A.F.R. Court No. - 18 Case :- WRIT - A No. - 39517 of 2010 Petitioner :- Ram Singh And Another Respondent :- State Of U.P. & Ors. Petitioner Counsel :- Yogish Kumar Saxena Respondent Counsel :- C.S.C. Hon'ble Arun Tandon,J.
Heard Sri Yogesh Kumar Saxena on behalf of the petitioner, Sri P.S. Gaghel,
Senior Advocate assisted by Sri Gautam Baghel, Advocate on behalf of
respondent no. 5 and Sri K.K. Chand, Standing Counsel on behalf of the State
respondents.
Connect with Writ Petition Nos. 55308 of 2004, 48865 of 2008 and 19243 of
2007.
Issue notice to respondent nos. 6 and 7 fixing 02nd August, 2010 as the date.
Petitioner to take steps by speed post within three days. All the respondents
may file counter affidavit by the next date.
The facts of the present case prima facie establish the manner in which the
office of the Regional Joint Director of Education, Kanpur Region, Kanpur in
collusion with the District Inspector of Schools and the Principal of
recognized Intermediate Colleges are playing havoc with the system of
appointment of Class-IV employees in recognized and aided Intermediate
Colleges, the liability of payment whereof is upon the State Government.
Facts in short are as follows:
Vacancies on two Class-IV post are said to have become available in Swami
Shiva Nand Higher Secondary School, Thathia, District Nannauj due to
retirement and death of earlier incumbents. One R.S. Rajpoot the then
Principal of the institution is said to have made appointment of two persons
namely Shailendra Kumar and Shiv Lakhan Rathor (1st Set) against said
vacancies. As per the records available, the said appointments were made
without following any procedure known to law and without there being any
approval under Regulation 101 of Chapter-III of the Regulations framed
under the Intermediate Education Act.
Sri Om Prakash Kanaujia was subsequently appointed as officiating Principal
and he published an advertisement for making appointment against the same
two vacancies and Sri Arvind Kumar and Ram Singh (2nd Set) are stated to
have been selected for the post.
Not being satisfied appointees (1st Set) filed Writ Petition No. 55308 of 2004
challenging the advertisement and the proceedings which were being taken.
The High Court on 22.12.2004 granted an stay order, whereby declaration of
result was stayed. Even prior to said date the result was declared on
29.11.2004, and the papers were transmitted to the Regional Level Committee
for approval. The Regional Level Committee vide order dated 28.12.2006
returned the papers on the ground that there was an stay order passed by this
Court.
Sri Om Prakash Kanaujiya cancelled the appointment made and on
26.01.2007 published a fresh advertisement for the same post and in the fresh
selection 2nd Set was selected again. The District Inspector of Schools passed
an order on 01.02.2007 staying the selections.
Sri Om Prakash Kanaujiya in his capacity as Principal, therefore, filed Writ
Petition No. 19243 of 2007 wherein the Court vide order dated 16th April,
2007 required the District Inspector of Schools to examine the matter. The
District Inspector of Schools vide order dated 01.12.2007 approved the
appointment made. This order was brought to the notice of the Regional Joint
Director of Education at the relevant time and he vide order dated 21.05.2008
held that the order of the District Inspector of Schools granting approval dated
01.12.2007 was illegal and therefore rendered it inoperative. It was further
provided that the appropriate action shall be taken in the matter after the Writ
Petition No. 55308 of 2004 is finally decided by the High Court.
This order of the Regional Joint Director of Education was subjected to
challenge by 2nd Set by means of Writ Petition No. 48865 of 2008 before this
Court wherein no interim order has been granted and the writ petition is
pending.
The Court is surprised that while the aforesaid writ petitions were pending
before this Court, the District Inspector of Schools is stated to have granted
permission on 15.01.2009 to again advertise and fill the same vacancies by
direct recruitment. On the basis whereof selections are said to have been held
and the Regional Level Committee vide an order dated 04.07.2009 approved
the appointment of the respondent nos. 6 and 7 (3 rd Set). The order of the
Regional Level Committee makes no mention of the pending proceedings and
the selections held earlier nor it makes mention of the order of the Regional
Joint Director of Education dated 22.05.2008, which specifically held that the
appointments cannot be made till the Writ Petition No. 55308 of 2004 is
finally decided.
This Court may record that the Regional Joint Director of Education and
District Inspector of Schools are party to Writ Petition Nos. 55308 of 2004
and 48865 of 2008. Both are pending before this Court and he was also party
to Writ Petition No. 19243 of 2007, which was decided by this Court, as
referred to above.
It appears that the District Inspector of Schools and the Joint Director of
Education deliberately did not examine the records, which were available in
their office, in the mater of appointment of Class-IV employees in the
institution. The resultant situation is that against 2 post six persons claim to
have been appointed and because of uncalled for orders being issued by the
Joint Director of Education, who is the Chairman of the Regional Level
Committee, and the District Inspector of Schools, writ petition after writ
petitions are being filed before this Court.
What is further surprising to note is that becaues of the collusion between the
District Inspector of Schools and the Joint Director of Education with the
Principal of the college a some of Rs. 80,000/- (eighty thousand) each is said
to have been paid to the appointees, whose appointments have been approved
under the impugned order dated 04.07.2009.
This Court while entertaining the present writ petition required the Joint
Director of Education to file his affidavit categorically stating as to how the
appointments could be approved despite the pendency of the writ petitions,
referred to above.
An affidavit has been filed by the Joint Director of Education today and it has
been stated that the Principal of the institution deliberately concealed the fact
of the pendency of the writ petitions and that a certificate was issued by him
to the effect that no dispute was pending in respect of two posts. It is stated
that it is because of the collusion between the Principal and the Manager of
the institution that the selection proceedings have taken place and that action
is being recommended against the Principal and Manager of the institution.
The explanation furnished by the Joint Director of Education is too flimsy to
be accepted by this Court. The order of the Regional Level Committee makes
mention of no date on which the advertisement was published, the mode and
manner of the selection and as to whether there is compliance of the law
explained by this Court in the matter of appointment of Class-IV employees
in recognized Intermediate Colleges in the case of Principal, Adarsh Inter
College, Umari, Bijnor vs. State of U.P. and others; 2010 (1) ADJ 403,
which has since been affirmed by the Division Bench of this Court.
It appears that deliberately the authorities have acted in a manner to dilute the
proceedings which are pending before this Court, resulting in public
exchequer being defrauded. Such attempts have to be dealt with in firm
manner so that they become a deterrent for the officers involved as also for
the future officers, who may subsequently hold the office. This Court would
fail in its duty, if any leniency is shown in the matter qua such illegal
appointments.
This Court, therefore, directs that the Regional Joint Director of Education
and the District Inspector of Schools shall deposit the entire salary paid to
respondent nos. 6 and 7 in the Government Account by Monday i. e. 02nd
August, 2010 through account payee cheque drawn from their personal
account/salary account. The money shall be kept in a separate account and
shall be subject to the orders to be passed by this Court.
Put up on Monday i. e. 02.08.2010.
Till then no further payment shall be made to the respondent nos. 6 and 7
without the leave of the Court.
Order Date :- 28.7.2010
Pkb/