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Shiv Narayan Singh v. Asstt. Director Of Education (Basic) & Ors. - WRIT - A No. 18047 of 2002  RD-AH 11731 (18 July 2006)
HON. SHISHIR KUMAR, J.
The petitioner has approached this Court for quashing the order-dated 12.4.2002 passed by Director of Education (Basic) U.P., Lucknow, Annexure-14 to the writ petition.
The petitioner alleges to have been appointed in the year 1983 in the institution, which was a recognized institution running classes-6th to 8th. By the order-dated 16.12.1998, the State Government has included the said institution in grant in aid. When the institution came into grant in aid, the salary to the petitioner was not paid, then the petitioner raised a dispute. He filed a Writ Petition No.24182 of 2000 before this Court and the writ petition was finally disposed of by order dated 8.8.2000 directing the Director of Education or any other authority deputed by him to make an inquiry after affording an opportunity to the petitioner. On the basis of the aforesaid inquiry, the order impugned has been passed by which a finding has been recorded that the petitioner on his own on 15.12.1990 has resigned and the same was accepted and on that basis with the permission of the Basic Shiksha Adhikari, the appointment of respondent no.5 was made
It has been submitted on behalf of the petitioner that on the basis of the order passed by this Court an inquiry was made by the Director of Education (Basic) who has recorded a finding that the petitioner has never resigned and he was an approved teacher in the institution and the appointment of Sri Ram Niwas Ram is illegal and that is being disapproved. Further contention of the petitioner is that in spite of the aforesaid inquiry, another inquiry was made by the Director of Education and another Director of Education (Basic) was deputed to make an inquiry and he has recorded a finding that on 15.12.1990 the petitioner himself has resigned and the same has been approved. The petitioner was not working as a teacher at that time when the institution came into grant in aid. The contention of the petitioner is that there was no occasion for another inquiry. In the earlier inquiry a finding has been recorded that the relevant documents have not been submitted by the Committee of Management, even the attendance register as the Committee of Management has taken a plea that due to the dilapidated condition of the building of the institution, various records have been destroyed. An inference was drawn by the authorities in earlier report that the petitioner has never resigned and as there was no vacancy. Therefore, the appointment of the respondent no.5 is void and illegal. In such a situation the petitioner submits that the matter be remitted back for making a fresh inquiry.
On the other hand Sri G.K. Singh who appears for the respondent no.5 has filed a counter affidavit and has stated that as the petitioner has resigned in the year 1991 and the resignation of the petitioner was approved by the competent authority which is apparent from the record. on the basis of the vacancy caused due to the resignation of the petitioner, which was already approved, the appointment of respondent no.5 was made on 22.6.1991 and the relevant papers were sent to the Basic Shiksha Adhikari for approval and the appointment of respondent no.5 was approved. It has further been submitted by the respondents that Annexure-2 to the counter affidavit clearly shows that the Basic Shiksha Adhikari on the basis of the relevant record and on the basis of the vacancy caused due to the resignation of the petitioner has permitted the institution to advertise the said post of teacher and to appoint. On the basis of the permission granted by the Basic Shiksha Adhikari, the appointment of respondents no. 5 was made and he was working on the date when the institution came in grant in aid. As the petitioner was not a teacher on the relevant date and he has already resigned, therefore, a finding to this effect has been recorded by the relevant authority to this effect. It has also been brought to the notice of the Court that at the time of the appointment of the petitioner, the real brother of the petitioner was one of the members of the Committee of Management as such any appointment if made, that will be in contravention of Junior High Schools Teachers Niyamawali 1978 and is illegal.
I have heard the learned counsel for the petitioner. From the perusal of the record it is clear that the contention of the petitioner to this effect that what was the occasion of the second inquiry cannot be accepted. As the earlier inquiry alleged to be made by the respondent was never signed by the competent authority and that has not seen light of the day, therefore, that will be treated to be a waste document and cannot be considered. It is also to be noted that the petitioner has participated in the second inquiry. If the petitioner was aggrieved, relating to the second inquiry that is the impugned order without participating in the inquiry, he should have challenged the said action of the respondent. The petitioner has not challenged the same; therefore, the contention of the petitioner cannot be accepted. It is also to be noted that admittedly the appointment of respondent no.5 was made and approved by the Basic Shiksha Adhikari on 5.6.1999 with the permission of the Basic Shiksha Adhikari due to the vacancy caused after the resignation of the petitioner. If the petitioner was working in the said institution at that relevant time, the petitioner should have raised any objection or to challenge the said order before the competent court of law. The petitioner has never challenged the said order and the order of appointment of respondent no.5 and approval has attached the finality. It cannot be accepted that if the petitioner was working in the said institution at that relevant time, in spite of the appointment of two teachers in the institution and approval, the petitioner was not having any knowledge. Therefore, it clearly appears that as the institution in question was not in grant in aid, therefore, the petitioner resigned in 1990 and again when one of the brother of the petitioner became member of the Committee of Management, he again obtained the fraudulent appointment, which is in clear violation of rules.
In my opinion the finding recorded by the respondents is a finding of fact and cannot be interfered. It is also to be noted that the petitioner has already expired on 25.1.2006 though the substitution application has been allowed and the heirs of the petitioner have been substituted. The finding recorded by the respondents is a finding of fact based on the evidence on record, therefore, this Court while exercising the power under Article 226 of the Constitution of India cannot reappraise the finding recorded by the competent authority.
In the result the writ petition is devoid of merit and is hereby dismissed. No order as to costs.
W.P. 18047 of 2002
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