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2011 DIGILAW 1225 (ALL)

VIJAY KUMAR YADAV v. STATE OF U. P.

2011-05-13

RAJESH DAYAL KHARE

body2011
JUDGMENT Hon’ble Rajesh Dayal Khare, J.—Heard Sri Nisheeth Yadav, learned counsel for the petitioner and learned Standing Counsel who has accepted notices on behalf of respondent Nos. 1, 2 and 4. 2. By means of the present writ petition, the petitioner has prayed for a writ of certiorari quashing the order dated 8.3.2000 passed by the District Inspector of Schools, Basti, whereby cancelling the order dated 16.7.1999 , by which financial approval was granted to the petitioner’s appointment and also directed for recovery of the amount from the petitioner, alongwith other ancillary reliefs. 3. Submission on behalf of the petitioner is that the petitioner was appointed as an Assistant Teacher on 9.9.1986 in Ram Shanker Sachhidanandpal Krishak Uchchattar Madhyamik Vidhyalay (hereinafter to be referred to as “the institution”), which is governed by the provisions of the U.P.Secondary Education Services Commission Act and the institution was taken into grant-in-aid on 1.4.1991. When the institution was taken in grant-in-aid, the petitioner made a representation before the respondent No. 2 for payment of salary from the State Exchequer but the same was refused on the ground that the petitioner’s post in question was not sanctioned. It is further contended that the initial appointment of the petitioner was duly approved by the District Inspector of Schools, Basti and therefore, the subsequent order dated 26.8.1997 passed by the District Inspector of Schools, Basti, whereby refusing to grant payment of salary to the petitioner is bad in law. The petitioner again moved a representation dated 8.10.1998 before the respondent No. 1, pursuant to which, the respondent No. 1 issued a direction to the respondent No. 2 to examine the matter and do the needful and after re-examining the matter, the respondent No. 2 passed an order dated 16.7.1999 whereby he directed for payment of salary be made to the petitioner, copy of which order, is annexed as Annexure-4 to the writ petition, on account of which, the salary payment was made to the petitioner, but all of a sudden on 8.3.2000, the respondent No. 3 cancelled the earlier order dated 16.7.1999 and directed for recovery of the amount which had been paid to the petitioner as salary. Learned counsel for the petitioner argued that the aforesaid order dated 8.3.2000, has been passed without affording any opportunity of hearing to the petitioner, which is in gross violation of the principles of natural justice and, therefore, the same is unsustainable in law. It is further contended that the District Inspector of Schools do not have any power to review the approval order given by him earlier, which can only be done, if the same is done, in consequence of some mistake or fraud. Learned counsel for the petitioner has relied upon a decision of this Court in Rama Shanker Pandey and others v. The District Inspector of Schools, Jaunpur and others, 1981 UPLBEC 86; Committee of Management Nonapur Inter College, Kanpur v. The District Inspector of Schools and another, 1980 UPLBEC 209 in support of his contention. 4. Learned Standing Counsel has contended that the appointment of the petitioner was not against any sanctioned post as there was no vacancy existing in the institution at the time of the petitioner’s appointment, and his salary payment was rightly refused that the salary payment was made on the basis of letter dated 16.7.1999 issued by the District Inspector of Schools, Sant Kabir Nagar, on the basis of which, the petitioner was getting salary till January 2003 but after passing of the subsequent order, no salary was paid to the petitioner. Learned Standing Counsel has further contended that the in the order impugned, it has been observed that it appears that the previous approval/appointment appears to be forged document. It is thus, argued that the order impugned does not suffer from any infirmity in law and therefore, warrants no interference by this Court. 5. Learned counsel for the petitioner has drawn the attention of this Court to Annexure-RA2 to the rejoinder-affidavit and has contended that vide order dated 31.3.1986, the appointment of five persons were given approval by the District Inspector of Schools and the name of the petitioner finds placed at serial No. 5. It is argued that when the institution came under grant-in-aid and the appointment of the petitioner and others were refused, one Vijendra Kumar, whose name placed at serial No. 4 in the aforesaid approval order dated 31.3.1986, filed a Civil Misc. It is argued that when the institution came under grant-in-aid and the appointment of the petitioner and others were refused, one Vijendra Kumar, whose name placed at serial No. 4 in the aforesaid approval order dated 31.3.1986, filed a Civil Misc. Writ Petition No. 53587 of 2006 before this Court, which writ petition was finally allowed by another Bench of this Court vide its order dated 14.10.2008, copy of which order is annexed as Annexure-RA1 to the rejoinder-affidavit, in which order it has been observed that Vijendra Kumar was granted appointment in the year 1986 and his appointment was accorded approval on 31.3.1986 but when the institution was taken into grant-in-aid, the name of five Assistant Teachers who were identically situated did not find place, therefore, the writ petition No. 40122 of 1997 was filed in which subsequently it was brought on record by way of counter-affidavit that approval order dated 31.3.1986 was not a genuine document, therefore the said writ petition was dismissed. It has further contended that after dismissal of the of the aforesaid writ petition, two persons namely, Vijay Kumar Yadav and Yogendra Singh, filed a representation before the State Government and the State Government after conducting the enquiry came to the conclusion that the approval order of 35 Assistant Teachers dated 31.3.1986 was a genuine document and as such directed the institution to adjust them and also directed the concerned District Inspector of Schools to pay salary in compliance of the aforesaid order. In pursuance of the aforesaid order passed by the State Government, Vijay Kumar Yadav and Yogendra Singh were offered appointment and sanction was given by the District Inspector of Schools and salary was paid to them. Subsequently, Vijendra Kumar, preferred writ petition before this Court and this Court had disposed of the said writ petition with the direction to the Director to conduct the enquiry and decide the matter afresh in compliance of the orders passed by this Hon’ble Court. Thereafter, the Director, came to the conclusion that the approval which was granted on 31.3.1986 was a genuine order, but since there are surplus teachers working in the institution and as such, declined to pass any orders for the payment of salary. It is further contended that that the principle of surplus employees is last come first go. Thereafter, the Director, came to the conclusion that the approval which was granted on 31.3.1986 was a genuine order, but since there are surplus teachers working in the institution and as such, declined to pass any orders for the payment of salary. It is further contended that that the principle of surplus employees is last come first go. It is thus, contended that after enquiry it was proved that the approval which was granted was geneuine document and therefore, the petitioner is entitled for payment of his salary and order impugned is bad in law. 6. After hearing the learned counsel for the parties and after perusing the averments made in the present writ petition as well as in counter and rejoinder-affidavits, this Court is of the opinion, that as the petitioner was appointed in the institution in the year 1986 and that payment of his salary was approved vide order dated 16.7.1999 which was stopped by the order impugned dated 8.3.2000, which order had been passed inter alia on the ground that the order dated 31.2.1986 was not a genuine document, but subsequently it was found to be a genuine documents, thus the order impugned dated 8.3.2000 is liable to be quashed for the reasons detailed above. 7. Accordingly, the order dated 8.3.2000 is quashed and the writ petition is allowed. 8. No order as to costs. —————