- (1.) Bhim Sen Singh presently posted as Principal of Moti Lal Nehru Smarak Inter College, Ram Nagar Baijabari, District Azamgarh, is before this Court assailing the validity of the order dated 11th February, 2015 passed in writ petition no. 4046/2015 (Bheem Sen Singh v. State of U.P. and 5 others) wherein the learned Single Judge has proceeded to dismiss the Writ Petition in question. on presentation of the Special Appeal in question, this Court on 20-03- 2015 proceeded to pass following order : Notice on behalf of respondents no.1 to 5 has been accepted by learned Standing Counsel. On behalf of respondent no.6, notice has been accepted by Sri O.P.Rai, Advocate. They pray for and are granted 10 days' time to file counter affidavit to the stay application. Rejoinder may be filed within three days thereafter. Counsel for the appellant submit that Hon'ble Single Judge was not justified in dismissing writ petition. The reasons recorded in the order under appeal are bad. He points out that payment of salary to a teacher of an intermediate college, receiving aid from the State Government, can be directed any if following conditions are satisfied : a. Appointment has been made after following the statutory provisions applicable; b. Appointment is against a duly created and vacant post; and c. The appointee possesses all the essential qualification for the post in question. He submits that unless there are findings recorded by High Court in affirmative on all the said three issues, there cannot be any mandamus for payment of salary to a teacher from the State Exchequer. Reference is made to the order dated 27.8.2009, which was passed in Writ Petition No.45065 of 2009, where details qua respondent no.6 had been examined. The order impugned in the writ petition passed by Joint Director of Education/DIOS directing payment of salary to the respondent no.6, does not deal with any of the three aspects of the matter, noticed above. The Writ Court should have interfered in the matter. In our opinion appellant has made out a case for grant of interim order. Till the next date of listing, operation of orders dated 18.05.2013 and 22.6.2013 passed by District Inspector of Schools, District Azamgarh shall remain stayed and respondent no.5 shall not be paid salary without the leave of the Court. List this matter on 20th April, 2015.
(2.) Brief background of the case is that in the District of Azamgarh, there is a recognised institution known as Moti Lal Nehru Smarak Inter College, Ram Nagar, Baijabari, District Azamgarh. The said institution in question is to be run as per the provisions of U.P. Act No. 2 of 1921, 24 of 1971 and 5 of 1982.
(3.) In the said institution concerned, a short-term vacancy in the institution was caused due to proceeding on leave by Sri Nageshwar Lal Srivastava, a lecturer for the subject of Geography and against the said short term vacancy, one Satish Rai was appointed as per the provisions contained under U.P. Secondary Education Service Commission (Second) (Removal of Difficulties) Order, 1981. He left the institution on 7.4.1987 for joining at other institution. Respondent No. 6-Havbaldar Singh claims to have been appointed as lecturer in Geography against the short term vacancy on 12th April, 1987 and this is accepted position that Nageshwar Lal Srivastava proceeded to tender his resignation in the year 1987, Havaldar Singh filed writ petition before this Court, and this Court on 5th May, 1988, proceeded to dispose of the said writ petition in question by directing that respondent no. 6 shall be paid his salary from the date of his appointment till either Nageshwar Lal Srivastava comes back from his leave and joins the post or someone recommended by U.P. Secondary Education Services Commission for appointment as lecturer in Geography in the institution. Havaldar Singh succeeded in getting order from this Court, without disclosing this fact that on the date of filing of writ petition, short term vacancy stood converted into substantive vacancy and by operation of law Havaldar Singh would cease to exist as Paragraph 3 of Second Removal Order, ad-hoc appointment made on account of grant of leave would come to an end when the teacher who was on leave would join or when the short term vacancy ceases to exist. Havaldar Singh has not been fair to this Court at the point of time when order has been passed in his favour by not disclosing this fact that short term vacancy has been converted into substantive vacancy and by operation of law his functioning stood ceased. Moreover in the matter of filling short term vacancies, procedure prescribed under Second Removal of Difficulties Order Paragraph 2, is to be adhered to and therein selection has to be made based on quality points marks and thereafter as per paragraph 2(3)(ii) prior approval is required to be taken by District Inspector of Schools and if there is failure on the part of District Inspector of Schools to communicate approval within seven days of particulars being send, it would be presumed that District Inspector of Schools has deemed to be given his approval. It is the duty of counsels also to apprise the Court of statutory provisions holding the field of selection/appointment. In the order dated 5.5.1988, mention has been made by the Bench that in the matter of ad-hoc appointment in leave vacancy there is no legal requirement that the District Inspector of Schools may accord approval whereas as already mentioned above, there is requirement of prior approval. We are not sitting in appeal over the judgement dated 5.5.1998 but we are consciously mentioning all these facts to show and demonstrate that Havaldar Singh has not at all been truthful before this Court. One Om Prakash joined the institution in question on 22.04.1996 and the net effect of the same was that service of respondent no. 6 once again came to an end once a regularly selected candidate posted there. This much is reflected that Havaldar Singh succeeded in getting said recommendation cancelled. This much is also reflected from the record that District Inspector of Schools, Azamgarh on being apprised of the aforesaid facts passed an order dated 2nd May, 2009 for stopping payment of salary of respondent no. 6 and it appears that against the aforesaid order of District Inspector of Schools, Azamgarh, Regional Joint Director of Education, Azamgarh Region was approached and he directed for payment of salary. The order dated 1st July, 2009 has been subjected to challenge in writ petition no. 45065 of 2009, wherein a detailed interim order dated 27th August, 2009 was passed. The interim order is as follows : "Although counsel for respondent no. 6 was present in the first round when the case was called out. He is not present in the revised reading of the list. Notice on behalf of respondents no. 1 to 5 has been accepted by the Standing Counsel. Notice on behalf of respondent no. 6 has been accepted by Shri Ajit Kumar Singh, Advocate. All the respondents pray for and are granted three weeks? time to file counter affidavit. Rejoinder affidavit, if any, may be filed within one week thereafter. List on 30.09.2009. On behalf of the writ petitioner it is contended that the Lecturer (Geography) namely Nageshwar Lal Srivastava proceeded on leave in the year 1987 against which a short term vacancy was caused in the institution and one Satish Rai was appointed against the said leave vacancy. Satish Rai left the College for joining in Ranveer Ranjai Post Graduate College, Amethi, Sultanpur on 07.04.1987. Shri Nageshwar Lal Srivastava resigned in the year 1987 itself and, therefore, a substantive vacancy was caused. Respondent no. 6 filed a writ petition before the Hon'ble High Court alleging therein that he has been appointed against a short term vacancy on 13.04.1987. The writ petition was disposed of at the admission stage itself with a direction that respondent no. 6 would continue and be paid salary till Nageshwar Lal Srivastava returns from leave or till the recommended candidate from the Commission joins. The fact that the vacancy become substantive with the resignation of Nageshwar Lal Srivastava was not disclosed to the Court. The Committee of Management however did not submit the salary bill of respondent no. 6, therefore, an order under Section 3 (3) of the U.P. Act No. 24 of 1971 was passed. In the meantime one. Om Prakash was recommended by the Commission for the same post of Lecturer (Geography) and he was issued an appointment letter in pursuance whereof he also joined on 22.04.1996. The direction issued by this Court dated 05.05.1988, therefore, lost its efficacy. After joining. Om Prakash has been adjusted in another institution and, therefore, he resigned. Despite the aforesaid respondent no. 6 continued to draw salary from the State exchequer with the collusion of the educational authorities inasmuch as salary bill was never submitted under the signature of the Manager. The District Inspector of Schools after noticing the facts as aforesaid issued an order directing the management to stop the salary of respondent no. 6 (copy whereof has been enclosed as Annexure 9 to the writ petition). The Regional Joint Director of Education has now intervened in the matter and has passed an order dated 01.07.2009 directing that Havaldar Singh, respondent no. 6 stands regularized and, therefore, paid salary. On behalf of the petitioner it is contended that appointment claimed by Havaldar Singh against a short term vacancy came to an automatic end, firstly with the resignation of Nageshwar Lal Srivastava from the post of Lecturer (Geography) in the year 1987 and secondly on the joining of Om Prakash as Lecturer (Geography) on the recommendation of the Selection Board. It is stated that continuance and payment to Havaldar Singh virtually amounts to misuse of the public money in collusion with the District Inspector of Schools and the Joint Director of Education. Matter requires enquiry by this Court. Till the next date of listing salary to Havaldar Singh, (respondent no. 6) shall not be made without the leave of the Court. The District Inspector of Schools and the Joint Director of Education shall file their personal affidavit disclosing all the orders under which payment of salary has been sanctioned to Havaldar Singh. " ;