IN THE HON’BLE HIGH COURT OF JUDICATURE
AT ALLAHABAD.
CIVIL MISC.
AD – INTRIM APPLICATION
NO. OF 2008
( under Chapter XXII Rule 1 of Allahabad High
Court Rules read with 151 C.P.C.)
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.
2. 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 the
full facts and circumstances of the case are submitted in the writ petition ,
it is expedient in the interest of
Justice , that this Hon’ble Court may graciously be pleased to stay the effect and operation of the impugned
orders passed on 5. 11. 2008 and 8.9.2008 by the respondent no. 3 and 4 and the
respondents may further be restrained from
interfering in the services of the petitioners in due discharge of their duties
and pay them regular Salary on their respective posts.
PRAYER
It
is, therefore most respectively prayed that this Hon’ble Court may graciously
be pleased to to stay the effect and
operation of the impugned orders passed on 5. 11. 2008( ANNEXURE NO. 24), and
8.9.2008( ANNEXURE NO. 23), by the respondent no. 3 and 4 and the
respondents may further be restrained
from interfering in the services of the petitioners in due discharge of
their duties and pay them regular Salary on their respective posts.
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.
2.
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 read with 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
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