Amar Nath Mishra vs District Inspector of Schools Allahabad &Ors.

A. K. Yog, J.—Present writ petition under Article 226, Constitution of India has been filed by the petitioner against order dated 1681980 (AnnexureX) passed by District Inspector of Schools, Allahabad and also order dated 1191979 referred in the said order of the District Inspector of Schools, Allahabad (AnnexureX) and also another order dated 2021975 passed by District Inspector of Schools directing to stop, payment of salary. Petitioner also sought writ in the nature of mandamus directing opposite parties to treat the petitioner in the lecturer''s grade since 1951 and pay him the salary accordingly.

Petitioner pleaded that he was appointed as Teacher (Sanskrit) in Public English School, Manauri, Allahabad (hereinafter called Institution). When Institution was allowed Inter Classes, petitioner was required to teach Sanskrit in Inter Classes. Petitioner received salary as lecturer for some time, but subsequently it was stopped under the impugned order dated 2021975 on the ground that petitioner did not possess requisite educational qualification. District Inspector of Schools also withheld the approval in favour of the petitioner''s appointment as Lecturer. As a consequence thereof, another order dated 1681980 (Annexure10) was issued by District Inspector of Schools directing for realization of excess payment, if any received by the petitioner as Lecturer Le. difference of emoluments between the pay scale of Assistant Teacher (L.T Grade) and the pay scale of Lecturer.

Surendra Narain Pandey, another Teacher, who claims to have been appointed by promotion on the post of Lecturer (Sanskrit) in the institution filed an impalement application and it having been allowed, he has been imp leaded as Respondent No. 3 in the present petition.

Respondent Nos. 1 and 2, on one hand and Respondent No. 3, on the other hand filed separate counteraffidavit, rejoinder affidavit has also been filed.

In the instant case an interim order dated 17101984 was passed in favour of the petitioner subject to certain conditions like security etc.. By a subsequent order dated 5111984 this Court provided that the earlier interim order dated 17101984 shall be available to the petitioner only if no person was duly appointed on the post in question before passing of the order and in case some other person was already appointed, petitioner was not to get benefit of the interim order.

Having heard learned counsels for the parties, I find that the present petition can be decided, without adjudicating on the issues on merits, in the manner herein below.

The petitioner has himself filed copy of letter dated 12121989 (Annexure RA7) issued by District Inspector of Schools addressed to the Deputy Director of Education, Allahabad Region. Allahabad and therein it is mentioned that the impugned order passed by District Inspector of Schools dated 1681980 (Annexure 10) has been rescinded. Perusal of RA7 of the rejoinder affidavit further shows that District Inspector of Schools observed that no amount should be recovered from the petitioner as the emoluments received by him during the relevant period 1967 of February 1975 in L.T. Grade as Assistant Teacher were not more than what petitioner could get in the Lecturer''s Grade and, therefore, no amount could be said to be due which could be recovered. In view of the said letter of the District Inspector of Schools, learned counsel for the petitioner submitted that no grievance of the petitioner, on this score, survives for adjudication.

The grievance of the petitioner, at the moment, remains regarding his entitlement of working of Lecturer (Sanskrit) in the Institution from March, 1975 to June 30,1986 and on that basis his claim of receiving salary in the Lecturer''s Grade treating him as Lecturer. In this respect petitioner has filed several documents along with the rejoinder affidavit filed in reply to the counteraffidavit of Respondent No. 3. On behalf of respondent an objection is being taken that new documents filed along with the rejoinder affidavit cannot be looked into. Since copy of the rejoinder affidavit was served on learned counsel for Respondent long back (in the case of Respondent Nos. 1 and 2 on 751999 and in the case of Respondent No. 3 in the year 1997 as stated by Dr. R.S. Drivedi, Senior Advocate, representing the petitioner). Supplementary counteraffidavit could be brought on record to meet new averments and the documents brought through rejoinder affidavits. Keeping in view of the fact that the present petition is pending since 1980 and that various documents filed by and on behalf of the Respondents in their counter affidavit shows contradictory and shifting stands taken by the educational authorities e.g., District Inspector of Schools concerned. The Court is unable to have a clear picture or to believe and/or disbelieve the version of either of the parties. In this respect reference may be made to Annexure CA15 (filed along with counteraffidavit of Respondent No. 3) visavis Annexure 5 to the rejoinder affidavit filed along with the rejoinder affidavit in reply thereto. Similar in the position when one looks at the enquiry report of the District Inspector of Schools Annexure RA6 annexed along with the rejoinder affidavit filed in reply to the counteraffidavit of Respondent No. 3 visavis Annexure 10 which is order of the District Inspector of Schools rejecting petitioner''s representation regarding his appointment in Lecturer''s Grade.

In this context it may be stated that if the Annexure filed along with the writ petition are read along with the other Annexure filed along with the counteraffidavit of Respondent No. 3 it becomes clear that on one hand the District Inspector of Schools refused to accord approval to the petitioner in Lecturer''s Grade on the ground that he did not possess requisite minimum educational qualifications required at the relevant time and, on the other hand, District Inspector of Schools had granted approval to Respondent No. 3, though on ad/roc/temporary basis and the said order was also subsequently suspended to the condition that the said order of approval dated 3041984 and subsequent by order dated 2291984 (RA5 to the rejoinder affidavit) shall be subject to final result in the present writ petition, etc.

It is not safe to go into these questions relating to facts which may require findings on assessment of evidence while deciding case in exercise of jurisdiction under Article 226, Constitution of India.

In the entirety of the facts and circumstances, as well as in view of the stand taken by all the counsels appearing in the present case, who agree that the question of appointment by promotion in favour of the petitioner or that of Respondent No. 3 may not be adjudicated on the basis of the material filed by the parties in the writ petition and that it will be appropriate that Joint Director of Secondary Education at Allahabad may decide the said issue after affording opportunity to the concerned parties including the Committee of Management of the Institution. In view of the stand taken by the learned counsels representing the parties and in the circumstances indicated above the Court is of the opinion that the present writ petition may be disposed of subject to the following directions:

(1) There shall be no recovery of the amount on the ground of excess payment against the petitioner keeping in view the order issued by District Inspector of Schools dated 2121989 (Annexure RA7) to the affidavit of Amar Nath Mishra.

(2) Amar Nath Mishra (petitioner) and Surendra Narain Pandey, Respondent No. 3 shall appear before Joint Director of Education (Secondary), Allahabad on 1561999 along with their representations containing detailed pleading in respect of their respective claims. Said authority shall proceed to hear and decide the matter in accordance with law.

(3) The authority shall get the copies of the representations exchanged on date. Thereafter parties shall be allowed time to file evidence by submitting list of documents.

(4) The authority shall also, if deemed appropriate, summon concerned original record and thereafter fix date for personal hearing of the parties including the Committee of Management.

(5) After affording opportunity of hearing, Joint Director of Education, Allahabad Region, Allahabad concerned shall decide the matter by a speaking order as early as possible, preferably not more than four months, to be computed from 15th June, 1999.

(6) Copy of the aforesaid order shall be communicated to the parties concerned by registered post acknowledgment due on the addresses given in their representations.

The writ petition is finally disposed of, subject to the above directions.