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Ram Siromani Verma v. D.I.O.S.,& Others - WRIT - A No. 20365 of 1988  RD-AH 46 (28 January 2004)
Judgment reserved on
Judgment delivered on 28.1.2004.
Civil Misc. Writ Petition No. 20365 of 1988
Ram Siromani Verma ... Petitioner
District Inspector of Schools,
Varanasi and others ... Respondents.
Civil Misc. Writ Petition No. 22233 of 1988
Shiv Dhani Prasad Yadav ... Petitioner
District Inspector of Schools,
Varanasi and others ... Respondents.
Hon. Sunil Ambwani, J.
Heard Sri D.S.M. Tripathi for Ram Shiromani Verma, and Sri A.C. Nigam for Shiv Dhani Prasad Yadav . Learned Standing Counsel appears for District Inspector of Schools.
Civil Misc. Writ Petition No. 20365 of 1988 has been filed by Sri Ram Siromani Verma seeking a direction in the nature of mandamus commanding the respondents to pay salary to the petitioner as 'Vyayam Shikshak' in L.T. Grade ( Physical Training Teacher), according to terms of his appointment, and approval, regularly, every month.
The facts giving rise to this writ petition are that one Sri Prem Shanker Singh was appointed as a Physical Training Teacher ( in C.T. Grade) on permanent basis in Kashi Krishak Inter College, Harhua, Varanasi. On his retirement, the petitioner was appointed as Assistant Teacher by the Committee of Management under Section 18 of the U.P. Secondary Education Services Commission and Selection Board Act and in accordance with the procedure prescribed under the Removal of Difficulties Order, 1981. The appointment order was issued on 25.7.1988. The petitioner took charge on 26.8.1988. The appointment was approved by the District Inspector of Schools on 30.7.1988. It is stated that in pursuance of Government Order dated 30.10.1974, the State Government revised the pay scales of Physical Training Teachers, and placed them in L.T. Grade. The vacancy in which the petitioner was appointed as such,
fell appointed was in L.T. Grade. The District Inspector of Schools Varanasi advertised some C.T. Grade vacancies on 4.4.1988 for selection by direct recruitment. On 15.7.1988, the Committee of Management of the institution advertised one post of P.T. Teacher for selection on the vacancy which occurred on 30.6.1988 on the retirement of Sri Prem Shanker Singh. Sri Shiv Dhani Prasad Yadav and others applied for appointment. The District Inspector of Schools sent the name of Sri Shiv Dhani Prasad Yadav, to be appointed on the post. It is contended that Sri Shiv Dhani Prasad Yadav was not selected in pursuance of advertisement dated 15.7.1988, but in pursuance of advertisement dated 4.4.1988 published by District Inspector of Schools, Varanasi. The Committee of Management by its resolution dated 24.7.1988 decided to appoint the petitioner on the vacancy. On the same date i.e. on 30.7.1988 when the District Inspector of Schools approved ad hoc appointment of petitioner a letter was sent by his office staying his letter dated 18.7.1988 by which Sri Shiv Dhani Prasad Yadav was directed to be appointed as C.T. Grade teacher. On 10.10.1988, the District Inspector of Schools cancelled his order dated 28.5.1988 by which he had granted L.T. grade to Sri Prem Shanker Singh, the earlier incumbent of the post. The Director of Education, Madhyamik, U.P. Lucknow by his letter dated 4.3.1989 informed Sri Prem Shanker Singh that he was not entitled to L.T. Grade under Government Order dated 3.10.1974. By order dated 5.4. 1989 (impugned in writ petition No. 20365 of 1988), the Districted Inspector of Schools, cancelled the selection and appointment of petitioner, Sri Ram Siromani Verma. This order has also been challenged by way of amendment application dated 16.7.1989.
On 27.3.1991, an interim mandamus was issued by this Court directing the respondents to pay salary to the petitioner Ram Siromani Verma with effect from January 1991. On 4.9.1991, after hearing the parties, the interim order dated 27.3.1991 was vacated with prima facie findings that there was no post of Assistant Teacher of Physical Instructor in L.T. Grade available for appointment.
The petitioner filed Special Appeal No. 731 of 1996 which was disposed of with a direction that the writ petition shall be listed for disposal before appropriate bench, and may be decided on merits without being influenced by any observation in the order, vacating interim orders.
The short question to be decided in this writ petition is whether there was any sanctioned post of Physical Instructor in L.T. grade in the institution, on which the petitioner was appointed.
The writ petition No. 22233 of 1988 has been filed by Sri Shiv Dhani Prasad Yadav with a prayer to quash the orders of the District Inspector of Schools, Varanasi dated 30.7.1988 (annexures- 3 and 4 respectively), and for a writ of mandamus commanding the respondents to treat the petitioner as C.T. grade teacher and to pay salary month by month. The facts averred in this writ petition are, that on the retirement of Sri Prem Shanker Singh, P. T. teacher in the C.T. grade in the college on 30.6.1988, the Committee of Management intimated the vacancy to the District Inspector of Schools. The vacancy was advertised by the District Inspector of Schools dated 14.4.1988. The petitioner applied and that after a procedure of selection, he was found to be the most suitable candidate. The District Inspector of Schools, by his letter dated 18.7.1988 directed the Committee of Management to appoint petitioner in the vacancy. The Manager and Principal of the institution were interested in some other person and made several excuses and prevented petitioner from joining. Aggrieved, the petitioner approached the District Inspector of Schools with a representation dated 28.7.1988. The District Inspector of Schools, however, by order dated 31.7.1988 stayed his own order dated 18.7.1988, and thereafter passed an order on the same date approving the appointment of Sri Ram Siromani Verma treating the vacancy in L.T. Grade. Both the orders passed by the District Inspector of Schools staying the petitioner's appointment dated 30.7.1988 and the order of the same date approving the appointment of Sri Ram Siromani Verma in L.T. grade have been assailed on the ground that there was no vacancy in L.T. grade in the College, and that, the District Inspector of Schools acted illegally and in violation of principles of natural justice in staying his order and approving the appointment of Ram Siromani Verma.
The District Inspector of Schools, in his order dated 15.4.1989 (challenged by amendment application in writ petition No. 20365 of 1988), found that Sri Ram Siromani Verma, the petitioner, does not possess a diploma in physical education. The petitioner possessed a certificate issued by Vyayam Visharad of 1979 from Maharani Laxmibai
Vyayam Mandir, Vyayam College, Jhansi. The selection of Sri Ram Siromani Verma was against the rules as he was not qualified. He found that the petitioner Sri Ram Siromani Verma passed High School Examination in 1973, and B.A. in 1983, and that in between he must have passed Intermediate Examination whereas the certificate of Intermediate Examination is of 1986. Sri Verma has not produced the certificate for mark-sheet of this examination. Without this certificate quality point marks could not be awarded. It was further found that the post of Physical Instructor in L.T. Grade was not sanctioned in the college, nor there was any such vacancy. In any case the vacancy was not intimated to the Commission and thus the proceeding of ad hoc appointment could not have been initiated . The approval of Sri Verma's appointment dated 30.7.1988 was consequently cancelled. It is admitted to the parties, that after the interim order was vacated, Sri Shiv Dhani Prasad Yadav was allowed to join and is working in C.T. Grade in the institution with effect from 5.8.1998.
Sri D.S.M. Tripathi, appearing for Sri Ram Siromani Verma, submits that the appointment of Sri Verma was in accordance with procedure prescribed in law. There was a vacancy in L.T. grade and that the petitioner Sri Verma, who was qualified, was appointed after following due procedure. He submits that the petitioner, Ram Siromani Verma, has passed High School, Intermediate Examination, and thereafter B.A. and is also B.Ed and holds one year regular Vyayam Visharad Course which is equivalent to C.P.Ed. certificate. The petitioner had appeared in Intermediate in Art subject again in 1986 and that quality point marks were awarded qualifying point was included taking into account his Intermediate Examination of the year 1986. The qualification in Appendix A in the schedule at Sl. No. 55 is C.P.Ed. or some other equivalent. Vyayam Visharad certificate is equivalent to C.P.Ed. one year course. In support of his submission, he has placed reliance in Bachchu Prasad Pal Vs. Deputy Director of Education and others ( 1991 (18) A.L.R.120 ). He submits that the requisition was sent by the Committee of Management to the Commission through District Inspector of Schools, which is established by the letter written by the District Inspector of Schools to the Manager dated 14.7.1988, annexed as Annexure RA-2 of the affidavit of Shiv Dhani Prasad Yadav. Sri D.S.M. Tripathi has also
challenged the finding regarding availability of vacancy in L.T./ grade. He submits that Sri Prem Shanker Singh was teaching Classes IX and X and Intermediate classes in December, 1978 and he was upgraded as L.T. Grade Teacher along with his post. He has relied upon the Order of the Director of Education (Madhyamik),U.P. dated 4.12.1974, by which all the P.T. teachers possessing requisite qualification and teaching classes IX & X in the institution running Intermediate classes were given L.T. Grade.
Sri A.C. Nigam, appearing for Sri Shiv Dhani Prasad Yadav, on the other hand, submits that there was no sanctioned post and vacancy in L.T. grade. Sri Shiv Dhani Prasad Yadav was selected in pursuance of the advertisement made by the District Inspector of Schools, and that the District Inspector of Schools had no authority to review and recall his order.
It is admitted to all the parties that Sri Prem Shanker Singh was serving in C.T. Grade in Physical Education. The teachers of the aided High School and Intermediate Colleges were given pay scales, equal to the teachers in Government Colleges. The anomaly with regard to the pay scale of these colleges in respect of Home Science, Art, Stenography Education as well as Physical Education were removed by Government Order dated 3.10.1974, and they were allowed same pay scale as in Government Colleges. By a circular letter dated 30.11.1974, the Director of Education (Madhyamik), U.P., directed that if an Art Teacher has been appointed in C.T. grade for High School Classes, he should be given L.T. grade teacher in accordance with the Government order dated 11.11.1973 and where the teacher possess requisite qualifications as teacher in Physical Education for High School Classes, they shall be entitled to L.T. grade in pursuance of Government Order dated 3.10.1974, only if the College is running Intermediate Classes. The Government Order dated 3.11.1974, however, qualified grant of L.T. Grade to only said teachers to possessed essential qualification for teaching the subject. The case of Bachchu Prasad Pal was decided without the help of counter affidavit and is of no help in the present case.
The Government Order dated 3.10.1974 was conditional upon the teachers possessing essential qualifications. The grant of pay scales to these teachers to remove the anomalies in pay scales qualified only to the existing teachers did not result in creation of a L.T. Grade post in the
College. The fact that Sri Prem Shanker Singh was given pay scale in L.T. grade, did not result into sanction of a post in L.T. Grade in the College. The award of L.T. Grade to Sri Prem Shanker Singh was subsequently cancelled by the District Inspector of Schools, Varanasi. In his letter dated 10.10.1988 the District Inspector of Schools, Varanasi relied upon the Government Order dated 3.9.1984 which had clarified this position. In these circumstances on the retirement of Sri Prem Shanker Singh caused a vacancy only in C.T. Grade and not in L.T. Grade and thus the appointment of Sri Ram Siromani Verma, was not in accordance with the provisions of U.P. Secondary Education Services Commission Act, 1982 and Removal of Difficulties Order, 1981.
The appeal of Sri Prem Shanker Singh against the order of District Inspector of Schools dated 10.10.1988 cancelling the award of L.T. Grade was also dismissed by Director of Education on 4.3.1989.
The District Inspector of Schools advertised the vacancies in C.T. Grade and invited applications. The appointment of C.T. Grade teacher was to be made by selection board meant for C.T. grade teachers and not by Education Service Commission, and since by that time the selection board was not created, the appointment was required to be made by the District Inspector of Schools. The Inspector advertised the vacancies in C.T. grade, selected and recommended Sri Shiv Dhani Prasad Yadav for appointment. The District Inspector of Schools followed the procedure in para 5 of the U.P. Secondary Education Services Commission ( Removal of Difficulties) Order, 1981 in selecting Shiv Dhani Prasad Yadav. It appears that some complaints were made with regard to quality point mark awarded to Sri Yadav, on which the District Inspector of Schools stayed his order. On the same day without completing the enquiry he approved the ad hoc appointment of Sri Ram Siromani Verma.
On the aforesaid facts and circumstances, I find that there was no sanctioned post of L.T. grade teacher in Physical Education in the institution, and thus the entire procedure for appointment of Sri Ram Siromani Verma as L.T. grade teacher was illegal. Sri Shiv Dhani Prasad Yadav, the petitioner in writ petition No. 22233 of 1998 was rightly selected for appointment as C.T. grade teacher by the District Inspector of Schools. He was wrongly deprived the benefits of his appointment.
There is nothing on record to demonstrate that the enquiry with regard to the procedure adopted for his appointment was concluded or that any thins adverse was found in the procedure.
With these findings, the writ petition No. 20365 of 1988 is dismissed, and the writ petition No. 22233 0f 1988 is allowed. The orders of the District Inspector of Schools dated 30.7.1988 ( Annexure-3) and the order of the same dated 30.7.1988 (annexure-4) passed by the District Inspector of Schools, Varanasi are set aside. Sri Shiv Dhani Prasad Yadav is working in the institution since 1988. Since he was not allowed to join and did not perform the duties prior to 1988 he shall not be entitled to salary for the said period. However, the respondents shall give him seniority as C.T. grade teacher with all consequential benefits with effect from 18.7.1988 when he was reinstated and appointed as C.T. grade teacher in Physical Education. There shall be no order as to costs.
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