Ram Kumar vs District Inspector of Schools and Others

R.B. Mehrotra, J.—C.M.D. Inter College, Chodiala, district Haridwar (here in after referred to as the institution) is a recognised institution under the U.P. Intermediate Education Act, 1921 and is also within the purview of the U.P. High School and Intermediate Colleges (payment of salaries of Teachers and other employees) Act 1971.

One Sri Padam Singh Tomar serving as an Asstt. teacher in L.T. grade in the institution retired on 20th of June, 1988. The vacancy caused by the retirement of Sri Padam Singh Tomar was notified under the provisions of the U.P. Secondary Education Services Commission and Selection Board''s Act, 1982 (U.P. Act No. 5 of 1982). The U.P. Secondary Education Services Commission failed to make the selection. Consequent thereto, the Management of the institution proceeded for making ad hoc appointment on the post caused by the retirement of aforesaid Sri Padam Singh Tomar under the provisions of Section 18 of the U.P. Act No. 5 of 1982.

It is claimed that the Committee of Management appointed the Petitioner, by direct recruitment on 31-1-1991, on ad hoe basis, us Asstt. teacher in L.T. grade, in the vacancy causel by the retirement of aforesaid Sri Padam Singh Tomar.

In this petition, the Petitioner has pleaded that in the institution, there was need of an Asstt. teacher who could teach the subjects of Mathematics and Science as the strength of the High School students had gone higher who had chosen their subjects of studies in the Mathematics and Science and the existing strength of the teachers were not in a position to cover up the students who had opted the subjects of Mathematics and Science In this back-ground the Petitioner had contended that since the Petitioner was qualified in M.Sc Maths with Bachelor of Education Degree, the Petitioner was chosen for the said post.

The District Inspector of Schools, vide his litter, dated 19-2-1991 approved the appointment of the Petitioner in L.T. grade, as an Asstt. teacher in the instilution The appoval was granted only upto the period 30-6-1991. The said letter his been filed as Annexure ''1'' to the petition. Subsequently by another letter, dated 5-4-1991, the District Inspector of Schools clarified that the Petitioner�s appointment will continue till a regularly selected candidate from the Commission joins the post and the condition of approving the appointment of the Petitioner till 30-6-1991 stands deleted. This letter has been filed as Annexure ''2'' to the petition.

The District Inspector of Schools, vide his letter, dated 7-12-1992, filed as Annexure ''4'' to the writ petition, addressed to the Manager of the institution informed that the Petitioner has been appointed in L.T. grade in the vacancy caused in the institution and the approval for the said appointment has been obtained by concealing the fact that Sri Jawahar Lal Arya, as Asstt. teacher in C.T. grade in Arts was available for being promoted on the said post, accordingly the approval granted for the appointment of the Petitioner is modified and Jawahar Lal Arya is promoted in the L.T. grade in the vacancy caused by the retirement of Sri Padam Singh Tomar and the Petitioner is appointed in the vacancy caused by the promotion of Sri Jawahar Lal Arya. As a follow up action, the District Inspector of Schools approved the L.T. grade pay to Jawahar Lal Arya, vide his letter, dated 26-12-1992. Aggrieved by the aforesaid order, the Petitioner made a representation to the Deputy Director of Education, 1st Region, Meerut on 30-12-1992, contending therein, that the Petitioner has been appointed on 31-1-1991, u/s 18 of the U.P. Act No. 5 of 1982 by the Management in the vacancy caused by Sri Padam Singh Tomar and the Petitioner�s appointment has been approved by the District Inspector of Schools and since then the Petitioner is working in the institution. Without any notice or information to the Petitioner, the Manager of the institution has illegally passed a resolution for promoting the juniormost C.T. grade teacher Sri Jawahar Lal Arya in place of Sri Padam Singh Tomar. It was also contended in the representation that on the disputed post in C.T. grade, the appointment of Sri Jawahar Lal Arya was made purely on ad hoc basis and under the relevant provisions an ad hoc teacher is not entitled to be promoted. The Petitioner also contended in the said representation that the Petitioner�s appointment order has been arbitrarily modified without any opportunity to the Petitioner and in a wholly arbitrary manner. The Petitioner prayed that the order of the District Inspector of Schools amending the Petitioner�s approval on the post of L.T. grade teacher should be quashed.

The Petitioner�s contention is that since the Deputy Director of Education concerned did not take any action on the Petitioner�s representation the Petitioner filed the present writ petition in this Court challenging the order of the District Inspector of Schools, dated 7-12-1992, Annexure ''4'' to the writ petition and the order, dated 26-12-1992, Annexure ''5'' to the writ petition,

This Court on 22-3-1993 issued notices to the ''Respondents and in the meantime, stayed the operation of the impugned orders'' dated 7-12-1992 and 26-12-1992, filed as Annexures 4 and 5 respectively to the writ petition. The Standing Counsel was also granted time to file the counter affidavit.

In response to the aforesaid notices, Respondents No. 3 and 4, namely, the Committee of Management of the institution and Sri Jawahar Lal Arya have put in appearance and have filed separate counter affidavits. No counter-affidavit has been filed on behalf of the District Inspector of Schools or the Accounts Officer. Respondent No. 5 has also not filed any counter-affidavit despite service.

Before adverting to the stand of the Respondents, it may be recorded that the Petitioner has specifically pleaded in his writ petition that Respondent No. 4 was appointed as C.T. grade teacher in place of one Sri Subhash Chandra Sharma who was promoted in the L.T. grade. Lateron, one Anand Gopal Sharma claiming himself senior to Sri Subhash Chandra Sharma contested the promotion of Sri Subhash Chandra Sharma and the District Inspector of Schools recalled his order of promotion passed in favour of Sri Subhash Chandra Sharma. Sri Subhash Chandra Sharma filed a writ petition in this Court against the said order of the District Inspector of Schools in which he obtained an interim injunction, in his favour and on the basis of the injunction order passed by this Coure, Sri Subhash Chandra Sharma is working in L.T. grade in the institution. The Respondent''s appointment in C.T. grade, in place of Sri Subhash Chandra Sharma is only an ad hoc appointment and is in a short term vacancy and that too on a disputed post of Sri Subhash Chandra Sharma, who is continuing in L.T. grade on the basis of the interim order passed by this Court. The Petitioner�s main contention is that Respondent No. 4 under relevant law is not entitled for promotion, as only a permanent teacher working in a substantive vacancy is entitled for promotion in accordance with the relevant provisions of law. The Petitioner has also contended that the impugned orders have been passed without affording an opportunity to the Petitioner as such the same is violative of the principles of natural justice.

In the counter affidavit filed by Sri Jawahar Lal Arya, Respondent No. 4, a detailed narration of facts have been given detailing that at the time when the vacancy was caused by the retirement of Sri Padam Singh Tomar, one Sri Devendra Prasad, a seniormost C.T. grade teacher claimed his promotion but the then Devendra Prasad as he had some animus with him. Initially Sri Devendra Prasad made several representations claiming his promotion on the said post, but lateron as Sri Devendra Prasad got L.T. grade on the basis of a Government Order, he relinquished his claim for promotion on the said post. Thereafter one Sri Som Prakash, who was second in order of seniority in C.T. grade, also claimed for promotion against the post which had fallen vacant on 1-7-1988, but since he had also completed 10 years of satisfactory service, he was given L.T. grade in pursuance of the Government Order and he also relinquished his claim for promotion on the said post In the counter affidavit, there is narration of facts in relation to the appointment in another vacancy caused in the institution which is not relevant for the purposes of the controversy involved in the present writ petition. The contention of the Respondent No. 4 mainlv in the counter affidavit is that the Petitioner was illegally appointed as a direct recruir in the vacancy caused by Sri Padam Singh Tomar, who was Arts teacher and the Management of the institution has appointed him as Maths and Science teacher though in the institution several teachers for teaching Maths and Science subjects were available and the allegation in the writ petition that there was shortage of Science and Maths teacher is factually incorrect. The contention of Respondent No. 4 is that the vacancy caused by the retirement of Sri Padam Singh Tomar was to be filled by promotion and the Respondent No. 4 being a C.T. grade teacher was entitled to be promoted but the Management illegally filled up the said vacancy by appointing the Petitioner by direct recruitment and the approval was obtained by the District Inspector of Schools by concealing the relevant facts. Respondent No. 4 had been making representations to the principal, Manager, District Inspector of Schools and the Deputy Director of Education and all concerned. On considering the representation of Respondent No. 4, the District Inspector of Schools asked the Management to send the necessary resolution for promotion of Respondent No. 4 on the post caused by the vacancy of Sri Padam Singh Tomar. The then Management did not send the papers for promotion of Respondent No. 4. Subsequently the new Management came and the new Management, after making necessary enquiries and after being satisfied that Respondent No. 4 has been illegally deprived of his right of promotion to L.T. grade post, passed a resolution on 30-12-1991 and resolved to promote Respondent No. 4 as L.T. grade teacher with effect from 1-7-1988 and adjusted the Petitioner in the vacancy caused by the promotion of Respondent No. 4. It is also contended that the said resolution was passed by the Management with the consent of the Petitioner. It is further contended in the counter affidavit that the District Inspector of Schools, vide his orders, dated 5-12-1992 and 7-12-1992, after making necessary enquiries, amended his earlier order, dated 19-2-1991 passed in favour of the Petitioner and approved the promotion of Respondent No. 4 in the L.T. grade which fell vacant on the retirement of Sri Padam Singh Tomar. The Respondent No. 4 has been paid his salary in the L.T. grade on the basis of fixation of salary

It has been also contended in the counter affidavit that the Petitioner was never issued any appointment letter, as such is nor entitled to continue on his post.

It is admitted in the counter ailidavit that Respondent No. 4 has been appointed in place of Sri Subhash Chandra Sharma as C.T. grade teacher, who was promoted to L.T. grade on 14-3-1984 and against this vacancy Respondent No. 4 was appointed in L.T. grade by direct recruitment. It is alleged that since Sri Subhash Chandra Sharma is still continuing as L.T. grade teacher, the appointment of Respondent No. 4 cannot be called as a short term appointment. Respondent No. 4 has filed his appointment letter as Annexure ''18'' to the counter affidavit, the District Inspector of Schools in the letter addressed to the Manager of the institution has informed that Sri Subhash Chandra Sharma, Asstt. teacher C.T. grade has been promoted with effect from 1-3-1984 and Respondent No. 4 Sri Jawahar Lal Arya has been appointed in C.T. grade in place of Subhash Chandra Sharma with effeel from 14-3-1984. It is further stated in the said letter that the promotion of Sri Subhash Chandra and the appointment of Respondent No. 4 will be valid only till the candidate selected by the Commission and the Board joins the post and the promotion and appointment will automatically come to an end as soon as the selected candidate from the Commission and the Board joins the post. This letter of appointment clearly shows that Respondent No. 4 was appointed only on ad hoc basis in the disputed vacancy caused by the promotion of Sri Subhash Chandra Sharma.

The Management of the institution has also filed a counter affidavit almost reiterating the same contentions which Respondent No. 4 has contended in his counter affidavit. In the counter affidavit filed by the Management, however, it has been stressed that the Management of the institution duly convened the meeting for considering the cause of Sri Jawahar Lal Arya and circulated an agenda to that effect to all the members. Thereafter the Committee of Management in its meeting held on 30-12-1991 passed a resolution amending the resolution of the earlier Committee of Management, dated 22-11-1990 and resolved to promote Sri Jawahar Lal Arya in the L.T. grade in the vacancy caused by the retirement of Sri Padam Singh Tomar, and adjusted the Petitioner on the post of Sri Jawahar Lal Arya, who has been promoted in the L.T grade. It has been stressed in the counter affidavit that the Petitioner in his writ petition has falsely stated that the Committee of Management did not hold any meeting and did not pass any resolution deciding to promote Sri Jawalvr Lal Arya.

The Petitioner has filed rejoinder affidavits in reply to the counter affidavits filed by the Respondents. In the rejoinder affidavit, the Petitioner has reiterated that the meeting of the Committee of Management was not held in the institution and the proceedings of the Committee of Management are manipulated.

I have heard learned Counsel for the Petitioner in support of the writ petition snd the learned Counsel for the Respondents in opposition.

The counsel for the Petitioner hes mainly contended that the District Inspector of Schools having approved the appointment of the Petitioner, he could not have reviewed the said order without affording an opportunity to the Petitioner. The impugned orders have been passed on the back of the Petitioner. By means of the impugned orders, the Petitioner stands demoted in the C.T. grade and such orders could not have been passed without affording an opportunity to the Petitioner. It has further been contended that Respondent No. 4 was only an ad hoc teacher in C.T. grade and could not have been further promoted on ad hoc basis as L.T. grade teachers under the relevant provisions of law.

Learned Counsel for the Respondents countered the submissions of the Petitioner by submitting that the order promoting Respondent No. 4 is a just and proper order and the same is in accordance with the provisions of law as the vacancy caused by the retirement of Sri Padam Singh Tomar could have been filled by direct recruitment only if a teacher in the lower grade was not available for being promoted and since Respondent No. 4 was available for being promoted on the said post, the appointment of the Petitioner by direct recruitment was patently illegal On these facts even if an opportunity of hearing would have been afforded to the Petitioner, the result would have been same, as such no prejudice has been caused to the Petitioner and the principles of natural justice cannot be invoked for completing empty formalities. It has also been contended that the Petitioner has also been adjusted in place of Respondent No. 4, the Petitioner will also be getting L.T. grade as C.T. grade has been declared dying cadre. No injustice has been caused to the Petitioner by the impugned orders and as such the impugned orders need not be interfered with by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India. It has been further contended that since the Petitioner has not been given an appointment letter the Petitioner has no right to continue. The counsel for the Management has mainly submitted that since the Petitioner has made a false statement in his writ petition where he has alleged that no meeting of the Management took place for resolving the promotion of Respondent No. 4, as such the present writ petition is liable to be dismissed solely on this ground that the Petitioner has filed a writ petition alleging false facts and has obtained an interim order from this Court on the basis of the aforesaid false facts.

In support of their submissions, the counsel for the Respondents have relied upon the following decisions:

(1) Yogendra Nath Singh v. The District Inspector of Schools, Jaunpur 1991 (1) AWC 562, wherein this Court has laid down that u/s 18(1)(b) of the U.P. Act No. 5 of 1982, the relevant date for the purposes of eligibility of a teacher is the date when the Management decides to make ad hoc appointment and the qualification of a given teacher who claims promotion on the post is to be seen on the date when the Management decides to make ad hoc appointment. It has also been held that while making appointment u/s 18(1)(b) of the U.P. Act No. 5 of 1982, the qualified seniormost teacher should be promoted Direct recruitment can be resorted to only when the qualified teacher is not available.

(2) In Chandra Pratap Singh v. Madhav Sharan Tripathi (1989) 1 UP. The court held that for being promoted to the lecturer on L.T. grade, one has to possess (a) minimum academic qualification (b) five years'' continuous service as teacher in the C.T. or L.T. grade, as the case may be, on the date of occurrence of vacancy. Service as a teacher in a particular subject is not a requirement for being promoted under the above rule. Requirement of service as a teacher in the concerned subject on the date of occurrence of vacancy was no doubt material till before 1st July, 1983. Under the amended Rule 9 the said requirement has been done away with

The crucial question for consideration in the present matter is as to whether Respondent No. 4, who was admittedly an ad hoc appointee in C.T. grade is entitled to be promoted on ad hoc basis under the relevant provisions of law.

Section 18 of the U.P. Act No. 5 of 1982 (as it stood on the relevant date) contemplates that where the Management has notified a vacancy to the Commission in accordance with the provisions of this Act and the Commission has failed to recommend the name of any suitable candidate for being appointed as a teacher specified in the Schedule within one year from the date of such notification or the post of such teacher has actually remained vacant for more than two months, then, the Management may appoint, by direct recruitment or promotion, a teacher on purely ad hoc basis from amongst the persons possessing qualifications prescribed under the Intermediate Education Act, 1921 or the regulations made thereunder. Since no procedure for appointment of ad hoc teachers u/s 18 of the U.P. Act No. 5 of 1982 was provided, a difficulty arose as to what procedures should be followed for appointment of ad hoc teachers under the aforesaid section and to meet the said difficulty, the Governor in exercise of powers u/s 33 of the U.P. Secondary Education Services Commission and Selection Boards Ordinance, 1981, later substituted as U.P. Act No. 5 of 1982, issued various Removal of Difficulties Orders providing procedure for making appointment by promotion or by direct recruitment of a teacher on purely ad hoc basis in accordance with the provisions of the Orders. In the present case, First Removal of Difficulties Order, 1981 is relevant as the First Removal of Difficulties Order provides procedure for filling up substantive vacancies caused by death, retirement resignation or otherwise on ad hoc basis. In the present case, the vacancy was caused by retirement, as such it was a substantive vacancy and ad hoc appointment on the said post could have been made in accordance with the provisions of the U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981 as amended from time to time. Para 4(3) of the aforesaid Removal of Difficulties Order, 1981 is relevant. The same is reproduced below:

Ad hoc appointment by promotion:

(3) Every vacancy in the post of a teacher in the trained graduate (L.T.) grade shall be filled by promotion by the seniormost teacher of the institution in the trained Under-graduate (C.T.) grade.

Paras 6(a) and 6(c) of thetaforesaid Removal of Difficulties Order, 1981 provide eligibility for appointment for filling the post by promotion or by direct recruitment. These paragraphs are also being reproduced below:

Eligibility for appointment.--Every appointment of a teacher under Paragraph 4 or 5 shall be subject to the following conditions, namely:

(a) The candidate sought to be appointed by promotion or by direct recruitment must fulfil the essential qualifications laid down in Appendix A referred to in Regulation (1) of Chapter II of the Regulations made under the Intermediate Education Act, 1921.

(b)...

(c) The candidate sought to be appointed by promotion under Paragraph 4 must have been serving the institution in substantive capacity from before the date of commencement of this order.

A bare reading of the aforesaid provisions show that a teacher sought to be appointed by promotion should possess qualifications laid down in Appendix ''A'' and should also be a teacher serving in the institution in substantive capacity from before the commencement of the Order i.e., before 31st of July, 1981 the date on which the said Orders was published in the Gazettee. In this connection Section 18(1)(b) of the U.P. Act No. 5 of 1982 may also be referred to, which contemplates the promotion of a teacher on ad hoc basis only if such teacher possesses qualification prescribed under the U.P. Intermediate Education Act, 1921 or the regulations framed thereunder. Chapter II Regulation 6(1) of the Regulations framed under the U.P. Intermediate Education Act, 1921 also contemplates that where any vacancy in the lecturer''s grade or in the L.T. grade is to be filled by promotion, all teachers working in the L.T. grade or the C.T. grade having a minimum of five years continuous substantive service to their credit on the date of occurrence of the vacancy shall be considered for promotion. Relevant provisions are being reproduced below:

6 (I) Where any vacancy in the lecturer''s grade or in the L.T. grade as determined under Regulation 5, is to be filled by promotion, all teachers working in the L.T. or the C.T. grade, as the case may be, having a minimum of five years continuous substantive service to their credit on the date of occurrence of the vacancy shall be considered for promotion by the Committee of Management without their having to apply for the same provided they posses the prescribed minimum qualifications for teaching the subject in which the teacher in the lecturer''s grade or in the L.T. grade is required.

A reading of all the aforesaid provisions clearly shows that a teacher serving in a lower grade in substantive capacity is only entitled to be promoted on ad hoc basis under the provisions of the 8. P Act No. 5 of 1982 and the Removal of Difficulties Order issued thereunder. On admitted facts, Respondent No. 4 was appointed as a C.T. grade teacher on adhoc basis. He was not entitled to be promoted further on ad hoc basis in the L.T. grade, as an ad hoc teacher serving in the institution, is not entitled for a further ad hoc promotion, under the provisions of the U.P. Act No. 5 of 1982, the Removal of Difficulties Order, 1981 and the relevant regulations framed under the U.P. Intermediate Education Act, 1921. The promotion of Respondent No. 4 was patently in disregard of the aforesaid provisions of law, as such was illegal.

It is also settled by judicial decisions that any administrative order passed by an authority can be reviewed by the same authority if the said order has been obtained by fraud or misrepresentation but the condition precedent for exercising the power of review is that the person in whose favour the order has been passed must be heard before the said order is reviewed. Admittedly the Petitioner was not heard and the order reviewing the Petitioner�s approval on ad hoc basis on the post of L.T. grade teacher, by direct recruitment, could not have been reviewed without affording opportunity to the Petitioner. In The Scheduled Caste and Weaker Section Welfare Association (Regd.) and anothers Vs. State of Karnataka and others, , the Court held:

If there is power to decide the determine to the prejudice of a person, duty to act judicially is implicit in exercise of such power, and rules of natural justice operates in area not covered by any law validly made.

The impugned order did affect the Petitioner�s right as the Petitioner is relegated from the post of L.T. grade teacher to a post caused vacant in the C.T. grade. It will affect the Petitioner�s emoluments also such an order could not have been passed without affording an opportunity of hearing to the Petitioner. The impugned orders have been passed in complete violation and disregard of the principles of natural justice, as such are liable to be quashed on these grounds also The contention of the Respondent No. 4 that in the present case the affording of an opportunity to the Petitioner would have been empty formality is not correct as the Petitioner could have demon strated that Respondent No. 4 was not entitled to be promoted as he was not qualified for promotion.

I also do not agree with the Respondents� submission that since the Petitioner has not filed his appointment letter, he is not entitled to continue in service. This contention is patently misconceived in the circumstances of the present case when it is admitted on record that the Petitioner was appointed by the resolution of the Committee of Management and the appointment of the Petitioner was duly approved by the District Inspector of Schools. It is also not disputed that the Petitioner was continuing on his post when the impugned order was passed

Lastly, only one point remains to be examined, that the Petitioner has made a false statement in his writ petition while stating that the Committee of Management did not hold its meeting for the said purpose and the writ petition is liable to be dismissed on this ground. On perusing the record, it is true that the Petitioner, made an incorrect statement in paragraph ''30'' of the writ petition. Papers filed by the Respondent Committee of Management demonstrate that the Committee of Management did pass a resolution amending its earlier resolution of appointment of the Petitioner and deciding to promote the Respondent No. 4. The said statement made in the writ petition is incorrect.

Since the basic question urged in the writ petition that the appointment of Respondent No. 4 is patently illegal has found substance in the present matter, the said incorrect averment in the writ petition has no bearing on the merits of the decision. The writ petition can be decided ignoring the averments made by the Petitioner in paragraph ''30'' of the writ petition. In the facts and circumstances of the present case, I am not inclined to refuse the relief to the Petitioner on the ground of making incorrect statement in paragraph ''30'' of the writ petition. Since I am satisfied that the promotion of Respondent No. 4 on the post of L.T grade teacher is patently illegal, I am not inclined to throw the petition, on the ground of said incorrect statement, as upholding the impugned order would result in perpetuating an injustice.

On the basis of the above discussion, I am satisfied that the impugned orders, dated 7-12-1992, filed as Annexure ''4'' to the writ petition, and dated 26-12-1992, filed as Annexure ''5'' to the writ petition, are patently illegal. I issue a writ of certiorari and quash the aforesaid orders, dated 7-12-1992 (Annexure ''4'') and 26-12-1992 (Annexure ''5''). However, since I am satisfied that the Petitioner has made an incorrect statement in paragraph ''30'' of the writ petition, the Petitioner must be penalised for the same and as such I direct that the Petitioner will pay a cost of Rs. 2,000/- to Respondent No. 3 for making an incorrect statement in the writ petition.

The writ petition is accordingly allowed, but in the circumstances of the case, the Petitioner will pay a cost of Rs. 2,000/- (two thousand) to the Committee of Management, C.M.D. Inter College, Chodiala, district Haridwar, Respondent No. 3, within six weeks from today. In case of default, the benefit of this order will not be available to the Petitioner.