Remanded

Krishna Kumar Tripathi and Others v. Zila Basic Shiksha Adhikari and Others

Allahabad HC20 Nov 2018WRIA/7445/2002

Case brief

AI extract

What is this about?

This Writ Petition challenged an order declaring appointment letters forged. The Court held the state could not raise new defenses via affidavit and remanded the matter to record facts regarding the existence of sanctioned posts referred to in the lower order.

What did the court decide?

Impugned order dated 05.11.2001 set aside; matter remitted to District Basic Shiksha Adhikari, Maharajganj, to pass a proper order following reasoned inquiry within specified timelines.

Krishna Kumar Tripathi and Others Vs Zila… — Pension and Retirement Benefits | Allahabad HC (2018)

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Court No. - 7

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Case :- WRIT - A No. - 7445 of 2002

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Petitioner :- Krishna Kumar Tripathi & Others Respondent :- Zila Basic Shiksha Adhikari & Others Counsel for Petitioner :- R.S. Misra,A.Kumar,Sanjay Kumar Mishra,Siddharth Khare Counsel for Respondent :- C.S.C.,B.P. Singh,Sher Ali

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Hon'ble Saumitra Dayal Singh,J.

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Heard Sri G.K. Singh, learned Senior Counsel assisted by Sri S.K. Mishra, learned counsel for the petitioners and Sri Ajit Kumar Singh, learned Additional Advocate General for the State assisted by Sri S.K. Mishra, learned Standing Counsel.

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The present writ petition has been filed to challenge the order dated 05.11.2001 passed by District Basic Shiksha Adhikari, Maharajganj. By the said order it has been observed that the sanction of the post on which the petitioners had been appointed (Assistant Teacher at Kisan Laghu Madhyamik Vidyalaya, Bargahpur, Lehra, Maharajganj) was a forged document and therefore no rights could arise from such an order.

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Briefly, the petitioner claims to have been appointed on the Post of Assistant Teacher at the aforesaid institution at Maharajganj in the year 1996. In that regard it is submitted that a prior permission had been first granted by the Basic Shiksha Adhikari on 15.01.1996 pursuant whereto the selection was undertaken by the Committee of Management in accordance with law on 28.01.1996. That selection was approved by the Basic Shiksha Adhikari on 30.01.1996 and appointment letters were issued to the

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petitioners on 31.01.1996. From the period 1996 upto July, 2000 the petitioners further claimed to have continuously worked at the aforesaid institution and to have further been paid their due salary. On 24.10.2000 the additional Director of Education, the Basic Shiksha Adhikari stopped the salary payment of the petitioners without holding any enquiry in that regard. The said direction having been given effect to Krishna Kumar Tripathi and three others approached this Court by means of Writ Petition No.52280 of 2000 that was disposed by order dated 11.12.2000 requiring the District Basic Shiksha Adhikari, Maharajgang to pass a speaking order after holding an enquiry in that regard.

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It is in pursuance of the aforesaid direction that the impugned order came to be passed. By that order the Basic Shiksha Adhikari has found that the approval order dated 27.09.1990 (wrongly mentioned as 27.08.1998) was a forged document. Other than that no other reason has been mentioned.

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While the petitioners had initially questioned the reasoning mentioned in the impugned order, subsequently upon filing of supplementary affidavits and reply thereto, today during the course of hearing learned Senior Counsel for the petitioners has confined the case of petitioners thus:- Even if the reasoning of the impugned order is accepted as true and correct i.e. is the order dated 27.09.1990 was a forged document, it would have no effect on the petitioners' entitlement to salary or to the validity of their appointment inasmuch as the appointment of the petitioners would have to be found to be valid in

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view of the earlier order dated 24.05.1986 by which nine additional Posts of Assistant Teacher were created and approved at the aforesaid institution, by another order of the Assistant Director, Shiksha (Basic), Gorakhpur. It is thus submitted that a prior to the issuance of that order there were only four posts of the Assistant Teachers at the aforesaid institution. They stood increased to thirteen by virtue of that order. It is against these posts the petitioners claim their appointment. Practically, therefore, the petitioners have abandoned their claim under the order dated 02.07.1990.

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Examined in this context, it is seen that with respect to order dated 24.05.1986 annexed to the supplementary affidavit filed by the petitioner, the State had responded with a supplementary counter affidavit contending that the existence of the order dated 24.06.1986 was not established since two pages of the dispatch register being pages no.41 and 42 for the period 22.05.1986 to 30.05.1986 were missing.

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In the supplementary rejoinder affidavit filed to the aforesaid supplementary counter affidavit it has been disclosed that with respect to another institution similar controversy had arisen on account of the same two pages of the dispatch register being missing. In that case Writ-A No.6581 of 2015 Chakravarti Prasad & 2 Ors. Vs. State of U.P. & 5 Ors decided on 03.12.2015 had been disposed of requiring the District Basic Education Officer, Maharajganj to take a final decision in the matter. It is further stated that in compliance of the aforesaid direction the Basic Education Officer, Maharajganj has by his order

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dated 07.04.2016 decided the controversy in favour of that petitioner after taking note of the missing pages of the dispatch register.

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It is thus submitted that the similar result must follow in the case of petitioners as well as since there is no other dispute as to the validity of the order dated 24.05.1996.

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Learned Additional Advocate General on the other hand submits that in the first place the order dated 27.09.1990 was a forged document and, therefore, no rights would arise there from. Then it has been submitted, no proper or valid exercise had been carried out by the Committee of Management while making the appointments of the petitioners in the year 1996. It has thus been submitted, even otherwise the appointment of the petitioners were wholly illegal. Third, it has been submitted relying on Section 9(2) of the U.P. Junior High School Act, 1972 even if any approval may have been granted in the year 1986, in view of the fact that the petitioners were first appointed ten years thereafter in 1996 their appointment would remain illegal since the approval granted on 24.05.1986 lapsed on 23.08.1986, by operation of law.

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In rejoinder, learned Senior Counsel appearing for the petitioners submits that first petitioners are not placing reliance on the order dated 27.09.1996 and, therefore, the argument advanced by the State is not relevant for decision of the controversy. In so far as the issue of nonadvertisement of the post is concerned, it has been submitted it did not form part of the reason contained in the impugned order and no fresh controversy can be raised

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by means of the counter affidavit filed to the writ petition. In so far as the third objection raised by the learned Additional Advocate General is concerned, it has been submitted, the appointments of the petitioners were made in accordance with law after prior approval by the Basic Shiksha Adhikari and due approval was granted thereto.

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Having considered the arguments so advanced by the learned counsel for the petitioners that in the first place the petitioners having given up their faith in the order dated 27.09.1990, the objection of the State passed on that order plainly does not arise. As to the second objection of lapse of advertisement, it is too late in the day for the State to raise that controversy inasmuch as the appointments are claimed to have been made in the year 1996 and State did not raise any objection upto the stage of filing of the earlier writ petition which was disposed of by an order dated 11.12.2000. In the first place the controversy had arisen only as to whether there existed sanctioned post. Upon a complaint made to the Additional Director of Education the salary payment of the petitioners had been stopped. Therefore, the very nature of the objection was precise as to lack of sanctioned post and not of any other infirmity. Then, even in the proceedings conducted in pursuance of the earlier order of this Court dated 11.12.2000, no objection whatsoever arose as to lack of advertisement. That being the case, merely because the petitioner had not accepted the order dated 05.11.2001 and had chosen to challenge the same in the present proceedings, the State cannot be allowed to take new stand only to defeat the relief being sought by the petitioners.

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Also, it is a settled principle of law that an order may be defended only on the reasoning contained in that order and not on the strength of affidavits that may be filed in the proceedings to challenge that order. Therefore, the objection raised by the State must fail.

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As to the third aspect pertaining to existence of sanctioned posts, it is an admitted case between the parties that the Basic Shiksha Adhikari has yet not recorded a finding to that effect with reference to the order dated 24.05.1986. The facts with regard to issuance of the order dated 24.05.1986 would remain a matter to be considered by the Basic Shiksha Adhikari keeping in mind all relevant facts including the fact that he had already conducted a similar inquiry in another case pursuant to the case of Chakravarti Prasad & 2 Ors pursuant to the directions issued in Writ-A No.6581 of 2015 decided on 03.12.2015. However, that is not to say, that the claim so made must necessarily be accepted but that the decision may be made upon due application of mind taking all relevant facts and circumstances of the case into account.

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Accordingly, the impugned order dated 05.11.2001 is set aside and the matter is remitted to the Basic Shiksha Adhikari, Maharajganj to pass a proper order in accordance with law with the following directions:-

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(i) Petitioners shall file a fresh representation before the District Basic Shiksha Adhikari, Maharajganj within a period of three weeks from today alongwith the certified copy of this order.

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(ii) Upon receipt of such representation the District Basic

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Shiksha Adhikari, Maharajganj may proceed to consider the same.

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(iii) In the event he is inclined to dismiss the representation, prior notice to the petitioners as also the Committee of Management of the institution, be issued within further period of two months from such representation being filed, indicating the reasons on which such representation is proposed to be rejected.

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(iv) Upon receipt of notice, if any, from the District Basic Shiksha Adhikari, Maharajganj one opportunity be granted to the petitioner to submit their final reply within a period of two weeks from the date of receipt of the reply.

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(v) Upon receipt of such reply, if any, the District Basic Shiksha Adhikari, Maharajganj shall proceed to decide the representation made by the petitioners by a reasoned and speaking order as expeditiously as possible in accordance with law within five months from date of filing of the representation.

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Order Date :- 20.11.2018 Shahroz

Krishna Kumar Tripathi and Others v. Zila Basic Shiksha Adhikari and Others

Case brief

What is this about?

What did the court decide?

Krishna Kumar Tripathi and Others v. Zila Basic Shiksha Adhikari and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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