PRAKASH SHUKLA Vs. DISTRICT INSPECTOR OF SCHOOLS

JUDGEMENT

(1.) Raja Shanker Sahai Intermediate College, Unnao is a recognized institution under U. P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 are also applicable to this institution. Thus the salary of teaching and non-teaching staff is payable by the State Government. 2 The petitioner was appointed as Assistant Teacher in C. T. grade with effect from 9-10-1974 and his appointment was duly approved by the District Inspector of Schools in accordance with the provisions of U. P. Intermediate Education Act vide orders, dated 9-10-1974 which are contain ed in Annexure-1 to the writ petition. 3. The Deputy Director of Education, Lucknow Region, Lucknow vide orders dated 8-3-1983 created six new posts of teachers in L. T. grade consequent to up gradation of six C. T. grade posts for this institution. A copy of this order is annexed as Annexure 2 to this writ petition. The opposite party No. 5 the Committee of Management of the Institution vide resolution dated 21-3-1982 appointed six C. T. grade teachers in L. T. grade including the petitioner and informed the concerned District Inspector of Schools of the same, who vide his order dated 31-3-1981 approved the same intimating the Committee of Management that these six posts of C. T. grade have been upgraded to L. T. grade and the ad hoc promotion of the teachers named therein has been made and approved in accordance with clause 3 of the U. P. Secondary Education Service Commission (Removal of Difficulties) First Order dated 1-7-1981. A copy of this letter, dated 31-3-1982 has been annexed as Annexure 3 to the writ petition. Petitioner's name finds place at serial No. 6. Pursuant to this up gradation and ad hoc promotion of the six teachers including the petitioner they started drawing their salary in L. T. grade with effect from 8-3-1982. Meanwhile, U. P. Secondary Education Service Commission Act, 1981 came into existence, hence the matter of ad hoc promotion of the petitioner alongwith five others against 40 per cent quota reserved for promotion was referred to the Com mission by the Committee of Management of the respondent Institution. The Commission approved the names of five C. T. grade teachers from the above mentioned letters but the approval of the name of the petitioner was withheld allegedly on the ground that the requisite information regarding him was not made available to the Commission by the Committee of Management. The Commission in these circumstances thereafter instead of approving the ad hoc promotion of the petitioner against the six upgrad ed posts recommended and approved the name of one Sri Chandra Narain Singh, another C. T. grade teacher vide its order dated 19-12-1986 after a lapse of about four years. On receipt of this information, the Committee of Management wrote a letter dated 31-1-1987 to the Commission that it had already forwarded the names of six Assistant Teachers for being pro moted to L. T. grade with due approval of the District Inspector of Schools in which the name of the petitioner was at serial No. 6 but the Commission has instead approved the name of Sri Chandra Narain Singh, when in fact there is no teacher by the name of Sri Chandra Narain Singh in the Institu tion. It was further stated by the Committee of Management in its latter that since the petitioner Sri Prakash Shukla is already working regularly against a newly created vacancy in L. T. grade with effect from 8-3-1982, like five other C. T. grade teachers and is also drawing the salary in that grade, therefore, the Commission should approve his name in place of Sri Chandra Narain Singh for being promoted on ad hoc basis in L. T. grade with effect from the same date i. e. 8-3-1982. It has been averred in the writ petition that the Commission took no action on this letter of the Com mittee of Management and the name of the petitioner was neither approved nor rejected. The District Inspector of Schools who had intially approved ad hoc promotion of the petitioner changed its stand and instead issued instructions to the concerned Assistant Accountant to make payment of salary to the petitioner in the scale of C. T. Grade only and not in L. T. Grade vide his letter dated 2-9-1987, because the Commission had not ap proved the promotion of that petitioner. A copy of this letter has been annexed as Annexure 7 to the writ petition. 4. Aggrieved by this communication and stoppage of payment of salary in L. T. grade, the petitioner approached this Court by filing writ petition No. 6239 (SS) of 1987 praying therein for quashing of order dated 2-9-1987 contained in Annexure 7 to the writ petition and also to issue a writ of mandamus commanding the opposite parties to treat the petitioner as a regular L. T. grade teacher with effect from 8-3-1982 and pay him salary accordingly. The stand of the petitioner in this writ petition is that his promotion to L. T. grade was automatic by way of up gradation from C. T. grade on creation of six posts in L. T. grade and his said promotion was duly approved by the Committee of Management as the District Inspec tor of Schools both. It has also been stated by the writ petitioner in this writ petition that in fact the name of Sri Chandra Narain Singh was recom mended by the Committee of Management against three subsequent vacancies created in L. T. grade after 8-3-1982, and three C. T. grade teachers were accordingly promoted subsequently with effect from 1-1-1983, 8-9-1984 and 19-10-1985. In the alternative, the stance of the petitioner is that even otherwise the ad hoc services of the petitioner in L. T. grade stood regularised pursuant to the enforcement of U. P. Ordinance No. 12 of 1985 and Commission, therefore, had no jurisdiction to either approve or disapprove the promotion of the petitioner. This Court while admitting this writ petition passed the following interim order on 8-9-1987 : "admit issue notice. After adjusting six persons who have been I nominated by the U. P. Secondary Education, the petitioner shall be adjusted and will be allowed to continue in the L. T. grade on one of the remaining posts. " 5. During the pendency of the aforesaid writ petition, C. T grade was declared a dying cadre with effect from 1-1-1986 vide G. O. dated 4-10-1989 and it was stipulated therein that as a result of such declaration, all future appointments subsequent to 3-6-1989 will have to be made only in L. T. grade and no fresh appointment in C. T. grade shall be made after 3-6-1989. It was further stipulated in this G. O. that such existing C. T. grade teachers who have already completed 10 years of service in that grade (C. T.) and possess qualification of trained gradates, shall be treated in L. T. grade and will be paid salary in that pay-scale with effect from 1-1-1986. Pursuant to this provision, the Committee of Management in its meeting dated 11-8-1987 resolved that since the petitioner's name was not approved by the Commission for promotion to the L. T. grade against one of the six vacancies, created for that purpose in the year 1982 and in his place the name of one Sri Chandra Narain Singh was approved for promotion, there fore, pursuant to the aforesaid G. O. , the petitioner should now be given pay in the scale of L. T. grade with effect from 1-1-1986 as he had completed 10 years of service in C. T. grade. The District Inspector of Schools however did not approve this resolution also and rejected the same vide orders dated 10-4-199 i on the ground that since the writ petition No. 6239 of 1987 (SS) preferred by the petitioner is still pending where in the petitioner has claimed his promotion in L. T. grade with effect from 8-3-1982 and is continuing to draw his salary in that grade under the interim direction of this Court, therefore, the decision on payment of salary to him in L. T. grade with effect from 1-1-1986 shall be improper and in violation of the directions of the High Court. A similar order was again passed by the District Inspector of Schools dated 5-11-1992 reiterating his earlier stand of 10-4-1992 in terms that since the petitioner's promotion to L. T. grade has not been approved by the Commission and the petitioner is drawing salary in that grade pursuant to the interim direc tions of this Court, therefore, until and unless the petitioner withdraws his writ petition No. 6239 (SS) of 1987 preferred by him, he shall not be entitled to the benefit of G. O. dated 4-10-1989. The Committee of Manage ment however passed another resolution on 20-9-1992 recommending that the petitioner be treated to have been promoted in L. T. grade atleast with effect from 8-9-1987 when another vacancy has been caused due to death of a L. T. grade teacher Sri Ramesh Chandra Nigam. This recom mendation was however approved by the District Inspector of Schools vide orders dated 12-1-1993. 6. Aggrieved by the denial of L. T. grade with effect from 8-3-1982, the petitioner preferred the second writ petition being writ petition No. 1151 (SS) of 1993 and prayed for quashing of various orders passed by the Dis trict Inspector of Schools as also the recommendations of the Committee of Management to treat him in L. T. grade with effect from 1-1-1986 or 8-9-1987 as contained in Annexures 8, 9, 10 and 11 to this second writ petition and to treat him to have been promoted in L. T. grade with effect from 8-3- 1982 when the post held by him in C. T. grade was upgraded to L. T. grade. 7. Since the stand of the petitioner in this writ petition is also the same as in the earlier writ petition, i. e. that the petitioner is entitled to be treated to have been promoted in L. T. grade with effect from 8-3- 1982 on up gradation of his post therefore, both these writ petitions have been heard together being based on same facts and are being decided by this common judgment. 8. No counter-affidavit was initially filed by the opposite parties in either of the writ petitions. However, on contempt proceedings being initiated for non-compliance of the direction of this order issued in writ petition No. 1151 (SS) of 1993 directing the concerned District Inspector of Schools to examine as to whether the petitioner was eligible for L. T. grade and if so from which date and if District Inspector of Schools finds that the petitioner is eligible for the same, he shall pass necessary orders. It is only in these circumstances, that the District Inspector of Schools passed an order dated 10-7-1995 granting L. T. grade to the petitioner with effect from 8-9-1987. A copy of this order has been placed on record along- with an affidavit of District Inspector of Schools dated 25-7-1995. In the said order, the District Inspector of Schools has for the first time stated that since the Commission found that the petitioner's name is at serial No. 8 of the seniority list of the teachers and that of Sri Chandra Narain Singh was at serial No. 6 as he was senior to him, therefore, the L. T. grade was rightly denied to the petitioner with effect from 8-3- 1982 and the same was given to him with effect from 8-9-1987 in terms of the interim directions of this Court dated 8-9-1987 when a post fell vacant on 21-1-1986 due to death of a teacher. Rebutting the aforesaid reasons as contained in the order passed by the District Inspector of Schools, the petitioner filed a rejoinder-affidavit reiterating the stand taken in the writ petition annexing various documents to show that the petitioner is senior to said Sri Chandra Narain Singh. 9. Learned counsel for the petitioner in support of his contention contended that since six posts of C. T. grade, a dying cadre were upgraded to L. T. grade vide letter dated 8-3-1982, hence in such circumstances, the question of passing an order of promotion or appointment did not arise because the petitioner stood automatically promoted in L. T. grade consequent to the up gradation of the post in question. Merely because the Committee of Management after passing the resolution forwarded/intimated the names of six teachers including the petitioner to the District Inspector of Schools and thereafter the same were referred to the Commission, it would not after the legal position in this regard. The contents of the letter dated 8-3-1982 and 31-3-1982 Annexures 2 and 3 to the writ petition were referred to show that it was clearly stated therein that six C. T. grade posts have been upgraded, hence the petitioner who was working on one of the said C. T. grade posts stood automatically promoted to L. T. grade and accordingly started teaching the students of higher classes and drawing the salary in that grade alongwith five other teachers. This position was not object to by any of the teachers in the institution on the ground of seniority or arty other ground or for that matter, the District Inspector of Schools or any other authority at that time. Therefore, to deny the same after four years by the Commission to whom the names were forwarded was a mere technicality and the Commission has acted arbitrarily and illegally by not approving the resolution of the Committee of Management which was duly accepted and endorsed by the District Inspector of Schools. Petitioner claims that his ad hoc promotion was perfectly valid and the Commission was not required under law to approve the same and, therefore, the rejection by it has PO meaning in the eyes of law. 10. It was next contended by the learned counsel for the petitioner, 1 at once the then District Inspector of Schools had approved the resolution of the Committee of Management approving the names of six C. T. grade teachers whose posts were upgraded, another District Inspector of Schools could not review or alter this position on the ground that probably the earlier approval by the District Inspector Schools was given without check ing the seniority list. Learned counsel submitted that there is nothing on record to support such a stand and the same is based on pure conjectures and is presumptive in nature. The District Inspector of Schools has since referred to am material or document i. e. regarding the seniority among the teachers, hence the stand taken _by him cannot be accepted and that too at such a belated stage. 11. Lastly, it was argued by the learned counsel for the petitioner that the reasoning given by the District Inspector of Schools or the Com mission to allegedly not to approve the ad hoc promotion of the petitioner i. e. the petitioner is junior to Sri Chandra Narain Singh is wholly wrong, baseless and without any material to support the same. Petitioner has annexed several documents to the rejoinder affidavit to show that he is senior to Sri Chandra Narain Singh. The correctness of these documents has not been deni ed before me by either the Committee of Management of the Institution or the District Inspector of Schools. Since the District Inspector of Schools has not even placed on record any document communicated by the Commis sion in this respect, hence mere averment in the order that petitioner's name its at seral No. 8 of the seniority list and that of Sri Chandra Narain Singh at serial No. 6 cannot be accepted in the absence of seniority list being placed on record. Under the rules, the seniority list is to be prepared by the Committee of Management and the same is to be treated authentic Hence in the absence of any material to show that the seniority list prepared by the Committee of Management is wrong, nothing contrary thereto can be accepted. The petitioner continued to work as L. T. grade teacher uninter rupted with effect from 8-3-1982 till the order dated 19-12-1986 was passed in favour of Sri Chandra Narain Singh but in this period of more than four years, no teacher seem to have raised any objection on the said on na tion of the petitioner. The Committee of Management in fact had reiterated its stand/resolution vide letter dated 7-1-1987 that it is the petition who ineligible to be given the L. T. grade with effect from 8-3-1982 and there is no whisper in any document that the petitioner was junior to Sri Chandra Narain Singh. I have also perused the letter dated 27-3-1989 annexed to the rejoinder affidavit which has been sent by the Commission to the Deputy Director of Education declining to approve the L. T grade to the petitioner mentioning the sole ground that since the requisite infor mation regarding the petitioner h is not been forwarded to the Commission in spite of several reminders, therefore, the same could not be granted A reading of this letter leaves me with no doubt that the Commission has not referred to the question of seniority at all and had categorically stated that it could not take a decision because of non-availability of relevant records Lastly, it was urged that even assuming through not admitting that the petitioner was not entitled to L. T. grade with effect from 8-3- 1982 then as per G. O. dated 4-10-1989 he would be entitled to the same with effect from 1-1-1986 and the same has also bean denied to him illegally aid arbitrarily. 12. Learned standing counsel who appeared for opposite parties could not meet any of the arguments advanced by the learned counsel for the petitioner. The averments made in the writ petition and the rejoinder-affidavit have not been rebutted or controverted. In these circumstances I am of the view that the petitioner whose name was since included in the letter dated 8-3-1982 for being promoted in L. T. grade and the same was approved by the Committee of Management and the District Inspector of Schools and the question of seniority vis-a-vis Sr: Chandra Narain Singh was never raised at any stage, hence the Commission acted arbitrarily in not accepting the said recommendation. Merely because the opposite parties failed to forward the requisite papers/documents to the Commission it could not adversely effect the interest of the petitioner in the absence of any proof of his ineligibility for the grade in question. Thus, the orders passed by the District Inspector of Schools dated 2-9-1987 contained in Annexure 7 to writ petition No. 6239 of 1987 and the resolution dated 11-8-1991 and 20-9-1992 passed by the Committee of Management contained in Annexures 8 and 11 and the orders passed by the District Inspector Schools dated 10-4-1992 contained in Annexure 9 and the order dated 12-1-1993 passed by the District Inspector of Schools annexed as part of Annexure 11 in writ petition No. 1151 (S3) of 1993 are hereby quashed-The order dated 10-7-1995 passed by the District Inspector of Schools pur suant to the direction of this Court becomes inconsequential in the light of the aforesaid finding. Both these writ petitions are allowed and a writ of mandamus is issued to the opposite parties to treat the petitioner in L. T. grade with effect from 8-3-1982 and grant him other consequential benefits i. e. grant of selection grade etc. in accordance with law accordingly. No order as to costs. .