A. P. Singh, J. - (1.) POST of L.T. grade teacher in S. V. Inter College, Lahua Kalan, Azamgaih for short the College, is the bone of contention in the above two writ petitions. While Rajendra Misra, petitioner no. 1 in writ petition No. 11229 of 1982, for short the petitioner of the 1st writ petition, claims this post by way of promotion from C. T. grade on ad hoc basis under Removal of Difficulties Order 1981 issued under Section 33 of the U. P. Act no. 5 of 1982, on that said post falling vacant either due to the promotion of a L.T. grade teacher of the College in the lecturer's grade or due to the creation of the post of Geography teacher in that grade, which is, however, disputed by the District Inspector of Schools, for short DIOS. However, for settlement of the present dispute it is not necessary to resolve the controversy as to on which post petitioner of 1st writ petition, Rajendra Misra, was appointed. On the other hand, Shyam Sunder Singh, petitioner in writ petition no. 2734 (A) of 1989, for short petitioner of Il-nd writ petition, claims this post under Rule 2 (chha) of Chapter II of the Regulations framed under U. P. Intermediate Education Act, 1921, for short the 1921 Act and Regulations coupled with the order dated 2-1-88 of the Regional Deputy Director of Education VIIth Region, Gorakhpur. for short the D.D.R., who is respondent no. 4 in the Had writ petition.
(2.) BY an order dated 14-2-1989 passed in the IInd writ petition both writ petitions were connected and are thus being decided together by a common judgment more so because the post, the parties and the questions involved in both the cases are common. Petitioner of the 1st writ petition is respondent no. 5 in Ilnd writ petition whereas petitioner of Ilnd writ petition is respondent no. 4 in the 1st writ petition by virtue of the order dated 4-12-1989 passed, in the 1st writ petition on an application for impleadment filed by petitioner of the Ilnd writ petition in the 1st writ petition. In short, the facts of the 1st writ petition may be stated as follows : Petitioner no. 1 was appointed by the managing committee of the College by resolution dated 26-1-1982 by way of ad-hoc promotion from C.T. grade to the L.T. grade the Committee sent the said resolution to the DIOS, Azamgarh for grant of approval. By the same resolution the managing committee also appointed petitioner no. 2 as C.T. grade teacher to fill up the vacancy caused in the C.T. grade due to the ad-hoc promotion of petitioner no. 1. Both these appointments were approved by the DIOS, Azamgarh by his order dated 28-6-1982. Subsequently, on a complaint/representation filed by Ram Janam Singh, respondent no. 3, who happened to be the senior most teacher of the College in the C.T. grade, the DIOS, Azamgarh by the impugned order dated 4-9-1982 (which has been filed as annexure 8 to the writ petition) recalled his order dated 28-6-1982 on the grounds that petitioner's promotion in L.T. grade was made in violation of Regulation 6 of Chapter III of the Regulations inasmuch as the claim for promotion, in the said grade, of the senior most teacher in C.T. grade was not considered by the Managing Committee while passing the resolution promoting the petitioner of the 1st writ petition. Both Rajendra Misra and Om Prakash Singh feeling aggrieved by the above noted impugned order dated 4-3-82 of the DIOS filed this writ petition and obtained stay order on 28-9-1982 which was, however, vacated by this Court vide order dated 4-2-1989 at the instance of Shyam Sunder Singh petitioner of the Ilnd writ petition, who as stated above, also claimed a lien on the post by virtue of Regulation 2 (chha) of Chapter II of the Regulations and also by virtue of the order passed by the D.D.R. Gorakhpur dated 2-1-1988. Similarly, it is necessary to notice in short the facts of the IIn3 writ petition which "are as follows : The College was a Junior High School prior to 5th October, 1971 on which date it was raised to the level of High School and came to be governed by the provisions of 1921 Act. Petitioner was appointed as Head Master of the Junior High School on 6-8-1968 but could not be selected for appointment as Head Master of the College after it no more remained a Junior High School and another person was selected and appointed as it's Principal by the Managing Committee by order dated 1-7-1972. Consequent whereto petitioner started working as an Assistant teacher of L.T. grade. The Management sent a request to the DIOS, Azamgarh for granting approval for petitioner's appointment but the same was refused twice by the DIOS, Azamgarh whereupon the Management by order passed in June 1974 terminated the services of the petitioner. From the facts noticed by the D.D.R., Gorakhpur, in his ord;r dated 2-1-1988$ it is established that petitioner worked as Assistant teacher p the College throughput and was paid his salary after 5-10-1971 (when the institution was raised to High School from Junior High School). Against the order of his termination, petitioner filed Writ Petition in this Court which was numbered as Civil Misc. Writ No. 11874 of 1975. This writ petition was, however, dismissed by this Court vide judgment and order dated 2-8-1983. While dismissing the said writ petition, this Court in Its above mentioned judgment observed thus : The petitioner may, if he is so advised approach the Regional Deputy Director of Education, against the order of termination of service who may enquire into the matter and do justice," Strengthened by the above observation made in the judgment petitioner approached the,D.D.R., Gorakhpur through a representation seeking setting aside of the termination order. The D.D.R.. Gorakhpur gave opportunity of hearing to the Managing Committee of the College, the DIOS. Azamgarh and the petitioner and held detailed enquiry and concluded that termination of petitioner's services by the Management of the College on the basis of the order of DIOS, Azamgarh, refusing approval for petitioner's appointment as L.T. grade teacher, was wrong inasmuch as petitioner had a right under Regulation 2 (chha) of Chapter II of the Regulations to continue in service of the College as Assistant Teacher of L.T. grade by virtue of his having worked as Head Master of the Junior High School prior to 5-10-1971 when the Junior High School was elevated to the status of High School. The D.D.R. also held that no resolution for appointment of the petitioner was required to be passed by the Managing Committee of the College nor the approval order was required to be passed in that respect by the DIOS for the lawful continuance of the petitioner as Assistant Teacher of the College in the L.P. grade. The D.D.R., therefore, accordingly, directed the Inspector and the Managing Committee to allow the petitioner to work against the vacancy against which petitioner of the first writ petition had been promoted from the C.T. grade on ad-hoc basis. The Managing Committee complied with the above order of the D.D.R., Gorakhpur by appointing petitioner of order dated 8-1-1988 and reverted petitioner of the Its Writ 'A' Petition as C.T. grade teacher. The DIOS Azamgarh however, did not relent and refused to pay salary to the petitioner maintaining that petitioner of the 1st writ petition, who had been promoted as L.T. grade teacher was entitied to continue (order of DIOS is dated 24-1-88) in service. Against the said Order of the DIOS, Azamgarh, petitioner filed writ petition in which the High Court directed the DIOS, Azamgarh to implement the order of the DDR dated 2-1-1988 whereafter the DIOS heard the matter and passed the impugned order dated 19-7-1988 holding that since petitioner of the first writ petition was already working as LT grade teacher and since his ad-hoc promotion on that post had duly been approved as such the petitioner of the Ilnd writ petition could not be appointed on that post nor he could be paid salary, he accordingly ruled that the order of the DDR, Gorakhpur could not be implemented. The question which now arises- for decision in these writ petitions is as to who between the petitioner of the first writ petition and petitioner of second writ petition is entitled to continue to work and receive payment of salary as LT grade teacher of the College.
(3.) SRI Vinod Kumar Singh, learned counsel for the petitioner of the 1st writ petition has assailed the impugned order passed by the DIOS, Azamgarh in the 1st writ petition on the ground that the DIOS, Azamgarh had no power (jurisdiction) under the law to recall and cancel his earlier order dated 28-6- 1982 as that order had not been procured either by the Managing Committee of the College or by the said petitioner by giving wrong facts or by making misrepresentation or by playing fraud. It was also argued that the said order in any case was void ab-initio as before passing the said order the DIOS, Azamgarh had not afforded opportunity of hearing to the Ilnd petitioner of the 1st writ petition, namely, Om Prakash Singh, whose appointment in the CT grade was also approved by the order of the DIOS dated 28-6-1982 which too stood terminated as result of the passing of the impugned order. To substantiate his above contentions, Sri Singh placed reliance on the following judgments of this Court to demonstrate that the DIOS possessed no power to recall or review his orders in normal course or in any case without giving opportunity of hearing : (a) Jaswant Singh v. DIOS, 1980 UPLBEC 43. (b) Mohan Lai Sharma v. DIOS, 1982 UPLBEC 213. (c) Radhey Shyam Chaubey v. DIOS, 1978 ALR 14, and (d) Gauri Shanker v. Ram Lakhan Pandey, 1984 UPLBEC 16. This Court through a Division Bench in the case of Jaswant Singh laid down situations in which the DIOS could review an order passed by him earlier. To quote the words of the Division Bench : "(6) The District Inspector of Schools having once passed an order in the manner stated above does not have jurisdiction to review his order unless it is established that the said order had been obtained by misrepresentation or fraud or was the result of mistake in the sense that it was passed on incorrect facts and would not have at all been passed if the correct facts had been brought to his notice. These facts should, however, be such which go to the very root of the matter. The District Inspector of Schools has no power to review his earlier order on a fresh assessment of facts or law." (7) Even in those cases where it is established that the earlier order had been obtained by misrepresentation or fraud or had been given under mistake as aforesaid the District Inspector of Schools must not recall or revoke the said order without giving an opportunity of hearing to the person in whose fovour the said order had been passed. (8) The opportunity of hearing which the District Inspector of Schools had to give either at the stage of passing the initial order recalling or revoking it in the circumstances, stated above is to be confined to giving the persons concerned an opportunity to put forward their case. It is not to be converted into a regular hearing as is done by a Civil Court. The District Inspector of Schools has to keep in mind that the enquiry to be made by him is of a summary nature and on an administrative level meant to satisfy himself as to who, according to him, are the validly elected office bearers of the committee of management. In other words the District Inspector of Schools should not arrogate to himself the jurisdiction of a Civil Court and thereby assume the power to decide the fate of the parties before him." ;