The present writ petition has been filed for quashing the order dated 27.7.2007 passed by respondent No.2. Further a writ in the nature of mandamus directing the respondents to pay salary to petitioner with arrears and interest as well as current salary.
The facts arising out of writ petition are that in the year 1996, petitioner including two other candidates applied for the post of Assistant teacher in Basic Vidyalaya but Basic Shiksha Parishad refused to consider the claim of petitioner, therefore, a Writ Petition No.34457 of 1996 was filed and by order dated 8.8.1996, writ petition was entertained and time for counter affidavit was granted. The order to this effect was passed that candidature of petitioner should not be objected in view of orders dated 18.11.1989 and 14.12.1989.
In pursuance of aforesaid letter, respondent No.2 issued an appointment letter in favour of petitioner and petitioner joined the post as Assistant Teacher in Prathmik Vidyalaya, Demanpur, Shahganj District Jaunpur on 27.7.1996. Petitioner was teaching in the institution and was regularly taking classes but salary was not being paid, therefore, petitioner has approached Basic Shiksha Adhikari by letter dated 3.7.1999 wrote to respondent No.2 that appointment of petitioner is genuine and valid, as such, he is entitled for salary. In spite of aforesaid direction, when no salary was being paid then respondent no.2 on 7.4.2001 ordered respondent No.3 that petitioner be paid his salary with effect from 30.3.2001. A report was submitted by respondent No.3 to Up- Basic Shiksha Adhikari (Third) Jaunpur stating that he has called respondent 2 on 18.4.2001 and gave him the orders dated 7.4.2001 and 8.4.2001 but he refused to permit petitioner to join the post. In spite of specific direction when petitioner was not permitted to join and sign on attendance register then petitioner approached respondent No.1 who on 12.11.2001 directed respondent no.2 to see that petitioner is given charge of the post and paid salary but in spite of aforesaid fact, respondent no.3 has refused petitioner to join the post. Subsequently, headmaster of the institution was directed to give charge to petitioner but in spite of aforesaid fact, nothing was done. Subsequently, Assistant Basic Shiksha Adhikari on 31.1.2002 wrote a letter and informed respondent No.2 that headmaster has also refused to permit petitioner to join in the institution. Subsequently, respondent No.2 on 7.4.2001 allowed petitioner to join but salary to petitioner was not paid then petitioner filed a writ petition before this Court and this Court on 20.3.2002 passed an order to this effect that respondent will ensure functioning of petitioner as teacher and to pay current salary to petitioner within a period of six weeks. In pursuance of the aforesaid order, Basic Shiksha Adhikari Jaunpur attached petitioner with Prathimik Vidyayala, Shahganj, District Jaunpur and approval to that effect was given by Basic Shiksha Adhiari, Jaunpur on 23.4.2004. Respondent no.3 wrote a letter informing competent authority in pursuance of the order dated 23.4.2004 that petitioner has joined and has approved for payment of salary. Petitioner made several representations to this effect that petitioner has joined and is taking classes regularly but salary is not being paid. In spite of direction issued in writ petition, no counter affidavit was filed then this Court passed final order directing competent authority to take decision and pass a reasoned order taking into consideration the fact that petitioner is working and, therefore, he is entitled for salary and it was directed that same may be considered and decided within a period of two months.
On the basis of direction issued by this Court, petitioner approached the authority concerned but no decision was taken then a reminder to that effect was made but respondent vide its order impugned dated 27.7.2007 has 3 rejected the claim of petitioner on the ground that appointment of petitioner is not proper and, therefore, he is not entitled for salary.
It has been contended by learned counsel for petitioner that petitioner has earlier filed a writ petition specifically stating therein the date of appointment and validity of appointment but respondent No.2 at no point of time denied this fact regarding whether appointment of petitioner is correct or not. Petitioner has filed all relevant papers to respondent No.2 who while considering the claim of petitioner has not considered the same. Observation by the Basic Shiksha Adhikari to this effect that petitioner in spite of service of notice has failed to produce relevant papers relating to his appointment, is incorrect. Petitioner has appeared and attended the office of respondent No.2 on each and every date but no letter was served upon petitioner regarding any papers which were required by respondent no.2. As regards the enquiry relating to appointment of teachers dated 24.2.1996, 14.3.1996 and 6.8.1996, was inquired into. Petitioner was appointed on 26.9.1996. The said appointment was never cancelled by Enquiry Committee, therefore, petitioner will be deemed to be duly appointed and respondent No.2 has got no jurisdiction to re-examine the appointment and to hold that petitioner was not validly appointed. Petitioner has brought to the notice the letter dated 7.4.2001 issued by the Basic Shiksha Adhikari to the Principal of the institution regarding payment of salary. Further petitioner has also brought to the notice of the Court the order dated 8.8.1996 and has submitted that in pursuant to aforesaid order, petitioner was appointed on 26.9.1996. Then in such circumstances, whether when the controversy was regarding payment of salary to petitioner, respondent No.3 i.e. Basic Shiksha Adhikari was having any jurisdiction to hold that there was no appointment of petitioner in the year 1996 and papers submitted by petitioner regarding payment and other relevant documents are forged and frivolous. In such circumstances, learned counsel for petitioner submits that order is liable to be quashed.
On the other hand, learned Standing Counsel in spite of time granted, no 4 counter affidavit has been filed. Only counter affidavit has been filed on behalf of respondent Nos.2, 3, and 4. In the counter affidavit filed on behalf of respondents, it has been submitted that in pursuance of the Government Order dated 13.6.1995, candidates who have obtained B.T.C. training certificate through correspondence course were admitted to be equivalent to the regular course of BTC but the State Government vide its order dated 11.8.1987 cancelled the similarity of correspondence course and has directed to fill up vacancy of Assistant teachers in Basic Schools amongst candidates having completed the course of BTC, HTC, JTC. Petitioner tempered the documents and succeeded to get appointment on the basis of forged documents. If petitioner was having eligibility he must have been appointed in the year 1997 together with other candidates and thus it is clear that he was not appointed in the year 1997. To this effect a report was called for from Assistant Basic Education Officer who submitted a report dated 13.5.1009, a copy of the same was annexed as Annexure 1 to counter affidavit.
I have considered the submissions made on behalf of parties and have perused the record. It appears from record that petitioner was initially appointed on 26.9.1996 which is apparent in view of the fact and the order passed on 8.8.1996 in Writ Petition No.24457 of 1996. Petitioner was not permitted to join the post. Then subsequently on the basis of direction issued by the competent authority dated 31.1.2002, joined the post which is apparent from the letter of the Principal dated 24.3.2004. A certificate dated 15.4.2006 regarding working of petitioner has also been annexed to writ petition as Annexure 15 to writ petition. When petitioner was not being paid salary, then this Court in a Writ Petition No.1185 of 2002 which was finally disposed of on 18.5.2006, directing relevant authority to take into consideration regarding grievance of petitioner for the purposes of payment of salary on the basis of letter sent by Assistant Basic Shiksha Adhikari. The earlier order of this Court clearly indicates that petitioner was appointed on 26.9.1996 and on the basis of appointment letter petitioner joined on 27.9.1996 but he was not permitted to sign on attendance register and salary was not being paid. By letter dated 5 3.7.1999 respondents have stated that petitioner is entitled for salary, in spite of the direction issued by respondent No.1, principal of the institution does not permit petitioner to sign on attendance register. By order dated 7.4.2001, a direction was issued to pay salary with effect from 30.3.2001. Petitioner was permitted to join in Primary School Shahganj on 23.4.2004 and is working there but salary was not being paid, in such circumstances, this Court has directed Basic Shiksha Adhikari to pass appropriate orders. Now by order impugned, it has been held that petitioner was never appointed. It is borne out from record that various appointments made on 24.2.1996, 14.3.1996 and 6.8.1996 was cancelled and various writ petitions were filed and this Court on 14.8.1997 has directed that within a period of three months, Selection Committee be constituted and eligible candidates may be considered and be given appointment and in compliance with aforesaid direction, in the month of October, 1997, eligible persons have been given appointment. But from the record, it appears that appointment of petitioner was made on 26.9.1996. It is not clear from the record that he is one of the candidate of other candidates appointed during that period i.e. 368 days. It is also clear that petitioner was one of the petitioner in Writ Petition No.24457 of 1996 and order was passed on 8.8.1996.
Once the authority is passing an order regarding payment of salary in favour of petitioner and directing Principal of the institution to permit him to join, then in that circumstances, if this Court in the earlier Writ Petition No.11854 of 2002 directs the Basic Shiksha Adhikari to pass appropriate orders regarding payment of salary, then in that circumstances, whether the order impugned holding therein that appointment of petitioner was not valid, can be passed. Earlier the same authority is directing the authority below to permit him to join and to pay salary mentioning thereby considering his appointment valid.
In such circumstances, I am of the opinion that the order impugned is not sustainable in law and cannot be sustained and is liable to be quashed. The 6 writ petition is allowed. The order dated 27.7.2007 (Annexure 1 to writ petition) is hereby quashed and matter is remanded back to respondent No.2 i.e. District Basic Education Officer to pass appropriate orders strictly in accordance with law in view of observations made above taking into consideration the earlier orders passed by competent authority regarding payment of salary. The said order be passed after affording full opportunity to petitioner within a period of two months from the date of production of certified copy of this order.
No order as to costs.
Dt.5.1.2010 SKD