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2024 DIGILAW 281 (ALL)

Arvind Singh v. State Of U. P.

2024-01-25

AJIT KUMAR

body2024
JUDGMENT : 1. Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri H.N.Singh, learned counsel for the petitioner, Ms. Manisha Chaturvedi, learned counsel for the Committee of Management and learned Standing Counsel for the State respondents. 2. The petitioner before this Court is working as Assistant Teacher in LT Grade in a recognized and aided institution being run and managed by 6th respondent and claims that he has been working ever since he submitted his joining in the institution on 5.12.1997 pursuant to his initial appointment on 3.12.1997 taking recourse to provisions as contained under Second Removal of Difficulties Order, 1981 and read with Section 18 of the U.P. Secondary Education Service Commission Act, 1982. He claims to have been appointed against short term vacancy on account of one Saryu Yadav, the then Assistant Teacher in LT Grade upon getting promoted as head master in the institution in October, 1996. 3. He also claims to have possessed requisite qualification to be appointed as Assistant Teacher in LT Grade as per provision Appendix-A of the Intermediate Education Act, 1921, and therefore, Committee of Management rightly proceeded to adopt resolution accepting recommendation of the selection committee offering him appointment. The papers, according to the petitioner were forwarded by the Committee of Management on 8.12.1997 to the District Inspector of schools but the District Inspector of Schools refused to accord approval to the appointment of the petitioner and so also consequently he was not paid salary. It was when despite several representations made by him, no heed was paid by the District Inspector of Schools, petitioner approached the Lucknow bench of this Court by filing writ petition (SS) No. 4740 of 2009, in which a detail interim order was passed on 30th October, 2010 with the rider that in the event petitioner has been working upon being appointed against short-term vacancy and discharging duties as such then it will be equitable to pay him salary, accordingly he is entitled to salary. 4. The order dated 10th May, 2002 negating the claim of the salary of the petitioner was stayed, of-course the Court also ordered that in the event selected candidate joined the institution, automatically petitioner’s appointment against post in question would come to end. 4. The order dated 10th May, 2002 negating the claim of the salary of the petitioner was stayed, of-course the Court also ordered that in the event selected candidate joined the institution, automatically petitioner’s appointment against post in question would come to end. After the interim order was passed as above by this Court on 30th August, 2010, the District Inspector of Schools, it appears enquired from the Principal of the institution regarding appointment and working of the petitioner as Assistant Teacher in LT Grade on ad hoc basis and upon furnishing of requisite information and documents by the then Principal of the institution that District Inspector of Schools proceeded to pass order for payment of salary. Thus petitioner has been drawing salary. 5. In the meanwhile, petitioner also filed writ petition being Service Single No. 13361 of 2001 seeking consideration of his claim for regularization in view of Section 33-G of the Act No. 5 of 1982 while disposing of the said petition under the order dated 27.7.2021, the Court also disposed of earlier petition of the petitioner being no. 47040 of 2009 on 27.7.2021 with a direction that petitioner would be continued in employment and shall be paid salary in terms of an interim order passed earlier by this Court on 30th August, 2010 till such time a final decision is taken by respondents in the matter of regularization as directed by this Court in the other writ petition no. 13361 of 2001. 6. It is in this above view of the matter that claim for regularization come to be decided by the Regional Selection Committee under the order impugned after hearing all the respective parties including Committee of Management and in its final resolution adopted by the Committee it negated the claim of the petitioner for regularization holding him not eligible as such for regularization not falling within the criterion laid down under Section 33-G(8) of Act No. 5 of 1982 as he was only getting salary under the orders of the High Court. It is this order which is under challenge before this Court. 7. In view of decision taken by Regional Selection Committee, the District Inspector of Schools came to pass consequential order on 14.7.2023. It is this order which is under challenge before this Court. 7. In view of decision taken by Regional Selection Committee, the District Inspector of Schools came to pass consequential order on 14.7.2023. The Committee of Management though is an appointing authority but has not passed any order dispensing with services of petitioner as a consequence to the decision taken by the Regional Selection Committee as well as District Inspector of Schools. Thus, these two orders of Regional Selection Committee as well as District Inspector of Schools are under challenge before this Court. 8. The basic ground of attack is that Regional Selection Committee is not justified in returning a finding that petitioner was not entitled to regularization only for the reason that petitioner was getting salary under the orders of this Court whereas twin conditions as forwarded under Clause 8 of sub-section 33 G of invalid appointment coupled with payment of salary have to be fulfilled. In absence of finding qua appointment of the petitioner against short-term vacancy, Regional Level Selection Committee was not justified in passing such order. 9. It is also argued on behalf of the petitioner that petitioner falls in zone of consideration for regularization in view of Section 33G(1) of U.P. Act No. 5 of 1982. Besides above, it is argued on behalf of the petitioner that interim order was passed by this Court in Writ Petition SS No. 4740 of 2009 was not blanket stay order as it was subject to condition that petitioner had been appointed and had also been working and since District Inspector of Schools certified that petitioner was duly appointed and discharging his duties as Assistant Teacher in LT Grade in the institution, the payment of salary came to be made. Still further, it is submitted by learned counsel appearing for the petitioner, petitioner was continuously assigned duty of invigilator in board examinations regarding which several documents have been brought on record by means of rejoinder affidavit as annexure 4 from the period running from 1999 onwards. 10. Learned Standing Counsel has sought to justify the order for the reasons assigned therein and has submitted that the case of the petitioner would stand covered as held by Regional Selection Committee under Section 33-G (8). 11. Ms. 10. Learned Standing Counsel has sought to justify the order for the reasons assigned therein and has submitted that the case of the petitioner would stand covered as held by Regional Selection Committee under Section 33-G (8). 11. Ms. Chaturvedi, learned counsel appearing for the Committee of Management has seriously contested the matter and submitted that neither there was any short term vacancy of Assistant Teacher in LT Grade available in the institution on the date petitioner claims to have been appointed nor, petitioner ever discharged his duties as such prior to the year 2010 when the District Inspector of Schools passed order for payment of salary. It is argued by learned counsel for the Committee of Management that if the teacher had not been lawfully appointed for want of requisite vacancy on the date of selection and appointment and he was discharging his duties as such, merely because petitioner produced the document on the date between cutt-of date prescribed as under Section 33 G (1) such teacher would not be entitled to payment of salary. It is next argued that District Inspector of Schools had, therefore, was not offering approval to the appointment of the petitioner and it was under interim order of the Court dated 30.08.2010 that District Inspector was compelled to pass order for payment of salary to the petitioner. 12. It is argued on behalf of the Committee of Management that it is just because petitioner has been getting salary on account of orders passed by this Court and consequential order by the education authority, this would not validate otherwise invalid appointment of the petitioner. 13. Yet another plea taken by learned counsel for the Committee of Management is that on the date of selection of appointment of petitioner, there was no Committee of Management with Anoop Singh, Manager of the Institution, and therefore, entire selection proceeding was at farce. According to her, it is all cooked up story set up by the petitioner and otherwise there is no such document available on record. Thus, she justifies the order passed by the Regional Selection Committee. According to her, it is all cooked up story set up by the petitioner and otherwise there is no such document available on record. Thus, she justifies the order passed by the Regional Selection Committee. However, she submits that regarding invalid appointment of the petitioner Manager had submitted a number of documents, which though has been referred to but not deliberated and discussed by Regional Selection Committee, and therefore, this lacuna was on the part of the Regional Selection Committee, otherwise findings would have been more in support of the management than what has come in the order impugned. 14. Meeting the argument of learned counsel appearing for the Committee of Management Mr. Khare has submitted that very specific pleading has come to be raised in Writ Petition vide paragraph 7,8 and 9 that it is on account of promotion of Saryu Yadav, the then Assistant Teacher as head master that a short term vacancy arose in October, 1996 in LT grade which Manager proceeded to fill up. He submits that paragraph 7,8 and 9 of writ petition has been very casually replied to in paragraph 13 of the counter affidavit. There is no specific denial according to him of the factum of promotion of Saryu Yadav as according to him the document that has been brought on record by way of attendance register as annexure 4 to the counter affidavit by Manager itself shows that Saryu Yadav was working in 2004-05 and onwards also as Head Master until he retired. He submits that when the Manager made a deposition regarding retirement of Saryu Yadav in the year 2010, he deliberately avoided refer to the post of head master and simply stated that he retired as Assistant Teacher. Besides above, he submits that nowhere in the entire counter affidavit, it has come to be referred as to why appointment otherwise would be bad except the averments that there was no effective Committee of Management on the date of selection and appointment. 15. To this above point, Mr. Khare has drawn attention of this Court to the attested signatures of Anoop Singh on 20th May, 1996 prior to appointment of the petitioner . He further submits that present Manager has taken over in the year 2017, and therefore, he cannot have any personal knowledge of the events that have taken place in the year 1997. Khare has drawn attention of this Court to the attested signatures of Anoop Singh on 20th May, 1996 prior to appointment of the petitioner . He further submits that present Manager has taken over in the year 2017, and therefore, he cannot have any personal knowledge of the events that have taken place in the year 1997. Regarding existence of short-term vacancy, procedure was duly followed and selection was held. It is also argued by learned counsel for the petitioner that 33-G(8) as sought to be not interpreted by learned counsel for the Committee of Management is not not tenable because provision requires both conditions illegal appointment and then payment of salary under the order of a Court to be part to attract the provision. He has placed reliance upon the order of this Court in Pramod Kumar v. State of U.P. and Others in Writ A 1981 of 2021, 16. Having heard learned counsel for the respective parties and having perused the records, I find merit in the submission so advanced by learned counsel for the petitioner that merely because there was payment of of salary under the order of the Court, the claim for regularisation of the petitioner cannot be rejected treating his appointment to be invalid. Every appointment has to be decided on its own facts and is to be seen where minimum required procedure was followed or not under the relevant rules while making selection and appointment of the candidate against short-term/substantive appointment as the case may be. It so happens that many times authority do not pass orders for approval or even after approval for payment of salary. In such circumstances, therefore, such candidates are left with no other option but to have taken justice of the court of law and in the event, the Court entertain the petition and passes interim order, this mean a prima facie case made out for payment of salary in the eyes of the Court. Now while considering the claim for regularization since such candidates are obtaining payment of salary within their claim cannot be rejected salary on this ground. Now while considering the claim for regularization since such candidates are obtaining payment of salary within their claim cannot be rejected salary on this ground. Each case is required to be tested on its own merits where order of court or no order if the appointment is valid in law then regularisation cannot be refused, however, where the approval is in the teeth of the Court then authority can take plea that regularisation will be subject to the final order that may be passed in the writ petition. 17. In Pramod Kumar’s case (supra) relied upon by the counsel for the petitioner, the Court has observed thus: A plain reading of Section 33-G of the U.P. Secondary Education (Services Selection Board) Act, 1982 makes it clear that the benefit of regularization to a Teacher other than the Principal or Head Master can be extended subject to the said candidate fulfilling the conditions as specified in Section 33-G (1) of the said provision. A plain reading whereof shows that no such condition exists to the effect that on account of non-payment of the salary for a particular period, the consideration of regularization can be denied to a person. The submission of the learned Standing Counsel that the initial appointment of the petitioner was an improper exercise of power cannot be accepted as the same is not the basis for denying the benefit of consideration for regularization to the petitioner in the order impugned dated 25.1.2020. It is well settled that the reasoning cannot be supplemented by means of a counter affidavit or by means of argument and the validity of the order is to be seen only on the basis of the reasoning contained in the order impugned before the Court concerned. See Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi; (1978) 1 SCC 405 . That being the case, the order dated 25.1.2020 is quashed with further direction to consider the case of the petitioner for regularization afresh under Section 33-G of the U.P. Secondary Education (Services Selection Board) Act, 1982 and in the light of the judgment of this Court dated 14.9.2018 passed in Writ Petition No. 13181 of 1997. The said exercise shall be completed within a period of four months from the date of filing of a copy of this order before the Regional Level Committee. The said exercise shall be completed within a period of four months from the date of filing of a copy of this order before the Regional Level Committee. Considering the fact that I have allowed the Writ-A No. 8234 of 2020 and have set aside the order impugned therein being the order dated 25.1.2020, accordingly the Writ-A No. 1981 of 2021 also deserves to be allowed as the sole reason for passing the termination order dated 6.1.2021 is the rejection of the claim of the petitioner for regularization vide order dated 25.1.2020. Accordingly, the Writ-A No. 1981 of 2021 is also allowed. The order dated 6.1.2021 is set aside. 18. Now coming to the provisions contained under Section 33G (8) decision relied upon in Pramod Kumar’s case (supra) conditions are required to be fulfilled and payment under the interim order/final order of the Court. The relevant provisions as contained under Section 33-G 8 are reproduced hereunder: 33-G (8) Ad hoc teachers, who have not been appointed either in accordance with the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981 or in accordance with Section 18 of the Uttar Pradesh Secondary Education Services Selection Board Act, 1982 and are otherwise getting salary only on the basis of Interim/Final orders of the court shall not be entitled for regularisation. 19. From the bare reading of the aforesaid provisions, it is clearly stipulated that one should be validly appointed and should be getting salary under the orders of the Court and now, therefore, if the candidate has been validly appointed and yet approval was not granted and has been therefore getting salary under the orders of this Court, claim for regularisation cannot be rejected, The word ‘and’ is to be read as conjunctive word ‘and’ here and not for disjunctive word ‘or’ because two negative conditions are to be read together to have purposive interpretation of sentence and impart of the provision. 20. In a very recent judgment of Supreme Court in the case of Radhey Shyam Yadav v. State of U.P. in Special Leave Petition (Civil) Nos. 20. In a very recent judgment of Supreme Court in the case of Radhey Shyam Yadav v. State of U.P. in Special Leave Petition (Civil) Nos. 3877-3878, AIR, 2024 SC 260 decided on 03.01.2024 Supreme Court has observed that for any unfair practise at the end of the officials of Board, a selecting body as in this case would be Committee of Management of the institution where incumbent has been discharging duties for more than two and half decades, beneficiaries cannot be penalized as such candidates were selected from open market and thus they were entitled to all service benefits like salary etc. and if department was of the view that it was all because of mischief of the officials of Board, it would be open for them to take action against them for recovery. Vide paragraphs 22 and 23 Supreme Court has held thus: “22. Assuming the case of the State to be true and taking it at its highest, the factual position would come to this, namely, that while the State sanctioned two vacancies, the school went ahead and recruited three. The State has no proof of commission of any malpractice by the appellants. The State approved their appointments, and the approval order till date has not been cancelled. The appointments have not been terminated. No action has been taken against the school and the school continues to receive the aid. 23. Chief Engineer, M.S.E.B. and Another vs. Suresh Raghunath Bhokare, (2005) 10 SCC 465 is a case which, on facts, has a striking resemblance to the case at hand. The respondent therein had been recommended by the department and was selected as line-helper in the appellant-Board. On the ground that the recommendation was allegedly made fraudulently, the respondent was dismissed from service. The complaint preferred by the respondent had been dismissed by the Labour Court. The Industrial Court reversing the findings of the Labour Court, quashed the termination of the respondent therein and directed reinstatement. Writ Petition filed by the appellant therein was dismissed by the High Court. This Court, while observing that in the absence of any overt act being attributed to the respondent, held that it could not be inferred that the respondent had a role in sending fraudulent list, solely on the basis of the presumption that he got the job. Writ Petition filed by the appellant therein was dismissed by the High Court. This Court, while observing that in the absence of any overt act being attributed to the respondent, held that it could not be inferred that the respondent had a role in sending fraudulent list, solely on the basis of the presumption that he got the job. Para 5 of the judgment which is crucial for the decision of the present case is extracted herein below:- 5. The entire basis of the dismissal of the appellant depends upon the factum of the alleged misrepresentation attributed to the respondent. The Industrial Court in its impugned order has noticed the fact that the respondent was appointed in April 1994 pursuant to the selection procedure followed by the competent authority and that he was selected by the panel of Selection Committee consisting of 6 members which included the very same Social Welfare Officer who had sent the proposal including the name of the respondent for appointment. It also noticed the fact that the selection in question was made after an oral interview and the required test as also the medical examination. The Industrial Court also noticed the fact that the appointment of the respondent was confirmed after one-year period and thereafter the respondent has been working without any complaint. The said Industrial Court also noticed the fact that the termination of the respondent was based on a show- cause notice issued on 5-7-1999 which was replied to by the respondent on 17-7-1999 and the termination was made in a summary procedure permissible under Rule 90(b) of the Service Regulations. The Industrial Court after perusing the pleadings and the notice issued to the respondent came to the conclusion that the alleged misrepresentation which is now said to be a fraud was not specifically pleaded or proved. In the show-cause notice, no basis was laid to show what is the nature of fraud that was being attributed to the appellant. No particulars of the alleged fraud were given and the said pleadings did not even contain any allegation as to how the appellant was responsible for sending the so-called fraudulent proposal or what role he had to play in such proposal being sent. No particulars of the alleged fraud were given and the said pleadings did not even contain any allegation as to how the appellant was responsible for sending the so-called fraudulent proposal or what role he had to play in such proposal being sent. It also noticed from the evidence of Mr Waghmare, Social Welfare Officer who sent the proposal before the Labour Court that he did not utter a single word as to whether the said supplementary list was ever called for by the department concerned or not. Thus applying the basic principle of rule of evidence which requires a party alleging fraud to give particulars of the fraud and having found no such particulars, the Industrial Court came to the conclusion that the respondent could not be held guilty of fraud. The said finding of the Industrial Court has been accepted by the High Court. Mr. Bhasme though contended that the fraud in question was played in collusion with the Social Welfare Officer and 2 other employees of the Board and action against the said 2 employees of the Board has been taken, but by that itself we are unable to accept the argument of Mr. Bhasme that there is material to support the contention of the Board that the appellant had also contributed to making the misrepresentation at the time of applying for the job with the Board. In the absence of any such particulars being mentioned in the show- cause notice or at the trial, attributing some overt act to the respondent, we do not think the Board can infer that the respondent had a role to play in sending a fraudulent list solely on the basis of the presumption that since the respondent got a job by the said proposal, the said list is a fraudulent one. It was the duty of the Board to have specifically produced the material to prove that the respondent himself had the knowledge of such a fraud and he knowingly or in collusion with other officials indulged in this fraud. Since there is no such material on record, on the facts of the instant case, the Industrial Court and the High Court have come to the right conclusion that the alleged fraud has not been established by the appellants, hence, this is not a fit case in which interference is called for. Since there is no such material on record, on the facts of the instant case, the Industrial Court and the High Court have come to the right conclusion that the alleged fraud has not been established by the appellants, hence, this is not a fit case in which interference is called for. This appeal, therefore, fails and the same is dismissed.” (emphasis supplied) 21. In view of above the only exception in matters of such appointment is where incumbent himself is found guilty or part of conspiracy as may be alleged by the department in getting selection and appointment however, where it is all done by management and beneficiary of selection has not been responsible, such harsh action should not be taken after more than ten years of regular service. 22. In view of above, writ petition succeeds and is allowed. The order dated 25.4.2023 passed by Joint Director of Education (Secondary Education) Azamgarh Region, Azamgarh as well as order dated 14.7.2023 passed by District Inspector of Schools, Azamgarh are hereby quashed. Respondents are directed to pass order afresh in the light of observations made hereinabove. Appropriate order shall be passed within thirty days from the date of certified copy of this order. 23. Thus this petition stands allowed in above terms with no order as to cost.