- (1.) THE intra-Court appeal under the Rules of the Court arises against the judgment dated 9-7-2002 passed by Hon'ble Single Judge allowing the writ petition of the petitioner-respondent (hereinafter referred to as 'petitioner' ).
(2.) THE facts in brief are that Vindheshwari Inter College, Tulsi Nagar, Azamgarh (hereinafter referred to as "college") is a recognised and aided Intermediate College and governed by the provisions of the U. P. Intermediate Education Act, 1921 (hereinafter referred to as "1921 Act"), the U. P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred "1971 Act") and U. P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as "1982 Act" ). THE post of Principal fell vacant due to retirement of Sri Raj Kumar Gupta the then Principal of the College on 30-6-1994 whereagainst one Sri Raghunath Pandey, Lecturer (English), who was the senior most Lecturer in the College was promoted as ad hoc Principal under the provisions of the U. P. Secondary Education (Removal of Difficulties) Order, 1981 (hereinafter referred to as the "first Order") read with Section 18 of 1982 Act, which resulted in a short term vacancy on the post of Lecturer (English) in the College. THE aforesaid short-term vacancy of Lecturer could have been filled in by observing the procedure prescribed under the U. P. Secondary Education (Removal of Difficulties) (Second) Order, 1981 (hereinafter referred to as the "second Order" ). It is said that Committee of Management on 27-10-1993 had passed a resolution constituting a Selection Committee consisting of Sri Jayant Kumar Jaiswal, Purushottam Jaiswal and the Principal of College authorizing them to make selection for ad hoc appointment against the short-term vacancies available or likely to occur in future in the College. THE said committee on 3-7-1994, advertised the post of English (Lecturer) on the notice board of the College pursuant whereto the petitioner and six more candidates applied. THE selection committee interviewed the aforesaid candidates on 24-7-1994 and on the basis of the quality point marks and interview the petitioner was selected and recommended. THE management vide its resolution dated 24-7-1994 resolved to appoint petitioner in short term vacancy of Lecturer and an appointment letter was issued on the said date itself pursuant whereto petitioner joined the College on 1-8- 1994. It is said that relevant papers of the appointment of petitioner sent by the management through Special Messenger were received in the office of District Inspector of Schools (in short the `dios') on 1-8-1994 but he did not communicate any decision thereon for seven days. Even thereafter salary of the petitioner was not paid despite repeated requests and representations. Rather vide letter dated 7-8-1995 the DIOS informed the College, referring to the management's letter dated 16-5-1995 that a number of documents in respect to the appointment of petitioner were required namely application forms submitted by the various candidates pursuant to the advertisement, the quality point chart, interview chart, management's resolution and the basis on which the quality points were awarded. He also enquired when seven candidates had applied why the quality point chart and interview chart mentioned about four candidates only. THE management thereafter sent a quality point chart dated 9-8-1995 of all the seven candidates. THE management also sent letter dated 9-8-1995 stating that the documents pertaining to appointment of the petitioner are again being submitted for perusal and necessary action at the earliest. THE DIOS vide order dated 4-9-1995 however declined to grant approval on the ground that ban on appointment was imposed vide G. O. dated 30-7-1991. THE petitioner challenged the order dated 4-9-1995 in Writ Petition No. 28591 of 1995, which was dismissed vide judgment dated 16-10-1995 on the ground of alternative remedy since the order impugned in the writ petition was appealable under para 7 of the First Order. THEreafter, it appears that the petitioner preferred an appeal dated 25-11-1995 before the Joint Director of Education, Azamgarh. After giving an opportunity of oral hearing to the management and the petitioner, the Joint Director of Education, Azamgarh vide order dated 28-2-1996 rejected the said appeal whereagainst the aforesaid writ petition was filed which has been allowed by the Hon'ble Single Judge vide judgment under appeal. Sri Abhinav Upadhyay, learned Standing Counsel appearing on behalf of the appellant contended that from the record of the writ petition itself it was evident that the very appointment of petitioner was not in accordance with the procedure prescribed under the Second Order and therefore it was void ab initio and the Hon'ble Single Judge having failed to consider this aspect of the matter has erred in law in allowing the writ petition only on the ground that no counter-affidavit was filed though the facts were self evident from a bare perusal of the order passed by the appellate authority as well as other documents placed on record by the petitioner himself. He contended that it was incumbent for the Hon'ble Single Judge before allowing the writ petition and issuing a mandamus to the appellants for payment of salary to the petitioner to consider whether his appointment was strictly in accordance with law since only thereafter the petitioner could have been entitled for salary from the State Exchequer. He pointed out that Sri Raj Kumar Gupta, the then Principal of the College on attaining the age of superannuation, retired on 30-6-1994 and therefore the vacancy of the Principal occurred on 1-7-1994 and not earlier thereto. The management said to have passed a resolution on 30-6-1994 itself authorizing Sri Raghunath Pandey, Senior most Lecturer (English) to officiate as ad hoc Principal of the College and also authorized the Manager to take further action for verification of signature of Sri Raghunath Pandey as officiating Principal of the College. The DIOS verified signatures of Sri Raghunath Pandey, as officiating Principal vide letter dated 23-8-1994. It is therefore urged that neither Sri Raghunath Pandey could be treated to have been promoted on 1-7-1994 itself on ad hoc basis as Principal of the College under First Order since such promotion was permissible only if the vacancy has actually continued for a period of 60 days after sending requisition to the commission nor the management did possess any power to make ad hoc promotion earlier thereto nor it would result in a vacancy on the post of Lecturer. Moreover no order of promotion was issued promoting Sri Raghunath Pandey as officiating or ad hoc Principal of the College and on the other hand, on the retirement of erstwhile Principal, only his charge was handed over to Sri Raghunath Pandey the senior most Lecturer and he was authorized to look after the work of Principal without their being any actual order of promotion issued to him. In the circumstances there did not occur any short term vacancy on the post of Lecturer and hence there was no occasion for the management either to make any advertisement on 3- 7-1994 or to make any selection on 24-7-1994 and the entire proceedings alleged to have been conducted by the management are illegal and contrary to the statutory provisions namely First and Second Order read with Section 18 of 1982 Act. He also pointed out that the management could not produce any material to show that the documents of appointment of petitioner were ever submitted in the office of the DIOS on 1-8-1994 and on the contrary for the first time, some documents were made available on 16-5-1995 and therefore the entire story set up by the petitioner that the papers were received in the office of the DIOS on 1-8-1994 is incorrect and not supported by the material available on record. It is thus contended that the Hon'ble Single Judge erred in allowing the writ petition only on the ground that an ad hoc appointment could not be replaced by another ad hoc without considering the fact as to whether the appointment of the petitioner was in accordance with law or not. Per contra, Sri R. K. Jain, learned Senior Advocate assisted by Sri Rahul Jain, Advocate appearing on behalf of petitioner-submitted that under 1982 Act, the selection process could have been initiated even in respect to the anticipated vacancies and therefore the management passed resolution on 27- 10-1993 itself constituting a selection committee for filling in the vacancies likely to occur in the College pursuant whereto an advertisement was published on 3-7-1994. The petitioner was selected and appointed vide appointment letter dated 24-7-1994. The petitioner joined on the post of Lecturer on 1-8-1994 and since then is continuously discharging his duties. He also submitted that papers of his appointment were received in the office of DIOS on 1-8-1994 but the entire file pertaining to the said appointment was misplaced in the office of the DIOS whereafter on his request the said papers were again made available on 16-5-1995 but without considering the same, DIOS on wholly irrelevant ground declined approval. The appeal was also rejected by the Joint Director of Education erroneously. Relying on Division Bench judgments of this Court in Prabhu Narain Singh v. Deputy Director of Education, Varanasi & Anr. , 1977 (3) ALR 391; Lalit Mohan Misra v. District Inspector of Schools, 1979 ALJ 1025 and Ashika Prasad Shukla v. District Inspector of Schools, Allahabad & Anr. , 1999 (1) LBESR 13 (All) : 1998 (3) UPLBEC 1722, he contended that even if the appointment of the petitioner was made without first sending the papers to the DIOS, yet the failure of the DIOS for seven days in communicating his disapproval would validate his appointment after expiry of seven days from the date papers were ultimately received in his office and therefore the appointment of the petitioner stood validated in any case w. e. f. 8-8-1994 or in any case after 23-5-1995 and therefore, the petitioner is entitled to get salary then or since his appointment stood validated thereafter. He submitted since the procedure prescribed under the Second Order has been followed by the management and the petitioner is also working for the last more than 10 years, the judgment of the Hon'ble Single Judge does not warrant any interference.
(3.) WE have heard rival submissions, perused the record of the appeal as well as the writ petition and the relevant statutory provisions applicable in this case. It is not disputed by the learned Counsel for the parties that appointment in the College is governed by the provisions of 1982 Act and Removal of Difficulties orders issued thereunder. In our view a mandamus directing the appellants to pay salary to the petitioner could have been issued only if the appellants are under statutory obligation to pay salary. It is no doubt true that the College being aided and recognized institution, liability of payment of salary is upon the State Exchequer under 1971 Act and therefore once a teacher or other staff has been validly appointed in the College, the salary would be payable under 1971 Act. In case of any default a writ of mandamus would lie. Thus, it leads to the question whether the appointment of the petitioner was validly made in the College since his right to claim salary would depend upon validity of his appointment and not otherwise. Since this aspect has not been dealt with by the Hon'ble Single Judge in the judgment under appeal initially we were of the view to remand the matter to the Hon'ble Single Judge but the learned Counsels for the parties pointed out that this case is almost more than a decade old and all the relevant documents are already available on record therefore the issue may be considered and decided at this very stage which would protect the parties from further agony of long drawn litigation and would expedite the matter. Accordingly, we proceed further to consider ourselves whether the petitioner was validly appointed.;