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A.K.PANDEY versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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A.K.Pandey v. State Of U.P. & Others - WRIT - A No. - 42301 of 1992 [2007] RD-AH 17000 (29 October 2007)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 26

Civil Misc. Writ Petition No. 42301 of 1992

Sri Anmol Kumar Pandey

Versus

State of U.P. & others

&

Civil Misc. Writ Petition No. 25809 of 1996

Sri Anmol Kumar Pandey

Versus

State of U.P. & others

Hon'ble V.K. Shukla,J.

In the District of Farrukhabad there is an educational institution known as Sri Lal Bahadur Shastri Inter College, which is governed by the provisions of U.P. Act No. II of 1921. Said institution in question is grant-in-aid list of the State Government and the provisions of U.P. Act No. 24 of 1971 are fully applicable to the said institution. Selection and appointment on the post of Principal, Lecturer and L.T. Grade teacher is to be made as per the provisions as contained in U.P. Act No. V of 1982. In the said institution Jawahar Lal Pal who had been performing and discharging duties as permanent Lecturer in English, died on 21.03.1992. Petitioner claims that requisition pertaining to the said post was sent to the U.P. Secondary Education Services Commission for regular selection through the agency of District Inspector of Schools, Farrukhabad on 03.04.1992. Petitioner has contended that Managing Committee of the institution proceeded to undertake process of selection by advertising the said vacancy on 06.06.1992 in Dainik Jantantra. Petitioner submits that he applied and thereafter he was selected and offered appointment and joined in the college on 01.07.1992 and since then he has been performing and discharging duties. Petitioner has contended that papers were sent on 06.07.1992 and thereafter as State of U.P. promulgated U.P. Ordinance No. 21 of 1992 on 14.07.1992. petitioner filed Civil Misc. Writ Petition No. 42301 of 1992 and therein questioned the validity of the order dated 21.10.1992 by means of which recommendation was made in favour of one particular incumbent Viresh Kumar, respondent no. 5.

On presentation of said writ petition before this Court, this Court passed following order which is being quoted below:

"Until further orders of this Court the order dated 21.10.1992 directing for appointing of respondent no. 5 Sri Viresh Kumar, shall remain stayed. In the meantime the respondent no. 2 may consider the case of the petitioner's appointment for necessary approval and sanction of salary irrespective of the ban imposed by the Government for making adhoc appointment as also enforcement of the ordinance no. 21 of 1992 with effect from 14.07.1992."

Pursuant to directives issued by this claim of the petitioner has been considered and same has been rejected on 15.07.1996. At this juncture Civil Misc. Writ Petition No. 25809 of 1996 has been filed. Both the writ petitions have been clubbed up together and are being taken up together.

This Court on 17.09.2007 directed the District Inspector of Schools, Farrukhabad to be personally present before this Court alongwith entire record and further it was also directed that if record is not available as stated above, he may file a specific affidavit to this effect as to what steps have been undertaken by him regarding obtaining record from the Committee of Management of the institution.

Today on the matter being taken up, record in question as supplied by Managing Committee has been produced by the District Inspector of Schools and coupled with affidavit has also been filed that Neeraj Sharma concerned clerk has disappeared with the record and as against Neeraj Sharma a First Information Report has also been lodged. Original record has not been produced. Record which has been produced by the Management before the District Inspector of Schools, said documents have been produced by the learned Standing Counsel, and qua the said documents produced petitioner as well as learned counsel appearing for Management, have not raised any dispute after perusing the same and thereafter with the consent of the parties both the writ petitions are being taken up for final hearing and disposal.

Sri Y.K. Saxena, Advocate, contended with vehemence that appointment of the petitioner has been validly made, as such writ petition in question deserves to be allowed with a direction to the respondents for ensuring salary and functioning of the petitioner on the post of Lecturer in English.

Claim of the petitioner has been supported by the Managing Committee of the institution. However same has been vehemently opposed by the State Counsel, Sri J.K. Tiwari by contending that papers of the Management clearly establish and demonstrate that the appointment of the petitioner is merely paper work and in fact no process of the selection has been undertaken as such view taken by District Inspector of Schools cannot be faulted on any count.

After respective arguments have been advanced, factual position which is emerging in the present case is that a substantive vacancy occurred in the institution on account of death of Jawahar Lal Pal on 21.03.1992. Record in question reflects that under postal certificate by memo letter management of the institution on 03.04.1992 claims to have notified vacancy to District Inspector of Schools on 04.04.1992. In the impugned order categorical mention has been made, that such paper has not even reached the office of District Inspector of Schools. Under U.P. Act No. V of 1982 full fledged procedure has been provided for as per which vacancy in question is to be notified. Record which has been supplied by the Management and produced through the agency of District Inspector of Schools in letter dated 03.04.1992 mentions of notification of vacancy by enclosing Adhiyachana Akhya, and Adiyachan Akhya is nothing but letter of Principal of the institution dated 01.04.1992, addressed to District Inspector of Schools with copy to the Management. This notification of the vacancy cannot be treated as notification of vacancy as it is not at all in the prescribed format, Appendix A, Rule 4 of 1983 Rules. On 03.06.1992 there is letter of Manager addressed to District Inspector of Schools, Farrukhabad mentioning therein that reference of letter dated 03.04.1992 be taken, wherein vacancy in question was notified and as no one has been recommended by the Board as such permission be accorded for filling up the aforesaid vacancy. Said request was alleged to have been made on 03.06.1992 and as no permission was accorded by the District Inspector of Schools and thereafter it has been shown that advertisement has been made in newspaper Dainik Jantantra published from Mainpuri. In letter dated 03.06.1992 initially date was mentioned as 05.06.1992 and as letter dated 05.06.1992 was addressed to Editor, to bring in line with the said date, date has been changed. Letter dated 05.06.1992 is addressed to the Chief Editor of Dainik Jantantra District Mainpuri whereas institution in question is situated in District Farrukhabad. Advertisement in question appears to be an act of manipulation and manoeuvring, inasmuch as it is totally insignificant newspaper published from Mainpuri whereas institution in question is situated at district Farrukhabad. Effect of the purported publication in said newspaper is also reflected from the fact that petitioner and four other incumbents only applied in this era of unemployment. Most surprising feature is that application moved by the petitioner reveals that therein in the column of name of newspaper and date had been left blank and same has been filled up subsequently and there is cutting qua the name of newspaper which clearly indicates and points out that manipulation has been made in the purported appointment and only four other incumbents alongwith petitioner applied and thereafter on the basis of quality point appointment has been made. Record in question produced shows only one application i.e. application of the petitioner and most surprising feature is that application forms of other candidates is not at all available. All these facts clearly demonstrate and establish that purported selection is an outcome of manipulation and manoeuvring and merely paper work.

Reason appears to be obvious that in the present case. Petitioner and the Management both were aware that after enforcement of Ordinance No. 21 of 1992 on 14.07.1992, Management will have no authority to make appointment and in this background entire exercise has been manipulated. Reasons given by District Inspector of Schools in order dated 15.07.1996 cannot be subscribed to be incorrect reasons, rather they constitute valid reasons for disapproving the claim of the petitioner, once entire claim has been found to be ingenuine.

There is one more aspect of the matter. Qua adhoc appointment to be made against substantive vacancy even under Section 18 of U.P. Act No. V of 1982, procedure provided for under Paragraph 5 of First Removal of Difficulties Order has to be followed as held by this Court in the case of Charu Chandra Tiwari Vs. District Inspector of Schools, 1990 UPLBEC page 160, which has been affirmed by Full Bench of this Court in the case of Radha Raizada Vs. Committee of Management, V.D.G I. College, and others reported in 1994 (3) UPLBEC 1551. From the own showing of the petitioner permission has been sought for, from the District Inspector of Schools for advertisement but no such permission had ever been accorded and thereafter said appointment has been made. Said appointment is nothing but only paper work to which no credibility could be attached consequently no relief can be accorded by this Court in exercising of its authority and jurisdiction under Article 226 of the Constitution of India.

Consequently both writ petitions are dismissed.

Dated: 29th October 2007

Dhruv


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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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