Court No. - 34
Case :- WRIT - A No. - 29447 of 1995
Petitioner :- Raj Kishore Singh
Respondent :- The District Inspector Of Schools And Another Counsel for Petitioner :- Khalil Ahmad Ansari,R.S. Sharma Counsel for Respondent :- S.C.
Hon'ble Sudhir Agarwal,J.
1. Heard Sri Khalil Ahmad Ansari, learned counsel for petitioner and learned Standing Counsel for State.
2. Petitioner is seeking mandamus commanding respondents to take decision on his representation for payment of regular salary including all arrears w.e.f. 01.09.1991 to him.
3. Facts, in brief, stated in writ petition is that Janta Inter College, Akniba District Jalaun (hereinafter referred to as "the college") is duly recognized and aided by State Government, hence, it is governed by the provisions of Intermediate Education Act, 1921 (hereinafter referred to as “Act, 1921”) and for the purpose of payment of salary, it is governed by Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as "1971 Act"). It is also not in dispute that for the purpose of recruitment of teaching staff of the college, it is governed by the provisions of Uttar Pradesh Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as "1982 Act").
4. It is stated that substantive vacancy in L.T. Grade Teacher occurred in the college which was notified to Secondary Education Service Commission but no recommendation was received. Thereafter, Management proceeded to fill in vacancy on ad-hoc basis, for which advertisement was made on 16.07.1991. In pursuance thereto petitioner applied and got selected on the said post in the meeting of Management held on 20.08.1991. Thereafter, appointment letter was issued to petitioner on 28.08.1991. Petitioner joined on the post in pursuance to appointment letter. Thereafter, documents were sent to District Inspector of Schools (hereinafter referred to as “D.I.O.S.”) for approval along with letter dated 20.08.1991. No decision was communicated by D.I.O.S. However, it is alleged that verbal direction of D.I.O.S., Manager issued an order dated 24.06.1992 directing petitioner not to enter the college from ensuing Educational Sessions i.e. commencing from 01.07.1992. The said order was challenged in Writ Petition No. 23086 of 1992 which was finally disposed of by judgment dated 04.12.1992 with direction to D.I.O.S. to dispose of representation of petitioner but no decision was taken on his representation.
5. It appears that thereafter, respondents decided representation of petitioner vide order dated 03.05.1997 which has been annexed as Annexure-1 to affidavit filed in support of amendment application dated 21.02.1998. By the said order, respondents have rejected representations of the petitioner dated 04.11.1995 and 03.05.1997.
6. In the impugned order, D.I.O.S. has recorded findings as under :-
“^^leh{kk izcU/kd] turk b.Vj dkyst] vduhok tkykSu us viuh vk[;k fnukad 3-5-97 }kjk fo|ky; eas fuEuor in Lohd`r crk;sA
1- twfu;j gkbZ Ldwy Lrj ij fo|ky; eas iz/kkukpk;Z lfgr 11 in
2- fo|ky; gkbZ Ldwy rFkk b.Vj ds :i eas mPphd`r gkus ds mijkUr ft0fo0fu0 fnukad 21-12-74 dks Lohd`r in 2 ,y-Vh-
2 lh-Vh-
3- ft0fo0 fu0 ds vkns'k fnukad 23-7-74 }kjk Lohd`r in 1 ,y-Vh-
4- mif'k{kk funs'kd >kalh e.My >kalh ds vkns'k fnukad 24-11-97 }kjk Lohd`r in
1 ,y0Vh0
2 izoDrk 5- mi f'k{kk funs'kd >kalh e.My >kalh ds vkns'k fnukad 9-12-81 }kjk Lohd`r in
1 izoDrk 6- mi f'k{kk funs'kd] >kalh e.My >kalh ds vkns'k fnukad 6-3-82 }kjk Lohd`r in
1 izoDrk 7- mi f'k{kk funs'kd >kalh e.My >kalh ds vkns'k fnukad 17-11-80 }kjk Lohd`r in 3 izoDrk 1 O;k;ke f'k{kd 8- f'k{kk funs'kd m0iz0 bykgkckn ds }kjk Iyku ds vUrxZr Lohd`r in 1 ,y-Vh- foKku @ xf.kr 1 ,y-Vh- tho foKku bl izdkj fo|ky; eas &&&&&&&&&&& dqy 27 &&&&&&&&&&& 1 iz/kkukpk;Z 26 v/;kidksa ds in Lohd`r crk;s x;s rFkk ftldh iqf"V gsrq rRdkyhu ftyk fo|ky; fujh{kd ds vkns'k fnukad 6-1-87 dh Nk;kizfr layXu dh gSA izkIr Lohd`r vkns'kksa dk voyksdu fd;k x;kA pwafd f'k{kk funs'kd m0iz0 bykgkckn }kjk vius i=kad 19812&18@90&91 }kjk turk b.Vj dkyst vduhok ds fy;s ,y-Vh- osrudze eas foKku xf.kr f'k{kd dk ,d in Lohd`r fd;k gS ftlesa fo|ky;
dh tu'kfDr fuEuor vafdr gS dh xbZ gSA iz/kkukpk;Z 01 izoDrk 06 ,y0Vh0 06 lh0Vh0 10 &&&&& dqy 23 &&&&& foHkkx dh tu'kfDr ds vuqlkj fo|ky; esa iz/kkukpk;Z lfgr v/;kidksa ds in 23 Lohd`r gaS ftueas iz/kkukpk;Z lfgr 23 v/;kid dk;Zjr gS oknh Jh jkt fd'kk sj fl ag dk dFku gS fd og fo|ky; e sa fnuk ad 1-9-91 l s dk;Zjr gS a tcfd foHkkx u s fnuk ad 31-8-91 l s fu;qDrk sa ij jk sd yxk j[kh FkhA foHkkx }kjk fo|ky; dh tu'kfDr iz/kkukpk;Z lfgr 23 v/;kid dh fu/kkZfjr dh tk pqdh Fkh rks izcU/kd }kjk blls vf/kd inksa ij fu;qfDr v/;kidksa dh ugha djuh pkfg;s Fkh ;fn izcU/kd u s fu;qfDr dh gS rk s tu'kfDr e sa l a'kk s/ku izcU/kd dk s foHkkx l s djkuk pkfg; s FkhA blfy;s izcU/kd }kjk dh x;h fu;qfDr fof/k laxr ugha gSA** “Review The Manager, Janta Inter College, Akneeva, Jalaun informed about following posts sanctioned in the college vide his report dated 03.05.97 :-
1. 11 posts including principal at Junior High School Level.
2. 02 posts of L.T. and 02 posts of C.T. sanctioned by D.I.O.S. On 21.12.74 after up-gradation of the school to High School and Inter College.
3. 01 post of L.T. sanctioned by the order of the D.I.O.S., Dated 23.07.74.
4. 01 post of L.T. and 02 posts of Lecturer sanctioned by the order of Deputy Director of of Education, Division-Jhansi, Jhansi, Dated 24.11.97.
5. 01 post of Lecturer sanction by the order of Deputy Director of Education, Division-Jhansi, Jhansi, Dated 09.12.81.
6. 01 post of Lecturer sanctioned by the order of Deputy Director of Education Division-Jhansi, Jhansi, Dated 06.03.82.
7. 03 posts of Lecturer and 01 post of Physical Teacher sanctioned by the order of Deputy Director of Education, Division-Jhansi, Jhansi, Dated 17.11.80.
8. 01 post of L.T. Science/Mathematics and 01 post of L.T. Biology sanctioned under the plan of Director of Education, Uttar Pradesh, Allahabad.
(Total 27 posts) Thus, 01 post of Principal and 26 posts of Teachers were informed as sanctioned and for verification of the same, photo copy of the order of District Inspector of Schools, Dated 06.01.87 has been enclosed herewith. The sanctioning orders received were perused. Since, one post of Teacher of Science/Mathematics has been sanctioned by the Director of Education, Allahabad vide his letter no. 19812-18/90-91 for Janta Inter College, Akneeva in the L.T. Pay Grade wherein strnegth of the college has been mentioned as follows :-
Principal 01 Lecturer 06 L.T. 06 C.T. 10 Total :- 23 As per the strength of department,23 posts of teachers including the Principal are sanctioned for the school, out of which 23 teachers including the Principal are working in school. The complainant Sri Raj Kishor Singh has stated that he has been working in the college since 01.09.91, while the department had put appointment on hold since since 31.08.91. When the strength of the college had been fixed by the department at 23 Teachers including Principal, appointment of teachers more than this should have not been done by the Manager. Even if the Manager had appointed, he should have got the strength amended by the department. Thus, appointment done by the Manager is not justifiable in the eyes of law.”
(English translation by the Court.)
7. It is thus apparent that appointment of the petitioner was not made against any substantive post. Moreover, on petitioner's own showing, he was allegedly appointed by Committee of Management as Assistant Teacher in L.T. Grade on adhoc basis without prior approval of the D.I.O.S.
8. From the averments contained in writ petition and appointment letter dated 28.08.1991, it appears that petitioner was appointed on adhoc basis in L.T. Grade against substantive vacancy, till regularly selected candidate from Commission was not available. Since, vacancy on which petitioner was appointed on adhoc basis, a substantive vacancy, procedure prescribed in Clause 5 of Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (First) Order, 1981 (hereinafter referred to as “First Order”) ought to have been followed. Clause 5 reads as under :
“5. Adhoc appointment by direct recruitment.- (1) Where any vacancy cannot be filled by promotion under paragraph 4, the same may be filled by direct recruitment in accordance with Clauses (2) to (5).
(2) The management, shall as soon as may be, inform the District Inspector of Schools about the details of the vacancy and such Inspector shall invite applications from the local Employment Exchange and also through public advertisement in at least two news papers having adequate circulation in Uttar Pradesh.
(3) Every application referred to in clause (2) shall be addressed to the District Inspector of Schools and shall be accompanied:
(a) by a crossed postal order worth ten rupees payable to such Inspector;
(b) by a self-addressed elvelope bearing postal stamp for purposes of registration.
(4) (a) The District Inspector of Schools shall cause the best candidates selected on the basis of quality points specified in Appeendix. The compilation of quality points may be done an remunerative basis by the retired Gazetted Government servants under the personal supervision of such Inspector.
(b) Where two or more candidates obtain equal quality points, the candidate obtaining higher percentage of marks in all examinations (High School, Intermediate, Graduate Degree and Post-Graduate Degree) essential for the particular grade, shall be placed higher and if such percentage is also equal, the candidate obtaining higher percentage of marks in the last essential examination of degree, as the case may be, shall be placed higher. In case percentage of marks in the last essential examination degree is also equal, the candidate senior in age shall be placed higher.
(5) If more than one teacher of the same subject or category is to be recruited for more than one institution, the names of the selected teachers and the names of the institutions shall be arranged in Hindi alphabetical order. The candidate whose name appears on the top of the list shall be allotted to the institution the name whereof appears on the top of the list of the institutions. This processes shall be repeated till both the lists are exhausted.
Explanation. - In relation to an institution imparting instruction to women the expression “District Inspector of Schools “ shall mean the “Regional Inspectress of Girls Schools..”
9. It is not stated anywhere that the said procedure was followed. Apex Court in Prabhat Kumar Sharma and others Vs. State of U.P. and others, (1996) 10 SCC 62 held that procedure laid down in Removal of Difficulties Order is mandatory and has to be observed in words and spirit. An appointment made inconsistent with the said procedure is void abinitio and will not confer either any right upon the incumbent to hold the post or to continue in service or to claim salary from State exchequer. The relevant observations made by the Apex Court in Prabhat Kumar Sharma (supra) is as under:
"Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees."
10. Again in para 11 of the judgment the Court held as under:
"Any appointment in violation thereof is void. As seen prior to the Amendment Act of 1982 the First 1981 Order envisages recruitment as per the procedure prescribed in para 5 thereof. It is an inbuilt procedure to avoid manipulation and nepotism in selection and appointment of the teachers by the Management to any posts in aided institution."
11. This decision has been followed and reiterated by the Apex Court in Shesh Mani Shukla Vs. District Inspector of Schools Deoria and others J.T. 2009 (10) SC 309 wherein the Apex Court has held as under:
"It is true that the appellant has worked for a long time. His appointment, however, being in contravention of the statutory provision was illegal, and, thus, void ab initio. If his appointment has not been granted approval by the statutory authority, no exception can be taken only because the appellant had worked for a long time. The same by itself, in our opinion, cannot form the basis for obtaining a writ of or in the nature of mandamus; as it is well known that for the said purpose, the writ petitioner must establish a legal right in himself and a corresponding legal duty in the State."
12. In the circumstances, it cannot be said that the appointment of petitioner was made validly. Therefore, he is not entitled to get salary from State exchequer.
13. Writ petition is dismissed accordingly.
14. Interim order, if any, stands vacated.
Order Date :- 26.4.2018/sailesh