1. Heard Mr. Y.K. Misra, learned Counsel for the petitioner, learned Standing Counsel and Dr. R.S. Pande, learned Counsel for the opposite parties Nos. 6, 7 and 8.
2. Writ Petition No. 2642 (SS) of 1999 has been filed by the petitioner against the order dated 8.10.1997 passed by the Joint Director, Secondary Education, IX Region, Faizabad (opposite party No.3), whereby financial approval to his appointment has been refused.
3. Writ Petition No. 5116 (SS) of 2007 has been filed by the petitioner against the order dated 30.7.2007, whereby a Committee consisting of the Joint Director, Secondary Education, IX Region, Faizabad, the Deputy Director, Secondary Education, IX Region, Faizabad and the District Inspector of Schools, Faizabad, rejected his representation for payment of salary in pursuance of the ad interim order dated 16.11.1999 passed by this Court in writ petition No. 2642 (SS) of 1999.
4. Since common question of law and facts are involved in both the above-captioned writ petitions, therefore, they are being decided by a common order.
5. According to the petitioner, Shrangi Rishi Chchattar Madhyamik Vidyalaya, Ishapur, Mahboobganj, Faizabad [hereinafter referred to as the "Institution"] was established as Junior High School in the year 1975. Thereafter, in the year 1984, the Institution was upgraded to High School Level with the recognition of the competent authorities of the Education Department. In the institution, initially the sanctioned strength of Class-IV employees was three against which the Principal of the Institution made appointments in accordance with the Act and the Rules.
6. Submission of the learned Counsel for the petitioner is that on institution being recognized as High School in the year 1984, the Principal of the Institution made appointment of the petitioner on the post of Daftari on 10.3.1991. In pursuance of the order dated 10.3.1991, the petitioner joined his duties as Daftari in the institution on 16.3.1991. Thereafter, vide order dated 21.4.1995, the Director, Secondary Education, IX Region, Faizabad, sanctioned ten posts, including one post of Daftari in the pay-scale of Rs.775-1025/-. In these backgrounds, submission of the learned Counsel is that since the appointment of the petitioner was properly made against the sanctioned post, therefore, the District Inspector of Schools, Faizabad, vide letter dated 24.1.1996, regularized the services of the petitioner against the sanctioned post of Daftari with effect from the date when the said post was created or sanctioned.
7. It has been stated by the petitioner that vide Government Order dated 8.2.1996, the institution along with other institution were taken in the list of grant-in-aid. Thereafter, bill for payment of salaries to the teaching and non-teaching staff of the institution w.e.f. 1.4.1996 in pursuance of the Government Order dated 8.2.1996 was sent to the District Inspector of Schools, Faizabad. In the meantime, one Sri Chchitta Bahal, who is said to be President of the Committee of Management of the Institution, made a complaint to the Joint Director, Secondary Education, IX Region, Faizabad, alleging therein that the creation of posts had been obtained by misrepresentation and producing forged documents, therefore, such creation of the posts are not in accordance with law.
8. According to the petitioner, on the basis of the said complaint, the Joint Director, Secondary Education, IX Region, Faizabad, vide order dated 8.10.1997, cancelled the order with regards to creation of posts and also refused to grant financial approval to the appointments made on the created post. Feeling aggrieved, the petitioner has approached this Court by filing writ petition No. 2642 (SS) of 1999 inter alia on the grounds that the impugned order dated 8.10.1997 has been passed without affording any opportunity of hearing to the petitioner as well as other staff of the institution.
9. While entertaining writ petition No. 2642 (S/S) of 1999, this Court, vide order dated 28.5.1999, as an interim measure, directed the respondents to decide the petitioner's representation.
10. In pursuance of the order dated 28.5.1999, a Committee comprising of the Joint Director, Secondary Education, IX Region, Faizabad, the Deputy Director, Secondary Education, IX Region, Faizabad and the District Inspector of Schools, Faizabad was constituted and after examining the pleas of the petitioner, rejected his representation for payment of salary vide order dated 30.07.2007, inter alia on the grounds that petitioner's appointment on the post of Daftari was absolutely illegal as the Committee of Management as well as District Inspector of Schools, Faizabad did not accept the plea of the petitioner with regards to his working on the post of Daftari, therefore, he was not entitled to the payment of his salary.
11. Feeling aggrieved by the order dated 30.7.2007, the petitioner has approached this Court by filing writ petition No. 5116 (SS) of 2007, inter alia on the grounds that the petitioner was appointed against the sanctioned posts and his appointment was duly approved by the competent authority i.e. the District Inspector of Schools, Faizabad.
12. Per contra, Dr. R.S. Pandey, learned Counsel appearing on behalf of the Committee of Management as well as private respondent No.8-Mahendra Dutt Pandey has submitted that the petitioner was neither appointed in the institution nor worked in the institution. The post of Daftari was not sanctioned on the date of alleged appointment of the petitioner in the year 1991. He further submitted that the post of Daftari in the institution is a promotional post and, therefore, one Mahendra Dutt Pandey, who was working as Class-IV in the institution, was promoted on the post of Daftari and is working on the post of Daftari.
13. Submission of Dr. Pandey is that father of the petitioner, namely, Krishna Kumar Misra, who was working as Accounts Officer in the office of District Inspector of Schools in the year 1995-96, misused his position and added the name of the petitioner in the list sent for approval in the year 1996 and got approval with regard to persons working in the institution after the institution was taken in the list of grant-in-aid. On the basis of addition of his name illegally in the list of employees working in the Institution, the petitioner tried to get his salary.
14. Further submission of Dr. Pandey is that the petitioner also got manufactured a forged letter of Shri Ram Kumar Verma, the then Principal of the Institution dated 7.3.2006, showing that he is working in the institution since 16.3.1991. When Shri Ram Kumar Verma, the then Principal of the Institution came to know about his letter dated 7.3.2006, he filed an affidavit along with covering letter informing the Joint Director of Education, Faizabad Mandal, Faizabad to the effect that he has not written any such letter as has been filed by the petitioner (Shri Shailedra Kumar Misra) and the petitioner has never been appointed on the post of Daftari nor he is working in the institution.
15. Dr Pandey, learned Counsel for the Committee of Management and private respondent has contended that in order to comply the ad interim order dated 28.5.1999 passed in writ petition No. 2642 (S/S) of 1999 with regards to deciding the petitioner's representation dated 30.7.2007, a Committee comprising of Joint Director of Education, the Director, Secondary Education, IX Region, Faizabad and District Inspector of School, Faizabad were constituted and on examining the pleas of the petitioner as well as going through the record, the Committee found that the allegations made by the petitioner with regard to the appointment and working in the institution are false and incorrect as the name of the petitioner has been illegally included in the list of members working in the institution at the time of its inclusion in the list of grant-in-aid. The Committee, after giving opportunity of hearing to all the parties concerned and receiving comments from the Institution as well as the District Inspector of Schools, Faizabad, rejected the representation made by the petitioner vide impugned order.
16. Lastly Dr. Pandey has submitted that Mahendra Dutt Pandey, who is respondent No.8 in writ petition No. 5116 (S/S) of 2007, was appointed on the post of Parichayk in 1982 and he was promoted on the post of Daftari in the year 1996 and since then, he is working on the post of Daftari. Therefore, the impugned orders rejecting the claim of the petitioner have rightly been passed by the respondents.
17. Learned Standing Counsel has submitted that on 16.3.1991 when the petitioner's claim to be engaged as Daftari, there was no sanctioned post of Daftari in the Institution as the same was sanctioned by the Director vide order dated 21.4.1995. Therefore, the claim of the petitioner that he was appointed on the post of Daftari on 16.3.1991 is illegal and is not sustainable in the eyes of law. He further submitted that the appointing authority i.e. Principal and the Manager of the Institution has accepted that the petitioner is not working in the College, therefore, he is not entitled for any payment from State exchequer after the Institution was taken on grant-in-aid list. The Regional Committee headed by Joint Director of Education, IX Region, Faizabad has rightly taken a decision for payment of salary only to those employees of the Institution who were duly appointed i.e. appointment was made against duly sanctioned/created post and further appointment was made after following procedure prescribed under law and, therefore, the writ petition deserves to be dismissed with cost.
18. I have heard the rival submissions of the learned Counsel for the parties and gone through the record.
19. The stand of the writ petitioner is that the institution was recognized as a High School in the year 1984 and on 10.3.1991, the Principal of the Institution had appointed the petitioner on the post of Daftari. In pursuance of the appointment letter dated 10.3.1991, the petitioner joined on the post of Daftari in the Institution on 16.3.1991. Whereas the stand of the State authorities as well as the Committee of Management of the Institution are that the petitioner has neither been appointed on the post of Daftari nor he has ever worked in the Institution. The then Principal has filed an affidavit along with covering letter informing the Joint Director of Education, Faizabad Division, Faizabad that he has not written any such letter as has been filed by the writ petitioner and the petitioner has never been appointed by him on the post of Daftari nor he is working in the Institution, therefore, the Regional Committee headed by Joint Director of Education, has rejected the claim of the petitioner for payment of salary.
20. It is relevant to add here that there is no quarrel of the fact between the parties that the post of Daftari in the institution is a promotional post and persons who are working on Class-IV post are to be given promotion on the post of Daftari in the institution.
21. From perusal of the pleadings and going through the submissions of the learned Counsel for the parties, one thing is clear that there is disputed question of fact viz. on one hand, the petitioner's claim to be appointed as Daftari in the institution on 16.3.1991 and on the other hand, Committee of Management as well as the State authorities have stated that the petitioner has neither been appointed on the post of Daftari on 16.3.1991 nor he has ever worked in the institution as on the alleged date of his appointment, there was no sanctioned post of Daftari in the Institution.
22. The questions whether the petitioner was appointed on the post of Daftari on 16.3.1991 or not; whether there was any sanctioned post of Daftari in the institution at the time when the petitioner was appointed or not; whether the alleged appointment of the petitioner on the post of Daftari in the institution was made by the then Principal of the Institution or not; and whether the then Principal has filed false affidavit before the Joint Director of Education, Faizabad denying the appointment letter ever issued by him appointing the petitioner in the Institution, are the disputed questions, which are involved in the present case. Therefore, in view of the the settled legal proposition that a writ involving disputed questions of facts under Article 226 of the Constitution of India is not maintainable, therefore, the objections raised by the learned Counsel for the respondents during the course of arguments have substance and is tenable in the eyes of law and on this ground alone, the writ petition is liable to be dismissed.
23. The provision of U.P. Intermediate Education Act, 1921 and the regulations framed thereunder are applicable to the recognized aided and unaided institutions equally. Regulations 101 and 102 of Chapter III in U.P. Intermediate Education Act covers the field with respect to the appointment of the teaching and non-teaching staff in the recognized aided institution. Regulations 101 and 102 of the Regulations, which are relevant for the present case, are extracted below :
"101. Appointing Authority except with prior approval of Inspector shall not fill up any vacancy of non-teaching post of any recognised aided institution.
Provided that filling of the vacancy on the post of Jamadar may be granted by the Inspector.
102. Information regarding vacancy as a result of retirement of any employee holding a non-teaching post in any recognised, aided institution shall be given before three months of his date of retirement and information about any vacancy falling due to death, resignation or for any other reasons shall be intimated to the Inspector by the appointing authority within seven days of the date of such occurrence."
24. Regulation 101, as quoted above, uses two words, namely, "prior approval" and "permission". The first part of the regulation 101 provides that appointing authority except with prior approval of Inspector shall not fill up any vacancy of non-teaching post of any recognized aided institution, whereas second part of the regulation provides that permission for filling of post of Sweeper (Jamadar) can be given by Inspector. Thus, the statute uses both the word "prior approval" and "permission".
25. In the present case, apparently, there is nothing on record, which indicates that post of Daftari was ever advertised by the Institution in the year 1991 with prior approval of the District Inspector of Schools and the petitioner, in pursuance of the same, applied and his name was recommended by the Selection Committee for appointment on the post of Daftari in the Institution with permission of the District Inspector of Schools. Petitioner has only brought on record the appointment order dated 10.3.1991, which are said to be issued by the Principal of the Institution contained in Annexure No.3 to the writ petition No. 5116 (SS) of 2007. The existence of document annexed as Annexure No.3 has been denied by the then Principal of the institution by filing an affidavit before the Joint Director of Education, Faizabad and by the Regional Committee headed by the Joint Director of Education, Faizabad as well as the Committee of Management of Institution. Therefore, the alleged appointment letter contained in Annexure No. 3 cannot be looked into as a valid document under Article 226 of the Constitution of India.
26. The Full Bench of this Court in the case of Harpal Singh Vs. State of U.P. and others : (2016) 1 UPLBEC 37 has examined the creation of the post of Daftari and requirement for the said post in the recognized aided institution. The relevant paragraphs 5 and 6 are extracted below :
"5.The post of Daftari in non-governmental aided secondary institutions was created initially by a Government Order dated 20 November 1977. The post was categorised as a Group-D post by a Government Order dated 10 August 1978. The pay scale admissible to the post was fixed with effect from 1 May 1978 at Rs.170-225. The pay scale applicable to other Class IV posts continued to be Rs.165-215. In the year 1975, the Chaturth Varg Karmachari Sewa Niyamawali, 1975 came to be issued. Under rule 6 of this Niyamawali, it was contemplated that the post of Daftari would be filled up by way of promotion from amongst educated Chaprasis, Messengers and Farrases. On 11 May 2001, an administrative instruction was issued by the Secretary (Secondary Education) in the State Government to all the Directors of Education, stating that in regulation 2 (1) of Chapter III of the Regulations of 1921, it had been prescribed that the minimum educational qualifications for Class-IV employees in non-governmental recognised higher secondary institutions would be the same as those which have been prescribed for correspondiThe provision of U.P. Intermediate Education Act, 1921 and the regulations framed thereunder are applicable to the recognized aided and unaided institutions equallyng employees in government higher secondary educational institutions as applicable from time to time. However, it was stated that no procedure has been prescribed specifically for appointment and selection of Class-IV employees. In this background, the administrative instruction stated that the procedure which was prescribed by the Class-IV (Group-D) Employees Service Rules, 1985 would govern and that all appointments, which were made in breach of those provisions, would have to be dealt with. Finally, it was stated in the administrative instruction that appropriate proposals may be forwarded for amending the regulations. For convenience of reference, we are reproducing the communication of the Secretary (Secondary Education) dated 11 May 2001:
izs"kd] ih0ds0 >k] lfpo ¼ek0½ f'k{kk] m0iz0 'kklu lsok esa] f'k{kk funs'kd ¼ek0½ mRrj izns'k] y[ku f'k{kk vuqHkkx&12 fo"k;% v'kkldh; lgk;rk izkIr ek/;fed fo|ky;ksa esa prqFkZ Js.kh deZpkfj;ksa dh fu;qfDr dh izfdz;k ds lEcU/k esaA egksn;] ek/;fed f'k{kk la'kksf/kr vf/kfu;e&1921 ds v/;k; rhu& fofu;e&2¼1½ esa ;g O;oLFkk nh x;h gS fd v'kkldh; ekU;rk izkIr lgk;rk izkIr mPprj ek/;fed fo|ky;ksa esa prqFkZ Js.kh deZpkfj;ksa dh U;wure 'kSf{kd ;ksX;rk ogh gksxh tks jktdh; mPprj ek/;fed fo|ky;ksa ds led{kh; deZpkfj;ksa ds fy, le;;d ij fu/kkZfjr dh x;h gS] fdUrq vf/kfu;e esa prqFkZ Js.kh deZpkfj;ksa ds fjDr inksa ds Hkjus dh izfdz;k Li"V:i ls of.kZr ugha dh x;h gSA 2- ;g Li"V gS fd v'kkldh; lgk;rk izkIr ek/;fed fo|ky;ksa esa 'kklu dh mDr vf/klwpuk la[;k&dkfeZd&2&2017&1986&dkfeZd&2 ¼1½ y[kuऊ] 8-9-1986 }kjk izLrkfor lewg ?k ¼deZpkjh lsok izFke&la'kks/ku½ fu;ekoyh 1986 ds izkfo/kku izHkkoh gSA 3- bl lEcU/k esa ;g Hkh dgus dk funsZ'k gqvk gS fd iz'uxr fu;ekoyh esa fn;s x;s izkfo/kkuksa ds foijhr dh x;h fu;qfDr;ksa dks fdlh Hkh n'kk esa ekU; u fd;k tk;s rFkk fu;ekoyh ds mYya?ku djds fu;qDr djus okys izca/kd iz/kkukpk;Z ds fo:} dk;Zokgh lqfuf'pr dh tkosA d`i;k bl lEcU/k esa vius Lrj ls lHkh foHkkxh; vf/kdkfj;ksa dks fn'kk funsZ'k nsus dk d"V djsaA 4- lkFk dh mDr izkfo/kku laxr fofu;e esa fufgr djus gsrq ;Fkksfpr izLrko Hkstsa rkfd bl dk;Zokgh dks fof/kd :i fn;k tk;sA bls loksZPp izkFkfedrk nsrs gq;s ;Fkk okafNr izLrko 20&5&2001 rd izkIr djk;saA Hkonh;
¼ih0 ds0 >k½ lfpo] ¼ek0½ f'k{kk
6. On the basis of the aforesaid administrative instruction, the Director of Education, in turn, issued a communication dated 1 June 2001 to all the Joint Directors of Education in the following terms:
mi;qZDr fo"k; dh vksj vkidk /;ku vkdf"kZr djrs gq, fuosnu gS fd 'kklu usa vius i= la[;k&[email protected]&12&2001&[email protected]¼793½@2000 fnukad 11&5&2001 }kjk ;g funsZ'k fn;k gS fd ek/;fed f'k{kk la'kksf/kr vf/kfu;e 1921 ds v/;k; rhu&fofu;e&2 ¼1½ esa ;g O;oLFkk nh xbZ gS fd v'kkldh; lgk;rk [email protected];rk izkIr mPprj ek/;fed fo|ky;ksa esa prqFkZ Js.kh deZpkfj;ksa dh U;wure 'kSf{kd ;ksX;rk ogh gksxh] tks jktdh; mPprj ek/;fed fo|ky;ksa esa prqFkZ Js.kh deZpkfj;ksa dh U;wure 'kSf{kd ;ksX;rk ogh gksxh] tks jktdh; mPprj ek/;fed fo|ky;ksa ds led{kh; deZpkfj;ksa ds fy, le; le; ij fu/kkZfjr dh x;h gS fdUrq vf/kfu;e esa prqFkZ Js.kh deZpkfj;ksa ds fjDr inksa ds Hkjus dh izfdz;k Li"V :i ls of.kZr ugha dh x;h gSA ;g Li"V gS fd v'kkldh; lgk;rk izkIr ek/;fed fo|ky;ksa esa 'kklu dh mDr vf/klwpuk la[;k&dkfeZd&2&2017&1986&dkfeZd&2 ¼1½ y[kuऊ 8 flrEcj] 1986 }kjk iz[;kfir lewg ?k deZpkjh lsok izFke&la'kks/ku fu;ekoyh] 1986 ls izkfo/kku izHkkoh gSA vr% 'kklu us i= la[;k%[email protected]&12&2001&[email protected]¼793½@2000 fnukad 11&5&2001 esa fn;s x;s mDr funsZ'kkuqlkj dk;Zokgh vafdr djk;sa rFkk iz'uxr fu;ekoyh esa fn;s x;s izkfo/kkuksa ds foijhr dh xbZ fu;qfDr;ksa dks fdlh Hkh n'kk esa ekU; u fd;k tk;s rFk fu;ekoyh dk mYya?ku djds fu;qfDr djus okys izcU/[email protected] iz/kkukpk;Z ds fo:} dk;Zokgh lqfuf'pr dh tk;sA Hkonh;
fe= yky] vij f'k{kk funs'kd ¼ek0½A"
27. It is an admitted position of the Counsel for the parties, especially learned Counsel for the petitioner Mr. Y.K. Mishra that post of Daftari is a promotional post and the petitioner was appointed on 16.3.1991 without their being creation of any post of Daftari in the institution. It is also admitted position that post of Daftari in the institution was created vide order dated 21.4.1995, therefore, no appointment can said to be legally made on the post of Daftari prior to 21.4.1995. While making appointment on the post of Daftari, procedure was also required to be followed. Learned Counsel for the petitioner has failed to demonstrate that the procedure was followed. Even otherwise, as stated hereinabove, the post of Daftari is the promotion post, therefore, no direct recruitment on the post of Daftari could have been done on the said post.
28. In view of the above, no interference under Article 226 of the Constitution of India is made out. The writ petition is deserves to be dismissed.
29. Both the writ petitions are, accordingly, dismissed.
30. There is no order as to costs.
Order Date : 10th May, 2016 Ajit/-