Judgment Reserved on 20.03.2018 Judgment Delivered on 24.04.2018
Case :- WRIT - A No. - 9024 of 1987 Petitioner :- Ram Badan Mishra Respondent :- State Of U.P. And Others.
Counsel for Petitioner :- K.M.Singh,Ajai Shankar,Ashok Khare,Shiddharth Khare,U.S.M.Tripathi Counsel for Respondent :- S.C.
Hon'ble Siddharth,J.
Heard Shri Siddharth Khare, learned counsel for the petitioner and Shri Harish Chandra Srivastava, learned Standing Counsel for the State-Respondents.
The petitioner has filed this writ petition praying for quashing of the order dated 13.2.1987 passed by respondent No.2, District Inspector of Schools, Deoria and a direction to the respondent No.2 to pay salary of the petitioner in C.T. Grade from January 1987 onwards.
The petitioner's case is that in the Institution known as janta Inter College, Sohasamathia, District Doria one Shri Narbdeshwar Pandey was working as Assistant Teacher in C.T. Grade on a permanent and substantive post of Game Teacher. He was promoted as lecturer in Psychology in January, 1984 and on the substantive vacancy occurring in C.T. Grade pursuant to his promotion, the petitioner was appointed as Games Teacher as per the resolution dated 29.7.1984 of the Committee of Management and he was given appointment letter dated 27.9.1984. The Committee of Management forwarded the papers of appointment of the petitioner for approval to the DIOS by its letter dated 7.12.1984 and the District Inspector of Schools vide order dated 6.4.1985 granted approval to the same. The petitioner was paid his salary from 29.7.1984 i.e. date of his appointment to December 1986. The petitioner's salary from January 1987 was stopped and therefore, he represented before the District Inspector of Schools, Deoria, on 21.2.1987, 20.3.1987 and 30.3.1987 and thereafter he made representations to the Committee of Management. The Committee of Management showed the petitioner copy of the letter dated 13.2.1987 issued by the District Inspector of Schools, Deoria to the Manager wherein it was stated that the petitioner Ram Badan Mishra and another teacher Mazibullah have produced photocopies of the approval letters of their appointment, which are fabricated and illegal. Therefore, the college was directed to send the names of the legally selected and approved teachers and employees for payment of salary to the office of District Inspector of Schools, failing which the joint account of the college shall be converted into single operation.
Against the impugned order dated 13.2.1987 the petitioner has approached this Court.
The respondents have filed their counter affidavit stating that Shri Narbdeshwar Pandey was Physical Training Instructor and was drawing salary in L.T. Grade. Since a new post of lecturer in Psychology was created by the Deputy Director of Education, Gorakhpur by his letter dated 15.4.1981, therefore, Shri Narbdeshwar Pandey was promoted to that post, but the post of Games Teacher, consequent to promotion of Shri Narbdeshwar Pandey, was cancelled. The Committee of Management passed resolution dated 29.10.1981 promoting Shri Narbdeshwar Pandey as Lecturer, Psychology against the newly created post of Lecturer and District Inspector of Schools granted financial approval to the same on 12.3.1982. Since there was no vacancy in C.T. Grade, there was no justification for the Committee of Management to pass any resolution to that effect. Further no resolution dated 29.4.1984 was received in the office of DIOS. Two earlier resolutions of the Committee of Management dated 20.3.1982 and 21.9.1982 were turned down by the DIOS on the ground that there was no vacancy in C.T. Grade. The appointment of the petitioner was never approved by the DIOS. The DIOS never issued any letter on 6.4.1985. On 7.2.1987 DIOS made an endorsement to the aforesaid order that it is a forged document. The petitioner got salary on the basis of forged document and as soon as it came to his notice, the DIOS stopped payment of salary of the petitioner. Since there was no post of C.T. Grade, therefore, no question of regular appointment on the same arises. There was no question of affording any opportunity of hearing to the petitioner prior to passing of the impugned order since he was never appointed and his services were never terminated. From the own record of the office of DIOS it was found that the disputed approval letter never issued in favour of the petitioner and therefore, no investigation was required. On the basis of forged approval he cannot claim any right and therefore, his writ petition deserves to be dismissed.
The petitioner has filed his rejoinder affidavit stating that Shri Narbdeshwar Pandey was initially appointed in C.T. Grade as Games Teacher as his qualification was Intermediate with training qualification i.e. C.P.Ed in Sessions 1969-1970 and subsequently he earned further higher qualification i.e. B.A. and was promoted in L.T. Grade in the Sessions 1975-1976 and he continued to teach C.T. Classes i.e. from 6th to 8th and withdrew the salary in L.T. Grade up to 1981. He completed his Post Graduation in M.A. in Psychology and was promoted in Lecturers Grade in 1982, but continued to teach lower classes of 6th to 8th as Physical Training Instructor, but was getting salary in L.T. Grade. Up to 1982 i.e., before promotion of Shri Narbdeshwar Pandey from L.T. Grade to Lecturers Grade, there was no clear vacancy in C.T. Grade, but when Shri Narbdeshwar Pandey was promoted from L.T. Grade to Lecturers Grade in 1982, a substantive vacancy in C.T. Grade occurred.
In the counter affidavit correct facts have not been mentioned. Annexure Nos.CA-1, 2 & 3 are with regards to vacancy in L.T. Grade which the management wanted to fill up by adhoc appointment of Shri Shirish Chandra Pandey, B.A., diploma in Education and the same was not in respect of post in C.T. Grade. Shri Narbdeshwar Pandey worked in C.T. Grade for more than 5 years as P.T. Teacher and was then promoted in L.T. Grade. Since the State Government issued a Government Order dated 29.12.1975 to recover excess of salary paid to five teachers of Deoria, including Shri Narbdeshwar Pandey, they were teaching in C.T. Grade and drawing salary in L.T. Grade, they filed Civil Misc. Writ Petition No.174 of 1976. A Division Bench of this court allowed the aforesaid writ petition vide order dated 1.1.1997. P.T. Subject is compulsory in classes 6th to 8th in several institution and the respondents have illegally asserted that there has never been any vacancy in C.T. Grade in this subject. There was substantive vacancy in C.T. Grade and the petitioner was rightly appointed on the same. The approval granted to his appointment was genuine and therefore, he was paid salary from 29.7.1984 to December 1986. His salary was illegally stopped. Impugned order dated 13.2.1987 has been passed by the DIOS without opportunity of hearing to the petitioner and therefore, it is arbitrary and violative of the principles of natural justice. In case a serious allegation of forging the document was made against the petitioner, he should have been granted opportunity of hearing before passing any order stopping his salary and cancelling approval of his appointment. Vide order dated 4.1.2016 the DIOS, Deoria was directed to produce original dispatch register and the relevant part, which contains dispatch of letter dated 6.4.1985. Thereafter learned Standing Counsel filed Supplementary Counter Affidavit dated 11.7.2016 annexing therewith photocopy of the relevant extract of the dispatch register. It was mentioned in the Supplementary Counter Affidavit that the dispatch register shows that the letter No.14/84-85 dated 6.4.1985 addressed to the Manager/Principal of the Janta Inter College, Sohasamathia, District Deoria (now district Kushi Nagar) is dispatched in the dispatch register in which in the column subject neither name of the petitioner shown nor the word “yojna” is mentioned in front of the said letters. It is mentioned therein that “C.T. Vetankram Me Vyayam Adhyapak Ki Tadarth Ki Asukriti Karne Ke Sambandh Me”. There is no mention in the letter regarding grant of financial approval to the appointment. It is clear that the DIOS, Deoria disapproved the request of the Committee for appointment of P.T. Teacher in the Institution, therefore, it is clear that the petitioner received the approval letter by manipulation and he wants to get payment of salary which is not in accordance with law. Thereafter, this Court again summoned the original record, which was produced before this Court and the existence of letter dated 30.7.1985, whereby appointment of the petitioner on the post of Physical Training Teacher was disapproved, was not found in the record.
Learned Standing Counsel informed that the letter appears to have been misplaced during transfer of record from Deoria to Kushi Nagar. Learned Standing Counsel prayed for a month's time to file Supplementary Counter Affidavit annexing therewith relevant part of dispatch register and accordingly, Supplementary Counter Affidavit dated 27th January was filed by the learned Standing Counsel, but it got misplaced and thereafter a duly attested copy of the same was brought on record by Shri Harish Chandra Srivastava, learned Standing Counsel. As Annexure SCA-1 they have brought on record a salary bill stating it to be attendance register. They have also filed a copy of the letter/order dated 15.4.1981 of the Deputy Director of Education, 7th Division, Gorakhpur to show that after the appointment on the newly created post of Lecturer in Psychology the post of L.T. Grade vacated by the teacher shall stand abolished. By means of Annexure SCA-3 the respondents have brought on record the relevant part of the dispatch register and Annexure SCA-4 is the copy of the letter dated 7.2.1987 of the DIOS, which states that the letter dated 30.7.1985 was issued by him disapproving the adhoc appointment made by the Committee of Management.
After considering the material on record and hearing the rival submissions, it is clear that a very serious allegation of forging the letter of approval dated 6.4.1985 has been made against the petitioner.
Photocopy of the approval letter dated 6.4.1985 has been filed as Annexure SCA-4 by the respondents, which bears the signature of Shri Ram Adhar Rao, the then District Inspector of Schools, Deoria. The proper course for the respondents would have been to get the signature of Shri Ram Adhar Rao confirmed from him. This could have been done only after giving the petitioner an opportunity of hearing regarding the alleged fabrication of the letter dated 6.4.1985 by him. The impugned order was passed without opportunity of hearing to the petitioner alleging fabrication of letter of approval of his appointment in the name of DIOS, Deoria.
Hence, the impugned order dated 13.2.1987 has been passed without hearing the petitioner and therefore, it is, hereby, quashed.
The respondents are at liberty to grant petitioner opportunity of hearing in a disciplinary inquiry and pass fresh order in accordance with law. Since the petitioner is working as per the interim order dated 18.5.1987 passed by this Court and getting salary, no further orders are required to be passed.
The writ petition stands allowed. No order as to costs.
Order Date :-24.4.2018 T. Sinha