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Indra Deo Singh v. The District Inspector Of Schools, Azamgarh And Others - WRIT - A No. 3534 of 2004  RD-AH 6556 (29 November 2005)
Civil Misc.Writ Petiton no.3534 of 2004
Indradeo Singh Vs. District Inspector of Schools & others
Heard Sri Sanjiv singh, learned counsel for the petitioner, Sri R.B.Pradhan, learned standing counsel for the respondents no.1 and 5 and Sri Indra Raj Singh, who has filed Vakalatnama on behalf of the respondents no.2 and 3.
The petitioner has questioned the legality of the order dated 17.11.2003, Annexure XIV to the writ petition, whereby the District Inspector of Schools has rejected the claim of the petitioner for the payment of salary and continuance of a class IV employee in the Institution known as Janta Vidyalaya Higher Secondary Schools, Mahaujpur District Azamgarh, which is an Institution recognised by the provisions of U.P. Intermediate Act, 1921 and the Regulations framed thereunder.
The unfortunate carrier of the petitioner commenced with his inception in the year 1968 and since then the petitioner is serving the Institution to the best of his ability. Unfortunately the respondent/ Institution did not favour him with such any appointment that had the sanction of law behind it. Ultimately, the petitioner approached the District Inspector of Schools, who had issued necessary directions to the Management in view of the directions issued by this court on 13.12.1996 in writ petition No.39427 of 1996 . Upon examining the state of affairs and the claim of the petitioner, the District Inspector of Schools, on 24.4.1998 issued a communication to the principal of the Institution to consider the appointment of the petitioner against a class IV post as as his claim for appointment as class III post was not found to be tenable. The petitioner satisfied himself with the aforesaid offer and the Principal of the Institution appointed the petitioner on 30.11.1999. A copy of the letter of appointment has been appended as Annexure V to the writ petition. The said appointment was approved by the District Inspector of Schools on 11.3.2002, copy whereof is Annexure VI to the writ petition. A perusal of the said order of approval indicates that the District Inspector of Schools had traced the entire history of the claim of the petitioner and thereafter accorded the approval, which establishes that all the facts, which are necessary for the claim of the petitioner were in the knowledge of the District Inspector of Schools and the respondents were aware of these facts prior to 12.3.2002 and no fact was concealed by the Principal.
Later on it is alleged that one Yogendra Singh , who is arrayed as respondent no.4 alongwith his associates Narendera Kumar and Pramod Kumar, made some complaint that the petitioner 's appointment was contrary to law as it was done without taking notice of the provisions of Reservation for Schedule caste / Schedule .Tribe candidate in the Institution. It is relevant to point out that none of three persons were interested persons and could not have been appointed in the Institution. The District Inspector of Schools on 27..3.2002 i.e. after sixteen days of the grant of approval, passed an order, staying his own order dated 11.3.2002. During the pendency of these proceedings before the District Inspector of Schools an enquiry was also conducted by Tahsil Prabhari and the District Inspector of Schools accepted the said report, copy whereof is Annexure IX to the writ petition. This acceptance is endorsed on 14.4.2002 in the record maintained in the office of the District Inspector of Schools. After the aforesaid enquiry, the payment of salary was not being made and ultimately the District Inspector of Schools passed an order dated 17.11.2003 rejecting the claim of the petitioner on three grounds. Firstly, the District Inspector of Schools has recorded that the vacancy which is available in the Institution ought to have been filled up from amongst the Reserved category candidates, secondly, the appointment of the petitioner is not in accordance with the Regulations 101 to 107 and thirdly, petitioner's claim was with regard to the appointment as class III post, therefore, he could not have been considered for appointment as class IV post.
A counter affidavit has been filed on behalf of the District Inspector of Schools as also on behalf of the Principal of the Institution.
The counter affidavit on behalf of the Principal has been filed by one Surendra Singh, who occupied the post of Principal in an officiating capacity in the year 2002 i.e much after the appointment and approval of the petitioner, The said counter affidavit states that the appointment of the petitioner was invalid as it was done without following the procedure prescribed in the advertisement and under the Regulations. It has also been urged that since there is no Schedule caste candidate, the post in question ought to have been filled up from amongst the S.C. candidate, the petitioner could not be appointed as he was of general category. It has further been stated therein that the petitioner's claim has been rejected and the District Inspector of Schools has acted without jurisdiction in not considering the claim of the petitioner as a class IV employee.
A counter affidavit has been filed on behalf of the State through Sri R.B.Maurya , Associate District Inspector of Schools, Azamgarh. A reply to the same has also been filed in the form of a rejoinder affidavit.
Having heard the learned counsel for the parties, the point that emerges is the question of Reservation and the availability of the reserved category candidate in the Institution. The petitioner has categorically stated in para 20 of the writ petition that out of seven post all six posts are being occupied by the members of Reserve category out of which Kalpnath Ram is Schedule caste and Mahendra Ram Chamar is of Schedule caste, whereas the rest five belong to back- ward category. Reply to the said para 20 in the counter affidavit of the District Inspector of Schools, does not deny these specific allegations in respect of the candidates, who are occupying the said posts. A bold denial without any details is vague. The impugned order no where records the aforesaid fact, nor there is any consideration of the fact stated by the petitioner in this respect. On the contrary the report of Tahsil Prabhari , which was accepted by the District Inspector of Schools, a copy whereof has been appended as Annexure IX to the writ petition, supports the case set up by the petitioner. Under these circumstances, non consideration of such material vitiates the impugned order. It is further relevant to point out that learned standing counsel could not dispute the aforesaid position on the strength of the averments contained in the counter affidavit.
Sri Indraraj Singh has tried to invite the attention of the court to the other facts that since the District Inspector of Schools has been unable to meet the aforesaid stand, the stand of Principal cannot be accepted. It is by now well settled that only 50% post can be filled by promotion from amongst the candidates belonging to Schedule caste/ Schedule tribe category. In this view of the matter more than 50% of the posts are being occupied by back ward category and the Distt Inspector of Schools has completely over looked the aspect of the matter and, therefore, the impugned order is liable to set aside on this ground.
The second ground taken by the respondent is non consideration of regulations 101 to 107 also cannot stand the test of scrutiny inasmuch as the appointment of the petitioner was approved by the District Inspector of Schools after recording certain directions were issued in this regard. In these circumstances, there was no occasion for the District Inspector of Schools to have reviewed the matter without recording as to what fact was concealed or any fact was misrepresented by the petitioner. The impugned order passed by the District Inspector of Schools no where indicates that any such ingredient existed. The argument that certain facts were concealed is therefore, without any basis and as such the aforesaid stand taken by the respondent deserves to be rejected.
The third ground taken is that since the petitioner has staked his claim for being appointed as class III employee, therefore, his appointment as class IV employee cannot be sustained is a totally misconceived approach inasmuch once the petitioner has been appointed and approved as class IV employee, no question arises for considering his claim as a class III employee.
The impugned order is unsustainable in law in view of the aforesaid facts.
Even otherwise, the petitioner is also almost 54 years of age and is at the fag end of his career and to put him out of employment would be causing injustice to him.
This aspect has been considered by this Court on 6.5.2005 in a Division Bench matter ( Special Appeal No. 569 of 2005, Lal Chand Ram & others Vs. Director, Ayurvedic & Unani Services U.P. Lucknow wherein the following observations have been made :
'The appointment letters were issued to the appellants but their services were terminated later on after holding of an enquiry as to the propriety of the selection process .
There was a certain amount of doubt cast upon the appointment from very beginning as the appellants were not paid salary from the inception. They have been getting salary recently on the basis of interim orders passed by Court.
It is possible by applying the strict batter of the law to dismiss the appeal. The appellants are not entitled as a matter of right to a hearing when the entirety of the selection process is under review. As such the cancellation of the totality without hearing the appellants was not illegal. Furthermore, the letters dated 12.2.1995, 23.2.1995 are surely under a cloud, perhaps a very thick cloud of doubt.
All these are against the appellants, but one thing to our mind is very much in their favour. If there was fraud by some body for the purpose of taking these appellants in as class IV employees, they were not the initiating or primary parties to that fraud themselves. This again perhaps brings them under some sort of cloud as they are participators in a procedure which is not quite strict.
Everything is against the appellants. But the class IV wages feed eight families. It is very difficult in the entirety of the facts and circumstances of this case to find that we should replace these eights sweepers by eights others and in the aforesaid process seriously disrupt eight families and their rotis.
We were told when very young law is good but justice is better. On that principle, with the greatest of respect with the Hon'ble Judge who decided the writ matter perfectly legally, the appeal is allowed .The order impugned is set aside. The writ petition is allowed. The services of the appellants shall be confirmed and continued They will be paid arrears and benefits as expeditiously as possible, if those remain outstanding, in any event within two months from the date hereof."
In view of the aforesaid facts and circumstances and conclusion drawn herein above, the writ petition is allowed and the orders dated 17.11.2003 and 27.3.2002 passed by the District Inspector of Schools, Azamgarh is quashed. The petitioner shall be entitled to all the consequential benefits arising out of the approval dated 11.3.2002. The arrears of salary shall also be paid to the petitioner within three months and the petitioner shall be entitled to the current salary forthwith.
Accordingly the writ petition is allowed with no order as to costs.
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