JUDGMENT Sudhir Agarwal, J.
1. Both these writ petitions are connected involving common questions of facts and law and, therefore, as agreed and requested by learned Counsel for the parties, have been heard together and are being decided by this common judgement.
2. The Writ Petition No. 34111 of 2006 (hereinafter referred to as the "first writ petition") has been filed by Ram Niwas Singh (hereinafter referred to as the "First Petitioner") aggrieved by the order dated 15.06.2006 passed by the District Inspector of Schools, Ghaziabad (hereinafter referred to as the "DIOS") seeking a writ of certiorari for quashing the same.
3. The Writ Petition No. 46974 of 2006 (hereinafter referred to as the "Second writ petition") has been filed by Madan Pal Sharma (hereinafter referred to as the "Second Petitioner") aggrieved by the order dated 15.06.2006 passed by DIOS whereby he has declined to grant approval to the appointment of second petitioner on the post of Assistant Clerk in Sri Nehru Bharti Sadan Inter College, Babugarh, District Ghaziabad (hereinafter referred to as the "College"). He has also sought a writ of mandamus commanding the respondents to approve his appointment as Assistant Clerk w.e.f. 01.07.1983 and to pay salary accordingly.
4. The facts in brief, as set out in the first writ petition, are, that the first petitioner was appointed as Clerk in the College on 01.08.1979. However, he was terminated by the management vide order dated 07.05.1981 on the ground that he was unauthorisedly and without prior information to the Principal of the College, was absent from 16.04.1981 and despite information by registered letters dated 18.04.1981 and 28.04.1981 had not attended his duties. The said order of termination was issued by the Manager of the Committee of Management of the College pursuant to the resolution dated 06.05.1981 passed by the Committee of Management. Aggrieved by the order dated 07.05.1981 the first petitioner approached DIOS who informed the Manager of the College vide letter dated 28.08.1981 that without his (DIOS) prior approval, a class-III employee cannot be terminated but subsequently vide order dated 14.07.1982 approved termination of the petitioner. An appeal thereafter was preferred under Section 16(g) of U.P. Intermediate Education Act. 1921 (hereinafter referred to as the "Act, 1921") read with Regulations 31 and 44 of the Regulations framed under Act, 1921 before the Deputy Director of Education. Allahabad (hereinafter referred to as "DDE") which was allowed vide order dated 04.05.1983 and it was declared that the first petitioner shall be deemed to have continued in service. The management of the College did not challenge appellate order before any appropriate forum but preferred Original Suit No. 478 of 1983 seeking an injunction restraining the first petitioner from entering the premises of the College. The suit was dismissed by the trial court on 18.03.1983 whereagainst Civil Appeal No. 82 of 1988 was filed before the District Judge, Meerut. The appeal came up for hearing before VII Additional District Judge, Meerut, who vide judgement dated 22.02.1992, allowed the appeal and setting aside judgement of the trial court, remanded the matter to the trial court for deciding original suit afresh. In the meantime, despite several letters sent by DIOS, directing management to permit the first petitioner to work in the College, he was not allowed to join duty and consequently his salary was also not paid. Ultimately, the DIOS vide order dated 24.01.1991 directed the first petitioner to record his daily attendance at Deewan Inter College, Hapur, District Ghaziabad and obtain certificate of attendance from the Principal so that his salary may be paid. Consequently, the first petitioner started attending duties at Hapur. It appears that the second petitioner made a complaint to the State Government whereupon the State Government issued an order on 28.09.2003 directing Director of Education (Secondary), Allahabad to forthwith stop payment of salary to first petitioner, initiate disciplinary proceedings against the DDE for making illegal payment of salary and also to recover the payment already made to Sri Ram Nivvas Singh, first petitioner either from him or from DDE concerned. Pursuant to the State Government's direction the Director of Education sent letter dated 23.11.2004 requiring the Regional Joint Director of Education, Meerut to proceed as per the directions of the State Government. An order, in the result, was issued by the Joint Director of Education, Meerut on 10.01.2005 stopping payment of salary to Sri Ram Niwas Singh and also to recover the payment already made. The DIOS also issued similar direction to the Finance and Accounts Officer vide his order dated 25.01.2005. Aggrieved, the petitioner preferred Writ Petition No. 7485 of 2005 which was allowed by this Court vide judgement dated 28.11.2005 on the short ground that the impugned orders were issued without giving any opportunity of hearing to the petitioner. This Court, further, issued following directions:
Accordingly, the impugned orders dated 23.11.2004 and 25.01.2005 are quashed with liberty to the respondents to proceed in accordance with law. While proceeding to reconsider the matter, District Inspector of Schools shall examine as to whether he has power to attach the petitioner to some other Institution under Rules and Regulations. The petitioner is allowed and accordingly disposed of.
5. Pursuant to this Court's judgement dated 28.11.2005, DIOS has passed the impugned order which has been assailed in the writ petition.
6. Sri Madan Pal Sharma, (second petitioner) who has been allowed to be impleaded as respondent No. 6 in the first writ petition has filed counter affidavit stating that he was appointed as Assistant Clerk on 01.07.1983 in the College in the pay scale of Rs. 354-550 pursuant to the resolution dated 08.06.1983 passed by the Committee of Management of the College. He, therefore, claimed that since he is working on the post of Assistant Clerk in the College pursuant to the appointment letter dated 01.07.1983, he is entitled for payment of salary on the said post. So far as the first petitioner is concerned, it is said that though he (first petitioner) was appointed by the management on 01.08.1979 but the said appointment was pursuant to a forgery made in the order dated 11.06.1979 with respect to the approval of the proposal of appointment of first petitioner on the post of Assistant Clerk in the College. In fact, 11.06.1979 was an order with respect to transfer of one Sri Indra Pal Singh, Assistant Teacher from the College to R.R. Inter College, Ghaziabad passed in accordance with Regulations 56 and 59 of Chapter III of the Regulations framed under Act, 1921. In the said order an interpolation was made and a sentence was added to the effect that the appointment of Sri Ram Niwas Singh, Clerk is being approved. When the first petitioner was terminated and he made a complaint to DIOS, he vide letter dated 14.07.1982 (Annexure-CA-4 of respondent No. 6 in the first writ petition) informed the. first petitioner that his appointment in the College was wholly illegal since there was no sanctioned post of Assistant Clerk in the College and, therefore, his request cannot be considered. Subsequently, when the College was included in the grant in aid list w.e.f. 01.01.1983, the second petitioner was appointed on 01.07.1983 and the order passed by DDE on 04.07.1983 had no effect in law since the very appointment of the first petitioner was illegal and the second petitioner was already working on the post of Assistant Clerk pursuant to his appointment letter dated 01.07.1983. It is also said that since the first petitioner was already transferred to Deewan Inter College. Hapur. District Ghaziabad, he had no claim on the post of Assistant Clerk in the College and instead the second petitioner was entitled for payment of salary. It is further said that pursuant to this Court's order since the first petitioner himself got the matter decided by the DIOS, now he cannot challenge the order passed by the DIOS on the ground that it is, in effect, review of the order of DDE passed on 04.05.1983 and, therefore, is bad and liable to be set aside.
7. The Committee of Management, respondent No. 5 has also filed its counter affidavit stating that the College was initially a Junior High School and was upgraded as High School in the year, 1976. It was included in grant in aid for the purpose of payment of salary under the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as the "1971 Act") on 01.01.1983. The first petitioner was appointed as Assistant Clerk by the management on 01.08.1979, on probation, and the period of probation was extended on 01.08.1980. Thereafter, he was terminated by the management on 07.05.1981. Against his termination, he filed representation before DIOS which was rejected by him on 14.07.1982. Thereafter, it is said that the petitioner in collusion with some official in the office of DIOS committed a forgery in a transfer order dated 11.06.1979 pertaining to one Sri Indra Pal Singh who was transferred to R.R. Inter College, Pilakhua, District Gahzaibad and therein a sentence was added that his (Sri Ram Niwas Singh's) appointment is being approved by DIOS though it is evident that there was no sanctioned post in the institution and, therefore, there was no occasion for DIOS to grant such approval. Moreover, in 1979, approval of DIOS was not required under the Regulations for making appointment of a class-III employees in the College. That being so, the order dated 04.05.1983 which has been passed by DDE on first petitioner's representation taking into account the alleged approval dated 11.06.1979 is a nullity being a result of forgery and cannot confer any benefit upon him either for claiming right to continue on the post or for salary. It is further stated that Sri Madan Pal Sharma, the second petitioner was appointed as Assistant Clerk on 01.07.1983 and he is continuously discharging duties since then, therefore, is entitled for salary from the date of his appointment. It is further stated that against the order of DDE an original suit has been filed which is pending and, therefore, the writ petition is liable to be dismissed.
8. On behalf of respondents No. 1 to 4 counter affidavit has been filed which is sworn by Associate District Inspector of Schools, Ghaziabad. It is said that the order of the DIOS has been passed pursuant to the direction of this Court and after making inquiry into the matter in detail which reveals lot of forgery and illegality in the matter, disentitling both, the petitioners from getting salary from the State Exchequer and, therefore, the order passed by DIOS is absolutely correct and in accordance with law.
9. The first petitioner has filed rejoinder affidavit in respect to the counter affidavit filed on behalf of respondents No. 1 to 4 wherein the basic submission is that his termination was already set aside by DDE on 04.05.1983 and the said decision cannot be reopened after two decades. He, however, has relied upon on the approval of his appointment by the DIOS granted in 1979 and it has been said that he was duly appointed on 01.08.1978 as Junior Clerk with the approval of DIOS. The first petitioner, however, has not chosen to file any rejoinder affidavits to the counter affidavit filed on behalf of respondents No. 5 and 6 though copy thereof have been served upon the learned Counsel for the first petitioner on 28.08.2006.
10. The second writ petition has been filed by Sri Madan Pal Sharma (second petitioner) challenging the order dated 15.06.2006 whereby his appointment has been declined to be approved by DIOS. He has further sought a writ of mandamus directing the respondents for payment of salary w.e.f. 01.07.1983.
11. The brief facts, as have been disclosed in the second writ petition are that pursuant to the resolution dated 08.06.1983 passed by the Committee of Management, the second petitioner was appointed as Assistant Clerk in the College vide appointment letter dated 01.07.1983 and he joined the College on the same date and is working continuously since then. It is said that the DIOS has illegally refused approval of his appointment as a class-III employee and, therefore, the impugned order is liable to be set aside.
12. On behalf of respondents No. 1 to 4, in the second writ petition, a counter affidavit has been filed wherein it is stated that appointment of second petitioner was never approved by DIOS. It is further stated that the Committee of Management, as informed to the authorities, appointed second petitioner as a class-III employee and paid salary from its own sources as informed vide letter dated 18.06.2006 and, therefore, there was no liability of payment of salary to second petitioner from the State Exchequer.
13. On behalf of respondents No. 5 and 6 in the second writ petition, however, no counter affidavit has been filed but since the facts are similar, the learned Counsel for the parties have requested the Court to read pleadings of both the writ petitions together and decide the matter.
14. On behalf of first petitioner, Sri S.K. Mishra, learned Counsel has put in appearance and made submissions. On behalf of the official respondents learned Standing Counsel has appeared and on behalf of Sri Madan Pal Sharma, second petitioner, Sri H.N. Singh, learned Counsel has put in appearance and has made submissions.
15. I have heard learned Counsel for the parties and perused the record.
16. Though at the first flush the dispute involve in these two writ petitions appears to be quite simple and small but on deeper scrutiny it shows that the matter not only needs adjudication in the alleged fraud and manipulation but also certain orders passed by the authorities which are the outcome of the alleged forgery, manipulation and may be collusive. The entire attempt on the part of both the petitioners in the matter is to somehow or the other usurp public exchequer on the basis of an appointment which appears to have never been made validly and in accordance with law.
17. The College, initially was a Junior High School, though recognised, but not aided. The salary was being paid to the staff of the College by the management from its own sources. As is admitted by the parties, it was upgraded as High School in 1976 but at that time also it was not in grant in aid and, therefore, there was no responsibility of payment of salary with the State Government. Sri Ram Niwas Singh was appointed by the management of the College in 1979. The Committee of Management has specifically pleaded its case that there was no occasion to obtain approval from DIOS since neither it was required under the Regulations framed under Act, 1921 nor the institution being in grant in aid, even otherwise was obliged to seek any such approval and, therefore, the appointment was made by the management on its own. The first petitioner was also terminated by the management in 1981. His complaint with respect to illegal termination without approval of DIOS was examined by DIOS himself who rejected his representation on the ground that neither there was any sanctioned post in the College against which the first petitioner could have been appointed nor his appointment was even otherwise valid, and, therefore, the question of approval of his termination did not arise. However, it is not disputed that subsequently the first petitioner filed a representation which was treated to be an appeal by DDE and the same was allowed vide order dated 04.05.1983. The factum of passing of order dated 04.05.1983 by DDE is not disputed by any of the parties.
18. This would automatically leads to a question as to whether an order passed by an authority, which has not been set aside by the higher competent authority or by a Court of Law, whether call be ignored by not giving logical consequence and effect to such order. The answer would be in negative and the only exception would be if such an order has been obtained as a result of fraud or misrepresentation. Therefore, though it is true that the correctness of the order dated 04.05.1983 is not in dispute in both these writ petitions but in order to adjudicate as to whether the first petitioner is entitled to seek a writ of mandamus to the respondents for payment of salary to the petitioner based on the order dated 04.05.1983, it is to be seen that he is entitled for the same in law and this would necessarily result in considering the ancillary but necessary question as to whether the order dated 04.05.1983, the benefit whereof is being sought by the petitioner, was not a result of fraud or misrepresentation. The respondents have categorically pleaded that the petitioner obtained the said order on the basis of forgery made in an order dated 11.06.1979 said to have been passed by DIOS, and, therefore, the DDE has passed the said order on account of fraud and misrepresentation on the part of the petitioner. This is necessary, ancillary and incidental question which is arisen in this case and cannot be ignored. This Court under Article 226 of the Constitution of India is a Court of equity and justice and whenever it has come to its knowledge that some orders have been obtained or passed by the authorities as a result of fraud or misrepresentation, this Court may not give effect to such orders as it would amount to persisting illegality and this Court cannot be a party to that. Therefore, it is a matter of utmost importance to examine as to whether the order dated 04.05.1983 has been obtained by fraud or misrepresentation or not.
19. It is evident from record that the case of management was throughout that appointment of first petitioner was not approved by DIOS and on the contrary the first petitioner contended that there was no provision in 1978-79 either under the Act 1921 or in the regulations framed thereunder requiring approval of DIOS for appointment of a class-III and class-IV employee in a recognised institution and, therefore, his appointment was valid. The DDE also held so in its order dated 04.05.1983 that under the Act 1921 there was no provision requiring approval of DIOS for appointment of a class-III employee. That being so, the question of grant of approval by DIOS for appointment of Sri Ram Niwas Singh, the first petitioner could not have arisen. However, in the appeal dated 07.08.1982, which was submitted by the first petitioner to DDE, he claimed that his appointment was made on 01.08.1979 after due approval granted by DIOS, Ghaziabad but this was disputed by the management in its reply dated 25.09.1982. The DDE himself made inquiry in this matter and found that copy of the letter issued by DIOS on 11.06.1979, which allegedly mention about approval of appointment of first petitioner was not available in the office of DIOS. However, the copy of the letter dated 11.06.1979, which was available in the service record of Sri India Pal Singh. Assistant Teacher, in whose matter it was issued, did not contain anything about the alleged approval of appointment of first petitioner and it is only the copy of letter which was submitted by the first petitioner, Ram Niwas Singh which contained a line about his approval. The copy of the said letter has been placed before this Court as Annexure-2 and 3 to the second writ petition, Annexure-2 of the second writ petition is the copy of the letter which was available in the service record of Sri Indra Pal Singh, Assistant Teacher which did not mention anything about the alleged approval of first petitioner and Annexure-3 is the copy of the letter which is alleged to have been produced by the first petitioner in support of his contention that his appointment was approved by the DIOS. A bare reading of the contents of said letter it is evident that the same is issued in reference to Regulations 56 to 59. Chapter-III of the regulations framed under Act 1921 approving transfer of Sri Indra Pal Singh, Assistant Teacher from Sri Nehru Bharti Sadan Inter College, Babugarh, District Ghaziabad to R.R. Inter College. Ghaziabad. Regulations 56 to 59 are in respect to transfer of a teacher from one institution to another. The entire letter in fact has nothing to do with the alleged appointment of the first petitioner on a class-III post. In Annexure-3 to the second writ petition, in the end of the letter one line has been added stating that the appointment of Sri Ram Niwas Singh would be recognised w.e.f. the aforesaid date. For proper appreciation of both the letters it would be appropriate to reproduce the same and the difference in two letters is being shown in bold letters and underlined by the Court:
20. This Court has no doubt after going through the aforesaid letter that it was only with reference to Sri Indra Pal Singh, an Assistant Teacher sought to be transferred from one institution to another and the sentence with respect to alleged approval of appointment of petitioner, Ram Niwas Singh has been added subsequently by someone. Since beneficiary of the said addition is only the petitioner (Ram Niwas Singh), for he himself has relied on the said letter, therefore, this Court has no option but to draw an inference that the said manipulation has been made by the first petitioner or at his instance. Forgery in the letter dated 11.06.1979 has been noticed and admitted by the DDE also in his order dated 04.05.1983 as is evident from the following:
....Mujhe Khed Hai Ki Zila Vidyalay Nirikshak, Ghaziabad Ke Karyalaya Se Ek Hi Adesh Do Bhinna Bhinna Rupon Me Kis Prakar Nirgat Hua. Zila Vidyalay Nirikshak, Ghaziabad Ki Patrawali Me Mool Adesh Dinank 11-6-79 Hai Hi Nahin. Aisa Pratit Hota Hai Ki Is Zalsaji Me Unke Karyalaya Ke Kisi/Kinhi Karmchariyon Ka Hath Raha Hai....
21. However, he has not based his finding on the said letter on the ground that under the statute there was no provision for approval of DIOS for appointment of class-III employee in a recognised institution. That being so. and if the appointment could have been made without approval of DIOS, this Court fails to understand how the DDE could held that the termination without approval would be illegal particularly by relying on the amendment made in Regulation 31 vide Government Order dated 27.02.1988 since the said amendment is also subsequent to the date of termination of first petitioner who was terminated by the management on 07.05.1981. Since the order dated 04.05.1983 has not been challenged by the management or by anyone else aggrieved thereto, before this Court, therefore, this Court refrain itself from making any conclusive opinion or recording any finding on the correctness of the order dated 04.05.1983. Moreover, since it has been informed by the management that challenging the order dated 04.05.1983 they have already filed Original Suit No. 478 of 1983 which is pending, it is not proper at this stage to test the correctness of the said order since it is already sub-judice before the trial court. Though the first petitioner has placed reliance on the letter dated 11.06.1979 which was fabricated and tempered, since the DDE has not relied on the said letter for passing order dated 04.05.1983, therefore, even if it is found by the Court that the letter dated 11.06.1979 was forged and fabricated yet on that basis this Court has no occasion to pass any order which may adversely affect the order dated 04.05.1983 particularly when it is not challenged before the Court but an original suit is pending before the trial court.
22. The matter, however, does not rest here for the reason that the first petitioner has also sought a writ of certiorari for quashing the order dated 15.06.2006 whereby the DIOS has affirmed its earlier order of stopping payment of salary to the first petitioner who was sought to be transferred at Deewan Inter College, Hapur, District Ghaziabad and was being paid salary thereat. It is not disputed by learned Counsel for the parties that there is no provision for transfer of a class-III employee from one institution to another and, therefore, the first petitioner, even if he is right in saying that he was appointed in the College, could have claim salary for working thereat only and not for working at any other institution namely, Deewan Inter College, Hapur. District Ghaziabad and. therefore the State Government as well as the DIOS were right in stopping payment of salary of first petitioner at Deewan Inter College, Hapur, District Ghaziabad. The order of the DIOS impugned in the first writ petition, in so far as it affirms its order of stoppage of salary to first petitioner, therefore, cannot be faulted. Since, there is no further prayer in the writ petition, therefore, whether the first petitioner could have validly treated to have continued to work at the College at Babugarh needs no consideration in the first writ petition.
23. Now coming to the second writ petition, it is not disputed that there was only one post of class-III in the College. According to the management since the said post remain vacant for more than three months, therefore, the sanctioned post lapsed and in the result in the year 1979 and onwards there was no sanctioned post of class-III available in the College. The management claims to have made appointment either of Sri Ram Niwas Singh or of Sri Madan Pal Sharma on its own and has to pay salary from its own resources. That being so and more particularly, in the absence of any sanctioned post, salary under 1971 Act could not have been paid from the State Exchequer and if an employee was appointed by the management on its own, the remedy lie to such employee to claim salary from the such management by taking such remedy as available under law but for the said purpose writ petition would not be maintainable against the private party. In any case, even that right of the second petitioner would depend on the result of the original suit filed by the management challenging order dated 04.05.1983 of DDE and till the said matter is decided, even the second petitioner can to justify his appointment alleged to have been made by the management when the first petitioner was already appointed thereon, provided the order dated 04.05.1983 of the DDE is upheld in the original suit . Therefore, at this stage, I do not find any merit in the second writ petition also so far as it challenges the order dated 15.06.2006 passed by the DIOS to the extent it has declined to pass any order for payment of salary to second petitioner. The right to claim salary from the management would depend on the final outcome of the original suit.
24. In view of the aforesaid discussion, I do not find any merit in both these writ petitions. However, it is made clear that this order would not affect in any manner the pending Original Suit No. 478 of 1983 before the trial court and the rights of the parties to claim salary from the management would be governed by the decision of the trial court in the aforesaid case. In the result, both the writ petitions are dismissed. There shall be no order as to costs.