Court No. - 13
Case :- WRIT - A No. - 73647 of 2010 Petitioner :- Surya Prakash Rai Respondent :- State Of U.P. And Others Counsel for Petitioner :- Radha Kant Ojha,B. D. Pandey Counsel for Respondent :- C. S. C.,A.K. Mishra,Raj Mohan Upadhyaya
Hon'ble Ajit Kumar,J.
1. Rejoinder affidavit filed today by learned counsel for the petitioner is taken on record.
2. Heard learned counsel for the parties and perused the record.
3. The writ petition is directed against the order of District Inspector of Schools (hereinafter to be referred as 'DIOS') dated 25.11.2010, whereby, the petitioner's appointment as an Assistant Teacher in attached Primary section of the Institution namely Bhagirathi Krishak Uchchatar Madhyamik Vidyalaya, Bhagirath Nagar, District Maharajganj has come to be held irregular, hence the payment of salary to the petitioner has been stopped and further direction has been issued to recover the amount that has already been paid to him towards his salary. The Committee of Management is further directed under the impugned order to terminate the services of the petitioner.
4. The facts of the case are that the petitioner was initially appointed as untrained teacher in the primary section of the Institution in question on 27.07.1980 as he was simply Intermediate. The petitioner continued as such in the Institution and his services later on confirmed. In the meanwhile, under the Government Order dated 21.10.1994, the untrained teachers were directed to be exempted from BTC Training and thus the petitioner became entitled to the trained grade and the same he continued to draw. It appears that some complaint was made against the appointment of the petitioner on the ground that he had obtained the same on the basis of forged certificate. This complaint, it appears, was made to the Commissioner, Gorakhpur Division, Gorakhpur on which the Commissioner directed for an inquiry by the Additional Commissioner (Administration) who conducted an inquiry into the matter and come to record a clear finding of fact in respect of three points, firstly, that the petitioner obtained appointment in the Institution in which he is working from the back date in collusion with the Manager of the Institution as in respect of the two Institutions there was one Manager. The second point is that the petitioner was being paid the trained grade pay scale since 1990 and the third and most important point which was the subject matter of the inquiry is that the complaint of forged certificate submitted by the petitioner was not found proved. In respect of the first point, the Additional Commissioner has held that the petitioner obtained the appointment in connivance with the Manager in the Institution when he was working, though there was no definite evidence discussed by the Additional Commissioner, the inquiry officer. He only stated that from the inquiry being made in the matter, it has come that there was one Manager of two institutions and that the Institution, where the petitioner has been working, got grant-in-aid in 2006, it appears that some collusion took place between the petitioner and the Manager and as a consequence thereof the petitioner got appointment in the present Institution. However, he failed to refer any cogent material convincing enough to support this finding. He also failed to record any illegality regarding the payment of trained grade. It has been recorded by the inquiry officer that from the perusal of the service book it was found that he was getting trained grade though his qualification was Intermediate.
5. So the question of forged certificates of Shiksha Visharad and Shiksha Shastri has not to come to be proved. However, the finding to the effect that the petitioner's qualification is shown as Shastri B.Ed. and for that reason he has getting trained grade, is factually incorrect because all such teachers who were working in primary section were not required to possess B.Ed. Degree. Earlier those teachers who used to be appointed in untrained grade were not trained in those days and this the reason why the Government Orders dated 06.09.1994 and 21.10.1994 were issued by the State Government for providing exemption from training to such untrained teachers and therefore, finding of the inquiry officer to the contrary also appears to be not correct on the face of it. After the submission of inquiry reports by the Additional Commissioner (Administration), the Divisional Commissioner, Gorakhpur vide order dated 15.04.2005 accepted the report of inquiry officer. However, at the same time he directed the DIOS to further conduct inquiry into the matter regarding the payment of trained grade to the petitioner. It appears that DIOS proceeded to hold an inquiry under the orders of Divisional Commissioner and ultimately passed the impugned order.
6. The argument advanced on behalf of the petitioner is that the Additional Commissioner and the Joint Commissioner, Additional Commissioner are the officers of the District Administration at the Divisional Level and not authorities who could be said to have been vested with any such power under the Intermediate Education Act, 1921 and the regulations framed thereunder and therefore, the very inquiry directed by the Commissioner, Gorakhpur Division, Gorakhpur in the first instance was wholly without any authority of law. Nevertheless, learned counsel for the petitioner urges, once the inquiry report was submitted by the Additional Commissioner on the basic issue, 'whether the petitioner has obtained appointment on the basis of forged certificate' and said inquiry report was accepted in favour of the petitioner and same was submitted by Divisional Commissioner, Gorakhpur, there was no occasion to order for further inquiry into the matter.
7. Learned Standing Counsel has contested the matter on the ground that in the inquiry it has come that the petitioner has wrongly been granted trained grade whereas, he was only Shastri and B.Ed and this qualification would not make him eligible to be awarded with trained grade. He further contends that irregularity has been detected in the appointment of the petitioner under inquiry and therefore, he is not entitled to any relief in the equitable jurisdiction of this Court under Article 226 of the Constitution of India. He has further argued that the order passed by the Divisional Commissioner though was an order in the administrative side, but the inquiry got conducted by the DIOS who is an authority recognized under the Intermediate Education Act, 1921 and the regulations framed thereunder and, therefore, the direction of inquiry may be only an irregularity and will not vitiate in any manner the findings returned by the DIOS.
8. Having heard learned counsels for the parties and having perused the record, I find that the entire inquiry in the matter was initiated at the instance of some complaint made to the Divisional Commissioner, Gorakhpur Division, Gorakhpur. This Court finds that in matters of irregular or illegal appointments, the Intermediate Education Act, 1921 and the regulations framed thereunder provide for full scale procedure and also authorizes the authorities in that regard. Any inquiry into the matter, if was got to be conducted, it was to be conducted by the Committee of Management in the first instance and in case if the Committee of Management was not taking any action in the matter then DIOS is well within its right to take coercive action to nail-down the Committee of Management to put to task where he finds that the matter requires inquriy. But in the instant case, I find that the complaint was not made to any educational authority recognized under Intermediate Education Act, 1921. Taking notice by the Divisional Commissioner of a complaint in matters of appointment of a teacher in a recognized Institution under the Intermediate Education Act, 1921 is per-se illegal and cannot be upheld and therefore, in my opinion the Divisional Commissioner fell in serious error of law and authority in directing for an inquiry by the Addl. Commissioner, who was equally not competent to hold any inquiry into the matter. Further I find that even if the inquiry was got conducted and the argument of learned Standing Counsel is accepted that it was only a direction issued by the Divisional Commissioner for a fact finding inquiry, I fail to understand why the Divisional Commissioner having once accepted the inquiry report conducted by his own subordinate, further proceeded to direct the DIOS to hold another inquiry instead of requesting the Committee of Management to hold an inquiry in the matter. It appears that the Divisional Commissioner was definitely acting on some extraneous considerations which cannot be approved of by this Court in matters of appointment, payment of salary of teachers of recognized institutions under the Intermediate Education Act, 1921.
9. Since I have already held and I have already recorded finding to the effect that the Divisional Commissioner was fully in error of law and authority in directing for an inquiry, I find that any consequential action in pursuance thereof has also not been upheld. Further on merits also I find that the petitioner was appointed initially as untrained teacher which is established on record as he possessed only Intermediate qualification. It is a fact established on record that the State Government had issued Government Order for providing trained grade to untrained teachers in such institutions teaching in primary section, Senior Basic School, Junior Basic School even. That being the situation if the petitioner has been granted trained grade applying the rule of Government Order with regard to such teachers, I find no such factual error nor I find any such irregularity to the tune of impunity to hold that the payment of salary to the petitioner was illegal in any manner whatsoever. The findings of the DIOS that the appointment of the petitioner was irregular is also not sustainable in law. Once it has come to be established that the petitioner was having Intermediate qualification and was appointed as such in untrained grade, unless the DIOS had come to record a definite finding that prescribed procedure in matters of selection and appointment of the petitioner was not followed. The findings recorded by the DIOS that the appointment of the petitioner as Assistant Teacher was irregular in any manner is, therefore, highly perverse and not sustainable. Further a mere irregularity in the initial appointment, in view of the settled legal principles will not hold the appointment of the petitioner to be illegal, unless irregularity is of such nature and to such an extent of impunity that the appointment can be held to be void-ab-initio.
10. In view of above, the writ petition is allowed.
11. The impugned orders passed by Divisional Commissioner dated 20.09.2010 and the order passed by DIOS dated 25.11.2010 (Annexure Nos. 6 & 7 respectively) are hereby set aside. The petitioner shall be entitled to all consequential benefits including arrears of salary.
Order Date :- 29.5.2018 IrfanUddin