Hon'ble Mahendra Dayal,J.
The present Special Appeal has been filed under Chapter VIII, Rule 5 of the Rules of the Court, against the judgment and order dated 8.9.2009, passed by the learned Single Judge, whereby the learned Single Judge dismissed Civil Misc. Writ Petition No.39546 of 1992 filed by the petitioner-appellant.
The institution-in-question namely, Jawahar Lal Nehru Kisan Intermediate College, Gauspur, district Basti (hereinafter referred to as "the institution-in-question") was earlier Junior High School. It was up-graded upto High School on 31.8.1981. The case of the petitioner- appellant as set up in the said Writ Petition is that the petitioner-appellant was appointed as an Assistant Teacher in C.T. grade for teaching Art; and that the selection of the petitioner-appellant was done by the Selection Committee and the papers were sent to the Committee of Management for its approval, and thereafter, as per the requirement of the relevant rules, the papers were sent to the District Basic Education Officer for his approval on 28.7.1981; and that the said papers in regard to the appointment of the petitioner-appellant were duly received in the Office of District Basic Education Officer, Basti on 28th July, 1981 itself; and that as the District Basic Education Officer, Basti failed to communicate his decision within 30 days from the date of receipt of the said papers, the appointment of the petitioner-appellant stood deemed approved in view of the provisions contained in Rule 10 of the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Services of Teachers) Rules, 1978 ( in short " the 1978 Rules") framed under the Uttar Pradesh Basic Education Act, 1972 ( in short " the 1972 Act"). It is further averred in the Writ Petition that on 1.10.1981, the District Basic Education Officer, along with the appointment of other teachers, duly approved the appointment of the petitioner-appellant. Copy of the said letter dated 1.10.1981 appears at page No.73 of the Paper Book of the Special Appeal. It is further averred in the Writ Petition that in pursuance of the said letter dated 1.10.1981, the petitioner-appellant reported for duty, and since then, the petitioner-appellant had been duly discharging his duly as an Assistant Teacher in C.T. Grade. It further appears that with effect from 1.4.1991, the institution-in-question came on grant-in-aid list, and the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (in short " the Salaries Act, 1971") became applicable. Inquiry in regard to the payment of salary to the teachers and non- teaching employees working in the institution-in-question was made. The Manager/Principal of the institution-in-question sent communication dated 4.10.1991 (appearing at page No.76 of the Paper Book of the Special Appeal) to the District Inspector of Schools, Basti, wherein the name of the petitioner-appellant was mentioned at serial No.13, as Assistant Teacher. The District Inspector of Schools, Basti sent a communication dated 5/6.3.1992 (appearing at page no.82 of the Paper Book of the Special Appeal) in regard to the teachers of the institution-in-question, who were to be paid salary under the Salaries Act, 1971 with effect from 1.4.1991.
Subsequently, it appears that the District Inspector of Schools, Basti, issued a notice dated 29.7.1992 to the petitioner-appellant, requiring the petitioner-appellant to show cause as to why his name be not removed from the list of teachers covered under the Salaries Act, 1971. It was, inter-alia, stated in the said notice that the approval letter dated 1.10.1981 was a forged letter and on the basis of the said forged approval letter, the petitioner-appellant succeeded in getting the payment of salary under the Salaries Act, 1971, which was not permissible. The said show cause notice dated 29.7.1992 appears at page No.97 of the Paper Book of the Special Appeal. The said show cause notice dated 29.7.1992 was subsequently modified by the communication dated 11.8.1992 ( appearing at page No.100 of the Paper Book of the Special Appeal).
The petitioner-appellant gave his reply to the said show cause notice, inter-alia, stating that the appointment of the petitioner-appellant had been approved by the District Basic Education Officer, Basti by the letter dated 1.10.1981, copy whereof would have been produced before the District Inspector of Schools, Basti by the Manager/ Principal of the institution-in-question, whereupon the District Inspector of Schools, Basti issued the said communication dated 6.3.1992 including the petitioner-appellant amongst the teachers to be paid salary under the Salaries Act, 1971. The petitioner-appellant submitted a further reply dated 29.8.1992 praying for payment of salary to him. The said reply dated 29.8.1992 appears at page No.112 of the Paper Book of the Special Appeal. The Manager and Principal of the institution-in-question also sent a communication dated 20.8.1992 (appearing at page No.108 of the Paper Book of the Special Appeal) to the District Inspector of Schools, Basti supporting the version of the petitioner-appellant.
The District Inspector of Schools, Basti heard the petitioner-appellant as well as the Principal of the institution-in-question. Thereafter, the District Inspector of Schools, Basti passed a detailed order dated 15.9.1992 (appearing at page No.114 of the Paper Book of the Special Appeal), inter-alia, concluding that the approval letter dated 1.10.1981 had been prepared in a forged manner, and the petitioner-appellant succeeded in getting his name included for payment of salary under the Salaries Act, 1971 by concealing the facts. Accordingly, the District Inspector of Schools, Basti cancelled the inclusion of the petitioner-appellant in the list of teachers for payment of salary under the Salaries Act, 1971.
The petitioner-appellant, thereafter, filed the aforesaid Civil Misc. Writ Petition No.39546 of 1992 before this Court, inter-alia praying for quashing the said order dated 15.9.1992 passed by the District Inspector of Schools, Basti. The learned Single Judge by the Judgment and Order dated 8.9.2009 dismissed the said Writ Petition filed by the petitioner-appellant. The petitioner-appellant has, thereafter, filed the present Special Appeal.
We have heard Shri Sanjiv Singh holding brief for Shri Z.A. Siddiqui, learned counsel for the petitioner-appellant and the learned Standing Counsel appearing for the Respondent Nos.1, 2 and 3, and perused the record.
It is submitted by Shri Sanjiv Singh holding brief for Shri Z.A. Siddiqui, learned counsel for the petitioner-appellant that the petitioner-appellant was appointed as C.T. Grade teacher in Art with effect from 1.1.1981 when the institution-in-question was Junior High School and the 1978 Rules were applicable to the institution-in-question.
It is further submitted that by the approval letter dated 1.10.1981, the District Basic Education Officer, Basti noted that the petitioner-appellant had been appointed with effect from 1.1.1981. The District Basic Education Officer, Basti also noted that in view of the communication dated 28.7.1981 sent by the institution-in-question regarding to the appointment of various teachers including the petitioner-appellant, approval would be deemed to have been granted on the expiry of 30 days. The District Basic Education Officer, Basti further observed that the appointment of the teachers, mentioned in the said letter dated 1.10.1981, was approved for probation period of one year with effect from the date of taking charge. It is further submitted by Shri Sanjiv Singh that in view of the said approval letter, the District Inspector of Schools, Basti by communication letter dated 5/6.3.1992 included the name of the petitioner-appellant amongst the teachers to whom payment was to be made under the Salaries Act, 1971.
Having included the name of the petitioner-appellant in the list of teachers for payment of salary under the Salaries Act, 1971, the submission proceeds, it was not open to the District Inspector of Schools to remove the name of the petitioner-appellant from such list.
It is further submitted that the District Inspector of Schools, Basti in passing the order dated 15.9.1992 was swayed by the fact that the father of the petitioner-appellant was District Basic Education Officer, Basti at the relevant time and in view of the said circumstance, the District Inspector of Schools, Basti assumed that the approval letter dated 1.10.1981, was a forged document.
In reply, the learned Standing Counsel appearing for the respondent Nos.1, 2 and 3 submits that before passing the order dated 15.9.1992, the District Inspector of Schools, Basti issued show-cause notice to the petitioner- appellant, whereupon the petitioner-appellant submitted his reply. The Manager and Principal of the institution-in-question also submitted reply. The District Inspector of Schools, Basti further gave opportunity of hearing to the petitioner-appellant as well as Dr. Krishna Prakash Pandey, Principal of the institution-in- question representing the Manager and Principal of the institution-in-question, and thereafter, passed the order dated 15.9.1992. It is submitted that the District Inspector of Schools, Basti has taken note of various circumstances including the circumstance that the father of the petitioner-appellant was the District Basic Education Officer, Basti at the relevant point of time, and after giving cogent reasons, has passed the said order dated 15.9.1992. Thus, the submission proceeds, the petitioner-appellant was given full opportunity of being heard before the said order dated 15.9.1992 was passed by the District Inspector of Schools, Basti. It is further submitted that the approval letter dated 1.10.1981 having been found to be a forged document, the District Inspector of Schools, Basti has rightly cancelled the inclusion of the name of the petitioner-appellant in the list of teachers for payment of salary under the Salaries Act, 1971.
We have considered the submissions made by the learned counsel for the parties.
The procedure for appointment of Assistant Teacher in Junior High School is provided in Rules 10 and 11 of the 1978 Rules. The said Rules are reproduced below:-
" 10. Procedure for selection- (1) The Selection Committee shall, after interviewing such candidates as appear before it on a date to be fixed by it in this behalf, of which due intimation shall be given to all the candidates, prepare a list containing as far as possible the names, in order of preference, of three candidates found to be suitable for appointment.
(2) The list prepared under clause (1), shall also contain particulars regarding the date of birth, academic qualifications and teaching experience of the candidates and shall be signed by all the members of the Selection Committee.
(3) The Selection Committee shall, as soon as possible, forward such list, together with the minutes of the proceedings of the Committee to the management.
(4) The Manager shall within one week from the date of receipt of the papers under clause (3) send a copy of the list to the District Basic Education Officer.
(5) (i) If the District Basic Education Officer is satisfied that-
(a) the candidates recommended by the Selection Committee possess the minimum qualifications prescribed for the post;
(b) the procedure laid down in the rules for the selection of Headmaster or assistant teacher, as the case may be, has been followed he shall accord approval to the recommendations made by the Selection Committee and shall communicate his decision to the management within two weeks from the date of receipt of the papers under clause (4).
In the present case, the petitioner-appellant has claimed that he was appointed on 1.1.1981. However, as emphasized by the learned Single Judge, no letter of appointment has been placed on record. As further emphasized by the learned Single Judge, no material has been placed on record as to when vacancy was advertised, how many candidates applied, who made the selection and in what manner the documents were sent and received with the office of District Basic Education Officer, Basti.
It is further noteworthy that conjoint reading of Rules 10 and 11 of the 1978 Rules shows that the Selection Committee, after following the procedure prescribed under clause (1) of Rule 10 of the 1978 Rules, is required to send the list prepared by it together with the minutes of its proceedings, to the Committee of Management as per clause (3) of the said Rule 10. Clause (4) of Rule 10 requires that the Manager, within one week of the receipt of the papers under clause (3) of Rule 10, shall send a copy of the list to the District Basic Education Officer. Clause (5) of Rule 10 contemplates approval by the District Basic Education Officer in respect of the recommendation made by the Selection Committee. In case, the District Basic Education Officer does not communicate his decision regarding approval within one month from the date of receipt of the papers under clause (4), he shall be deemed to have accorded approval to the recommendation made by the Selection Committee. Rule 11 provides that on receipt of communication of approval or as the case may be, on the expiry of the period of one month mentioned above, the Management shall proceed to make appointment in the order of preference laid down by the Selection Committee. Thus, it will be noticed that the occasion for making appointment under Rule 11 would arise only when the District Basic Education Officer communicates his approval or when the period of one month from the date of receipt of papers under clause (4) of Rule 10 expires and the approval is deemed to have been granted.
In the present case, it is own case of the petitioner-appellant in the Writ Petition, that the papers in regard to the appointment of the petitioner-appellant were sent to the District Basic Education Officer, Basti on 28.7.1981, and the same were received in the Office of District Basic Education Officer, Basti on 28.7.1981 itself.
In the circumstances, even if the approval by the District Basic Education Officer were deemed to have been granted, the appointment could only be made after expiry of 30 days from 28.7.1981. This shows that the story set-up by the petitioner-appellant regarding his appointment having been made with effect from 1.1.1981 was not correct.
Consequently, the approval letter dated 1.10.1981 was issued on incorrect assumption that the appointment of the petitioner-appellant had been made on 1.1.1981, as such, the approval letter was evidently of no consequence.
We may take note of one more aspect of the matter. As noted above, the institution-in-question was upgraded upto High School level with effect from 31.8.1981. On up-gradation of the institution-in-question, 5 L.T. Grade posts, and 8 C.T. Grade posts, total 13 posts, were created. The District Inspector of Schools, Basti issued a letter dated 1.1.1982, wherein the names of 11 teachers, who were adjusted against 11 posts, out of the said 13 posts, were mentioned. 2 posts out of the said 13 posts remained vacant. It is noteworthy that the name of the petitioner -appellant was not mentioned in the list of 11 teachers, who were adjusted against the 11 posts out of 13 posts. Had the petitioner-appellant been appointed on 1.1.1981 and had the approval letter dated 1.10.1981 been issued by the District Basic Education Officer, there would not have been any occasion for not including the name of the petitioner-appellant in the list of teachers contained in the letter of District Inspector of Schools, Basti dated 1.1.1982. This again shows that the story set-up by the petitioner-appellant regarding his appointment having been made with effect from 1.1.1981 and the approval letter having been issued by the District Basic Education Officer on 1.10.1981, was incorrect.
There is yet another aspect of the matter. The institution-in-question was upgraded with effect from 31.8.1981, and consequently, the provisions of the 1972 Act and the provisions of the 1978 Rules ceased to apply to the institution-in-question. With effect from the date of up-gradation, i.e., 31.8.1981, the institution-in-question came to be governed by the provisions of the U.P. Intermediate Education Act, 1921 and the Rules and Regulations framed thereunder.
In the circumstances, the District Basic Education Officer had no authority to issue any letter on 1.10.1981 in regard to the appointment of teaching staff of the institution-in-question. The approval letter dated 1.10.1981, if any, was evidently issued by the District Basic Education Officer without any authority in law.
In view of the above, it is evident that the approval letter dated 1.10.1981, if any, was wholly inconsequential and in-effective, and the same could not constitute the basis for including the name of the petitioner-appellant in the list of teachers for payment of salary under the Salaries Act, 1971.
Coming now to the submission made by Shri Sanjiv Singh holding brief for Shri Z.A.Siddiqui, learned counsel for the petitioner-appellant that the District Inspector of Schools, Basti in passing the order dated 15.9.1992 was swayed by the fact that the father of the petitioner-appellant was the District Basic Education Officer, Basti at the relevant point of time, we find that the District Inspector of Schools, Basti in the order dated 15th September, 1992 has referred to various circumstances including the circumstance that the father of the petitioner-appellant was the District Basic Education Officer at the relevant point of time, and on consideration of the entire circumstances, has concluded that the approval letter dated 1.10.1981 had been prepared in a forged manner.
In view of this, we are unable to accept the submission made by Shri Sanjiv Singh that the District Inspector of Schools, Basti was swayed by the fact that the father of the petitioner-appellant was the District Basic Education Officer, Basti at the relevant point of time. The District Inspector of Schools, Basti in the order dated 15.9.1992 has given cogent reasons after referring to various circumstances, and on the basis of such reasons, has concluded that the approval letter dated 1.10.1981 was prepared in a forged manner. No illegality or perversity or impropriety has been shown in the finding recorded by the District Inspector of Schools, Basti in the said order dated 15.9.1992.
As regards the submission made by Shri Sanjiv Singh, that inquiry ought to have been held in the matter, we find that the District Inspector of Schools, Basti gave show-cause notice to the petitioner-appellant on 29.7.1992, which was modified by the communication dated 11.8.1992. The petitioner-appellant submitted his reply to the said show-cause notice. The petitioner-appellant also submitted a further reply dated 29.8.1992. The Manager and Principal of the institution in question also submitted reply in the matter. The District Inspector of Schools, Basti gave opportunity of hearing to the petitioner-appellant as well as Dr. Krishna Prakash Pandey, Principal of the institution in question representing the Principal/ Manager of the institution in question. After considering the version of the petitioner-appellant in detail, the District Inspector of Schools, Basti passed the order dated 15.9.1992.
It will thus be noted that before passing the order dated 15.9.1992, the petitioner-appellant was given reasonable opportunity of being heard and there has not been any violation of the principles of natural justice. The order dated 15.9.1992 is a speaking and reasoned order. Thus, the enquiry in the matter was held by the District Inspector of Schools, Basti, wherein the petitioner-appellant was given opportunity of being heard.
In the circumstances, we are unable to accept the submission of Sanjiv Singh that an enquiry ought to have been held in the matter.
Shri Sanjiv Singh lastly submits that on equitable considerations, relief be granted to the petitioner-appellant.
Having considered the submission made by Shri Sanjiv Singh, we find ourselves unable to accept the same.
As noted above, the District Inspector of Schools, Basti in the order dated 15.9.1992 has concluded that the approval letter dated 1.10.1981 was prepared in a forged manner. Even otherwise, as held above, the approval letter dated 1.10.1981, if any, was inconsequential, ineffective and without any authority in law.
In the circumstances, no relief can be granted to the petitioner-appellant on equitable considerations. It is well-settled that one who comes to equity, must come with clean hands.
The learned Single Judge in the judgment and order dated 8.9.2009 has considered in detail various submissions made on behalf of the petitioner-appellant.
We agree with the reasons and conclusions of the learned Single Judge.
In view of the above discussion, we are of the opinion that the Special Appeal lacks merits and the same is liable to be dismissed.
The Special Appeal is, accordingly, dismissed.
However, on the facts and in the circumstances of the case, there will be no order as to costs.
Order Date :- 9.5.2012 SFH