RAM DULARI DEVI Vs. JOINT DIRECTOR OF EDUCATION

JUDGEMENT

(1.) This appeal is directed against an order dated 4th March, 1977 dismissing the writ petition No. 7173 of 1997 moved by the petitioners' appellants.

(2.) Kashi Balika Shiksha Niketan Uchattar Madhyamik Vidyalaya, Shivpurwa, Varanasi, a recognised Junior High School was recognised as High School on 28/29th April, 1988. The Regional Inspectress of Girls School (hereinafter referred to as 'RIGS), Varanasi permitted introduction of Class-IX by an order dated 17th May, 1988. By an order passed on 13th November, 1991 the Institution was brought on the list of Institutions receiving grant-in-aid from the State Government and within the purview of the U.P. High School and Intermediate Colleges (Payment of Salary to Teachers and other Employees) Act, 1971 (hereinafter referred to as the Payment of Salary Act), with effect from 1st April, 1991. The Management had forwarded a requisition to the RIGS for the post of Head Mistress and 5 Assistant Teachers on 5th April, 1990 (Annexure-1 to the writ petition) for onward transmission to the U.P. Secondary Education Service Commission (hereinafter referred to as 'The Commission'). On account of continuance of the vacancies, the Management by its letter dated 19th May, 1990 (Annexure-2) addressed to the RIGS sought permission for making adhoc appointment against the said vacancies. The same having not been responded to, the Management decided to advertise the vacancies and the said decision was communicated to the RIGS on 31st May, 1990 (Annexure-3) since submitted to the Office of the RIGS on 2nd June, 1990. The vacancies were advertised in 'Aaj' on 3rd June, 1990 (Annexure-4). The Management had also called for applications from the Regional Employment Exchange for candidates registered in the Employment Exchange, in pursuance whereof the Employment Exchange, Varanasi had forwarded the names of several candidates. The petitioners had applied pursuant to the advertisement and were selected by the Selection Committee, who had prepared a report dated 25th June, 1990 (Annexure-5). The Committee of Management on 25th June, 1990 approved the said selection and appointment letters were issued on the same date and the petitioners joined on that date. The Management forwarded the papers relating to such appointments to the RIGS but the RIGS took no steps on the basis thereof. After the school was brought within the purview of Payment of Salaries Act, with effect from 1st April, 1991, through a letter dated 11th February, 1992 (Annexure-8), the RIGS called upon the Management to submit full details along with original papers pertaining to the employees of the Institution for verification. All papers were submitted to the RIGS on 24th March, 1992 (Annexure-9) by an order dated 26th March, 1992 (Annexure-10), the RIGS sanctioned Payment of Salary to the Head Mistress and two Assistant Teachers. Thereupon the petitioners along with few others had approached this Court in Civil Misc. Writ Petition No. 17216 of 1992 challenging the order dated 26th March, 1992 On 4th May, 1992 (Annexure-11), this Court passed an interim order directing the RIGS to decide the petitioner's representation dated 3rd April, 1992 by a reasoned order within two months from filing of the certified copy of the order along with the copy of the representation. Since the said representation was not decided and no counter affidavit was filed by an order dated 8th December, 1993 (Annexure-12), an interim mandamus was issued directing the RIGS to pay salary to the petitioners from the date of their respective appointment or show cause within the said period. On 16th December, 1993, Counter Affidavit (Annexure-13) was filed. By an order dated 8th May, 1995 (Annexure-14), the interim mandamus was confirmed. In compliance of the order dated 8th May, 1995, the Deputy Director of Education, Varanasi Region-II by an order dated 2nd June, 1995 (Annexure-15) directed Payment of Salary to the petitioners. Pursuant to the said direction, salary was paid to the petitioners from June, 1995 till February, 1996. Since March, 1996, Payment of Salary to the petitioners was stopped. Thereupon, contempt proceeding No. 2409 of 1996 was initiated Pursuant to it, notices were issued on 9th October, 1996 (Annexure-16), Ultimately, by an order dated 7th November, 1996 (Annexure-18), the said writ petition No. 17216 of 1992 was disposed of. In the said judgment, it was held that there are factual controversies with regard to the validity of the appointment of some of the teachers, including the petitioners. Therefore, they were directed to appears before the Joint Director of Education, Varanasi on 2nd December, 1996, along with a certified copy of the judgment as well as any representation that might be made containing all legal and factual averments as well as material documents on which they would rely upon. The Joint Director of Education, Varanasi was directed to decide the same after fixing a date within three weeks and to summon all relevant records. He was further directed to hear all the parties and to give a decision relating to the controversy by a speaking order. Pursuant to this order, the petitioners submitted their representation on 2nd December, 1996 (Annexure-19) as well as list of all documents (Annexure-20) together with further representation made on 17th December, 1996 (Annexure-21) drawing attention to the facts pertaining to the Management of the Institution. The Joint Director conducted the hearing on 21st December, 1996. During the course of hearing, it is alleged that the petitioners were not permitted to submit their entire version. By an order dated 20th January, 1997 (Annexure-22), the Joint Director had held that the petitioners were not entitled to receive salary on account of alleged illegality in their appointment. It is this order, which has since been challenged in the writ petition No. 7173 of 1997 out of which the present appeal arises.

(3.) The writ petition No. 7173 of 1997 arising out of the said order dated 20th January, 1997 was dismissed by the learned Single Judge on 4th March, 1997. The order has since been appealed against in this appeal. While challenging this order, Dr. R. G. Padia, learned Counsel for the petitioner/appellants contended that the appointment was held to be illegal and invalid by the Joint Director only on the ground that advertisement was issued only in one newspaper in violation of the principle of procedure laid down in the case of Radha Raizada and Ors. v. Committee of Management, Vidyawati Darbari Girls Inter College and Ors., (1994) 3 UPLBEC 1551, overlooking the question that the said decision rendered on 12th July, 1994 was held to be effective prospectively and not retrospectively as was held in the case of Ashika Prasad Shukla v. District Inspector of Schools, Allahabad and Anr., (1998) 3 UPLBEC 1722 (DB). He then contends that the appointment of the petitioners were made under Section 18 of the U.P. Secondary Education Service Commission and Selection Boards Act, 1982 (hereinafter referred to as 'Service Commission Act) and, therefore, the provisions contained in the U.P. Secondary Education Service Commission (Removal of Difficulties) Order, 1981 (hereinafter referred to as the 'First Removal of Difficulties Order) cannot be attracted. According to him, the procedure laid down therein was applicable only in cases covered by Paragraph 2 thereof. The present case does not fit in the contingencies specified in Paragraph 2 of the First Removal of Difficulties Order, and as such, outside the scope and ambit thereof and, therefore, the appointment is to be treated as an appointment under Section 18 of the Service Commission Act, which does not provided for any such procedure as has been prescribed in the First Removal of Difficulties Order. He next contends that the procedure as has been laid down in Radha Raizada (supra) cannot be applied in the present case since the selection and appointment were made and given before 12th July, 1994. He next contends that Section 18 of the Service Commission Act and the Removal of Difficulties Orders are totally different and they constitute two different sources of adhoc appointment as were held in the case of Km. Nishi Bhargava v. Deputy Director of Education, (1987) 1 UPLBEC 415 (DB) (Paragraphs 9, 10 & 15) & Pramod Shukla v. District Inspector of Schools, Unnao and Ors., (1987) 2 UPLBEC 1026 (Paragraph 14) and Committee of Management of Sanatan Dharm Intermediate College, Mainpuri v. District Inspector of Schools, Mainpuri and Anr., 1985 UPLBEC 496 (DB) (Para 4). But these judgments were neither considered nor over-ruled in the case of Radha Raizada (supra) and therefore, these cases occupy the field of adhoc appointment till the amendments were made in Section 18 on 14th July, 1992 by the U.P. Amendment Act No. 24 of 1992. Since for the first time in the case of Radha Raizada (supra) it was held that appointment under Section 18 has to be made by-applying the provisions of Removal of Difficulties Order and both of them constitute one integrated source of appointment and that Section 18 recognised the power to give appointment and Removal of Difficulties Order prescribes the procedure, therefore, in absence of retrospectively in the operation of the judgment in the case of Radha Raizada (supra), the finding of the Joint Director relying on the principle laid down in Radha Raizada (supra) cannot be sustained in law. He next contends that the said three decisions were related to short term vacancies yet the principle laid down therein is equally applicable in respect of substantive vacancy since there cannot be any distinction in the application of the principle in respect of short-term vacancy or substantive vacancy. In as much as, in both the cases the appointments are adhoc appointments. In respect of retrospectively of the principle in the case of Radha Raizada (supra), it was contended by Dr. R. G. Padia that it would let loose a difficult situation relating to all appointments made before the said judgments exposed to the mercy of the management, who, if inimically disposed towards a teacher, would raise the issue and dispense with the service of such teacher. In the case of Krishna Nand Dwivedi v. District Inspector of Schools, Ghazipur, (1994) 1 UPLBEC 461 (para 25), it was held that in respect of short terms vacancy, the provisions of Notice Board was illegal and violative of Article 16 of the Constitution of India. But it was held that said judgment would be applied prospectively and not retrospectively and the same logic was adopted in the case of Sanjeev Kumar v. District Inspector of Schools, 1997 ALJ 33, while observing that since the appointment was against a substantive vacancy and, therefore, the principle laid down in the case of Radha Raizada (supra) has to be applied retrospectively. Therefore, the decision in the case of Sanjeev Kumar (supra), which did not take into consideration various other Division Bench judgments, should be regarded as per incurium. He further contends that the appointment has to be continued till a regular appointment is made and, therefore, even if there be some irregularities, "the same would not vitiate the selection of the candidates in as much as if the appointments are held invalid, then again the post would be exposed for another adhoc appointment, which should be avoided as has been held in the case of Sardar Singh v. State of Punjab, AIR 1991 SC 2248 (Para 4). Relying on the case of Bhagawati Prasad v. Delhi State Mineral Development Corporation, AIR 1990 SC 371, Dr. Padia contended that the question has to be seen at the time of initial entry and not subsequently and, therefore, the validity of the procedure is to be examined as it stood at the time of the appointment. Relying on the decision in the case of Ram Swarup v. State of Haryana and Ors., AIR 1978 SC 1536, he contends that it was only an irregularity in the procedure and as such, the appointment may be irregular but cannot be invalid. He then contends that the petitioners have been working since 25th June, 1990 and the only lacuna that exists is that the advertisement was issued only in one newspaper and that names were also invited from the Employment Exchange, therefore such an irregularity should be overlooked. He then contends that the Management could not have challenged on its own the appointment made several years earlier. He also relied on the decision in the case of Khagesh Kumar and Ors. v. Inspector General of Registration and Ors., JT 1995 (7) SC 545, in order to contend that even daily reacted workmen after having worked for three years were held to be entitled for consideration for regulation. On these grounds, he prays that the order dated 20th January, 1997 should be quashed.