Ajay Kumar Singh vs DIOS and Others

Vinod Kumar Misra, J.—1. Heard Sri Gulab Shankar, learned counsel for the petitioner and Sri Uma Nath Pandey, learned counsel for the respondent.

This appeal is preferred challenging the correctness and validity of the judgment and order dated 10.1.2013 passed by the learned Single Judge in Civil Misc. Writ Petition No. 28644 of 1992 (Ajay Kumar Singh v. District Inspector of Schools), whereby the writ petition was dismissed. Relief prayed by way of this appeal is for setting aside judgment and order impugned.

The judgment impugned is assailed on the ground that the learned Single Judge has wrongly and illegally rejected the claim of the petitioner and has not issued writ of mandamus as prayed for commanding the District Inspector of Schools, respondent No. 1 to pay arrears of salary to the petitioner w.e.f. 8.8.1989 and continue to pay him salary as and when it falls due in future.

The Court by the impugned judgment after considering the pleadings made before it and noticing the provisions of statute with regard to the appointment came to the conclusion while dismissing the writ petition that the petitioner was not entitled to the said relief and that the writ petition is, accordingly, devoid of merits.

The relevant paragraph 29 of the impugned judgment reads thus:

"Further, in view of the fact that respondents miserably failed to demonstrate any reason whatsoever justifying the order dated 12.2.1999 and to explain as to what was the occasion for DIOS to pass such an order, following the exposition of law laid down by Apex Court in R. Vishwanathan Pillai (supra), it is provided that the fifty per cent of entire amount received by petitioner as salary or otherwise, pursuant to DIOS''s order dated 12.2.1999, shall be recovered from petitioner and rest of fifty per cent of above amount shall be recovered from the then District Inspector of Schools, who passed the said order and thereafter shall be deposited in State Exchequer."

It was also assailed on the ground that one Triloki Nath, who had been appointed, had not joined his services and his non joining a post was lying vacant. It was also submitted that appointment of the petitioner on the said vacant post is valid appointment. In spite of this, the appointment letter dated 6.7.1985 issued in favour of one Triloki Nath is being admitted by the respondent. As such the finding recorded by the learned Single Judge that there was no vacancy is illegal and incorrect. Therefore, on this ground the impugned judgment is liable to be set-aside.

It was also stated that admittedly the petitioner was given appointment letter on 1.8.1989 and he joined on the said post on 8.8.1989 and since then petitioner is working in the institution on the said post. The District Inspector of Schools, Basti could not pass the order that appointment of the petitioner as illegal and that it was not against vacant post; this aspect was also not considered by the learned Single Judge in the impugned judgment; that admittedly the petitioner was appointed by the management as Assistant Teacher, L.T. Grade in accordance with the First Removal of Difficulties Order, 1981 and provisions of U.P. Secondary Education Service Selection Boards, Act, 1982. As such his appointment is legal and he was rightly paid salary of Assistant Teacher before his termination for the reason that reserved pool teacher, Triloki Nath was also offered appointment by District Inspector of Schools, Basti vide order dated 6.7.1985 under Section 21-B of the U.P. Secondary Education Secondary Education Service Selection Boards Act, 1982 (amended/added vide U.P. Act No. 19 of 1985); there is no manipulation in the appointment letter of the petitioner and findings contrary recorded by the learned Single Judge and District Inspector of Schools that they are against the procedure prescribed for falling upon the substantive vacancy as provided in the First Removal of Difficulties Order, 1981 and provisions of U.P. Secondary Education Service Selection Boards, Act, 1982.

Learned counsel for the respondent has submitted that order passed on 1.7.1994 by District Inspector of Schools pursuant to the order of the Court dated 20.12.1993 had not been assailed by the petitioner before the writ court therefore in absence of prayer for quashing of such order, there was no occasion for the Court to look into the its correctness or for setting aside it.

Admittedly, from the record it is apparent that Triloki Nath had not jointed the post and in the event of his non-joining the post could not be said fall vacant and recruitment process should be followed. For reason once the post has been offered after due selection process, process for appointment exhausts. It was stated by the learned counsel for the respondent that there were in all 29 posts in the College including 6 posts of Lecturer, 2 posts of L.T. Grade and 9 post of C.T. Grade Lecturers which all were filled in, and, there was no vacancy, therefore, the appointment of the petitioner itself was illegal; that Sri Triloki Nath, who was sought to be appointed on the post of Assistant Teacher (L.T. Grade) and the word ''Jeev Vigyan'' was not mentioned in his appointment letter, but the Management has manipulated the said letter and added these word for treating the same as separate vacancy in which the petitioner has applied, which was invalid as even procedure was not followed. Reliance was also place upon an order dated 12.2.1999 passed by erstwhile DIOS pursuant to this Court''s order dated 14.9.1992 in the writ petition. Thereafter, a counter affidavit sworn on 23.1.1993 was filed on behalf of the DIOS. It was stated therein that there existed no vacancy of L.T. Grade Assistant Teacher in the institution; it is incorrect to State that any vacancy was notified to the Commission (U.P. Secondary Education Services Selection Board) constituted under U.P. Secondary Education Service Selection Board Act, 1982 (hereinafter referred to as "Act, 1982") by the Committee of Management of College, the vacancy was never notified to the Commission; alleged selection by Committee of Management was void, as the procedure under the Act and Rules was not followed and no prior approval of DIOS was obtained. It also stated that respondent No. 1, i.e., DIOS never granted any approval and the alleged approval dated 28.3.1991 filed as Annexure 6 to the writ petition is a forged and fictitious document. It further stated that petitioner is guilty of suppressing material facts and filing forged documents.

The Learned Single Judge relying upon the judgment of the Apex Court in P. Chitharanja Menon and others v. A. Balakrishnan and others, , AIR 1977 SC 1720 in which the Apex Court held that in absence of challenge to the basic order subsequent consequential order cannot be challenged. Learned Judge also relied upon a judgment in Roshan Lal and others v. International Airport Authority of India and others, , AIR 1981 SC 597 in which it was held that unless basic order is challenged the consequential orders neither can be challenged nor be examined by the Court. Furthermore, This Court has also followed the above law of the Apex Court in Gaon Shiksha Samiti, Auraiya and another v. State of U.P. and others, , 2003(3) AWC 2466.

As regards issuance of a writ of mandamus for payment of salary was concerned, the writ court observed that it can only be issued when petitioner seeking such a writ, is able to demonstrate before the Court that his appointment has been made validly and, therefore, he has a right to claim salary from State Exchequer for payment which the respondents are under statutory obligation. Furthermore, an Assistant Teacher claiming his appointment in a secondary educational institution has also to demonstrate:

"(a) there existed a vacancy against a sanctioned post in which he could have been appointed, and,

(b) procedure prescribed for valid appointment on the sanctioned post has been strictly observed and followed."

In the present case, DIOS has categorically stated that there did not exist any vacancy on a sanctioned post of Teacher whereagainst petitioner could have been appointed. In all there were 29 posts of teaching and non-teaching staff and all 29 posts were duly occupied by teaching and non-teaching staff duly approved by DIOS and getting salary. The learned Judge even noticed in the judgment impugned that from the own averments made by the petitioner himself in para 4 of rejoinder affidavit, the DIOS''s letter dated 6.7.1985 was for restitution of one Triloki Nath, alleged Reserved Pool Teacher on the post of Assistant Teacher (L.T. Grade) and he did not refer to any creation of post.

The petitioner failed to demonstrate that any post was crated in 1985 which was lying vacant at the relevant time which the petitioner could have been appointed. Apart from it an assumption appears to have been drawn that vacancy of Assistant Teacher (L.T. Grade) existed against which the petitioner could claim his appointment as per the procedure prescribed in the Statute. The case set up by petitioner is that the alleged vacancy was a substantive one. In 1989, admittedly, no appointment could have been made unless vacancy is requisitioned to Board and a candidate selected by it is not recommended within two months. In absence of such a recommended candidate by the Commission, an ad hoc appointment could have been made in accordance with procedure prescribed in Section 18 of Act, 1982 read with Clause 5 of Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981 (hereinafter referred to as "First Order"). Section 18 of Act, 1982, as it stood at the time when appointment of petitioner is an ad hoc basis claimed to have been made.

The procedure prescribed in First Order does not appear to have been followed in the case of the petitioner. The effect of such contravention/non compliance is that the very appointment of petitioner is void ab-initio.

It was found by DIOS that there was no vacancy in the aforesaid school, as all the total 29 posts were already filled in, so there was no occasion for offering appointment to Mr. Triloki Nath in this school, as there was no vacancy. In this situation, the DIOS could not direct the Manager of the School for offering appointment to Triloki Nath, Reserved Pool Teacher to issue appointment letter, as there was no vacancy in the school. As a result of which when Triloki Nath did not join then appellant could not be given appointment on the ground of non joining of Triloki Nath. So when there was no vacancy then neither Triloki Nath nor appellant could be offered appointment and thus basic letter dated 6.7.1985 by which DIOS offered appointment to Triloki Nath, Reserved Pool Teacher was not correct or legal appointment. Reserved Pool Teacher could be offered only on permanent substantive post, so DIOS has correctly passed an order on 29.6.1994 and 1.7.1994 and then there was no further scope in 1999 to the DIOS to pass order for payment of salary to the petitioner considering the vacancy of the year, 1985 and his appointment dated 1.8.1989. The DIOS has no power to review the order passed by his predecessor way back on 29.6.1994/1.7.1994. Furthermore, no due procedure was observed for the appointment as procedure prescribed in Section 18 of Act, 1982 read with Clause 5 of Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981 was not followed. Moreover, it was also found by the DIOS during enquiry that no alleged approval letter dated 28.3.1991 was in existence in the DIOS office and there was no mention of dispatch of such letter in the dispatch register in DIOS Office. He also mentioned that despite demand college management or petitioner could not produce the letter except the photo copy. Moreover, the petitioner could not produce the aforesaid letter before the learned Judge inspite of his assertion in the affidavit at the time of arguments. So, in these circumstances when there was no vacancy in the school and all the posts sanctioned in the school were already filled, appointment could not have been offered to the Triloki Nath and upon not joining of Triloki Nath, offer could not be made to the appellant for appointment as a teacher in the concerned school. So alleged appointment of the appellant is basically illegal and is outcome of collusion between the appellant and DIOS and the Management of the school. So, in this scenario we do not find any illegality in the impugned judgment passed by the learned Judge, as the same is based upon proper appraisal of the material available on record and judgment of the learned Single Judge is based upon the proper reasoning and supported with the case law of Apex Court cited in the judgment.

The Special Appeal is, accordingly, dismissed.