Dismissed

Ram Asrey Dubey v. D.I.O.S. Jaunpur and Others

Allahabad HC5 Feb 2019SPLA/1409/2007

Case brief

AI extract

What is this about?

This intra-Court appeal challenged a Single Judge's dismissal of a writ petition which sought to quash the reinstatement of a teacher and remove an ad-hoc appointee. The apex court upheld the reinstatement, ruling that the DBEO order confirming a warning was never challenged, negating any vacancy, and the new appointment violated mandatory statutory recruitment procedures.

What did the court decide?

The special appeal filed by the appellant was dismissed for lack of merit.

Ram Asrey Dubey Vs D.I.O.S. Jaunpur and… — Pension and Retirement Benefits | Allahabad HC (2019)

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Court No. - 34

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Case :- SPECIAL APPEAL No. - 1409 of 2007

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Appellant :- Ram Asrey Dubey Respondent :- D.I.O.S. Jaunpur And Others Counsel for Appellant :- A.K.S. Baish,C.B.Dubey,G.D. Misra Counsel for Respondent :- C.S.C.,A.P. Tiwari,Diwakar Tiwari,G.K. Singh,P.S. Baghel,Rakesh Pande,V.K. Singh

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Hon'ble Sudhir Agarwal,J. Hon'ble Rajendra Kumar-IV,J.

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Heard Sri G.D. Misra, learned counsel for appellant and Sri R.K. Ojha, learned Senior Counsel, assisted by Sri Diwakar Tiwari, learned counsel for private respondents and learned Standing Counsel for State-respondents.

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This intra-Court appeal, under Chapter-VIII Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as 'Rules, 1952'), has been filed assailing judgment dated 22.5.2007, passed by learned Single Judge in Civil Misc. Writ Petition No. 17312 of 1985.

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Brief facts, relevant for deciding appeal, are that respondent No.2-Daya Shankar Tiwari was appointed as Assistant Teacher, L.T. Grade, in Sarvajanik Junior High School, Gohka Mujar, District Jaunpur (hereinafter referred to as 'Schoold'). It was a Junior High School governed by the provisions of “Uttar Pradesh Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978” (hereinafter referred to as 'Rules, 1978'). Committee of Management of School terminated Daya Shanker Tiwari by order dated 9.9.1976 but that order was not approved by District Basic Education Officer (hereinafter referred to 'DBEO') and by order dated 6.10.1977, he modified punishment to warning.

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It is an admitted case of appellant that order dated 6.10.1977,

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passed by DBEO, was never challenged either by Committee of Management or anyone else and has attained finality.

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Junior High School was upgraded to High School by order dated 13.7.1977 but permitted to run classes was from 1979. It appears from records that Committee of Management did not comply with order dated 6.10.1977 passed in respect to, respondent 2-Daya Shanker Tiwari, and did not allow him to work. Instead, treating his post vacant, appellant-Ram Ashrey Dubey was appointed in 1982 vide letter dated 27.12.1982 which is on record at page 121 of this Appeal.

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Appellant-Ram Asrey Dubey was appointed purely on ad hoc basis for reason that substantive appointment could not have been made by Committee of Management in view of the fact that having being upgraded to High School, recruitment to the posts of teacher in 1982 was covered by the provisions of “The U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981” (hereinafter referred to as the 'First Order') read with Section 18 of “U.P. Secondary Education Service Commission, 1981” (hereinafter referred to as 'Act, 1981') and the Rules and Regulations framed thereunder.

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It is also said that appellant was regularized by District Inspector of Schools (hereinafter referred to as 'DIOS'), vide letter dated 23.4.1994, from 6.4.1991 on the post of Assistant Teacher (C.T. Grade). However, it has also come on record that respondent 2 was not allowed to work by Committee of Management. He was approaching Educational Authority and, therefore, DIOS issued an order dated 14.3.1985 directing reinstatement of respondent 2 and he was reinstated vide order dated 31.10.1985.

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The petitioner and Committee of Management, both, collectively filed Writ Petition No. 17312 of 1985 . Relief claimed in

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Writ Petition is as follow:-

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“i. Issue a writ, of certiorari quashing the impugned order of the respondent No.1 dated 31.10.1985 (Annexrue - IV) in so far as it orders the reinstatement of respondent No.2 as L.T. Grade teacher in the school and removes the petitioner no. 2 from his continuous services.

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ii. issue an ad-interim order staying the operation of the impugned order of the respondent no. 1 dated 31.10.1985 during pendency of writ petition.

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iii. issue any other suitable writ, order or mandamus which may be deemed fit and proper in the circumstances of the present case.

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iv. award costs to the petitioners of the instant writ petition, so that justice may be done.”

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Learned Single Judge, having considered entire facts and circumstances of the case, found that there is no vacancy at all since alleged termination came to an end vide order dated 6.10.1977, and there was no vacancy, wherein, appellant could have been appointed. Hence finding no error in the order dated 31.10.1985, learned Single Judge dismissed writ petition.

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Learned counsel for appellant contended that DBEO had no jurisdiction to pass an order dated 6.10.1977 since Educational Institution, in question, was already upgraded as High School vide order dated 13.7.1977 and, therefore, the said order was nullity and had no legal consequence, hence termination of respondent 2 shall become final and if that be so, appointment of appellant was valid and DIOS committed manifest error in passing order dated 31.10.1985 for reinstatement of respondent 2, by giving credit to the order 6.10.1977.

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Learned Senior Counsel appearing for respondent contended that order dated 6.10.1977 has never been set aside by any competent authority, therefore, there was no vacancy. Respondent 2 continued in service. Hence, appointment of petitioner in 1987 was in nullity. He

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further submitted that even otherwise if it is treated that there was substantive vacancy due to alleged termination of respondent 2, even then appointment of appellant was not made following procedure laid down in First Order, 1981 read with Section 18 of Act, 1981.

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We have heard learned counsel for parties at length and perused record.

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Learned counsel for appellant could not dispute that order dated 6.10.1977 was never challenged which gives benefit to respondent 2 by maintaining him in service. The mere fact that Committee of Management did not allow him to work is of no consequence and for that reason it cannot be said that there was a vacancy in which the appellant could have been appointed.

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It is also not in dispute that appellant was appointed on alleged vacancy though as already said, there was no vacancy.

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Moreover, If alleged vacancy is treated as substantive vacancy, then the procedure prescribed in Clause 5 of First Order, 1981 ought to have been followed which reads as under :-

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“ Ad hoc appointment by direct recruitment. - (1) Where any vacancy cannot be filled by promotion under Paragraph 4, the same may be filled by direct recruitment in accordance with Clauses (2) to (5).

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(2) The Management shall as soon as may be, inform the District Inspector of Schools about the details of the vacancy and such Inspector shall invite applications from the local Employment Exchange and also through public advertisement in at least two newspapers having adequate circulation in Uttar Pradesh.

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(3) Every application referred to in Clause (2) shall, be address to the District Inspector of Schools and shall be accompanied -

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(a) by crossed postal order worth ten rupees

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payable to such Inspector;

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(b) by a self-addressed envelope bearing postal stamp for purposes of registration.

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(4) The District Inspector of Schools shall cause the best candidates selected on the basis of quality point specified in Appendix. The compilation of quality points may be done on remunerative basis by the retired Gazetted Government servants under the personal supervision of such Inspector.

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(5) If more than one teacher of the same subject or category is to be recruited for more than one institution, the names of the selected teachers and names of the institutions shall be arranged in Hindi alphabetical order. The candidate whose name appears on the top of the list shall be allotted to the institution the name whereof appears on the top of the list of the institution. This process shall be repeated till both the lists are exhausted.

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Explanation – In relation to an institution imparting instruction to women the expression 'District Inspector of Schools' shall mean the 'Regional Inspector of Girl's Schools.”

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It is not stated anywhere that the said procedure was followed. Apex Court in Prabhat Kumar Sharma and Others v. State of U.P. and Others, (1996) 10 SCC 62 held that procedure laid down in Removal of Difficulties Order is mandatory and has to be observed in words and spirit. An appointment made inconsistent with the said procedure is void ab initio and will not confer either any right upon the incumbent to hold the post or to continue in service or to claim salary from State exchequer. The relevant observations of Court made in Prabhat Kumar Sharma (supra) are as under :-

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"Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees."

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Again in para 11 of the judgment, Court held as under :-

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"Any appointment in violation thereof is void. As seen prior to the Amendment Act of 1982 the First 1981 Order envisages recruitment as per the procedure prescribed in para 5 thereof. It is an inbuilt procedure to avoid manipulation and nepotism in selection and appointment of the teachers by the Management to any posts in aided institution."

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This decision has been followed and reiterated in Shesh Mani Shukla v. District Inspector of Schools Deoria and others J.T. 2009 (10) SC 309 wherein has held as under :-

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"It is true that the appellant has worked for a long time. His appointment, however, being in contravention of the statutory provision was illegal, and, thus, void ab initio. If his appointment has not been granted approval by the statutory authority, no exception can be taken only because the appellant had worked for a long time. The same by itself, in our opinion, cannot form the basis for obtaining a writ of or in the nature of mandamus; as it is well known that for the said purpose, the writ petitioner must establish a legal right in himself and a corresponding legal duty in the State."

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In such circumstances, it cannot be said that appointment of appellant was made validly. Thus, no relief as sought for in present writ petition, can be granted.

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