Heard Shri P.P. Chaudhary, learned Standing Counsel for the appellants and Shri C.K. Parkeh, learned Senior Counsel assisted by Shri Vivek Mishra, learned counsels for the respondent no.1. None has appeared on behalf of respondent no.2.
This second appeal has been filed against judgment and decree dated 25.05.2000 passed by Special Judge (Anti Corruption)/ Additional District & Sessions Judge, Varanasi in Civil Appeal No.157 of 1999, Mangla Prasad Misra Vs. State of U.P. and 2 others in Original Suit No.535 of 1996.
This appeal was admitted by this Court on 19.07.2012 on the following substantials question of law :
(1) (a) Whether the learned appellate court was justified in allowing plaintiff/respondents appeal by making out a new case by holding that the plaintiff's appointment was made under U.P. Secondary Education Service Commission (Removal of Difficulties)-II Order, 1981 whereas the appointing authority Committee of Management had pleaded that the plaintiff's appointment was made on ad-hoc basis under Section 18 of the U.P. Secondary Education Service Commission and Selection Board Act.
(b) Whether any appointment in C.T. Grade could be made in the year 1996 whereas the C.T. Grade was already abolished in the year 1989.
The plaint case is that an Original Suit No.535 of 1996 was instituted by the plaintiff praying for decree a permanent injunction against the defendants restraining them from terminating his services on the post of Assistant Teacher. The post fell vacant in the institution, defendant no.3, Rambaba Inter College, Sindhaura, Varanasi, on account of promotion of one Ramesh Lal, a C.T. Grade teacher. The plaintiff was appointed on 01.02.1996 and joined his duty on 05.02.1996. His selection was done after due advertisement of post by duly constituted Selection Committee and the papers were sent for approval to the defendant no.2, District Inspector of Schools, Varanasi, who neither passed any order on the same nor made payment of salary of the plaintiff. Since the approval was not declined within the period prescribed, plaintiff's appointment got approved automatically and he is entitled to his salary till a duly selected candidate joins the institution. Prior to such appointment of a duly selected candidate his services cannot be terminated. Defendant no.3, the institution was causing hindrance in the teaching working of the plaintiff and hence the suit was instituted.
The defendant nos.1 and 2 filed their joint written statement denying the plaint case. It was pleaded that the plaintiff and defendant no.3 are in collusion. Defendant no.3, Rambaba Inter College, Sindhaura, Varanasi, is a recognized institution upto intermediate classes. The Committee of Management is duly approved under the U.P. Intermediate Education Act, 1921 and provisions of U.P. Secondary Education Services Commission Rules, 1995 are applicable to the institution. The salaries to the teachers are disbursed through the management committee under Section 9 of the Rules.
There is no record in the office about the nature of vacancy over which promotion of Ramesh Lal was proposed and when approval to his promotion was given. There is no record available to prove the vacancy caused on account of promotion of Ramesh Lal and appointment of the plaintiff on that post. Prior to the appointment of plaintiff no permission was taken by the defendant no.3 nor any information was given. No advertisement of the post was made. There was ban of fresh appointment in school by the Government Order dated 31.08.1991. The plaintiff is not working in the school and salary can only be given to the teachers, who have been appointed on sanctioned posts of teachers. At the time of according approval for promotion of teachers the management committee is restrained from making appointment on vacant post without prior permission.
Defendant no.3 filed its written statement stating that upon promotion of Ramesh Lal in L.T. Grade, teaching work in the institution was suffering. Requisition was sent to defendant no.2 but no appointment was made for two months hence the management had no option but to proceed under Section 18(b) of U.P. Secondary Education Services Commission and Selection Board Act, 1982 for filling-up the vacant post after publishing advertisement in the newspaper.
Applications were received and after interview the plaintiff was selected by the Committee of Management and was duly appointed. All the papers concerning his approval of appointment, payment of salary, etc., were sent to the defendant no.2 but he took no action. When no salary of the plaintiff was sanctioned the defendant no.3 was left with no option but to ask the plaintiff to resign from his post because the defendant no.3 was not in a position to bear the financial burden of payment of salary to the plaintiff.
On the basis of the pleadings of the parties the trial court framed the following issues :-
(I) Whether the plaintiff is working as Assistant Teacher in the institution of Defendant no.3 and entitled to receive salary ?
(ii) Whether the appointment of the plaintiff is barred by Section 9 of the Payment of Salaries Act ?
(iii) Whether appointment of the plaintiff was barred by Government Order dated 31.8.1991 ?
(iv) Whether the suit of the plaintiff is barred by Section 80 C.P.C.?
(v) Whether the suit of plaintiff is barred by the provision of U.P. Intermediate Education Act, as stated in para 24 of the written statement.
(vi) Whether suit of the plaintiff is barred by Section 41 of Special Relief Act?
(vii) Whether plaintiff is entitled to any relief.
Regarding issue nos.(i) and (ii), the Trial Court found that there is no evidence of any vacancy on the post of Assistant Teacher in the institution and the information of the same was also not given to the defendant no.2. The advertisement of the post was not made as per the rules and the plaintiff was illegally appointed by the defendant no.3. Therefore, the defendant nos.1 and 2 are not liable to give approval to the appointment of plaintiff or his salary. Both issues were decided against the plaintiff.
Regarding issue no.(iii), the Trial Court concluded that the Government Order dated 31.08.1991 regarding ban on appointments has become ineffective.
Issue no.(iv) was decided holding that the suit is not barred by Section 80 C.P.C. since permission was granted to the plaintiff before instituting the suit.
Regarding issue no.(v) the Trial Court held that the defendants have not proved how suit is barred under the U.P. Intermediate Education Act as pleaded in paragraph 24 of the written statement of defendants no.1 & 2 and decided the issue in favour of the plaintiff.
Issue no.(vi) whether suit is barred by Section 41 of Specific Relief Act, was decided by trial court holding that it has not been proved by the defendants.
The trial court finally decided the issue no.(vii) against the plaintiff holding that he is not entitled to any relief and by judgment and decree dated 24.07.1999 the suit of the plaintiff was dismissed.
The plaintiff preferred a Civil Appeal before the First Appellate Court. The First Appellate Court framed the following point of determination in the appeal.
(1) Whether appointment of the plaintiff is legal and he is entitled to salary on its basis ?.
The First Appellate Court found that the plaintiff was appointed on short term vacancy caused by promotion of Ramesh Lal on the superannuation of Kapil Dev Singh from the post of L.T. Grade teacher. It has referred to the statement of DW-1, wherein she admitted that requisition was received in her office on 15.10.1995 regarding promotion of Ramesh Lal on the vacancy caused by Kapil Dev Singh. The First Appellate Court held that the finding of the Trial Court that no information was given to the District Inspector of Schools about the vacancy and filling-up the same on adhoc basis is wrong. It found that the appellant is teaching in the school since the defendant no.3 has admitted this fact. Photocopy of attendance register of several months were filed before the trial court attested by the Principal. It has held that the observation of the trial court that there was no vacancy on which the plaintiff could have been appointed is incorrect. The First Appellate Court held that information regarding appointment of plaintiff was sent by the Committee of Management vide order dated 15.01.1996, photocopy whereof, after attestation by the Principal has been filed as Paper No.38 C. The seal of the office of District Inspector of Schools affixed on 16.01.1996 was there. The First Appellate Court has concluded that the appointment of the plaintiff was not done under Section 18 of U.P. Secondary Education Service Commission and Selection Board Act, 1982 but under U.P. Secondary Education Service Commission (Removal of Difficulties) -II Order, 1981. Therefore, the finding of the Trial Court is incorrect. It found that procedure of filling-up short term vacancy has been given in the removal of difficulties order aforesaid. The First Appellate Court found that the appointment of the plaintiff was legal and valid on short term vacancy and the reason given for termination of his services by defendant no.3 was not justified. The District Inspector of Schools neither approved nor disapproved appointment of the plaintiff within a week as per Rule 3(iii) of Removal of Difficulties Order, hence approval of appointment was deemed to be granted to the plaintiff. First Appellate Court held that services of the plaintiff will continue till a duly appointed candidate from the commission takes charge and restrained the defendant no.3 from terminating his service till then. It further directed payment of arrears of salary of the plaintiff from the date of his joining his services and continuation therein.
Learned counsel for the appellant has submitted that the First Appellate Court has committed manifest error of law holding that the appointment of the plaintiff-respondents was made under U.P. Secondary Education Services Commission (Removal of Difficulties)-II Order, 1981, when the case of Committee of Management, defendant-respondent no.3 was that the plaintiff was appointed on adhoc basis under Section 18 of U.P. Secondary Education Services Commission and Selection Board Act, 1982. The lower appellate court has not set aside the specific finding recorded by the Trial Court while holding that the selection and appointment of the plaintiff-respondent no.1 was in accordance with law.
The Appellate Court setup a new case in the appeal filed by the plaintiff that there were 27 sanctioned posts in the institution without taking any additional evidence. The specific finding of the Trial Court that reservation quota was not filled-up in the institution but the appointment of the plaintiff was made when the post was reserved for reserved category candidate was not set aside. Ramesh Lal was working on C.T. Grade post, which has been declared as dying cadre in 1989. Therefore, no appointment could have been given to the plaintiff in C.T. Grade and the finding of the First Appellate Court that after promotion of Ramesh Lal in L.T. Grade post become vacant and the plaintiff was duly appointed is perverse. The appointment of plaintiff against short term vacancy without prior approval of District Inspector of Schools is not in accordance with law. Without recording finding that the post was duly sanctioned and the appointment of the plaintiff was made in accordance with law the suit of the plaintiff ought not to have been decreed issuing prohibitory injunction against the defendants from terminating his services till duly selected candidate is appointed by the commission. The direction for payment of salary of the plaintiff till he continues in service is illegal and the First Appellate Court did not considered the law laid down in the case of Km. Radha Raizada Vs.Committee of Management, reported in 1994 (3)UPLBEC page 1551.
Learned Senior Advocate for plaintiff-respondent no.1 has supported the judgement of the First Appellate Court and has submitted that vide Government Order dated 04.09.1990 the State Government has held that after declaration of C.T.Grade as dying cadre vacancies in C.T. Grade shall be considered to be vacant in L T Grade from the date of vacancy. The plaintiff joined his services on 05.02.1996 and is working as L.T. Grade teacher. The First Appellate Court has recorded clear finding of fact that the intimation of vacancy was given in the office of District Inspector of Schools and the First Appellate Court has recorded finding in this regard. He has relied upon the judgment of Writ Petition No.23660 of 2003, Murtaza Vs. District Inspector of Schools, Varanasi and another, wherein this court held that in case of Alok Kumar Dixit Vs. District Inspector of Schools, 2004(1) UPLBEC 192 this Court in para 9 has held that Committee of Management is empowered to make adhoc appointment on short term vacancy under the provisions of U.P. Secondary Education Services Commission (Removal of Difficulties)-II Order, 1981 and reservation Rules are not applicable to short term vacancy. This Court has further held that the posts fallen vacant in CT Grade gets automatically converted into LT Grade, therefore, appointment made either on short term vacancy or adhoc vacancy will merge in LT Grade. He has further submitted that the grounds argued by the learned Standing Counsel on behalf of appellant are not correct. The First Appellate Court has dealt with the issue and has recorded clear findings of fact after setting aside the finding of the Trial court hence no substantial question of law arises for consideration in this appeal After hearing the rival contentions, this court finds that the substantial question of law no.1, has been framed on the basis of contradiction in the finding of First Appellate Court and case set-up by the defendant no.3 before the Trial Court. The Appellate Court has held that the appointment of the plaintiff was made under the provisions of Rule 2 & 3 of U.P. Secondary Education Services Commission (Removal of Difficulties) II order, 1981 whereas the defendant no.3 pleaded that the appointment of the plaintiff was made on adhoc basis under Section 18 of the Secondary Education Services Commission and Selection Board Act, 1982.
A perusal of the pleadings shows that the plaintiff never set-up any case that he was appointed under any of the aforesaid Act or order. His case was that on account of vacancy falling on the post of Assistant Teacher due to promotion of one, Ramesh Lal, a C.T. Grade teacher to L.T. Grade, he was given adhoc appointment. Therefore, merely on the basis of the wrong pleading of the defendant no.3, against whom also relief was sought by the plaintiff, this appeal cannot be dismissed. Moreover, this conflict of pleadings cannot prejudice the case of the plaintiff who only claimed due appointment by the defendant no.3 on adhoc basis.
The finding of the First Appellate Court are justified in this regard and substantial question of law no.1 framed in this appeal is not a substantial question affecting people at large. It is settled law that mere wrong mentioning of statutory provisions in pleading can not be made a ground for rejecting the pleadings and setting aside a judgement and order of Court (see Challamane Huchha Gowda Vs. M.R. Tirumala and another., (2004)1 SCC 453.
The second substantial question, whether any appointment in C.T. Grade cannot be made in the year 1996 when the C.T. Grade was held abolished in 1989 has been answered in Writ Petition No.23660 of 2003, Murtaza Vs. District Inspector of Schools, Varanasi,. Further the learned counsel for the plaintiff has brought on record a Government order dated 04.09.1990 No.6039/15/7-1(136/1989) as Annexure no. R A-1 before this Court, wherein it has been clearly mentioned that after declaration of C.T. Grade as dying cadre the vacancy on substantive post from the date of vacancy shall be treated to be converted into L. T. Grade and appointment shall be made accordingly. Subsequently number of such government orders have been issued by the State Government and there is dispute regarding this issue any more.
In view of the above Government Order there remains no doubt that appointment of the plaintiff on short term vacancy was deemed to be on L. T. Grade post since the vacancy was caused on account of promotion Ramesh Lal from C.T. Grade to L.T. Grade vacancy on his post was in L.T. Grade.
In view of the above consideration, no substantial question of law arises for consideration in this appeal since the questions framed are not substantial question of law. Therefore, the Second appeal is dismissed. The judgement of the first appellate court is confirmed.
Any amount deposited before this Court by the appellant as per interim order dated 09.07.2010 shall be transferred to the executing court for adjustment and payment to the plaintiff as per the decree of the first appellate court.
The Second Appeal is dismissed with costs.
Order Date :- 25.08.2021 SS