Court No. - 40
Case :- SPECIAL APPEAL No. - 978 of 2018 Appellant :- Kuber Nath Ram Respondent :- Dist. Inspector Of Schools And 4 Ors Counsel for Appellant :- Jitendra Nath Sharma,Pramod Kumar Singh Counsel for Respondent :- C.S.C.,Satyendra Kumar Pandey,Sita Ram Sharma
Hon'ble Amreshwar Pratap Sahi,J. Hon'ble Harsh Kumar,J.
Heard Shri Jitendra Nath Sharma, learned counsel for the appellant, Shri Sita Ram Sharma learned counsel for Committee of Management, respondent no.3 and learned Standing Counsel for respondents no.1, 2 and 5.
The appellant claims himself to have been appointed as a Class- IV employee on 1.7.1990 in an institution which is recognized and governed by the provisions of U.P. Intermediate Education Act, 1921 and Regulations framed thereunder. It is admitted that the appellant's father retired on 30.6.1990 and appellant claims to have been appointed on 1.7.1990.
The dispute arose with regard to payment of salary to the appellant, who contends that after having been appointed he joined on the post but salary was not being paid as a result whereof he proceeded to make representations and also continued to work in the institution. On failure to receive any response, he filed the Writ Petition No.1956 of 1994 for a mandamus for payment of salary that has given rise to the present appeal.
In the said proceedings before the learned Single Judge the appellant had brought on record the letter of the Principal dated 26.9.1993 which was annexure-11 to the writ petition, wherein it was stated that the institution was earlier a Junior High School and there were four class-IV employees working in the said institution namely Keshav Prasad, Dharm Deo Yadav, Shivdas Yadav and Shiv Jatan Ram. The said letter indicated the retirement of Keshav Prasad, the father of appellant on 30.6.1990. In addition to the said information the letter also indicates that when the institution was upgraded as an Intermediate College, all the aforesaid class-IV posts stood included in the sanctioned strength of the upgraded institution. Thereafter according to the demand raised, two additional posts were sanctioned under the letter of Deputy Director of Secondary Education, Vth Division, Varanasi dated 7.2.1978 against which Swami Nath Ram and Ram Nayan Singh were appointed. Subsequently another post was created under the letter dated 21.6.1979 of Deputy Director of Secondary Education, Vth Division, Varanasi on which one Brahm Deo Yadav was appointed. Thus according to the said letter of the Principal there were 7 persons working against the said posts. On the strength of the said document a prayer was made for payment of salary on which directions were issued on 20.4.2012 for filing counter affidavit followed by the directions on 3.9.2012.
It further transpires that in relation to certain appointments through out the district of Ballia an inquiry was being monitored by the High Court in Writ Petition No.26307 of 2010, as a result whereof the learned single Judge on 10.9.2012 passed an order that the present writ petition may also be placed before the same Bench.
According to the learned counsel for the appellant pending such inquiry an F.I.R. was lodged in relation to the appointment in the institution and the appellant was also made an accused but on investigation final police report no.7 of 2005 dated 7.1.2005 was filed that no offence was made out against the appellant keeping in view the allegations made against him about forged and fake appointment. This fact was brought to the notice of the Court.
An office memorandum was issued by the Director of Education on 18.12.2015. The State Government through the Principal Secretary, Secondary Education after taking notice of all these facts that appellant's appointment was not made in accordance with the Selection process as prescribed under 1921 Act and regulations framed thereunder, observed the then Principal who had made appointment of the appellant, was guilty. It further transpires from the record that after the writ petition was filed and orders were issued for filing of affidavit, an affidavit of compliance was filed by the then District Inspector of Schools Shri Shiv Poojan Dwivedi on 10.9.2012. The said affidavit is on record. In relation to the exact sanctioned strength of the employees of the institution including that of class-IV employees, a categorical statement was made in paragraph 4 that the sanctioned strength of class-IV employees in the institution is only 4. In paragraph 8 it has been categorically stated that the 4 class IV employees working against the sanctioned posts are Shiv Jatan Ram, Smt. Sharda Devi, Madan Yadav and Mohan Ram.
With the aforesaid compliance affidavit, annexure-2 was filed the strength sanctioned in the institution and according to learned counsel for appellant the sanctioned strength of Class IV employees according to the pay bill was 4, but on the basis of the financial survey the strength was 7. The appellant filed a reply to the aforesaid compliance affidavit which is dated 9.12.2012. While giving reply to paragraph 8 of the compliance affidavit, the appellant has asserted in paragraph 7 that the contents of paragraph 8 of the compliance affidavit need no comments being matter of record. It is thus clear that the appellant did not dispute the correctness of the contents of paragraph 8 of the compliance affidavit which categorically indicated the sanction of only 4 posts and with the names of 4 persons who were working against the said posts referred to hereinabove.
A counter affidavit by the Principal Secretary was filed in the year 2015 and again in paragraphs no.11 and 12 of the said affidavit dated 19.12.2015 the Principal Secretary reiterated the fact of sanction of only 4 posts. Admittedly, no rejoinder affidavit to the said counter affidavit was filed.
The learned single Judge after having traversed the facts and having noted the filing of the counter affidavit came to the conclusion that the Court was not inclined to grant any adjournment for filing rejoinder affidavit any further and also passed comments in relation to non-availability of assistance in this regard.
Learned counsel for the appellant submits that the learned single Judge has committed an error in proceeding to believe the contents of the compliance affidavit and the counter affidavit in respect of number of sanctioned posts completely ignoring the contents of the letter of the Principal of the institution that was brought on record through the writ petition as annexure no.11 thereto where the details of 7 sanctioned posts have been given. In this view of the matter learned counsel for the appellant contends that the appellant's appointment was against a sanctioned post that was held earlier by his father and consequently the appellant should be presumed to have been appointed against the surviving sanctioned post. If any appointment had been made beyond the sanctioned strength of 4 posts, then the appellant's appointment cannot be anulled and it is only those persons who had been appointed against extra posts, they have to be moved out. Consequently, the learned single Judge having not noticed this aspect of the matter, the impugned judgment deserves to be set aside.
Learned counsel further submits that as a matter of fact in this case an advertisement was made on the notice board and the names were summoned from the employment exchange whereafter the appellant was selected. In such circumstances the conclusion drawn by the learned single Judge is incorrect and therefore, the appellant deserves a relief, as prayed for in the writ petition.
We have considered the submissions raised and we find that post against which the appellant claims to have been appointed was held by his father who retired on 30.6.1990. The appellant was appointed immediately thereafter on 1.7.1990. Such an appointment letter appears to have been issued by the Principal of the institution on 30.6.1990 itself even before the incumbent had retired that would be in the midnight of the said date. It was virtually a succession of the appellant to the post of his father. Apart from this the appointment of the appellant does not appear to have been granted approval keeping in view the fact that there was a dispute with regard to the number of sanctioned posts.
In this regard, as noted above if the petitioner had come up with the case of 7 posts having been sanctioned and same had been refuted by the compliance affidavit and the counter affidavit filed by the Principal Secretary. In absence of any material to controvert the said affidavits, the averments contained in the writ petition on the strength of the letter of the Principal will not amount to substantiating the claim of sanction of 7 posts. The appellant could have brought on record any material with regard to sanction of 4 posts as against that held by 4 employees at the level of Junior High School but there was no such material on record. The appellant instead of controverting paragraph 8 of the compliance affidavit, acquiesced to it by his reply that it did not need any comment as it was a matter of record. The reply of the Principal Secretary that there were only 4 sanctioned posts was not controverted by filing any rejoinder affidavit. The compliance affidavit had been filed way back in the year 2012 to which the reply has been filed by the appellant- petitioner without controverting the aforesaid allegations.
In this view of the matter the conclusion drawn by learned single Judge does not appear to be suffering from any infirmity.
We do not find any merit in the appeal, which is accordingly dismissed.
Order Date :- 26.10.2018 Kpy/vs