Swadesh Mishra vs District Inspector of Schools

B.S. Chauhan, J.—The instant petition is an example, which shows how the people consider the State exchequer as a bounty and stake their claim for having a share in the loot. The Petitioner joined as Assistant Teacher in Sri T. B. Inter College, Firozabad with effect from 1.2.1989 and the appointment of the Petitioner as Assistant Teacher was approved by the Respondent, D.I.O.S. Firozabad. A substantive post of Lecturer in Chemistry became vacant on 10.5.1990 as the incumbent on the post attained the age of superannuation. The Petitioner was promoted on the said post of Lecturer in Chemistry on 16.7.1990, but the Petitioner was not paid the salary in the Lecturer Grade and a dispute was raised regarding the promotion of the Petitioner by Sri Anil Kumar Sharma. Thus, the matter was adjudicated upon by the Regional Deputy Director of Education, Agra, who decided the dispute, vide judgment and order dated 25fh July, 1994 (Annexure 3 to the writ petition). The Regional Deputy Director of Education, Agra, vide the said judgment and order, held that the Petitioner was appointed in C.T. Grade with effect from 1.2.1989 and his promotion/ appointment in the Lecturer Grade in Chemistry is Justified and further directed the Respondent, D.I.O.S. to approve the promotion/appointment of the Petitioner with effect from 16.7.1990. The aforesaid order dated 25.7.1994 was not complied with by the Respondent, D.I.O.S. and, thus the instant petition was filed for ensuring the compliance of the said order dated 25.7.1994 and for further direction of the payment of entire arrears of salary to the Petitioner with effect from 16.7.1990.

According to the provisions of Section 18 of the U.P. Secondary Education Service Commission and Selection Board Act, 1982 (hereinafter called the Act), the appointment of ad hoc teachers is permissible, by following a particular procedure. The ad hoc appointment can be made either by direct recruitment or by promotion. The preferential right is to fill up the vacancy by promoting the senior most teacher who is eligible in consonance of the provision of Rule 9 of the U.P. Secondary Education Service Commission Rules, 1983, which provides for the promotion of a teacher working in C.T. Grade, possessing the minimum qualification in the concerned subject and at least having live years continuous service as a teacher on the date of occurrence of vacancy. In the instant case, the Petitioner was appointed in C.T. Grade with effect from 1.2.1989. The vacancy became available on 10.5.1990. Thus, the Petitioner was hardly having an experience of only one year and three months and in view of the provisions of the aforesaid Rule 9, the Petitioner was not eligible to fall within the zone of consideration for promotion on the said post. Thus, even by no means of imagination it can be held that the Petitioner would have been promoted or his occupancy of the post of Lecturer in Chemistry can be termed by promotion.

The Petitioner has averred that the post was advertised but no suitable candidate was available and the post was offered to the Petitioner by promotion. The Petitioner has not impleaded the Committee of Management of the said Institution which could have been asked to produce the material before this Court to see whether the post was advertised or not and whether there was some eligible candidate available for the post or not. The Petitioner has not impleaded the Regional Deputy Director of Education, Agra, whose judgment and order dated 25.7.1994 are sought to be enforced as this Court could have asked the said Regional Deputy Director of Education, Agra as on what basis the claim of the Petitioner had been accepted as promotion/ appointment. I am of the considered opinion that the said parties are necessary parties in this litigation to adjudicate upon the issue involved herein to reach at a correct conclusion. Reliance can safely be placed upon the judgment of the Apex Court in the case of Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar, .

It is not the case of the Petitioner that the Petitioner has ever applied for direct appointment and he had faced the Selection Committee and was found most suitable candidate and was duly selected and appointed as a Lecturer in Chemistry. Thus, the occupancy of the Petitioner as a Lecturer in Chemistry cannot be considered even by way of direct recruitment, as Sri Pankaj Mittal, learned counsel for the Petitioner has fairly conceded that the Petitioner is not a direct recruit. In view of the above, the only inescapable conclusion one has to reach is that the Petitioner was neither appointed nor promoted to the post of Lecturer and thus his occupancy on the said post is not only illegal but void as Section 16 (2) of the Act of 1982 provides that every appointment of a teacher in contravention of the provision of the Act shall be void. In the case of State of U.P. and others Vs. U.P. State Law Officers Association and others, , the Supreme Court has observed as under:

...appointments may be made purely on personal or political consideration and be arbitrary. The fact that they are made by public bodies cannot vest them with additional sanctity. Every appointment made to a public office, howsoever made, is not necessarily vested with public sanctity. There is, therefore, no public interest involved in saving all appointments irrespective of their mode. From the Inception some engagements and contracts may be the product of operation of the spoiled system. There need be no legal anxiety to save them.

Similarly, in the case of S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, , the Supreme Court observed as under:

The Courts of law meant for imparting of justice between the parties. One who comes to the Court, must come with clean hands. We are constrained to say that more often than not, process of the Court is being abused. Property grabbers, tax evaders, bank loan dodgers and other unscrupulous persons from all walks of life find the Court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, who''s case is based on falsehood, has no right to approach the Court.

In the case of Andhra Pradesh State Financial Corporation Vs. M/s. GAR Re-Rolling Mills and another, , the Supreme Court has observed as under:

A Court of equity, when exercising its equitable jurisdiction under Article 226 of the Constitution of India, must so act as to prevent perpetration of a legal fraud and the Courts are obliged to do justice by promotion of good faith, as far as it lies within their power. Equity is always known to prevent the law from crafty evasions and subtelities invested to evade law.

Similarly, in the case of State of Maharashtra and Others Vs. Prabhu, , the Supreme Court has observed as under:

It is responsibility of the High Court as custodian of the Constitution to maintain the social balance by interfering where necessary for the sake of Justice and refusing to interfere where it is against the social interest and public good.

It is settled law that when a person approaches the court of equity in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India, he should approach the Court not only with clean hands but with clean mind, clean heart and with clean objectives. There is no need to cite any authority for this but the reference may be made to the cases of the The Ramjas Foundation and Others Vs. Union of India and Others, ; G. Narayanaswamy Reddy (dead) by L.Rs. and another Vs. Government of Karnataka and another, and K.R. Srinivas Vs. R.M. Premchand and Others, .

In view of the above, I am of the view that holding the post of Lecturer in Chemistry by the Petitioner is nothing but a product of nepotism and corruption as the institutions are being governed by the provisions of the Uttar Pradesh High Schools and Intermediate College (Payment of Salaries of Teachers and other Employees) Act, 1971, the State exchequer becomes liable to make payment of the salaries to teachers in such aided institutions. By obtaining some illegal appointments and seeking certain orders in their favour from the Higher Authorities as is evident in this case, is nothing but playing fraud upon the Statute itself. The Petitioner had come to seek the seal of approval of this Court on the unjustifiable judgment and order of the Regional Deputy Director of Education, Agra, which can by no means be approved. The Court expresses grave concern over such illegal appointment and deprecates the practice of making such appointments and passing such illegal orders. The judgment of the Regional Deputy Director of Education Agra is not based on any evidence of facts and cannot be sustained in the eyes of law as stated above and, thus, the said order is nothing but a document rendered by an authority in order to perpetuate the cause of fraud and it can easily be termed as void as in the case of Folkestone Corporation v. Brokmen 1914 AC 338, the court had observed as under:

An order made without any evidence to support it is in truth, in my view, made without jurisdiction and therefore, is invalid at law....

Thus, the judgment and order dated 25.7.1994 (Annexure 3 to the writ petition) cannot be enforced and the writ petition is dismissed with costs of Rs. 1,000 as the petition is totally frivolous and has been filed before this Court just to play further fraud upon the Court after playing fraud upon the statute.

A copy of this order be sent by the Registrar of this Court to the District Inspector of Schools, Firozabad with a direction to recover the said amount of Rs. 1,000 as costs from the salary of the Petitioner and deposit the same in this Court within a period of four weeks from the date of receipt of a certified copy of this order and he is further directed not to give effect of the said order dated 25.7.1994 contained in Annexure 3 to this writ petition.