JUDGMENT Vineet Saran, J.
1. Since, common questions arise in these two writ petitions filed by the same petitioner, they have been heard together and are being disposed of by a common order. Civil Misc. Writ Petition No. 22634 of 1992 shall be treated as the leading case.
2. Civil Misc. Writ Petition No. 22634 of 1992 has been filed with a prayer for quashing the order dated 1.6.1992 passed by the District Inspector of Schools whereby approval for the appointment of Prem Shanker Dixit, respondent No. 3, has been accorded with effect from 3.3.1985 and the claim of the petitioner for appointment on the said post has been rejected. A further prayer has been made for a direction to the respondents to treat the petitioner as ad-hoc Teacher in C.T./L.T. Grade. The other writ petition, being Civil Misc. Writ Petition No. 32435 of 1991, has been filed by the same petitioner Ram Pravesh Dubey with a prayer for a direction to pay him the salary as Assistant Teacher along with the arrears with effect from 26.4.1986 and also a direction to the District Inspector of Schools to accord financial approval to the appointment of the petitioner.
3. The facts in brief giving rise to these writ petitions are that on the death of one Sri Surya Nath Singh, an Assistant Teacher in Maninath Inter College, Deoria on 13.2.1984, a substantive vacancy arose of which due intimation was given by the Committee of Management to the District Inspector of Schools. Since no appointment had been made, the Committee of Management vide its resolution dated 3.3.1985 appointed Prem Shanker Dixit, respondent No. 3, as Assistant Teacher in the institution. The said respondent No. 3 Prem Shanker Dixit, was earlier working as Assistant Clerk in the institution. Subsequently, the Constitution of the Committee of Management changed and it is the case of the petitioner that the new Committee of Management cancelled the appointment of the respondent No. 3 Prem Shanker Dixit by its order dated 14.4.1986 and resolved to appoint the petitioner as ad-hoc Teacher in his place. The appointment letter in favour of the petitioner was issued on 22.4.1986 and it is alleged that the petitioner joined on the said post on 26.4.1986.
4. The petitioner Ram Pravesh Dubey, thereafter filed Writ Petition No. 32435 of 1991 in which an interim direction was issued on 17.2.1992 commanding the respondents to pay salary to the petitioner or to show cause. The District Inspector of Schools filed a counter-affidavit in this writ petition stating that the petitioner is not entitled for payment of salary as he was not validly appointed.
5. However, Prem Shanker Dixit, respondent No. 3, had been pursuing his claim for payment of salary claiming that he had been validly appointed by the Committee of Management on 3.3.1985. With such prayer, he had filed Writ Petition No. 18772 of 1990 which was disposed of vide order dated 25.7.1990 with a direction to the District Inspector of Schools to decide the claim of Prem Shanker Dixit (petitioner in the said writ petition and respondent No. 3 herein) within two months. The impugned order dated 1.6.1992 has been passed by the District Inspector of Schools in pursuance of such direction passed by this Court in Writ Petition No. 18772 of 1990. The said order has admittedly been passed by the District Inspector of Schools after hearing Ram Pravesh Dubey (petitioner herein), Prem Shanker Dixit (respondent No. 3 herein) as well as the Committee of Management.
6. I have heard Sri R.S. Misra, learned Counsel appearing for the petitioner; Learned Standing Counsel appearing for the State-respondents; Sri R.C. Dwivedi for the Committee of Management; and Sri Ravi Pratap, learned Counsel appearing for the contesting respondent No. 3 Prem Shanker Dixit and also perused the record including the impugned order.
7. Sri R.S. Misra, learned Counsel for the petitioner, has submitted that the said order of the District Inspector of Schools cannot be sustained as the same has been passed without considering the various documents which had been filed by the petitioner in support of his case. It has also been submitted that the claim of respondent No. 3 Prem Shanker Dixit cannot be accepted as he is continuing to get the salary as Assistant Clerk and not that of Assistant Teacher and as such, it cannot be accepted that he has been working on the post of Assistant Teacher in the institution.
8. Since, an objection had been raised by the learned Counsel for the petitioner that the papers submitted by the petitioner had not been considered by the District Inspector of Schools before passing the impugned order, this Court on 9.5.2003 passed the following order :--
"Learned Counsel for the petitioner has submitted that certain documents in support of his case had been filed before the District Inspector of Schools, list of which has been filed as Annexure-15 to the writ petition. In the impugned order the District Inspector of Schools has stated that no documents were filed in support of his case. In the present writ petition no counter-affidavit has been filed on behalf of respondent No. 1, D.I.O.S., Deoria. In the absence of the counter-affidavit on behalf of respondent No. 1, learned Standing Counsel has submitted that the original record pertaining to the case shall be placed before this Court on 11th July, 2003 on which date this matter will be placed for further hearing. By the next date the petitioner shall file reply to the supplementary counter affidavit filed by respondent No. 3."
In compliance thereof the original record of the office of the District Inspector of Schools was placed before me at the time of hearing.
9. The District Inspector of Schools has given a categorical finding that besides the letter of appointment dated 22.4.1986 issued by the Committee of Management, the petitioner has not produced any document to establish that he was validly appointed by the Committee of Management. It has been clearly stated in the impugned order that despite opportunity having been given to the petitioner to file the resolution of the Committee of Management appointing the petitioner or the certificate of the Principal of the Institution to establish that the petitioner was working as an Assistant Teacher in the institution, no such paper or document had been filed. The attendance register or the time table in accordance with which teaching assignment had been allotted to the petitioner had also not been filed despite the said documents having been asked for by the District Inspector of Schools. In such a situation the District Inspector of Schools cannot be said to have committed any illegality in arriving at a finding that the petitioner was never validly appointed. A perusal of the original record of the office of the District Inspector of Schools relating to this case clearly shows that no other document except the appointment letter dated 22.4.1986, had been filed by the petitioner in support of his case. Such being a finding of fact based on the record of the case cannot be interfered with in writ jurisdiction.
10. With regard to the challenge of the approval granted by the District Inspector of Schools to the appointment of Sri Prem Shanker Dixit, respondent No. 3, as Assistant Teacher of the institution with effect from 3.3.1985, the District Inspector of Schools has categorically stated in the impugned order that the resolution of the Committee of Management was placed on record as also the various letters which had been sent to the District Inspector of Schools in the years 1985, 1986, 1987, 1988 and 1989 for according the financial approval to such appointment of the respondent No. 3. However, since the C.T. Grade had been declared to be a dying cadre, it could not pass appropriate orders on such request made by the Committee of Management with regard to the grant of financial sanction for the appointment of respondent No. 3. It has also been stated that the appointment of respondent No. 3 has been made on a substantive vacancy and such appointment having been made as per the rules and with a proper resolution of the Committee of Management after intimation to the District Inspector of Schools could not be said to be wrong. Thus, on the basis of the papers submitted before the District Inspector of Schools, the approval was duly accorded to the appointment of the respondent No. 3 as Assistant Teacher with effect from 3.3.1985 i.e., the date of his appointment and joining.
11. Having heard learned Counsel for the parties and on perusal of the record, I do not find any infirmity for illegality in the order passed by the District Inspector of Schools. Learned Counsel for the petitioner has also not been able to point out any cogent ground for interference with such findings of the District Inspector of Schools.
12. As regards the submission of the learned Counsel for the petitioner that since the respondent No. 3 continued to be paid salary on the post Assistant Clerk, his appointment as Assistant Teacher, cannot be held to be valid, the explanation submitted by the learned Counsel for the respondent No. 3 is justified that his client had been agitating his claim before the concerned authorities, which fact has been duly accepted by the District Inspector of Schools in the impugned order. The respondent No. 3 had ultimately filed Writ Petition No. 18772 of 1990 in which directions had been issued in pursuance to which the impugned order has been passed on 1.6.1992, from which date the respondent No. 3 became entitled for payment of salary as Assistant Teacher and also the arrears. The said order itself was stayed by this Court in this writ petition vide interim order dated 19.6.1992. Sri Ravi Pratap, learned Counsel for the respondent No. 3 has, thus, submitted that in such a situation the respondent No. 3 could not be paid salary of Assistant Teacher and he continued to get the salary as Assistant Clerk although he worked as Assistant Teacher since 3.3.1985. It has also been submitted that the person appointed as Assistant Clerk in place of respondent No. 3 is continuing to work as Assistant Clerk but because of the interim order granted in this writ petition, he is also not getting the salary as Assistant Clerk because the respondent No. 3 is getting such salary. The respondent No. 3 cannot, thus, be deprived of his claim of his appointment as Assistant Teacher and payment of salary on such post merely on the ground that he has not been paid salary of such post till date. In my view, since the respondent No. 3 has already been held to be validly appointed as Assistant Teacher with effect from 3.3.1985 and principal as well as the Competent Authorities have also certified that the respondent No. 3 had been working as Assistant Teacher in the institution and the management had also been regularly requesting the authorities for the grant of financial approval right from the years 1985 to 1990, which fact is borne out from the record, the finding that the respondent No. 3 has been working as Assistant Teacher since the date of his appointment and is also entitled for payment of such salary, cannot be interfered with.
13. For the foregoing reasons Civil Misc. Writ Petition No. 22634 of 1992, being devoid of merits, deserves to be dismissed and is accordingly dismissed without there being any order as to cost.
14. Since, Writ Petition No. 22634 of 1992, filed by the petitioner for a direction to the District Inspector of Schools to treat him as Assistant Teacher in C.T./L.T. Grade has been dismissed being devoid of merits, the question of payment of salary to the petitioner as Assistant Teacher does not arise. Accordingly, Civil Misc. Writ Petition No. 32435 of 1991, is also dismissed. There shall be no orders as to cost.