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Allahabad High Court · body

2012 DIGILAW 167 (ALL)

JAGVEER SINGH v. STATE OF U. P.

2012-01-18

KRISHNA MURARI

body2012
JUDGMENT Hon’ble Krishna Murari, J.—Heard Sri J.K. Srivastava, learned counsel for the petitioner and Sri Rajesh Gupta for the respondents. 2. Petitioner claiming appointment on a short term vacancy has challenged the validity of the order dated 10.4.2006 passed by the District Inspector of Schools, Agra (Annexure 18 to the writ petition). 3. There is an institution by the name of Chaharwati Inter College, Agra which is duly recognized and aided. On account of death of one Fauran Singh on 23.2.1996 who was working on the post of Lecturer in Sanskrit, a substantive vacancy occurred. The Committee of Management passed a resolution dated 17.3.1996 for giving ad hoc promotion to one Yogendra Kumar Lawania who was L.T. Grade teacher. The resolution was forwarded to the District Inspector of Schools, Agra for approval. On account of ad hoc promotion of Yogendra Kumar Lawania a short term vacancy in LT grade arose. Proceeding for making ad hoc appointment on the said short term vacancy by direct recruitment was initiated by the committee of management in accordance with the procedure prescribed in the U.P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order, 1981. Accordingly, the vacancy was advertised in two newspaper namely, ‘Aaj’ and ‘Sainik’ on 9.8.1996. The Selection Committee recommended the name of the petitioner for appointment. The recommendation of the selection committee was accepted by the committee of management vide resolution dated 30.8.1996 and thereafter, all the papers pertaining the selection were forwarded to the District Inspector of Schools for approval vide letter dated 10.9.1996. The committee of management issued an appointment letter dated 1.9.1996. In pursuance thereof, the petitioner joined on 9.9.2006. 4. In the meantime, since no orders were passed by the District Inspector of Schools according approval to the ad hoc promotion of Yogendra Kumar Lawania on the post of Lecturer in Sanskrit, he filed writ petition No. 28579 of 1996. One Sri Manveer Singh also joined him as petitioner claiming that he was selected for appointment on short term vacancy in LT grade, which was created due to promotion of Yogendra Kumar Lawania. Both of them sought a writ of mandamus commanding the respondents to make payment of salary on the post of Lecturer in Sanskrit and Assistant Teacher in L.T. Grade respectively. Both of them sought a writ of mandamus commanding the respondents to make payment of salary on the post of Lecturer in Sanskrit and Assistant Teacher in L.T. Grade respectively. vide order dated 30.3.1998 this Court disposed of the writ petition with the direction to the District Inspector of Schools, Agra to decide the representation to be made by them by a reasoned and speaking order within three months. A categorical direction was issued by the Court to the District Inspector of Schools to decide the following points : “(1) whether the petitioner No. 1 (Yogendra Kumar Lawania) was eligible and qualified for promotion to the post of Lecturer in Sanskrit on the date when the vacancy came into existence. (2) Whether the committee of management has taken steps to fill up the short term vacancy after following the proper procedure prescribed under the U.P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order, 1981 and keeping in view the decision of Full Bench in Radha Raizada v. Committee of Management, Vidhyawati Darbari Girls Inter College and others, (1994) 3 UPLBEC 155.” 5. In pursuance of the order dated 30.3.1998 the District Inspector of Schools considered the matter and passed an order dated 7.8.1998 according approval to the ad hoc promotion of Yogendra Kumar Lawania on the post of Lecturer in Sanskrit as well as appointment of Manveer Singh on short term vacancy as L.t. Grade teacher. When the fact came to the knowledge of the petitioner that the appointment of Sri Manveer Singh on the short term vacancy on L.T. Grade has been approved by the District Inspector of Schools, he immediately made a representation dated 10.8.1998. A copy of similar complaint was also forwarded to the Director of Education, Allahabad. The petitioner approached this Court by filing writ petition No. 19669 of 1998 which was disposed of vide order dated 29.5.1998 directing the District Inspector of Schools to decide the question of granting of financial approval in respect of the petitioner’s appointment in accordance with law. Petitioner again made a representation dated 10.8.1998 before the District Inspector of School. vide order dated 25.2.1999 the District Inspector of Schools, Agra held that the appointment of Manveer Singh on short term vacancy in L.T. Grade grade was not in accordance with the procedure prescribed by Second Removal of Difficulties Order and accordingly held it to be invalid. Petitioner again made a representation dated 10.8.1998 before the District Inspector of School. vide order dated 25.2.1999 the District Inspector of Schools, Agra held that the appointment of Manveer Singh on short term vacancy in L.T. Grade grade was not in accordance with the procedure prescribed by Second Removal of Difficulties Order and accordingly held it to be invalid. There is nothing on record to indicate that the order was ever challenged by Manveer Singh and in the circumstances, the only reasonable conclusion is that the same attained finality. It is surprising to note that even though the order dated 29.5.1998 passed in writ petition No. 19669 of 1998 filed by the petitioner was brought to the notice of the District Inspector of Schools but he did not consider the legality and validity of the appointment of the petitioner. The case of the petitioner in pursuance of the order dated 29.5.1998 was considered by the District Inspector of Schools separately and vide order dated 20.10.2004 the appointment was held to be illegal on the ground that the same was made prior to the approval granted by the District Inspector of Schools. He further held that since the ad hoc promotion of Yogendra Kumar Lawania on the post of Lecturer in Sanskrit was approved on 25.7.1998 and thus on 1.1.1996 when the petitioner was appointed there was no vacancy in LT grade as such, the appointment of the petitioner was illegal. Petitioner again approached this Court by filing writ petition No. 37 of 2005. The writ petition was allowed vide order dated 17.8.2005 by making following observations : “Having heard learned counsel for the parties. This Court is of the opinion that the appointment of the petitioner could be given effect to only after approval is granted by the District Inspector of Schools and pay is sanctioned. However, for the purposes of selection, document including the award of quality point marks etc. has to be asserted by the committee of management for being forwarded to the District Inspector of Schools. The procedure adopted by the committee of management before issuance of letter of appointment has not been faulted with. The papers have been sent to the committee of management for being forwarded to the District Inspector of Schools for examining the approval. has to be asserted by the committee of management for being forwarded to the District Inspector of Schools. The procedure adopted by the committee of management before issuance of letter of appointment has not been faulted with. The papers have been sent to the committee of management for being forwarded to the District Inspector of Schools for examining the approval. At the best appointment of the petitioner could be given effect to after approval was given by the competent authority in view of the reasoning given in the impugned order that prior approval had not been granted, cannot be sustained in the eyes of law as already explained above. Once procedure of selection and appointment is held to be valid, the same could be given effect to after the approval is granted by the competent authority. The writ petition succeeds and is allowed. The order dated 20.10.2004 is hereby quashed. The District Inspector of Schools, Agra respondent No. 2 is directed to consider the case of the petitioner as proposed by the committee of management and proceed to pass a fresh order in accordance with law within six weeks from the date of production of certified copy of this order before him. With the aforesaid observations, the writ petition is allowed without any order as to costs.” 6. In pursuance of the aforesaid direction of this Court, the case of the petitioner was again considered by the District Inspector of Schools after notice and opportunity of hearing to the committee of management a well as the Principal and the petitioner and the appointment has again been disapproved on the ground that no prior approval was sought before making the advertisement and the appointment letter has been issued to the petitioner on 1.9.1996 whereas the papers were forwarded to the District Inspector of Schools on 16.9.1996 as such, the appointment is de hors the procedure prescribed in Second Removal of Difficulties Order. 7. It has been urged by learned counsel for the petitioner that once the earlier order of the District Inspector of Schools dated 20.10.2004 invalidating the selection and appointment of the petitioner on the same ground was set aside by this Court in writ petition No. 37 of 2005 it was not open to the District Inspector of Schools to have dismissed the claim of the petitioner on the same ground. It is further submitted that once this Court held that the procedure adopted by the committee of management before issuance of the letter of appointment cannot be faulted with it was not open to the District Inspector of Schools to have disapproved the appointment of the on the ground that the procedure prescribed was not adhered to. 8. In reply, learned standing counsel referring to the counter-affidavit has submitted that since the appointment of the petitioner was de hors the procedure prescribed by Second Removal of Difficulties Order as such it has rightly been disapproved by the District Inspector of Schools. 9. I have considered the argument advanced by learned counsel for the parties and perused the record. 10. A perusal of the impugned passed by the District Inspector of Schools goes to show that appointment of the petitioner has been disapproved on two grounds; (1) there was no prior approval before making the advertisement; and (2) the petitioner was issued appointment letter dated 1.9.1996 whereas the papers were forwarded subsequently on 16.9.1996. In so far as the issue No. (1) is concerned, the matter stands closed by decision of this Court in writ petition 37 of 2005 holding that the procedure adopted by the committee of management before issuance of letter of appointment cannot be faulted with, which means that entire procedure adopted by the committee of management right from the advertisement till the issuance of letter of appointment to the petitioner is in accordance with the prescribed procedure. Once this Court held that the committee of management proceeded in accordance with the prescribed procedure the District Inspector of Schools has no authority or jurisdiction to sit in appeal over the findings of this Court. 11. In so far as the issue No. (2) is concerned, the same also stands concluded by the judgment dated 17.8.2005 inter se between the parties. This Court clearly held that at best the appointment of the petitioner could be given effect to after approval was given by the competent authority and the reason for invalidating the appointment of the petitioner on this ground by the District Inspector of Schools in its earlier dated 20.10.2004 was not accepted by this Court and the same was quashed. Again the District Inspector of Schools has disapproved the appointment of the petitioner on the same ground. 12. Again the District Inspector of Schools has disapproved the appointment of the petitioner on the same ground. 12. The manner in which the District Inspector of Schools has proceeded to consider the case of the petitioner cannot be appreciated by this Court. Once his order invalidating the appointment of the petitioner on the grounds therein was quashed it was not open to him to disapprove the appointment again on the same grounds. As a matter of fact, the District Inspector of Schools has failed to understand the import of the judgment of this Court dated 17.8.2005 passed in writ petition No. 37 of 2005 and he has committed a grave illegality in disapproving the appointment of the petitioner again on the same grounds. 13. Needless to emphasis that principles of res judicata are applicable at different stages of the same proceedings. The two issues which have been redetermined by the District Inspector of Schools and on the basis whereof the appointment of the petitioner has been disapproved had already attained finality by the decision of this Court dated 17.8.2005 in writ petition No. 37 of 2005 and it was not open to the District Inspector of Schools to have virtually reopened and readjudicate the same. The judgment of this Court dated 17.8.2005 remanding the matter to the District Inspector of Schools for fresh adjudication attained the finality in respect of the issues already decided therein and since they were not put in jeopardy any further they had a binding effect in between the parties and could not be reopened and redecided. 14. In view of the aforesaid facts and conclusion drawn, the impugned order dated 10.4.2006 passed by the District Inspector of Schools, Agra is not liable to be sustained and is hereby quashed. The District Inspector of Schools shall now proceed to consider the case of the petitioner for grant of approval afresh in accordance with law and in the light of observations made hereinabove. The entire exercise may be carried out within a period of six weeks from the date of production of a certified copy of this order before him. 15. The writ petition accordingly stands allowed. 16. However, there shall be no order as to costs. ——————