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Allahabad High Court · body

2015 DIGILAW 851 (ALL)

RISHI DEO PANDEY v. STATE OF U. P.

2015-04-17

P.K.S.BAGHEL

body2015
JUDGMENT Hon’ble P.K.S. Baghel, J.—Three petitioners, who are working as Assistant Teachers, have joined this writ petition seeking issuance of writ of certiorari quashing the orders dated 14.6.2010 and 3.12.2010 respectively, whereby the District Inspector of Schools (the DIOS) had stopped the salary of the petitioners and later on found that their appointment was illegal. 2. Essential facts are that the National Inter College, Harraiya, District Basti (the Institution) is a recognized and aided institution. The said institution is imparting education upto the level of Intermediate classes. It receives financial aid from the State funds. The institution is governed by the provisions the U.P. Act No. II of 1921 (the U.P. Intermediate Education Act, 1921) as well as U.P. Act No. 5 of 1982 (the U.P. Secondary Education Services Selection Board Act, 1982). 3. It is averred in the writ petition that six posts of the LT Grade Assistant Teacher fell vacant. The Committee of Management sent requisition to the U.P. Secondary Education Services Selection Board (the Board) through DIOS on 5.6.1989, 2.5.1990 and 27.4.1991 to fill up the said vacancies. When no select list was sent by the Board, the Committee of Management initiated the recruitment process for the appointment on adhoc basis in terms of the provisions of the Commission Act, 1982. 4. The vacancies were advertised on 6.6.1991 in a newspaper ‘Dainik Gramdoot’ in addition to the advertisement on the notice board. A copy of the newspaper is on record as Annexure-3. The petitioners claim that they were found suitable on the basis of their qualification and quality point marks. The Committee of Management sent papers to the DIOS for financial approval. When no communication was received, it issued the appointment letter. It is stated that the petitioners have sent repeatedly representations for their salary on the ground that there is a deemed approval of their appointment as there was no communication from the office of the DIOS turning down the resolution of the Committee of Management for the appointment of the petitioners. 5. The petitioners having no other option, preferred a writ petition No. 36189 of 2002 before this Court which was disposed of on 23.2.2005 issuing a direction upon the DIOS to consider the representation of the petitioners. The DIOS after affording an opportunity to the concerned parties, accorded the approval vide his order dated 29.4.2006 till the regular selected candidates join the post. The DIOS after affording an opportunity to the concerned parties, accorded the approval vide his order dated 29.4.2006 till the regular selected candidates join the post. In compliance of the order of the DIOS, it is stated that the petitioners are continuously receiving their salary regularly. 6. It appears that one Dhirendra Kumar Singh has also claimed that he was also appointed as adhoc teacher in the same institution, preferred a writ petition No. 27015 of 2002.This Court dismissed his writ petition vide order dated 19.3.2009. The Court directed the Regional Committee constituted under Government Order dated 19.12.2000, to look into the matter of payment of salary to other seven persons who alongwith the petitioners were alleged to have been appointed by the Committee of Management on 7.7.1991 and were getting salary under the orders of the DIOS. 7. In compliance thereof, the Regional Level Committee passed an order on 22.3.2010 and it found that the petitioners are receiving their salary and their appointment was approved by the DIOS who had also affirmed the said order vide his communication dated 11.2.2010 to the Regional Level Committee. 8. In pursuance of the order of the Regional Level Committee, the petitioners continued to work uninterruptedly and they were also paid their salary regularly. It appears that one Sri Gajraj Singh preferred a writ petition in 2005 claiming that he was also appointed as adhoc teacher since 1992. The said writ petition was dismissed by this Court vide its order dated 3.3.2007. Dissatisfied with the order of this Court, he preferred a Special Appeal, which was withdrawn by him with a liberty to approach the DIOS. After withdrawal of the Special Appeal, Gajraj Singh preferred a representation before the DIOS, who rejected his claim on 3.11.2009 on the ground that his claim is barred by laches as his appointment was made in 1982 but first time he approached the Hon’ble Court and the appropriate authority after a lapse of more than 15 years. 9. Sri Gajraj Singh being aggrieved with the order dated 3.11.2009, preferred a writ petition No. 26178 of 2010 before this Court that one Yashwant Singh, who is similarly placed person, is receiving salary but the petitioner’s case has been rejected. This Court vide order dated 10.5.2010 directed the petitioner therein to implead Sri Yashwant Singh. 9. Sri Gajraj Singh being aggrieved with the order dated 3.11.2009, preferred a writ petition No. 26178 of 2010 before this Court that one Yashwant Singh, who is similarly placed person, is receiving salary but the petitioner’s case has been rejected. This Court vide order dated 10.5.2010 directed the petitioner therein to implead Sri Yashwant Singh. The Court has also issued a direction to the DIOS to appear before the Court on 19.5.2010 alongwith all relevant records pertaining to the payment of the petitioner and Yashwant Singh alongwith his affidavit explaining how the salary is being paid to Yashwant Singh. 10. Against the said order, Sri Yashwant Singh preferred a Special Appeal No. 928 of 2010 but the said appeal was dismissed on the ground that no interim order has been passed by the learned Single Judge stopping his salary, therefore, there is no final order. It appears that in pursuance to the order passed by this Court on 10.5.2010 whereby the DIOS was directed to produce the record and file his personal affidavit, the DIOS passed the impugned order dated 14.6.2010 stopping the salary of all the petitioners. 11. From the record, it appears that the petitioners have preferred a Special Appeal Defective No. 921 of 2010 before this Court challenging the order of the DIOS. This Court observed that it will be open to the appellants to move before the learned Single Judge for impleading them as parties for varying the orders by proper application or to challenge the order dated 14.6.2010 by filing a fresh writ petition. With the said observation the said appeal was disposed of on 8.10.2010. In the meantime, the DIOS by the impugned order has held that the entire selection process held in the year 1991 was vitiated on the ground that no advertisement was made in the newspaper. There is no document indicating the constitution of the Selection Committee and thus, the appointment of the petitioners was contrary to law. A counter-affidavit has been filed wherein the reasons mentioned in the impugned order has been reiterated. 12. Heard Sri H.P. Sahi, Advocate holding brief of Sri V.K. Singh, learned counsel for the petitioner, learned Standing Counsel and perused the record. 13. A counter-affidavit has been filed wherein the reasons mentioned in the impugned order has been reiterated. 12. Heard Sri H.P. Sahi, Advocate holding brief of Sri V.K. Singh, learned counsel for the petitioner, learned Standing Counsel and perused the record. 13. Learned counsel for the petitioners submits that the petitioners’ appointment was made in the year 1991 following the procedure for appointment on adhoc basis after issuing an advertisement in a local newspaper and the notice on the board. He further submits that the appointment of the petitioners was approved by the DIOS and the Regional Level Committee. Thus, it was not open to the DIOS to cancel their appointment. 14. Learned Standing Counsel submits that the order of the DIOS is void as advertisements were not published in the newspaper and the procedure was not followed. He has also invited the attention of the Court to the various paragraphs of the counter-affidavit. 15. Undisputedly, in the institution six vacancies of the Assistant Teachers arose. The Committee of Management sent their requisition to the Board for appointment. This fact has not been denied in the counter-affidavit. When no candidate was made available from the Board, the Committee of Management appointed the petitioners on adhoc basis after issuing an advertisement in a single newspaper and on notice board. The papers relating to their appointment were sent to the DIOS, who has accorded approval on 26.4.2006, which is on record as Annexure-7 to the writ petition. 16. It is also not disputed that since 29.4.2006, all the petitioners are receiving their salary from the Salary Payment Account and they are continuously working in the institution. Two other teachers also approached this Court and in one of the petitions, this Court had directed the Regional Level Committee to consider their case. This Court has also taken a note of the fact that the petitioners were also appointed in the same selection. 17. The Regional Level Committee considered the entire matter and came to hold that the petitioners’ appointment have been made with the approval of the DIOS. The Regional Level Committee has got verification from the then DIOS, who was working at that time as a Joint Director. The then DIOS has verified the fact that the petitioners’ appointment were approved by him, thus, the Regional Level Committee accepted their appointments as valid. 18. The Regional Level Committee has got verification from the then DIOS, who was working at that time as a Joint Director. The then DIOS has verified the fact that the petitioners’ appointment were approved by him, thus, the Regional Level Committee accepted their appointments as valid. 18. As regards the case of Gyanendra Kumar, his matter was sent to the DIOS, who had found that he has claimed his salary after 15 years, therefore, on the ground of delay, Gyanendra Kumar’s case was rejected by the DIOS. Later on the DIOS, in compliance of the interim order has stopped the salary of the petitioners vide its order dated 10.5.2010. This Court has only asked the DIOS to explain the fact and did not issue any direction to stop the salary of the petitioners. It appears that the DIOS has passed an order stopping the salary of the petitioners to save his neck. In my view, the DIOS has transgressed his jurisdiction by entering into validity of the appointment of the petitioners, which could not have been reopened by him in view of the fact that in compliance of the order of this Court, the Regional Level Committee has found that the appointments of the petitioners are valid and legal. 19. It would be relevant to mention that DIOS was one of the members of Committee in the Regional Level Committee which has been constituted under the Government Order dated 22.12.2000, therefore, the DIOS could not have upturned the order of the Regional Level Committee in which he was a member. 20. Regard being had to the fact that the Regional Level Committee had also earlier passed an order in compliance of the order of this Court, the proper course before the DIOS was to send the matter to the Regional Level Committee to consider the matter afresh. Moreover, this Court vide its order dated 10.5.2010 did not issue any direction to the DIOS to go into the validity of the order passed by the Regional Level Committee. 21. The petitioners are working since 1991 with the approval of the DIOS. In-so-far the finding of the DIOS that there was no evidence that advertisement was issued in the two newspapers, the petitioners have relied upon a judgment rendered in the case of Ashika Prasad Shukla v. District Inspector of Schools, Allahabad and another, 1998(3) ESC 2006 (All)(DB). 21. The petitioners are working since 1991 with the approval of the DIOS. In-so-far the finding of the DIOS that there was no evidence that advertisement was issued in the two newspapers, the petitioners have relied upon a judgment rendered in the case of Ashika Prasad Shukla v. District Inspector of Schools, Allahabad and another, 1998(3) ESC 2006 (All)(DB). A Division Bench of this Court took the view that the statutory provision provides only the advertisement on the notice board. However, the Full Bench in the case of Radha Raizada v. Committee of Management, 1994(2) ESC 345 (All)(FB), had laid-down the law that for fair and proper selection, it is incumbent upon the Committee of Management to issue advertisement in two newspapers although there is no statutory requirement for publication of the advertisement in two newspapers. 22. In view of the said law which was laid-down for the first time in the year 1994 and later on a Division Bench in 1998 has explained the law that the requirement held in the case of Radha Raizada (Supra) would be prospective in nature. 23. After careful consideration of the matter, I find that the submission of the learned counsel for the petitioners merits acceptance. Accordingly, I am of the view that the petitioners, who were working continuously since 1991 with the approval of the DIOS and the Regional Level Committee, no interference is called for in their continuance. With regard to the case of Gajraj Singh, the DIOS has rightly held that he has raised his claim after 15 years. 24. For the foregoing reasons, the writ petition deserves to be allowed and, accordingly, it is allowed. The impugned orders dated 14.6.2010 and 3.12.201 are set aside. 25. However, the matter is remitted back to the DIOS to verify whether the petitioners are continuously working in the institution. If it is found that they are continuously working and they have been paid their salary, no interference would be made in their working. ———————