Ram Lakhan Yadav vs D.I.O.S. and Others

Ashwani Kumar Mishra, J.—This petition is directed against an order dated 21.1.1997, passed by Deputy Director of Education, XIV Region, Azamgarh. A further prayer has been made to direct the respondent Nos. 1, 2 and 3 to give ad hoc promotion to petitioner on the post of Lecturer in Psychology and pay salary to him on the post of Lecturer in Psychology with all consequential benefits.

At the very outset, an objection has been raised on behalf of respondents contending that prayers aforesaid are not liable to be considered for the reason that petitioner has already superannuated and the nature of relief sought in the writ petition cannot be granted now. It is also contended that respondent No. 4, who had been appointed against the post in question, has already been regularized vide order dated 3.5.1997, which is not under challenge. It is also stated that the challenge, as raised to the appointment of respondent No. 4, is otherwise grossly barred by latches, and is not liable to be sustained.

Facts, not in dispute, giving rise to filing of the writ petition are that Balbhadra Inter College, Pali Subhaspur, District Jaunpur, is a recognized institution under the provisions of Intermediate Education Act, 1921 and the provisions of U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971, are enforced. Petitioner claims to have been initially appointed as a Teacher in L.T. Grade on 20.7.1967, whereafter he was confirmed. The qualifications possessed by petitioner is B.Sc. (Ag.), M.A. (Econ.) and M.Ed. One Sri Yagya Narain Pathak was a lecturer in the psychology, who took leave for three years w.e.f. 9.7.1988, on account of his appointment as principal in Navodaya Vidyalaya. On account of such leave a short term vacancy come into existence. Petitioner contends that by virtue of para 2 of the U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 (hereinafter referred to as ''Second Removal of Difficulties Order''), such vacancy was liable to be filled by way of promotion of permanent senior most teacher of the institution in the next lower grade. According to the petitioner, he possessed qualification of M.Ed., which was the qualification recognized for the purposes, and his claim was wrongly ignored and the Committee of Management proceeded to illegally make ad hoc appointment, by direct recruitment of respondent No. 4. It is also stated that such ad hoc appointment of respondent No. 4 made on 23.7.1988 did not proceed any advertisement of vacancy in daily newspapers having wide circulation.

Record shows that payment of salary was not released to respondent No. 4, and as such, he filed a writ petition No. 24292 of 1988, in which an interim order came to be passed on 4.12.1990. Petitioner although had not challenged the appointment of respondent No. 4, but he filed an application for impleadment towards the end of year 1992 in the writ petition filed by respondent No. 4 and also filed a counter affidavit, contending that appointment by direct recruitment could be made of respondent No. 4, by virtue of Second Removal of Difficulties Order. It was also brought on record that services of respondent No. 4 had been illegally regularized. Application for impleadment of petitioner in the writ petition No. 24292 of 1988 was contested and was allowed. The writ petition was disposed of by making following observation on 3.9.1996:-

"In view of the above facts and circumstances of the case, I am of the opinion that as the validity of ad hoc appointment of the petitioner has been challenged in the present proceedings in 1992 by filing impleadment application as also by filing counter affidavit and that before any adjudication on merits of the case of rival contestant being made in the present writ petition, it would be proper to direct the Deputy Director of Education to decide this controversy relating to the petitioner''s ad hoc appointment. The respondent No. 3 is directed to approach Deputy Director of Education and file his representation. The petitioner would appear before the Deputy Director of Education by placing the entire facts of his case. The Deputy Director of Education will call upon the Management of the institution to place on record the entire facts of the case and their version. The Deputy Director of Education, after affording opportunity to all the parties, will take decision regarding the validity of the appointment of the petitioner as also the claim of respondent No. 3 for appointment by promotion on the said post. The Deputy Director of Education will consider the case of rival parties in the back ground that no approval has been granted to the petitioner''s appointment by the District Inspector of Schools and the District Inspector of Schools by an order dated 31.8.1996 has regularized the ad hoc appointment of the petitioner. It will be open for the Deputy Director of Education to take decision on the validity of the appointment of the petitioner irrespective of the order dated 31.8.1995 regularizing his services. The Deputy Director of Education is directed to decide the controversy within three months of a certified copy of this order being placed before him.

It is in furtherance of the orders passed by the Writ Court that the claim of petitioner on the post in question has been considered and decided by the order impugned. The order impugned mentions that petitioner was not qualified for appointment to the post of Lecturer in psychology, as psychology was not one of the subjects of petitioner at the post graduation level. The order impugned records following objection of management against the petitioner; (i) petitioner was not a post graduate in psychology, (ii) required quota for promotion was already filled, as such post was to be filled by direct recruitment. It has been stated that out of fourteen sanctioned post of lecturers, ten were already filled by promotion, and the remaining posts had to be filled by direct recruitment and not by promotion. The order also recites that in view of the applicable government order, petitioner was not entitled to payment of salary as a trained lecturer in psychology. It has also been recorded that as respondent No. 4 had already been appointed by direct recruitment and the leave vacancy has already been converted into a substantive vacancy in 1992, as such, respondent No. 4 is not liable to be regularized. While rejecting the claim of petitioner, it was held that Management may take work of teaching intermediate classes from the petitioner, but he would only be entitled to salary in L.T. Grade. By a counter affidavit, respondents have brought on record the fact that respondent No. 4 has been regularized on 3.5.1997 under section 33-B of the U.P. Act No. 5 of 1982, as he possessed the qualification of M.A. in psychology, and financial approval to his appointment had already been granted on 26.12.1989.

Heard Sri Anil Bhushan, learned senior counsel, assisted by Sri Amit Kumar Srivastava, for the petitioner, learned Standing Counsel for the respondent Nos. 1 to 3 and Sri Gajendra Pratap, learned senior counsel, assisted by Sri D.S.M. Tripathi, for the respondent No. 4.

Challenge to the order impugned has essentially been laid on the ground that short term vacancy of lecturer in psychology could only be filled by way of promotion and not by direct recruitment. It is also asserted that petitioner was qualified and was entitled for promotion to the post in question, which has been arbitrarily ignored.

Sri Gajendra Pratap, learned senior counsel, in his usual fairness stated that position in law is settled, by virtue of Second Removal of Difficulties Order that a short term vacancy to the post of teacher has to be filled by management of the institution by promotion of the permanent senior most teacher in the next lower grade and it is only when such a course cannot be resorted due to non availability of the teacher in the lower grade that an appointment by direct recruitment could be made.

Sri Anil Bhushan, learned senior counsel, has also placed reliance upon a Division Bench judgment of this Court in Charu Chand Tiwari vs. D.I.O.S. Deoria: 1990 (1) UPLBEC 160, to contend that quota of promotion would not be material at the stage when a leave vacancy is to be filled by promotion. Para 6 of the judgment in Charu Chand Tiwari (supra) is reproduced:-

"Since the Government was empowered to frame regulations notwithstanding anything contained in Chapter II and III of Regulations and the Removal of Difficulties Order provided for filling up vacancy of teacher in Lecturer or L.T. grade or even C.T. by promotion of senior most teacher and the power to appoint by direct recruitment was available if the vacancy could not be filled; in the manner laid down in preceding clause that is by promotion it is obvious that the rule of 40 % and 60% was not adhered to for ad-hoc appointments. To that extent paragraph 5 of Chapter II of Regulations stood modified......... Same scheme was continued in clause (4) and (5) of the Removal of Difficulties Order issued under Act V of 1982. It was clearly visualised that all posts in the institution on ad-hoc basis were primarily to be filled by promoting senior most teacher and the method of direct recruitment for such appointment could be resorted to only if such teachers were not available or they were not qualified. Regulations 5 and 6 of Chapter II framed under U.P. Intermediate Education Act providing for every appointment by direct recruitment except to the extent of 40% by promotion has to be deemed to be modified so far ad-hoc appointments are concerned. The word ''every vacancy'' used in sub-clauses (1) to (4) of clause 4 of First Removal of Difficulties Order of 1981 are significant. They are emphatic and explicit. They leave no room for doubt that 60% and 40% proportion of direct and promotional appointment has been given up for ad-hoc appointments. And for very good reason. Ad-hoc appointments are short term appointments. The appointee has no right except to continue till regular selection is made or the short term vacancy comes to an end. Why should the senior most teacher otherwise fully qualified be deprived of that benefit. If construction as suggested by the opposite party is accepted it shall destroy the very purpose of Act No. V of 1982 of protecting the interest of teachers of the institution and giving them some security and benefit of their being qualified and senior. The scheme of 40% and 60% has not been adhered to in ad-hoc promotions obviously because they being temporary promotions they should normally be given to the teachers of the institution who are qualified. Section 18 of the U.P. Act No. V of 1982 is silent in this regard, but it has to be construed reasonably and keeping in view the method of ad-hoc appointment before and after enforcement of the Act. From what has been stated above, it is clear that any vacancy whether substantive or temporary which is to be filled by ad-hoc selection has first to be filled by promotion and in absence of availability of a candidate by direct recruitment. There appears no rationale to exclude this method from section 18 of the Act empowering the Committee of Management to make direct recruitment even though senior most teacher in the institution was available. Section 18 only empowers the management to make ad-hoc appointments. It is silent in respect of procedure. In absence of any rationale it cannot be construed as contrary to the scheme visualised by Removal of Difficulties Order and in vogue from 1975. Any other construction or conceding power to the management to fill ad-hoc vacancy u/Sec. 18 by direct recruitment even though senior most teacher was available shall result in arbitrariness and would be against the interest of teachers to protect whose interest the Legislature has intervened from time to time since 1975 and State Government has issued Removal of Difficulties Order. Therefore, whether from the language of the Section or from the Scheme the irresistible conclusion is that ad-hoc vacancy u/Sec. 18 should be filled by promotion and the method of direct recruitment should be adopted only if the teachers for promotions are not available. Even the argument of equity is not available as the petitioner not only being senior most teacher but being qualified in the subject in which the vacancy arose, the committee of management was not justified in bye-passing his claim and appointing a candidate from outside."

In view of the law settled by the Division Bench of this Court and also in view of the stand taken by Sri Gajendra Pratap, learned senior counsel for respondent No. 4, it is clear that the leave vacancy caused against the post held by Sri Yagya Narain Pathak was required to be filled by promotion of the permanent senior most teacher of the institution in the next lower grade and not by way of direct recruitment. In such scenario, it cannot be disputed that action of the respondent management in proceeding to fill up the resultant vacancy by way of direct recruitment was a course impermissible in law, and that petitioner was entitled to have been promoted on ad hoc basis against the post.

Question for consideration, in the facts and circumstances of the present case, arises is as to what relief is to be granted to the petitioner in the factual scenario arising in the present writ petition.

Admittedly, respondent No. 4 was appointed on ad hoc basis on 3.7.1988 by way of direct recruitment. Appointment of respondent No. 4, however, was not challenged by the petitioner. Respondent No. 4 proceeded to file a writ petition for payment of salary. In the said writ petition, an interim order was granted and payment of salary to the said respondent No. 4 was accorded. Respondent No. 4 continued to work as ad hoc lecturer and started receiving salary without any challenge being raised to such appointment by the petitioner. It is only in December, 1992 i.e. after lapse of more than four and a half year that an impleadment application has been by the present petitioner in Writ Petition No. 24292 of 1988 alongwith a counter affidavit, disputing entitlement of Satya Prakash Dubey to be paid salary on the ground that his appointment was illegal.

Learned counsel for the petitioner has brought on record the counter affidavit of the petitioner filed in Writ Petition No. 24292 of 1988 in order to contend that appointment of respondent No. 4 had been challenged by the petitioner immediately after such fact came to petitioner''s knowledge. Reliance has been placed upon Annexure CA-1 and CA-2 of the counter affidavit. Annexure CA-1 is a letter addressed to the District Inspector of Schools, Jaunpur, dated 31.1.1989, in which it has been stated that petitioner is senior most trained teacher in L.T. Grade and in case he is promoted no financial burden would be caused upon the State, instead of appointing any outsider and it would be appropriate that lecturers grade of pay be accorded to petitioner. The second letter dated 5.7.1989, which is Annexure CA-2, refers to the previous letter of 31.1.1989 and it has been stated that petitioner is continuously teaching intermediate classes of psychology since July and that the Management for extraneous reasons have appointed respondent No. 4 and that a writ petition has been filed by the said respondent No. 4 Satya Prakash Dubey, in which a reply to be filed by the Management. It has been reiterated that petitioner being the senior most teacher in L.T. Grade is eligible and entitled to grant of lecturers scale, as neither teaching activity would be adversely affected, nor any additional financial burden would be caused upon the State. These are the only two letters, which are brought on record by the petitioner, in order to demonstrate that appointment of respondent No. 4 had been questioned by him over a period of four and a half years. Both these letters essentially harp upon petitioner''s entitlement to receive payment of salary in lecturers grade, without there being any specific challenge made to the appointment of respondent No. 4. No appeal was preferred before the appellate authority, in terms of Removal of Difficulty Order, nor any legal action was taken.

Learned counsel for the respondent No. 4 has urged, relying upon decision of the Apex Court in State of Uttaranchal and Another Vs. Sri Shiv Charan Singh Bhandari and Others, to contend that such belated feeble attempt on part of petitioner disentitles him to grant of any relief. Para 18, 19, 26, 28 and 29 of the said judgment relied upon are reproduced:-

"18. In Union of India and others v. M.K. Sarkar, this Court, after referring to C. Jacob has ruled that: (SCC P.66, Para 15)

"15. When a belated representation in regard to a ''stale'' or ''dead'' issue/dispute is considered and decided, in compliance with a direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the "dead" issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court''s direction. Neither a court''s direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches."

From the aforesaid authorities it is clear as crystal that even if the court or tribunal directs for consideration of representations relating to a stale claim or dead grievance it does not give rise to a fresh cause of action.

Presently, sitting in a time machine, we may refer to a two-Judge Bench decision in P.S. Sadasivasway v. State of Tamil Nadu, wherein it has been laid down that: (SCC P.154, para 2)

"2........A person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time, but it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters."

Remaining oblivious to the factum of delay and laches and granting relief is contrary to all settled principles and even would not remotely attract the concept of discretion. We may hasten to add that the same may not be applicable in all circumstances where certain categories of fundamental rights are infringed. But, a stale claim of getting promotional benefits definitely should not have been entertained by the tribunal and accepted by the High Court.

True it is, notional promotional benefits have been granted but the same is likely to affect the State exchequer regard being had to the fixation of pay and the pension. These aspects have not been taken into consideration. What is urged before us by the learned counsel for the respondents is that they should have been equally treated with Madhav Singh Tadagi. But equality has to be claimed at the right juncture and not after expiry of two decades. Not for nothing, it has been said that everything may stop but not the time, for all are in a way slaves of time. There may not be any provision providing for limitation but a grievance relating to promotion cannot be given a new lease of life at any point of time."

It further transpires from the record that a counter affidavit had been filed by respondent No. 4 in the present writ petition, in which the aspect of delay in challenge the appointment of respondent No. 4 had been specifically raised in para 12. The order of regularization, which had been passed in favour of respondent No. 4, by virtue of section 33-A of the U.P. Act No. 5 of 1982, although was brought on record, but it has not been challenged, although the counter affidavit itself had been filed in November, 2000. Petitioner has also retired in the meantime. It is in this context that entitlement of relief to petitioner has to be examined.

Although it has already been noticed that petitioner was entitled to be offered ad hoc promotion against the leave vacancy, but the petitioner appears to have slept over his right and it was not pressed effectively. Apart from writing two letters, which faintly suggests appointment of respondent No. 4 to be bad, no serious challenge was laid to the appointment of respondent No. 4. It is also to be taken note of that there existed fourteen posts of lecturer in the institution and the factual averments, contained in the order of the authority that ten out of such fourteen posts were already filled by promotion, as such, the substantive vacancy could not be filled by promotion, has not been effectively disputed. The order regularizing the services of respondent No. 4 has also not been challenged.

Sri Anil Bhushan, learned senior counsel appearing for the petitioner submits that in the facts of the present case, petitioner is entitled to grant of notional promotion as well as benefit of promotional pay scale on the post of lecturer. Reliance has been placed upon decision of the Apex Court in Abhijit Ghosh Dastidar Vs. Union of India (UOI) and Others, , and decision of this Court in Dr. Ashok Kumar Kallia vs. Chancellor, Lucknow University and others: 1995 AWC 832 as well as in Ram Chandra Bhati Vs. State of U.P. and Others, , to contend that in case where promotion has been wrongly denied, relief of notional promotion is required to be granted.

Per contra, Sri Gajendra Pratap, learned senior counsel appearing for respondent No. 2 has relied upon decisions of the Apex Court in P.S. Sadasivaswamy Vs. State of Tamil Nadu, , Union of India (UOI) and Another Vs. C. Dinakar, I.P.S. and Others, and Union of India (UOI) Vs. B.M. Jha, and upon a recent decision of this Court in State of U.P. and others vs. Ram Pati Yadav and another: 2015(2) ADJ 636 (DB) as well as in Ram Paras Yadav Vs. State of U.P. and Others, .

Sri Anil Bhushan, learned senior counsel for the petitioner also submits that since this Court in writ petition No. 24292 of 1988 has already directed the question of appointment granted to respondent No. 4 to be examined by the authority concerned, which order has attained finality, the issue relating to delay in raising of such a challenge cannot be permitted to be raised now.

In State of Uttranchal (supra), while referring to judgment of the Apex Court in C. Jacab v. Director of Geology and Mining: (2008) 2 SCC 115, it has been observed that issue of limitation or delay and latches should be considered with reference to original cause of action and not with reference to the date of order passed in compliance of the court''s direction. It has been observed that neither a court''s direction to consider representation without examining merits nor a decision given in compliance with such direction will extend the limitation or erase the delay and latches. It is accordingly observed that even if the court or tribunal directs for consideration of representation relating to a stake claim, it does not give a fresh cause of action. In the context of an order promoting a junior over his head, it has been held that a limitation of six months or at the most of a year would have to be viewed as the reasonable time of challenge, in such circumstances, and that it would be sound and wise exercise of discretion for the court to refuse exercise of extraordinary powers, where a timely challenge is not raised.

In the facts of the present case, the challenge to the appointment of respondent No. 4 has been made for the first time by filing impleadment after four and a half year, by which time the nature of vacancy itself had been altered to a substantive vacancy. Petitioner hardly had any case, as requisite number of posts to be filled from promotional quota had already been filled. Petitioner also has not worked on the post in question and in such circumstances, financial benefit of salary would not be available to the petitioner. Petitioner has also retired and the regularization order passed in favour of respondent No. 4 has also not been challenged. In such facts and circumstances, particularly as no right to appointment against a substantive vacancy had arisen to petitioner and no claim within a reasonable period for appointment against a leave vacancy had been made, petitioner is not entitled to any relief in the present writ petition. The procedure provided, for filling up short term vacancy after advertisement in well known newspapers having wide circulation, in Kumari Radha Raizada Vs. Committee of Management, Vidyawati Darbari Girls Inter College and Others, , has been held to be perspective vide judgment in Ashika Prasad Shukla Vs. District Inspector of Schools, Allahabad and another, and the respondent No. 4 otherwise possessed the qualification for the post in question, as no lack of qualification could be shown on his part. Respondent No. 4 has continuously worked on the post of lecturer and has also been paid salary for it. Since there is one post, as such no relief to the petitioner can be granted unless benefits already granted to respondent No. 4 is withdrawn/set aside. Petitioner without having worked in such factual scenario would not be entitled to payment of salary or even notional promotion by dislodging respondent No. 4 and denying him salary and other service benefits earned by him over the last 27 years. The grant of relief, in the circumstances, would be clearly inequitable.

In the aforesaid factual scenario, no relief is liable to be granted to the writ petitioner, and consequently, the writ petition fails and is dismissed.

No order as to costs.