JUDGMENT
Vineet Saran, J.
1. By means of this writ petition, the petitioners have challenged the orders dated 18.9.1995 and 29.6.1996 passed by the District Inspector of Schools, Varanasi whereby approval has been granted to the appointment of the respondent No. 5 ns a teacher and a direction has been made to make payment of salary to the respondent No. 5.
2. Brief facts of this case are that on the retirement of a Mead Master of the institution, the senior most L.T. Grade teacher was promoted as adhoc Head Master. Consequently a short term vacancy occurred for which, according to the case of the respondents, an advertisement was issued on 30.11.1993 in the Hindi daily “Sanmarg” and pursuant thereto, the applications were to be submitted by 15.12.1993 and thereafter the selection is said to have taken place. By resolution dated 22.12. 1993 the respondent No. 5, Om Prakash Pandey was to be given appointment. It has been stated that on the same day i.e. 22.12.1993 the papers were sent to the District Inspector of Schools for grant of approval. On the basis of such appointment letter, the respondent No. 5 is said to have joined the institution on 27.12.1993. When the respondent No. 5 was not paid his salary, he filed Civil Suit No. 276 of 1995 in the Court of the Civil Judge, Varanasi with the prayer for a direction to the defendants therein (namely the Committee of Management as well as the District Inspector of Schools) to make payment of salary on the post of L.T. grade teacher regularly month by month. Then on 7.7.1995 the respondent No. 5 filed Writ Petition No. 18099 of 1995 with the same prayer as had been made in the civil suit which was for payment of salary to the petitioner therein (respondent No. 5 herein) on the post of Assistant Teacher in L.T. Grade, alongwith arrears. The said writ petition was disposed of at the admission stage itself without calling for a counter affidavit, with a direction to the District Inspector of Schools to decide the representation of the petitioner therein with regard to payment of salary. It was after the passing of the aforesaid order in the writ petition, that on 22.7.1995 the respondent No. 5, Om Prakash Pandey got Civil Suit No. 276 of 1995 dismissed as withdrawn. Then by the impugned order dated 18.9.1995 passed by the District Inspector o!’ Schools approval was granted to the appointment of the respondent No. 5 and it was stated that he shall also be entitled to payment of salary after such directions are issued from the Directorate of Education. Thereafter by order dated 29.6.1996 the District Inspector of Schools directed for payment of salary to the respondent No. 5. Aggrieved by the aforesaid orders, ‘his writ petition has been filed.
3. I have heard Sri I.R. Singh, learned Counsel appearing for the petitioners as well as learned Standing Counsel appearing for the State-respondents, Sri S.D. Ojha, learned Counsel appearing for the respondent No. 4 and Sri D.S.M. Tripathi, learned Counsel appearing for the respondent No. 5 and have perused the record.
4. The submission of the learned Counsel for the petitioners is that the respondent No. 5 has played fraud on the Court by concealing material fact of having availed the alternative remedy of filing suit and having filed the Writ Petition No. 18099 of 1995, with the same prayer as had been made in the suit, without disclosing the fact that he had already filed a suit. It has furl tier been contended that the appointment of the respondent no 5 could have been made only under the U.P. Secondary Education Service Commission (Removal of Difficulties) Second Order, 1981 (for short “Removal of Difficulties Second Order”) and since compliance of the said order had not been made, the appointment of the respondent No. 5 could not be held to be valid.
5. Sri D.S.M. Tripathi, learned Counsel appearing for the respondent No. 5 has, however, submitted that the appointment of the respondent No. 5 was made after proper advertisement and following the selection process and, as such, the approval has rightly been granted by the District Inspector of Schools. He has further submitted that the fact regarding the respondent No. 5 having already filed civil suit may not have been mentioned by the respondent No. 5 in Writ Petition No. 18099 of 1995 but ‘he same could not be said to be a material fact so as to amount to playing fraud or misrepresenting before the Court.
6. This Court had called for the record of Writ Petition No. 18099 of 1995 so as to verify that whether any disclosure with regard to the filing of the civil suit had been made in the said writ petition. On perusal of the said writ petition, it is clear that the respondent No. 5 had not mentioned that he had earlier filed a civil suit with the same prayer as had been made in that writ petition. The said writ petition was disposed of on the first day of its presentation, without issuing notice to the private respondents, which included the petitioner-institution. As such, the institution did not have an opportunity to place the correct facts and point out to the Court that the respondent No. 5 had already availed the alternative remedy by filing a civil suit and thus the writ petition would not be maintainable.
7. An order, which may appear to be innocuous, had been passed by this Court on 7.7.1995 directing the District Inspector of Schools to decide the representation of the respondent No. 5 with regard to payment of his salary. In the facts of this case, in my view, the said order had been obtained by fraud and misrepresentation, as withholding material information from the Court amounts to concealment of fact and in this case the respondent No. 5 had concealed the material information of having filed civil suit. Although it is not the respondent, No. 5 who has approached this Court in this writ petition but this practice of a party obtaining orders from the Court by misrepresentation and fraud should not be encouraged and as and when it comes to light, such party should be put to terms and the benefit which such party could have or has accrued because of the ex-parte order obtained by concealing material fact should be withdrawn.
8. It is settled law that dishonesty should not be permitted to perpetuate to benefit a person who plays fraud and makes misrepresentation, and also that the Court should not validate the action which is based on an order which has been obtained by misrepresentation. As such, in my view, the benefit of the orders should not be given to the respondent No. 5 because the same would encourage parties to obtain orders by misrepresentation, as a so-called innocuous order of deciding the representation of the respondent No. 5 would not have been passed, or rather should not have passed, had it been brought to the knowledge of the Court that the respondent No. 5 had already availed the remedy o filing a civil suit which was pending as on the date when the said writ petition was filed and order passed.
9. Even on merits, what is to be seen is whether compliance of the procedure prescribed under the Removal of Difficulties Second Order was made or not. Paragraph 2 of the said order relates to the procedure for filling up short term vacancies. Sub-para (1) provides for filling up such vacancies by promotion and sub-para (2) and (3) relate to filling up of vacancies by direct recruit me it. The procedure for filling up vacancies by direct recruitment has been given in sub-para (3) of para 2. The same mandatorily requires that prior to issuing any advertisement or notifying the vacancy on the notice board, the management
shall intimate the vacancy to the District Inspector of Schools. Nothing has been brought on record to show that the management had ever intimated the District Inspector of Schools of such vacancy which was sought to be filled up. The said sub-para (3) also requires for prior approval before making any appointment. Although it is provided that approval, if not given by the District Inspector of Schools within sew n days, would be deemed to have been given and thereafter the management shall make appointment, either on grant of specific approval or deemed approval after seven days. As already stated above, there was no intimation of vacancy given to the District Inspector of Schools or any approval (specific or deemed) granted. The resolution for appointing the respondent No. 5 was made on 22.12.1993. The appointment was also given on 22.12.1993. Allegedly the papers were sent to the District Inspector of Schools for approval on 22.12.1993, as such, the appointment which is said to have been given was done so without waiting for the approval or passage of seven days of time for deemed approval, and thus also the same cannot be said to be a valid appointment.
10. Sri Tripathi, learned Counsel appearing for the respondent No. 5 has relied on a decision in the case of Awadh Behari Pandey v. The Chancellor, University of Gorakhpur 1986 UPLBEC 710 wherein, while dealing with a case of grant of appointment having been given prior to approval granted by the Vice Chancellor, this Court has held that deemed approval came into existence on lapse of one month’s time and as such once such approval would be deemed to have come into existence, the appointment would become valid from such date. The said case relates to appointment being made under the U.P. State Universities Act, 197.5. In the case of Rakesh Kumar Divedi v. The Director of Education 1998 (2) LBESR 708 (All) this Court, while dealing with a case relating to Removal of Difficulties Second Order, has laid down as follows:
11. Clause (iii) requires the District Inspector of Schools to communicate his decision within seven clays of the date of receipt of particulars by him, failing which the inspector will be deemed to have given his approval There can not be any ambiguity in interpretation to the extent of deeming approval in default of intimation of the approval within seven days. Nowhere in. the writ petition, it: has been pleaded that on which date the details forwarded on 30.4.1982 has been received in the office of the District Inspector of Schools. It is also nowhere pleaded that the Committee of Management had waited for seven days after the receipt of such particulars by the District Inspector of Schools and only after the deemed approval came into being the appointment letter was issued. The expression of Clause (iii) is qualified by Clause (iii) is qualified by Clause (ii) regarding prior approval which interpretation finds support by Clause (iv). Clause (iv) requires that on receipt of the approval of the District Inspector of Schools or, as the case may be, on his failure, to communication his decision within seven days of the receipt of papers by him from the Manager, the management shall appoint the selection candidate and an order of appointment shall be issued under the signature of the Manager. Thus, only after the approval as contemplated in Clauses (ii) and (iii), is received by the Committee of Management, the appointment letter can be issued under the signatures of the Manager. Therefore, the expression prior approval in Clause (iii) is qualified by the expression used in Clause (iv) which requires the school authority to issue appointment letter only after the receipt of approval but at the same time Clause (iv) also contemplates the contingency of deemed approval of Clause (iii). It contemplates that on. failure to communicate the decision within seven days by the District Inspector of Schools, the management shall appoint the selected candidate and an order of appointment shall he issued under the signature of the Manager.
On the facts of that case this Court had held as under:
15. On the other hand, in the present case, the interview was held on 7.3.1982 and the appointment letter was issued on 12.3.1982 which is less than seven days, namely within five days. This appointmen1 letter has no existence in the eye of law as it is issued within five days of the interview without complying the procedure prescribed in Clauses (ii) and (iv). There has been infraction of the procedure provided in sub-para (3) of Para 2 and the petitioner joined on 15.3.1 982. The papers were sent to the District Inspector of Schools on 30.4.1982. In view of Clause (iv), such an appointment letter cannot be issued. On the other hand, such an appointment letter has to be issued strictly in terms of provisions prescribed in Clauses (iii) and (iv).
“16. Therefore, in the eye of law”, tire appointment of the petitioner having been done without complying the provisions of para 2 of Second Removal of Difficulties Order, the petitioner has no legal right to the pest and in that view of the matter, there is no question of regularization. The petitioner’s appointment is alleged to have been done under the provisions of Second Removal of Difficulties Order. But, since the conditions thereunder are not complied with, the petitioner cannot claim any legal right and benefit under the said provisions of Order.
11. The case in hand is similar, if not identical, to the case of Rakesh Kumar Divedi (supra) where also the appointment had been given prior to approval. In my view, in the present case also the appointment letter, having been issued without waiting for approval of the District Inspector of Schools had not come into existence in the eye of law, as it was issued on the very day itself when the papers are said to have been sent for approval. Since in my view, compliance of the provisions of the Removal of Difficulties Second Order had not been made, I would not be inclined to go into the question raised by the learned Counsel for the petitioner with regard to publication of the notice in a Newspaper which did not have wide publicity, although the same would also be material factor j as normally when there are Newspapers of State and National repute published from the district then the question would arise that why should notice be published in an insignificant Newspaper which does not have much circulation.
12. As such, for the foregoing reasons, the orders dated 16/18.9.1995 and 29.6.1996 passed by the respondent No. 1, the : District Inspector of Schools, Varanasi granting approval to the ^ appointment of the respondent No. 5 and directing payment of salary to him, deserve to be quashed and are accordingly quashed.
13. In terms of the interim order granted on 11.12.1996, the respondent No. 5 has worked till date and has been paid his salary. Taking a lenient view and humanitarian approach in the case, it is provided that the salary, if already paid to the respondent No. 5, shall not be recovered from him. It is further provided that the petitioner Committee of Management as well as District Inspector of Schools shall ensure that the vacancy is filled up through the U.P. Secondary Education Service Selection Board as expeditiously as possible. Steps in this regard shall be initiated by the petitioner within a month and the District Inspector of Schools shall forward the papers to the Board within a month thereafter.
14. With the aforesaid observations/directions, this writ petition stands allowed. No order as to costs.