This is the Writ Petition Filed Before Allahabad High Court and Assigned to the Court Of Hon'ble Justice Mr. V.K.Shukla and the Counsel Conducting the argument coulld not even open his file to demonstrate the transgreesion of discretionary jurisdiction having inherent lack of Jurisdiction by passing the order having no statutory authoriy to do so, Hon'ble V.K.Shukla on account of previous notional prejudicial attitude has expressed that he will not allow the counsel to place his argument and in case he will conduct the argument , a cost of Rs. 50,000/ - shall be imposed. However only the counter affidavit was called upon without giving the right of argument appearing behore High court. Can there be any other case better than this case for Interim order.Here is The Text of Writ Petition.
IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD.
CIVIL MISC. WRIT PETITION NO. OF 2008
(Under Article 226 of the Constitution of India)
( DISTRICT – VARANASI )
1 Shyam Raj Ram, s/0 Sri Lurkhur Ram, Posted as Chaukidar (Class –IV employee) Ansuiya Mahila Uchchatar Madhyamik Vidyalaya, Chhoti Piyari, Varanasi, resident of Village Titmapur, Post- Sindhaura, Block and Tehsil Pindra, District Varanasi.
1. Smt. Lalsa Tiwari, wife of Arun Kumar Pandey, posted as Paricharika (Class –IV employee) Ansuiya Mahila Uchchatar Madhyamik Vidyalaya, Chhoti Piyari, Varanasi, resident of Village and Post Tiyara, District Varanasi.-----Petitioners.
Versus
1. State of Uttar Pradesh through Secretary, Secondary Education, U.P. Lucknow.
2. Additional Director of Education (Secondary Education) U.P.Allahabad.
3. District Inspector of Schools, II Varanasi.
4. Authorised Controller, Ansuiya Mahila Uchchatar Madhyamik Vidyalaya, Chhoti Piyari, Varanasi.
5. Principal, Ansuiya Mahila Uchchatar Madhyamik Vidyalaya, Chhoti Piyari, Varanasi.
6. Smt. Durgawati Singh, Principal, Ansuiya Mahila Uchchatar Madhyamik Vidyalaya, Chhoti Piyari, Varanasi. ------------------------Respondents.
To,
The Hon’ble the Chief Justice and his other companion Judges of the aforesaid Court.
The humble writ petition of above named petitioners most respectfully showeth as under :-
1. That this is the first writ petition filed by the petitioners challenging the impugned order passed on 8.9.2008 by the authorized controller, the respondent no.4 and the order passed on 5.11.2008 by the District Inspector Of School, the respondent no.3, issued wholly without jurisdiction and in flagrant violation of statutory protection granted to class-IV employee in the educational institutions and no other writ petition has been filed on the same before this Hon’ble Court by the petitioners. The petitioners have received notice of caveat application through Sri Indra Raj Singh, Advocate, and High Court on behalf of the contesting private respondents respondents in the present writ petition.
2. That the institution namely Ansuiya Mahila Uchchatar Madhyamik Vidyalaya, Chhoti Piyari, Varanasi is a recognised institution having grant-in-aid from the State Government and the provisions of U.P. Intermediate Education Act, 1921 read-with U.P. Secondary Education Service Commission Act, 1982 (U.P. Act no.5 of 1982) and provisions of Payment of Salaries Act, 1971 are applicable to the present institution for governing the services of the employees working in the present institution.
3. That the services of the class-IV employee in the institution are protected in regulation 31 read with regulation 35, 36 of Chapter III read-with regulation 100 and there are the safe-guard provided under section 16-G (3) (a) (b) of U.P. Intermediate Education Act, 1921. Once the appointment on the vacant post after due approval of the competent authority vested with the District Inspector of School is granted and the appointment letter is issued for which the approval of the competent authority is obtained for disbursement of the salary under the Payment of Salary Act, there remained no power vested with the District Inspector of School to review its earlier order of approval to the said appointment,
4. That the services of the Class-IV employee can not be dispensed with without initiating the departmental disciplinary proceedings as provided in regulation 35 and 36 of Chapter III of U.P. Intermediate Act, 1921.
5. That only after the prior approval obtained from the competent authority of District Inspector of Schools, the services of Class –IV employee can be terminated by the respondent no. 6 being still suspended principal and continuing on the basis of interim order passed on 26.4.2004..
6. That the appointment letter issued after due approval of the District Inspector of Schools cannot be cancelled subsequently without following the procedure prescribed and in violation of Principle of natural justice, otherwise the order passed by the District Inspector of Schools as is being done in the present case, shall be void-ab-initio and passed without jurisdiction.
7. That the appointment to the petitioner no.1 was given in the reserved vacancy of Scheduled caste, which was lying vacant in the institution in furtherance of permission taken from District Inspector of Schools II, Varanasi to fill up the vacant post of Class IV employee reserved for Schedule Caste quota being filled up and in furtherance thereof after making the selection of Petitioner no.1 from amongst other 7 scheduled caste candidates, who sought for getting employment as Class-IV employee in the institution in furtherance of advertisement published in two newspapers, the appointment was given to the petitioner no.1 on 16.11.2002 and the approval was also granted by an order dated 29.11.2002 followed by another letter issued on 10.12.2002 and in spite these letters when the joining was not given to the petitioner no.1.
8. That the appointment to the petitioner no.1 was given and in furtherance thereof he started realizing the his salary on the aforesaid post, but by the impugned order the appointment of petitioner has been cancelled on the alleged ground that approval so granted by the District Inspector of School, II Varanasi has not been done in accordance with law on alleged non-existent ground of obtaining the consent of Regional Level Committee prior to grant of aforesaid approval and disbursement of salary to the petitioners.
9. That similarly the appointment to the petitioner no.2 was given in furtherance of correspondence made from office of District Inspector of Schools, II Varanasi on 1.7.2004 for filling up vacancy of Paricharika (Class-IV employee) and in furtherance of advertisement issued in the newspaper, out of 11 candidates applied on the said post, the selection of petitioner no.2 was done as per prescribed procedure contemplated in the U.P. Intermediate Education Act and thereafter the petitioner no.2 joined her services and realized salary after due approval of District Inspector of Schools, II and as such the impugned order passed against petitioner no.2 cancelling her appointment simply on the basis of non-existent ground by the impugned order passed on 5.11.2008 falsely alleging therein non-compliance of Government Order dated 19.12.2000, which cannot be sustained within eyes of law.
10. That the details in respect of appointment of petitioner no.1 are that principal of institution wrote a letter to the District Inspector of Schools, II, Varanasi seeking permission to fill up the vacant post of Class-IV employee lying vacant in the institution from amongst candidates of Scheduled caste as the said post was lying in quota of scheduled caste candidate. The District Inspector of Schools, II, Varanasi by an order dated 1.11.2002 granted approval for filling up said vacancy. The true copy of the letter dated 28.10.2002 issued from office of Principal and approval granted by the District Inspector of Schools, II Varanasi on 1.11.2002 are being filed herewith and marked as Annexure no.1 and 2 to this writ petition.
11. That in furtherance of the said requirement the information was send to Employment Exchange Varanasi for filling the post on 4.11.2002 and advertisement were published in the newspapers, on the basis of which 11 persons belonging to Scheduled caste including the name of petitioner no.1 applied for said post and in furtherance thereof on the basis of quality point marks and having all such requirement regarding domicile certificate, Scheduled caste certificate, educational certificate and other requirements pertaining to the vacancy and having no relationship with the management, ultimately the appointment letter was issued to the petitioner no.1 on 16.11.2002 after prior approval of the DISTRICT INSPECTOR OF SCHOOL Varanasi. The true copy of all such documents pertaining to the aforesaid appointment of petitioner no.1 including prior approving order of DISTRICT INSPECTOR OF SCHOOL Varanasi for appointment letter dated 16.11.2002 are being filed herewith and marked as Annexure no.3 and 4 to this writ petition.
12. That when the petitioner no.1 was not allowed to join his duty by the principal of institution then the letters were issued from the office of District Inspector of Schools, II on 29.11.2002 followed by another letter dated 10.12.2002 to the respondent no. 4 and 5 with the direction of District Inspector of Schools to join him. . The true copy of the aforesaid letters dated 29.11.2002, 10.12.2002 issued by District Inspector of Schools, II Varanasi having approval granted to the appointment of petitioner no.1 are being filed herewith and marked as Annexure no.5 collectively to this writ petition.
13. That the City Magistrate, Varanasi appointed as Authorized Controller in the institution raised certain objection on the appointment of petitioner no.1 by issuance of letter dated 16.12.2002. It was stated that the appointment in Dying in Harness are pending in respect of three employees died in harness and the list should have been called upon from Employment Exchange and the application for the said appointment should have been given only to such applicant enrolled in Employment Exchange in district Varanasi. All these 3 points were replied by DISTRICT INSPECTOR OF SCHOOL II in her letter dated 31.12.2002 wherein it has been categorically stated that the vacancy on the post has been filled up in furtherance of the directions issued by departmental higher authority to fill up the under Scheduled caste quota. The aforesaid correspondence made to the authorized controller regarding prior approval of the District Inspector of Schools to the appointment made to the petitioner no.1 and the permission obtained from the higher authority before granting the aforesaid approval by the District Inspector of Schools. The true copy of the letters dated 16.12.2002 and 31.12.2002 issued by authorized controller and District Inspector of Schools II Varanasi respectively are being filed herewith as Annexure no.6 and 7 to this writ petition.
14. That thereafter the authorized controller has given oral permission to the appointment of the petitioner no.1 and after obtaining the prior approval to the said appointment, when the salary was not given to the petitioner no.1, then he requested the District Inspector of Schools to pass the appropriate order for the payment of salary to the petitioner no.1.
15. That by the order passed for disbursement of salary on 2.1.2003 and 3.1.2003 followed by order dated 18.7.2003 and finally on 31.1.2004 due approval of the District Inspector of Schools II, Varanasi, and finally on 31.1.2004, since the prior approval was already granted for selection and appointment permission to the said appointment of petitioner no.1 by the District Inspector of Schools, II Varanasi. The true copy of the order dated 2.1.2003, 3.1.2003, 18.7.2003 and approval order dated 31.1.2004 issued by District Inspector of Schools, II, Varanasi are filed herewith as Annexure no.8 collectively to this writ petition.
16. That the petitioner no.1 submitted his joining for his services on 11.9.2003 and the certificate to the aforesaid joining was also issued to the petitioner on the said date. The petitioner no.1 after getting financial approval to his appointment started realizing salary on Class-IV post during the tenure when Smt. Urmila Singh was Principal of institution and Dr. (Smt.) Malati Rai and Sri Chandrajeet Singh Yadav were posted as the District Inspector of Schools, II, Varanasi at the relevant time.
17. That similarly the appointment of petitioner no.2 was given on the vacant post after due prior approval of District Inspector of School, II Varanasi passed on 28.2.2004 to fill up the vacant post lying vacant on account of retirement of Smt. Rajmani Devi working as Class-IV in the institution. The entire facts in relations to the post, a vacancy was advertised in the newspaper and thereafter the selection from amongst 11 candidates applied for the post has taken place as per requirement of law, since the petitioner no.2 was selected on the said vacant post after the completion of requirement in this regard, the appointment letter was issued to the petitioner no.2 on 19.5.2004. The petitioner no.2 submitted her joining report in furtherance thereof on 22.5.2004 and thereafter the approval was sought from the office of Principal by issuance of letter dated 1.6.2004, on the basis of which approval was granted by District Inspector of Schools, II Varanasi on 1.7.2004. The true copy of the aforesaid documents including the appointment letter dated 19.5.2004, joining report in furtherance thereof on 22.5.2004 and approval letter dated 1.7.2004 are being filed herewith and marked as Annexure no.9, 10 and 11 collectively to this writ petition.
18. That with prior approval of the District Inspector of School for selection process and for giving appointment to the petitioners as per the procedure laid down in Regulation 2 (1) , 101 and 102 in chapter III of U.P. Intermediate Education Act 1921 with approval and permission of District Inspector of School to file up vacancy and to issue appointment letter by than principal of the institution due to the suspension of the respondent no. 6 on the post of principal and correspondents made with authorized controller appointed clearly demonstrate the advertisements made and correspondence issued to employment exchange with number of the candidates applying on the posts, in which the selection of the names of petitioners had taken place and after due selection therein and appointment of the petitioners then suspended principal namely the respondent no. 6, nor the authorized controller subsequently appointed again after so many years nor District Inspector of School have any authority to review the aforesaid selection and cancel the orders of appointments of the petitioners.
19. That prior approval of the District Inspector of School for selection process and for giving appointment to the petitioners as per the procedure laid down in Regulation 2 (1) , 101 and 102 in chapter III of U.P. Intermediate Education Act 1921 with approval and permission of District Inspector of School to file up vacancy as laid down in case of Jagdish Singh versus State of U.P. (2006) 2 UPLBEC 1851 and for such procedure of selection, there is no rider imposed in the Govt. Order dated 19. 12 2000, which can not become the basis for District Inspector of School for cancellation of the appointment of the petitioners from it’s inception.
20. That the respondent no.6 was suspended by an order dated 18.7.2002 on the serious charges of misappropriation and misutilization of the post of Principal of institution. The approval to the aforesaid suspension order was granted on 22.7.2002. She(respondent no.6) filed the writ petition no. 32235 of 2002, which was disposed of on 19.8.2002 by setting aside the order dated 22.7.2002 with a direction to pass the fresh order within 60 days which were expiring on 17.9.2002. After hearing the respondent no.6, the approval to the suspension order was passed on 16.9.2002 and the said order was challenged by filing another writ petition no. 16810 of 2004 by the respondent no.6. The interim order has been passed staying the operation of the said order passed on 16.9.2002 by an order dated 26.4.2004 passed in the said writ petition no. 16180 of 2004.
21. That it has been laid down by the Hon’ble Supreme court in M/S Chamundi Moped Limited Vs. Church of South India Association reported in A.I.R. 1992 S.C. page 1439 that the interim order staying the operation of an order under challenge does not wipe out the existence of the impugned order. Thus the order of the suspension passed against respondent no.6 is still in existence inspite she has been allowed to function as the Principal and to draw her salary. The enquiry on the grievous charge of the misconduct has still not being conducted on account of the pernicious influence exercised by respondent no.6 in making an abuse of her discretionary power and thereby having the transgression of the power so vested in her predecessor Principal in conducting the selection process for making the appointment of the petitioners and to issue the appointment letters after due approval from the office of District Inspector of Schools.
22. That the respondent No. 6 passed orders passed on 7. 9. 2007 and 20.8.2007 respectively in respect of both the petitioners cancelling their appointments, for which she had no authority. These orders were already set aside on 20.9.2007 by the Committee of management through its manager. The order dated 20.9.2007 was already approved by the order passed on 8. 10. 2007 by the District Inspector of School 2nd VARANASI. Even after revocation of the earlier order dated 7. 9. 2007 and 20.8.2007 passed by the same authority of the respondent No. 6 by the Committee of management on 20.9.2007, Which was already accorded approval by the order passed on 8. 10. 2007 by the District Inspector of School (Second) VARANASI. The orders were passed again by the suspended principal on 15.12.2007 and 17.12.2007 even after revocation of the earlier order passed by the same authority, shall be deemed to be redundant, obsolete and passed in inherent lack of Jurisdiction. The true Copy of orders passed on 7. 9. 2007 and 20.8.2007 in respect of both the petitioners, already set aside on 20.9.2007 by the Committee of management through its manager and order dated 20.9.2007 and its approval order passed on 8. 10. 2007 by the District Inspector of School 2nd VARANASI are being filed herewith and marked as Annexure no.12, 13, 14 and 15 to this writ petition.
23. That by the perusal of the aforesaid discussion, which have been discussed in the orders passed on 15.12.2007 and 17.12.2007 even after revocation of the earlier order passed by the same authority on 7. 9. 2007 and 20.8.2007 by the Committee of management on 20.9.2007, it is crystal clear that the respondent no.6 is still continuing on the post of principal on the basis of interim order passed on 26.4.2004. Thus the respondent no.6 simply on account of being permitted to function as the Principal and thereby having the order of District Inspector of Schools granting approval to the suspension order on 16.9.2002 is not empowered to review the order passed by her predecessor and to pass subsequent orders even after the revocation of her earlier order cancelling the appointment of petitioners. The true Copy of orders again passed on15.12.2007 and 17.12.2007 ( even after revocation of her earlier order passed by the same authority on 7. 9. 2007 and 20.8.2007 by the Committee of management on 20.9.2007, and its approval order passed on 8. 10. 2007 by the District Inspector of School 2nd VARANASI) are being filed herewith and marked as Annexure no. 16 and 17 to this writ petition.
24. That once the appointment to the petitioners were given by the principal and approval to the said appointment were accorded by the District Inspector of Schools, the suspended Principal working under the interim orders passed by this Hon’ble Court may become no more empowered to cancel such appointment after the expiry of many years from the date of said appointments.
25. That the cancelation of the appointment letter issued to the petitioners can not be done from the date of said appointments as the respondent no.6 was not functioning at the time of said appointment and remained suspended from the post of principal and as such the orders passed on 15.12.2007 and 17.12.2007 cancelling the appointment of the petitioners by the suspended Principal are the orders issued in gross abuse of the interim order obtained by the respondent no.6 in her writ petition no. 16810 of 2004 by an order dated 26.4.2004 and as such it has been advised to the petitioners that the order obtained by the respondent no.6 on 26.4.2004 in writ petition no. 16810 of 2004 may be challenged by such employees of the institution, who have been subjected to the harassment and victimization of their rights by the respondent no.6.
26. That the discussion made in the orders dated 15.12.2007 and 17.12.2007 passed by the respondent no.6 regarding the aspersions leveled against her superior authority of the District Inspector of Schools in casting the remark against the said authority, which is the approving authority to the appointment given to the principal and have granted the approval to the suspension order passed against respondent no.6.
27. That the aforesaid discussion clearly revealed that the respondent no.6 has no respect to her higher authorities and in spite the charges have been leveled by the authorized controller/City Magistrate, Varanasi, but in furtherance of these charges another authorized controller, who was appointed subsequently passed an order on 14.1.2004, which was revoked by the District Inspector of Schools on 28.1.2004. Thus from the aforesaid discussion made in the order dated 15.12.2007 and 17.12.2007 passed by respondent no.6.
28. That it appears that both these orders have been passed just to wreck the vengeance and to pacify her grudges against then Principal appointed in her place on her being suspended and against the authorized controller as well as against the District Inspector of Schools granting approval to the appointment of the petitioners. It is submitted that this Hon’ble Court may tear the veil in respect of the reprehensible conduct of the respondent no.6 in making an abuse of her power and passed the appropriate order as the petitioners have become the gloater goat due to the personal vendetta of the respondent no.6 and an exemplary cost may be imposed against the respondent no.6.
29. That it appears that order was issue again on 15.12.2007 and 17.12.2007 in respect of petitioner no.1 and 2 respectively cancelling the appointment of petitioner no. 1 w.e.f. 16.11.2002 and appointment of petitioner no.2 on 19.5.2004,
30. That in this manner the order issued on 15.12.2007 and 17.12.2007 are having the aspersion casted upon findings of District Inspector of Schools, II, Varanasi and thereafter in order to take revenge to the action done by then District Inspector of Schools, II, Varanasi Smt. Malti Rai and Sri Chandrajeet Singh Yadav, who remained posted in 2002 and 2004 as District Inspector of Schools, II, Varanasi respectively and aforesaid order cancelling the appointment of petitioners was issued by respondent no.6.
31. That both these orders issued on 15.12.2007 and 17.12.2007 cancelling the appointment of the petitioners from the date of their initial appointment are the orders passed wholly without jurisdiction as it has been laid down by the Hon’ble Apex Court in number of decision that appointment letter issued to the employees after due approval in accordance with law cannot be cancelled w.e.f. from the date of appointment on subsequent occasion. A.I.R. 1990 S.C. Page 307 Sridhar Vs. Nagar Palika Jaunpur and A.I.R. 1991 S.C. 309 Savran Kumar Jha Vs. State of Bihar.
32. That again the petitioners approached to the competent authority vested in the Committee of Management for setting aside the aforesaid orders passed on 15.12.2007 and 17. 12. 2007. It is submitted that orders were passed by the Committee of management through its Manager on 25.2.2008 in respect of order passed on 15.12.2007 and 17. 12. 2007 pertaining to cancellation of appointment of petitioners by allowing the aforesaid representation. The true copy of the order dated 25.2.2008 is being filed herewith and marked as Annexure no.18 and 19 to this writ petition.
33. That thereafter again the authorized controller was appointed sometime in April – May 2008 and he passed an order on 8.9.2008 stating therein that the order passed on 25.2.2008 by the Committee of Management was subsequent revoked. However, the existence of any such application has been denied by the manager of institution, who passed the order dated 25.2.2008. However, no decision could have been taken by authority concerned in respect of matter which was already decided by the competent authority on 25.2.2008, when the appointment of authorized controller was not done even by the time of passing such order by Committee of Management.
34. That the authorized controller has passed the order dated 8.9.2008 without application of mind regarding the existence of order passed by the committee of management revoking the earlier orders of the respondent no.6 dated 7.9.2007 the detailed order passed on 20.9.2007 by the committee of management. The respondent no.6 was having no power to pass such order. It is submitted that she herself remained suspended w.e.f. 18.7.2002 and her suspension was approved by District Inspector of Schools, II Varanasi on 22.7.2002 against which she filed Civil Misc. Writ Petition No. 32235 of 2002 on which an order was passed on 19.8.2002 directing the District Inspector Schools, II, Varanasi to pass approval order. It appears that without obtaining any order from office of District Inspector of Schools, II Varanasi, an order was obtained from the authorized controller on 14.1.2004, which was set aside on 28.1.2004 regarding reinstatement of respondent no.6.
35. That from the detail of discussion mentioned in the order dated 15.12.2007 and 17.12.2007 cancelling appointment of petitioners w.e.f. 16.11.2002 and 19.5.2004 respectively, the respondent no.6 herself in continuing as Principal of institution in pursuance of order passed on 26.4.2004 in Civil Misc. Writ Petition no. 16810 of 2004 staying the operation of Suspension Order passed on 28.1.2004 and 16.9.2002 by District Inspector of Schools, II, Varanasi.
36. Thus the respondent no.6 was having no authority to pass the subsequent orders on 15.12.2007 and 17.12.2007 in derogations to the orders passed by Committee of management on 20.9.2007 allowing the appeal filed by the petitioners. Subsequently the order passed by the committee of management on 25.2.2008 may not be subjected to be revoked as this order was not passed during the period when the authorized controller took over the charge and the application dated 1.3.2008relied upon in the impugned order dated 8.9.2008 passed by the authorized controller stating therein that there exists some application filed on 1.3.2008, which remain non-existent in view of the affidavit filed by the manager subsequently revoking the existence of her letter dated 1.3.2008 and filing the affidavit in this regard. The true copy of the affidavit dated 10.3.2008 filed by Manager is filed herewith and marked as Annexure no.20 to this writ petition.
37. That when the manager of the committee of the institution had already ceased to remain in power and became ex-officio after having the appointment of the authorized controller in the month of April – May,2008 to manage the institution, then the previous management or its Manager Smt. Geeta Devi Dwivedi was not empowered to pass some other affidavit on 20.6.2008 revoking her earlier order passed on 25.2.2008.
38. That it is submitted that the alleged affidavit dated 20.6.2008 relied upon in the impugned order is totally fabricated and does not have any credit or authority to revoke its earlier order passed on 25.2.2008. No such power is vested with the manager to file any affidavit denying the existence of her earlier order passed on behalf of the committee of management on 25.2.2008.
39. That after the order dated 25.2.2008 already remained in existence at the time of appointment of the authorized controller, the authorized controller has ceased to pass any subsequent order on 8.9.2008 simply on the behest of respondent no.6 and to provide the sanctity to the obsolete and redundant orders passed on 15.12.2007 and 17.12.2007 by the respondent no.6.
40. That it is submitted that no opportunity of hearing was ever given, nor the authorized controller was empowered to pass any order in absence of any appeal filed before the said authority by the petitioners as the order dated 25.2.2008 became final revoking the orders dated 15.12.2007 and 17.12.2007.
41. That the District Inspector of Schools wrote many letters on 8.5.2008 relying upon the decision of committee of management passed on 25.2.2008, it was stated that when the order passed by respondent no.6 on 15.12.20007 and 17.12.2007 have been set aside by the decision of the management on 25.2.2008, but still then the payment of salary have not given to the petitioners and as such the explanation was sought on 8. 5. 2008from the office of the authorized controller. The true copy of the order dated 8.5.2008 issued by District Inspector of School is being filed herewith as Annexure no. 21 to this writ petition.
42. That when the respondent No. 6 concocted the affidavit of out going manager on 20.6.2008 as the decision of committee of management was already earlier on 25.2.2008, then the DISTRICT INSPECTOR OF SCHOOL by issuance of an order dated 1.9.2008 had categorically stated that filing of such affidavit after 3 months by the Principal is not justified and there may not be any existence of such affidavit alleged to have been given on 20.6.2008 by the out going manager after being ousted from her post of the management and as such there is no existence or any sanctity to the said affidavit relied upon by the Principal and there after the DISTRICT INSPECTOR OF SCHOOL sought the explanation from authorized controller on 1.9.2008 within 3 days as to what steps have been taken in the light of the decision of the committee of management passed on 25.2.2008. The true copy of the letter dated 1.9.2008 issued by DISTRICT INSPECTOR OF SCHOOL seeking explanation from authorized controller regarding non-compliance of the order dated 25.2.2008 passed by the committee of management is being filed herewith as Annexure no. 22 to this writ petition.
43. That the order has been passed on 8.9.2008 by the authorized controller in gross defiance of the order passed by the District Inspector of School ( second) Varanasi on 8.5.2008 and on 1.9.2008. The District Inspector of School ( second) Varanasi has ceased to look into the matter regarding the validity of the orders passed on 15.12.2007 and 17.12.2007 cancelling the appointment of the petitioners and to rely upon these orders in his order dated 8.9.2008. After the order passed on 25.2.2008 by then committee of management revoking the order dated 15.12.2007 and 17.12.2007 passed by respondent no.6 and the said order was taken note by the approving authority on 1.9.2008 with a direction to provide the explanation from the authorized controller, the order dated 8.9.2008 passed by the authorized controller and relying upon non-existent orders passed by respondent no.6, is an order which is not only arbitrary and passed in flagrant violation of Principles of natural justice, but the said order has been passed in inherent lack of jurisdiction and by misuse of his power for which the strong action may be taken against the said authority. The true copy of the order dated 8.9.2008 passed by Authorized controller is being filed herewith and marked as Annexure no.23 to this writ petition.
44. That the impugned order passed on 5.11.2008 is issued in inherent lack of jurisdiction by circumventing the procedure prescribed for taking the departmental proceedings to dispensed with services of the class-IV employee of the institution.
45. That it is submitted that when the appeal filed by petitioners was allowed on 25.2.2008 and the DISTRICT INSPECTOR OF SCHOOL by his order dated 8.5.2008 and 1.9.2008 had already taken note of the said order regarding the existence of the revocation order to the order passed on 15.12.2007 and 17.12.2007.
46. That even the authorized controller was not empowered to undo the action of the committee of management taken place on 25.2.2008 when the authorized controller was not even given appointment to look after the management of the institution. It is settled principle of law that the District Inspector of School. is not having any authority to dispensed with services of class –IV employee in the institution without having proper inquiry or disciplinary enquiry being conducted in furtherance with requirement of the provisions of regulation 35 and 36 read with regulation 100 in the light of regulation 31 of Chapter III of the U.P. Intermediate Education Act.
47. The DISTRICT INSPECTOR OF SCHOOL by no stretch of imagination being the approving authority can behave like that of the authority to the punishing authority as there is no such power vested with the DISTRICT INSPECTOR OF SCHOOL to impose punishment directly or to withhold the approval of the salary bill for which the approval of the competent authority of the predecessor DISTRICT INSPECTOR OF SCHOOL posted on the same post has already been given. The order passed by the DISTRICT INSPECTOR OF SCHOOL is in the inherent lack of jurisdiction and liable to be set aside.
48. That all these orders have been passed wholly without jurisdiction as the services of permanent employees serving in the institution having their due approval to their appointment, cannot be terminated without having prior approval from District Inspector of Schools. It is submitted that law in this regard is very clear that once the appointment was given which has been duly approved by the educational authority in accordance with provisions of law, no subsequent authority holding the office of predecessor could not revoke or review the order by its successor taking charge on the same post.
49. That there is no power vested with District Inspector of Schools, II Varanasi to review its own order passed in respect of granting approval to the appointment of petitioners. Thus the entire proceedings conducted on behest of respondent no.6 were the proceedings conducted without jurisdiction by the said authority.
50. That the authorized controller so appointed is not empowered to review the earlier order passed by the Committee of management through its manager in due discharge of their duties in accordance with provisions of U.P. Intermediate Education Act, 1921 read-with other enactment, wherein the duties assigned upon the statutory authority in furtherance of provisions of statutory provisions may not be circumvented, prejudiced, interfered with and nullified
51. That the entire proceedings conducted by respondent no.6 are wholly illegal, arbitrary and without jurisdiction to dispensed with services of petitioners.
52. That in this manner and the back grounds of order passed on 5.11.2008 is an order passed without jurisdiction. It was the duty of District Inspector of Schools, II, Varanasi to look into the matter over all from back ground of all such facts before passing the said order on 5.11.2008 as to whether the same authority of District Inspector of Schools II Varanasi may allege that approval granted by his predecessor in the year 2002 and 2004 was not in accordance with provisions of law.
53. That the District Inspector of Schools, II, Varanasi, the respondent no.3 passed the impugned order on 5.11.2008 cancelling the appointment of both the petitioners. The true copy of the impugned order dated 5.11.2008 passed by respondent no.3 is being filed herewith and marked as Annexure no.24 to this writ petition.
54. That as already submitted that there is no rider laid down upon statutory power conferred with District Inspector of Schools in furtherance of disbursement of salary to the teachers and other employees of institution after given prior approval to class IV employee before appointment in view of his power conferred in regulation 2 (1), 31, and 101 of chapter III of U.P. Intermediate Act, 1921 and as per provisions of section 3 of Payment of salary Act by the Govt. Order dated 19. 12. 2000, nor other authority has been inducted to provide any cloud of uncertainty to exercise such power conferred to the District Inspector of Schools as that of power of State Government under section 3 of Payment of Salaries Act, 1971.
55. That the aforesaid power is not confined, nor it could have been confined by other Govt. order including Govt. Order issued on 19.12.2000 having a further rider upon statutory power conferred by legislation to District Inspector of Schools and no other authority including Regional Level Committee comprising of Joint Director of Education has got power to provide any rider by having another approval within the power of the approval granted by the said authority. Thus the impugned order passed on 5.11.2008 is wholly without jurisdiction.
56. That It has been said that even after the settled proposition made in number of judgments that the administrative authorities are not empowered to review their order, nor approving authority can revoke approval granted by his predecessor, nor he can function as that of punishment authority. There is no rider imposed by the govt. order issued on 19.12.2000 to circumvent the power conferred upon the state govt. for the disbursement of salary to the employees under section 3 readwith section 10 of payment of salary Act, which is conferred only upon the DISTRICT INSPECTOR OF SCHOOL as the power delegated by the State Govt. The true copy of the Govt. order dated 19.12.2000 is filed herewith and marked as Annexure no. 25 to this writ petition.
57. That the following substantial question of law are summarised for the kind perusal pertaining to the attack made upon the impugned orders passed by the respondents no. 3, 4 and 6.
(a) That the District Inspector of School is only approving authority and is not having the power of punishing authority. Regulation 31 of Chapter III of U. P. Intermediate Act, 1921( vijay Shankar Mishra Versus DISTRICT INSPECTOR OF SCHOOL Gorakhpur (1989) 1 UPLBEC 365)
(b) That even after the orders passed by the appointing authority of the principal passed on 7. 9.2007 and 20.8.2007 were revoked on 20. 9.2008 by the order of committee of management through its Manager and the then DISTRICT INSPECTOR OF SCHOOL has accorded approval and taken note of the said revocation order in his order dated 8. 10. 2007, no order could have been passed by the respondent No. 6, functioning on the post of principal in furtherance of Interim order of this Hon’ble Court. Hanuman Prasad Versus District Inspector Of Schools, Banda and others 1999 ( 3) A. W. C. 2161
(c) That the services of the class-IV employee in the institution are protected in regulation 31 of Chapter III read-with regulation 100 and there are the safe-guard provided under section 16-G (3) (a) (b) of U.P. Intermediate Education Act, 1921.
(d) That Once the appointment on the vacant post after due approval of the competent authority vested with the District Inspector of School is granted and the appointment letter is issued for which the approval of the competent authority is obtained for disbursement of the salary under the Payment of Salary Act, there remained no power vested with the District Inspector of School to review its earlier order of approval to the said appointment. ( Gur Prasad Versus DISTRICT INSPECTOR OF SCHOOL and another ( 1994) 2 UPLBEC 699( Luck. Bench))
(e) That the power of the District Inspector of School to make the payment of salary is not subject to any authority, but have been delegated to him under U.P. Act no. 24 of 1971 by the State Govt. in the institution under the grant-in-aid list and the Regional Level Committee constituted in furtherance of Govt. order dated 19.12.2000 by the perusal of Clause 5 of last paragraph does not authorize or confer any other authority to exercise such power. (Ajit Ram Vs. DISTRICT INSPECTOR OF SCHOOL Ballia 2005 (3) U.P.L.B.E.C. 2516).
(f) That the respondent no.6 was suspended by an order dated 18.7.2002, the approval to the suspension order was passed on 16.9.2002 and the said order was challenged by filing another writ petition no. 16810 of 2004 by the respondent no.6. The interim order has been passed staying the operation of the said order passed on 16.9.2002 by an order dated 26.4.2004 passed in the said writ petition no. 16180 of 2004.
(g) That the interim order staying the operation of an order under challenge does not wipe out the existence of the impugned order of suspension passed against the respondent NO. 6. Thus the order of the suspension passed against respondent no.6 is still in existence in spite she has been allowed to function as the Principal and to draw her salary.( M/S Chamundi Moped Limited Vs. Church of South India Association reported in A.I.R. 1992 S.C. page 1439)
(h) The orders were passed again by the respondent No. 6, (still the suspended principal) on 15.12.2007 and 17.12.2007 even after revocation of the earlier order passed by the same authority passed on earlier on 7. 9. 2007 and 20.8.2007 by the Committee of management on 20.9.2007, and its approval order passed on 8. 10. 2007 by the District Inspector of School 2nd VARANASI, shall be deemed to be redundant, obsolete and passed in inherent lack of Jurisdiction.
(i) That both these orders issued on 15.12.2007 and 17.12.2007 cancelling the appointment of the petitioners from the date of their initial appointment are the orders passed wholly without jurisdiction as it has been laid down by the Hon’ble Apex Court in number of decision that appointment letter issued to the employees after due approval in accordance with law cannot be cancelled w.e.f. from the date of appointment on subsequent occasion. (A.I.R. 1990 S.C. Page 307 Sridhar Vs. Nagar Palika Jaunpur and A.I.R. 1991 S.C. 309 Savran Kumar Jha Vs. State of Bihar).
(j) That the aforesaid orders passed on 15.12.2007 and 17. 12. 2007 dispensing the services of the petitioners passed by the respondent no. 6 were in itself bad as before passing any such order, the prior approval of district Inspector of School were required before passing such order as per provisions of regulation 31 and 100 of Chapter III of U.P. Intermediate Act, 1921( Daya Shankar Tiwari Versus Principal and others 1998 (2) UPLBEC 1101.
(k) That the petitioners approached to the competent authority vested in the Committee of Management for setting aside the aforesaid orders passed on 15.12.2007 and 17. 12. 2007. It is submitted that orders were passed by the Committee of management through its Manager on 25.2.2008 in respect of order passed on 15.12.2007 and 17. 12. 2007 pertaining to cancellation of appointment of petitioners by allowing the aforesaid representation.
(l) That the impugned order dated 8.9.2008 passed by the authorized controller relying upon the non existent orders passed on 15.12.2007 and 17. 12. 2007 pertaining to cancellation of appointment of petitioners is also void as before passing any such order, the prior approval of district Inspector of School were required before passing such order as per provisions of regulation 31 and 100 of Chapter III of U.P. Intermediate Act, 1921 ( principal , Rastriya Inter College, Maharajganj and another Versus Maharajganj 2000 (1) A. W. C. 831
( D.B.)
(m) That the authorized controller was appointed sometime in April – May 2008 and he passed an order on 8.9.2008 stating therein that the order passed on 25.2.2008 by the Committee of Management was subsequent revoked by filing application on 1. 3. 2008 and also some affidavit on 20.6.2008.
(n) That the existence of any such application has been denied by the manager of institution, who passed the order dated 25.2.2008. However, no decision could have been taken by authority concerned in respect of matter which was already decided by the competent authority on 25.2.2008, when the appointment of authorized controller was not done even by the time of passing such order by Committee of Management.
(o) That the order passed by the committee of management on 25.2.2008 may not be subjected to be revoked as this order was not passed during the period when the authorized controller took over the charge and the affidavit relied upon in the impugned order dated 8.9.2008 passed by the authorized controller.
(p) That no opportunity of hearing was ever given, nor the authorized controller was empowered to pass any order in absence of any appeal filed before the said authority by the petitioners as the order dated 25.2.2008 became final revoking the orders dated 15.12.2007 and 17.12.2007.
(q) That the District Inspector of Schools wrote many letters on 8.5.2008 relying upon the decision of committee of management passed on 25.2.2008, it was stated that when the order passed by respondent no.6 on 15.12.20007 and 17.12.2007 have been set aside by the decision of the management on 25.2.2008, but still then the payment of salary have not given to the petitioners and as such the explanation was sought from the office of the authorized controller.
(r) That after the order passed on 25.2.2008 by then committee of management revoking the order dated 15.12.2007 and 17.12.2007 passed by respondent no.6 and the said order was taken note by the approving authority on 1.9.2008 with a direction to provide the explanation from the authorized controller.
(s) That the order dated 8.9.2008 passed by the authorized controller and relying upon non-existent orders passed by respondent no.6, is an order which is not only arbitrary and passed in flagrant violation of Principles of natural justice, but the said order has been passed in inherent lack of jurisdiction and by misuse of his power for which the strong action may be taken against the said authority.
(t) That the impugned order passed on 5.11.2008 is issued in inherent lack of jurisdiction by circumventing the procedure prescribed for taking the departmental proceedings to dispensed with services of the class-IV employee of the institution.
(u) That the appeal filed by petitioners was allowed on 25.2.2008 and the DISTRICT INSPECTOR OF SCHOOL by his order dated 8.5.2008 and 1.9.2008 had already taken note of the said order regarding the existence of the revocation order to the order passed on 15.12.2007 and 17.12.2007.
(v) That the authorized controller was not empowered to undo the action of the committee of management taken place on 25.2.2008 when the authorized controller was not even given appointment to look after the management of the institution.
(w) That the Impugned order passed on 5.11.2008 is an order passed without jurisdiction. It was the duty of District Inspector of Schools, II, Varanasi to look into the matter over all from back ground of all such facts before passing the said order on 5.11.2008 as to whether the same authority of District Inspector of Schools II Varanasi may allege that approval granted by his predecessor in the year 2002 and 2004 was not in accordance with provisions of law. (Dr. M. S. Mudhol Versus Shri S.D. Helegkar and Others JT 1993 (4) S. C. 143)
(x) That no opportunity of personal hearing was given to the petitioners, nor representation filed by the petitioners have been taken into consideration by the authorized controller before passing impugned orders on 8. 9. 2008 and also on 5. 11. 2008 bythe respondent no. 3, thus the impugned order is passed in violation of the principle of natural justice and also in violation of articles 14, 16 and 21 of the constitution of India. (D. K. Yadav versus M/ s J. M. A. industry JT 1993 S.C. Vol. 3 page 617)
(y) That prior approval of the District Inspector of School for selection process and for giving appointment to the petitioners as per the procedure laid down in Regulation 2 (1) , 101 and 102 in chapter III of U.P. Intermediate Education Act 1921 with approval and permission of District Inspector of School to file up vacancy as laid down in case of Jagdish Singh versus State of U.P. (2006) 2 UPLBEC 1851 and for such procedure of selection, there is no rider imposed in the Govt. Order dated 19. 12 2000, which can not become the basis for District Inspector of School for cancellation of the appointment of the petitioners from it’s inception.
58. Thus the alleged G.O. dated 19.12.2000 is not empower to revoke order of approval to the appointments given by the DISTRICT INSPECTOR OF SCHOOL for which it has been stated in the order dated 31.12.2002 that the permission was taken from the higher authorities to start the selection process for filling up the vacant posts of class-IV employees in the institution.
59. That the petitioners have submitted their representation to the Additional Director of Education by stating the facts pertaining to their grievances and sought for the redressal of the same by the higher authorities. It has been submitted that the respondent no.6 in collusion with the authority of respondent no. 3 to 5 is acting in gross violation of the provisions of the statutory power by passing the illegal orders just to pacify their grudges with their superior authorities. The true copy of representation dated 8.11.2008 to the respondent no.2 are filed herewith and marked as Annexure no. 26 to this writ petition.
60. That the petitioners may not be deprived of their right to continue is service wherein they were discharging their duties after due selection of their appointment and the approval to the aforesaid appointment have already been given by the predecessor District Inspector of Schools, which is only competent authority provided under the statute of Payment of Salary Act and thus the successor District Inspector of School Sri Shiv Badan Dwivedi who passed the impugned order on 5.11.2008 is not authorized to record findings on behest of respondent no.6 that sanction from Regional Level Committee of Joint Director of Education has not been accorded at the time of granting approval to the appointment of petitioners.
61. That no opportunity of personal hearing was given to the petitioners, nor representation filed by the petitioners has been taken into consideration by the authorized controller before passing impugned orders on 8. 9. 2008 and also on 5. 11. 2008 by the respondent no. 3, thus the impugned order is passed in violation of the principle of natural justice and also in violation of articles 14, 16 and 21 of the constitution of India. (D. K. Yadav versus M/ s J. M. A. industry JT 1993 S.C. Vol. 3 page 617)
62. That the petitioners have categorically stated that petitioners have not concealed any facts, nor obtained their appointment by committing any fraud upon selection committee.
63. That the petitioners have been advised to submit that the authorized Controller so appointed in the month of April – May of 2008 is not empowered to review the orders passed by the committee of management through it’s manager passed on 20.9.2007 or 25. 2. 2008 and there is no power vested with the authorized Controller so appointed in the month of April – May of 2008 to accord approval to the non existent orders passed on 15. 12. 2007 and 17. 12. 2007 by the respondent no. 6.
64. That the petitioners have been advised to submit that the authorized Controller can not step up in the shoe of the jurisdiction power exercised by the committee of management through it’s manager, and thus the order passed by authorized controller on 8. 9.2008 is void ab initio.
65. That it is submitted that the Hon’ble Supreme Court in Dr. M.S. Mudhol case reported in J.T. 1993 (4) S.C. Page 143 has laid down that appointment granted by competent authority may not be revoked subsequently even if there are some irregularity in granting approval at the time of said appointment.
66. That the petitioners are still discharging their duties on their respective posts of Peon in the institution. The order passed on 8.9.2008 and order dated 5.11.2008 has yet not given effect and as such the effect and operation of impugned order passed on 8.9.2008 and order dated 5.11.2008 passed by District Inspector of Schools, II, Varanasi may be stayed by this Hon’ble Court in the interest of justice.
67. That under these circumstance, it is expedient in the interest of justice that this Hon’ble court may graciously be pleased to quash the impugned orders dated 8.9.2008 passed by authorized controller and the order dated 5.11.2008 passed by respondent no.3 .
68. That the petitioners have got no other alternative remedy except to approach this Hon’ble Court by way of filing the present writ petition under Article 226 of the Constitution of India, on the following amongst other grounds :-
GROUNDS
(a) Because, the District Inspector of School is only approving authority and is not having the power of punishing authority. Regulation 31 of Chapter III of U. P. Intermediate Act, 1921( vijay Shankar Mishra Versus DISTRICT INSPECTOR OF SCHOOL Gorakhpur (1989) 1 UPLBEC 365)
(b) Because, even the orders passed by the appointing authority of the principal passed on 7. 9.2007 and 20.8.2007 were revoked on 20. 9.2008 by the order of committee of management through its Manager and the then DISTRICT INSPECTOR OF SCHOOL has accorded approval and taken note of the said revocation order in his order dated 8. 10. 2007, no order could have been passed by the respondent No. 6, functioning on the post of principal in furtherance of Interim order of this Hon’ble Court.
(c) Because, the services of the class-IV employee in the institution are protected in regulation 31 of Chapter III read-with regulation 100 and there are the safe-guard provided under section 16-G (3) (a) (b) of U.P. Intermediate Education Act, 1921.
(d) Because, Once the appointment on the vacant post after due approval of the competent authority vested with the District Inspector of School is granted and the appointment letter is issued for which the approval of the competent authority is obtained for disbursement of the salary under the Payment of Salary Act, there remained no power vested with the District Inspector of School to review its earlier order of approval to the said appointment. ( Gur Prasad Versus DISTRICT INSPECTOR OF SCHOOL and another ( 1994) 2 UPLBEC 699)
(e) Because, the power of the District Inspector of School to make the payment of salary is not subject to any authority, but have been delegated to him under U.P. Act no. 24 of 1971 by the State Govt. in the institution under the grant- in-aid list and the Regional Level Committee constituted in furtherance of Govt. order dated 19.12.2000 by the perusal of Clause 5 of last paragraph does not authorize or confer any other authority to exercise such power. (Ajit Ram Vs. DISTRICT INSPECTOR OF SCHOOL Ballia 2005 (3) U.P.L.B.E.C. 2516).
(f) Because, the respondent no.6 was suspended fro the post of principal by an order dated 18.7.2002, the approval to the suspension order was passed on 16.9.2002 and the said order was challenged by filing another writ petition no. 16810 of 2004 by the respondent no.6. The interim order has been passed staying the operation of the said order passed on 16.9.2002 by an order dated 26.4.2004 passed in the said writ petition no. 16180 of 2004.
(g) Because, the interim order staying the operation of an order under challenge does not wipe out the existence of the impugned order of suspension passed against the respondent NO. 6. Thus the order of the suspension passed against respondent no.6 is still in existence inspite she has been allowed to function as the Principal and to draw her salary.( M/S Chamundi Moped Limited Vs. Church of South India Association reported in A.I.R. 1992 S.C. page 1439)
(h) Because, orders were passed again by the respondent No. 6, (still the suspended principal) on 15.12.2007 and 17.12.2007 even after revocation of the earlier order passed by the same authority passed on earlier on 7. 9. 2007 and 20.8.2007 by the Committee of management on 20.9.2007, and its approval order passed on 8. 10. 2007 by the District Inspector of School 2nd VARANASI, shall be deemed to be redundant, obsolete and passed in inherent lack of Jurisdiction.
(i) Because, both these orders issued on 15.12.2007 and 17.12.2007 cancelling the appointment of the petitioners from the date of their initial appointment are the orders passed wholly without jurisdiction as it has been laid down by the Hon’ble Apex Court in number of decision that appointment letter issued to the employees after due approval in accordance with law cannot be cancelled w.e.f. from the date of appointment on subsequent occasion. (A.I.R. 1990 S.C. Page 307 Sridhar Vs. Nagar Palika Jaunpur and A.I.R. 1991 S.C. 309 Savran Kumar Jha Vs. State of Bihar).
(j) Because, the petitioners approached to the competent authority vested in the Committee of Management for setting aside the aforesaid orders passed on 15.12.2007 and 17. 12. 2007. It is submitted that orders were passed by the Committee of management through its Manager on 25.2.2008 in respect of order passed on 15.12.2007 and 17. 12. 2007 pertaining to cancellation of appointment of petitioners by allowing the aforesaid representation.
(k) Because, the authorized controller was appointed sometime in April – May 2008 and he passed an order on 8.9.2008 stating therein that the order passed on 25.2.2008 by the Committee of Management was subsequent revoked by filing application on 1. 3. 2008 and also some affidavit on 20.6.2008.
(l) Because, the existence of any such application has been denied by the manager of institution, who passed the order dated 25.2.2008. However, no decision could have been taken by authority concerned in respect of matter which was already decided by the competent authority on 25.2.2008, when the appointment of authorized controller was not done even by the time of passing such order by Committee of Management.
(m) Because, the order passed by the committee of management on 25.2.2008 may not be subjected to be revoked as this order was not passed during the period when the authorized controller took over the charge and the affidavit relied upon in the impugned order dated 8.9.2008 passed by the authorized controller.
(n) Because, no opportunity of hearing was ever given, nor the authorized controller was empowered to pass any order in absence of any appeal filed before the said authority by the petitioners as the order dated 25.2.2008 became final revoking the orders dated 15.12.2007 and 17.12.2007.
(o) Because, the District Inspector of Schools wrote many letters on 8.5.2008 relying upon the decision of committee of management passed on 25.2.2008, it was stated that when the order passed by respondent no.6 on 15.12.20007 and 17.12.2007 have been set aside by the decision of the management on 25.2.2008, but still then the payment of salary have not given to the petitioners and as such the explanation was sought from the office of the authorized controller.
(p) Because, after the order passed on 25.2.2008 by then committee of management revoking the order dated 15.12.2007 and 17.12.2007 passed by respondent no.6 and the said order was taken note by the approving authority on 1.9.2008 with a direction to provide the explanation from the authorized controller.
(q) Because, the order dated 8.9.2008 passed by the authorized controller and relying upon non-existent orders passed by respondent no.6, is an order which is not only arbitrary and passed in flagrant violation of Principles of natural justice, but the said order has been passed in inherent lack of jurisdiction and by misuse of his power for which the strong action may be taken against the said authority.
(r) Because, the impugned order passed on 5.11.2008 is issued in inherent lack of jurisdiction by circumventing the procedure prescribed for taking the departmental proceedings to dispensed with services of the class-IV employee of the institution.
(s) Because, the appeal filed by petitioners was allowed on 25.2.2008 and the DISTRICT INSPECTOR OF SCHOOL by his order dated 8.5.2008 and 1.9.2008 had already taken note of the said order regarding the existence of the revocation order to the order passed on 15.12.2007 and 17.12.2007.
(t) Because, the authorized controller was not empowered to undo the action of the committee of management taken place on 25.2.2008 when the authorized controller was not even given appointment to look after the management of the institution.
(u) Because, the Impugned order passed on 5.11.2008 is an order passed without jurisdiction. It was the duty of District Inspector of Schools, II, Varanasi to look into the matter over all from back ground of all such facts before passing the said order on 5.11.2008 as to whether the same authority of District Inspector of Schools II Varanasi may allege that approval granted by his predecessor in the year 2002 and 2004 was not in accordance with provisions of law.
(v) Because, prior approval of the District Inspector of School for selection process and for giving appointment to the petitioners as per the procedure laid down in Regulation 2 (1) , 101 and 102 in chapter III of U.P. Intermediate Education Act 1921 with approval and permission of District Inspector of School to file up vacancy as laid down in case of Jagdish Singh versus State of U.P. (2006) 2 UPLBEC 1851 and for such procedure of selection, there is no rider imposed in the Govt. Order dated 19. 12 2000, which can not become the basis for District Inspector of School for cancellation of the appointment of the petitioners from it’s inception.
(w) Because, no opportunity of personal hearing was given to the petitioners, nor representation filed by the petitioners have been taken into consideration by the authorized controller before passing impugned orders on 8. 9. 2008 and also on 5. 11. 2008 by the respondent no. 3, thus the impugned order is passed in violation of the principle of natural justice and also in violation of articles 14, 16 and 21 of the constitution of India. (D. K. Yadav versus M/ s J. M. A. industry JT 1993 S.C. Vol. 3 page 617)
PRAYER
It is, therefore, Most respect fully prayed that this Hon’ble court may graciously be pleased to :-
i). Issue a writ, order or direction in the nature of CERTIORARI quashing the impugned order dated 8.9.2008 passed by authorized controller the respondent no. 4 ( ANNEXURE NO. 23), and the order dated 5.11.2008 passed by respondent no.3( ANNEXURE NO. 24) .
ii) Issue a writ, order or direction in the nature of MANDAMUS directing the respondents not to interfere in the functioning of the petitioners and to permit them to discharge their duties as class IV employee of the institution and to pay them regular salary.
iii) Issue a writ, order or direction in the nature of any DIRECTION, which this Hon’ble Court may deem fit in the facts and circumstances of the case.
Iv) to award the exam plenary cost to the petitioners from the respondents.
Dated : 12/ 11 /2008 (Yogesh Kumar Saxena) Advocate Chamber No. 139, High Court Counsel for the Petitioners
IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD.
CIVIL MISC. WRIT PETITION NO. OF 2008
(Under Article 226 of the Constitution of India)
( DISTRICT – VARANASI )
1 Shyam Raj Ram, s/0 Sri Lurkhur Ram, Posted as Chaukidar (Class –IV employee) Ansuiya Mahila Uchchatar Madhyamik Vidyalaya, Chhoti Piyari, Varanasi, resident of Village Titmapur, Post- Sindhaura, Block and Tehsil Pindra, District Varanasi.
1. Smt. Lalsa Tiwari, wife of Arun Kumar Pandey, posted as Paricharika (Class –IV employee) Ansuiya Mahila Uchchatar Madhyamik Vidyalaya, Chhoti Piyari, Varanasi, resident of Village and Post Tiyara, District Varanasi.-----Petitioners.
Versus
1. State of Uttar Pradesh through Secretary, Secondary Education, U.P. Lucknow.
2. Additional Director of Education (Secondary Education) U.P.Allahabad.
3. District Inspector of Schools, II Varanasi.
4. Authorised Controller, Ansuiya Mahila Uchchatar Madhyamik Vidyalaya, Chhoti Piyari, Varanasi.
5. Principal, Ansuiya Mahila Uchchatar Madhyamik Vidyalaya, Chhoti Piyari, Varanasi.
6. Smt. Durgawati Singh, Principal, Ansuiya Mahila Uchchatar Madhyamik Vidyalaya, Chhoti Piyari, Varanasi. ------------------------Respondents.
To,
The Hon’ble the Chief Justice and his other companion Judges of the aforesaid Court.
The humble writ petition of above named petitioners most respectfully showeth as under :-
1. That this is the first writ petition filed by the petitioners challenging the impugned order passed on 8.9.2008 by the authorized controller, the respondent no.4 and the order passed on 5.11.2008 by the District Inspector Of School, the respondent no.3, issued wholly without jurisdiction and in flagrant violation of statutory protection granted to class-IV employee in the educational institutions and no other writ petition has been filed on the same before this Hon’ble Court by the petitioners. The petitioners have received notice of caveat application through Sri Indra Raj Singh, Advocate, and High Court on behalf of the contesting private respondents respondents in the present writ petition.
2. That the institution namely Ansuiya Mahila Uchchatar Madhyamik Vidyalaya, Chhoti Piyari, Varanasi is a recognised institution having grant-in-aid from the State Government and the provisions of U.P. Intermediate Education Act, 1921 read-with U.P. Secondary Education Service Commission Act, 1982 (U.P. Act no.5 of 1982) and provisions of Payment of Salaries Act, 1971 are applicable to the present institution for governing the services of the employees working in the present institution.
3. That the services of the class-IV employee in the institution are protected in regulation 31 read with regulation 35, 36 of Chapter III read-with regulation 100 and there are the safe-guard provided under section 16-G (3) (a) (b) of U.P. Intermediate Education Act, 1921. Once the appointment on the vacant post after due approval of the competent authority vested with the District Inspector of School is granted and the appointment letter is issued for which the approval of the competent authority is obtained for disbursement of the salary under the Payment of Salary Act, there remained no power vested with the District Inspector of School to review its earlier order of approval to the said appointment,
4. That the services of the Class-IV employee can not be dispensed with without initiating the departmental disciplinary proceedings as provided in regulation 35 and 36 of Chapter III of U.P. Intermediate Act, 1921.
5. That only after the prior approval obtained from the competent authority of District Inspector of Schools, the services of Class –IV employee can be terminated by the respondent no. 6 being still suspended principal and continuing on the basis of interim order passed on 26.4.2004..
6. That the appointment letter issued after due approval of the District Inspector of Schools cannot be cancelled subsequently without following the procedure prescribed and in violation of Principle of natural justice, otherwise the order passed by the District Inspector of Schools as is being done in the present case, shall be void-ab-initio and passed without jurisdiction.
7. That the appointment to the petitioner no.1 was given in the reserved vacancy of Scheduled caste, which was lying vacant in the institution in furtherance of permission taken from District Inspector of Schools II, Varanasi to fill up the vacant post of Class IV employee reserved for Schedule Caste quota being filled up and in furtherance thereof after making the selection of Petitioner no.1 from amongst other 7 scheduled caste candidates, who sought for getting employment as Class-IV employee in the institution in furtherance of advertisement published in two newspapers, the appointment was given to the petitioner no.1 on 16.11.2002 and the approval was also granted by an order dated 29.11.2002 followed by another letter issued on 10.12.2002 and in spite these letters when the joining was not given to the petitioner no.1.
8. That the appointment to the petitioner no.1 was given and in furtherance thereof he started realizing the his salary on the aforesaid post, but by the impugned order the appointment of petitioner has been cancelled on the alleged ground that approval so granted by the District Inspector of School, II Varanasi has not been done in accordance with law on alleged non-existent ground of obtaining the consent of Regional Level Committee prior to grant of aforesaid approval and disbursement of salary to the petitioners.
9. That similarly the appointment to the petitioner no.2 was given in furtherance of correspondence made from office of District Inspector of Schools, II Varanasi on 1.7.2004 for filling up vacancy of Paricharika (Class-IV employee) and in furtherance of advertisement issued in the newspaper, out of 11 candidates applied on the said post, the selection of petitioner no.2 was done as per prescribed procedure contemplated in the U.P. Intermediate Education Act and thereafter the petitioner no.2 joined her services and realized salary after due approval of District Inspector of Schools, II and as such the impugned order passed against petitioner no.2 cancelling her appointment simply on the basis of non-existent ground by the impugned order passed on 5.11.2008 falsely alleging therein non-compliance of Government Order dated 19.12.2000, which cannot be sustained within eyes of law.
10. That the details in respect of appointment of petitioner no.1 are that principal of institution wrote a letter to the District Inspector of Schools, II, Varanasi seeking permission to fill up the vacant post of Class-IV employee lying vacant in the institution from amongst candidates of Scheduled caste as the said post was lying in quota of scheduled caste candidate. The District Inspector of Schools, II, Varanasi by an order dated 1.11.2002 granted approval for filling up said vacancy. The true copy of the letter dated 28.10.2002 issued from office of Principal and approval granted by the District Inspector of Schools, II Varanasi on 1.11.2002 are being filed herewith and marked as Annexure no.1 and 2 to this writ petition.
11. That in furtherance of the said requirement the information was send to Employment Exchange Varanasi for filling the post on 4.11.2002 and advertisement were published in the newspapers, on the basis of which 11 persons belonging to Scheduled caste including the name of petitioner no.1 applied for said post and in furtherance thereof on the basis of quality point marks and having all such requirement regarding domicile certificate, Scheduled caste certificate, educational certificate and other requirements pertaining to the vacancy and having no relationship with the management, ultimately the appointment letter was issued to the petitioner no.1 on 16.11.2002 after prior approval of the DISTRICT INSPECTOR OF SCHOOL Varanasi. The true copy of all such documents pertaining to the aforesaid appointment of petitioner no.1 including prior approving order of DISTRICT INSPECTOR OF SCHOOL Varanasi for appointment letter dated 16.11.2002 are being filed herewith and marked as Annexure no.3 and 4 to this writ petition.
12. That when the petitioner no.1 was not allowed to join his duty by the principal of institution then the letters were issued from the office of District Inspector of Schools, II on 29.11.2002 followed by another letter dated 10.12.2002 to the respondent no. 4 and 5 with the direction of District Inspector of Schools to join him. . The true copy of the aforesaid letters dated 29.11.2002, 10.12.2002 issued by District Inspector of Schools, II Varanasi having approval granted to the appointment of petitioner no.1 are being filed herewith and marked as Annexure no.5 collectively to this writ petition.
13. That the City Magistrate, Varanasi appointed as Authorized Controller in the institution raised certain objection on the appointment of petitioner no.1 by issuance of letter dated 16.12.2002. It was stated that the appointment in Dying in Harness are pending in respect of three employees died in harness and the list should have been called upon from Employment Exchange and the application for the said appointment should have been given only to such applicant enrolled in Employment Exchange in district Varanasi. All these 3 points were replied by DISTRICT INSPECTOR OF SCHOOL II in her letter dated 31.12.2002 wherein it has been categorically stated that the vacancy on the post has been filled up in furtherance of the directions issued by departmental higher authority to fill up the under Scheduled caste quota. The aforesaid correspondence made to the authorized controller regarding prior approval of the District Inspector of Schools to the appointment made to the petitioner no.1 and the permission obtained from the higher authority before granting the aforesaid approval by the District Inspector of Schools. The true copy of the letters dated 16.12.2002 and 31.12.2002 issued by authorized controller and District Inspector of Schools II Varanasi respectively are being filed herewith as Annexure no.6 and 7 to this writ petition.
14. That thereafter the authorized controller has given oral permission to the appointment of the petitioner no.1 and after obtaining the prior approval to the said appointment, when the salary was not given to the petitioner no.1, then he requested the District Inspector of Schools to pass the appropriate order for the payment of salary to the petitioner no.1.
15. That by the order passed for disbursement of salary on 2.1.2003 and 3.1.2003 followed by order dated 18.7.2003 and finally on 31.1.2004 due approval of the District Inspector of Schools II, Varanasi, and finally on 31.1.2004, since the prior approval was already granted for selection and appointment permission to the said appointment of petitioner no.1 by the District Inspector of Schools, II Varanasi. The true copy of the order dated 2.1.2003, 3.1.2003, 18.7.2003 and approval order dated 31.1.2004 issued by District Inspector of Schools, II, Varanasi are filed herewith as Annexure no.8 collectively to this writ petition.
16. That the petitioner no.1 submitted his joining for his services on 11.9.2003 and the certificate to the aforesaid joining was also issued to the petitioner on the said date. The petitioner no.1 after getting financial approval to his appointment started realizing salary on Class-IV post during the tenure when Smt. Urmila Singh was Principal of institution and Dr. (Smt.) Malati Rai and Sri Chandrajeet Singh Yadav were posted as the District Inspector of Schools, II, Varanasi at the relevant time.
17. That similarly the appointment of petitioner no.2 was given on the vacant post after due prior approval of District Inspector of School, II Varanasi passed on 28.2.2004 to fill up the vacant post lying vacant on account of retirement of Smt. Rajmani Devi working as Class-IV in the institution. The entire facts in relations to the post, a vacancy was advertised in the newspaper and thereafter the selection from amongst 11 candidates applied for the post has taken place as per requirement of law, since the petitioner no.2 was selected on the said vacant post after the completion of requirement in this regard, the appointment letter was issued to the petitioner no.2 on 19.5.2004. The petitioner no.2 submitted her joining report in furtherance thereof on 22.5.2004 and thereafter the approval was sought from the office of Principal by issuance of letter dated 1.6.2004, on the basis of which approval was granted by District Inspector of Schools, II Varanasi on 1.7.2004. The true copy of the aforesaid documents including the appointment letter dated 19.5.2004, joining report in furtherance thereof on 22.5.2004 and approval letter dated 1.7.2004 are being filed herewith and marked as Annexure no.9, 10 and 11 collectively to this writ petition.
18. That with prior approval of the District Inspector of School for selection process and for giving appointment to the petitioners as per the procedure laid down in Regulation 2 (1) , 101 and 102 in chapter III of U.P. Intermediate Education Act 1921 with approval and permission of District Inspector of School to file up vacancy and to issue appointment letter by than principal of the institution due to the suspension of the respondent no. 6 on the post of principal and correspondents made with authorized controller appointed clearly demonstrate the advertisements made and correspondence issued to employment exchange with number of the candidates applying on the posts, in which the selection of the names of petitioners had taken place and after due selection therein and appointment of the petitioners then suspended principal namely the respondent no. 6, nor the authorized controller subsequently appointed again after so many years nor District Inspector of School have any authority to review the aforesaid selection and cancel the orders of appointments of the petitioners.
19. That prior approval of the District Inspector of School for selection process and for giving appointment to the petitioners as per the procedure laid down in Regulation 2 (1) , 101 and 102 in chapter III of U.P. Intermediate Education Act 1921 with approval and permission of District Inspector of School to file up vacancy as laid down in case of Jagdish Singh versus State of U.P. (2006) 2 UPLBEC 1851 and for such procedure of selection, there is no rider imposed in the Govt. Order dated 19. 12 2000, which can not become the basis for District Inspector of School for cancellation of the appointment of the petitioners from it’s inception.
20. That the respondent no.6 was suspended by an order dated 18.7.2002 on the serious charges of misappropriation and misutilization of the post of Principal of institution. The approval to the aforesaid suspension order was granted on 22.7.2002. She(respondent no.6) filed the writ petition no. 32235 of 2002, which was disposed of on 19.8.2002 by setting aside the order dated 22.7.2002 with a direction to pass the fresh order within 60 days which were expiring on 17.9.2002. After hearing the respondent no.6, the approval to the suspension order was passed on 16.9.2002 and the said order was challenged by filing another writ petition no. 16810 of 2004 by the respondent no.6. The interim order has been passed staying the operation of the said order passed on 16.9.2002 by an order dated 26.4.2004 passed in the said writ petition no. 16180 of 2004.
21. That it has been laid down by the Hon’ble Supreme court in M/S Chamundi Moped Limited Vs. Church of South India Association reported in A.I.R. 1992 S.C. page 1439 that the interim order staying the operation of an order under challenge does not wipe out the existence of the impugned order. Thus the order of the suspension passed against respondent no.6 is still in existence inspite she has been allowed to function as the Principal and to draw her salary. The enquiry on the grievous charge of the misconduct has still not being conducted on account of the pernicious influence exercised by respondent no.6 in making an abuse of her discretionary power and thereby having the transgression of the power so vested in her predecessor Principal in conducting the selection process for making the appointment of the petitioners and to issue the appointment letters after due approval from the office of District Inspector of Schools.
22. That the respondent No. 6 passed orders passed on 7. 9. 2007 and 20.8.2007 respectively in respect of both the petitioners cancelling their appointments, for which she had no authority. These orders were already set aside on 20.9.2007 by the Committee of management through its manager. The order dated 20.9.2007 was already approved by the order passed on 8. 10. 2007 by the District Inspector of School 2nd VARANASI. Even after revocation of the earlier order dated 7. 9. 2007 and 20.8.2007 passed by the same authority of the respondent No. 6 by the Committee of management on 20.9.2007, Which was already accorded approval by the order passed on 8. 10. 2007 by the District Inspector of School (Second) VARANASI. The orders were passed again by the suspended principal on 15.12.2007 and 17.12.2007 even after revocation of the earlier order passed by the same authority, shall be deemed to be redundant, obsolete and passed in inherent lack of Jurisdiction. The true Copy of orders passed on 7. 9. 2007 and 20.8.2007 in respect of both the petitioners, already set aside on 20.9.2007 by the Committee of management through its manager and order dated 20.9.2007 and its approval order passed on 8. 10. 2007 by the District Inspector of School 2nd VARANASI are being filed herewith and marked as Annexure no.12, 13, 14 and 15 to this writ petition.
23. That by the perusal of the aforesaid discussion, which have been discussed in the orders passed on 15.12.2007 and 17.12.2007 even after revocation of the earlier order passed by the same authority on 7. 9. 2007 and 20.8.2007 by the Committee of management on 20.9.2007, it is crystal clear that the respondent no.6 is still continuing on the post of principal on the basis of interim order passed on 26.4.2004. Thus the respondent no.6 simply on account of being permitted to function as the Principal and thereby having the order of District Inspector of Schools granting approval to the suspension order on 16.9.2002 is not empowered to review the order passed by her predecessor and to pass subsequent orders even after the revocation of her earlier order cancelling the appointment of petitioners. The true Copy of orders again passed on15.12.2007 and 17.12.2007 ( even after revocation of her earlier order passed by the same authority on 7. 9. 2007 and 20.8.2007 by the Committee of management on 20.9.2007, and its approval order passed on 8. 10. 2007 by the District Inspector of School 2nd VARANASI) are being filed herewith and marked as Annexure no. 16 and 17 to this writ petition.
24. That once the appointment to the petitioners were given by the principal and approval to the said appointment were accorded by the District Inspector of Schools, the suspended Principal working under the interim orders passed by this Hon’ble Court may become no more empowered to cancel such appointment after the expiry of many years from the date of said appointments.
25. That the cancelation of the appointment letter issued to the petitioners can not be done from the date of said appointments as the respondent no.6 was not functioning at the time of said appointment and remained suspended from the post of principal and as such the orders passed on 15.12.2007 and 17.12.2007 cancelling the appointment of the petitioners by the suspended Principal are the orders issued in gross abuse of the interim order obtained by the respondent no.6 in her writ petition no. 16810 of 2004 by an order dated 26.4.2004 and as such it has been advised to the petitioners that the order obtained by the respondent no.6 on 26.4.2004 in writ petition no. 16810 of 2004 may be challenged by such employees of the institution, who have been subjected to the harassment and victimization of their rights by the respondent no.6.
26. That the discussion made in the orders dated 15.12.2007 and 17.12.2007 passed by the respondent no.6 regarding the aspersions leveled against her superior authority of the District Inspector of Schools in casting the remark against the said authority, which is the approving authority to the appointment given to the principal and have granted the approval to the suspension order passed against respondent no.6.
27. That the aforesaid discussion clearly revealed that the respondent no.6 has no respect to her higher authorities and in spite the charges have been leveled by the authorized controller/City Magistrate, Varanasi, but in furtherance of these charges another authorized controller, who was appointed subsequently passed an order on 14.1.2004, which was revoked by the District Inspector of Schools on 28.1.2004. Thus from the aforesaid discussion made in the order dated 15.12.2007 and 17.12.2007 passed by respondent no.6.
28. That it appears that both these orders have been passed just to wreck the vengeance and to pacify her grudges against then Principal appointed in her place on her being suspended and against the authorized controller as well as against the District Inspector of Schools granting approval to the appointment of the petitioners. It is submitted that this Hon’ble Court may tear the veil in respect of the reprehensible conduct of the respondent no.6 in making an abuse of her power and passed the appropriate order as the petitioners have become the gloater goat due to the personal vendetta of the respondent no.6 and an exemplary cost may be imposed against the respondent no.6.
29. That it appears that order was issue again on 15.12.2007 and 17.12.2007 in respect of petitioner no.1 and 2 respectively cancelling the appointment of petitioner no. 1 w.e.f. 16.11.2002 and appointment of petitioner no.2 on 19.5.2004,
30. That in this manner the order issued on 15.12.2007 and 17.12.2007 are having the aspersion casted upon findings of District Inspector of Schools, II, Varanasi and thereafter in order to take revenge to the action done by then District Inspector of Schools, II, Varanasi Smt. Malti Rai and Sri Chandrajeet Singh Yadav, who remained posted in 2002 and 2004 as District Inspector of Schools, II, Varanasi respectively and aforesaid order cancelling the appointment of petitioners was issued by respondent no.6.
31. That both these orders issued on 15.12.2007 and 17.12.2007 cancelling the appointment of the petitioners from the date of their initial appointment are the orders passed wholly without jurisdiction as it has been laid down by the Hon’ble Apex Court in number of decision that appointment letter issued to the employees after due approval in accordance with law cannot be cancelled w.e.f. from the date of appointment on subsequent occasion. A.I.R. 1990 S.C. Page 307 Sridhar Vs. Nagar Palika Jaunpur and A.I.R. 1991 S.C. 309 Savran Kumar Jha Vs. State of Bihar.
32. That again the petitioners approached to the competent authority vested in the Committee of Management for setting aside the aforesaid orders passed on 15.12.2007 and 17. 12. 2007. It is submitted that orders were passed by the Committee of management through its Manager on 25.2.2008 in respect of order passed on 15.12.2007 and 17. 12. 2007 pertaining to cancellation of appointment of petitioners by allowing the aforesaid representation. The true copy of the order dated 25.2.2008 is being filed herewith and marked as Annexure no.18 and 19 to this writ petition.
33. That thereafter again the authorized controller was appointed sometime in April – May 2008 and he passed an order on 8.9.2008 stating therein that the order passed on 25.2.2008 by the Committee of Management was subsequent revoked. However, the existence of any such application has been denied by the manager of institution, who passed the order dated 25.2.2008. However, no decision could have been taken by authority concerned in respect of matter which was already decided by the competent authority on 25.2.2008, when the appointment of authorized controller was not done even by the time of passing such order by Committee of Management.
34. That the authorized controller has passed the order dated 8.9.2008 without application of mind regarding the existence of order passed by the committee of management revoking the earlier orders of the respondent no.6 dated 7.9.2007 the detailed order passed on 20.9.2007 by the committee of management. The respondent no.6 was having no power to pass such order. It is submitted that she herself remained suspended w.e.f. 18.7.2002 and her suspension was approved by District Inspector of Schools, II Varanasi on 22.7.2002 against which she filed Civil Misc. Writ Petition No. 32235 of 2002 on which an order was passed on 19.8.2002 directing the District Inspector Schools, II, Varanasi to pass approval order. It appears that without obtaining any order from office of District Inspector of Schools, II Varanasi, an order was obtained from the authorized controller on 14.1.2004, which was set aside on 28.1.2004 regarding reinstatement of respondent no.6.
35. That from the detail of discussion mentioned in the order dated 15.12.2007 and 17.12.2007 cancelling appointment of petitioners w.e.f. 16.11.2002 and 19.5.2004 respectively, the respondent no.6 herself in continuing as Principal of institution in pursuance of order passed on 26.4.2004 in Civil Misc. Writ Petition no. 16810 of 2004 staying the operation of Suspension Order passed on 28.1.2004 and 16.9.2002 by District Inspector of Schools, II, Varanasi.
36. Thus the respondent no.6 was having no authority to pass the subsequent orders on 15.12.2007 and 17.12.2007 in derogations to the orders passed by Committee of management on 20.9.2007 allowing the appeal filed by the petitioners. Subsequently the order passed by the committee of management on 25.2.2008 may not be subjected to be revoked as this order was not passed during the period when the authorized controller took over the charge and the application dated 1.3.2008relied upon in the impugned order dated 8.9.2008 passed by the authorized controller stating therein that there exists some application filed on 1.3.2008, which remain non-existent in view of the affidavit filed by the manager subsequently revoking the existence of her letter dated 1.3.2008 and filing the affidavit in this regard. The true copy of the affidavit dated 10.3.2008 filed by Manager is filed herewith and marked as Annexure no.20 to this writ petition.
37. That when the manager of the committee of the institution had already ceased to remain in power and became ex-officio after having the appointment of the authorized controller in the month of April – May,2008 to manage the institution, then the previous management or its Manager Smt. Geeta Devi Dwivedi was not empowered to pass some other affidavit on 20.6.2008 revoking her earlier order passed on 25.2.2008.
38. That it is submitted that the alleged affidavit dated 20.6.2008 relied upon in the impugned order is totally fabricated and does not have any credit or authority to revoke its earlier order passed on 25.2.2008. No such power is vested with the manager to file any affidavit denying the existence of her earlier order passed on behalf of the committee of management on 25.2.2008.
39. That after the order dated 25.2.2008 already remained in existence at the time of appointment of the authorized controller, the authorized controller has ceased to pass any subsequent order on 8.9.2008 simply on the behest of respondent no.6 and to provide the sanctity to the obsolete and redundant orders passed on 15.12.2007 and 17.12.2007 by the respondent no.6.
40. That it is submitted that no opportunity of hearing was ever given, nor the authorized controller was empowered to pass any order in absence of any appeal filed before the said authority by the petitioners as the order dated 25.2.2008 became final revoking the orders dated 15.12.2007 and 17.12.2007.
41. That the District Inspector of Schools wrote many letters on 8.5.2008 relying upon the decision of committee of management passed on 25.2.2008, it was stated that when the order passed by respondent no.6 on 15.12.20007 and 17.12.2007 have been set aside by the decision of the management on 25.2.2008, but still then the payment of salary have not given to the petitioners and as such the explanation was sought on 8. 5. 2008from the office of the authorized controller. The true copy of the order dated 8.5.2008 issued by District Inspector of School is being filed herewith as Annexure no. 21 to this writ petition.
42. That when the respondent No. 6 concocted the affidavit of out going manager on 20.6.2008 as the decision of committee of management was already earlier on 25.2.2008, then the DISTRICT INSPECTOR OF SCHOOL by issuance of an order dated 1.9.2008 had categorically stated that filing of such affidavit after 3 months by the Principal is not justified and there may not be any existence of such affidavit alleged to have been given on 20.6.2008 by the out going manager after being ousted from her post of the management and as such there is no existence or any sanctity to the said affidavit relied upon by the Principal and there after the DISTRICT INSPECTOR OF SCHOOL sought the explanation from authorized controller on 1.9.2008 within 3 days as to what steps have been taken in the light of the decision of the committee of management passed on 25.2.2008. The true copy of the letter dated 1.9.2008 issued by DISTRICT INSPECTOR OF SCHOOL seeking explanation from authorized controller regarding non-compliance of the order dated 25.2.2008 passed by the committee of management is being filed herewith as Annexure no. 22 to this writ petition.
43. That the order has been passed on 8.9.2008 by the authorized controller in gross defiance of the order passed by the District Inspector of School ( second) Varanasi on 8.5.2008 and on 1.9.2008. The District Inspector of School ( second) Varanasi has ceased to look into the matter regarding the validity of the orders passed on 15.12.2007 and 17.12.2007 cancelling the appointment of the petitioners and to rely upon these orders in his order dated 8.9.2008. After the order passed on 25.2.2008 by then committee of management revoking the order dated 15.12.2007 and 17.12.2007 passed by respondent no.6 and the said order was taken note by the approving authority on 1.9.2008 with a direction to provide the explanation from the authorized controller, the order dated 8.9.2008 passed by the authorized controller and relying upon non-existent orders passed by respondent no.6, is an order which is not only arbitrary and passed in flagrant violation of Principles of natural justice, but the said order has been passed in inherent lack of jurisdiction and by misuse of his power for which the strong action may be taken against the said authority. The true copy of the order dated 8.9.2008 passed by Authorized controller is being filed herewith and marked as Annexure no.23 to this writ petition.
44. That the impugned order passed on 5.11.2008 is issued in inherent lack of jurisdiction by circumventing the procedure prescribed for taking the departmental proceedings to dispensed with services of the class-IV employee of the institution.
45. That it is submitted that when the appeal filed by petitioners was allowed on 25.2.2008 and the DISTRICT INSPECTOR OF SCHOOL by his order dated 8.5.2008 and 1.9.2008 had already taken note of the said order regarding the existence of the revocation order to the order passed on 15.12.2007 and 17.12.2007.
46. That even the authorized controller was not empowered to undo the action of the committee of management taken place on 25.2.2008 when the authorized controller was not even given appointment to look after the management of the institution. It is settled principle of law that the District Inspector of School. is not having any authority to dispensed with services of class –IV employee in the institution without having proper inquiry or disciplinary enquiry being conducted in furtherance with requirement of the provisions of regulation 35 and 36 read with regulation 100 in the light of regulation 31 of Chapter III of the U.P. Intermediate Education Act.
47. The DISTRICT INSPECTOR OF SCHOOL by no stretch of imagination being the approving authority can behave like that of the authority to the punishing authority as there is no such power vested with the DISTRICT INSPECTOR OF SCHOOL to impose punishment directly or to withhold the approval of the salary bill for which the approval of the competent authority of the predecessor DISTRICT INSPECTOR OF SCHOOL posted on the same post has already been given. The order passed by the DISTRICT INSPECTOR OF SCHOOL is in the inherent lack of jurisdiction and liable to be set aside.
48. That all these orders have been passed wholly without jurisdiction as the services of permanent employees serving in the institution having their due approval to their appointment, cannot be terminated without having prior approval from District Inspector of Schools. It is submitted that law in this regard is very clear that once the appointment was given which has been duly approved by the educational authority in accordance with provisions of law, no subsequent authority holding the office of predecessor could not revoke or review the order by its successor taking charge on the same post.
49. That there is no power vested with District Inspector of Schools, II Varanasi to review its own order passed in respect of granting approval to the appointment of petitioners. Thus the entire proceedings conducted on behest of respondent no.6 were the proceedings conducted without jurisdiction by the said authority.
50. That the authorized controller so appointed is not empowered to review the earlier order passed by the Committee of management through its manager in due discharge of their duties in accordance with provisions of U.P. Intermediate Education Act, 1921 read-with other enactment, wherein the duties assigned upon the statutory authority in furtherance of provisions of statutory provisions may not be circumvented, prejudiced, interfered with and nullified
51. That the entire proceedings conducted by respondent no.6 are wholly illegal, arbitrary and without jurisdiction to dispensed with services of petitioners.
52. That in this manner and the back grounds of order passed on 5.11.2008 is an order passed without jurisdiction. It was the duty of District Inspector of Schools, II, Varanasi to look into the matter over all from back ground of all such facts before passing the said order on 5.11.2008 as to whether the same authority of District Inspector of Schools II Varanasi may allege that approval granted by his predecessor in the year 2002 and 2004 was not in accordance with provisions of law.
53. That the District Inspector of Schools, II, Varanasi, the respondent no.3 passed the impugned order on 5.11.2008 cancelling the appointment of both the petitioners. The true copy of the impugned order dated 5.11.2008 passed by respondent no.3 is being filed herewith and marked as Annexure no.24 to this writ petition.
54. That as already submitted that there is no rider laid down upon statutory power conferred with District Inspector of Schools in furtherance of disbursement of salary to the teachers and other employees of institution after given prior approval to class IV employee before appointment in view of his power conferred in regulation 2 (1), 31, and 101 of chapter III of U.P. Intermediate Act, 1921 and as per provisions of section 3 of Payment of salary Act by the Govt. Order dated 19. 12. 2000, nor other authority has been inducted to provide any cloud of uncertainty to exercise such power conferred to the District Inspector of Schools as that of power of State Government under section 3 of Payment of Salaries Act, 1971.
55. That the aforesaid power is not confined, nor it could have been confined by other Govt. order including Govt. Order issued on 19.12.2000 having a further rider upon statutory power conferred by legislation to District Inspector of Schools and no other authority including Regional Level Committee comprising of Joint Director of Education has got power to provide any rider by having another approval within the power of the approval granted by the said authority. Thus the impugned order passed on 5.11.2008 is wholly without jurisdiction.
56. That It has been said that even after the settled proposition made in number of judgments that the administrative authorities are not empowered to review their order, nor approving authority can revoke approval granted by his predecessor, nor he can function as that of punishment authority. There is no rider imposed by the govt. order issued on 19.12.2000 to circumvent the power conferred upon the state govt. for the disbursement of salary to the employees under section 3 readwith section 10 of payment of salary Act, which is conferred only upon the DISTRICT INSPECTOR OF SCHOOL as the power delegated by the State Govt. The true copy of the Govt. order dated 19.12.2000 is filed herewith and marked as Annexure no. 25 to this writ petition.
57. That the following substantial question of law are summarised for the kind perusal pertaining to the attack made upon the impugned orders passed by the respondents no. 3, 4 and 6.
(a) That the District Inspector of School is only approving authority and is not having the power of punishing authority. Regulation 31 of Chapter III of U. P. Intermediate Act, 1921( vijay Shankar Mishra Versus DISTRICT INSPECTOR OF SCHOOL Gorakhpur (1989) 1 UPLBEC 365)
(b) That even after the orders passed by the appointing authority of the principal passed on 7. 9.2007 and 20.8.2007 were revoked on 20. 9.2008 by the order of committee of management through its Manager and the then DISTRICT INSPECTOR OF SCHOOL has accorded approval and taken note of the said revocation order in his order dated 8. 10. 2007, no order could have been passed by the respondent No. 6, functioning on the post of principal in furtherance of Interim order of this Hon’ble Court. Hanuman Prasad Versus District Inspector Of Schools, Banda and others 1999 ( 3) A. W. C. 2161
(c) That the services of the class-IV employee in the institution are protected in regulation 31 of Chapter III read-with regulation 100 and there are the safe-guard provided under section 16-G (3) (a) (b) of U.P. Intermediate Education Act, 1921.
(d) That Once the appointment on the vacant post after due approval of the competent authority vested with the District Inspector of School is granted and the appointment letter is issued for which the approval of the competent authority is obtained for disbursement of the salary under the Payment of Salary Act, there remained no power vested with the District Inspector of School to review its earlier order of approval to the said appointment. ( Gur Prasad Versus DISTRICT INSPECTOR OF SCHOOL and another ( 1994) 2 UPLBEC 699( Luck. Bench))
(e) That the power of the District Inspector of School to make the payment of salary is not subject to any authority, but have been delegated to him under U.P. Act no. 24 of 1971 by the State Govt. in the institution under the grant-in-aid list and the Regional Level Committee constituted in furtherance of Govt. order dated 19.12.2000 by the perusal of Clause 5 of last paragraph does not authorize or confer any other authority to exercise such power. (Ajit Ram Vs. DISTRICT INSPECTOR OF SCHOOL Ballia 2005 (3) U.P.L.B.E.C. 2516).
(f) That the respondent no.6 was suspended by an order dated 18.7.2002, the approval to the suspension order was passed on 16.9.2002 and the said order was challenged by filing another writ petition no. 16810 of 2004 by the respondent no.6. The interim order has been passed staying the operation of the said order passed on 16.9.2002 by an order dated 26.4.2004 passed in the said writ petition no. 16180 of 2004.
(g) That the interim order staying the operation of an order under challenge does not wipe out the existence of the impugned order of suspension passed against the respondent NO. 6. Thus the order of the suspension passed against respondent no.6 is still in existence in spite she has been allowed to function as the Principal and to draw her salary.( M/S Chamundi Moped Limited Vs. Church of South India Association reported in A.I.R. 1992 S.C. page 1439)
(h) The orders were passed again by the respondent No. 6, (still the suspended principal) on 15.12.2007 and 17.12.2007 even after revocation of the earlier order passed by the same authority passed on earlier on 7. 9. 2007 and 20.8.2007 by the Committee of management on 20.9.2007, and its approval order passed on 8. 10. 2007 by the District Inspector of School 2nd VARANASI, shall be deemed to be redundant, obsolete and passed in inherent lack of Jurisdiction.
(i) That both these orders issued on 15.12.2007 and 17.12.2007 cancelling the appointment of the petitioners from the date of their initial appointment are the orders passed wholly without jurisdiction as it has been laid down by the Hon’ble Apex Court in number of decision that appointment letter issued to the employees after due approval in accordance with law cannot be cancelled w.e.f. from the date of appointment on subsequent occasion. (A.I.R. 1990 S.C. Page 307 Sridhar Vs. Nagar Palika Jaunpur and A.I.R. 1991 S.C. 309 Savran Kumar Jha Vs. State of Bihar).
(j) That the aforesaid orders passed on 15.12.2007 and 17. 12. 2007 dispensing the services of the petitioners passed by the respondent no. 6 were in itself bad as before passing any such order, the prior approval of district Inspector of School were required before passing such order as per provisions of regulation 31 and 100 of Chapter III of U.P. Intermediate Act, 1921( Daya Shankar Tiwari Versus Principal and others 1998 (2) UPLBEC 1101.
(k) That the petitioners approached to the competent authority vested in the Committee of Management for setting aside the aforesaid orders passed on 15.12.2007 and 17. 12. 2007. It is submitted that orders were passed by the Committee of management through its Manager on 25.2.2008 in respect of order passed on 15.12.2007 and 17. 12. 2007 pertaining to cancellation of appointment of petitioners by allowing the aforesaid representation.
(l) That the impugned order dated 8.9.2008 passed by the authorized controller relying upon the non existent orders passed on 15.12.2007 and 17. 12. 2007 pertaining to cancellation of appointment of petitioners is also void as before passing any such order, the prior approval of district Inspector of School were required before passing such order as per provisions of regulation 31 and 100 of Chapter III of U.P. Intermediate Act, 1921 ( principal , Rastriya Inter College, Maharajganj and another Versus Maharajganj 2000 (1) A. W. C. 831
( D.B.)
(m) That the authorized controller was appointed sometime in April – May 2008 and he passed an order on 8.9.2008 stating therein that the order passed on 25.2.2008 by the Committee of Management was subsequent revoked by filing application on 1. 3. 2008 and also some affidavit on 20.6.2008.
(n) That the existence of any such application has been denied by the manager of institution, who passed the order dated 25.2.2008. However, no decision could have been taken by authority concerned in respect of matter which was already decided by the competent authority on 25.2.2008, when the appointment of authorized controller was not done even by the time of passing such order by Committee of Management.
(o) That the order passed by the committee of management on 25.2.2008 may not be subjected to be revoked as this order was not passed during the period when the authorized controller took over the charge and the affidavit relied upon in the impugned order dated 8.9.2008 passed by the authorized controller.
(p) That no opportunity of hearing was ever given, nor the authorized controller was empowered to pass any order in absence of any appeal filed before the said authority by the petitioners as the order dated 25.2.2008 became final revoking the orders dated 15.12.2007 and 17.12.2007.
(q) That the District Inspector of Schools wrote many letters on 8.5.2008 relying upon the decision of committee of management passed on 25.2.2008, it was stated that when the order passed by respondent no.6 on 15.12.20007 and 17.12.2007 have been set aside by the decision of the management on 25.2.2008, but still then the payment of salary have not given to the petitioners and as such the explanation was sought from the office of the authorized controller.
(r) That after the order passed on 25.2.2008 by then committee of management revoking the order dated 15.12.2007 and 17.12.2007 passed by respondent no.6 and the said order was taken note by the approving authority on 1.9.2008 with a direction to provide the explanation from the authorized controller.
(s) That the order dated 8.9.2008 passed by the authorized controller and relying upon non-existent orders passed by respondent no.6, is an order which is not only arbitrary and passed in flagrant violation of Principles of natural justice, but the said order has been passed in inherent lack of jurisdiction and by misuse of his power for which the strong action may be taken against the said authority.
(t) That the impugned order passed on 5.11.2008 is issued in inherent lack of jurisdiction by circumventing the procedure prescribed for taking the departmental proceedings to dispensed with services of the class-IV employee of the institution.
(u) That the appeal filed by petitioners was allowed on 25.2.2008 and the DISTRICT INSPECTOR OF SCHOOL by his order dated 8.5.2008 and 1.9.2008 had already taken note of the said order regarding the existence of the revocation order to the order passed on 15.12.2007 and 17.12.2007.
(v) That the authorized controller was not empowered to undo the action of the committee of management taken place on 25.2.2008 when the authorized controller was not even given appointment to look after the management of the institution.
(w) That the Impugned order passed on 5.11.2008 is an order passed without jurisdiction. It was the duty of District Inspector of Schools, II, Varanasi to look into the matter over all from back ground of all such facts before passing the said order on 5.11.2008 as to whether the same authority of District Inspector of Schools II Varanasi may allege that approval granted by his predecessor in the year 2002 and 2004 was not in accordance with provisions of law. (Dr. M. S. Mudhol Versus Shri S.D. Helegkar and Others JT 1993 (4) S. C. 143)
(x) That no opportunity of personal hearing was given to the petitioners, nor representation filed by the petitioners have been taken into consideration by the authorized controller before passing impugned orders on 8. 9. 2008 and also on 5. 11. 2008 bythe respondent no. 3, thus the impugned order is passed in violation of the principle of natural justice and also in violation of articles 14, 16 and 21 of the constitution of India. (D. K. Yadav versus M/ s J. M. A. industry JT 1993 S.C. Vol. 3 page 617)
(y) That prior approval of the District Inspector of School for selection process and for giving appointment to the petitioners as per the procedure laid down in Regulation 2 (1) , 101 and 102 in chapter III of U.P. Intermediate Education Act 1921 with approval and permission of District Inspector of School to file up vacancy as laid down in case of Jagdish Singh versus State of U.P. (2006) 2 UPLBEC 1851 and for such procedure of selection, there is no rider imposed in the Govt. Order dated 19. 12 2000, which can not become the basis for District Inspector of School for cancellation of the appointment of the petitioners from it’s inception.
58. Thus the alleged G.O. dated 19.12.2000 is not empower to revoke order of approval to the appointments given by the DISTRICT INSPECTOR OF SCHOOL for which it has been stated in the order dated 31.12.2002 that the permission was taken from the higher authorities to start the selection process for filling up the vacant posts of class-IV employees in the institution.
59. That the petitioners have submitted their representation to the Additional Director of Education by stating the facts pertaining to their grievances and sought for the redressal of the same by the higher authorities. It has been submitted that the respondent no.6 in collusion with the authority of respondent no. 3 to 5 is acting in gross violation of the provisions of the statutory power by passing the illegal orders just to pacify their grudges with their superior authorities. The true copy of representation dated 8.11.2008 to the respondent no.2 are filed herewith and marked as Annexure no. 26 to this writ petition.
60. That the petitioners may not be deprived of their right to continue is service wherein they were discharging their duties after due selection of their appointment and the approval to the aforesaid appointment have already been given by the predecessor District Inspector of Schools, which is only competent authority provided under the statute of Payment of Salary Act and thus the successor District Inspector of School Sri Shiv Badan Dwivedi who passed the impugned order on 5.11.2008 is not authorized to record findings on behest of respondent no.6 that sanction from Regional Level Committee of Joint Director of Education has not been accorded at the time of granting approval to the appointment of petitioners.
61. That no opportunity of personal hearing was given to the petitioners, nor representation filed by the petitioners has been taken into consideration by the authorized controller before passing impugned orders on 8. 9. 2008 and also on 5. 11. 2008 by the respondent no. 3, thus the impugned order is passed in violation of the principle of natural justice and also in violation of articles 14, 16 and 21 of the constitution of India. (D. K. Yadav versus M/ s J. M. A. industry JT 1993 S.C. Vol. 3 page 617)
62. That the petitioners have categorically stated that petitioners have not concealed any facts, nor obtained their appointment by committing any fraud upon selection committee.
63. That the petitioners have been advised to submit that the authorized Controller so appointed in the month of April – May of 2008 is not empowered to review the orders passed by the committee of management through it’s manager passed on 20.9.2007 or 25. 2. 2008 and there is no power vested with the authorized Controller so appointed in the month of April – May of 2008 to accord approval to the non existent orders passed on 15. 12. 2007 and 17. 12. 2007 by the respondent no. 6.
64. That the petitioners have been advised to submit that the authorized Controller can not step up in the shoe of the jurisdiction power exercised by the committee of management through it’s manager, and thus the order passed by authorized controller on 8. 9.2008 is void ab initio.
65. That it is submitted that the Hon’ble Supreme Court in Dr. M.S. Mudhol case reported in J.T. 1993 (4) S.C. Page 143 has laid down that appointment granted by competent authority may not be revoked subsequently even if there are some irregularity in granting approval at the time of said appointment.
66. That the petitioners are still discharging their duties on their respective posts of Peon in the institution. The order passed on 8.9.2008 and order dated 5.11.2008 has yet not given effect and as such the effect and operation of impugned order passed on 8.9.2008 and order dated 5.11.2008 passed by District Inspector of Schools, II, Varanasi may be stayed by this Hon’ble Court in the interest of justice.
67. That under these circumstance, it is expedient in the interest of justice that this Hon’ble court may graciously be pleased to quash the impugned orders dated 8.9.2008 passed by authorized controller and the order dated 5.11.2008 passed by respondent no.3 .
68. That the petitioners have got no other alternative remedy except to approach this Hon’ble Court by way of filing the present writ petition under Article 226 of the Constitution of India, on the following amongst other grounds :-
GROUNDS
(a) Because, the District Inspector of School is only approving authority and is not having the power of punishing authority. Regulation 31 of Chapter III of U. P. Intermediate Act, 1921( vijay Shankar Mishra Versus DISTRICT INSPECTOR OF SCHOOL Gorakhpur (1989) 1 UPLBEC 365)
(b) Because, even the orders passed by the appointing authority of the principal passed on 7. 9.2007 and 20.8.2007 were revoked on 20. 9.2008 by the order of committee of management through its Manager and the then DISTRICT INSPECTOR OF SCHOOL has accorded approval and taken note of the said revocation order in his order dated 8. 10. 2007, no order could have been passed by the respondent No. 6, functioning on the post of principal in furtherance of Interim order of this Hon’ble Court.
(c) Because, the services of the class-IV employee in the institution are protected in regulation 31 of Chapter III read-with regulation 100 and there are the safe-guard provided under section 16-G (3) (a) (b) of U.P. Intermediate Education Act, 1921.
(d) Because, Once the appointment on the vacant post after due approval of the competent authority vested with the District Inspector of School is granted and the appointment letter is issued for which the approval of the competent authority is obtained for disbursement of the salary under the Payment of Salary Act, there remained no power vested with the District Inspector of School to review its earlier order of approval to the said appointment. ( Gur Prasad Versus DISTRICT INSPECTOR OF SCHOOL and another ( 1994) 2 UPLBEC 699)
(e) Because, the power of the District Inspector of School to make the payment of salary is not subject to any authority, but have been delegated to him under U.P. Act no. 24 of 1971 by the State Govt. in the institution under the grant- in-aid list and the Regional Level Committee constituted in furtherance of Govt. order dated 19.12.2000 by the perusal of Clause 5 of last paragraph does not authorize or confer any other authority to exercise such power. (Ajit Ram Vs. DISTRICT INSPECTOR OF SCHOOL Ballia 2005 (3) U.P.L.B.E.C. 2516).
(f) Because, the respondent no.6 was suspended fro the post of principal by an order dated 18.7.2002, the approval to the suspension order was passed on 16.9.2002 and the said order was challenged by filing another writ petition no. 16810 of 2004 by the respondent no.6. The interim order has been passed staying the operation of the said order passed on 16.9.2002 by an order dated 26.4.2004 passed in the said writ petition no. 16180 of 2004.
(g) Because, the interim order staying the operation of an order under challenge does not wipe out the existence of the impugned order of suspension passed against the respondent NO. 6. Thus the order of the suspension passed against respondent no.6 is still in existence inspite she has been allowed to function as the Principal and to draw her salary.( M/S Chamundi Moped Limited Vs. Church of South India Association reported in A.I.R. 1992 S.C. page 1439)
(h) Because, orders were passed again by the respondent No. 6, (still the suspended principal) on 15.12.2007 and 17.12.2007 even after revocation of the earlier order passed by the same authority passed on earlier on 7. 9. 2007 and 20.8.2007 by the Committee of management on 20.9.2007, and its approval order passed on 8. 10. 2007 by the District Inspector of School 2nd VARANASI, shall be deemed to be redundant, obsolete and passed in inherent lack of Jurisdiction.
(i) Because, both these orders issued on 15.12.2007 and 17.12.2007 cancelling the appointment of the petitioners from the date of their initial appointment are the orders passed wholly without jurisdiction as it has been laid down by the Hon’ble Apex Court in number of decision that appointment letter issued to the employees after due approval in accordance with law cannot be cancelled w.e.f. from the date of appointment on subsequent occasion. (A.I.R. 1990 S.C. Page 307 Sridhar Vs. Nagar Palika Jaunpur and A.I.R. 1991 S.C. 309 Savran Kumar Jha Vs. State of Bihar).
(j) Because, the petitioners approached to the competent authority vested in the Committee of Management for setting aside the aforesaid orders passed on 15.12.2007 and 17. 12. 2007. It is submitted that orders were passed by the Committee of management through its Manager on 25.2.2008 in respect of order passed on 15.12.2007 and 17. 12. 2007 pertaining to cancellation of appointment of petitioners by allowing the aforesaid representation.
(k) Because, the authorized controller was appointed sometime in April – May 2008 and he passed an order on 8.9.2008 stating therein that the order passed on 25.2.2008 by the Committee of Management was subsequent revoked by filing application on 1. 3. 2008 and also some affidavit on 20.6.2008.
(l) Because, the existence of any such application has been denied by the manager of institution, who passed the order dated 25.2.2008. However, no decision could have been taken by authority concerned in respect of matter which was already decided by the competent authority on 25.2.2008, when the appointment of authorized controller was not done even by the time of passing such order by Committee of Management.
(m) Because, the order passed by the committee of management on 25.2.2008 may not be subjected to be revoked as this order was not passed during the period when the authorized controller took over the charge and the affidavit relied upon in the impugned order dated 8.9.2008 passed by the authorized controller.
(n) Because, no opportunity of hearing was ever given, nor the authorized controller was empowered to pass any order in absence of any appeal filed before the said authority by the petitioners as the order dated 25.2.2008 became final revoking the orders dated 15.12.2007 and 17.12.2007.
(o) Because, the District Inspector of Schools wrote many letters on 8.5.2008 relying upon the decision of committee of management passed on 25.2.2008, it was stated that when the order passed by respondent no.6 on 15.12.20007 and 17.12.2007 have been set aside by the decision of the management on 25.2.2008, but still then the payment of salary have not given to the petitioners and as such the explanation was sought from the office of the authorized controller.
(p) Because, after the order passed on 25.2.2008 by then committee of management revoking the order dated 15.12.2007 and 17.12.2007 passed by respondent no.6 and the said order was taken note by the approving authority on 1.9.2008 with a direction to provide the explanation from the authorized controller.
(q) Because, the order dated 8.9.2008 passed by the authorized controller and relying upon non-existent orders passed by respondent no.6, is an order which is not only arbitrary and passed in flagrant violation of Principles of natural justice, but the said order has been passed in inherent lack of jurisdiction and by misuse of his power for which the strong action may be taken against the said authority.
(r) Because, the impugned order passed on 5.11.2008 is issued in inherent lack of jurisdiction by circumventing the procedure prescribed for taking the departmental proceedings to dispensed with services of the class-IV employee of the institution.
(s) Because, the appeal filed by petitioners was allowed on 25.2.2008 and the DISTRICT INSPECTOR OF SCHOOL by his order dated 8.5.2008 and 1.9.2008 had already taken note of the said order regarding the existence of the revocation order to the order passed on 15.12.2007 and 17.12.2007.
(t) Because, the authorized controller was not empowered to undo the action of the committee of management taken place on 25.2.2008 when the authorized controller was not even given appointment to look after the management of the institution.
(u) Because, the Impugned order passed on 5.11.2008 is an order passed without jurisdiction. It was the duty of District Inspector of Schools, II, Varanasi to look into the matter over all from back ground of all such facts before passing the said order on 5.11.2008 as to whether the same authority of District Inspector of Schools II Varanasi may allege that approval granted by his predecessor in the year 2002 and 2004 was not in accordance with provisions of law.
(v) Because, prior approval of the District Inspector of School for selection process and for giving appointment to the petitioners as per the procedure laid down in Regulation 2 (1) , 101 and 102 in chapter III of U.P. Intermediate Education Act 1921 with approval and permission of District Inspector of School to file up vacancy as laid down in case of Jagdish Singh versus State of U.P. (2006) 2 UPLBEC 1851 and for such procedure of selection, there is no rider imposed in the Govt. Order dated 19. 12 2000, which can not become the basis for District Inspector of School for cancellation of the appointment of the petitioners from it’s inception.
(w) Because, no opportunity of personal hearing was given to the petitioners, nor representation filed by the petitioners have been taken into consideration by the authorized controller before passing impugned orders on 8. 9. 2008 and also on 5. 11. 2008 by the respondent no. 3, thus the impugned order is passed in violation of the principle of natural justice and also in violation of articles 14, 16 and 21 of the constitution of India. (D. K. Yadav versus M/ s J. M. A. industry JT 1993 S.C. Vol. 3 page 617)
PRAYER
It is, therefore, Most respect fully prayed that this Hon’ble court may graciously be pleased to :-
i). Issue a writ, order or direction in the nature of CERTIORARI quashing the impugned order dated 8.9.2008 passed by authorized controller the respondent no. 4 ( ANNEXURE NO. 23), and the order dated 5.11.2008 passed by respondent no.3( ANNEXURE NO. 24) .
ii) Issue a writ, order or direction in the nature of MANDAMUS directing the respondents not to interfere in the functioning of the petitioners and to permit them to discharge their duties as class IV employee of the institution and to pay them regular salary.
iii) Issue a writ, order or direction in the nature of any DIRECTION, which this Hon’ble Court may deem fit in the facts and circumstances of the case.
Iv) to award the exam plenary cost to the petitioners from the respondents.
Dated : 12/ 11 /2008 (Yogesh Kumar Saxena) Advocate Chamber No. 139, High Court Counsel for the Petitioners
