Hari Babu Singh vs District Inspector of Schools and Another

Heard learned Counsel for the Appellant as well as learned Standing Counsel for the State. None appeared on behalf of Respondent No. 2, although notices were issued by the order dated 11.03.2010 on the delay condonation application. The office has submitted a report on 26.04.2010 that neither undelivered cover, nor acknowledgment returned back after service. The notice deemed to be sufficient on Respondent No. 2.

This Special Appeal has been filed by the Appellant against the judgment and order dated 29.08.2011 by which the writ petition filed by the Appellant was dismissed in default as well as against the judgment and order dated 27.01.2010 by which learned single Judge dismissed the application of the Petitioner-Appellant for restoration of the writ petition.

A counter affidavit has been filed on behalf of Respondent No. 1 in the stay application filed along with the appeal. Learned Counsel appearing on behalf of the parties are agreed that the appeal be finally decided.

The brief facts of the case arises to this appeal are that the Appellant (here-in-after referred to as ''Petitioner''), filed a writ petition praying for mandamus directing the Respondents to pay the salary to the Petitioner and arrears since the date of appointment i.e. 15.03.1991. The Petitioner''s case in the writ petition was that Higher Secondary School, Talesra is a recognized educational institute under the U.P. Intermediate Education Act, 1921. It is claimed that on account of death of one Mahender Kumar, Assistant Teacher on 06.09.1990, a vacancy came into existence, which was notified by the Committee of Management. The post having remained vacant after more than two months, the Committee of Management under the U.P. Secondary Education Service Commission and Selection Board Act, 1982 made ad-hoc appointment of the Petitioner on 12.03.1991 as Assistant Teacher L.T. Grade. The Petitioner''s case is that Petitioner''s appointment was communicated by the Committee of Management to the District Inspector of Schools and since the District Inspector of Schools was not passing any order on the representation of the Petitioner with regard to payment of salary to the Petitioner, the Petitioner filed a writ petition before this Court, which was disposed of on 23.08.1991 directing the District Inspector of schools to consider the representation dated 30.05.1991 made by the Petitioner. The Petitioner submitted a certified copy of this order along with an application to the District Inspector of Schools. The Petitioner''s case is that No. order was passed and the District Inspector of Schools send a letter dated 18.11.1991 to the Additional Director of Education, Allahabad seeking certain guidance. The Petitioner''s case is that he has been working on the post of Assistant Teacher and this Court passed an interim order on 22.05.1992 directing the District Inspector of Schools to pay salary to the Petitioner and on that basis an order was passed by the District Inspector of Schools on 17.08.1992 to make payment of salary to the Petitioner as Assistant Teacher L.T. Grade. The Petitioner''s case is that under the interim order passed by this Court on 22.05.1992, he was getting his salary till 2009.

The writ petition filed by the Petitioner was dismissed in default on 29.08.2001 due to non-appearance. However, the Petitioner was not informed by his counsel about the dismissal of the writ petition and the Petitioner continue to get the salary upto the year 2009. The Petitioner came to know that Petitioner''s salary was stopped under some general order by the District Inspector of Schools. Thereafter Petitioner came and enquired and thereafter filed an application for restoration on 05.09.2009 specifically taking the ground that the Petitioner was not informed by his counsel about the dismissal of the writ petition due to non�appearance. The restoration application of the Petitioner was dismissed on 27.01.2010. The order passed by learned single Judge dismissing the restoration application is as under:�

The order was passed dismissing the writ petition on 29.08.2001. The application has been filed on 05.01.2009 only on the ground that it was not noted. This cannot be believed that the writ petition was dismissed in 2001 and the Petitioner is not having any knowledge regarding the dismissal of the writ petition up to 2009. Interim order was operative in favour of the Petitioner.

As such it appears that the Petitioner has deliberately not filed any application for recall of the said order.

The application is hereby dismissed.

Learned Counsel for the Petitioner submits that the restoration application filed by the Petitioner was supported by an affidavit and No. counter affidavit was filed to the restoration application refuting the allegations made therein. He further submits that the learned single Judge committed an error in assuming that this cannot be believed that Petitioner had No. knowledge of the dismissal of the writ petition up to the year 2009.

We are of the view that Petitioner having specifically stated in the affidavit filed in support of the restoration application that he is not aware about the dismissal of the writ petition and there being No. material brought on record that the Petitioner was aware of order of dismissal of the writ petition, the restoration application ought to have been allowed and the matter be considered on merits.

8.In view of the above, we are of the view that sufficient ground is made out by the Petitioner for recall of the order dated 29.08.2001. In the result, the order dated 27.01.2010 rejecting the restoration application as well as the order dated 29.08.2001 dismissing the writ petition in default are hereby recalled.

Learned Counsel for the Petitioner as well as learned Standing Counsel, at this stage, submitted that the District Inspector of Schools has not yet taken any decision in pursuance of earlier direction passed by this Court on 23.08.1991, therefore the matter may be remitted back to the District Inspector of Schools to pass a final order regarding the claim of the Petitioner for entitlement of the salary as Assistant Teacher L.T. Grade appointed on ad-hoc basis on 12.03.1991. In the counter affidavit, which has been filed in the appeal, it has not been stated that any decision has been taken by the District Inspector of Schools in pursuance of the earlier direction of the Court dated 23.08.1991. Only the letter which is brought on record that the letter dated 18.11.1991 was written to the Additional Director of Education asking his guidance on certain issues, as referred to in the letter.

In the facts of the present case, we of the view that the writ petition is to be disposed of directing the District Inspector of Schools to take a final decision regarding the claim of the Petitioner claiming ad-hoc appointment as Assistant Teacher L.T. Grade. The District Inspector of Schools may ask for relevant report by the Committee of Management as well as consider the other records filed by the Committee of Management before the District Inspector of Schools. We make it clear that we are not expressing any opinion on the merits of the Petitioner''s case, therefore the District Inspector of Schools shall consider all aspects of the matter and take appropriate decision with regard to the claim of the Petitioner for payment of salary in accordance with law. The said decision shall be taken expeditiously preferably within a period of three months from the date of receipt of a certified copy of this order.

With the aforesaid direction, the special appeal as well as the writ petition are disposed of.