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Nirmala Rai And Others v. Director Of Education Allahabd And Others - WRIT - A No. - 8765 of 2000 [2007] RD-AH 17779 (14 November 2007)

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Court No. 40

Civil Misc. Writ Petition NO. 8765 of 2000

Smt. Nirmala Rai and others Vs. Director of Education (Basic)

and others.

Connected with

Civil Misc. Writ Petition No.35758 of 2006

Nirmala Rai and others Vs. State of U.P. and others.

Hon'ble D.P. Singh, J.

Heard counsel for the petitioners, learned Standing Counsel for respondent nos. 1 to 5 and the counsel for the respondent no. 6.

Shaheed Junior High School, Salempur, Ballia (here-in-after referred to as the Institution) is a duly recognized institution under the Basic Education Act and the Service conditions of its teachers are governed by U.P. Recognized Basic Schools (Junior High Schools) (Recruitment & Conditions of Service of Teachers) Rules, 1978 while the service condition of the employees is governed by Uttar Pradesh Manyataprapta Basic School (Junior High School) Lipik Varg Karmchariyon and Samuh 'Gha' Key Karmchariyon Ki Bharti and Sewa Ki Sharte Niyamawali, 1984 (here-in-after referred to as 1978 and 1984 Rules respectively).

It is pleaded that three posts of Assistant Teachers fell vacant on the resignation of the incumbents namely Sri Lallan Chaudhary, Sri Munni Lal Gupta and Sri Shree Ram Upadhayay and one post of clerk fell vacant on the resignation of Suresh Yadav in the institution which was allegedly accepted by the Committee of Management and due information was tendered to the Basic Education Officer, Ballia. In view of 1978 and 1984 Rules, the Committee sought permission from the Basic Education Officer through letters dated 16.8.1990 and 11.4.1991 to fill up the aforesaid vacancies. The Basic Education Officer granted permission vide his orders dated 17.8.1990 and 15.4.1991 respectively. It is further pleaded that in pursuance thereof an advertisement was made inviting applications for filling up the aforesaid posts in two newspapers 'Ka" on 21.8.1990 and in "Anant Varta" whereafter on the request of the Management, the Basic Education Officer deputed the Sub District Inspector of Schools to participate in the said selection vide his letter dated 5.9.1990 and 11.5.1991. After the petitioners were selected on the respective posts the Committee of Management issued appointment letters dated 14.9.1990 and 14.5.1991 to the petitioners where-after they started functioning. It is also pleaded that the entire record was submitted to the Basic Education Officer for his approval, who granted approval on 13.11.1990 and 22.7.1991.

It is then pleaded that the institution was brought within grant-in-aid list in March, 1991 and the Director of Basic Education indicated that the salary to only those teachers and employees will be paid whose names were mentioned in the Manager's Return of July, 1980. As obviously, the names of the petitioners did not find place in the aforesaid return, correspondence tool place between the Management and Educational Officer and finally vide order dated 9.8.1995 a direction was issued for payment of salary to the petitioners where-after it was paid. Nevertheless, the salary of the entire institution was stopped with effect from 1.7.1998 and the petitioners were informed that some enquiry with regard to authenticity of appointment of the employees of the institution had been undertaken where-after an order dated 16.11.1999 was passed whereby the salary of nine employees were released while that of the remaining, including the petitioners was not released and the Management was asked to submit the papers with regard to the authenticity of the appointment. It is further alleged that in view of an exparte report dated 5.1.2000 it has been found that the appointment of the petitioners was against 1978 and 1984 Rules. The aforesaid order dated 16.11.1999 and the report dated 5.1.2000 are under challenge. A further mandate is sought for payment of regular salary.

Learned counsel for the petitioner has firstly urged that the stoppage of salary on the basis of the exparte order and report dated 5.1.2000 was illegal.

Though allegations have been made in the writ petition that the petitioners were not heard before submission of the report dated 5.1.2000, it is vehemently denied in the counter affidavit and it is pleaded therein that all the petitioners were heard on 20.9.1999 and they were present when the record was examined which has led to the aforesaid report dated 5.1.2000 and they have admitted their presence through their applications which is annexed as Annexure-5 to the counter affidavit. In the supplementary affidavit filed by the petitioners the report dated 5.1.2000 is also annexed in which at the very threshold it is mentioned that the teachers and the employees of the institution were present on 20.9.1999 and the name of the petitioners are also mentioned therein. Therefore, the contention that the action of the respondents is based upon an exparte report is incorrect.

It is lastly urged that the petitioners were duly appointed in accordance with the procedure prescribed in 1978 and 1984 Rules and, therefore, they were entitled to their salary, especially when the salary had been released earlier. The petitioner nos. 1 to 3 claimed to be appointed on the post of Assistant Teachers on account of resignation of the then incumbents Sri Lallan Chaudhary, Sri Munni Lal Gupta and Sri Shree Ram Upadhayay while the petitioner no. 4 has claimed appointment on the resignation of Sri Suresh Yadav, who was working as a Clerk. In the counter affidavit a clear stand has been taken that the alleged appointment of the petitioners is a farce and all the documents on which they rely are fabricated and forged. It is further stated that though in the documents submitted by the Management on 27.7.1988 the names of Sri Lallan Chaudhary, Sri Munni Lal Gupta, Sri Shree Ram Upadhayay and Sri Suresh Yadav have been shown to be regularly working since 1978 but in the attendance register from 1982 to 1988 Sri Munni Lal Gupta is shown to be on leave without pay from 1978 itself. Similarly, Sri Lallan Chaudhary, Sri Shree Ram Upadhyaya and Sri Suresh Yadav are also shown to be absent without leave but in the Manager's return of 31.3.1984 none of the aforesaid four persons' name are mentioned. Similarly, none of the aforesaid four persons' name are mentioned in the Manager's return of 31.3.1985. It is also pleaded that there was nothing on record to show as to how and why no disciplinary action was initiated in this long duration of ten years. It is also pleaded in the counter affidavit that none of the documents in regard to the appointment of the petitioners including their approval, permission sought for advertisement and the information sent by the Management are available in the records of the authorities. These specific allegations though have been denied but neither the petitioners nor the Management have explained as to why all the aforesaid documents do not bear the despatch number etc. and have been sent through memos. Even the Manager admitted that no post was created after 1982. These aforesaid allegations are further fortified by the fact that no action against the previous incumbents was taken either under 1978 or 1984 Rules. The story of resignation also does not carry any conviction. Under 1978 and 1984 Rules there is a specific provision that on no account the service of any incumbent will be dispensed with without the written approval of the District Inspector of Schools but though it is pleaded that they had resigned, aforesaid resignation was never approved by the District Inspector of Schools and, in fact, even the date of the alleged approval has not been disclosed.

These facts lead to only one conclusion and i.e. the petitioners appointment in the institution was fraudulent act in connivance with the Management on the eve of the institution being granted State grant.

For the reasons above, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected.




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