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VINAY KUMAR versus JT. DIRECTOR & OTHERS

High Court of Judicature at Allahabad

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Vinay Kumar v. Jt. Director & Others - WRIT - A No. 27866 of 1998 [2006] RD-AH 15535 (6 September 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 26

Civil Misc. Writ Petition  No. 27866 of 1998

Vinay Kumar

Vs.

The Joint Director of Education, Gorakhpur & Ors.,

With

Civil Misc. Writ Petition  No. 38609 of 1998

Arvind Agrawal

Vs.

District Inspector of Schools, Gorakhpur & Ors.,

*********

Hon. Dilip Gupta, J.

These two writ petitions have been listed together and are being  disposed of by a common judgment.

Writ petition No. 27866 of 1998 has been filed by Vinay Kumar, who claims to have been initially appointed in the Mahadeo Prasad Poddar Arya Kanya Inter College, Buxipur (hereinafter referred to as the 'College') on a Class IV post and then promoted to the post of Assistant Clerk on the basis of the resolution of the Committee of Management taken in the meeting held on 1st February, 1998, for a direction upon the respondents to make payment of salary and not to interfere in his working. This petition shall hereinafter be  referred to as the 'First Writ Petition'.

Writ Petition No. 38609 of 1998 has been filed by Arvind Agrawal for  appointment on compassionate ground as an Assistant Clerk in the College on the basis of the order dated 23rd July, 1998 passed by the District Inspector of Schools and for quashing the order dated 17th October, 1998 passed by the Manager of the College denying such appointment to the petitioner. This writ petition shall hereinafter referred to as the 'Second Writ Petition'.  

The dispute that has arisen in these two petitions is about the filling up of the vacancy on the post of Assistant Clerk in the College that had arisen on account of the promotion of the Assistant Clerk to the post of Head Clerk. Vinay Kumar, the petitioner in the First Writ Petition is claiming promotion on the post of Assistant Clerk in terms of Regulation 2 of the Regulations contained in Chapter III (hereinafter referred to as the 'Regulations') of the U.P. Intermediate Education Act, 1921 (hereinafter referred to as the 'Act') while Arvind Agrawal who is the petitioner in the Second Writ Petition is claiming appointment on the same post of Assistant Clerk in the College on compassionate ground in terms of Regulations 102 to 107 of the Regulations.

In order to appreciate the rival contentions, it is necessary to examine the facts on the basis of which both Vinay Kumar and Arvind Agrawal are claiming appointment on the post of Assistant Clerk in the College.

Vinay Kumar claims to have been initially appointed on probation for a period of one year on a Class IV post by the order dated 5th August, 1982 issued by the Principal of the College. He also claims to have been promoted to the post of Assistant Clerk in the College on the basis of the resolution of the Committee of Management passed in the meeting held on 1st February, 1998. The resolution was passed by the Committee of Management of the College under Regulation 2 of the Regulations on the footing that he possessed the requisite qualification and had continuously worked for a period of more than 5 years.  It is also the contention of Vinay Kumar that on the basis of the aforesaid resolution, the Manager of the Committee of Management sent the communication dated 16th February, 1998 to the District Inspector of Schools for according financial approval to his appointment but no orders were passed. He has, therefore, filed the petition for a direction upon the respondents to pay salary forthwith.

Arvind Agrawal, on the other hand, is seeking compassionate appointment on the post of Assistant Clerk in the College. His contention is that his mother Smt. Pushpa Agrawal who was a permanent Assistant Teacher in Ramdai Kanya Inter College, Gorakhpur died in harness on 9th May, 1992 and after her death, he moved an application for compassionate appointment and thereafter in view of the provisions of Regulations 101 to 107 as amended by the Government Order dated 2nd February, 1995, the District Inspector of Schools, Gorakhpur passed an order dated 23rd July, 1998 for appointment of the petitioner as Assistant Clerk in the College. The Manager of the College, however, did not issue any appointment order in his favour as a result of which he was compelled to file Writ Petition No. 27897 of 1998 which was disposed of by this Court by means of the judgment and order dated 22nd September, 1998 with a direction to the Committee of Management of the College to consider his case in the light of the order dated 23rd July, 1998 passed by the District Inspector of Schools provided he had been selected and appointed after following the procedure laid down in Regulation 105. The Court also directed that in case he had been so selected then the Committee of Management shall appoint the petitioner on the post. Pursuant to the aforesaid directions of this Court, the Committee of Management considered the case of the petitioner but expressed its inability to grant appointment to him for the reason that the post of Assistant Clerk which had fallen vacant had been filled up by promotion of Vinay Kumar and the Committee of Management had sent the letter dated 16th February, 1998 to the District Inspector of Schools for granting financial approval to his appointment  but no orders had been passed by the District Inspector of Schools. It was also observed that Vinay Kumar had filed a Writ Petition in the High Court being Writ Petition No. 27866 of 1998 (First Writ Petition) for payment of salary in which this Court had passed an order on 16th September, 1998 that any action taken in respect of Vinay Kumar by the Committee of Management shall be subject to the decision of the writ petition. It was also stated that Smt. Pushpa Agrawal, mother of Arvind Agrawal, was an Assistant Teacher in the Primary Section of Ramdai Kanya Inter College for which there were no Regulations for providing compassionate appointment. It is this order of the Committee of Management that has been impugned in the writ petition filed by Arvind Agrawal.

The aforesaid facts indicate that the main reason indicated by the Committee of Management for not giving compassionate appointment to Arvind Agrawal as Assistant Clerk in the College in terms of the letter dated 23rd July, 1998 sent by the District Inspector of Schools was that the said vacancy had been filled up by the College by grant of promotion to Vinay Kumar.

It has, therefore, become necessary to first examine the claim of Vinay Kumar for promotion to the post of Assistant Clerk in the College. His claim is that he was initially granted substantive appointment on the Class IV post in the College by means of the appointment order dated 5th August, 1992. A perusal of the said appointment order dated 5th August, 1992 indicates that he had been appointed on the post of Daftari which is a Class IV post on probation for a period of one year on account of the  vacancy arising due to the promotion of Muni Mahesh who had been working as a Daftari in the College.

Regulation 2(2) of the Regulations provides that 50% of the posts of Head Clerk and Clerk shall be filled up by promotion from Class IV employees who possess the requisite qualification and have continuously worked for a period of 5 years on a substantive basis. The case of Vinay Kumar could have been considered for promotion to the post of Assistant Clerk in the College by the Committee of Management only if he had been duly appointed on a substantive basis on a Class IV post and had also continuously worked for a period of more than 5 years.

The contention of Sri Ajay Shanker, learned counsel for Arvind Agrawal and the learned Standing Counsel is that the said appointment of Vinay Kumar on a Class IV post by the order dated 5th August, 1992 was absolutely illegal as the requirement of prior approval of the District Inspector of Schools which was mandatory under Regulation 101 was not taken by the appointing authority before making the appointment on a non-teaching post and nor was any financial approval given subsequently by the District Inspector of Schools. It has also been urged that Vinay Kumar had never joined the College pursuant to this alleged appointment order and even the communication dated 5th August, 1992 which is said to have been sent by the Principal of the College to the District Inspector of Schools for granting financial approval to the appointment of Vinay Kumar to the Class IV post in the College was never received in the office of the District Inspector of Schools.

Regulations 101, 103, 105, 106 and 107 which are the relevant Regulations for deciding the controversy are quoted below:-

"101. The appointing authority shall not fill any vacancy in the non-teaching staff of a recognised aided institution except with the prior approval of the Inspector.

.......................

103. In case an employee of teaching or non-teaching staff of a recognised aided institution who has been duly appointed in accordance with the prescribed procedure, dies in harness, one member of his family not below the age of 18 years shall be given appointment to a non-teaching post notwithstanding anything contrary in the prescribed procedure for recruitment if such member possesses requisite educational qualifications prescribed for the post and is otherwise suitable for appointment.

.........................

105. A member of the family of the deceased employee referred to in Regulation 104 shall submit an application to the Inspector concerned for appointment to a post in the non-teaching cadre. The application shall be considered by a Committee and after the Committee has recommended his appointment, the Inspector shall send the application to the Management or the Principal or the Headmaster, as the case may  be, of the institution where the applicant is to be employed in accordance with the provisions contained in Regulation 106 for issuing appointment order. The Committee shall comprise:

1.Inspector Chairman

2.Accounts Officer in the Member

office of District Inspector

of Schools.

3.District Basic Member

Shiksha Adhikari

106. The appointment of the family member of the deceased employee shall be made, as far as possible, in the same institution where the deceased employee was serving at the time of his death. If there is no vacancy in non-teaching cadre in such institution, the appointment shall be made in another recognised aided institution of the district where there is such vacancy.

Provided that if such vacancy for the time being does not exist in any recognised aided institution of the district concerned, the appointment shall be made against a supernumerary post in the institution where the deceased was working at the time of his death. Such supernumerary post shall be deemed to have been created for this purpose and be continued till a vacancy becomes available in that institution or in any other recognised aided institution in the district and in such case the service rendered by the incumbent of the supernumerary post shall be counted for the fixation of pay and retirement benefits.

107. The appointment letter shall be issued under intimation to the Inspector by the recognised aided institution to which the application for issuing appointment letter is sent by the Inspector within a period of one month from the date of receipt of the application."

It is not disputed by Sri Arvind Srivastava learned counsel appearing for Vinay Kumar that he had not received any salary on the basis of the appointment order dated 5th August, 1992, and all that has been stated in paragraphs 7 and 8 of the writ petition is that on the basis of the order dated 5th August, 1992 the petitioner joined the College and started working and then the relevant papers with respect of the appointment of the petitioner were forwarded by the Principal of the College to the  District Inspector of Schools by means of the communication dated 5th August, 1992 for granting financial approval to the appointment of the petitioner. The District Inspector of Schools in paragraph 7 of the counter affidavit has not only specifically denied this fact but has also stated that this fact is absolutely incorrect and without any basis and the appointment of the petitioner could not have been made without seeking the prior approval of the District Inspector of Schools under Regulation 101. In reply to the averments made in paragraph 7 of the counter affidavit filed by the District Inspector of Schools, Sri Vinay Kumar in his rejoinder affidavit has merely stated that the contents are denied and that the appointment order does not become void if prior approval was not granted by the District Inspector of Schools. It has also been stated in the rejoinder affidavit that there was no violation of the Government Order dated 30th July, 1992 which inserted Regulations 101 to 107. Regulation 101 provides that the appointing authority shall not fill any vacancy in the non-teaching staff of a recognised aided College except with the prior approval of the Inspector. It is, therefore, clear that the Principal of the College had not sought prior approval of the District Inspector of Schools before filling up the vacancy.

This Court in Amit Kumar Vs. District Inspector of Schools, Jaunpur & Ors., reported in 2000 (4) ESC 2758 has held that seeking of prior approval of the District Inspector of Schools under Regulation 101 is mandatory and the relevant portion is quoted below:

"From  the aforesaid meaning of the word "except" it is clear that the expression "except" has been used in Regulation 101 to mean "only". Therefore, the appointing authority before making appointment on a non-teaching post could make any appointment only after obtaining prior approval of DIOS. In my opinion use of these two words "shall" and "except" have been used in imperative terms and clearly express that prior approval of DIOS is a condition precedent for making any appointment on a non-teaching post. Use of word "except" with the prior approval of DIOS does not leave any discretion to the appointing authority to make any appointment without obtaining his prior approval. If Regulation 101 is treated to be directory then the appointing authority could make appointment on non-teaching post even without prior approval of the DIOS. It would result in giving power to the appointing authority to make appointment first, and thereafter obtain financial approval. This was not the intention of legislature or the Rule making authority. And it clearly intended that before making any appointment the appointing authority must obtain prior approval of the DIOS. The legislative intent has to be given effect to while interpreting regulatory provisions of Regulation 101. Regulations 103 to 106 to Regulations further make it clear that the Regulation 101 cannot be construed as permissive or directory. Further the procedural safeguard contained in Regulation 101, making it obligatory for the appointing authority in matters of making appointment on non-teaching posts, not to fill the vacancy except with the prior approval of the DIOS, has an element of public interest. Regulation 103 providing for appointments under the Dying in Harness Rules makes it obligatory on the DIOS to provide appointment to dependents not only in the institution where the deceased was working but any other institution, therefore, the only reasonable interpretation which can be given to the two words "shall" and  "except" used in Regulation 101 is that these expressions are imperative and the regulatory provision contained in Regulation 101 is mandatory and cannot be treated to be directory. The requirement of obtaining prior approval of DIOS is not an empty formality. It is in public interest. The appointment of petitioner being contrary to Regulation 101 did not vest any right in him either to claim his appointment as regular or any salary."  

This view was reiterated by this Court in Sunil Kumar Vs. District Inspector of Schools & Anr., reported in 2001 (3) ESC 1396. In Krishna Mohan Singh Vs. State of U.P. & Ors., reported in 2005 (2) ESC All. 1542 a Division Bench of this Court observed that an appointment made dehors the Rules is void and, therefore, unenforceable and unexecutable. The Supreme Court in the case of Prabhat Kumar Sharma & Ors., Vs. State of U.P. & Ors., reported in (1996) 10 SCC 62 examined at length the fate of such appointments of teachers which had been made in contravention of the provisions of the Removal of Difficulties Order issued under the provisions of the Act and observed that any appointment which was made in transgression of the provisions of the Removal of Difficulties Order was illegal and void and would confer no right upon the appointees. It was also observed that the procedure was provided to avoid manipulation and nepotism in selection and appointment of teachers by the Management to any post in an aided institution and when the salary was paid by the State, public interest demanded that the selection of the teachers should be in accordance with the procedure prescribed. The same principles would apply to appointment of non-teaching staff in the College.

The appointment of Vinay Kumar that is said to have been made by the Principal of the College on the Class IV post was made without seeking any prior approval of the District Inspector of Schools. It was, therefore, clearly void and of no consequence and would not confer any benefit upon him.

It also needs to be mentioned that Vinay Kumar had made no grievance whatsoever regarding the non-payment of salary from 5th August, 1992 on the basis of the appointment order dated 5th August, 1992. It is difficult to believe that a Class IV employee who had been granted substantive appointment in the year 1992 would remain silent for all these long years if salary was not paid to him and would file a writ petition only in the year 1998 for payment of salary when he had been promoted by the Committee of Management to the post of Assistant Clerk.  There is also nothing on the record to indicate that any advertisement was issued by the Principal of the College for filling up this Class IV post and even the appointment order dated 5th August, 1992 does not indicate that any selection was made.

Sri Arvind Srivastava learned counsel appearing for the petitioner, however, submitted that Regulation 101 was inserted in Chapter III on 24th August, 1992 and not 30th July, 1992. This contention of the learned counsel for the petitioner cannot be accepted. The notification for inserting Regulation 101 in Chapter III was issued on 30th July, 1992 and it came into effect immediately. This fact has been specifically stated in paragraph 9 of the counter affidavit filed by the District Inspector of Schools. The petitioner in paragraph 8 of the rejoinder affidavit has not stated that Regulation 101 was inserted w.e.f. 24th August, 1992 and, in fact, in paragraph 9 of the rejoinder affidavit reference has been made to the Government Order dated 30th July, 1992 and the fact that it inserted Regulations 101 to 107. Thus the contention of Sri Arvind Srivastava learned counsel for the petitioner that Regulation 101 came into effect from 24th August, 1992 is without any foundation and cannot be accepted.

Sri Arvind Srivastava learned counsel for the petitioner then submitted that an amendment application under Order VI Rule 17 of the Code of Civil Procedure had been moved by the petitioner on 6th April, 2006 with a prayer to add certain paragraphs, grounds and reliefs in the writ petition. The relief claimed by way of this amendment application was to treat the petitioner as having been appointed on a Class IV post from 5th August, 1992 up to 1st February, 1998 and as a Class III employee from 2nd February, 1998 till date and to pay the requisite salary and for a direction to the District Inspector of Schools to grant approval to the appointment of the petitioner on the Class IV post w.e.f 5th August, 1992 and to the Class III post w.e.f. 2nd February, 1998. In the paragraphs sought to be added certain facts/documents relating to the sending of intimation to the office of the District Inspector of Schools regarding the appointment made by the order dated 5th August, 1992 and the sending of the papers regarding promotion to the Class III post have been mentioned. The learned counsel appearing for the respondents have strongly opposed the amendments sought to be incorporated.

Order VI Rule 17 of the Code of Civil Procedure as amended by the Code of Civil Procedure (Amendment) Act, 2002 w.e.f. 1st July, 2002 provides that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be necessary for the purposes of determining the real question in controversy between the parties provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.

This writ petition was filed on 27th August, 1998 and the affidavits were exchanged between the parties as far back as in the year 2000. The matter was also heard at length earlier on 17th February, 2006 but it was adjourned as the arguments remained unconcluded. It is after the hearing of the said case on 17th February, 2006 that the amendment application was filed on 6th April, 2006. The amendment application does not mention that in spite of due diligence, the petitioner could not place these facts/documents when the writ petition was filed in the year 1998. This apart, the counter affidavit was filed by the District Inspector of Schools in the year 2000 clearly denying the fact that any information was sent to the District Inspector of Schools regarding the appointment order dated 5th August, 1992 or the resolution promoting the petitioner to the Class III post on 16th February, 1998. The rejoinder affidavit was filed by the petitioner in the year 2000 itself but the facts/documents as sought to be added by the amendment application were not brought on record. This amendment application has been filed after the expiry of 6 years from the date of filing the counter affidavit without giving any explanation for this inordinate delay in filing the amendment application and without disclosing why the facts stated in the amendment application or the documents now sought to be added through the amendment application were not in the knowledge or available with the petitioner at the time of filing of the writ petition or rejoinder affidavit. The amendment application is totally misconceived and liable to be rejected and is, accordingly, rejected.

Sri Arvind Srivastava learned counsel for the petitioner also submitted that as intimation had been sent to the District Inspector of Schools by the Principal of the College on 5th August, 1992 regarding the appointment of Vinay Kumar on a Class IV substantive post and the District Inspector of Schools had failed to grant approval within a reasonable time the approval must be deemed to have been granted and even if Regulation 101 is construed in a manner that it does not contemplate any deemed approval then too the said Regulation is arbitrary as it does not provide any guidelines for the exercise of the power and jurisdiction by the authority. Both these contentions have been dealt with and repelled by a Division Bench of this Court in the judgment rendered on 22nd February, 2006 in Special Appeal No. 132 of 2006 (Ram Dhani Vs. State of U.P. & Ors.,). In view of the aforesaid decision, the contention advanced by Sri Arvind Srivastava learned counsel for the petitioner cannot be accepted.

The promotion of the petitioner to the post of Assistant Clerk in terms of the resolution dated 1st February, 1998 of the Committee of Management is entirely dependent upon the legality of the substantive appointment of the petitioner on the Class IV post since it is necessary for a Class IV employee to have continuously worked on the substantive post for a period of more than 5 years for promotion to the post of Assistant Clerk. Thus, as it has been found that the appointment of the petitioner on the Class IV substantive post by the order dated 5th August, 1992, was void and of no consequence, the claim of the petitioner for promotion to the post of Assistant Clerk is equally without any basis. The Committee of Management could also not have promoted the petitioner to the post of Assistant Clerk without seeking prior approval of the District Inspector of Schools under Regulation 101 and this is what the District Inspector of Schools has stated in the counter affidavit. It has also been stated that the Committee of Management did not give any intimation to the District Inspector of Schools regarding this appointment. All that has been stated in the rejoinder affidavit is that absence of prior approval does not invalidate the promotion but the fact that information was not given by the Committee of Management has not been specifically denied. The District Inspector of Schools also did not give any financial approval to the promotion of Vinay Kumar on the post of Assistant Clerk in the College.

The inevitable conclusion, therefore, is that Vinay Kumar could not have been promoted to the post of Assistant Clerk in the College by the Committee of Management. Thus the reason indicated by the Committee of Management that the vacancy to the post of Assistant Clerk in the College had been filled up by Vinay Kumar cannot be sustained.

The other reason given by the Committee of Management in the order dated 17th October, 1998 is that the benefit of Regulations 101 to 107 dealing with compassionate appointment cannot be availed of by Arvind Agrawal as his mother was teaching in a primary section of the College to which these Regulations do not apply. This reason cannot also be accepted in view of the decision of this Court in the case of Committee of Management, Sri Sukh Devi Ucchchatar Madhyamik Vidyalaya, Mandir Mahewa, District Etawah Vs. Director of Education & Ors., reported in (1993) 2 UPLBEC 1280 wherein it has been held that the Act would apply to primary section attached to a High School or Intermediate College since it would be a part of the High School or Intermediate College. It is not the case of the Committee of Management or the petitioner that the primary section was   not a part of the Intermediate College.

The reasons indicated by the Committee of Management in its order dated 17th October, 1998 for not offering appointment to Arvind Agrawal on compassionate ground on the basis of the order dated 23rd July, 1998 passed by the District Inspector of Schools have been found to be untenable and without any basis. This clears the path for Arvind Agrawal to seek compassionate appointment on the post of Assistant Clerk in terms of the aforesaid order of the District Inspector of Schools but a last attempt was made by Sri Arvind Srivastava learned counsel by contending that the post in question was required to be filled up by promotion and, therefore, Arvind Agrawal could not have been appointed on compassionate ground by way of direct recruitment. This contention of the learned counsel for the petitioner cannot be accepted as firstly the Committee of Management in its order dated 17th October, 1998 had not taken such a plea and secondly Vinay Kumar cannot be permitted to raise this issue once it has been determined that he had no right to claim appointment to the post of Assistant Clerk in the College. It is true that in Special Appeal No. 1075 of 1998 filed by Vinay Kumar the Court while disposing of the appeal had made observations about 50% quota reserved for being filled up by way of promotion but as the claim of Vinay Kumar for promotion has been found to be without any basis, such a plea cannot be raised by him.  

A perusal of the order dated 23rd July, 1998 passed by the District Inspector of Schools clearly shows that the Committee constituted under Regulation 105 had recommended the name of Arvind Agrawal in its meeting held on 10th July, 1998 and the District Inspector of Schools had sent the application to the Committee of Management of the College for issuing the appointment order under Regulation 107. Regulation 107 provides that the appointment letter shall be issued under intimation to the District Inspector of Schools within a period of one month from the date of receipt of the application. The Committee of Management is, therefore, under an obligation to issue the appointment order to Arvind Agrawal forthwith.

In view of the discussion made above, Writ Petition No. 27866 of 1998 filed by Vinay Kumar is dismissed and Writ Petition No. 38609 of 1998 filed by Arvind Agrawal is allowed. The order dated 17th October, 1998 passed by the Manager of the College is quashed and a direction is issued to the Committee of Management of the College to forthwith issue the appointment order to Arvind Agrawal in terms of the communication dated 23rd July, 1998 sent by the District Inspector of Schools.  

       

Date: 6.9.2006

NSC


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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