learned counsel for the petitioner, despite repeated query made by this Court, could not show as to how and in what manner the procedure laid down in the Second Order was followed by the respondent No. 6 in the alleged appointment of the petitioner to the post of Assistant Teacher (L.T. Grade) and in such circumstances, when apparently the said procedure was not followed, I find that the judgment in Harendra Kumar Singh (supra) does not render any help to the petitioner for claiming either mandamus for payment of salary or to point out any illegality in the order of DIOS stopping his salary. In fact, the payment already made to the petitioner is itself without any authority of law and in my view it is a fit case where the petitioner must be required to restore back the amount which he has received from the State Exchequer towards salary pursuant to the alleged appointment since the above appointment was ex facie illegal and void ab-initio. However, I am desisting from passing such an order at this stage and leave it open to the respondent-State of U.P. to take appropriate steps in this matter in accordance with law after giving due opportunity to all concerned and pass appropriate order. It will also be open to the State of U.P. to find out as to whether in the above matter of payment of salary to the petitioner, whether there was any deliberate negligence or collusion of the educational authorities also or not and if so, to recover the amount paid towards salary to the petitioner from such erring official/authority. 20. In view of the above discussion, I have no hesitation in holding that since the appointment of the petitioner is void ab-initio having not been made by observing procedure prescribed in the Second Order and in view of the law laid down by the Apex Court in Prabhat Kumar Sharma (supra) and Shesh Mani Shukla (Supra) the appointment made in violation of procedure prescribed in the Removal of Difficulties Order is illegal, neither the order of DIOS, impugned in this writ petition, stopping payment of salary to the petitioner can be said to be erroneous nor illegal nor any mandamus can be issued in favour of the petitioner for payment of salary. 21. The writ petition is devoid of merit. 22. Dismissed. 23. There shall be no order as to costs. ————