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2016 DIGILAW 59 (ALL)

DEVENDRA SINGH v. STATE OF U. P.

2016-01-07

D.Y.CHANDRACHUD, YASHWANT VARMA

body2016
JUDGMENT By the Court.—This special appeal arises from a judgment of the learned Single Judge dated 4 December 2015. 2. The appellant filed a writ petition (Writ-A No. 21939 of 2013) in 2013 in order to challenge an order passed by the District Inspector of Schools, Mainpuri on 30 May 2012 declining to grant him arrears of salary for the period during which he had not worked as Principal of Dayanand Inter College, Ghiror, District Mainpuri (College) and seeking a mandamus for the payment of arrears of salary from 1985 till the date of his superannuation on 30 June 2011 and consequential retiral benefits. The learned Single Judge allowed the writ petition in part by directing that the appellant would be entitled to salary with effect from 30 June 2006 which was the date on which the appellant joined as Principal of the College pursuant to a letter of appointment issued by the Committee of Management (Management) on 19 July 2006. Consequential benefits and retiral dues were directed to be determined on that basis. The appellant is aggrieved since his wider claim for the payment of salary from 1985 and for the computation of retiral benefits on that basis has not found acceptance of the learned Single Judge. 3. The appellant was selected by the Uttar Pradesh Secondary Education Service Selection Commission (now replaced by the Uttar Pradesh Secondary Education Services Selection Board (Board). The name of the appellant was recommended by the Board on 20 December 1984 in pursuance of which the District Inspector of Schools issued a communication on 9 January 1985 to the Manager of the College for the issuance of a letter of appointment to the appellant. A writ petition (Civil Misc. Writ Petition No. 13988 of 1984) was filed in 1984 by the Manager of the College challenging the advertisement in pursuance of which the appellant had applied for the post of Principal, in which an interim order was passed on 9 October 1984 by which it was directed that the selection may proceed but the letter of appointment will not be issued until further orders. The interim order held the field until the petition was dismissed as withdrawn on 16 December 1989. The interim order held the field until the petition was dismissed as withdrawn on 16 December 1989. Consequent upon the dismissal of the writ petition, the appellant moved an application on 21 December 1989 to the District Inspector of Schools for the issuance of a letter of appointment and the District Inspector of Schools on 23 December 1989 directed the Management of the College to appoint the appellant. The Management having failed to comply, the District Inspector of Schools again issued a letter on 27 February 1990 to the Management for appointment of the appellant but the appellant was not appointed. The appellant moved a representation before the Regional Director of Education on 13 March 1990 who once again issued a direction to the Management of the College on 15 May 1990. The Management of the College instituted a suit (Suit No. 103 of 1990) before the Civil Court for a permanent injunction restraining the State from appointing the Principal selected for the College by the Board. The appellant applied for impleadment which was rejected and eventually the suit was decreed by the grant of a permanent injunction on 10 April 1991. 4. Nearly sixteen years thereafter on 19 June 2006, the Management issued a letter of appointment to the appellant who claims to have joined on the post of Principal on 30 June 2006. The District Inspector of Schools declined to attest the signatures of the appellant on the ground that the appointment of the appellant was contrary to the decree of the Civil Court. The appellant filed a writ petition (Writ Petition No. 35950 of 2006) which was dismissed by a learned Single Judge on 8 July 2008. The appellant then filed a special appeal (Special Appeal No. 997 of 2008). A Division Bench of this Court by an order dated 18 January 2012 allowed both the special appeal and Writ Petition No 25950 of 2006 by setting aside the judgment of the learned Single Judge dated 8 July 2008. The appellant then filed Writ-A No 21939 of 2013 seeking the payment of salary with effect from 1985 and the computation of his retiral dues on that basis in which the judgment dated 4 December 2015 has been passed which has given rise to the present special appeal. 5. The appellant then filed Writ-A No 21939 of 2013 seeking the payment of salary with effect from 1985 and the computation of his retiral dues on that basis in which the judgment dated 4 December 2015 has been passed which has given rise to the present special appeal. 5. Section 10 of the Uttar Pradesh Secondary Education Services Selection Board Act, 1982 (Act) requires the management to notify vacancies to the Board in the prescribed manner. Under Section 11, the Board, upon the notification of a vacancy, has to prepare a panel. The panel is required to be intimated to the management of the institution upon which under sub-section (4) of Section 11 the management shall, within a period of one month from the receipt of intimation, issue a letter of appointment to the selected candidate. Where a selected candidate is not appointed by the management within the period provided, Section 17 envisages an enquiry by the Director, upon which under sub-section (2) a direction is to issue to the management to appoint the selected candidate and to pay salary. The amount of salary, if any, due to the teacher is upon a certificate issued by the Director recoverable by the Collector as arrears of land revenue. 6. In the present case, the record before the Court would indicate that the Management made almost every conceivable effort to defeat the claim of the selected candidate. Initially in 1984, a writ petition was filed by the Manager of the College in which an interim order was passed which operated until the petition was dismissed as withdrawn on 16 December 1989. Thereafter, from the narration of facts, it has emerged that the appellant continued to pursue his rights. The District Inspector of Schools on 23 December 1989, the Director on 27 February 1990 and the Regional Director on 15 March 1990 directed the Management to pay salary but the Management did not comply. The Management filed a suit seeking a permanent injunction which was decreed on 10 April 1991. The appellant was not impleaded as a party to the suit. The Division Bench of this Court in its judgment dated 18 January 2012 noted that the suit did not seek to challenge the appointment of the appellant but was filed for restraining the selected person from joining as Principal. The appellant was not impleaded as a party to the suit. The Division Bench of this Court in its judgment dated 18 January 2012 noted that the suit did not seek to challenge the appointment of the appellant but was filed for restraining the selected person from joining as Principal. The Division Bench held that the suit can have no consequence on the rights of the appellant. As a matter of fact, the Management of the College eventually issued a letter of appointment on 19 June 2006. 7. There has been a clear failure on the part of the authorities to enforce their statutory powers including the power which has been conferred upon the Director under Section 17(3) of the Act. Under Section 17(2), the Director is empowered to direct the management to appoint the selected candidate and to pay him salary from the date specified in the order. The salary is recoverable as arrears of land revenue from the property belonging to or vested in the institution under sub-section (3) of Section 17. These statutory powers have been conferred for a salutary public purpose. Failure to comply with a direction under Section 17 is a criminal offence under Section 22 of the Act. The Director was obligated, upon being informed by the appellant, to have taken recourse to the provisions of Section 17(3) of the Act by issuing a direction to the Management of the College to pay arrears of salary and then proceeding to recover them as arrears of land revenue through the Collector. The appellant cannot be blamed for the failure of the statutory authorities to comply with their provisions. The conduct of the Management in obtaining an injunction in a proceeding to which the appellant was not even impleaded, speaks volumes of the manner in which the rights of a duly selected candidate have been defeated for no fault of his. 8. In these circumstances, we are of the view that the judgment of the learned Single Judge granting to the appellant relief only of the arrears of salary from 30 June 2006 would not sub-serve the ends of justice. We clarify that this part of the direction is not set aside as such. 8. In these circumstances, we are of the view that the judgment of the learned Single Judge granting to the appellant relief only of the arrears of salary from 30 June 2006 would not sub-serve the ends of justice. We clarify that this part of the direction is not set aside as such. However, on the wider claim of the appellant, we direct that the Director of Education shall, within a period of three months from the receipt of a certified copy of this order, carry out an enquiry under sub-sections (2) and (3) of Section 17 and issue appropriate directions for the disbursal of salary to the appellant. The Director shall scrutinize all facts after due notice both to the appellant and to the Management. The retiral dues of the appellant shall thereupon be computed on the basis of the directions so issued. 9. The special appeal is allowed in these terms. There shall be no order as to costs. ———————