RAM NIWAS SINGHversusSTATE OF U.P. AND OTHERS

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                    SPECIAL APPEAL No. - 222 of 2008

Ram Niwas Singh
                                                        .....Appellant(s)
                                 Versus

State of U.P. and Others
                                                       .....Respondent(s)

Counsel for Appellant(s)      : Ajay Mishra, S.K. Mishra, Shri Krishna
                                Mishra, Vinod Sinha
Counsel for Respondent(s)     : Anil Kumar Shukla, C.S.C., H.N. Singh

Court No. - 1
                HON'BLE AJIT KUMAR, J.
                HON'BLE SWARUPAMA CHATURVEDI, J.

1. Heard Sri S.K. Mishra, learned Senior Advocate
assisted by Sri Sachin Chauhan, learned counsel for the
petitioner as well as Ms. Shruti Malviya, learned brief
holder appearing for the State respondents.

2. This intra court appeal is directed against the order of
learned Single Judge dated 18.01.2008 dismissing the
writ petition of the petitioner on merits against the order
dated 15.06.2006 passed by the District Inspector of
Schools, Ghaziabad.

3. The epi centre of the controversy is, as to the legality
and validity of the appointment of the petitioner as
Assistant Clerk in a Higher Secondary School allegedly
made in the year 1979 on an existing or non existent post.
A finding has come to be recorded by the District
Inspector of Schools in the order impugned that there
existed no such vacancy upon which the appointment of
Sri Ram Niwas Singh namely the petitioner/ appellant
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could have been made and hence the appointment was
void ab initio and any salary paid to the petitioner was
recoverable. After affording reasonable opportunity of
hearing in the matter so as to enable the petitioner to file
his objections, in compliance of the order of the learned
Single Judge of this Court dated 28.11.2005 in Writ
Petition No. 7485 of 2005, the District Inspector of
Schools has come to pass a final order returning a finding
as referred to herein above.

4. Assailing the order before the learned Single Judge,
the anchor sheet argument advanced by learned counsel
for the petitioner/ appellant was that once the action of
the Committee of Management to terminate the services
of the petitioner as Assistant Clerk came to be held as
illegal and bad by the Deputy Director of Education vide
its order dated 04.05.1983 in a statutory appeal filed
against the order of District Inspector of Schools, the
controversy regarding validity of the appointment of
petitioner remained no more res integra and hence the
District Inspector of Schools could not have reopened the
issue. He further submitted that if the order of Deputy
Director of Education, 1st Region, Meerut is taken to be
final order returning a finding as to the validity of the
appointment of the petitioner, the only question remained
as to the action of the respondent education authority in
pursuing the recovery treating the petitioner's
appointment as void. He further submits that the
appointment was never in issue in previous writ petition
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in which order of remand was passed as the challenge
was laid only to the recovery orders passed by Deputy
Director of Education and the consequential order passed
by District Inspector of Schools. The arguments were
advanced before the learned Single Judge for recovery to
be in violation of principles of natural justice and since
the order of recovery resulted in adverse civil
consequences, the matter was remitted to District
Inspector of Schools on a sole point of non compliance of
principles of natural justice.

5. Thus, according to him, the only issue that required
examination by the District Inspector of Schools was as
to the correctness of the order passed by the education
authority in pursuing recovery against the petitioner who
had continued under a valid appointment order which
stood approved in appeal by the Deputy Director of
Education and the action taken by the Committee of
Management was held to be null and void.

6. In support of his submissions learned Senior
Advocate appearing for the petitioner has taken the Court
to the order of Deputy Director of Education wherein
certain issues were framed as to the validity of the
appointment order of the petitioner and the question of
prior approval in matters of appointment of Assistant
Clerk in recognized Higher Secondary School. According
to him four issues were framed and a composite finding
came to be returned holding that the Committee of
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Management could not have permitted a post to be lapsed
and hence it was taken to be a post well in existence by
way of the findings returned against the action of
Committee of Management. As far as the prior approval
part is concerned, the Deputy Director of Education very
well held that no prior approval as on that date was
required as per Chapter III of the Regulations framed
under the Intermediate Education Act, 1921.

7. Mr. Mishra, learned Senior Advocate has also
stressed upon a point that Committee of Management has
proceeded against petitioner earlier holding the
appointment of the petitioner to be bad in a suit which
ultimately got dismissed. Mr. Mishra stressed further
upon another point, whether the letter containing a line
regarding validity of the appointment is taken to be
correct or not since the appointment was subsequent in a
point of time that would hardly be relevant. It is thus
sought to be contended that the learned Single Judge
manifestly erred in affirming the order passed by the
District Inspector of Schools, which according to him
bears finding contrary to the documents on record.

8. Meeting the submissions so advanced by learned
Senior Advocate, Ms. Shruti Malviya, learned brief
holder vehemently urged that in so far as the order of
Deputy Director of Education is concerned it has placed
heavy reliance upon the letter issued in respect of
Assistant Teacher referring to regulations 59, 60 and 61
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of the Regulations framed under the Intermediate
Education Act dated 11.06.1979 which itself renders the
appended lines/ sentence to be doubtful in nature for the
reason that these regulations do not relate in any manner
to the appointment of Assistant Clerk or any adjustment
or transfer of an Assistant Clerk. It is argued that these
letters simplicitor relate to the matter of transfer of
Assistant Teacher and the very insertion of lines in
question become indicative of alleged fraud at the end of
the petitioner. It is contended by Ms. Malviya that the
petitioner would be the ultimate beneficiary of the lines
so appended, the findings returned by the learned Single
Judge that it would go against the petitioner, is absolutely
correct. Ms. Malviya further submitted that there is
nothing on record to establish that there existed ever any
vacancy of Assistant Clerk in the Institution as on date
when the appointment of the petitioner took place in the
year 1979.

9. Having heard learned counsel for the parties, in our
considered view the only issue that arises for
consideration is, as to whether appellant was appointed
on an existent or non existent post. If the appellant was
appointed on non existent post, his mere continuance in
service would not entitle him to have any legal right. The
learned Single Judge while going into the question of
right of the appellant in dealing with the matter wherein
he had questioned the order of recovery returned a
finding of fact to the effect that appellant failed to
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demonstrate that there was in fact a sanctioned post of
clerk upon which he was appointed, nor did the record
reveal existence of of any such post.

10. In the circumstances, therefore, even if the appellant
was made to continue and against his order of dismissal
or removal from service, approved by the District
Inspector of Schools (DIOS), appeal came to be allowed,
he will not get any right to continue upon a discovery
being made that he was continuing on a non existing
post.

11. Here, in this case, in order to find the answer to
point framed above, it is necessary to examine as to
whether the appellate authority while setting aside the
order of DIOS had addressed this issue or not. The order
of the appellate authority namely the Deputy Director of
Education only dealt with the issue of prior approval by
the DIOS and further placed reliance upon a letter of
approval of an Assistant Teacher regarding transfer under
Regulation 59, 60 & 61 relined upon a line appended to
the letter dated 11.06.1979 that the appointment of the
Assistant Clerk was duly approved. Interestingly the
appellant himself admits that he was appointed on
31.07.1979. In the circumstances, therefore, the
document dated 11.06.1979 would not be worth reliance.

12. Yet another point was as to how the management
could have treated the post to have lapsed itself, if there
was a post. The Deputy Director of Education did not go
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into the question as to how the post existed and as to
under what order of education authority the post was
sanctioned. The Deputy Director of Education held
appellant to be eligible for the post in question.

13. In our considered view, there cannot be any quarrel
for a candidate to have been appointed without approval,
if there was no approval provided for under the
Regulations, nor could there be any doubt as to
qualification of candidate appointed if a candidate
appointed was eligible to hold the post, but the question
remains unanswered as to whether there existed any post
or not. The matter was remitted to the DIOS under the
orders of the Court and the order for recovery passed by
the DIOS was not interfered with on merits rather remand
was on the ground that the order was passed in violation
of principles of natural justice. So, on a short point of
opportunity of hearing the matter was remanded.

14. Thus, the Court did not go into the question of
existence while remanding the matter. The Court also did
not accept the argument that the DIOS had no authority
to order for recovery once the appeal was got allowed at
the end of Deputy Director or Education, 1st Region,
Meerut under the regulations framed under the
Intermediate Education Act, 1921. DIOS returned a
finding that the appointment of the appellant was without
there being any post available and therefore, the salary
paid to the appellant for his appointment against a non
                                              SPLA No. 222 of 2008
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existent post was recoverable.

15. We repeatedly asked this question to learned Senior
Advocate as to whether, he could demonstrate from any
of the pleadings raised in the writ petition, in the affidavit
filed in support of appeal or for any other document
appended with the petition or appeal sanction of the post
in question, learned Senior Advocate could not
demonstrate.

16. In the circumstances,therefore, the finding returned
by the learned Single Judge cannot be held to be perverse
or otherwise suffering from any such manifest error of
law or fact which may warrant interference in this intra
court appeal.

17. The appellant could not set up any valid claim of
appointment on a non existent post, however, we find
that the appellant had worked by virtue of appointment
made by Committee of Management and had even been
paid salary and was further made to continue and paid
salary in view of the order passed by Deputy Director or
Education, 1st Region, Meerut and this order remained
unquestioned at any forum either by the Committee of
Management or by the education authorities. Thus, the
order of Deputy Director or Education, 1st Region,
Meerut dated 04.05.1983 remained intact. This order was
further complied with by the DIOS by passing
consequential orders on 16.05.1983 and 29.10.1986. We
further notice that the first order for payment of salary to
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the petitioner was passed by the DIOS himself on
12.09.1983 and the first order for withholding of salary
of the appellant has been passed at the end of Special
Secretary, State of U.P. on 28.09.2004 and the
consequential action taken by the Deputy Director or
Education on 23.11.2004 and the order of Finance and
Accounts Officer, Ghaziabad is of 25.01.2005. Thus,
right from 1980 till 2005 if the appellant was paid salary,
he was paid salary only under the orders of education
authorities and those orders including the order of Deputy
Director of Education, 1st Region, Meerut dated
04.05.1983 were never recalled.

18. In the circumstances, therefore, if the appellant
discharged his duties as a Clerk in the institution and was
paid salary under the authority of the State through the
State exchequer, such amount does not become
recoverable only for the reason that subsequently
authorities geared up upon some complaint being filed
that appointment of the appellate was bad for want of
sanctioned post. There is nothing on record to establish
that as to what action the State Government has taken
against the education authorities who were guilty for
directing payment of salary to the petitioner.

19. In the circumstances, therefore, first the liability
ought to have been fastened upon the authority concerned
before directing for recovery. There is nothing in the
counter affidavit to show that any enquiry was held
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                                    against the erring official and any offer was made to
                                    recall the orders of payment of salary, the same.
                                    Petitioner has already attained the age of superannuation.

                                    20. Accordingly, while we are affirming the judgment in
                                    appeal, but we still hold that any recovery from the salary
                                    of the appellant wold be made only after fixing the
                                    liability of concerned education authority/ official in
                                    directing for payment of salary and taking appropriate
                                    action against them.

                                    21. Appeal stands disposed of consequently.


                                                         (Swarupama Chaturvedi,J.) (Ajit Kumar,J.)
                                    March 18, 2026
                                    IrfanUddin




Digitally signed by :-
IRFAN UDDIN SIDDIKI
High Court of Judicature at Allahabad