Umesh Chand Tiwari vs District Inspector of Schools, Ballia and others

S.U. Khan, J.—Petitioner claims to have been appointed as Assistant Teacher in L.T. grade in Adarsh Inter College, Sewan Kalan, Ballia. According to the allegations made in the writ petition Shri S.N. Gupta officiating/in-charge Principal of the college in question died and thereafter Shri S.C. Sharma senior most lecturer was appointed as officiating/adhoc Principal, that at the place of Shri S.C. Sharma senior most L.T. grade teacher Shri Han Dass Prasad was promoted as Lecturer and in the resultant vacancy in L.T. grade Petitioner was appointed by Committee of Management through resolution dated 12.1.1992. Copy of the resolution is Annexure-1 to the writ petition which states that in the short term vacancy under second removal of difficulties order Petitioner is appointed. It is also mentioned in the resolution that Petitioner was having highest quality points. Thereafter Annexure-2 is appointment letter which also states that it is an appointment against short term vacancy. It is stated in para-13 of the writ petition that on 3.2.1992 itself Petitioner joined the institution.

Thereafter, in para-14 of the writ petition it is stated that necessary information for appropriate action was sent to District Inspector of Schools on 25.1.1992 enclosing therewith copy of the resolution dated 12.1.1992 and other particulars. However, neither the copy of the communication / information has been annexed nor in the resolution there is any mention that matter should be referred to D.I.O.S. Even in the appointment letter Annexure-2 to the writ petition there is absolutely no mention that any information was earlier sent to the D.I.O.S. Thereafter, through Annexure-4 to the writ petition which is dated 20.10.1994, the then D.I.O.S. whose name is not mentioned in the said annexure granted financial approval to the appointment of the Petitioner. In the said order it is mentioned that on the post vacated due to promotion of Hari Dass Prasad to the post of lecturer the appointment of Petitioner on short term vacancy was approved on the basis of financial approval granted by Lekhadhikari dated 6.8.1994 and 12.10.1994. It is further mentioned in the said order that the approval will be valid till selected candidate from the Commission joins or the previous incumbent of the post in question i.e. Hari Dass Prasad reverts back to his original post. At the bottom of the order it is mentioned that the order is being passed on the basis of documents submitted by the Manager/Principal. There is absolutely no mention in the said order that when papers were sent by the Manager/Principal. There is absolutely no mention that any procedure for appointment was followed before appointing the Petitioner. There is also no mention that quality point marks obtained by the Petitioner and other candidates were sent to the D.I.O.S. by the Manager/Principal. There is also no mention that any prior approval to the appointment of the Petitioner was sought by the D.I.O.S. There is also no mention that advertisement was issued in any newspaper before making the appointment of the Petitioner. Even the date of appointment of the Petitioner is not mentioned in the said order.

Under the order of D.I.O.S. dated 20.10.1994 Petitioner received salary from October, 1994 till July, 1995 (ten months). Thereafter D.I.O.S. passed an order on 28.9.1995 copy of which is Annexure-7 to the writ petition. In the said letter/order names of 8 teachers/employees of the college in question were mentioned and it was directed that papers regarding sanction of the post, procedure of the appointment and orders of D.I.O.S. granting approval should be sent to D.I.O.S. and until such papers were sent salary would not be paid. Name of the Petitioner was at Sl. No. 3 of the said list. It is stated that on 14.10.1995 Manager sent the requisite information, copy of which is Annexure-8 to the writ petition (it is regarding Petitioner alone). However, alongwith said annexure, the documents annexed therewith mentioned at the bottom of the communication have not been annexed. Petitioner also sent representation to D.I.O.S.

The prayer in the writ petition is that order dated 28.9.1995 may be set aside and Respondents may be directed to continue to pay the salary to the Petitioner alongwith arrears. Counter affidavit has been filed by the In-charge D.I.O.S. In the counter affidavit it has been stated that Shri Subhash Kushwaha was the Principal of the college and not Shri Subhash Chandra Sharma and this matter has been decided in writ petition No. 22626 of 1992 and special appeal No. 121 of 1995 decided on 24.2.1995. It has further been stated that Shri Subhash Chandra Sharma still continues to be Lecturer and Shri Hari Dass Prasad continues to be teacher in L.T. grade. It has further been stated that no documents pertaining to the appointment of the Petitioner were available in the office of D.I.O.S. hence documents were sought for from the Committee of Management through letter dated 21.9.2006 and in pursuance thereof the Principal only sent the appointment letter of the Petitioner and pay bill. It has also been stated that there are only 12 sanctioned posts of L.T. grade teachers in the college and at present salary is being paid to 13 teachers. It has also been stated that Shri Subhash Kushwaha was appointed as adhoc Principal through resolution of Committee of Management dated 1.12.1988 and orders in his favour were passed by this Court in his writ petition and the promotion of Shri Subhash Chandra Sharma was declared illegal by this Court through order dated 30.6.1992. It has also been stated that order dated 26.10.1994 was obtained by paying fraud upon D.I.O.S. In para-11 of the counter affidavit it has been stated that in district Ballia several teachers were getting salary under forged or illegal orders hence comprehensive enquiry was made and thereupon it was found that Petitioner was getting salary in an utterly illegal manner. Copy of the report regarding illegal payment to different teachers in different schools of District Ballia has been annexed as Annexure C.A.-3. Petitioner''s name is at Sl. No. 106. The list is quite alarming, it contains 274 names.

The experience of the Court is that in every district there are some illegal appointment of teachers and appointees are illegally getting salary from the State ex-chequer. However, it appears that Ballia tops the list.

In K.N. Dwivedi v. D.I.O.S.1994 U.P.L.B.E.C 461 decided in January, 1994 it was categorically held that procedure of selection under Second Removal of Difficulties Order for short term appointments must be the same as is provided for ad-hoc appointments under First Removal of Difficulties Order. The said view was approved in the Full Bench authority of Radha Raijada v. Committee of Management.1995 (25) ALR 383 (FB)

Under the First Removal of Difficulties Order it was essential to advertise the post in two newspapers. There is absolutely no allegation that post was advertised in two newspapers having wide circulation.

Under Second Removal of Difficulties Order it was essential to seek prior approval of the D.I.O.S. before issuing appointment letter. No document has been annexed to show that prior approval was sought. Para 2(3) of Second Removal of Difficulties Order is quoted below:

Procedure for filling up short-term vacancies.-(1).........

(2) ....................

(3)(i). The management shall intimate the vacancies to the District Inspector of Schools and shall also immediately notify the same on the notice board of the institution, requiring the candidates to apply to the Manager of the institution along with the particulars given in Appendix ''B'' to this order. The selection shall be made on the basis of quality point marks specified in the Appendix to the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, issued with Notification No. Ma-1993/ XV-7-1 (79)-1981, dated July 31, 1981, hereinafter to be referred to as the first Removal Difficulties Order, 1981. The compilation of quality point marks shall be done under the personal supervision of the head of institution, (ii) The names and particulars of the candidates selected find also of other candidates and the quality point marks allotted to them shall be forwarded by the Manager to the District Inspector of Schools for his prior approval.

(iii) The District Inspector of Schools shall communicate his, decision within seven days of the date of particulars by him failing which the Inspector will be deemed to have given his approval.

(iv) On receipt of the approval of the District Inspector of Schools or as the same may be, on his failure, to communicate his decision within seven days of the receipt of papers by him from the Manager, the management shall appoint the selected candidate and an order of appointment shall be issued under the signature of the Manager.

The D.I.O.S. who passed the order on 20.10.1994 did not record any finding regarding compliance of First and Second Removal of Difficulties Orders.

Accordingly, a fraud had been played in which the D.I.O.S. who passed the order dated 20.10.1994 was equal partner.

There is absolutely no merit in the writ petition hence it is dismissed. Salary from October, 1994 till July, 1995 (ten months) which has been paid to the Petitioner shall be recovered in equal share from the Petitioner and the D.I.O.S., Ballia who passed the order dated 20.10.1994. If the said D.I.O.S. is still in service then disciplinary proceedings must also be initiated against him. Half of the salary received by the Petitioner shall be recovered from him by the Collector, Ballia like arrears of land revenue within a month and deposited in Government treasury.

Office is directed to supply a copy of this order free of cost to learned Chief Standing Counsel within a week.