DEVENDRA NATH MISRA Vs. STATE OF U P

JUDGEMENT

(1.) Sri Devendra Nath Misra has filed this petition under Article 226 of the Constitution of India praying for a writ in the nature of certiorari quashing the order dated 6.10.1998 passed by the District Inspector of Schools (D.I.O.S.), opposite party No. 4 and for another writ in the nature of mandamus commanding the opposite party No. 4 to accord financial approval and make payment of the petitioner's salary in the lecturer's grade with effect from 1.7.1994.

(2.) According to the factual matrix of the case, the petitioner is working as Assistant Teacher in L.T. grade in Shri Satya Narain Tewari Vidya Mandir Inter College, Nigohan, Lucknow. He is a well-qualified teacher having done post-graduation in four subjects, namely, Mathematics, Economics, Ancient Indian History and M.Ed. There are six recognised subjects for imparting education to the Intermediate students. However, the financial approval subsists only for two posts of lecturers in the subjects of Geography and Psychology. Earlier there were two Lecturers working in the aforesaid Institution. Of them Sri G. P. Mishra (Geography lecturer) was appointed as Principal in Sri Raj Narain Jaiswal Inter College and the other Sri Bhuvnesh Chandra Shukla (Psychology lecturer) was appointed as Principal of Shri Satya Narain Tewari Vidya Mandir Inter College. The promotion of Sri Shukla was approved by the D.I.O.S., however, with a condition that Sri Shukla's appointment would automatically come to an end when a duly selected candidate joined the post. The petitioner's claim is that he being the senior-most qualified L.T. grade teacher was entitled to be promoted as Lecturer in Psychology. In this regard, the petitioner wrote a letter to the Manager of the Management Committee staking his claim for being promoted but the Manager and the Principal both paid no heed to his request. His representation dated 17.8.1994 to the Management Committee was also not taken notice of. However, he sent a similar representation to the Deputy Director of Education with a copy to the D.I.O.S., whereupon the D.I.O.S. sought certain information from the Committee of Management. The Principal of the College in response to the letter of D.I.O.S. submitted misleading and incorrect factual position as he and the Committee of Management both were trying to promote a junior-most teacher Sri Saryu Prasad Shukla on the post of Lecturer. In the meantime, the Committee of Management recommended, ignoring the specific provisions of the Intermediate Education Act, that Sri Saryu Prasad Shukla be promoted as Lecturer in Hindi although there was no sanctioned post for the said subject. The D.I.O.S. directed the Principal to dispose of the representation of the petitioner first. The D.I.O.S. also directed the Manager of the College to forward the relevant papers of the petitioner regarding his promotion to the post of Lecturer in Psychology. The D.I.O.S. also called for a report from the Principal and the Manager as to why the petitioner had not been promoted in accordance with the Rules. Giving a deaf ear to the D.I.O.S., the Manager and the Principal of the College promoted Sri Saryu Prasad Shukla to the post of Lecturer in Hindi vide resolution dated 9.10.1994. The D.I.O.S. returned the said resolution with a direction to consider the representation of the petitioner first. As a matter of fact, no post of Lecturer in Hindi was ever sanctioned and as such the promotion of Sri Saryu Prasad Shukla was contrary to the Rules. The petitioner was then obliged to file Writ Petition No. 4217 of 1997 (S/S), praying for a writ of certiorari quashing the resolution of the Committee of Management regarding promotion of Sri Saryu Prasad Shukla and another writ of mandamus commanding the opposite parties to promote the petitioner as Lecturer in Psychology. An interim order was issued directing the Committee of Management to take appropriate decision on the representation of the petitioner within four weeks. In the meantime, Sri Bhuvnesh Chandra Shukla's promotion on the post of Principal was approved by the D.I.O.S. vide his letter dated 6.6.1997. Thereafter the D.I.O.S. directed the Principal to forward the petitioner's papers regarding his promotion on the post of Lecturer in Psychology. When the said order was not obeyed and the petitioner's representation in compliance of the interim order of the High Court was not considered, he had filed Contempt Petition No. 906 of 1997. On receipt of the notice, the Committee of Management considered the matter and passed a resolution regarding promotion of the petitioner on the post of lecturer in Psychology under the Second Removal of Difficulties Order, 1981. The Principal submitted the relevant papers to the D.I.O.S. The D.I.O.S., however, neither accorded approval nor refused it. As no action was taken within seven days from the date of the receipt of the recommendation, the petitioner's promotion was deemed to have been approved on 27.11.1997. The Committee of Management and the Principal both requested the D.I.O.S. for financial approval but the latter did not communicate any decision. As per provisions of Second Removal of Difficulties Order, 1981, the D.I.O.S. should have taken a decision within seven days, meaning thereby, he could not refuse it after expiry of the said period. In any case, the petitioner was fully entitled for payment of salary of lecturer's grade as he was and is still teaching Intermediate Classes regularly. The inaction on the part of D.I.O.S. is wholly illegal, arbitrary and mala fide. However, under the circumstances, the petitioner, preferred another Writ Petition bearing No. 3963 (S/S) of 1998. The D.I.O.S. vide his order dated 29.7.1998 treated the petitioner's promotion as regular promotion under 50% promotion quota and pointed out that such type of matters were under consideration of the Government and as such it was not possible for him to take any decision in the matter of petitioner's promotion. Accordingly the papers were sent back to the Committee of Management. The D.I.O.S. committed an error by not considering the promotion of the petitioner even though it was in a short-term vacancy. The High Court in the aforesaid writ petition directed the D.I.O.S. to take a decision on the representation of the petitioner regarding his promotion. In compliance of the said direction, the D.I.O.S. passed an order on 6.10.1998 mentioning therein that the petitioner's representation had already been rejected vide letter dated 29.7.1998. The D.I.O.S. further revealed that Sri Bhuvnesh Chandra Shukla who was still working as ad hoc Principal was himself teaching Psychology to Intermediate classes. The D.I.O.S. arrived at a conclusion that there was no need of ad hoc promotion against the post of Lecturer in Psychology in the College. On the basis of this conclusion, the petitioner's representation was rejected vide order dated 6.10.1998 (Annexure-22). The petitioner has challenged this conclusion and has prayed for a writ in the nature of certiorari to quash it. As a matter of fact, the order of the D.I.O.S. is illegal, arbitrary and mala fide as he himself had earlier directed the Manager of the College to forward the petitioner's representation and relevant papers for his promotion to the post of lecturer. If there was any hindrance in promoting the petitioner to the said post, the D.I.O.S. must not have issued any such direction. The said earleir stand of the D.I.O.S. itself contradicts the subsequent decision taken by him by means of the impugned order. Even if the Principal teaches Psychology in Intermediate classes, he alone cannot teach Psychology in all the classes. The petitioner being post-graduate in four subjects is the most qualified teacher and the vacancy should have been available to him alone. Therefore, the legitimate right of the petitioner for being promoted on the post of lecturer should not have been denied on the ground that there was no need of lecturer in Psychology subject. The petitioner moved an application for permission to withdraw his earlier writ petition with liberty to file a fresh petition. His prayer was allowed and as still he had a cause of action, he preferred this writ petition with the prayers for two writs as indicated earlier.

(3.) The D.I.O.S., Lucknow, Ms. Manju Sharma filed her counter-affidavit and asserted therein that there being no requirement of a lecturer in Psychology, the petitioner's claim for ad hoc promotion was rejected by means of order dated 6.10.1998. As a matter of fact, Sri Bhuvnesh Chandra Shukla, who was the senior-most Lecturer, has been teaching the subject of Psychology to Intermediate classes even after his ad hoc promotion as Principal of the College. Moreover, it was a short-term vacancy and there is no provision for appointment against such vacancy in the Commission's Regulations, 1995. However, the appointment of Sri Bhuvnesh Chandra Shukla is on ad hoc basis and unless he is regularised on the said post, the vacancy of lecturer in Psychology will not be deemed to have occurred. In view of this aspect of the matter, the petitioner's representation regarding his claim for ad hoc promotion has been rightly rejected vide order dated 6.10.1998.