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2018 DIGILAW 627 (ALL)

NARENDRA SINGH v. STATE OF U. P.

2018-03-15

RAJIV JOSHI

body2018
JUDGMENT Hon’ble Rajiv Joshi, J.—Heard learned counsel for the petitioner, learned Standing Counsel for the State respondents and Sri R.M. Saggi, learned counsel appearing for the respondent No. 3. 2. Since, the pleadings between the parties have already been exchanged and therefore, with the consent of the parties, this writ petition is being disposed of finally at the admission stage itself. 3. This writ petition has been filed for quashing the impugned order dated 25.6.2001 passed by the respondent No. 2-District Inspector of Schools, Meerut and further for mandamus commanding the respondents not to interfere in the working of the petitioner as a Assistant Teacher (PTI Teacher) on the basis of impugned order and to pay arrears as well as future salary of the petitioner in L.T. Grade alongwith consequential benefits. 4. The facts as reflects from the record are that K.H.R. Inter College situated at Khampur Luhari, Distrct Meerut is a duly recognZed Intermediate College imparting education up-to Class XII. The said institution is governed by the provisions of U.P. Intermediate Education Act, 1921. The institution is on Grant-in-Aid list of the State Government and the provisions of U.P. High School and Intermediate Colleges (Payment of Salary of Teachers and Other Employees) Act, 1971 are applicable to the institution. 5. One Jagat Singh, a permanent Assistant Teacher in L.T. Grade holding the post of Physical Training Instructor in the institution proceeded to medical leave w.e.f. 13.7.1993 to 30.6.1994 thereby, the short term vacancy on the post of Physical Training Instructor in L.T. Grade was created and the management of the institution took the decision to fill up the said short term vacancy by making adhoc appointment under the U.P. Secondary Education Services Commission (Removal of Difficulties) Order (Second) 1981 (hereinafter referred to as the Second Removal of Difficulties Order. Accordingly, the vacancy was advertised in the newspaper “Meerut Samachar” having wide circulation in the District. 6. The petitioner in pursuance of the said advertisement, submitted his application for the post in question alongwith other applicants. Thereafter, the Selection Committee was constituted and the petitioner was selected for appointment on adhoc basis on the basis of quality point marks. The management of the institution vide letter dated 21.7.1993 forwarded all the requisite papers vZ. advertisement, particulars of all the applicants, recommendation of the Selection Committee etc. Thereafter, the Selection Committee was constituted and the petitioner was selected for appointment on adhoc basis on the basis of quality point marks. The management of the institution vide letter dated 21.7.1993 forwarded all the requisite papers vZ. advertisement, particulars of all the applicants, recommendation of the Selection Committee etc. to the District Inspector of Schools, Meerut for grant of approval to the selection of the petitioner but no order was pased by the District Inspector of Schools within 7 days as specified in the Second Removal of Difficulties Order and therefore, the selection of the petitioner stood automatically approved. The petitioner was issued appointment letter on 3.8.1993 and in pursuance thereof, the petitioner joined the institution w.e.f. 4.8.1993 and started discharging his duties. The District Inspector of Schools has not granted financial approval to the appointment of the petitioner in spite of the fact, the petitioner repeatedly represented his claim. The District Inspector of Schools vide order dated 26.10.1995 declined to accord the approval to the petitioner only on the ground that since the petitioner was appointed as adhoc and the Government order dated 9.6.1994 has imposed a ban for the adhoc appointment. 7. The said order dated 26.10.1995 passed by the District Inspector of Schools was challenged by the petitioner before this Court in Writ Petition No. 41785 of 1996, which was finally disposed of vide order dated 19.3.1997 with the direction to the Committee of Management to submit the record relating to petitioner’s appointment in case, the same has been returned by the District Inspector of Schools within two weeks and thereafter, the District Inspector of Schools would reconsider the case of the petitioner in accordance with law laid down in the Full Bench decision of this Court in case of Radha RaZada and others v. Committee of Management Vidyawati Darbari Girls Intermediate College and others, 1994 (3) UPLBEC 1551 . The relevant and operative portion of the said order dated 19.3.1997 is quoted as under: “In my opinion the view taken by the District Inspector of Schools in not correct. The relevant and operative portion of the said order dated 19.3.1997 is quoted as under: “In my opinion the view taken by the District Inspector of Schools in not correct. In view of the law laid down by the Full Bench Decision in the case of Radha RaZada and others v. Committee of Management Vidyawati Darbari Girls Intermediate College and others, 1994 (3) UPLBEC 1551 , the adhoc appointments can be made on short term vacancy after following the procedure laid down under U.P. Secondary Education Services Commission (Removal of Difficulties) Order (Second) 1981. In the above circumstances, I direct the Committee of Management to submit the record relating to the petitioner’s appointment in case the same has been returned by the District Inspector of Schools within two weeks of a certified copy of this order being placed before them. The District Inspector of Schools on his part would reconsider the case of the petitioner in accordance with law laid down in the Full Bench Decision of Radha RaZada (supra) and pass an order after considering the validity of the petitioner’s appointment for grant of approval and financial sanction in accordance with law. The District Inspector of Schools is directed to pass the order within one month of receipt of the record from the Committee of Management alongwith a certified copy of the order passed today. Subject to above, the petition is finally disposed of.” 8. Subsequently, the District Inspector of Schools considered the petitioner’s appointment for grant of approval and financial sanction in pursuance of the judgment of this Court dated 19.3.1997 passed in Writ Petition No. 41785 of 1996 and accorded the approval till regularly selected candidate joins the institution vide order dated 5.5.1997. Thereafter, the management of the college send the salary bill of the petitioner to the District Inspector of Schools but no salary was paid to the petitioner. Ultimately, the petitioner represented the matter before the District Inspector of Schools for payment of salary. 9. The District Inspector of Schools vide impugned order dated 25.6.2001 rejected the petitioner’s representation and recall the order dated 5.5.1997 passed by the District Inspector of Schools approving the petitioner’s adhoc appointment and came to the conclusion that the petitioner is not entitled for any financial approval as there are several irregularities in the appointment of the petitioner. 10. 9. The District Inspector of Schools vide impugned order dated 25.6.2001 rejected the petitioner’s representation and recall the order dated 5.5.1997 passed by the District Inspector of Schools approving the petitioner’s adhoc appointment and came to the conclusion that the petitioner is not entitled for any financial approval as there are several irregularities in the appointment of the petitioner. 10. The impugned order passed by the District Inspector of Schools has been challenged by this writ petition. 11. At the time of entertaining the writ petitioner, this Court stayed the operation of the impugned order and made clear that the petitioner is entitled for the salary on L.T. Grade till his services are dispensed with in accordance with law. The interim order passed by this Court dated 4.12.2001 is quoted as under: “Heard learned counsel for the petitioner. Learned Standing Counsel accepted notice on behalf of respondent Nos. 1 and 2. Issue notice to respondent No. 3. Learned Standing Counsel prays for and is granted six weeks time to file counter-affidavit. List thereafter. Till further order of this Court, operation of the order dated 25th June, 2001, Annexure-12 to the writ petition, shall remain stayed. It is made clear that the petitioner is entitled for his salary in L.T. Grade till his services are dispensed with in accordance with law.” 12. Leaned counsel for the petitioner submits that the impugned order passed by the District Inspector of Schools recalling/reviewing its earlier order is without jurisdiction as the District Inspector of Schools has no statutory authority to recall or revoke the earlier order. Learned counsel for the petitioner further submits that there is no fraud, misrepresentation or mistake in the earlier order passed by the District Inspector of Schools dated 5.5.1997 and therefore, the District Inspector of Schools has no jurisdiction to revoke his earlier order. Learned counsel for the petitioner further submits that the petitioner is continuously working on the post of Physical Training Instructor in L.T. Grade in the institution and nobody has selected or joined on the petitioner’s post till date and as such the petitioner is entitled for the regularZation of his appointment against short term vacancy in view of Section 33-F of Second Removal of Difficulties Order. 13. 13. Per contra, learned Standing Counsel has supported the impugned order and stating that the petitioner is not entitled for financial approval on the ground mentioned in the impugned order. He further submits that the District Inspector of Schools can recall and review its own order if the same has been obtained by mistake, misrepresentation or by playing fraud etc. 14. Sri R.M. Saggi, learned counsel for the respondent No. 3 supported the case of the petitioner and apprised about the fact that the petitioner is continuously woriking on the said post since date of his final appointment and his services deemed stood regularZed in view of Section 33-F of the Second Removal of Difficulties Order. 15. I have considered the rival submissions of the parties and perused the record. 16. There is no dispute with regard to the fact that District Inspector of Schools accorded the approval to the petitioner for the post of Physical Training Instructor L.T. Grade on adhoc basis until the regular candidate join the institution vide order dated 5.5.1997. The said order has been passed pursuant to the judgment of this Court dated 19.3.1997 passed in Writ Petition No. 41785 of 1996. The District Inspector of Schools by impugned order virtually recall/review its earlier order dated 5.5.1997. 17. There is no provision under the U.P. Intermediate Education Act, 1921 or in the Regulation framed therein conferring the power to the District Inspector of Schools to review its own order according the approval to the appointment of teachers under Section 16-E of the said Act. The District Inspector of Schools, however, like any other statutory authority, has, power to recall or revoke its order, if it is obtained by mistake, misrepresentation or fraud and in absence of the fraud, misrepresentation or mistake, the District Inspector of Schools has got no jurisdiction to recall or revoke its earlier order. 18. In the instant case, the earlier order granting approval to the petitioner’s appointment has not been recalled on the ground of mistake, misrepresentation or by way of fraud, even there is no allegation to the effect that the said approval order has been obtained by way of fraud or misrepresentation or has been issued by mistake and in absence of aforesaid elements, the order impugned is without jurisdiction. 19. 19. The said aspect of the matter has been considered by the Division Bench of this Court in case of Radhey Shyam Chaubey and others v. The District Inspector of Schools, Jaunpur and others, 1977 ALJ 451. Paragraph 2 of the said judgment is quoted as under: “Learned counsel for the petitioner urged that once the District Inspector of Schools had accorded approval to the petitioner’s appointment on permanent post on probation, he had no jurisdiction to review his order. We find considerable force in his contention. There is no provision under the Intermediate Education Act or in the regulations framed thereunder conferring power on the District Inspector of Schools to review an order according approval under Section 16-E of the Act. The District Inspector of School, like any other statutory authority, has, however, power to recall or revoke its order if it is obtained by mistake, misrepresentation or fraud. But in the absence of fraud, misrepresentation or mistake, the District Inspector of Schools has no jurisdiction to revoke his order.” 20. In view of the same, the impugned order cannot be sustained. So far as the question of regularZation of petitioner’s appointment against the short term vacancy as per the Section 33-F of the Second Removal of Difficulties Order, 1981 is concerned, for that purpose, it is appropriate to the petitioner to represent his case before the concerned authority claiming the benefit of aforesaid Section 33-F and for such claim, the petitioner shall submit a representation before the concerned authority within a month from today, who shall consider and pass appropriate order in accordance with law within another three months from the date of production of certified copy of this order. 21. Writ petition succeeds and is, accordingly, allowed. The impugned order dated 25.6.2001 passed by the District Inspector of Schools, Meerut is quashed. The respondents are directed to release salary to the petitioner alongwith arrears within four months from the date of production of certified copy of this order. No order as to cost.