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Reserved Judgement
Civil Misc. Writ Petition No. 5936 of 1980
Brijendra Kumar Misra Vs. State of U.P. and others
AND
Civil Misc. Writ Petition No. 60122 of 2009
Brijendra Kumar Mishra Vs. State of U.P. and others
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Hon’ble A.P. Sahi, J
I have heard Sri A.N. Tripathi, learned Senior Counsel for
the petitioner in Writ Petition No.5936 of 1980 and Sri Arvind
Kumar Shukla for the same petitioner in Writ Petition No. 60122
of 2009. A caveat was filed in the second writ petition through Sri
Mukim Ahmad, Advocate, on behalf of Mohd. Shamim Khan –
Respondent No.5 therein.
An Amendment Application was filed challenging the order
of the Joint Director of Education dated 13.10.2009 which was
allowed by this Court on 10.11.2009. A counter-affidavit has been
filed on behalf of the Committee of Management and Sri Mukim
Ahmad represents the Committee of Management in Writ Petition
No. 5936 of 1980.
Learned counsels have been heard and the Standing
Counsel has advanced his submissions on behalf of the State
Authority.
With the consent of parties, the matter is being disposed of
finally under the Rules of the Court as no further Affidavits need
be entertained in view of the nature of the order that is to be
passed.
The petitioner – Brijendra Kumar Mishra claims himself to
have been appointed as Lecturer (Sanskrit) against a substantive
and clear vacancy having been appointed in accordance with the
then existing Rules which was approved by the District Inspector
of Schools vide order dated 1.11.1975; copy whereof is Annexure-
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1 to 1980 petition. The said approval was then granted under
Section 16-F-2 read with the Removal of Difficulties Order. The
petitioner claims to have been continued as a Teacher and he
claimed regularisation under the Government Order dated
21.4.1977 which has been subsequently incorporated under
Section 16-GG of the U.P. Intermediate Education Act, 1921. The
petitioner contends that he was, therefore, continuing as a
Teacher in view of the aforesaid provision and his services stood
regularized.
The petitioner contends that his services were allegedly
terminated w.e.f. 1.7.1980 without taking prior approval of the
District Inspector of Schools which compelled him to file the
present writ petition challenging the said termination order dated
30.6.1980, Annexure-6 to the writ petition.
At the very outset, it may be noted that initially there was
an internal dispute relating to the Management of the institution
and further as to whether the institution was a minority institution
or not. The said issue was ultimately decided in Badrul Hasan
Quadri Vs. State of U.P. and others, Writ Petition No. 2940 of
1979 dated 12.2.1992 reported in 1992 ESC 167 holding that the
institution did not have a minority status. The said decision of the
Division Bench of this Court was upheld by the Apex Court.
The question, therefore, is whether the petitioner was
continuing in substantive capacity or not and in the event he was
continuing in the substantive capacity, then the consequential
benefits will ensue including the claim of seniority of the petitioner
as against Shamim Ahmad.
Sri A.K. Shukla on behalf of the petitioner, urged that in
view of the decision of this Court in the case of Uma Shanker
Pandey Vs. District Inspector of Schools, Deoria and others,
reported in 1985 UPLBEC 170, the appointment of the petitioner
would stand regularized and, therefore, he will be deemed to be in
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substantive capacity.
The question of seniority of the petitioner would, therefore,
be entirely dependent on the question of his continuance in
service.
Learned counsel for the respondent – Committee contends
that the petitioner’s services stood terminated by operation of law
and, therefore, the subsequent termination order which is under
challenge in the present petition cannot ensue any benefit to the
petitioner. It is submitted that for the purpose of regular
appointment under Section 16-GG of the U.P. Intermediate
Education Act, 1921, the petitioner does not fulfil the conditions
referred to therein and, therefore, in absence of any continuance
of service, there is no occasion to consider him to be a regular
employee. The subsequent termination, which is under challenge
in the present writ petition, therefore, also does not reflect any
vested right in the petitioner.
It is to be noted that this Court vide order dated 15.9.1980,
passed an interim order staying the operation of the termination
order. The petitioner has, therefore, continued in service on the
strength of the aforesaid order. It is for this reason that the
District Inspector of Schools passed the order on 6.8.2009
attesting the signatures of respondent No.5 – Mohd. Shamim
Khan as the officiating Principal of the institution. The question of
consideration of seniority by the Committee of Management was,
therefore, directed by the Joint Director of Education on
13.10.2009 which has been challenged through the amendment
application. Learned counsel for the petitioner contends that the
petitioner has been treated to be a permanent Teacher of the
institution in substantive capacity and for that certain documents
have been relied upon, filed along with the amendment
application in Writ Petition No. 60122 of 2009. It has also been
stated that the erstwhile Manager has also admitted the aforesaid
legal position in favour of the petitioner.
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Having heard learned counsel for the parties and the
Affidavits exchanged, it is evident from the records of Writ Petition
No.5936 of 1980 that the claim of regular appointment of the
petitioner has not been finalized due to the pendency of the said
writ petition. The status of the petitioner is being disputed on
account of absence of a regularisation order in favour of the
petitioner and also on the ground that the petitioner could have
been terminated by the Management as he was working in a
minority institution. It is further noticed in the counter-affidavit of
the Management that the District Inspector of Schools was of the
opinion that the petitioner deserves regularisation whereas the
Committee of Management had taken the stand that there was no
proper approval under Section 16-FF of the U.P. Intermediate
Education Act. The Committee of Management has levelled
allegations against the District Inspector of Schools in the said
counter-affidavit.
In view of the aforesaid position and the stand taken by the
respective parties before this Court is concerned, one thing needs
to be clarified and that is that there is no order of the competent
authority in relation to the status of the petitioner’s initial
appointment and continuance in service. The claim of the
petitioner has to be adjusted in relation to his status and claim of
regularisation under Section 16-GG of the U.P. Intermediate
Education Act, 1921. The institution has been admittedly held to
be not a minority institution in view of the decision reported in
1992 ESC 167 (supra).
Accordingly, I am of the opinion that the claim of the
petitioner has to be first determined after calling for the records in
relation to his status of employment and regularisation before
proceeding to decide his claim of seniority. The writ petition
No.5936 of 1980, which challenges the termination order dated
30.6.1980, has to be disposed of in the light of the said facts.
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The authority will also have to determine as to whether the
termination order dated 30.6.1980 was passed in accordance with
law and as to whether the same required any prior approval or
not. It is, therefore, necessary that the writ petition be disposed
of with a direction to the Regional Joint Director of Education,
Azamgarh Region, Azamgarh, to examine the status of the
petitioner’s appointment and in the event it is found that the
petitioner was a regular employee then as to whether the order of
termination dated 30.6.1980 should stand the scrutiny of law or
not. The petitioner will, therefore, file his representation before
the Regional Joint Director of Education and the said authority
shall, after issuing notice to the Committee of Management and
calling for comments from the District Inspector of Schools,
proceed to determine the status of the petitioner as well as the
legality of the order of termination dated 30.6.1980. In the event
the petitioner is found to be entitled to retain his service, then
necessary directions shall be issued for determination of his
seniority. While doing so, the Regional Joint Director of Education
shall hear the objection of the aggrieved parties and record his
findings in this regard.
Accordingly, the writ petition stands disposed of with a
further direction that the petitioner shall be entitled to continue in
service in terms of the interim order dated 15.9.1980 passed by
this Court in Writ Petition No. 5936 of 1980 till final orders are
passed by the Joint Director of Education within 3 months from
the date of production of a certified copy of this order before him
as observed herein above.
With the aforesaid observations, both the writ petitions
stand disposed of.
Dt. Jan. 13, 2010
Irshad