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2011 DIGILAW 351 (ALL)

SHASHI KALA v. STATE OF U. P.

2011-02-14

SUDHIR AGARWAL

body2011
JUDGMENT Hon’ble Sudhir Agarwal, J.—Respondent No. 4 committee of management through its Manager, Harchand Mal Jain Inter College, Tikri, District Baghpat was directed to be served besides dasti summon by the order dated 23.10.2009 and the petitioner was directed to file an affidavit of service which has been filed on 2.11.2009. Service of notice effected upon Manager and office of respondent Institution was made on 31.10.2009. Respondent No. 4 has not filed any reply nor put any appearance through its counsel. 2. It is contended that in accordance of Section 18 of the U.P. Secondary Education Service Selection Board, 1992 the District Inspector of Schools issued an order dated 6.2.1993 selecting the petitioner for the post of Assistant Teacher in LT Grade and directing management to issue letter of appointment within 10 days i.e. latest by 18.2.1993 and inform the District Inspector of Schools accordingly. 3. However, the management did not comply with the said order and defying the same compelled the petitioner to file writ petition No. 25870 of 1993 wherein an interim order was passed, pursuant whereof management issued letter of appointment to the petitioner on 6.9.1993. The petitioner accordingly joined on 7.10.1993 and continued to serve the institution since thereafter. Since the only relief in earlier writ petition was that respondent management be directed to issue a letter of appointment to the petitioner and allow the petitioner to join the institution and the same having been complied with by the management pursuant to interim order dated 20.7.1993 passed by this Court, the aforesaid facts were noticed and the writ petition having rendered infructuous was dismissed by the Court vide judgment dated 8.1.2010. 4. In the meantime, the petitioner, it appears, sought regularization under Section 33(C) of 1982 Act but her claim was rejected by Regional Committee headed by Joint Director of Education by order dated 28.8.2009 on the ground that petitioner having been allowed to work on the post in question with effect from 7.10.1993 i.e. the day after the cut off date i.e. 6.8.1993 and hence she is not entitled for regularisation under the aforesaid provision. 5. Sri R.C. Gupta, learned counsel for the petitioner contended that delay in issuing appointment letter at the end of the management cannot be said to be a fault on part of the petitioner. 5. Sri R.C. Gupta, learned counsel for the petitioner contended that delay in issuing appointment letter at the end of the management cannot be said to be a fault on part of the petitioner. It was the fault of the management in not issuing appointment letter to the petitioner in time, hence she could not join before 6.8.1993. He thus contended that letter of appointment was issued by the District Inspector of Schools long back on 6.2.1993 i.e. six months prior to the cut off date yet the management delayed the matter and it is only when an interim order was passed by this Court in the earlier writ petition, the letter of appointment was issued and for this fault, the petitioner cannot be made to suffer. 6. A Division Bench in Firangi Prasad v. State of U.P. and others, in Special Appeal No. 1007 of 2010 decided on 11.11.2010 held if the District Inspector of Schools has issued a letter directing committee of management to appoint a person as teacher and the management delayed the matter at its end, for such inaction of management the teacher cannot be made to suffer and in such case, appointment shall be treated made before 6.8.1993 i.e. within the cut off date. Observations made in the judgment in paras 15 to 21 reads as under : “15. The second contention needs to be examined in the light of the facts that have emerged from the record, namely that the appellant for no fault on his part was kept out of the Institution by the inaction of the Management inspite of the District Inspector of Schools having dispatched the selection order on 18.1.1993. From the facts on record, it is evident that the Manager of the Institution had to perform the ministerial Act of issuing a letter of appointment to the appellant in terms of the selection order dated 18.1.1993. The Management admittedly complied with it after much persuasion on 25.8.1993, for which the appellant is nowhere at fault. On the contrary, the appellant had been continuously approaching the Management time and again expressing his willingness to join the Institution. 16. In these circumstances, teachers like the appellant fall within an altogether different class of candidates, who have been wrongfully prevented by the inaction of the Management in joining the Institution. On the contrary, the appellant had been continuously approaching the Management time and again expressing his willingness to join the Institution. 16. In these circumstances, teachers like the appellant fall within an altogether different class of candidates, who have been wrongfully prevented by the inaction of the Management in joining the Institution. The Management has to perform only a ministerial Act and by its inaction, it cannot defeat the legitimate claim of a teacher like appellant. 17. The direction contained in the order dated 18.1.1993 was categorical to allow the appellant to join within ten days, which admittedly was scuttled by the Manager for reasons best known to him. 18. The Manager is obliged to issue a letter of appointment under the direction of the District Inspector of Schools, who is the competent authority under the Rules. Any unwarranted defiance and in the absence of any infirmity in the selection of the appellant, such inaction of the Management cannot be of any disadvantage to the appellant or to any such teacher belonging to this class. 19. The respondents cannot by their inaction, therefore, deprive a candidate of his or her legitimate right to claim continuance in service. It is, therefore, clear that there was a deliberate delay on the part of the Management in issuing the letter of appointment in the present case and accordingly, the right of the appellant to claim continuance under the selection order dated 18.1.1993 cannot be denied. The appellant will, therefore, be entitled to the benefits flowing out of the order dated 18.1.1993 and in such a situation, the letter of appointment will relate back prior to the cut-off date i.e. 6.8.1993. 20. This, in our opinion, would be the correct interpretation of law in relation to the candidates who have been wrongfully prevented from receiving their letters of appointment for no fault of theirs. 21. Having concluded so, we, therefore, hold that the appellant was entitled for the benefit of regularisation in the circumstances narrated above and accordingly, the conclusion drawn by the learned Single Judge to refuse the mandamus cannot be sustained.” 7. 21. Having concluded so, we, therefore, hold that the appellant was entitled for the benefit of regularisation in the circumstances narrated above and accordingly, the conclusion drawn by the learned Single Judge to refuse the mandamus cannot be sustained.” 7. Learned Standing Counsel however, tried to justify order of the Regional Level Committee but having gone through the Division Bench’s judgment of this Court, could not dispute exposition of the law laid down in the facts of the case and also could not pursue this Court by making any substantial argument to take a different view in the matter. 8. In view of above and considering the exposition of law in Firangi Prasad (Supra), in my opinion, the appointment of petitioner shall also be treated as prior to cut off date i.e. 6.8.1993 and the petitioner would be entitled to be considered for regularization under Section 33 (C) of 1982 Act accordingly. The writ petition is allowed. The impugned order dated 28.8.2009 is quashed. Respondent No. 2 is directed to proceed to consider the claim of petitioner for regularization in the light of observations made in this order and issue order within two months from the date a certified copy of this order is filed before him if the petitioner is otherwise found eligible and qualified. No order as to costs. —————