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C/M. MAHARAJ DANDI SWAMY KESHAVSHRAM VIDYALAYA versus ADDL. DIRECTOR OF EDUCATION AND OTHERS

High Court of Judicature at Allahabad

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C/M. Maharaj Dandi Swamy Keshavshram Vidyalaya v. Addl. Director Of Education And Others - WRIT - A No. 1697 of 2000 [2007] RD-AH 7739 (26 April 2007)

 

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

Court No. 31

Civil Misc. Writ Petition No.  1697 of 2000

Committee of Management Maharaj Shri Dandi Swamy Keshavashram Uchchattar Madhyamik Vidyalaya, Gunai Gaharpur, Meja, District Allahabad and others

                                                      Versus

Additional Director of Education (Madhyamik) U.P. & others.

Hon'ble Mr. Justice Vineet Saran

This case has a chequered history. Several writ petitions had been filed by the Respondent no.3 from time to time, in pursuance of which several orders had been passed by the respondent-authorities. The Respondent no.3 Shiv Shanker Yadav claims to have been appointed on 8.7.1989 by then Principal of the institution on a class IV post in the college.  In pursuance thereof,  he claims to have joined on 10.7.1989. The college came under the grant-in-aid scheme of the State Government with effect from 1.4.1996. It was only thereafter that in the year 1997 the respondent no.3 filed writ petition no. 21973 of 1997 claiming that he was an employee of the college and he should be paid salary. The said writ petition was disposed of by this Court vide order dated 14.7.1997 with a direction to the District Inspector of Schools, Allahabad, Respondent no.2, to decide the representation of the Respondent no.3 Shiv Shanker Yadav. By an order dated 13/16.5.1998 the District Inspector of Schools, after recording a finding that the appointment of the Respondent no.3 was fabricated, rejected the representation of the Respondent no.3. Challenging the said order dated 13/16.5.1998, the Respondent no.3 filed writ petition no. 25946 of 1998, in which only a counter affidavit was called for but no stay order was granted. It appears that since the Respondent no.3 was unable to get an interim order in the aforesaid writ petition, he filed another writ petition no. 36149 of 1999 with almost the same prayer, which related to payment of his salary, but without challenging the order dated 13/16.5.1998 passed by the District Inspector of Schools, Allahabad. In the said writ petition no. 36149 of 1999 there was no mention of the filing of the earlier writ petition no. 25946 of 1998 and it was merely stated that he (Respondent no.3) had filed a representation before the Respondent no.1 which had not been decided. A prayer was thus made for directing the said respondent to decide his representation. By order dated 24.8.1999 the writ petition no. 36149 of 1999 was disposed of by this Court with a direction to the Respondent no.1 to decide the representation of the Respondent no.3. It was in pursuance of the said order that the impugned order dated 24.12.1999 has been passed by the Respondent no.1, Additional Director of Education (Madhyamik) treating the said representation as an appeal against the order of the District Inspector of Schools rejecting the claim of the Respondent no.3. The Respondent no.1, after setting aside the order dated 13/16.5.1998 of the District Inspector of Schools, Allahabad, allowed the representation of the Respondent no.3 and directed for payment of salary to the Respondent no.3 under the Payment of Salaries Act, 1971. Aggrieved by the aforesaid order dated 24.12.1999 this writ petition has been filed by the Committee of Management as well as  the Manager of the Committee of Management and the Principal of Maharaj Shri Dandi Swamy Keshavashram Uchchattar Madhyamik Vidyalaya, Gunai Gaharpur, Meja, District Allahabad.

I have heard Sri Hari Shanker Misra, learned counsel for the petitioners, as well as learned Standing counsel appearing for Respondents no. 1, 2, 4 and 5 and Sri Yogesh Agrawal along with Sri M.B.Yadav, learned counsel for the contesting Respondent no.3 and have perused the record.

The submission of the petitioners is that the subsequent order passed in writ petition no. 36149 of 1999 for decision on the representation of the Respondent no.3 was obtained by the Respondent no.3 by fraud and misrepresentation, as well as concealment of material facts and thus the order of the Additional Director of Education (Madhyamik) dated 24.12.21999, which is impugned in this writ petition, having been passed on the basis of an order obtained by fraud, should be set aside on this ground alone. Further, on merits it has been submitted that the District Inspector of Schools  had, after examining all the papers and documents relating to the appointment of respondent no.3, held that the same was never validly made and that the said Respondent no.3 was not entitled to payment of salary under the Act of 1971. Sri Mishra has further submitted that the documents, on the basis of which the impugned order has been passed, are patently false and fabricated, as would be clear from a perusal of the same and as such the impugned order deserves to be set aside.

Sri Yogesh Agrawal has, however, justified the passing of the impugned order and contended that the same is based on valid documents as the material, which included the appointment letter, joining letter, salary bill and attendance register of Respondent no.3, was sufficient to prove the case of the Respondent no.3.

Having heard learned counsel for the parties and considering the facts and circumstances of this case, in my view, this writ petition deserves to be allowed and the impugned order deserves to be quashed on merit as well as on the basis of the conduct of the respondent no.3.

The documents on the basis of which the impugned order has been passed  apparently seem to be fabricated and false.  The appointment letter dated 8.7.1989, joining letter dated 10.7.1989 and a further certificate of experience issued by the Principal on 30.1.1997 (photostat copies of which have been filed by the respondents as annexures-3,4, and 5 to the counter affidavit) have all been written on  plain paper, in the same hand writing. The appointment letter as well as the certificate, are not on the letter head of the college. To justify this, Sri Yogesh Agrawal, learned counsel for the contesting Respondent no.3, stated that the same may have been written by the clerk and signed by the Principal or the Respondent no.3, as the case may have been. He has further submitted that since the college was brought under the grant-in-aid scheme of the Government only with effect from 1.4.1996, the college did not have sufficient resources and thus did not have sufficient stationery/letter head and hence and the same   had been issued on plain paper. The said explanation is not worthy of acceptance. A perusal of the attendance sheet filed along with counter affidavit would clearly show that the same is alleged to be relating to the year 1989 but the said attendance register had been printed with the word "199" and thereafter a blank was to be filled in. The second figure '9' has been over-written by hand as '8' to make it as "1989". It is not understood that if the college did not have sufficient funds in the year 1989 to have a letter head printed, then how could it afford to get the attendance register printed in advance for 1990s. The authenticity of the said attendance register is also thus very doubtful. The District Inspector of Schools, while passing the order dated 13/16.5.1989, has thus rightly refused to rely on such documents filed by the Respondent no.3 in support of his case for payment of salary. The Additional Director of Education (Madhyamik), while passing the impugned order, has in a cursory manner brushed aside the observations and findings of the District Inspector of Schools and proceeded to rely on all such documents which had been filed by the Respondent no.3 and passed the said order in favour of Respondent no.3. Even the documents and pleadings as well as the written submission filed by the petitioner before the Additional Director of Education clearly stating about the filing of the subsequent writ petition by the Respondent no.3 in 1999 has not even been noticed in the impugned order. As such, on merits, the impugned order deserves to be quashed as having been passed without considering the material facts and without adequate reasons.

Besides the above, this writ petition deserves to be allowed also because of the conduct of Respondent no.3. The second writ petition no. 36149 of 1999 had been filed by the Respondent no.3 without disclosing the fact that he had already filed an earlier writ petition no. 25946 of 1998 with the same prayer. The record of the aforesaid writ petition had been called for and has been placed before this Court. The prayers made in the aforesaid two writ petitions are quoted below:-

                Writ Petition No. 25946 of 1998

"(i) issue a suitable writ, order or direction in the nature of Certiorari calling for the record of the case and to quash the impugned order dated 13.5.1998 passed by the District inspector of Schools, Allahabad (Annexure '11' to the writ petition);

(ii) issue a suitable writ, order or direction in the nature of mandamus to command the District inspector of Schools, Allahabad to ensure payment of salary to the petitioner as Class IV employee with effect from 1.4.1996 up to date and also for future months along with other teaching and non-teaching staff of the institution Maharaj shri Dandiswami Keshwashram Uchchatar Madhyamik Vidyalaya, Tahsil Meja, District Allahabad.

(iii) issue any suitable writ, order or direction in the nature as this Hon'ble Court may deem just and proper in the facts and circumstances of the case; and        

(iv) award costs of the writ petition to the petitioner throughout."

                   Writ Petition No. 39149 of 1999

"(i) A writ in the nature of mandamus commanding and directing the respondent no.2 that is Additional Additional of Madhyamik of Education U.P. at Allahabad to decide the representation of the petitioner within a period of one week with regard to his payment of salary.

(ii) issue an writ in the nature of mandamus commanding and directing the respondent that they should pay the salary to the petitioner month to month onwards along with back wages.

(iii) issue any writ, order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.

(iv) allow the writ petition with cost to the petitioner."

A perusal of the annexures filed along with the two writ petitions would show that the annexures of the second writ petition no. 39149 of 1999 are the same as they are merely photostat copies of the anneuxres which were filed in the first writ petition no. 25946 of 1998. Thus it cannot be said that the second writ petition had been filed by inadvertence or without knowledge of the filing of the first writ petition to the subsequent counsel. It is not understood as to why there was no disclosure of the filing of the first writ petition in the second writ petition of 1999 when the reliefs claimed in both the writ petitions were similar, except for a technical difference that in the first writ petition a prayer for quashing of the order of the District Inspector of Schools has been made which was not there in the latter petition. From the aforesaid, it is absolutely clear to this Court that the Respondent no.3 had concealed material facts from this Court and had thus obtained an order, in writ petition no. 36149 of 1999, for a direction to the Respondent no.1 for deciding his representation. After exchange of counter and rejoinder affidavit in writ petition no. 25946 of 1998, and after passing of the order dated 24.12.1999 (which is impugned in this writ petition)  the Respondent no.3 had very wisely withdrawn the said writ petition of 1998 and got it dismissed as not pressed so that the objection filed by the petitioners herein and raised in the said writ petition of 1998 with regard to filing of successive writ petitions by the respondent no.3 may not come to light. For this reason also, in my view, this writ petition deserves to be allowed because of the conduct of Respondent no.3, in whose favour the impugned order has been passed. Not only this, for such conduct of his, the Respondent no.3 would also be liable for payment of cost and direction for refund of any amount which may have been paid to him on account of the impugned order ( even though the same had been stayed by this Court).

Accordingly, this writ petition stands allowed. The order dated 24.12.1999 passed by Respondent no.1 is quashed. The petitioners shall also be entitled to cost, which is assessed at Rs. 25,000/-. The same shall be deposited by Respondent no.3 Shiv Shanker Yadav with the Registrar General of this Court, within two months from today, failing which the District Magistrate, Allahabad is directed to recover the same from Shiv Shanker Yadav, Respondent no.3,  as arrears of land revenue and deposit the same with the Registrar General of this Court. In case of default by the Respondent no.3 in depositing Rs. 25,000/- within the stipulated period, a copy of this order shall be sent by the Registrar General of this Court to the District Magistrate, Allahabad for necessary compliance. On such deposit of Rs. 25,000/- being made by the Respondent no.3 either voluntary or after recovery, the same shall be paid by the Registrar General to the Petitioner no.1 Committee of Management, Mahraj Shri Dandi Swamy Keshavashram Uchchatar Madhyamik Vidyalaya, Gunai  Gaharpur, Meja, District Allahabad through its Manager.

dt.  26.4.2007

dps


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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