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2019 DIGILAW 1610 (ALL)

Sajid Ali v. State of U. P.

2019-07-05

SAUMITRA DAYAL SINGH

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JUDGMENT : Saumitra Dayal Singh, J. 1. The present writ petition has been filed to challenge the order dated 26.12.2012 passed by the Director of Secondary Education, U.P.-respondent No. 2, by which, the petitioner's representations have been rejected. 2. In short, the petitioner claims that he had been appointed as Assistant Teacher (Science) in C.T. Grade on 11.7.1977 at Sri Ram Janki Inter College, Girdharpur Kungai, Siddharth Nagar. Further, he claims to have been confirmed on 28.6.1978. Then, relevant to the dispute at hand, it is claimed that Basic Shiksha Adhikari vide his communication dated 31.1.1984 granted approval amongst others to the appointment of 17 teachers and 4 ministerial staff at the aforesaid institution. That approval order (a copy of which has been annexed as Annexure 5 to the writ petition) appears to contain name of the present petitioner at Sl. No. 2. However, upon manipulation made by certain persons another approval order of the same date was issued under the signatures of the same Basic Shiksha Adhikari i.e. Sri Basudev Yadav claiming approval to appointment of 21 teachers. Copy of that order has also been annexed as Annexure 6 to the writ petition. The name of the petitioner is not found included in that list. 3. It is then the case of the petitioner that the second/manipulated list became subject-matter of challenge in certain other litigation wherein an inspection and inquiry was conducted under the Director of Secondary Education on 31.5.1997. In the final decision taken thereon it was observed that by means of second/manipulated list, 5 such persons had been included therein who had not even attained the age of majority on the date 31.1.1984. Also, it was observed that in the course of inspection, the petitioner was found to be working at the aforesaid institution. His name is specifically mentioned in that report. Thus, it has been submitted that a clear case of manipulation was made out and the second list dated 31.1.1984 was a bogus document. 4. Thereafter, it appears that on 26.7.1991, the Deputy Director of Education created 39 posts at the aforesaid institution including that of one Head Master, two Assistant Teachers (L.T. Grade), thirty Assistant Teachers (C.T. Grade) and six Ministerial Staff. Further, the institution itself was included in the grant-in-aid scheme of the State Government on 1.4.1996. 4. Thereafter, it appears that on 26.7.1991, the Deputy Director of Education created 39 posts at the aforesaid institution including that of one Head Master, two Assistant Teachers (L.T. Grade), thirty Assistant Teachers (C.T. Grade) and six Ministerial Staff. Further, the institution itself was included in the grant-in-aid scheme of the State Government on 1.4.1996. It is in such factual background that the petitioner appears to be aggrieved by the fact that he has not been made salary payment from April, 1996. His representations in that regard were directed to be decided upon directions issued by this Court in Writ-A No. 38807 of 2012. 5. Instead of deciding the core issue whether the first approval order dated 31.1.1984 was valid or not and without examining the genuineness or otherwise of that and the second/manipulated approval order dated 31.1.1984 both issued by the then Basic Shiksha Adhikari-Sri Basudev Yadav, the same person who in the meanwhile promoted to the post of Director of Secondary Education has passed the impugned order and rejected the claim of the petitioner. 6. Heard Sri B.S. Pandey, learned counsel for the petitioner, Sri Anand Tewari, learned counsel for the respondent No. 5 and Sri Satyam Singh, learned Standing Counsel for the State-respondents. 7. The short submission of learned counsel for the petitioner is that, in the first place, Sri Basudev Yadav could not have himself decided the controversy inasmuch as the core dispute necessary to be decided in the present matter was whether one or both of the approval orders issued by him in his capacity as the then Basic Shiksha Adhikari was valid or manipulated. 8. Second, it has been submitted that even if the first objection were to be ignored, no application of mind has been made to the core issue noted above and no decision has been made in the impugned order despite the same having been specifically raised in the representations as also in the written arguments filed by the petitioner. 9. Third, it has been submitted the fact that petitioner's name does not find mention in the subsequent list dated 26.7.1991 would be inconsequential inasmuch as the petitioner never claimed approval of his appointment under that list. The petitioner having set up the first approval list of the date 31.1.1984, the decision on that list was necessary to be made. 9. Third, it has been submitted the fact that petitioner's name does not find mention in the subsequent list dated 26.7.1991 would be inconsequential inasmuch as the petitioner never claimed approval of his appointment under that list. The petitioner having set up the first approval list of the date 31.1.1984, the decision on that list was necessary to be made. Insofar as no decision has been made on that issue, the impugned order is laconic and deserves to be quashed. 10. Sri Anand Tewari, learned counsel for the respondent No. 5 and Sri Satyam Singh, learned Standing Counsel for the State-respondents on the other hand submit that other than the list dated 26.7.1991, there is no other approval list and therefore, the appointment of the petitioner was never approved by the State Government. Consequently, he was not entitled to payment of salary from the State Exchequer. 11. Having heard learned counsel for the parties and having perused the record, in the first place, it has to be accepted that Sri Basudev Yadav ought not to have decided the representations of the petitioner and he should have recused from the same and marked it to some other officer who may have independently applied his mind. It is undisputed that both the approval list of the date 31.1.1984 had been issued under the signatures of Sri Basudev Yadav and therefore, he could never have heard the representations arising from the dispute as to one of the two lists. 12. Though the aforesaid defect in the impugned order is sufficient to set aside the same, it cannot escape observation of this Court that in any case, the impugned order is otherwise wholly laconic inasmuch as though the petitioner had set up his case under the first list dated 31.1.1984, there is no discussion or finding in the order as to the correctness or genuineness or otherwise of that list or the second list issued on the same date. The claim of the petitioner has been rejected on the basis of his name having not mentioned in the third list, which is the list dated 26.7.1991 issued by the Deputy Director of Education created 39 posts at the institution. It is not even the finding in the impugned order that other than list dated 26.7.1991, there was no creation of posts or approval of appointments granted prior to that date. 13. It is not even the finding in the impugned order that other than list dated 26.7.1991, there was no creation of posts or approval of appointments granted prior to that date. 13. All other facts and issue being raised by learned counsel for the petitioner in the present proceedings with respect to the inquiry conducted earlier etc. would have remained a matter that may have been considered by the Director of Education while deciding the representations. However, no further observation is required to be made, at this stage, inasmuch as in view of the defects noted in the impugned order, the matter must be remitted to the authority. 14. Accordingly, the present writ petition is allowed. The impugned order dated 26.12.2012 is set aside and the matter is remitted to the Director of Secondary Education to pass a fresh order strictly in accordance with law in light of the observations made above. The aforesaid exercise may be concluded as expeditiously as possible, preferably within a period of two months from the date of production of a certified copy of this order.