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Gobari Yadav S/O Shri Hole Mani … vs District Inspector Of Schools, … on 29 February, 2008

Allahabad High Court Gobari Yadav S/O Shri Hole Mani … vs District Inspector Of Schools, … on 29 February, 2008Author: B Chauhan Bench: B Chauhan, R Kumar

JUDGMENT

B.S. Chauhan, J.

1. The appellants preferred the writ petition, which has given rise to this Special Appeal. claiming payment of salary as Peon in an Intermediate College, which is duly recognised and governed by the provisions of the U.P. Intermediate Education Act, 1921 and the Regulations framed thereunder read with U.P. Act No. 14 of 1974 (Payment of Salary Act). The claim was founded on the strength of letters of appointment which are annexures 1 and 2 respectively to the writ petition. The said letters of appointment are stated to have been issued by the Principal of the institution, who is the Appointment Authority. The matter was taken up by the District Inspector of Schools at the time of grant of financial sanction on which a query was raised by the District Inspector of Schools calling upon the Principal to furnish the documents including the relevant certificates which were necessary for the purposes of verifying the correctness or otherwise of the qualifications of the candidates as claimed by them and further to verify as to whether their candidatures were valid or not.

2. Later on. it transpires that the Committee of Management of the institution raised some objections with regard to the appointments of the appellants, upon which the Principal of the institution sent a letter dated 10 December. 1991 withdrawing the recommendations of the appointments of the appellants and made a request to the [District Inspector of Schools not to grant approval. The District Inspector of Schools, thereupon, passed the order dated 30.01.1992 (Annex.4). The writ petition has been filed thereafter in May. 1992 claiming payment of salary with effect from the dates of their joining.

A counter affidavit was filed on behalf of the District Inspector of Schools wherein it was stated that the certificate which was relied upon by one of the appellants was forged and this fact has been stated in paragaph 8 of the counter affidavit of Jagdish Prasad Gupta, the Camp Assistant who has sworn the affidavit on behalf of the District Inspector of Schools. The same was, however, denied in paragraph 7 of the rejoinder affidavit and certain explanations were given.

3. The learned Single Judge by the judgment under appeal, refused to go into these questions and opined that the appellants, who are claiming salary as Class IV employees., have alternative and efficacious remedy by approaching the Labour Court under the provisions of the U.P. Industrial Disputes Act. 1947, and ultimately, dismissed the writ petition on the ground of alternative remedy.

4. Mr. R.C. Singh, learned Counsel for the appellants urged that relegating the appellants to an alternative remedy after 15 years of the pendency of the writ petition was absolutely unjustified and that dismissing the writ petition on the said ground amounts to serious miscarriage of justice. He contends that the appointments of the appellants having been validly made and that the appellants were entitled to payment of salary, as once the appointment letters had been issued and there being no provision for approval by the District Inspector of Schools, there was no occasion for withdrawing the recommendations of appointments of the appellants at the instance of the Committee of Management. It is urged that the appointments of the appellants could not have been interfered with and the District Inspector of Schools committed an error by proceeding to refuse to accord financial sanction to the appointments of the appellants on the said ground. Learned Counsel for the appellants further contends that the valuable rights had accrued in favour of the appellants which could not have been taken away by adopting such a procedure and, therefore, the appeal deserves to be allowed and the judgment and order of the learned Single Judge deserves to be set aside.

5. This Court entertained this appeal and vide order dated 24.05.2007, called upon the learned Counsel for the appellants to furnish the information with regard to the procedure adopted for the selection and appointments of Class IV employees and also requested him to produce the copy of the advertisement which would indicate that the procedure of selection was adopted fairly and in accordance with the rules. Till date, no affidavit has been filed furnishing the said information. It is well settled by now that the appointments on such posts have to be made in accordance with the procedure prescribed under the rule. The post in question is a Class IV post and of Intermediate College, the salary whereof is paid by the State. The procedure for appointment is the same as in Government Schools. There is nothing on record to indicate that the procedure for appointing a Class IV employee was followed by the Appointing Authority for appointing the appellants. It is for this reason that this Court had called upon the learned Counsel for the appellants to furnish this information vide order dated 24.05.2007. which has not been done till date. A perusal of the writ petition also does not indicate such averments which may establish that the posts were advertised, a select list was prepared which would indicate as to how many applications were received and that the procedure adopted was in accordance with law. This was necessary in order to find out as to whether the selections and alleged appointments of the appellants were in conformity with the principle of Articles 14 and 16 of the Constitution of India. As noticed above, nothing has been tendered before this Court which may establish the claim of the appellants of having been appointed in accordance with the procedure prescribed by law. In such a situation, the mandamus as prayed for cannot be issued. Not only this. the writ petition was filed after the order dated 30.01.1992 had been passed. The said order was not even challenged before this Court. The question as to whether any prior approval of the District Inspector of Schools was required or not. does not arise in this case, inasmuch as for the purposes of payment of salary from the State funds, the District Inspector of Schools, who is the Sanctioning Authority, has limited powers of examining the correctness or otherwise of the appointment in order to ensure that the salary is released in favour of a validly appointment person. In the absence of any challenge to the order of the District Inspector of Schools or any prayer having been made for quashing of the same, no mandamus can issue, as the appellants have failed to establish their rights by brining on record any document, which would establish that their appointments had been preceded by following the due procedure of selections.

6. The issue has been examined by a Division Bench of this Court in Radhey Shyam Dube v. District Inspector of Schools, Deoria and Ors. 1987 UPLBEC 553. wherein after examining the scheme of the Statute, the Court came to the following conclusion:

The first point urged by the learned Counsel was that the District Inspector of Schools has no power to approve or disapprove the appointment of a teacher or an employee of an institution He could not hence go into the validity of the petitioner’s appointment. The submission is devoid of any merit. The petitioner himself has repeatedly asserted that what was sought by the District Inspector of Schools was financial approval which was undeniably necessary under the U.P. High School and Intermediate Colleges (Payment of Salaries to Teachers and other Employees) Act, 1971 (the ‘Payment of Salaries Act’ in brief) and the District Inspector of Schools has done neither more nor less than refused to accord the same. That the District Inspector of Schools does have that limited power, is fully borne out by this Act which was passed with the object of regulating the payment of salaries to teachers and other employees of High Schools and Intermediate Colleges receiving aid out of the State funds and to provide for matters connected therewith. Under this Act the responsibility for payment of salary to teachers and employees of such institution has been cast on the State Government (vide Section 10). The Act requires the institution governed by it to open an account in a bank a separate account to be operated jointly by a representative of the Managing Committee and by the District Inspector of Schools for purposes of disbursement of salaries to its teachers and employees. Eighty percent of the fees realised by the Management has to be deposited in that account. It is from this fund and the Government grant that the salaries of teachers and employees are disbursed under the signatures of the representative of the Management and the District Inspector of Schools. Under certain circumstances the account can be operated by the District Inspector of Schools singly without the association of the Management. The responsibility cast on the District Inspector of Schools to disburse salaries necessarily carries with it an implied power to satisfy himself that the appointment of the teacher or employee whose salary he is called upon to disburse was appointed in accordance with law and in a bona fide manner. For that limited purpose he is free to make an enquiry and satisfy himself within a reasonable time.

6.1 Similarly, the issue was reconsidered by this Court in Baij Nath Sharma v. District Inspector of Schools Jaunpur and Ors. 1993 ESC 265 wherein the Court held that the appointment of a Class IV employee of a College is made under the U.P. ‘Intermediate Education Act, 1921 and Regulations framed thereunder. Neither the Act nor the Regulations framed thereunder provide for approval of the District Inspector of Schools in the matter of appointment of Class IV employee. Therefore, the appointment can be made by the Appointing Authority without any approval of the District Inspector of Schools. But, while dealing with the issue of payment of salary, the Court held as under: …But when it come to the payment of the salary it is governed by the U.P. High School and Intermediate College (Payment of Salary of Teachers and other Employees) Act, 1971 (hereinafter referred to as the Act) under which the D.I.O.S. is the competent authority to decide the question as to whether the employee is entitled to the payment of salary. Whether an employee is entitled to payment of salary depends on several factors such as existence of the sanctioned post, availability of maintenance grant in respect of that post and manner and method of the appointment. Merely, because an employee has been appointed by me appropriate authority the D.I.O.S. is not bound to pay his salary under the Act unless the conditions precedent are satisfied.

7. The Group ‘D’ Employees Service (UP.) Rules, 1985, which are applicable in a case of appointment of Class IV employee in Government aided schools by virtue of the Government Orders issued from time to time, provide for procedure for selection. Rule 19 thereof provides that it is obligatory on the part of the Appointing Authority to determine the number of vacancies and to implement the reservation policy of the State and notify the said vacancies to the Employment Exchange and further to provide for advertisement in local daily newspapers besides pasting the notice for the same on the Notice Board.

8. It is settled legal proposition that appointment to any public post is to be made by advertising the vacancy and any appointment made without doing so violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered.

8.1 In Delhi Development Horticulture Employees’ Union v. Delhi Administration, Delhi and Ors. , the Hon’ble Apex Court held that calling the names from Employment Exchange may curb to certain extent the menace of nepotism and corruption in public employment.

8.2 In State of Haryana v. Piara Singh , the Hon’ble Supreme Court held as under:

Thirdly, even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.

Any appointment made on temporary or ad hoc basis in violation of the mandate of Articles 14 and 16 of the Constitution of India is not permissible, and thus void as the appointment is to be given after considering the suitability and merit of all the eligible persons who apply in pursuance of the advertisement.

8.3 In Excise Superintendent Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao and Ors. , the larger Bench of the Hon’ble Supreme Court reconsidered its earlier judgment in Union of India and Ors. v. N. Hargopal and Ors. , wherein it had been held that insistence of requisition of names from employment exchanges advances rather than restricts the rights guaranteed by Articles 14 and 16 of the Constitution, and held that any appointment even on temporary or ad hoc basis without inviting application is in violation of the provisions of Articles 14 and 16 of the Constitution and even if the names of candidates are requisitioned from Employment Exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from open market as merely calling the names from the Employment Exchange does not meet the requirement of the said Articles of the Constitution. Same view has been reiterated in Arun Tewari and Ors. v. Zila Manaswavi Shikshak Sangh and Ors. AIR 1998 SC 331; Kishore K. Pati v. District Inspector of Schools, Midnapur and Ors. (2000) 9 SCC 405 and Subhas Chand Dhrupta and Anr. v. State of HP. and Ors. . Therefore, it is settled legal proposition that no person can be appointed even on temporary or ad hoc basis without inviting applications from all eligible candidates and if any such appointment has been made or appointment has been offered merely inviting names from the Employment Exchange that will not meet the requirement of Articles 14 and 16 of the Constitution.

9. A similar view has been reiterated in Pankaj Gupta and Ors. v. State of J. & K. ; Binod Kumar Gupta and Ors. v. Ram Ashray Mahoto and Ors. ; National Fertilizers Ltd. v. Somvir Singh ; and Commissioner Municipal Corporation Hyderabad and Ors. v. P. Mary Manoranjani 2008 AIR SCW 704.

9.1 In Secretary, State of Karnataka and Ors. v. Umadevi and Ors. , a Constitution Bench of the Hon’ble Supreme Court came to the conclusion that adherence to the provisions of Articles 14 and 16 of the Constitution of India is a must in the process of public employment and an employee who has been appointed without following the procedure prescribed by law, is not entitled for any relief, whatsoever, including the salary.

9.2 In Union Public Service Commission v. Ginsh Jayantilal Vaghela and Ors. . the Hon’ble Supreme Court held that the appointment to any post under the State can only be made after a proper advertisement has been issued inviting applications from eligible candidates and holding of selection by a Body of Experts, and any appointment made without following the procedure, would be in violation of the mandate of Article 16 of the Constitution of India.

10. Therefore, it is evident that any appointment made without advertising the vacancy cannot be held to be in conformity with the mandate of Articles 14 and 16 of the Constitution of India and is a nullity.

Appellants claim their appointments in the year 1991 when the 1985 rules were already in force. Even otherwise, if no statutory Rules providing for the procedure of selection exist, selections have to be based on a fair procedure and in consonance with Articles 14 and 16 of the Constitution of India. It is for this reason that this Court had called upon the appellants to file an affidavit to support the selections on the strength of any advertisement or any other process which could justify the adoption of a fair selection process. In spite of lapse of almost 9 months, no affidavit has been filed nor any material has been brought on record to substantiate the presumption of a fair procedure of selection. On account of this lapse on the part of the appellants, it is difficult for us to assume that the appointment of the appellants was made in accordance with law

11. Accordingly, even if the contention with regard to the relegation of the appellants to avail the alternative remedy is entertained and the writ petition is called upon to be assessed on merits, even then the appellants have failed to establish their rights and as such in this view of the matter, they cannot ask this Court for the issuance of a writ in their favour. The appeal, therefore, lacks merit and is accordingly dismissed.

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