Vidhu Bala Awasthi vs D.I.O.S.Jhansi & Ors.

D.K. Seth, J.—The petitioner alleges to have been given appointment through a letter dated 9th January, 1989 (Annexure No. 1 to the writ petition). It is further alleged that on account of theft of the original High School certificate, the petitioner could not produce the same Subsequently, the petitioner had produced duplicate High School certificate yet petitioner was never allowed to join her duties.

By means of this writ, petition, the petitioner has claimed that she was initially appointed in C.T. Grade teacher w.e.f. 12th January, 1989 on which dated she alleges to have submitted her joining report. Mr. Radhcy Shyam learned Counsel for the petitioner, contends that since the petitioner was appointed and she had produced the relevant certificate she was eligible for discharging her duties and receipt of payment.

Mr. Arun Tandon, learned Counsel for the respondents on the other hand contends that the petitioner having failed to join within the time specified and there having been no prayer for extension of time for joining and the appointment initially having been for a limited period till 20th May, 1989, there was no scope for giving appointment to the petitioner particularly when the petitioner never approached the Manger. His second contention was that the Government having declared C.T. Grade teacher as dying cadre, by reasons a circular dated 27th June, 1989, which is AnnexureCA6 to the counteraffidavit, filed by A.N. Siddiqui on behalf of the Regional Inspectress of Girls Schools stipulating that even if selection and appointment has been made no person can be allowed to join as C.T Grade teacher after 14th May, 1989. Therefore, the petitioner can not claim any right being so appointed. His third contention is that there was no sanctioned post in which the petitioner could be accomodated inasmuch as according to him as contended in the counteraffidavit by Naresh Chandra that in addition to the sanctioned posts seven more posts were requisitioned by the Management pursuant to which seven teachers were selected and directed to be given appointment, there having been no proof that there was any such sanction or creation of posts, there was no scope for the petitioner being so appointed.

Mr. C.K. Roy, learned Standing Counsel points out and contends that the petitioner having not joined within the reasonable time no relief can be had by the petitioner, by means of this writ petition.

Having heard the learned Counsels for the parties, it appears from Anncxarc1, being the appointment letter that the Appointment could be terminated prior to 20th May, 1989 or after 20th May, 1989 according to the decision of the Selection Board. It is further stipulated that within one week of receipt of the appointment letter the petitioner had to resume his duties after/upon producing the relevant certificates. Admittedly, the petitioner did not produce the High School certification. She sought to produce the High School Certificate subsequently to the Regional Inspectress of Girls'' School by successive letters dated 9th February, 1989 (Annexure4 to the writ petition), 12th February, 1989, Annexure5 to the writ petition, and 13th April 1989, Annexure7 to the writ petition. All these letters were addressed to the Regional Inspectress of Girls Schools. In the writ petition it has been alleged that the petitioner had joined and submitted her joining report on 12th January. 1989. In the counteraffidavit it has been alleged that the joining report was not accepted and she was never allowed to take any classes. While the learned Counsel for the petitioner contends that the petitioner had resumed her duties and taken classes. This being a disputed question of fact, this Court cannot enter into the same while, exercising writ jurisdiction. This Court proceeds with the view that the petitioner did not join her services. Admittedly, the petitioner had been making representations one after another. By the process 20th May, 1989 had elapsed. As translated at the bar, Annexure1 to the writ petition, cannot be construed to mean that the appointment was for a limited period as contended by Sri Tandon. On the other hand it appears that the services could be terminated before 20th May, 1989 without assigning any reasons. But after 20th May, 1989 the services could be terminated only according to the direction of the Selection Board.

On the other hand the said appointment letter made it clear that the petitioner had to join within one week upon production of relevant certificate. Admittedly, the petitioner could not join after production of relevant papers within the time mentioned. However, facts remain that the duplicate certificate was issued on 4th February, 1989 and was sought to be produced on 9th February, 1989. The appointment letter was issued on 9th January, 1989. Therefore, it cannot be said that the duplicate certificate was not sought to be produced within a reasonable time after the date of issue of appointment letter which the petitioner had sought to produce through a representation on 9th February, 1989 within the period which appears to be one month and which cannot be said to be unreasonable period. Therefore, the contention that the petitioner cannot be accommodated on account of expiry of reasonable time for joining the service cannot be sustained.

Now the question as to whether the petitioner could be allowed to join her services after 14th May, 1989 in view of the said Circular is to be looked into. Though the petitioner may claim that she was in no way responsible for not joining the service prior to 14th May, 1989 but still then whether she can claim exemption from the condition that no C.T. Grade teacher should be allowed to join after the expiry of 14th May, 1989, even though appointment letter was issued long before. The said circular which is AnnexureCA6 to the counteraffidavit refers to a decision of the Government by which the C.T. Grade was declared to be a dying cadre.

Sri Tandon relying on the decision in the case of Duregesh Kumari v. The State of U.P., & Ors. 1995 (3) UPLB & EC 1387 sought to contend that the policy of the Government banning recruitment cannot be challenged since the same has been up held as to be within the power of the State Government and was not arbitrary. On the same anology the order prohibiting appointment cannot therefore be assailed.

In the said case of Durgesh Kumari, (supra) the Government had imposed ban on recruitment under Section 9 (4) of U.P. Intermediate Education Act, 1921. By the said order which was issued on 3071991 the recruitment/appointment to the post of Principals, lecturers and L.T. Grade teachers, coming within the purview of the Services Commission Act, were restricted. The said order was held valid on the ground that the same was imposed temporarily for the purpose of facilitating adoption of new procedure of selection, as contemplated by the State Government in implementation of the Amending Act.

In the present case it was contemplated by the State Government that C.T. Grade should be abolished and all the teachers working in C.T Grade should be promoted to the post of L.T. Grade and all the recruitments are to be made in L.T. Grade only. In order to facilitate implementation of the said policy the ban was imposed so as to avoid complication in the process of implementation of the policy. The policy of the State Government in easing out C.T. Grade in a phased manner namely by stopping fresh recruitment and by promoting the existing teachers in the grade to L.T. Grade, can in no way be called arbitrary. Admittedly the qualification of L.T. Grade is little higher than that of C.T Grade. Doing away with the C.T. Grade means improvement in the level of qualification of teachers which has a direct effect on education system. The same would definitely have improving effect, which fact cannot be ignored. It is not altogether ban in the recruitment itself but is a process aimed at improving the quality of education while protecting those already working by allowing them automatic promotion to L. T Grade on fulfilment of certain conditions.

While contemplating such a situation a Circular or instruction, as referred to above, and since been challenged by the petitioner, was issued. The said Circular though assailed by the learned Counsel for the petitioner that the same is only official instructions and not a Government order having statutory force yet it appears that the same administrative instruction following a Government decision which cannot be ignored, as observed above. The administrative instructions following a Government decision specifying particular made of exercise for implementation of such Government decision, cannot be said to be an exercise in futility nor it can be ignored or overlooked. The Government decision has to be implemented. The modality of such implementation may be exercised through the guide lines laid down by administrative instructions. Therefore, the administrative instructions which follows a Government decision cannot be ignored.

In the present case, however, the learned Counsel for the petitioner contends that since the petitioner is in no way responsible for the delay in joining duties, therefore, she cannot suffer of the omission on the part of the respondents. Whether the petitioner is responsible or the respondents are responsible, is not a question to be weighed with. It is only the Government policy is taken, which is anti dated to the date of appointment, the same cannot be ignored. Infact, the appointment of two teachers in C.T. Grade having been made after the decision of the Government it cannot be said to be bad because of the reasons that the administrative instructions were issued later on. Whatever might be the reasons if the circular is brought into effect, then according to the circular no appointments could be made after 14th May, 1989. When a circular provides a particular condition without making any exception, the same has application in general in all cases without any distinction. Therefore, until and unless the said Government decision is assailed and set aside by this Court, there is no scope for overriding the same. Therefore, the said circular stares on the face of the petitioner and stands in between for obtaining the relief claimed.

The appointment letter does not specify as to against which appointment is made, and also does not record that appointment is made against the sanctioned post. Since specific averments have been made in the counteraffidavit of Mr. Prem Bhargava that there was no sanctioned post and that there was no post created and having been no material on record to show that the appointment was made against the sanctioned post, it is very difficult on the part of the Court to find favour with the contention of the learned Counsel for the petitioner. The statement made in the rejoinderaffidavit does not specifically point out as to creation or sanction of the post, as required under Section 9 of the U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees)'' Act, 1971.

Mr. Radhey Shyam, learned Counsel for the petitioner refers to two decision of this Court. He relied on the case of Ramji Pathak and another v. District Inspector of Schools, Allahabad and another, 1986 UPLB & EC 344 in support of his contention that such appointment cannot be said to be limited by time. Since the said contention has been decided in lavour of the petitioner, it is not necessary to deal with the ratio decided in the said case. The other case relied upon by the learned Counsel for the petitioner being the case of Manoj Kumar Mishra v. Maha Prabandhak and another, 1996 (2) ESC 163 (Alld.) does not help the petitioner in the facts and circumstances of the case, which is altogether distinguishable. In view of the Government policy as well as circular, which is AnnexureCA 6 to the counteraffidavit and the absence of existence of any material showing creation or sanction of the post, the petitioner is not entitled to any relief.

In the result, the writ petition fails and is accordingly dismissed. There will, however be no order as to costs.