JUDGMENT Shishir Kumar, J.
1. The present writ petition has been filed for quashing the order-dated 9.7.1988 passed by the Upper Shiksha Nideshak Madhyamik, U.P. Allahabad. Further issue a writ in the nature of mandamus directing the respondents not to interfere in the discharge of duties to the petitioner as L.T. grade teacher in Amar Singh Higher Secondary School, Barhya Chowk, Gorakhpur.
2. There is a Higher Secondary School named as Amar Singh Higher Secondary Barhya Chowk, Gorakhpur which is governed by the U.P. Intermediate Education Act, 1921. The above school received recognition for High School classes in the year 1973 before that it was a Junior High School. The staff of Junior High School consisted of teachers who were mostly not qualified to be appointed as L.T. grade teachers, only the head master was qualified and thus he was appointed as head master of High School when the school was raised to High School standard. When it was Junior High School was only an aided school and the management used to get some maintenance allowance from the department. The teachers were not being paid full salary, not the salary was paid regularly and therefore, when the school was raised to the High School standard and did not come under the Payment of Salary Act, most of the teachers left the school. At the time of recognition of the school to High School standard, the minimum staff needed for imparting education up to High School classes was granted. The management in the session of 1976-77 was faced with the necessity of staff as the members of the staff had already left the School. The regular appointments were prohibited by the Government order Since 1975 and therefore, the management made ad hoc appointments of six qualified teachers The petitioner was one of them. The petitioner was appointed as ad-hoc I.T grade teacher on 8th July, 1976. The District Inspector of Schools gave his approval of the said appointment on 15.4.1977. A copy of the same has been filed as Annexure 1 to the writ petition. The approval at the first instance was up to 30.6.1977. Only as it was provided under the Removal of Difficulties (1) Order 1975, but under the subsequent orders, the ad-hoc appointment was extended from time to time and continued up to 1977 when under the provision of Section 16GG which was added by U.P. Act No. 5 of 1977 The District Inspector, of Schools made the ad hoc appointment permanent by an order of regularizing it. A copy of the said order dated 29.6.1977 is being filed as Annexure 2 to the writ petition. After completion of the probation period, the petitioner was confirmed and he was brought under the G.P. Fund Scheme. A copy of the order dated 13.6.1978 has been filed as Annexure 3 to the writ petition After a lapse of ten years of appointment of the petitioner a letter dated 16th November, 1985 was received by the petitioner being a notice of the Director of Education of U.P. under Section 16-E(10) for show cause as to why the appointment of the petitioner may not be cancelled. The petitioner submitted a reply on 30.11.1985. Thereafter the management did not send the pay bill of the petitioner to the District Inspector of Schools who pass an order on 16.7.1986 for making the payment to the petitioner. The manager of the said institution filed a Writ Petition against the order passed by the District Inspector of Schools which was disposed of by this Court on 4.2.1987. Though this Hon'ble Court had directed to decide the case within six weeks from the date of the order but no information to this effect was given to the petitioner before 22.9.1987. It has been stated that the letters dated 6.6.1987 and 17.8.1986 sent by the Director of Education were not received in time by the petitioner and the hearing was fixed on 17.1 1.1987. The first charge shown in the show cause notice was being pressed by the side of the management for which the petitioner was insisting the Director of Education that a direction be given to the management to produce the attendance register and payment register of 1976-77 so that it may be definitely proved that the petitioner was attending the school since 8.7.1976. The petitioner produced the photostat copies of the Karmahwa School showing that the petitioner did not work in that school in session 1976-77. The Director of Education without looking into the attendance register of 1976-77 of the school in question in 1976-77. As regards creation of post, the management of the institution has pressed before the competent authority that other teachers were already working on the post and they ought to have been allowed to. work and not the petitioner. This clearly goes to show that there was a post and no necessity was there for creation of fresh post. The Director of Education by its order-dated 9.7.1988 has held that the appointment of the petitioner was illegal.
3. A finding to this effect has been given that the petitioner has worked in the Karmahawa in the year 1976-77 against the documents on record. The manager of the institution has suppressed the documents of the college in question otherwise it could have been shown that the petitioner Was attending the institution.
4. Aggrieved by the aforesaid order, the petitioner has approached this Court.
5. The writ petition was entertained and by order dated 21.7.1988, the operation of the order dated 9.7.1988 was stayed. The petitioner submits that on the basis of the interim order, the petitioner is working.
6. It has been submitted on behalf of the petitioner that the petitioner was getting regular salary with the approval of the District Inspector of Schools since 8.7.1976. The provision of Section 16-E (10) cannot be applied after expiry of more than 10 years. The petitioner after having being teacher cannot be removed from service by taking resort, of the provision of Section 16-E (10). As the appointment of the petitioner being under Section 16GG provisions of Section 16-E do not apply. The petitioner was appointed under Removal of Difficulties Order (1) 1975 which was extended by other orders up-to 1977. when the amendment of 1975 was enforced in the U.P. Intermediate Education Act. With this amendment Sections 16D, 16E, 16F and 16FF and other sections were refrained and also in the Regulations chapters were readjusted chapter II with so many rules was introduced. The application of amended Section 16-E in the case of the petitioner does not apply. Thus the order passed under Clause 10 of Section 16-E is wholly illegal. The question for consideration by this Court is whether 16-E (10) will apply as the appointment of the petitioner is not made under the Education Act. Under the aforesaid provision only the appointment can be made for a period of six months.
7. The reliance has been placed upon the judgment of this Court reported in Dr. Ramii Dwivedi v. State of U.P. and Ors. reported in 1983 UPLBEC 426 and has placed reliance upon paras 16 and 17 of the said judgment. The another judgment of the learned Counsel for the petitioner in Rama Kant Rai v. District Inspector of Schools, Ballia reported in 1985 UPLBEC 431 and has submitted that the Section 16GG was inserted by U.P. Act No. 5 of 1977 with effect from 21.4.1977 as such, any appointment on ad-hoc basis in a clear vacancy prior to July, 1976 such promotion were permissible. The further reliance has been placed upon a Full Bench Decision of this Court in Dr. Asha Saxena v. Smt S.K. Chaudharv and Ors. reported in (1991) 2 UPLBEC 1202 and has placed reliance upon Para 16 of the said judgment and has submitted that though there is a power Under Section 16E(10) of the Act to cancel the appointments but the power has to be exercised within a reasonable time and has submitted that the order passed under Section 16-E (10) by the Director of Education is liable to be quashed.
8. On the other hand the State has filed a counter affidvit and denied the allegations made in the writ petition and has submitted that the petitioner was never appointed as teacher in the institution namely Amar Singh Higher Secondary School Barhya Gorakhpur. There was no substantive vacancy at the time when the petitioner was allegedly appointed as much as there was neither any post vacant nor any post was created by Deputy Director of Education for appointment to be made. After the school was raised to the High School standard the teachers working in the junior High School were entitled for regularizations to be absorbed on suitable post in the High School but instead of fresh appointments without creation of post were illegally made by appointing petitioner and thereby depriving those who were already continuing in school from being absorbed as teacher of High School. The appointment of the petitioner therefore, Was absolutely illegal and without any authority of law. It has also been stated in the counter affidavit that at no point of time any post was created on which the petitioner could have been appointed as such, the Removal of Difficulty Order did not apply in the case of the petitioner. The petitioner's appointment was approved by the District Inspector of Schools, which was wholly illegal. It has further been stated that provisions of Section 16 GG does not apply in the case of the petitioner and therefore he cannot submit to have been regularized under the said provision. The appointment initially made without any authority of law always remained without authority of law in respect of the fact that the petitioner has worked for a considerable period.
9. The Committee of Management has also filed a counter affidavit and it has been stated that the institution was primarily a Junior High School and was receiving the managerial grants for Junior High School only. The same was upgraded as High School in 1973 and at the time of said up gradation certain persons were validly appointed teachers and employees of junior high school. The head master of the Junior High School Sri Parmatma Singh in falsely manner represented before the District Inspector of Schools that more teachers were working and on the basis of the aforesaid fact, Sri Parmatma Singh in collusion and conspiracy of the then District Inspector Of Schools and contrary to the provisions of U.P. Intermediate Education Act approval of ad-hoc appointments have been obtained. The names of those teachers given below:-
1. Sri Udairaj Tripathi
2. Sri Sant Ram Maurya
3. Sri Shripati Mishra
4. Sri Ram Lalit Yadav
5. Sri Prahlad Yadav
6. Sri Brijendra Pratap singh
7. Sri Babu Lal
8. Sri Budhi Ram Prasad Chauhan
10. When this tact was brought to the notice of the management and when the District Inspector of Schools illegally started paying the salary to the aforesaid eight farzi teachers by passing an order of single operation even though there was no sanction post and no proper appointment was made in this respect by the management. The state Government enquired into the matter by the Joint Director of Education by one Iswar Saran Gaur, who submitted a detailed enquiry report in the month of June 1983. The State Government came to the conclusion that only 9 persons whose names were duly approved teachers at junior high school level and they were persons who were working when the junior high school was raised to the status of High School and only those teachers were entitled and were regularized under Regulation 4 Chapter 11 of the Regulations framed under Intermediate Education Act. When this fact came to notice of the management the manager of the institution vide its letter dated 22.3.1981 addressed to the petitioner asking them to submit the original records in respect of their appointments and regularization, the petitioner did not submit any reply. Art audit was conducted between 1.9.1980 to 31.8.1981 and it was proved that there were eight farzi teachers in the institution. It has also been submitted in the counter affidavit that regarding the aforesaid appointments of farzi teachers, the question was raised in the legislative assembly. The District Inspector of Schools in pursuance of the enquiry report and under the orders of the State Government issued a letter on 27.5.1986 whereby it has clearly been stated that only nine teaches alone were entitled to get the salary. In the aforesaid fact the Director of Education had issued a notice to the petitioner as well as other similarly situated persons and initiated a proceedings under Section 16-E(10) to terminate the services of the petitioner. A show cause notice was given and a reply was invited and after considering the various records as stated above the respondent has come to the conclusion that the petitioner name was not in the list, which was submitted at the time of up gradation of the institution from junior high school to High School. In the reply of 1974-75 it was submitted by the Deputy Director of School that the name of the petitioner is not shown in the said list A finding of fact has also been recorded that the petitioner was never working in the institution in Junior High School section and the petitioner was working in another institution. During that period a finding has also been recorded that after up gradation no post were 'sanctioned, therefore, the appointment of the petitioner and order of regularization or absorption is against the rules.
11. It has also been submitted by the respondents that it is now well settled that if the appointment has been made on a non-sanctioned post without following the proper procedure, the person appointed on the said post has got no right.
12. The reliance has been placed upon the judgment of this Court reported in Gopal Dubey v. District Inspector of Schools Maharajganj and Anr. reported in (1999) 1 UPLBEC 1 and has placed reliance upon para 20 of the said judgment and has submitted that Full Bench of this Court has clearly held that if there is no prior approval of the Director for making any appointment the claim for payment of salary is unsustainable. The management of the institution also is not entitled to reimburse the salary paid to the petitioner from the State Government in the absence of the approval of the post. Meaning there by the petitioner submits that if there is no sanction of post no appointment can be made and if any appointment 18 made by the management it is the total responsibility of the management.
13. The another judgment relied upon by the counsel for the respondents in Director of Education and Ors. v. Gajadhar Prasad verma reported in 1995 Supreme Court Cases (Labour and Service) 327 and has submitted that if the post prior to the appointment has not been sanctioned or created and without obtaining prior approval of the Director or of empowered officer, any appointment has been made is not entitle for salary. The reliance has been placed upon another judgment of the Apex Court in Prabhat Kumar Sharma and Ors. v. State of U.P. and Ors. reported in (1996) 3 UPLBEC 1959 and has submitted that any ad hoc appointment of teachers shall be only transient in nature but such appointment should be made in accordance with the procedure prescribed. The reliance has been placed upon para 7 of the said judgment. Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees.
14. In such a way it has been submitted on behalf of the respondents that the petitioner is not entitled for any relief. The further submission has been made that in view of the averments made in paragraph 25 of the writ petition it is clear that there was no sanction post. Paragraph 25 of the writ petition is being quoted below:-
25 That the creation of the post was responsibility of the Management and if they lacked in the performance of the duty and dupped the department and the petitioner both, the petitioner cannot he punished.
15. It has further been submitted on behalf of the respondents that in view of the various provisions as it is established from the record that the appointment of the petitioner was not on a sanctioned post, therefore, in such type of cases the powers have been conferred upon the Director of Education under Section 16-E (10) of the Act 1921 to cancel any appointment of a teacher. Section 16GG of the Act 1921 came into operation and provides for regularization of Ad-hoc teachers appointed against substantive vacancy between August 18, 1975 and September 30, 1976. In view of the averment made in the writ petition as the petitioner themselves has stated that he was appointed on a post of L.T. grade teacher on 8.7.1986 and his appointment was approved by the District Inspector of Schools on 15.4.1977. The petitioner has failed to prove that the appointment of the petitioner was on a substantive vacancy on a sanctioned post. The petitioner himself has admitted this fact regarding responsibility of creation of post. In paragraph 25 as mentioned above it clearly goes to show that there was no creation of post on the date when the petitioner was appointed. The Director of Education has passed me order after affording an opportunity to the petitioner and a finding has been recorded that petitioner was not a teacher prior to up gradation of Junior High School and after up-gradation as High School and the institution brought under the perview of U.P. Act No. 24 of 1971. no posts of L.T. Grade teacher was created and alleged appointment of the petitioner was contrary to law, as such, the authority has cancelled the same.
16. I have heard counsel for the petitioner and counsel for the respondents and have perused the record.
17. From the record it is clear that the averments made in the writ petition itself goes to show that the petitioner was; given an appointment as L.T. grade teacher on 8.7.1976 There is nothing on record to show that the petitioner was working when the institution was junior High School and the same was upgraded because Chapter-2, Regulations 4 and 5 clearly states the criteria regarding quota of promotion from C.T. grade to L.T. grade. Earlier it was 40% and 60% but subsequently it was made 50% each. From the averment made in para 25 of the writ petition it clearly goes to show that the appointment of the petitioner was not on the post, which was sanctioned or created by the competent authority. A finding of fact has also been recorded by the Director of Education while passing the impugned order that as the petitioner has clearly failed to prove from the record that the petitioner was ever a teacher in the institution prior to the up-gradation of the junior High School. As the petitioner was not a teacher of junior High School, therefore, he could not claim any right under Chapter-II, Regulation 3 of the Act and since after up-gradation as High School, no post of L.T. grade teacher was created, therefore, he could not be appointed on the post of teacher From the record it appears that the orders have been obtained by the District Inspector of Schools either upon strenuous consideration or by concealment of misrepresentation and fraud.
18. As regards the submission made on behalf of the petitioner the petitioner is working and an interim order is granted in favour of the petitioner and a considerable long period have lapsed, as such, at this stage if the appointment of the petitioner is held to be invalid, the petitioner will be out of job at this stage, he will not be in a position to be accommodated anywhere.
19. I have considered the rival submission made on behalf of the parties.
20. The petitioner has placed, reliance in a case of Arun Kumar Raut v. State of Bihar reported in AIR 1998 Supreme Court page 1477 and in the case of H.C. Kuttaswami v. Hon'ble Chief Justice of Karnataka High Court reported in AIR 1991 Supreme Court, Page 295. In those cases the Hon'ble Court has taken an analogy that in spite of the fact that the appointment was illegal but since the incumbent had continued in service for a long period, on strength of the interim order, allowed to continue, But in view of the judgment reported in State of Madhya Pradesh and Anr. v. Dharam Bir reported in Judgment Today 1998 (4) Supreme Court 363, wherein it has been observed as follows;
The plea that the Court should have a "human approach" and should not disturb a person who has already been working on this post far more than a decease also cannot be accepted as the Courts are hardly swayed by emotional appeals. In dispensing justice to the litigating parties, the Court not only go into the merits of the respective cases, they also try to balance the equities so as to do complete justice between them. Thus the Courts always maintain a human approach. In the instant case also, this approach has not been departed from. We are fully conscious that the respondent had worked on the post in question for quite a long time but it was only in ad hoc capacity. We are equally conscious that a selected candidate who also possesses necessary educational, qualification is available. In this situation, if the respondent is allowed to continue on this post merely on the basis of his concept of "human approach ", it would be at the cost of a duly selected candidate who would be deprived of employment for which he has striven and had ultimately cleared the selection. In fact, it is the "human approach" which requires us to prefer the selected candidate over a person who does not possess even the requisite qualification.
21. The Supreme Court in case of Kishorilal Charmakar and Anr. v. District Education Officer and Anr. reported in (1998) 9 SCC 395 has examined the termination of a person who had been appointed under a bonafide mistake by considering them as a Scheduled Tribe and mistake has not occurred on their account. It was submitted on their behalf that they have served ten years as teachers under the interim order granted by the Court in their favour and since they were not responsible for the mistake, they should be allowed to 'continue. The Court has rejected this contention holding that this alone could not entitle them to retain undeserved benefit, which has accrued to them. In yet another case the Hon'ble Supreme Court in a matter of State of Rajasthan v. Hitendra Kumar Bhatt (1997) 6 SCC 574. Examined the effect of an interim order on the dismissal of the petitioner. In the said case the respondent was not called for interview since he did not possess the technical qualification. However pursuant to the interim order passed by the High Court requiring the appellant to call him for interview, he was interviewed and his name was included in the list of the selected candidates. He was also appointed on a promotional post and was also subsequently confirmed. The writ petition was ultimately dismissed by the High Court holding that on the cut-off date he was not having the requisite qualification. It was submitted before the Supreme Court that since he had continued in service and has also been confirmed, the Court could not disturb his appointment and his case should he considered sympathetically. The Hon'ble Supreme Court has observed that the appellant has taken the correct stand right from the beginning and respondent is application was not considered and he was not called for interviews. It was only on account of the interim orders which the respondents obtained and he was given appointment and continued. He was aware that his appointment was subject to outcome to the writ petition. As such a sympathetic view could not be taken.
22. In the present case also from the record it is clear that the appointment of the petitioner was not on the post, which was created by the competent authority. The petitioner has also failed to prove that the appointment was on a sanctioned post. The petitioner is also not able to show from the record that he was working as a teacher in the junior High School in the institution when the said institution was upgraded. Therefore, in view and after consideration of the various provisions of the Act, I see no infirmity in the order passed by the respondents.
23. It is also important to mention here that one Sri Sant Ram Maurya has also filed the same order of the Director of Education, who was also given appointment with the petitioner. He filed a Writ, petition No. 14087 of 1988 and the said writ petition was dismissed by this Court vide its order dated 26.9.2001 and the validity of the Director of Education has already been confirmed
24. In view of the aforesaid facts and circumstances and in view of the well settled principle of law the writ petition is devoid of merits and is hereby dismissed Interim order if any is vacated.
25. There shall be no order as to costs.