Case :- WRIT - A No. - 23283 of 2015
Reserved on -15.11.2019 Delivered on – 29.11.2019
Petitioner :- Jagveer Singh Respondent :- State Of U.P. And 3 Ors.
Counsel for Petitioner :- J.K. Srivastava,Manoj Kumar Srivastava Counsel for Respondent :- C.S.C.
Hon'ble Saurabh Shyam Shamshery,J.
1. This writ petition has been filed, inter alia, for the following reliefs :-
(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 12.9.2014, passed by respondent No.3 (Annexure No.11 to the writ petition).
(ii) Issue a writ, order or direction in the nature of mandamus, commanding the respondent Nos.3 and 4 to pay the arrears of salary to the petitioner w.e.f. 17.9.1996 to 10.5.2012 for the post of Assistant Teacher L.T. Grade.
2. The factual matrix of the present case is as follows;
(A) Chaharwati Inter College, Agra, is a duly recognized as an aided College. One Fauran Singh, who was working as permanent lecturer in Sanskrit, died on 23.2.1996, on account of his death a post of Lecturer in Sanskrit became substantively vacant. Thereafter, the Committee of Management passed a resolution dated 17.3.1996, for giving ad-hoc promotion to one Sri Yogendra Kumar Lavaniya, who was working as a permanent teacher in L.T. Grade. The resolution was forwarded to District Inspector of Schools, Agra, for approval.
(B) On account of ad-hoc promotion of Sri Yogendra Kumar Lavaniya, a short term vacancy of L.T. Grade was arose and in order to fill up the said short term vacancy, process of direct recruitment was initiated in accordance with procedure prescribed in U.P. Secondary Education Service Commission (Removal of Difficulties) (II) Order, 1981. Accordingly the said vacancy was advertised in two daily newspapers.
(C) The Selection Committee recommended the name of the petitioner who participated in the process, for appointment on 25.8.1996, which was accepted by the committee of management vide resolution dated 30.8.1996 and the matter was forwarded to District Inspector of Schools Agra for approval. Meanwhile the appointment letter was issued to the petitioner and the petitioner joined services on 9.9.1996.
(D) The Yogendra Kumar Lavaniya, along with one Shri Manveer Singh, approached this Court by way of filling writ petition No.28579 of 1996, as no order was passed by the District Inspector of Schools Agra, for approval to his ad-hoc promotion. The said writ petition was disposed of vide order dated 30.3.1998, with the direction to District Inspector of Schools to decide the representation made by Yogendra Kumar Lavaniya, as well as to decide the following issues:
(1) whether the petitioner no. 1 (Yogendra Kumar Lawania) was eligible and qualified for promotion to the post of Lecturer in Sanskrit on the date when the vacancy came into existence.
(2) Whether the committee of management has taken steps to fill up the short term vacancy after following the proper procedure prescribed under the U.P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order, 1981 and keeping in view the decision of Full Bench in Radha Raizada vs. Committee of Management, Vidhyawati Darbari Girls Inter College & others, (1994) 3 U.P.L.B.E.C. 155."
(E) The District Inspector of Schools considered the matter and passed an order dated 7.8.1998, according approval to the ad-hoc promotion of Yogendra Kumar Lavaniya on the post of Lecture in Sanskrit as well as the appointment of Sri Manveer Singh, on the short term vacancy as L.T. Grade teacher.
(F) These circumstances led the petitioner to file a representation dated 10.8.1998, ventilating his grievance that District Inspector of Schools had not granted approval to his ad-hoc promotion since 10.9.1996. The petitioner also approached this Court by way of filling writ petition No.19669 of 1998, which was disposed of vide order dated 29.5.1998, directing the District Inspector of Schools to decide the issue of granting of financial approval in respect of the petitioner’s appointment in accordance with law.
(G) Meanwhile the District Inspector of Schools, Agra, vide order dated 25.2.1999, held that the appointment of Manveer Singh, on short term vacancy in L.T. Grade was not in accordance with the procedure prescribed by Second Removal of Difficulties Order and accordingly held it to be invalid. It appears that the said order has attained finality. The petitioner in pursuance of order dated 29.5.1998, filed a representation dated 10.8.1998 before the District Inspector of Schools, and the same was decided vide order dated 20.10.2004, whereby the appointment of the petitioner was held to be illegal on the ground that the same was made without prior approval of the District Inspector of Schools. It was further held that since the ad-hoc promotion of Yogendra Kumar Lavaniya, on the post of Lecturer in Sanskrit, was approved only on 25.7.1998, therefore, on 1.1.1996, when the petitioner was appointed, there was no vacancy in the L.T. Grade and as such the appointment of the petitioner was held to be illegal.
(H) The petitioner again approached this Court by way of filling writ Petition No.37 of 2005, and the said writ petition was allowed vide order dated 17.8.2005, by making following observations:
“Having heard the learned counsel for the parties. This Court is of the opinion that the appointment of the petitioner could be given effect to only after approval is granted by the District Inspector of Schools and pay is sanctioned. However, for the purpose of selection, documents, including the award of quality point marks etc. has to be asserted by the committee of Management for being forwarded to the District Inspector of Schools. The procedure adopted by the committee of Management before issuance of letter of appointment has not been faulted with. The papers have been sent to the Committee for being forwarded to the District Inspector of Schools for examining the approval. At the best appointment of the petitioner could be given effect to after approval was given by the competent authority. In view of this reasoning givenn in the impugned order that the prior approval had not been granted, cannot be sustained in the eyes of law as already explained above. Once the procedure of selection and appointment is held to be valid, the same could be given effect to after the approval is granted by the competent authority.
The writ petition succeeds and is allowed. The order dated 20.10.2004 is hereby quashed. The District Inspector of Schools Agra, respondent No.2 is directed to consider the case of the petitioner as proposed by the Committee of Management and proceed to pass a fresh order in accordance with law within six weeks for the date of production of a certified copy of this order before him.”
(I) In pursuance of the aforesaid order, the case of the petitioner was again considered by the District Inspector of Schools, after giving opportunity of hearing to the committee of management as well as the Principal and the petitioner. However, the appointment of the petitioner was again disapproved vide order dated 10.4.2006, on the ground that no prior approval was sought before making the advertisement and the appointment letter was issued to the petitioner on 1.9.1996, whereas the papers were forwarded to the District Inspector of Schools on 16.9.1996 as such, the appointment was de-hors the procedure prescribed in Second Removal of Difficulties Order.
(J) The petitioner again approached this Court by way of filling writ petition No.29349 of 2006, challenging the order dated 10.4.2006, and this Court vide order dated 18.1.2012, after considering the case in detail , allowed the writ petition with the following observations:
“A perusal of the impugned passed by the District Inspector of Schools goes to show that appointment of the petitioner has been disapproved on two grounds; (1) there was no prior approval before making the advertisement; and (2) the petitioner was issued appointment letter dated 1.9.1996 whereas the papers were forwarded subsequently on 16.9.1996. In so far as the issue no. (1) is concerned , the matter stands closed by decision of this Court in writ petition 37 of 2005 holding that the procedure adopted by the committee of management before issuance of letter of appointment cannot be faulted with, which means that entire procedure adopted by the committee of management right from the advertisement till the issuance of letter of appointment to the petitioner is in accordance with the prescribed procedure. Once this Court held that the committee of management proceeded in accordance with the prescribed procedure the District Inspector of Schools has no authority or jurisdiction to sit in appeal over the findings of this Court.
In so far as the issue no. (2) is concerned, the same also stands concluded by the judgment dated 17.8.2005 inter se between the parties. This Court clearly held that at best the appointment of the petitioner could be given effect to after approval was given by the competent authority and the reason for invalidating the appointment of the petitioner on this ground by the District Inspector of Schools in its earlier dated 20.10.2004 was not accepted by this Court and the same was quashed. Again the District Inspector of Schools has disapproved the appointment of the petitioner on the same ground.
The manner in which the District Inspector of Schools has proceeded to consider the case of the petitioner cannot be appreciated by this Court. Once his order invalidating the appointment of the petitioner on the grounds therein was quashed it was not open to him to disapprove the appointment again on the same grounds. As a matter of fact, the District Inspector of Schools has failed to understand the import of the judgment of this Court dated 17.8.2005 passed in writ petition no. 37 of 2005 and he has committed a grave illegality in disapproving the appointment of the petitioner again on the same grounds.
Needless to emphasis that principles of res judicata are applicable at different stages of the same proceedings. The two issues which have been redetermined by the District Inspector of Schools and on the basis whereof the appointment of the petitioner has been disapproved had already attained finality by the decision of this Court dated 17.8.2005 in writ petition no. 37 of 2005 and it was not open to the District Inspector of Schools to have virtually reopened and readjudicate the same. The judgment of this Court dated 17.8.2005 remanding the matter to the District Inspector of Schools for fresh adjudication attained the finality in respect of the issues already decided therein and since they were not put in jeopardy any further they had a binding effect in between the parties and could not be reopened and redecided.
In view of the aforesaid facts and conclusion drawn, the impugned order dated 10.4.2006 passed by the District Inspector of Schools, Agra is not liable to be sustained and is hereby quashed. The District Inspector of Schools shall now proceed to consider the case of the petitioner for grant of approval afresh in accordance with law and in the light of observations made hereinabove. The entire exercise may be carried out within a period of six weeks from the date of production of a certified copy of this order before him.
The writ petition accordingly stands allowed.”
(emphasis supplied)
(K) In pursuance of the order dated 18.01.2012, the District Inspector of Schools again considered the case of the petitioner and vide order dated 10.5.2012, appointed the petitioner on the post of short term vacancy in L.T. Grade, which arose due to ad-hoc promotion of Sri Yogendra Kumar Lavaniya, till the regularization of Sri Yogendra Kumar Lavaniya or till the substantial vacancy arose. Thereafter, the petitioner submitted a representation dated 9.7.2012 to District Inspector of Schools and prayed that the petitioner was already working on the L.T. Grade teacher since 17.9.1996 and therefore, he requested that his salary for the period from 17.9.1996 to 10.5.2012, be granted to him, however representation remained undecided.
(L) The petitioner again approached this Court by way of filling writ petition No.35734 of 2013, and the same was disposed of vide order dated 5.7.2013. For ready reference the relevant part of the said order is quoted hereinafter;
“Heard the learned counsel for the petitioner and the learned Standing Counsel.
The petitioner has filed the present writ petition for payment of arrears of salary. In this regard, the petitioner has already made a representation, which is pending consideration before the authority concerned.
This writ petition is disposed of with a direction to the authority concerned to consider and decide the petitioner's representation by a reasoned and speaking order within three months from the date of production of a certified copy of this order.”
(M) In pursuance of the said order the petitioner again approached District Inspector of Schools by way of filling a representation, and the said representation was finally rejected vide order dated 12.9.2014, whereby it was held that the responsibility of payment under the Payment Of Salaries Of Teachers And Other Employees Act, 1971, would only from the date the appointment was considered by the State Government and in the present case the approval was granted only on 10.5.2012. Therefore, the Government is not responsible for the services undertaken by the petitioner from 1.9.1996, till the actual approval was granted to the petitioner on 10.5.2012. The District Inspector of Schools retreated that the management allowed the petitioner to join the services on 1.9.1996, even before the short term vacancy was available subsequently only on 25.7.1998.
(3) In these circumstances, the petitioner has approached this Court for the reliefs as mentioned above.
(4) Sri J.K. Srivastava, learned counsel for the petitioner submitted that the petitioner had approached many time before this Court and each time he got a favourable order. However, the District Inspector of Schools had not passed the correct order in regard to grant approval to the proposal of appointment to the petitioner and when the order for approval was passed on 10.5.2012, no cognizance was taken of the fact that he was in service since 9.9.1996, and therefore, the petitioner is entitled for arrears from 9.9.1996 to 10.5.2012. Learned counsel for the petitioner further submitted that in the impugned order only ground taken by the District Inspector of Schools was that the procedure prescribed by Second Removal of Difficulties Order was not correctly followed in the appointment of the petitioner, without considering that the said issue was already settled by this Court in earlier round of litigation.
(5) Per contra the learned Standing Counsel has relied upon the counter affidavit, filed by the respondent No.3, that the District Inspector of Schools sent a letter dated 7.2.2017 to the Authorised Controller/Principal of the institution and sought information regarding the contention of the petitioner about his rendering services from 9.9.1996 to 10.5.2012. In reply to the aforesaid letter which was communicated by the Principal/Authorised Controller, intimating that the petitioner had not worked in the institution since 1996 to 2012, a copy of the said reply dated 20.2.2017 is annexed as CA No.2 to the counter affidavit, wherein it is specifically mentioned that the petitioner has not worked in the institution from 1996 to 2012.
(6) The petitioner had filed a rejoinder affidavit and in reply to said submission, he has stated that the petitioner had worked from 1996 to 2012 and in support of his submission the petitioner had annexed annexure No.2 along with the rejoinder affidavit, attendance register of the institution as well as certain other documents in support of his submission.
(7) Heard the learned counsel for the parties and perused the records.
(8) Though, the letter dated 20.2.2017, the Principal/Authorized Controller of the institution had specifically stated that the petitioner had not worked from 1996 to 2012 in the institution. However, the documents annexed by the petitioner along with the rejoinder affidavit, prima facie shows that the petitioner had worked during that period. However, it is not evident from the records that whether the documents annexed by the petitioner are genuine or not.
(9) It is notable that this Court in the order dated 18.1.2012 passed in Writ A No.29349 of 2006, has specifically held that the two issues that the appointment of the petitioner was made in accordance with the procedure prescribed in the Second Removal of Difficulties Order as well as appointment of the petitioner could be given effect to after approval were finally decided. However, while granting the appointment to the petitioner under order dated 12.9.2014, the District Inspector of Schools had granted approval from the date the order was passed i.e. on 12.9.2014 and while passing the order he had not considered whether the petitioner was working from 1996 to 2012 or not. DIOS has mentioned that the appointment of the petitioner was granted on 1.9.1996, even before the short term vacancy was arose on 25.7.1998. The District Inspector of Schools has again committed the same error by reopening the issue that the procedure for appointment of the petitioner was not correct. The District Inspector of Schools ought to have considered whether the petitioner had worked from 1996 to 2012. It is to note that the petitioner is an active litigant who had approached this Court on many occasions to raise his grievances and certain orders were also passed. However, till date the all the grievances of the petitioner are not satisfied. Therefore, this writ petition is disposed of with the direction that the District Inspector of Schools, Agra, shall examine the issue whether petitioner has worked from 1996 to 2012, after considering the documents annexed by the petitioner in support of his service from 1996 to 2012, in case, the District Inspector of Schools come to the conclusion that the petitioner has actually worked for the said period, the District Inspector of Schools shall pass an appropriate order for granting arrears to the petitioner accordingly. The petitioner is directed to submit a representation along with all relevant document as well as record of the writ petition within 15 days from today before the DIOS.
(10) The said exercise shall be concluded within a period of 30 days from the date of receipt of a certified copy of this order along with the representation and entire record of this writ petition.
(11) The writ petition is, accordingly, disposed of.
Order Date :- 29.11.2019 A. Dewal (Saurabh Shyam Shamshery,J.)