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Allahabad High Court · body

2019 DIGILAW 842 (ALL)

Vijay Kumar Pandey v. Dios

2019-04-03

PANKAJ MITHAL, SAUMITRA DAYAL SINGH

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JUDGMENT : 1. We had heard Sri. Ashok Khare, Senior Counsel appearing for the petitioner-appellant, learned Standing Counsel for respondent No. 1 and Sri. Indra Raj Singh, learned counsel for the management of the College concerned. 2. The petitioner-appellant has preferred this intra court appeal against the judgment and order dated 4.7.2014 passed by the Writ Court dismissing the writ petition as filed by him. 3. The petitioner-appellant claimed to have been appointed on the post of Assistant Teacher (C.T. Grade) on a short term vacancy at the Inter College, Newarhia, district Jaunpur (hereinafter referred to as the 'College'). He had invoked the writ jurisdiction of the Court as he was not paid salary for seeking a direction for the payment of salary on month to month basis and for arrears. 4. The Writ Court held that the short term vacancy was required to be filled up in accordance with the procedure prescribed by the U.P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order, 1981 (hereinafter referred to as the "Second Order") and since the appointment of the petitioner-appellant was inconsistent with the procedure prescribed therein it is void ab initio and the petitioner-appellant is not entitled to claim salary from the State exchequer. 5. Sri. Ashok Khare had argued that the Writ Court has not pointed out the procedure which has not been followed or the provision of law which has been violated in making appointment of the petitioner-appellant. The appointment of the petitioner-appellant was made after due advertisement of the vacancy in the newspapers, on the deemed approval of the District Inspector of Schools (hereinafter referred to as the "DIOS") and, as such, was not illegal in any manner. 6. In order to consider whether the appointment of the petitioner-appellant made on the aforesaid short term vacancy was legal or not, it would be relevant to mention few facts pertaining to his appointment before referring to the procedure which is prescribed for making such appointments. 7. Admittedly, a short term vacancy on the post of Assistant Teacher (C.T. Grade) arose at the College on 1.9.1998. The said vacancy was advertised in the daily newspapers "The Pioneer" and "Dainik Manyavar" dated 10.9.1998 published from Lucknow and Jaunpur, respectively. The said advertisement invited applications for ad hoc appointment on the said short term vacancy within fifteen days from the date of publication of the advertisement. The said vacancy was advertised in the daily newspapers "The Pioneer" and "Dainik Manyavar" dated 10.9.1998 published from Lucknow and Jaunpur, respectively. The said advertisement invited applications for ad hoc appointment on the said short term vacancy within fifteen days from the date of publication of the advertisement. The petitioner-appellant applied and on the basis of the quality point marks he was selected on 25.9.1998. The papers relating to his selection were forwarded to the DIOS on the same date. However, as no decision thereof was communicated by the DIOS within seven days of the receipt of the papers, the Authorised Controller of the College presuming that there is deemed approval issued appointment letter to the petitioner-appellant on 3.10.1998, whereupon he joined on 5.10.1998. Subsequently, specific approval was granted to the selection of the petitioner-appellant vide order dated 7.1.1999 passed by the DIOS which had not been disputed in any forum. 8. It is in the aforesaid facts and circumstances that the Writ Court opined that as the advertisement was published on 10.9.1998 it was not possible to hold the selection on 25.9.1998 and since it is not clear as to when the papers relating to selection were received by the DIOS there could be no deemed approval to the said selection by the DIOS on or before issuance of the appointment letter dated 3.10.1998. 9. In short, the Writ Court was of the opinion that as the appointment of the petitioner-appellant was made without prior approval or deemed approval of the DIOS to the selection of the petitioner-appellant, it was dehors to the statutory provisions contained in paragraph 2 of the Second Order. 10. The provisions of para 2 of the Second Order reads as under: "2. Procedure for filling up short-term vacancies. - (1) If short-term vacancy in the post of a teacher, caused by grant of leave to him or on account of his suspension duly approved by the District Inspector of Schools or otherwise, shall be filled by the Management of the Institution, by promotion of the permanent senior-most teacher of the institution, in the next lower grade. The Management shall immediately inform the District Inspector of Schools of such promotion along with the particulars of the teacher so promoted. The Management shall immediately inform the District Inspector of Schools of such promotion along with the particulars of the teacher so promoted. (2) Where any vacancy referred to in Clause (1) cannot be filled by promotion, due to non-availability of a teacher in the next lower grade in the institution, possessing the prescribed minimum qualifications, it shall be filled by direct recruitment in the manner laid down in Clause (3). (3) (i) The management shall intimate the vacancies to the District Inspector of Schools and shall also immediately notify the same on the notice board of the institution, requiring the candidates to apply to the manager of the Institution along with the particulars given in Appendix 'B' to this Order. The selection shall be made on the basis of quality point marks specified in the Appendix to the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, issued with Notification No. Ma-4993/XV-7(79)-1981, dated July 31, 1981, hereinafter to be referred to as the First Removal of Difficulties Order, 1981. The compilation of quality point marks shall be done under the personal supervision of the Head of Institution. (ii) The names and particulars of the candidate selected and also of other candidates and the quality point marks allotted to them shall be forwarded by the manager to the District Inspector of Schools for his prior approval. (iii) The District Inspector of Schools shall communicate his decision within seven days of the date of receipt of particulars by him failing which the Inspector will be deemed to have given his approval. (iv) On receipt of the approval of the District Inspector of Schools or, as the case may be, on his failure to communicate his decision within seven days of the receipt of papers by him from the manager, the management shall appoint the selected candidate and an order of appointment shall be issued under the signature of the Manager. Explanation. (iv) On receipt of the approval of the District Inspector of Schools or, as the case may be, on his failure to communicate his decision within seven days of the receipt of papers by him from the manager, the management shall appoint the selected candidate and an order of appointment shall be issued under the signature of the Manager. Explanation. - For the purpose of this Paragraph- (i) the expression 'senior-most teacher' means the teacher having longest continuous service in the institution in the Lecturer's grade or the Trained graduate (L.T.) grade or Trained under-graduate (C.T.) grade or J.T.C. or B.T.C. grade as the case may be; (ii) in relation to institution imparting instructions to women, the expression 'District Inspector of Schools' shall mean the 'Regional Inspectress of Girls' Schools; (iii) 'short-term vacancy' which is not substantive and is of a limited duration." 11. It is acceptable to the counsel for the parties that the aforesaid vacancy could not be filled up by promotion and the requirement to notify the same on the notice board of the institution had been substituted with the notification/advertisement of the same in two widely circulated daily newspapers by the various decisions of this Court. 12. The advertisement was issued in the newspapers on 10.9.1998. The applications were required to be submitted within fifteen days i.e. up to 24.9.1998. The Selection Committee met on 25.9.1998 and it made selection on the same day. 13. The petitioner-appellant in the Writ Court had categorically stated that selection on the basis of the quality point marks was made on 25.9.1998 and the papers thereof were submitted to the DIOS on the same date. The averments were not specifically denied by the State authorities in the counter-affidavit. It was not their case that the papers were not received in the office of the DIOS on 25.9.1998. In such a situation, in view of clause 3(iii) of paragraph 2 of the Second Order the selection stood deemed to be approved on expiry of seven days which expired on 2nd October, 1998. 14. Accordingly, there appears to be no illegality in issuing letter of appointment to the petitioner-appellant on 3rd October, 1998 by the Authorised Controller who also happened to be the officer of the Education Department. 15. 14. Accordingly, there appears to be no illegality in issuing letter of appointment to the petitioner-appellant on 3rd October, 1998 by the Authorised Controller who also happened to be the officer of the Education Department. 15. The Writ Court in its order has nowhere pointed out the specific procedure which has not been followed in the appointment of the petitioner-appellant or the provision which has been violated, rather the only objection from the tenor of the judgment appears to be that the appointment was made without prior approval or deemed approval of the DIOS. 16. The controversy with regard to deemed approval to the appointment of a teacher on a short-term vacancy under the Second Order had come up for consideration in the case of Ashika Prasad Shukla, 1998 (3) AWC 2150 : (1999 All LJ 549) Ashika Prasad Shukla v. District Inspector of Schools, Allahabad wherein the Court held that no doubt the use of the words "prior approval" in clause 3(h) of paragraph 2 of the Second Order leads to an inescapable conclusion that the appointment of a Teacher would be made only on the communication of the approval of the DIOS or deemed approval, but if the approval is granted subsequently the appointment would become effective from the date of such approval and not from the date of appointment. 17. In view of the above legal position, in the case at hand, as there is no denial to the fact that despite expiry of seven days from the date of receipt of the papers relating to selection of the petitioner-appellant the DIOS had not communicated any decision and, as such, there was deemed approval and that a specific order of approval was passed subsequently by the DIOS on 7.1.1999, applying the ratio of Ashika Prasad Shukla (supra), even if the appointment of the petitioner-appellant may not be treated good from the date of issuance of letter of appointment dated 3.10.1998 but it would be effective from the date of the specific approval accorded by the DIOS on 7.1.1999. 18. A bare reading of paragraph 2 of the 'Second Order', makes it clear that though there is a requirement of prior approval for the purpose of making appointments, yet, that provision allows for an appointment on deemed approval basis as well. 18. A bare reading of paragraph 2 of the 'Second Order', makes it clear that though there is a requirement of prior approval for the purpose of making appointments, yet, that provision allows for an appointment on deemed approval basis as well. This provision is in contra-distinction to other statutory provisions elsewhere, that provide, no appointment may be made except with prior approval or no vacancy may be filled up except with prior approval. Clearly, the provisions of the 'Second Order' are permissive to that extent. 19. It may also not be out of context to mention that there is nothing on record to establish that pre-requisite conditions for deemed approval or approval, as the case may be, were not satisfied, more so when their exists specific approval of the DIOS on record, meaning thereby that due process of selection was completed before making the appointment of the petitioner-appellant. 20. In such scenario, when the DIOS had specifically granted approval to the selection of the petitioner-appellant as teacher in the College it cannot be said that his appointment stood vitiated, though it may be another thing that the said appointment became effective from the date of approval by the DIOS i.e. 7.1.1999 in place of date of actual appointment on the basis of deemed approval. 21. It may be pertinent to clarify herein that the case of Ashika Prasad Shukla (supra), was a case dealing with paragraph 2 of the 'Second Order' as in the present case and, as such, the ratio decidend of the said case is fully applicable in the instant case, as there is no other contrary decision relating to the said provision. 22. Accordingly, we are of the opinion that the petitioner-appellant had discharged his obligation to demonstrate that he was validly appointed, entitling him to payment of salary, if not from 3.10.1998 but, at least from 7.1.1999 and, as such, the Writ Court manifestly erred in dismissing the petition causing undue hardship and prejudice to the petitioner-appellant. 23. 22. Accordingly, we are of the opinion that the petitioner-appellant had discharged his obligation to demonstrate that he was validly appointed, entitling him to payment of salary, if not from 3.10.1998 but, at least from 7.1.1999 and, as such, the Writ Court manifestly erred in dismissing the petition causing undue hardship and prejudice to the petitioner-appellant. 23. In view of the aforesaid facts and circumstances, the judgment and order dated 4.7.2014 passed by the Writ Court is set aside and the writ petition stands allowed with the direction to the respondents to pay the salary of Assistant Teacher (C.T. Grade) to the petitioner-appellant at least w.e.f. 7.1.1999 till the date he may have worked or till the date of his retirement, whichever is earlier, as far as possible within a period of three months. 24. The appeal stands allowed with no order as to costs.