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KHEM CHAND versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Khem Chand v. State Of U.P. And Others - WRIT - A No. 77269 of 2005 [2006] RD-AH 2807 (7 February 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved Judgment

Civil Misc. Writ Petition No.77269 of 2005

Khem Chand Vs. State of U.P. and others

****

Hon'ble A.P. Sahi, J

The Petitioner, claiming appointment against a short term vacancy, the details whereof would be evident from the facts narrated hereinafter, has questioned the validity of the order dated 3.12.2005 passed by the District Inspector of Schools, Agra (Annexure-10 to the writ petition) on the ground that the same is erroneous as it has proceeded on incorrect assumption of law and is otherwise perverse on the question of fact.

The Petitioner claims appointment against a post, which fell vacant on account of the ad hoc promotion of one Sri Haqim Singh, a Teacher of CT grade, to a post of LT grade. Sri Haqim Singh was appointed in the CT grade on ad hoc basis on 4.1.1989 and was given the benefit of regularization under Section 33-A on 7.8.1993. Sri Haqim Singh, therefore, was a Teacher in the CT grade in substantive capacity in the institution which fact is also admitted to the District Inspector of Schools in his counter-affidavit. Sri Haqim Singh was promoted on ad hoc basis in LT grade on 4.1.1994 which ad hoc promotion was approved by the District Inspector of Schools on 10.7.1996. The resultant vacancy on which Sri Haqim Singh was continuing on substantive basis came into existence as a short-term vacancy. The Management advertised the said post on 14.7.1996 and a copy of the advertisement has been appended as Annexures-3 & 4 respectively which was published in Hindi daily "Dainik Jagran" and another Hindi daily "Sainik". The Management has stated before the District Inspector of Schools, as is evident from a perusal of the impugned order that the aforesaid advertisement was made after the vacancy had been intimated to the District Inspector of Schools. The District Inspector of Schools, while passing the impugned order, has nowhere recorded that the Committee had not intimated the vacancy even though a statement to that effect has been made in the counter-affidavit. The Committee of Management is stated to have held the selections by way of Interview on 25.7.1996 on which date 15 candidates appeared before the Selection Committee and according to the version of the Management has disclosed in the impugned order itself the comparative merits of all the candidates was judged and the quality point marks were awarded as is evident from the tabulation chart appended as Annexure-12 to the writ petition. The petitioner contends that he was selected and thereafter he joined on 1.8.1996 where after the papers were forwarded to the District Inspector of Schools for grant of financial sanction and approval.

The District Inspector of Schools, thereafter, passed an order on 25.9.1996 refusing to grant approval to the petitioner on the ground that there was a Government Order dated 9.7.1995 imposing the ban on making appointments in such privately aided institutions.

The said order of refusal of the District Inspector of Schools to grant financial sanction was impeached by the petitioner in Writ Petition No. 35044 of 1996 which writ petition was allowed on 26.2.1998 by this Court clearly holding that the order of the District Inspector of Schools was erroneous and that there was no such ban on the making of appointment against short term vacancies, the judgment of this Court is Annexure-6 to the writ petition. The District Inspector of Schools was required to examine the validity of the appointment of the petitioner and thereafter proceed to pass an appropriate order on the claim of the petitioner.

The District Inspector of Schools, thereafter, on 28.11.2000 again rejected the claim of the petitioner on merits which order is Annexure-7 to the writ petition. Aggrieved by the said order, the petitioner approached this Court by filing Writ Petition No. 55932 of 2000 which writ petition was allowed after contest vide judgment dated 25.4.2005, copy whereof is Annexure-8 to the writ petition. While allowing the writ petition, this Court held that the post was available against which the petitioner could have been appointed and further held that there was no vital infirmity in the advertisement so as to invalidate the same. It was further held that the post, against which the petitioner was claiming approval, had neither lapsed nor had been abolished; that the information was tendered to the District Inspector of Schools before proceeding to make appointment; and that mere issuance of the letter of appointment would not extend the benefit unless the appointment was approved. The writ petition had been allowed after recording the aforesaid findings.

The District Inspector of Schools by the impugned order dated 25.4.2005, apart from reiterating the objections that had been taken in the earlier order dated 28.11.2000, has rejected the claim of the Petitioner on some other additional grounds as well. The District Inspector of Schools has filed a counter-affidavit and has admitted to justify the impugned order by stating that the impugned order has been passed on the basis of his own understanding of law on the issues raised and that the District Inspector of Schools never intended to over reach the findings and conclusion already drawn in the judgment dated 25.4.2005. A Rejoinder-Affidavit has also been filed by the Petitioner.

Learned counsel for the petitioner has advanced his submissions on all the issues on merit and has further urged that the impugned order has been passed by recording findings contrary to the conclusions already drawn by this Court in the judgment dated 25.4.2005 which has become final between the parties and against which no further appeal was filed by the respondents - authorities. The submission of the learned counsel for the petitioner is that the District Inspector of Schools was estopped from adjudicating the same issues against which had already set at rest by the judgment dated 25.4.2005 and it was no longer open to the District Inspector of Schools to have reopen and commended upon the said issues.

Learned Standing Counsel has urged that since the matter had been remanded back by the Court, District Inspector of Schools, as per his standing of the judgment, has proceeded to decide the matter again and that he never intended to show any disrespect to the judgment of this Court dated 25.4.2005.

Having heard learned counsel for the parties, the first issue that has to be determined is with regard to the status of the post, which was available, against which the petitioner is claiming continuance. From the facts as brought out on record and indicated in the impugned order, the post in question fell vacant on account of Sri Haqim Singh being promoted on ad hoc basis in the LT grade. The post, which was held by Sri Haqim Singh, was of the CT grade and his occupancy was on the said post in a substantive capacity, as he understood regularized as a CT grade Teacher on the said post under Section 33-A.

The contention of the petitioner is that by the Government Order dated 11.8.1989 the post of CT grade in aided institutions were declared to be of the dying cadre. In view of this, the post, which fell vacant on account of the ad hoc promotion of Sri Haqim Singh, could only be filled up in the LT grade in view of the clarification issued under the Government Order dated 4.9.1990. The District Inspector of Schools, on the other hand, contends that a perusal of the Government Order dated 4.9.1990 indicates that only such posts would stand converted in the LT grade which became substantively vacant in the CT grade or the incumbent of the post was extended the benefit of LT grade on having completed 10 years. Sri R.B. Pradhan, learned Standing Counsel, has, therefore, urged that the District Inspector of Schools is right in construing the vacancy which was available on account of ad hoc promotion of Sri Haqim Singh was of the CT grade as Sri Haqim Singh had been promoted on LT grade only on ad hoc basis and he continued to have a lien on his substantive post of CT grade.

A perusal of the Government Order dated 4.9.1990 and the clarification at Item No.1 of the said Government Order demonstrates that in case such a short term vacancy comes into existence then permission can be grated to fill up such a post with a further explanation that in case the permanent incumbent on the post had been awarded LT grade on completion of 10 years then in that event the vacancy would be filled up by inviting candidates, who were qualified to be appointed in the LT grade. The clarification does not indicate that specifically in such situation as has emerged in the present case where Sri Haqim Singh had not completed 10 years in the CT grade and further was still continuing on ad hoc basis in the LT grade. Learned Standing Counsel also conceded that there is no specific clarification in this respect as to whether in such a situation a short term appointment could be made in the CT grade or not.

A perusal of the Government Order leaves no room for doubt that the clarification issued permits appointment against such a short-term vacancy for teaching the junior sections of the institution in order to avoid any inconvenience. For teaching the junior sections of class VI to VIII, the appointments were permissible in the CT grade under the U.P. Intermediate Education Act as well as the regulations framed there under. The appointments in the CT grade were permissible but the question arises that once the State Government has itself issued directions for treating it to be a dying cadre and not to make any further appointments in the said grade then would it still be permissible to fill up such a short term vacancy in the CT grade.  Having examined the aforesaid Government Order, what appears to be the intention of the clarification is that the post can be filled up on short-term basis in the CT grade itself. What the follows is that the short-term appointment is permissible but the salary to the incumbent would continued to be paid in the CT grade as the permanent incumbent was still continuing on ad hoc basis and as in the present case the permanent incumbent himself would not be entitled to LT grade unless and until he completes 10 years of service in the CT grade. Sri Haqim Singh, in the present case, had been appointed on 4.1.1989 and had not completed 10 years of service in the CT grade.

There is yet another aspect of the matter which has to be taken note of. This Court, while deciding as to whether 10 years satisfactory service was required for being awarded the LT grade or not, has held that in view of the clarification contained in the Government Order dated 2.12.1989 the period of service in CT grade has been reduced to 5 years but the period of services as a Teacher in satisfactory service for 10 years has been retained. This means that a person should have out of 10 years of his/her service should have at least 5 years of service in the CT grade. The issue was considered and decided in the case of Smt. Aruna Ghosh Vs. State of U.P. and others, (1995) 2 UPLBEC 763, and followed in the subsequent decision of this Court in the case of Madan Gopal Agrawal Vs. District Inspector of Schools, Bijnor, and others, 1996 (3) ESC 202.

Applying the aforesaid principles, it is evident that Sri Haqim Singh had not completed 10 years of service in the CT grade. However, there is nothing on record or in the impugned order to indicate that in other services as a Teacher had been rendered by Sri Haqim Singh prior to 4.1.1989. The District Inspector of Schools has failed to consider this aspect and has stopped short by simply concluding that the petitioner cannot claim appointment in LT grade as the post was continuing in CT grade. Had the District Inspector of Schools further investigated the matter? This issue could have been resolved the conclusively. However, on the basis of the information on record Sri Haqim Singh would complete 10 years of service in the year 1999 and, as such, on the date when the post was advertised as a short-term vacancy, Sri Haqim Singh would be presumed to be maintaining his lien on the post in question in the CT grade itself but the aforesaid presumption stand rebutted by the order of approval of the District Inspector of Schools dated 10.7.1996 to the extent that the approval to the ad hoc promotion of Sri Haqim Singh records it to be in the LT grade. The said order of approval is Annexure-1 to the writ petition. In case it is held that Sri Haqim Singh was still maintaining his lien in the CT grade, then it does not stand to reason as to why he was awarded the LT grade.

What can be concluded safely from the aforesaid findings is that the post was very much available which fact cannot be denied and the only question remains as to whether the petitioner would be entitled salary in the CT grade or in the LT grade. The Government Order dated 4.9.1990 clearly permits the appointment against short-term vacancies and, as such, the finding recorded in the impugned order that there was no post available is contrary to law and cannot be sustained. This conclusion had also been arrived at in the previous judgment dated 25.4.2005 yet the District Inspector of Schools has chosen to reiterate the said finding. In the event the petitioner is entitled to continue on the post, he will be at least entitled to the payment of salary in the CT grade till such period the post becomes substantively vacant in terms of the clarification of the Government Order dated 4.9.1990 and thereafter would be entitled for payment in the LT grade.

The District Inspector of Schools has commented upon the fact that no prior permission was taken from the District Inspector of Schools before proceeding to make appointment. The aforesaid issue was responded to by the Management by clearly stating that intimation had been given to the District Inspector of Schools. On a perusal of the provisions of the Second Removal of Difficulties Order, it appears that the Management has to intimate the vacancy to the District Inspector of Schools and notify the same on the notice Board of the institution. The said order nowhere requires the Management to wait till permission is granted for proceeding to make appointment against a short-term vacancy. The finding recorded by the District Inspector of Schools to this effect, therefore, is erroneous as what is required in law is due intimation to the District Inspector of Schools and not a prior permission in this respect. The Management had clearly stated in its stand taken before the District Inspector of Schools that it had intimated the vacancy and that the District Inspector of Schools himself had granted approval to the appointment of one Sri Haqim Singh on 10.7.1996, which had given rise to this resultant vacancy. The impugned order nowhere denies the aforesaid intimation having been sent by the Management. The District Inspector of Schools has stated in the impugned order that no permission had been granted which necessarily implies that the District Inspector of Schools was having knowledge about the vacancy and no permission had been granted. The aforesaid finding is sought to be substituted by a bald allegation in the counter-affidavit stating therein that no evidence was found by him of any prior intimation by the Management. The aforesaid averments contained in the counter-affidavit have come up for the first time and there is no such recital in the impugned order. The findings in the impugned order, therefore, cannot be permitted to be supplemented by a reason not recorded therein and subsequently stated in an Affidavit unsupported by any document to that effect. It has been continuously affirmed by the Apex Court that an order passed by an authority has to be supported on the basis of the reason stated therein and cannot be supplemented through an Affidavit, reference may be had to the case of Mahendra Singh Gill Vs. Union of India and others, AIR 1978 SC 851. Thus, on the aforesaid basis, the finding recorded by the District Inspector of Schools cannot be sustained on this issue as well.

The next issue raised on merits is about the finding on the question of an improper advertisement. Even though this issue had been answered by the Court in the judgment dated 25.4.2005 yet since the District Inspector of Schools has reiterated his stand it is necessary to record the findings in this respect. The advertisement is on record and has been made in Hindi daily Dainik Jagaran which is a vital acclaim and acknowledged newspapers of very wide circulation through out the State of Uttar Pradesh. The other newspaper is also stated to be a newspaper of wide circulation in the locality and the district where the institution is situate. In the opinion of the Court, the advertisement was, therefore, inconformity with the provisions of law and in accordance with law laid down by this Court in Radha Raizada's case, reported in (1994) 3 UPLBEC 1551. A perusal of the advertisement further indicates that it had invited applications from the candidates eligible to be appointed for the post holding qualifications of a LT grade Teacher. This was presumably don in view of the CT grade having been declared a dying cadre. This would necessarily not mean that a candidate appointed has to be paid the salary of the same grade. The salary will be payable only of the grade to which an incumbent is entitled. On this technical issue, this Court had already rejected this objection in the judgment dated 25.4.2005 and the same view is re-affirmed again. Non mentioning of the pay scale does not prejudice the rights of any candidate more so when No Objection has been raised by any candidate, who had appeared for the Interview. Thus, the advertisement would not be invalidated on this ground and, therefore, conclusion drawn by the District Inspector of Schools is erroneous.

The post has been advertised as that of a Teacher, who holds a qualification equivalent to that of a LT grade teacher. This wording contained in the advertisement does not suffer from any infirmity so as to invalidate the selection and is in conformity with the explanation no.1 contained in the Government Order dated 4.9.1990.

One of the objections raised by the District Inspector of Schools that the candidates were not required to submit applications in writing and were called for an interview straightway. The Second Removal of Difficulties Order does not mandate the submission of application in writing. Even otherwise, the advertisement does not prohibit the submission of applications. The Committee of Management had nowhere prevented the candidates from giving written applications. From the stand taken by the management and as recorded in the impugned order, it is evident that 15 candidates had appeared for the interview, who was assessed by the Selection Committee. There is no dispute or complaint on this score by any candidate. Merely because the advertisement does not demand an application in writing cannot in the opinion of the Court amount to violation of any substantial procedure of any vital importance so as to invalidate the selection of the petitioner. The finding on this issue is also erroneous and unsustainable.

The District Inspector of Schools has recorded that quality point marks were not awarded. The Management has clearly stated before the District Inspector of Schools that quality point marks were awarded and the chart prepared has been submitted. The District Inspector of Schools records that the chart bears the signature of the Principal with a date of 16.12.1996, which appears to be a manipulation made later on. The said suggestion is without any basis. The documents had been submitted by the management and the District Inspector of Schools refused to accord approval on 25.9.1996. What appears is that this chart was issued by the Principal later on during the course of the proceeding before the District Inspector of Schools and before this Court as a copy of the original chart countersigned by him in December 1996. The subsequent issuance of the chart and the mention of a later date do not amount to any manipulation and the finding by the District Inspector of Schools is not only erroneous but is absolutely unfounded and is based on surmises and conjectures. The conclusion of the District Inspector of Schools that selections were held only on the basis of interview is totally misconceived and the case of the petitioner has been through out that the quality point marks were awarded against which there is no evidence to the contrary. The said issue, therefore, has been erroneously decided by the District Inspector of Schools.

The contention of the District Inspector of Schools that issuance of a letter of appointment before the approval was actually granted is a invalid letter of appointment and, therefore, no right accrues in favour of the petitioner is a totally incorrect approach. The appointment takes effect only after an approval is granted and this issue stands settled in the case of Ashika Prasad Shukla Vs. District Inspector of Schools, Allahabad and others, (1998) 3 UPLBEC 1722 (Paragraph 16). The finding recorded by the District Inspector of Schools, therefore, on this point is also incorrect and is set aside.

One of the additional grounds taken in the impugned order is that the petitioner was not qualified to be appointed on the post which fell vacant on short term basis due to the ad hoc promotion of Sri Haqim Singh, who was teaching English to the junior classes. As noticed herein above, Sri Haqim Singh was holding the post of a CT grade Teacher. The qualifications of a CT grade Teacher as prescribed under Appendix-A for teaching students of class VI to VIII is Intermediate with training. The petitioner admittedly is a double postgraduate in Political Science and History with B.Ed. There is no dispute that the petitioner had not passed his Intermediate examination and was otherwise not holding the qualifications. The District Inspector of Schools has recorded that since the petitioner was not a postgraduate in English, therefore, he was not entitled to hold the post in question. The aforesaid finding of the District Inspector of Schools is absolutely erroneous. Even as a LT grade Teacher, the petitioner was required to possess a degree in graduation with English as one of the subjects. The petitioner has filed a copy of his Certificate of graduation, which indicates that he has passed his B.A. examination with English as one of the subjects. Fortunately, for the petitioner, the District Inspector of Schools has accepted this claim of the petitioner in the counter-affidavit and, as such, in these circumstances, the objection taken in the impugned order that the petitioner was not qualified also stands obliterated.

The last issue, which deserves to be address, is the manner in which the District Inspector of Schools has proceeded to re-determine the issues, which had already attained finality in the judgment dated 25.4.2005. The Apex Court in the case of Kani Ram and another Vs. Smt. Kazani and others, (1972) 2 SCC 192, while relying on an earlier decision of the Supreme Court in the case of Mathura Prasad reported in (1970) 1 SCC 613, has held that a mixed question of law and fact determined in earlier proceedings between the same party could not be questioned in a subsequent proceeding between them. The principle of res-judicata as contained in Section 11 of Civil Procedure Code were reiterated. The aforesaid view was further explained in the context of explanation 6 of Section 11 of CPC in the case of Forward Construction Company  Vs. Prabhat Mandal, (1986) 1 SCC 100. Applying the aforesaid principles, it is evident that most of the issues which have been sought to be re-determined by the District Inspector of Schools had already attained finality in the judgment dated 25.4.2005 and it was not open to the District Inspector of Schools to have virtually reopen the same by expressing his own understanding and opinion about the judgment of this Court dated 25.4.2005. The District Inspector of Schools had either to simply follow the judgment of this Court on 25.4.2005 and in case he failed that the issues were not correctly decided, then the only course open was to file an appeal against the said judgment. No appeal was filed against the judgment dated 25.4.2005 and, as such, it had attained finality. The District Inspector of Schools completely lacks understanding on the aforesaid position of law and he has, therefore, grossly erred by proceeding to re-determine the issues which already stood at rest in the judgment dated 25.4.2005. The approach of the District Inspector of Schools, therefore, cannot be appreciated.

In view of the finding recorded herein above and the conclusions drawn on the basis of the contentions advanced, the order impugned dated 3.12.2005 (Annexure-10 to the writ petition) is unsustainable in the eyes of law and is hereby quashed.

The District Inspector of Schools shall now proceed to grant approval to the petitioner treating him to be a validly appointed teacher in the short-term vacancy that arose on account of the promotion of Sri Haqim Singh. For the purposes of computing salary, the petitioner would be entitled to salary in the CT grade up to the date on which Sri Haqim Singh was awarded LT grade. Once Sri Haqim Singh completes his 10 years of service in CT grade, he would be entitled for his claim in the LT grade and from the date of award of LT grade to Sri Haqim Singh, the post would become substantively vacant and in that event the petitioner would be entitled to the salary of LT grade with effect from such date in terms of the clarification no.1 contained in the Government Order dated 4.9.1990. The District Inspector of Schools shall, accordingly, conclude the salary of the petitioner and award him the same as expeditiously as possible preferably within a period of 3 months from the date of production of a certified copy of this order before him.

The writ petition, accordingly, stands allowed with no order as to cost.

Dt. Feb. 7, 2006

Irshad


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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