IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 16 of 2007 Rishi Pal …Appellant Versus District Inspector of Schools, Haridwar, and others …Respondents Mr. Ravi Babulkar, counsel for the appellant. Mr. Vinay Kumar, Standing Counsel for the State/respondent nos. 1 and 2. Mr. Ajay Veer Pundir, counsel for respondent nos. 3 and 4. Coram: Hon’ble Barin Ghosh, CJ. Hon’ble Nirmal Yadav, J. Barin Ghosh, CJ. (Oral) Kisan Vidyalaya Inter College, Laksar, Haridwar is a privately managed aided institution and accordingly is governed by the provisions of U.P. Intermediate Education Act, 1921. In the year 1983, the Uttar Pradesh Secondary Education Services Commission Rules, 1983 were made in order to select teachers to be appointed in the schools as that of the said school. On 16th July 1992 Rule 9-A was inserted in the said Rules. In terms thereof the District Inspector of Schools became authorized to recommend supplying of vacancies in the posts of Lecturer and Trained Graduate Teachers in those schools on ad-hoc basis until the Commission selects candidates to supply the same. On 30th August 1992 in the said school a gentleman by the name of Sri Jaydhwaj Kumar was working as a trained graduate teacher though on ad-hoc basis. Prior to his appointment, as such, Sri Jaydhwaj 2 Kumar was a teacher of the said school having certificate of teaching qualification. On 30th August 1992 the District Inspector of Schools, Haridwar recommended to the said school five gentlemen for appointment as trained graduate teachers on ad-hoc basis until the vacancies to be supplied by them, are supplied by people to be selected by the Commission. One of those five gentlemen was the appellant. For some reason or the other Sri Jaydhwaj Kumar was reverted from trained graduate teacher to his substantive post of teacher with certificate of training. The said school thereupon asked the District Inspector of Schools, Haridwar as to what should be done in relation to the ad-hoc teachers appointed by school on the basis of the said recommendation of the District Inspector of Schools dated 30th August 1992. By the most irresponsible letter dated 27th March 2003, District Inspector of Schools, Haridwar informed the school to find out whether the appellant was appointed in the resultant vacancy cropped up in the post of teacher with certificate of training, which was being held substantively by Sri Jaydhwaj Kumar, who was promoted to the post of Trained Graduate Teacher on ad-hoc basis and who had been reverted back to his substantive post, and if that be to bring to an end the services of the appellant on the basis of the provisions contained in the said Act. Promptly thereafter, taking cue from the said irresponsible letter of District Inspector of Schools, Haridwar dated 27th March 2003 3 the said school terminated the services of the appellant by a letter dated 8th April 2003 holding out that the appellant was appointed on ad-hoc basis in the post of teacher with certificate of training, substantively held by Sri Jaydhwaj Kumar, who before the appointment of appellant was promoted on ad-hoc basis to the post of Trained Graduate Teacher and later on was reverted back to his substantive post, and as such, since the post in which appellant was appointed is no longer available, his services stand terminated. Assailing the said order of termination, the appellant filed a writ petition. The learned Judge, who dealt with the writ petition, proceeded on the basis that Sri Jaydhwaj Kumar was holding the substantive post of teacher with certificate of training and was promoted on ad-hoc basis to the post of Trained Graduate Teacher and as a result there was a resultant vacancy in the post of teacher with certificate of training and that vacany was supplied by the appellant. The said finding is entirely contrary to the record, Inasmuch as the learned Judge made the said glaring factual mistake, the judgment and order rendered by His Lordship turned out to be an erroneous judgment by which the writ petition of the appellant was rejected. There cannot be any dispute that in the event a resultant vacancy is created by reason of an ad-hoc promotion and a person supplies the said vacancy, but later on the ad-hoc promotion is cancelled, the vacancy being no longer in existence, the person thus supplying 4 the resultant vacancy looses his appointment. However, the fact that appellant supplied a resultant vacancy is not supported by the records, upon which the parties relied. As aforesaid Rule 9-A was inserted in the said Rules of 1983 on 16th July 1992. By that time the cadre of teachers with certificate of training was declared by the Government as a dying cadre. Rule 9-A inserted on 16th July 1992 did not authorize the District Inspector of Schools to make any endeavour to select for appointment by any of the schools any teacher with certificate of training. Rule 9-A only authorized the District Inspector of Schools to select for appointment Lecturers and Trained Graduate Teachers. Pursuant to the power granted by Rule 9-A of the said Rules, the District Inspector of Schools selected, amongst others, five individuals for being appointed as Trained Graduate Teachers for the said school. If there was no vacancy to appoint five trained graduate teacher in the school, the District Inspector of Schools could not exercise his power under Rule 9-A of the said Rules. The fact that District Inspector of Schools exercised such power, made selection and thereupon made recommendation do suggest that there were five vacancies in the said school in the posts of Trained Graduate Teacher. The fact that the said school on the basis of the recommendation of the District Inspector of Schools appointed the appellant as a trained graduate teacher at the same time suggests that the post in which 5 the said school appointed the appellant, was a post available for a trained graduate teacher. As aforesaid at the time of such appointment Sri Jaydhwaj Kumar was also working as trained graduate teacher although on ad-hoc basis. On record there is nothing to suggest that appellant was ever recommended to be appointed or was appointed as a teacher with certificate of training. On the other hand, the records are loudly speaking that he was selected, recommended and appointed as a trained graduate teacher. In the circumstances, the notion that the appellant was appointed in a resultant vacancy is contrary records. As aforesaid when the appellant was appointed as trained graduate teacher, Sri Jaydhwaj Kumar was also working as a trained graduate teacher. As such reversion of Sri Jaydhwaj Kumar to a teacher with certificate of training could not reduce the number of posts of trained graduate teachers and accordingly question of terminating the services of appellant on that ground did never arise. The action complained of in the present writ petition is malafide, malicious and absolutely unjust on the part of the said school. The support given thereto by State-respondent is also obnoxious. We accordingly, allow the appeal, set aside the judgment and order under appeal and quash the illegal termination order of appellant. It must be deemed that because of the illegal termination order, appellant was wrongfully prevented from discharging 6 his duties. The school is directed to pay full salary, not paid to the appellant while unjustly and illegally preventing him from discharging his duties, within 15 days from today together with interest at the rate of 6% per annum to be calculated from the date of accrual until payment. School is also directed to issue a letter within 15 days from today asking the petitioner to join his duties. Until such letter is served upon the appellant, it shall not be the responsibility of the petitioner to join his duties, as it is reasonably apprehended that if petitioner, without such a letter seeks to join simply on the basis of this order he may not be permitted to join his duties. A cost of ` 20,000/- is imposed on the State Government, which cost the State Government shall pay to the petitioner within two months from today, with liberty to the State Government to recover the same from such officer/officers of the State who failed to prevent the school from taking the step as was taken by the school and accordingly kept the petitioner out of service for more than ten years and almost ruined his life. (Nirmal Yadav, J.) (Barin Ghosh, C.J.) VKG 11.11.2010