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Allahabad High Court · body

2019 DIGILAW 891 (ALL)

Rajendra Prasad Pal v. State of U. P.

2019-04-09

RAJESH SINGH CHAUHAN

body2019
JUDGMENT : Hon'ble Rajesh Singh Chauhan, J. 1. In both the aforesaid writ petitions, the order under challenge is 5.7.2016 passed by the Additional Director of Basic Education, Allahabad, Uttar Pradesh. 2. In the first writ petition, which is Writ Petition No.17715 (S/S) of 2016, there are two petitioners, namely, Rajendra Prasad Pal, who is working as Assistant Teacher in Nav Jyoti Purva Madhyamik Vidyalaya, Surendra Nagar, Hajpura, Faizabad (now Ambedkar Nagar) (hereinafter referred to as "Institution") and the second petitioner, namely, Krishna Kumar Upadhyay is working in the Institution as Assistant Clerk. 3. By means of the impugned order dated 5.7.2016, appointment of the petitioners has been refused to be recognized and the salary paid to the petitioners during service period has been directed to be recovered from the petitioners. 4. The connected Writ Petition No.30178 (S/S) of 2017 has been filed by the Committee of Management of the Institution in question against the same impugned order dated 5.7.2016 challenging the same on the ground that the said order has been passed without affording any opportunity of hearing to the Committee of Management. 5. Since the common order i.e. order dated 5.7.2016 has been assailed in the aforesaid writ petitions, therefore, both the writ petitions are being decided by the common judgment. However, facts of Writ Petition No.30178 (S/S) of 2017 shall be dealt separately in this order. 6. Heard Sri Sharad Pathak, learned counsel for the petitioners in Writ Petition No.17715 (S/S) of 2016 and Sri Kshemendra Shukla, learned counsel for the petitioner in Writ Petition No.30178 (S/S) of 2017. Learned Standing Counsel has argued on behalf of the State-respondents, Sri Ajay Kumar has argued on behalf of the District Basic Education Officer, Faizabad and Sri Rakesh Kumar Srivastava has argued on behalf of opposite parties no.6 & 7. Since Sri Kshemendra Shukla has filed writ petition on behalf of the Institution in question i.e. Writ Petition No.30178 (S/S) of 2017, therefore, his appearance has been noted on behalf of opposite party no.5, which is Committee of Management of the Institution in question in Writ Petition No.17715 (S/S) of 2016. 7. It would be apt to indicate, at the outset, that one Mr. Pramod Kumar Pandey, Advocate has filed an application on 13.1.2019 i.e. application for taking short counter affidavit on record on behalf of opposite party no.7. 7. It would be apt to indicate, at the outset, that one Mr. Pramod Kumar Pandey, Advocate has filed an application on 13.1.2019 i.e. application for taking short counter affidavit on record on behalf of opposite party no.7. In the said application, opposite party no.7 has precisely submitted that he does not want to contest and oppose Writ Petition No.17715 (S/S) of 2016 as he had filed the writ petition on the instructions of opposite party no.6 and had given his Vakalatnama to Sri Rakesh Kumar Srivastava, Advocate, but now he is engaging Mr. Pramod Kumar Pandey as his counsel. Paragraph no.2 of the aforesaid short counter affidavit of opposite party no.7 is necessary to be reproduced herein below:- "That the deponent has been arrayed as opposite party no.7 in the writ petition, the deponent is filing his affidavit in following terms. (i) That the deponent do not want to contest and oppose the present writ petition. Actually the deponent, who was working as clerk, had submitted his resignation on 18.08.1985 in his own hand writing, as Nav Jyoti Pruva Madhyamik Vidyalaya Surendra Nagar Hajpura Faizabad now Ambedkar Nagar was not in grant-in-aid list at that point of time, copy of which resignation is available at page no.39 of the writ petition. (ii) That after resignation the deponent engaged himself in private Job in State of Gujrat. When deponent received information from Sri Ram Sahay Tripathi that school has been taken in to grant-in-aid list he contested the matter on his advice, but now he do not want to contest the matter anymore. (iii) That earlier deponent, on the opinion of Sri Ram Sahay Tripathi signed one Vakalatnama and few papers, by means of which Sri Rakesh Srivastava Advocate was engaged. Now deponent is engaging Sri Pramod Pandey Advocate to represent himself in the matter." 8. Since Vakalatnama of Sri Pramod Kumar Pandey, Advocate was filed without obtaining 'No Objection Certificate' from the earlier counsel, namely, Rakesh Kumar Srivastava, therefore, direction was issued by this Court on 16.1.2019 to put up the case on 17.1.2019 for personal appearance of opposite party no.7 so that the Court could know the stand of opposite party no.7. Since Vakalatnama of Sri Pramod Kumar Pandey, Advocate was filed without obtaining 'No Objection Certificate' from the earlier counsel, namely, Rakesh Kumar Srivastava, therefore, direction was issued by this Court on 16.1.2019 to put up the case on 17.1.2019 for personal appearance of opposite party no.7 so that the Court could know the stand of opposite party no.7. Pursuant to the aforesaid direction dated 16.1.2019, opposite party no.7 appeared in person on 17.1.2019 and apprised the Court that he is not interested to get the matter argued by Sri Rakesh Kumar Srivastava, Advocate, therefore, he has engaged new counsel, namely, Sri Pramod Kumar Pandey, Advocate and he is willing that his case be argued by Sri Pramod Kumar Pandey, Advocate. On the request of opposite party no.7, this Court permitted Sri Pramod Kumar Pandey to advance his submission on behalf of opposite party no.7, thereupon Sri Pandey has submitted that opposite party no.7 has himself given his resignation on 18.8.1985 in his own hand writing from the Institution in question when the Institution was not in grant-in-aid list and after submitting the resignation he had joined in one institution at State of Gujarat. He has further submitted that as soon as he came to know from opposite party no.6 that the Institution has been taken into the grant-in-aid list and opposite party no.6 is contesting the matter and advised him that he should also contest the matter, therefore, at the behest of opposite party no.6, he (opposite party no.7) has signed one Vakalatnama and few papers by means of which Sri Rakesh Kumar Srivastava was engaged. He has further submitted that since opposite party no.7 has already attained the age of superannuation, therefore, he is no more interested to contest and oppose the present writ petition. On the aforesaid request of Sri Pramod Kumar Pandey, Advocate, opposite party no.7 has been treated as non-contesting opposite party. 9. Brief facts of the case, as per learned counsel for the petitioners, are that the Institution in question was granted permanent recognition up to the level of Junior High School on 20.1.1982. 10. On 28.8.1985, one Sri Sudhakar Shukla, who was working as Assistant Teacher in the Institution resigned from his post and joined in any other institution in the name of Dr. G.K Jetly Inter College, Akbarpur and served there till his retirement. 10. On 28.8.1985, one Sri Sudhakar Shukla, who was working as Assistant Teacher in the Institution resigned from his post and joined in any other institution in the name of Dr. G.K Jetly Inter College, Akbarpur and served there till his retirement. On account of resignation of Sri Sudhakar Shukla, one post of Assistant Teacher fell vacant and petitioner no.1 was appointed on the said post of Assistant Teacher in the Institution in question. Learned counsel for the petitioner has drawn attention of this Court towards advertisement dated 1.10.1987 published in the local newspaper wherein the vacancies of two Assistant Teachers were advertised. Learned counsel for the petitioners has further submitted that since opposite party no.6 had resigned from the post of Assistant Teacher of the Institution in question on 1.7.1987 and joined in a branch of DAV College in the State of Bihar (now in Jharkhand), therefore, the vacancy of one Assistant Teacher was accrued on 1.7.1987. For filling up the aforesaid two vacancies of Assistant Teachers, the advertisement was issued on 1.10.1987 and petitioner no.1 was appointed on the vacant post existed due to resignation of Sri Sudhakar Shukla. 11. Learned counsel for the petitioners has also submitted that opposite party no.7, Sri Om Prakash Tripathi, who was working on the post of Assistant Clerk in the Institution resigned from service on 18.8.1985 and joined in some institution in the State of Gujarat. The said resignation letter is in own handwriting of opposite party no.7. On account of resignation of opposite party no.7, post fell vacant and petitioner no.2 was appointed on the post of Assistant Clerk on 30.11.1987. 12. Learned counsel for the petitioners has further submitted that the appointments of the petitioners were made pursuant to the advertisement, as aforesaid, after due selection in the presence of one nominee, namely, Sri Jay Shankar Mishra, Prati Up Vidyalaya Nirikshak sent by the BSA. It is to be noted here that the specific submission to that effect has been made in para-13 of the writ petition, which has not been categorically denied in the counter affidavit vide para-9 of the counter affidavit of opposite parties no.1, 2 & 3. 13. It is to be noted here that the specific submission to that effect has been made in para-13 of the writ petition, which has not been categorically denied in the counter affidavit vide para-9 of the counter affidavit of opposite parties no.1, 2 & 3. 13. On 17.11.1987, papers regarding selection and appointment of petitioners no.1 & 2 were received in the office of Basic Education Officer and after expiry of one month period, the selection was deemed to be approved on 17.12.1987 by virtue of the Rule. 14. Learned counsel for the petitioners has drawn attention of this Court towards the letter dated 13.7.1990 whereby the petitioners' appointment have been approved/ regularized by the Basic Education Officer. 15. Learned counsel for the petitioners has submitted with vehemence that by 13.7.1990 when the BSA has granted approval of the selection and appointment of the petitioners, the Institution in question was not receiving any grant-in-aid, therefore, the word regularization in the order dated 13.7.1990 is not happily worded, but it should be treated as 'approval'. 16. On 28.12.1991, the Government Order issued taking the Institution into grant-in-aid list for the first time and the petitioners along with others started getting salary from grant-in-aid. 17. The salary of the petitioners was stopped w.e.f. August, 1992 and when the petitioners tried to know the reason, they came to know that three Management Returns (MRs) were sent by the Management; in two MR lists, names of the petitioners were not finding place while in one MR list, names of the petitioners were there. Since the petitioners were bonafide appointees, therefore, they preferred representation for payment of salary and when no decision was taken, they filed Writ Petition No.1623 (S/S) of 1993 in which this Court vide order dated 18.2.1993 directed for payment of salary to the petitioners. In the said writ petition, counter affidavit was filed by the State-respondents on 21.5.1993 and only one ground was taken for stopping salary of the petitioners of non-mentioning the names of the petitioners in MR. In the said writ petition, counter affidavit was filed by the State-respondents on 21.5.1993 and only one ground was taken for stopping salary of the petitioners of non-mentioning the names of the petitioners in MR. Learned counsel for the petitioners has submitted with vehemence that till the filing of the counter affidavit, no complaint of any kind whatsoever was made by the opposite parties no.6 & 7 and when they came to know about filing of the writ petition and came to know that the Institution in question has come into grant-in-aid, they filed an application on 23.7.1993 for seeking impleadment in the aforesaid writ petition. Learned counsel for the petitioners has also submitted that in three MRs sent by the Committee of Management, names of opposite parties no.6 & 7 found place in two MRs, which is beyond any understanding inasmuch as the opposite parties no.6 & 7 had resigned from the Institution in question in the years 1987 and 1985 respectively and joined in any other institution of the State of Bihar and State of Gujarat, so how their names can be indicated in the MRs, but in any case on account of the aforesaid mistake on the part of the Committee of Management, opposite parties no.6 & 7 filed an application on 23.7.1993 for seeking impleadment. Learned counsel for the petitioners has also submitted that opposite parties no.6 & 7 could not assign any reason as to why they have not agitated their respective claim for the last several years. Not only the above, opposite parties no.6 & 7 also filed a writ petition bearing No.381 (S/S) of 1995 claiming their salary after about ten years of their resignation. 18. Both the writ petitions i.e. Writ Petition No.1623 (S/S) of 1993 and Writ Petition No.381 (S/S) of 1995 were connected and heard together and were disposed of vide judgment and order dated 31.7.2015 directing the Director of Basic Education or his nominee to make enquiry into the matter and pass appropriate orders. 19. 18. Both the writ petitions i.e. Writ Petition No.1623 (S/S) of 1993 and Writ Petition No.381 (S/S) of 1995 were connected and heard together and were disposed of vide judgment and order dated 31.7.2015 directing the Director of Basic Education or his nominee to make enquiry into the matter and pass appropriate orders. 19. Learned counsel for the petitioners has submitted that first writ petition was filed by Rajendra Prasad Pal, Assistant Teacher, and Krishna Kumar Upadhyay, Assistant Clerk, in the year 1993 bearing Writ Petition No.1623 (S/S) of 1993, in which writ petition an interim direction was issued by this Hon'ble Court for payment of salary of the petitioners, with a condition that if their appointments are made on sanctioned post and they are working, they shall be paid their salary. The respondent no.6, who is claiming that he was ousted from the School, filed Writ Petition No.381 (S/S) of 1995, claiming salary etc. in the School. These two writ petitions were connected and were disposed of vide judgment and order dated 31.7.2015 in which this Hon'ble Court issued following directions, which are being quoted below:- "(i) Since petitioners of first petition have been getting their salary and received up to 30.06.1990, the same shall be continued and they shall continue to receive their salary for the time being. (ii) An enquiry in regard to the validity of appointments of petitioners of first petition as also the grievance of petitioners of second petition shall be conducted by Director of Basic Education or any other Officer nominated by him, but not below to the rank of Additional Director of Basic Education, who shall look into the matter, give opportunity of hearing to all the parties i.e., petitioners of both writ petitions as well as management and also DBEO, Faizabad and, thereafter, pass a reasoned order within three months from the date of production of certified copy of this order. (iii) It is needless to state that Director of Basic Education Department or his nominee shall examine the matter of status of petitioners and their entitlement of salary. (iii) It is needless to state that Director of Basic Education Department or his nominee shall examine the matter of status of petitioners and their entitlement of salary. In case the finding is recorded in favour of petitioners of second petition and it is found that appointments claimed by petitioners of first petition were forged, fictitious or otherwise illegal, entire salary received by petitioners of first petition, pursuant to interim order passed by this Court, shall be recovered and petitioners of second petition would be entitled for payment of arrears of salary for the period they were entitled but have not been paid." 20. Pursuant to above direction the Director, Basic Education nominated the Additional Director of Basic Education, namely, opposite party no.3 to hold the enquiry. Opposite party no.3 while holding the enquiry fixed two dates only, namely, 28.1.2016 and 18.2.2016. Surprisingly after the last date of enquiry on 18.2.2016, opposite party no.3 wrote letter dated 11.5.2016 to opposite party no.4 BSA and opposite party no.4 in response sent his report dated 28.5.2016 containing two documents dated 7.8.1996 and 24.8.1996. These two documents have been relied upon by opposite party no.3 while passing the impugned order dated 5.7.2016. 21. It is worthwhile to mention that these two documents dated 7.8.1996 and 24.8.1996 were available on record in earlier round of litigation (as part of Annexure to the counter affidavit), but the Hon'ble Court while passing the judgment and order dated 31.7.2015 issued direction for holding an enquiry, obviously a fresh enquiry. If the intention of the Court was to make reliance upon these two documents, the judgment could have been passed then and there on the basis of these two documents already available on record and then there was no need to issue fresh direction for holding an enquiry. Once this is the situation, the opposite party no.3 while conducting the enquiry pursuant to judgment and order dated 31.7.2015 was supposed to conduct the fresh enquiry on his own and was not supposed to be prejudiced by the documents dated 7.8.1996 and 24.8.1996. 22. Even if the opposite party no.3 was prompt to look and to rely upon those two documents dated 7.8.1996 and 24.8.1996, the minimum requirement of principles of natural justice was that all the parties to proceedings were required to be put to knowledge for their comments on it. 22. Even if the opposite party no.3 was prompt to look and to rely upon those two documents dated 7.8.1996 and 24.8.1996, the minimum requirement of principles of natural justice was that all the parties to proceedings were required to be put to knowledge for their comments on it. Only then after giving such opportunity the opposite party no.3 could have proceeded to decide the matter on the basis of these two reports. 23. Since the petitioners have not been confronted with these documents, rather the same has been collected on 28.5.2016 after the last date fixed for hearing/ enquiry on 18.2.2016, reference of these two documents is made in the impugned order dated 5.7.2016, it is evident that the impugned action on the part of opposite party no.3 suffers from gross violation of principles of natural justice. 24. As per learned counsel for the petitioners, the Additional Director of Basic Education started hearing in the matter and only two dates were fixed i.e. 28.1.2016 and 18.2.2016. On 28.1.2016, no hearing took place and on 18.2.2016, the petitioners' representation was taken and on the same day, the Additional Director of Basic Education and Committee of Management filed their reply, but copies of which were not given to the petitioners despite request had been made and it was said that documents are so bulky and shall be provided after getting Xerox copies of the same. He has further submitted that the petitioners visited four times the office of the Additional Director of Basic Education, but the documents were not provided to them. It is noted here that the petitioners have made specific averments to that effect in paragraphs-26 & 27 of the writ petition, but no denial has been made by opposite parties no.1, 2 & 3 in the counter affidavit vide paragraphs-15 & 16, therefore, it would be presumed that those contents of the writ petition are acceptable. 25. It is noted here that the petitioners have made specific averments to that effect in paragraphs-26 & 27 of the writ petition, but no denial has been made by opposite parties no.1, 2 & 3 in the counter affidavit vide paragraphs-15 & 16, therefore, it would be presumed that those contents of the writ petition are acceptable. 25. Learned counsel for the petitioners has further submitted that on 11.5.2016, the Additional Director of Basic Education, opposite party no.3, wrote letter to the Basic Education Officer, Ambedkar Nagar behind the back of the petitioners and the Basic Education Officer on 28.5.2016 submitted his report to the Additional Director of Basic Education, opposite party no.3, after the last date of hearing i.e. 18.2.2016 without providing the copy of those reports to the petitioners and thereafter on 5.7.2016 the impugned order had been passed. 26. In the backdrop of the aforesaid facts and circumstances, learned counsel for the petitioners has assailed the impugned order dated 5.7.2016 mainly on two grounds; (i) the Additional Director of Basic Education, opposite party no.3, while passing the impugned order dated 5.7.2016 has grossly violated the principles of natural justice; (ii) the finding recorded in the impugned order dated 5.7.2016 regarding alleged theory of fraud in appointments of the petitioners is baseless and perverse. Appointments of the petitioners are genuine and have been made strictly in accordance with law. 27. So far as the second ground, as aforesaid, is concerned, learned counsel for the petitioners has submitted with vehemence that in this case the facts, which are evolving from the records, that could not be disputed by the counsel for the opposite parties during the course of the arguments, makes it evident that the School, after being given permanent recognition up to the level of Junior High School on 20.1.1982, has been taken into the grant-in-aid list for the first time on 28.12.1991. 28. Before 1991 the school was not in grant-in-aid list and thereafter one Sri Sudhakar Shukla, who was working as Assistant Teacher in the School, resigned from the School on 28.8.1985 and thereafter joined in Dr. G.K. Jaitly Inter College on the post of Assistant Teacher in L.T. Grade w.e.f. 29.8.1985. Sri Sudhakar Shukla never disputed this fact before any authority or Court and from the documents available on record it is evident that Sri Sudhakar Shukla had retired from Dr. G.K. Jaitly Inter College on the post of Assistant Teacher in L.T. Grade w.e.f. 29.8.1985. Sri Sudhakar Shukla never disputed this fact before any authority or Court and from the documents available on record it is evident that Sri Sudhakar Shukla had retired from Dr. G.K. Jaitly Inter College and is receiving pension from the State Exchequer. This fact is also not disputed that on the post of Assistant Teacher so held by Sri Sudhakar Shukla, which has fallen vacant after his resignation, petitioner no.1-Rajendra Prasad Pal was appointed, which fact is evident from perusal of the order dated 13.7.1990 passed by the then Basic Education Officer. 29. The other employee (Sri Om Prakash Tripathi, opposite party no.7), who was working as Assistant Clerk in the School, also submitted his resignation on 18.8.1985, in his own handwriting and though Sri Om Prakash Tripathi has earlier contested the matter but has filed an affidavit dated 13.1.2019, on 16.1.2019 to the effect that he has submitted his resignation in the School in his own hand writing and started working in State of Gujarat and after receiving information regarding School being taken in grant-in-aid list, he started litigation but now he does not want to contest the matter. On that post, petitioner no.2-Krishna Kumar Upadhyay was appointed. 30. As per learned counsel for the petitioners, it is evident that Sri Sudhakar Shukla left the School on 28.8.1985, which is admitted, Sri Om Prakash Tripathi left the School on 18.8.1985, which fact is also admitted, and upon these two posts both the petitioners were appointed. The papers relating to selection and appointment of the petitioners are duly received in the office of Basic Education Officer on 17.11.1987. The approval/ regularization order dated 13.7.1990 is also on record. 31. He has further submitted that so far as claim of Sri Ram Sahay Tripathi is concerned, he is fighting on another post of Assistant Teacher, upon which post Late Kapildev Dubey was appointed and received salary, and now after his death his wife is getting pension. 32. Since the opposite party no. 7 has already been declared as non-contesting party therefore, the submissions of Sri Rakesh Kumar Srivastava, learned Advocate shall be considered only for the opposite party no. 6. 33. As per Sri R.K. Srivastava the opposite party no. 32. Since the opposite party no. 7 has already been declared as non-contesting party therefore, the submissions of Sri Rakesh Kumar Srivastava, learned Advocate shall be considered only for the opposite party no. 6. 33. As per Sri R.K. Srivastava the opposite party no. 6 was appointed on the post of Assistant Teacher in the institution on 13.1.1978 and he was allowed to work on the said post and was paid his salary each and every month regularly. He has further submitted that as soon as the institution in question was taken in the list of grant-in-aid vide Government Order dated 28.12.1991 the Manager of the Institution in collusion with the then Education Officer, Faizabad inserted the names of petitioners and three other persons in place of opposite party no. 6 and 4 other persons thereby making fabrication of documents as a result of which the petitioner and three other persons were paid salary in the month of March, 1991 to the month of February, 1992. However, the opposite party no. 6 was not allowed to work by means of oral order of the Manager of the institution w.e.f. 1.4.1991. 34. It would be pertinent to indicate here that the learned counsel for the opposite party no. 6 has not indicated anywhere about the action, if so taken by the opposite party no. 6 after 1.4.1991. As a matter of fact the opposite party no. 6 has himself indicated that when the petitioners have filed one W.P. No. 1623(S/S) 1993 and the counter affidavit was filed by the State respondents on 21.5.1993, only thereafter the opposite party has filed an application for impleadment in the W.P. No. 1623(S/S) of 1993 and after that filed W.P. No. 381(S/S) 1995. In the light of the aforesaid submission of opposite party no. 6, the opposite party no. 6 has raised his grievance which as per him accrued on 1.4.1991 in the year 1995 by filing W.P. No. 381(S/S) 1995 which creates doubt on the bona fide of opposite party no. 6. 35. Sri R.K. Srivastava, learned Advocate has further submitted that both the aforesaid writ petitions bearing nos. 6, the opposite party no. 6 has raised his grievance which as per him accrued on 1.4.1991 in the year 1995 by filing W.P. No. 381(S/S) 1995 which creates doubt on the bona fide of opposite party no. 6. 35. Sri R.K. Srivastava, learned Advocate has further submitted that both the aforesaid writ petitions bearing nos. 1623(S/S) of 1993 and 381(S/S) of 1995 were heard and decided by a common judgment and order dated 31.7.2015 whereby the direction was issued by this Court for conducting an enquiry in regard to validity of appointments of the petitioner as also the grievance of the opposite party no. 6 and 7 by the Director of Basic Education or any officer nominated by him not below the rank of Additional Director of Basic Education with further observation that in case the finding is recorded in favour of opposite party no. 6 and 7 and it is found that the appointments claimed by the petitioners were forged, fictitious or otherwise illegal, entire salary received by the petitioners, pursuant to the interim order passed by this Court shall be recovered and opposite party no. 6 and 7 would be entitled for payment of arrears of salary for the period they were entitled but have not been paid. As per Sri Srivastava the judgment and order dated 31.7.2015 has not been assailed before the superior forum/Court, therefore, the same has attained finality. It has also been informed that the contempt petition has been filed by the opposite party no. 6 for alleged contempt of the judgment and order passed by this Court on 31.7.2015. 36. Sri Srivastava has filed counter affidavit on 10.11.2016 on behalf of opposite parties no. 6 and 7 both which has been sworn by opposite party no. 7, Sri Om Prakash Tripathi. In the said counter affidavit vide para 38 it has been categorically submitted that the opposite parties no. 6 and 7 have never resigned from service as alleged by the petitioners and resignation letters placed by the petitioners are forged and fabricated documents which have been prepared by the petitioners in collusion with the Manager of the institution in order to oust the opposite parties no. 6 and 7 from service to make appointment of the petitioners in their place. However, Sri Om Prakash Tripathi, opposite party no. 6 and 7 from service to make appointment of the petitioners in their place. However, Sri Om Prakash Tripathi, opposite party no. 7 has filed a supplementary counter affidavit on 13.1.2019 wherein he has categorically indicated that he had signed on the 'Vakalatnama' and some papers at the behest of opposite party no. 6. He has further submitted that he had resigned from service vide his own handwriting and thereafter submitted his joining in one institution at State of Gujarat. He has therefore submitted that on account of aforesaid reason he do not want to contest and oppose the writ petition. 37. In the light of the aforesaid submissions of opposite party no. 7, this Court is constrained to believe that the subsequent submission of opposite party no.6 regarding non-submission of his resignation is not worth-acceptable rather it appears that the opposite party no.6 must have resigned from service. Had he not resigned from service, he would have come to the Court earlier, at least he would have come just after 1.4.1991 when as per him his salary was stopped. 38. The next submission of the learned counsel for the opposite party no. 6 is that if it is presumed that the opposite parties no. 6 and 7 were not discharging their duties after their alleged resignation, the appointment of the petitioner would be decided on the touchstone of the settled legal position. In other words learned counsel for the opposite party no. 6 has submitted that the petitioners will have to justify their respective appointment as the appointment of the petitioner has not been strictly in accordance with law as the due procedure of law has not been followed while making appointment of the petitioner. In support of aforesaid submissions of learned counsel for the opposite party no. 6 has placed reliance on the judgment of this Court in re: Vibha Shukla vs. Director of Education, Basic, U.P. reported in 2012(6) ADJ 246 submitting that if the appointment has been obtained on the basis of fraud no opportunity of hearing is required. He has also cited the case of Hari Lal and others vs. Director, Samaj Kalyan and others reported in (2002) 2 UPLBEC 1407 Submitting that the Hon'ble High Court has held that if the teachers are not appointed according to Rules they are not entitled for payment of salary. He has also cited the case of Hari Lal and others vs. Director, Samaj Kalyan and others reported in (2002) 2 UPLBEC 1407 Submitting that the Hon'ble High Court has held that if the teachers are not appointed according to Rules they are not entitled for payment of salary. He has also cited the case of Bhim Singh and others vs. District Basic Education Officer, Ballia reported in (1998) 34 ALR 414 submitting that this Hon'ble Court has held that if the newspaper is not widely circulated, well known newspaper, appointment cannot be treated as valid 39. Replying the aforesaid contention of the learned counsel for the opposite party no. 6 the learned counsel for the petitioner has submitted that the alleged theory of fraud, is to be proved by the O.P. no. 6, as it is well settled that on who alleges the fraud has to prove it. The aforesaid submissions made on the part of opposite party no. 6 are fallacious in nature as from the discussions made herein above it is evident that there is no element of fraud on the part of petitioners in regard to their selection and appointment. So far as the claim of opposite party no. 6 that he has been ousted from School w.e.f. 01.04.1992, the said claim itself becomes falsified from the fact that the resignation of opposite party no. 6 is duly received in the Office of Basic Education Officer on 14.07.1987 and the proceedings of appointment of Shri Kapil Dev Dubey, having been appointed on the post so fallen vacant due to resignation of Shri Ram Sahay Tripathi are duly received in the Office of Basic Education Officer on 17.1.1987. Further, the School having been taken in to the grant-in-aid list in the year 1991 and Shri Kapil Dev Dubey appointed on the post of Shri Ram Sahay Tripathi and received his salary till the month of February 1992. There is no complaint whatsoever available on record or alleged by Shri Ram Sahay Tripathi regarding such action. It is not believable that any person who is working in the School and someone else is being shown to be appointed and is being paid salary and even then no complaint whatsoever is being made by the incumbent. 40. There is no complaint whatsoever available on record or alleged by Shri Ram Sahay Tripathi regarding such action. It is not believable that any person who is working in the School and someone else is being shown to be appointed and is being paid salary and even then no complaint whatsoever is being made by the incumbent. 40. As per learned counsel for the petitioners, on the background of aforesaid reasons, the case set up by Shri Ram Sahay Tripathi is not acceptable. 41. So far as MR, in which the names of the petitioners was not mentioned, and on the basis of which the entire dispute began, the MR is the document of the management and during enquiry management was required to explain the issue, but the management itself has filed the writ petition no. 30178(S/S)/2017 challenging the impugned order dated 05.07.2016 that no opportunity was given to it on this point. Even the attendance register, resignation letters, copy of MR, salary register, old correspondence made with the education department regarding resignation, selection and appointment produced by it, has not been considered by the O.P. No. 3. 42. Petitioners have filed the copies of MR, in which their names are there. Records were earlier summoned but authorities failed to produce original MR. Photocopies of MR are available with the authorities, and also placed on record in writ petition and rejoinder affidavit. For deciding the case the MR is not only conclusive document, but other supporting documents such as the attendance register, resignation letters, salary registers, old correspondence made with the education department regarding resignation, selection and appointment are also to be seen. This exercise has not been done in the case in hand by the O.P. No. 3. Admittedly even in the MR out of two copies the names of the petitioners are there in one MR. In this situation, more particularly when factum of resignation of O.P. No. 6, selection and appointment of the petitioners are not disputed, the claim of O.P. No. 6 is not acceptable. 43. In reply to the last submission made by the counsel for the O.P. No. 6 that even if his resignation is found to be correct, the petitioners have to prove their own case; it is submitted that the petitioners have successfully demonstrated their appointments were made in accordance with law, and there is no element of fraud in it. 43. In reply to the last submission made by the counsel for the O.P. No. 6 that even if his resignation is found to be correct, the petitioners have to prove their own case; it is submitted that the petitioners have successfully demonstrated their appointments were made in accordance with law, and there is no element of fraud in it. If O.P. no. 6 is accepting his resignation, the strict scrutiny of appointment in an unaided school after gap of 30 years, would be too harsh, when there is no element of fraud in it, as alleged. Even after scrutiny there is no illegality traced in the selection and appointment. 44. Under the aforesaid circumstances, once the claim of Sri Ram Sahay Tripathi of his alleged illegal expulsion from the School is found to be not bonafide, the alleged theory of fraudulent appointment of petitioners (Rajendra Prasad Pal and Krishna Kumar Upadhyay) is demolished, more particularly when the persons on whose place the petitioners were appointed do not dispute it. 45. Scrutiny of procedure for appointment of petitioners in the light of the Uttar Pradesh recognized Basic Schools (Junior High Schools) (Recruitment & Conditions of Service of Teachers) Rules, 1978 and Uttar Pradesh Recognized Basic Schools (Junior High Schools) (Recruitment & Conditions of Service of Ministerial Staff and Group 'D' Employees) Rules, 1884 prevalent at that point of time has been done by the opposite party no.3. The opposite party no.3 while passing the impugned order has recorded a finding in the impugned order that there was no prior approval of Basic Education officer before publishing the advertisement. From perusal of the rules it is evident that there was no such requirement for taking prior approval before publishing the advertisement. The further finding recorded by the opposite party no.3 while passing the impugned order dated 5.7.2016 that there was no Observer available at the time of selection of the petitioners, the said finding also is perverse as from perusal of page 83 of the writ petition it is evident that at the time of selection of petitioners one Sri Jai Shankar Mishra, Prati Up Vidyalaya Nirikshak, was present as Observer and he has signed the minutes of the selection. Petitioners have made specific pleading in this regard in para 38 (xii) of the writ petition and such averment has not been denied by opposite party no.3 in his counter affidavit in Para 22 of the counter affidavit. Once such is the situation, the finding recorded by opposite party no.3 becomes perverse. The next finding recorded by opposite party no.3 is that the selection of petitioners has not been approved by the Basic Education Officer. In this regard the attention of the Court is drawn towards the order dated 13.7.1990 passed by Basic Education Officer in which he has stated that the appointments of the petitioners are regularized. In this regard it is to be noted that at the time of passing of order dated 13.7.1990 the Schools was not into the grant-in-aid list, the status of the School was of a private school, not receiving grant-in-aid, the authorities are least concerned about the affairs of such schools, and that is why in the statutory rules also only requirement is of approval of the selection and nothing else and even Rule 10 (3) of 1978 Rules provide that if within one month the documents after selection is served upon the Basic Education officer and Basic Education Officer does not communicate any discrepancy in the selection, then after expiry of one month from the date of receiving of documents such selection is deemed to be approved. In the case in hand admittedly the documents regarding selection of petitioners are served in the office of Basic Education Officer on 17.11.1987, which is evident from perusal of report of District Basic Education Officer dated 23.4.1994 available in the writ petition at Page No.111 . Obviously after expiry of one month w.e.f. 17.11.1987 i.e. on 17.12.1987, the selection of the petitioners was deemed to be approved. Therefore, the word 'regularization' being used by the Basic Education Officer in his order dated 13.7.1990 do not adversely affect the case of the petitioners. This finding, therefore, is also not sustainable. 46. The opposite party no.3 while passing the impugned order has recorded above reasons for declaring the appointment of petitioners as fraudulent, but these reasons after scrutiny are found to be erroneous. 47. This finding, therefore, is also not sustainable. 46. The opposite party no.3 while passing the impugned order has recorded above reasons for declaring the appointment of petitioners as fraudulent, but these reasons after scrutiny are found to be erroneous. 47. One more ground is taken in the impugned order that the alleged resignation of Om Prakash Tripathi dated 18.8.1985, Ram Sahay Tripathi dated 28.8.1985 and Sudhakar Shukla dated 28.8.1985 and two Class-IV employees (Kolai and Srinath) are not approved by the Basic Education officer. The petitioners have taken a specific plea in Para 38 (xi) of the writ petition that there is no such provision in 1978 Rules for approval of resignation. During the course of arguments, learned counsel for the Basic Education Officer, Sri Neeraj Chaurasia has emphasized, though there is no such provision in the rules, but there are circulars in this regard, but the said circulars have not been brought on record nor have been placed before the Court. The resignation of Sri Sudhakar Shukla is not disputed and the resignation of Sri Om Prakash Tripathi is not disputed. The joining of Sri Ram Sahay Tripathi in D.A.V. School in State of Bihar is also not disputed, resignation is actually relinquishment of service and the appointing authority (the Committee of Management) has accepted the resignation and communicated it to the Basic Education Officer, which fact is not disputed by the opposite parties, therefore the finding recorded by opposite party no.3 in this regard is not sustainable in the eyes of law. 48. So far as Writ petition No.30178 (S/S) of 2017, C/M Nav Jyoti Poorva Madhyamik Vidyalaya, Surendra Nagar, Hajpura, Faizabad (now Ambedkar Nagar) and another Vs. State of U.P. and others, is concerned, no counter affidavit has been filed by any of the opposite parties. The main ground to assail the order dated 5.7.2016 passed by the Additional Director, Basic Education, Allahabad, Uttar Pradesh is that the authorities concerned have not afforded an opportunity of hearing to the Committee of Management and passed the order in a haste without following the principles of natural justice. 49. Sri Kshemendra Shukla has submitted that this Hon'ble Court vide order dated 31.7.2015 passed in Writ Petition No.1623 (S/S) of 1993; Rajendra Pal and others Vs. 49. Sri Kshemendra Shukla has submitted that this Hon'ble Court vide order dated 31.7.2015 passed in Writ Petition No.1623 (S/S) of 1993; Rajendra Pal and others Vs. State of U.P. and others with connected Writ Petition No.381 (S/S) of 1995 has been pleased to direct the competent authority to pass a fresh reasoned order by affording an opportunity of hearing to all the parties including the Committee of Management. The impugned order dated 5.7.2016 itself reveals that in compliance of the order dated 31.7.2015 (supra), the Committee of Management through its Manager Sri Lalji Tiwari had preferred his detailed representation before the competent authority but in the entire impugned order, it has no where been indicated as to how the contention of the Committee of Management has been considered by the competent authority; what was finding of disagreement on the contention of representation of the Committee of Management and as to how and when the opportunity of personal hearing was provided to the Committee of Management. As a matter of fact, the entire impugned order dated 5.7.2016 is silent on the point of affording an opportunity of hearing to the Committee of Management, therefore, since the order impugned is violative of principles of natural justice, as submitted by the learned counsel for the petitioner, the entire order vitiates and therefore, the same is liable to be set aside. 50. Since no counter affidavit has been filed in this writ petition by any of the opposite parties, therefore, no other inference may be drawn. However, the impugned order itself reveals that the Committee of Management has not been afforded an opportunity of hearing in its literal sense, therefore, the opportunity of hearing may not be afforded in disguise inasmuch as the factum is that if the opportunity of hearing has been provided in its literal sense, it must have been reflected on the order itself. I do not find any where in the impugned order that the opportunity of hearing was provided to the Committee of Management in its literal sense and therefore, on the aforesaid ground, the impugned order vitiates. 51. I do not find any where in the impugned order that the opportunity of hearing was provided to the Committee of Management in its literal sense and therefore, on the aforesaid ground, the impugned order vitiates. 51. Considering the rival submissions of the learned counsel for the parties and perusing the material on record, I am of the considered view that while passing the order dated 5.7.2016, the Additional Director of Basic Education, opposite party no.3, has not afforded an opportunity of hearing to the parties in its literal sense in compliance of the order dated 31.07.2015 passed by this Court in Writ Petition No. 1623 (S/S) of 1993 and Writ Petition No. 381 (S/S) of 1995 inasmuch as the petitioners of Writ Petition No.17715 (S/S) of 2016 have not been confronted with the documents, which have been referred in the impugned order, rather the same have been collected on 28.5.2016 after the last date fixed for hearing/ enquiry on 28.2.2016, therefore, the impugned action suffers from gross violation of principles of natural justice. Besides no opportunity of hearing in its strict sense has been afforded to the Committee of Management, as discussed above, therefore, the impugned action would also be violative of principles of natural justice so far as the Committee of Management is concerned. 52. Further, the finding recorded in the impugned order dated 5.7.2016 regarding alleged theory of fraud in appointments of the petitioners [petitioners in Writ Petition No.17715 (S/S) of 2016] is baseless and perverse, rather the appointments of the petitioners appear to be genuine and have been made strictly in accordance with law, as considered above. 53. Therefore, the order dated 5.7.2016 passed by the Additional Director of Basic Education, Allahabad, Uttar Pradesh, as contained in Annexure No.1 to both the writ petitions, is quashed. 54. A writ in the nature of mandamus is issued commanding the opposite parties no.1 to 5 to allow the petitioners of Writ Petition No.17715 (S/S) of 2016, namely, Rajendra Prasad Pal and Krishna Kumar Upadhyay to work on the post of Assistant Teacher and Clerk respectively in the educational institution in question and pay them salary of their respective post regularly and they shall be provided all consequential service benefits. 55. 55. Since the order dated 5.7.2016 passed by the Additional Director of Basic Education, U.P., Allahabad has been quashed, therefore, the said order shall not be given effect to against the petitioners of both the writ petitions. 56. Accordingly, both the writ petitions are allowed. 57. No order as to costs.