Hon'ble Mrs. Sunita Agarwal,J.
The controversy involved in both these Special Appeals is common, as such both the appeals were heard together and are decided by common judgement.
The appellants have challenged the judgement and order dated 16.9.2013 passed by the learned Single Judge whereby writ petition no. 35802 of 1999(Rakesh Kumar Gupta Vs. District Basic Education Officer) connected with writ petition no. 37539 of 1999 (Uma Shankar Sharma Vs. District Basic Education Officer and another) were disposed off finally.
Brief facts giving rise to the special appeals are that Rakesh Kumar Gupta- respondent no.1 was appointed on the post of clerk on 29.8.1983 in Hindu Model Junior High School, Moradabad. He continued to serve as clerk till his services were terminated by the Management by an order dated 1.11.1985. Against the order of termination, he represented before the District Basic Education Officer, Moradabad, who by an order dated 19.11.1985 allowed the representation and declared his termination to be illegal and violate of the provisions of Rule 21 of Uttar Pradesh Recognised Basic Schools(Junior High Schools) (Recruitment and Conditions of Service of Ministerial Staff & Group 'D' Employees) Rules, 1984(hereinafter referred to as 1984 Rules). It was found that before terminating the services of the respondent no.1, prior approval was not taken from the District Basic Education Officer, Moradabad, in accordance with Rule 21 of the Rules 1984.
The respondent no.1 filed a Civil Suit No. 137 of 1988 for payment of salary. In the meantime, the institution came in grant- in -aid list of the State Government. The respondent no.1 came to know about the fact and submitted an application to the District Basic Education Officer, Moradabad on 30.3.1999 with a request to direct the Management to permit him to sign the attendance register. On the application, an order was passed by the District Basic Education Officer, Moradabad whereby a direction was given to the Manager of the Institution to allow him to join the institution and to submit a report. The Management did not comply with the order, as a result of which the respondent no.1 again approached the District Basic Education Officer, Moradabad, who by order dated 19.5.1999 directed the appellant-management to allow the respondent no.1 to resume his duty as a clerk. Since no action was taken , he filed Writ Petition no. 35802 of 1999 in this Court.
In the counter affidavit it was stated that respondent no.1 was appointed after interview on the application moved by him on a consolidated monthly salary for a period of one year, on probation. The services of the respondent no.1 had continued on probation. He was never confirmed on the post of clerk. The provisions of Rules 1984 were not applicable to the case of respondent no.1, as the Rules 1984 came into force after his appointment. Moreover respondent no.1 had not been appointed in accordance with the Rules 1984, and as such there was no question of termination of his services in accordance with the said Rules. No prior approval whatsoever was required. The District Basic Education Officer, Moradabad had no jurisdiction to pass order setting aside the termination of services of the respondent no.1. The respondent no.1 was not allowed to join the Institution as the order passed by the District Basic Education Officer, Moradabad was illegal. The respondent no.1 filed writ petition after a period of about 14 years. There was no explanation for approaching this court after a gap of 14 years.
It was further brought on record that after termination of the services of respondent no.1, the Committee of Management appointed Shri Uma Shankar Sharma on the post of clerk in the institution. He joined the institution on 1.1.1987 but no appointment letter was given to him and salary was being paid by the Committee of Management from its own fund. When the institution came in grant- in -aid list of the State Government, the name of Uma Shankar Sharma was not sent in the managerial return. He moved a representation dated 21.12.1998 before the competent authorities with a request to include his name for the purpose of payment of salary under the Payment of Salaries Act. The Regional Assistant Director of Education (Basic), XII Region, Moradabad passed an order dated 14.9.1999 directing the District Basic Education Officer, Moradabad to ask the management to include his name. It was found that the post of clerk was a sanctioned post and the name of Shri Sharma should have been included in the managerial return. The District Basis Education Officer, Moradabad thereafter by order dated 22.1.1999 directed the manager to forward the relevant papers for the purpose of payment of salary to Uma Shanker Sharma. Inspite of the said direction no action was taken by the manager. Aggrieved he filed writ petition no. 19819 of 1999. .
The writ petition was finally disposed off vide order dated 17.5.1995 with the direction to the District Basic Education Officer, Moradabad to decide his representation. The representation was rejected by an order dated 12.8.1999. Consequently, by an order dated 18.8.1999 the services of the Uma Shankar Sharma was terminated by the Committee of Management.
The writ petition no. 35539 of 1999 was filed by Uma Shankar Sharma before this Court wherein an interim relief was granted staying the operation of the orders dated 12.8.1989 and 18.8.1999. The writ petition filed by Uma Shankar Sharma and respondent no.1 were tagged together and decided by a common judgement dated 16.9.2013 passed by this Court giving rise to this appeal. Learned Single Judge has held that since the termination of services of respondent no.1 Rakesh Kumar Gupta in Special Appeal no. 1622 of 2013 was disapproved by District Basic Education Officer, Moradabad vide order dated 19.11.1985, Rakesh Kumar Gupta was entitled for payment of salary from the State exchequer from the date on which institution came in grant- in -aid list of the State Government. It was directed that he will be treated to be in continuous service of institution from the date of his appointment till the date he joins. For the remaining period i.e. from date of termination till the date the institution came in grant- in -aid list of the State Government, the management was held liable to pay salary to Rakesh Kumar Gupta. The direction is to pay arrears of salary to Rakesh Kumar Gupta within a period of three months from the date of production of a certified copy of the order before the District Basic Education Officer. The appointment of Uma Shankar Sharma was held illegal in view of the order dated 19.11.1985 passed by the District Basic Education Officer.
As far as future appointment and continuity of Uma Shankar Sharma is concerned, it was directed that in case there exists any other vacancy in the institution,the case of Uma Shankar Sharma will be considered by the Committee of Management, which shall pass appropriate order accordingly.
Shri V.P. Rai, learned counsel for the appellant-management submits that learned Single Judge has ignored the fact that Rules 1984 came into force with effect from 19.1.1985. As per the Rules, the appointment on the post of clerk was to be made after advertisement of vacancy under Rule 13 of the Rules 1984 and on the recommendation of Selection Committee as per Rule 15; the constitution of Selection Committee has been provided Under Rule 14.The Management is the appointing authority as per Rule 16 and the procedure for confirmation has been provided under Rule 17.
Learned counsel for the appellant submits that respondent no.1 Rakesh Kumar Gupta has been appointed on the application moved by him without following the procedure, as Rules 1984 were not in existence on the date of appointment i.e. 29.8.1983. Moreover, he was paid consolidated salary, for the period he was on probation. His services were terminated on 1.11.1985, during the extended period of probation. There is no question of automatic confirmation of services of Rakesh Kumar Gupta as his appointment was not covered under the Rule 1984. In view thereof no prior approval was required for termination of services of respondent no.1 Rakesh Kumar Gupta by the Committee of Management-appellant.
Learned counsel further submits that learned Single Judge has failed to notice that the service of the respondent no. 1 was terminated on 1.11.1985. He kept silent even after the order dated 19.11.1995 passed by the District Basic Education Officer, Moradabad. As the said order was beyond jurisdiction of the District Basic Education Officer, Moradabad and hence it was not complied with by the appellant/Management. The respondent no.1 Rakesh Kumar Gupta filed representation after the institution came in grant- in -aid list of the State Government only in the year 1999. He did not pursue his case from 1985 till 1999 i.e. for about14 years. In view of the unexplained delay there was no occasion for the appellant to allow the respondent no.1 to join the institution. Even otherwise the appointment of Rakesh Kumar Gupta was not in accordance with law and no direction could be given for his reinstatement.
So far as the Uma Shankar Sharma is concerned, it is contended that he was appointed on the post of clerk, but his appointment was disapproved by the District Basic Education Officer, Moradabad and hence his services were terminated by the Committee of Management by an order dated 18.8.1999. Uma Shankar Sharma further continued to work as a clerk in the institution on the basis of interim order dated 2.9.1999 passed by this court. He has already been paid salary for the period he had worked in compliance of the interim order passed by this Court. The writ petition filed by Uma Shankar Sharma has wrongly been disposed of with the direction given by the learned Single Judge that the Management is liable to pay salary to Uma Shankar Sharma.
Learned counsel for the respondent no.1 Raj Kumar Khanna refuted the submission of the learned counsel for the appellant and submitted that learned Single Judge has passed the judgement and order dated 16.9.2013 after consideration of all the relevant aspect of the matter. There is no infirmity in the order passed by the learned Single Judge and thus both the appeals, shall be dismissed .
Having heard learned counsel for the parties and after perusal of the record, we find that the respondent no.1 was appointed in the institution on the post of clerk in the year 1983 on consolidated monthly salary. The appointment was made for a period of one year on probation. Respondent no.1 was appointed on an application moved by him on 15.7.1983. It is apparent from the appointment letter dated 29.8.1983 that the post in question was not advertised nor any Selection Committee was constituted for appointment. Respondent no.1 Rakesh Kumar Gupta was appointed by the Management on the application given by him as there were no rules for appointment on the post of clerk in the institution. The Rules 1984 came into force with effect from 19.1.1985 with prospective effect. No retrospective effect can be given to the said Rules and hence the same would have no effect on the appointment made on 29.8.1983.
So far as the termination of services of the respondent no.1 is concerned, no prior approval was required from the District Basic Education Officer, Moradabad for the reason that the services were not governed by the Rules 1984. Moreover respondent no.1 was never confirmed on the post of clerk. He was on probation from August 1983 till November 1985 when his services were terminated by the Management.
We also find it relevant it to note that the respondent no.1 did not raise any grievance from November 1985 till the year 1999 nor he was ever reinstated. In the year 1999, when the institution came in grant- in -aid list of the State Government, the respondent no.1 woke up from deep slumber and moved an application on 30.3.1999 for his reinstatement. The District Basic Education Officer, Moradabad erred in law directing the reinstatement of the respondent no.1 vide order dated 19.5.1999. The District Basic Education Officer, Moradabad has no authority in law to direct the Management appellant to permit the respondent no.1 to resume his duty as he had remained out of service for a period of about 14 years. The lack of any valid explanation for this long delay shows that respondent no.1 had abandoned his services. There was thus no justification for the District Basic Education Officer, Moradabad to pass orders dated 19.5.1999 on the application moved by the respondent no.1.
So far as Special appeal filed by Uma Shankar Sharma is concerned, it may be noted that he was appointed by the Committee of Management in the year 1987. He was working in the institution when it was brought into grant-in-aid list of the State Government. He further continued on the post of clerk on the basis of interim order passed by this court on 2.9.1999 in writ petition no. 37539 of 1999. The writ petition was filed with the prayer to quash the order dated 12.8.1999 passed by the District Basis Education Officer, Moradabad and consequential order dated 18.8.1999 passed by the management of the institution. By the order dated 12.8.1999, District Basic Education Officer, Moradabad had rejected the representation of Uma Shanker Sharma on the ground that post in question was not vacant since the question of continuance of Rakesh Kumar Gupta was subject matter of consideration in the civil suit filed by him. The record reveals that Civil Suit no. 137 of 1988 was filed by Rakesh Kumar Gupta in Forma Pauperis , for payment of salary. The termination order was not challenged and no relief had been sought for reinstatement. The suit was dismissed by the Court of Small Causes, Moradabad. The date of dismissal of the suit is not on record, however it is admitted by the respondent no. 1 that writ petition was filed by him after dismissal of the suit.
On the aforesaid discussion, we find that Shri Rakesh Kumar Gupta had lost his right to be allowed to join and for payment of salary when the institution came in grant-in-aid list as he remained out of employment and did not submit any valid explanation for a long time of 14 years in seeking relief against the order of termination and for his reinstatement. Learned Single Judge grossly erred in law in directing that he may be reinstated and the entire arrears of salary be paid to him by the Committee of Management. The finding, that the management had wrongfully prevented Shri Rakesh Kumar Gupta from working, is not supported by any material on record that he was willing to work and was agitating his rights. He had allowed his claim to be defeated on the unexplained delay of 14 years.
We further find that the reasoning given by learned Single Judge, that Shri Uma Shanker Sharma cannot be appointed against the same vacancy as there was no vacancy in law on which the appointment can be made, is also fallacious. His representation was wrongly rejected on the ground that the post in question was not vacant. He was working as Clerk in the institution when it was brought into grant-in-aid list of the State Government and his name was also directed to be included in the managerial return for payment of salary . His appointment was wrongly disapproved by the District Basic Education Officer. He has continued to serve in the institution as Clerk on the basis of interim order dated 2.9.1999 passed by this Court and he has been paid salary for the period he had worked. His claim was wrongly defeated by the representation made by Shri Rakesh Kumar Gupta, who had appeared after 14 years to claim appointment on the ground that his services were wrongly terminated on 1.11.1985 and the suit was pending For the aforesaid reasons both the Special Appeals are allowed and the judgement of learned Single Judge dated 16.9.2013 is set aside. Shri Uma Shanker Sharma will continue to serve as Clerk in the institution and will be paid his salary in accordance with the law.
Date :28.5.2014 Aks.