Sudhir Agarwal, J. - (1.) 1.Heard Sri A.N. Rai for the petitioner and Sri J.N. Maurya, learned Standing Counsel for the respondents 1 and 2.
(2.) THE petitioner Mohan Ram has preferred this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the respondents to pay his salary from the date he has joined his duties pursuant to the appointment letter and, thereafter, to continue to pay salary periodically. With the consent of the learned counsel for the parties, the writ petition has been taken up for final disposal under the Rules of the Court at this stage. The facts in brief as borne out from the writ petition are that Gandhi Uchchatar Madhyamik Vidyalaya, Rampur Kanungoyan, Ballia (hereinafter referred to as "institution") is a higher secondary school recognized by the U.P. Board of High School and Intermediate Education, Allahabad under the provisions of U.P. Intermediate Education Act, 1921 (hereinafter referred to as "1921 Act"). The institution is being governed and payment of salary to the staff is being made under the provisions of U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as "1971 Act"). One Shiv Das Yadav, a Class-IV employee, was promoted to the post of Daftari on 1.1.1991 in the institution whereupon institution felt the need of appointing a Class-IV employee (Jamadar) for which permission was sought from the District Inspector of School, Ballia (hereinafter referred to as "DIOS") but he did not respond to the said letter. The Class-IV post (Jamadar) was advertised in daily newspaper "Purvanchal Sandesh" dated 11.2.1995 and was also notified on the "Notice Board". Selection was held on 10.3.1995 wherein it is said that 5 candidates including the petitioner participated and ultimately the petitioner was selected and appointed vide appointment letter dated 10.3.1995 (Annexure-1 to the writ petition). For seeking financial approval of the DIOS, letter dated 10.3.1995 sent which was received in his office (DIOS) on 11.3.1995. The petitioner said to have joined the institution as Jamadar on 10.3.1995 and is working since thereafter. Having failed to obtain any order from DIOS, despite of several representations, the petitioner approached this Court in Writ Petition No. 23647 of 2000, which was finally disposed of vide judgment dated 20.5.2000 directing the DIOS to pass an appropriate order in accordance with law within two months. This Court also directed the DIOS to consider the question of financial approval while deciding petitioner's representation. The DIOS, thereafter, on 29.11.2007 passed an order to ensure payment of salary to the petitioner in accordance with law, but himself not pass any order as to whether he has granted financial approval to the appointment of the petitioner or not. Again the petitioner made some representations and then he preferred this writ petition. On 10.7.2008 when this writ petition came up for admission initially before Hon'ble Dilip Gupta, J., His Lordship was of the view that the DIOS's order dated 29.11.2007 did not comply the direction issued by this Court vide judgment dated 20.5.2000, whereby the DIOS was required to decide petitioner's representation and also to consider the question of financial approval and, therefore, the Hon'ble Court required the DIOS to appear before the Court in person on 28.7.2008. The said order was not complied by DIOS and nobody was present on 28.7.2008 when the matter came up before Hon'ble Rajesh Kumar, J when His Lordship granted another opportunity for appearance of DIOS and adjourned the matter to the next date i.e. 30.8.2008. On the next date, one Yogendra Kumar Singh appeared and informed that on 29.11.2007, one Sri Umehsh Kumar Tripathi was posted as DIOS, Ballia, who has passed the said order for payment of salary. In the circumstances, Hon'ble Rajesh Kumar, J. directed the writ petition to be listed on 18.8.1008 with the further direction to the Standing Counsel to ensure presence of Sri Umesh Kumar Tripathi as well as to file his personal affidavit by the next date. This order remained uncomplied with on 18.8.2008 when on the request of the Standing Counsel, indulgence was granted on payment of cost of Rs. 500/- and the case was adjourned for 25.8.2008 to enable Sri Umesh Kumar Tripathi, the DIOS, Ballia to appear before the Court. On 25.8.2008 the matter was postponed to 27.8.1008 on which date, Sri J.N. Maurya, learned Standing Counsel, after receiving instructions from Sri Umesh Kumar Tripathi, informed that he was seriously ill and sought adjournment to enable him to comply the Court's order dated 10.7.2008. Accordingly, the matter was adjourned to 5.9.2008 Sri Umesh Kumar Tripathi appeared and filed his personal affidavit on 5.9.2008 stating that a detailed order was passed in the file of the office and copy of the order sheet whereupon he said to have passed order on 29.11.2007 was annexed. The said document did not inspire any confidence having not been shown as part of the official record, hence this Court passed a detailed order on 8.9.2008, which reads as under : "A personal affidavit has been filed by Sri Umesh Kumar Tripathi, the then DIOS, Ballia annexing therewith an alleged copy of the order sheet whereupon he has said to have passed order on 29.11.2007 pursuant to this Court's order dated 22.5.2000. Learned Standing Counsel has produced before this Court the alleged original copy of the said note sheet. A perusal thereof shows that neither it is part of any official record since it does not contain any page number nor even any whole of thread is there showing that it was ever made part of the official file. Both the papers are yellow in colour and are old papers. The note-sheet shows the note prepared by some person to whom Sri Tripathi identified as Brijendra Singh, who has signed the same but there is no date behind his signature and on the same date, the said DIOS said to have passed the order. Both the papers are separately maintained though the remaining original file contained tagged documents. He also submitted that the said Clerk is still posted in the office of DIOS Ballia. From a bare perusal thereof, it appears to be a subsequently manufactured document after various orders having been passed by this Court in this very writ petition. This is a very serious matter showing the extent to which a person like deponent of the personal affidavit, i.e., Sri Umesh Kumar Tripathi, holding the office of DIOS, a Government Servant, can go. Further, from the record of the file, which has been produced before this Court, it also appears that it no were suggested preparation of any separate note sheet. On the query, learned Standing Counsel stated that such is the normal procedure of the office of DIOS, Ballia. That being so, he shall produce some other files supporting his contention that such type of note sheets are prepared in that office. Learned Standing Counsel also prays that he wants to file a counter affidavit to the writ petition. Let this matter be listed for further hearing on 19.9.2008. In the meantime, learned Standing Counsel may file counter affidavit to the writ petition. On the next date, Sri Umesh Kumar Tripathi, the then DIOS, Ballia and Sri Brijendra Singh, Clerk, said to be posted in the office of DIOS Ballia, both shall remain present before the Court. Sri Umesh Kumar Tripathi is present in the Court pursuant to this Court's order dated 18.8.2008. His appearance is not dispensed with. Learned Standing Counsel shall communicate this order to Sri Brijendra Singh for compliance. Copy of this order be supplied to learned Standing Counsel for compliance by 8.9.2008."
(3.) THEREAFTER, this matter was listed on 5.12.2008, 9.1.2009, 27.2.2009, 6.3.2009, but on every occasion, indulgence was sought by learned Standing Counsel by asking for time. Today, when the matter was taken up, Sri J.N. Maurya, learned Standing Counsel informed this Court that despite of his several letters sent to the authorities concerned including Sri Umesh Kumar Tripathi, he has not received any response till date and he referred to the dates of his letters as 12.9.2008, 6.12.2008, 12.1.1009, 27.2.2009 and 6.3.2009. He informed that the letter dated 27.2.2009 was communicated by fax dated 4.3.2009 to the authorities concerned. In these circumstances, this Court has no option but to proceed to consider the matter on merits besides the conduct of the respondents in showing such disregard to the orders of this Court. The learned Standing Counsel sought to argue that the petitioner is not entitled for any salary for non compliance of Regulation 101 inasmuch there is no prior approval obtained form the DIOS before making appointment of the petitioner, hence the writ petition is liable to be dismissed.;