CIVIL WRIT JURISDICTION CASE No.11640 OF 2002 -------- In the matter of an application under Article 226 of the Constitution of India. --------- BRAJ MOHAN SINGH, S/O LATE SRI KAMTA SINGH, R/O VILLAGE-RAMPUR, P.S.-MAKHDUMPUR, DISTRICT-JEHANABAD, AT PRESENT ASSISTANT TEACHER, POSTED IN T.MODEL HALF TIME UNDUSTRIAL SCHOOL, GAYA. ………………PETITIONER. Versus 1. THE STATE OF BIHAR, THROUGH THE SECRETARY- CUM-COMMISSIONER, DEPARTMENT OF PRIMARY EDUCATION, BIHAR. 2. DISTRICT PRIMARY EDUCATION, BIHAR, PATNA. 3. SPECIAL DIRECTOR, PRIMARY EDUCATION, BIHAR, PATNA. 4. REGINAL DEPUTY DIRECTOR, MAGADH DIVISION, PATNA. 5. DISTRICT SUPERINTENDENT OF EDUCATION, GAYA. …………………RESPONDENTS. For The Petitioner : Mr. Ganesh Prasad Singh, Sr. Adv. and Dr.M.P. Shukla, adv. and Mr. Pankaj Kumar Pankaj, Adv. For The Respondent : SC-1 P R E S E N T THE HON'BLE MR. JUSTICE JAYANANDAN SINGH Jayanandan Singh, J. This case is a befitting example how people invoke the jurisdiction of this Court under Article 226 of the Constitution of India to get illegal gains aided by the lapses or ignorance of the functionaries of the Government to the rule of law. Petitioner had moved this Court earlier in C.W.J.C. No. 8738 of 2001 for a direction to the respondents to consider and approve his salary proposition statement submitted by the D.S.E., Gaya to the Director, Secondary Education. The 2 said writ application of the petitioner was disposed of by this Court by order dated 12.7.2001 with a direction to the Special Director to look into his salary proposition statement, examine the same and pass necessary orders in accordance with law. Accordingly, the matter was examined by the Special Director and, by speaking order contained in Annexure-1, he rejected the proposition statement of the petitioner giving a cause of action to the petitioner to file the present writ application. Case of the petitioner is that he was appointed as assistant teacher in the School concerned on 30.6.1983. His services were approved by the respondent D.S.E. as per order contained in his office memo No.689 dated 2.7.1983 (Annexure-2) with certain conditions. The conditions were that the petitioner had to get the training at his own cost soon and till the period of his training the post was to remain reserved. Petitioner received his training from Bhartiya Shiksha Parishad, Lucknow in the year 1994 and was successful, as appearing from the marks-sheet contained in Annexure-3. Thereafter, he applied to the respondent D.S.E. for absorption of his services and the respondent D.S.E., by order contained in Memo No. 1322 dated 2.10.1996, absorbed him in service with effect from 25.7.1994, against the 3 post of Matric Trained Teacher in the School, in the pay scale of Rs.1200-2040, and directed the office to submit a proposition statement in respect of his salary. It is pleaded in the writ application at this stage that the request of another Assistant Teacher, namely Awadh Bihari Pandey, for submission of his salary proposition statement was finally rejected. Against the same, the said Awadh Bihari Pandey had moved this court in C.W.J.C. No. 5328 of 1998 and by order dated 13.8.1999 the same was dismissed as till then he was not trained and thus was not having the minimum qualification for appointment/absorptioin as assistant teacher. Against the same, he moved in appeal bearing L.P.A. No.1250 of 1990 which was also dismissed by order dated 14.3.2000. The said orders are annexed as Annexures-4, 5 and 5/A with the writ application. It is pleaded that the training certificate of the petitioner was got verified by the D.S.E., Gaya and, upon being satisfied, he directed the Secretary of the School through his letter no. 2494 dated 25.8.1998 (?) (Annexure-6) for submission of salary proposition statement in respect of the petitioner. It is also pleaded that some enquiry was made by the RDDE, Magadh Division who also directed the Secretary of the School, through his letter dated 22.11.2000 (Annexure-7), 4 for submission of his salary proposition statement. An order of the S.D.O., Gaya (Civil) dated 27.1.2001 has also been brought on record as Annexure-8 to show that he had also passed orders to the Secretary of the School for submission of the salary proposition statement of the petitioner. The salary proposition statement was accordingly submitted by the Secretary of the School which was forwarded by the respondent D.S.E. to the Department. No action having been taken on the same the petitioner had filed the earlier writ application which was disposed of in the manner as mentioned above. The submissions of learned counsel for the petitioner were that the petitioner’s appointment was conditional as he was untrained at that time. By the order of the D.S.E. approving his service, he was required to get the training and till then the post was kept reserved. He accordingly completed the training and submitted his joining which was accepted also and his salary proposition statement was submitted. The appointment of the petitioner had already been approved by the D.S.E. Therefore, the respondents were under legal duty to approve his salary proposition statement and order for payment of salary to him. It was also submitted that the respondent Special Director wrongly equated the case of the petitioner with 5 that of the said Awadh Bihari Pandey who lost his case in this Court, rightly, as he was not trained at the time of moving to this Court, whereas this petitioner completed his training as required by the D.S.E. in his order, as contained in Annexure- 2, and, therefore, he had valid right to join the post reserved for him and resume performance of his duties and draw his salary. Counter affidavit has been filed by the respondents in this case. In the counter affidavit it is stated that since the petitioner was admittedly untrained at the time of his appointment the respondent D.S.E. had no authority to approve his appointment. In support of this submission, the respondents have placed reliance on the notification no. 2501 dated 31.12.1982 and have also annexed the copy of the said notification with the counter affidavit as Annexure-A. Learned counsel for the respondents referred to Clause (1) (iv) (Kha) of the notification to show that, in very clear terms, it was directed that the services of untrained teachers appointed after 1.1.1971 shall ‘in no case’ be approved. It is also contended on behalf of the respondents that in the appointment of the petitioner there was no advertisement and no selection process was held by the Managing Committee. 6 The order of the Special Director, contained in Annexure-1, was passed pursuant to the directions of this Court and after giving due opportunity to the petitioner and after hearing his counsel. The case of the petitioner has been noticed in the order that the post was advertised by the Managing Committee in the local newspaper namely, ‘The Gaya Samachar’ on 12.12.1984, by which applications were invited up to 25.12.1984 and the date of interview was fixed on 30.12.1984. The Managing Committee held its meeting on 30.12.1984 and confirmed the appointment of the petitioner made by the Secretary. Thereafter, proposal for approval of his services was sent to the respondent D.S.E. who approved it vide Annexure-2. Petitioner thereafter got his training in 1994 and filed application before the respondent D.S.E. for his absorption/adjustment on the vacant post which was done and the salary proposition statement was prepared and was sent to the Department by the respondent D.S.E., vide his letter no. 520 dated 31.5.2001. After noticing the facts and submissions on behalf of the petitioner and the statement of the respondent D.S.E. the Special Director has found that before appointment of the petitioner there was no advertisement published by the Managing Committee inviting applications. Further, he has found that after 7 1.1.1971 no untrained candidate could be appointed in view of the said notification no.2501 dated 31.12.1982. It is true that he has noticed the case of said Awadh Bihari Pandey in his order and after considering the facts and circumstances has rejected the salary proposition statement in respect of the petitioner proposing for fixation of his salary. However, a few things available on the record are remarkable and fit to be noticed to show how the petitioner has tried to establish his out and out illegal appointment as valid and legal before this Court. As per the case of the petitioner he was appointed in the School on 30.6.1983/1.7.1983. At that time he was admittedly untrained. From the case presented before the Special Secretary by the learned counsel for the petitioner, it appears that the post was advertised by the Managing Committee in ‘The Gaya Samachar’ on 12.12.1984, inviting applications till 25.12.1984, interview being held on 30.12.1984 and services of the petitioner being confirmed on that day itself by the Managing Committee. Now, firstly there is no documentary proof available on record in respect of the appointment of the petitioner by the Secretary, the advertisement of post, the interview held and the approval of the Managing Committee of his appointment in its resolution 8 dated 30.12.1984. The only document which is available on record in respect of appointment of the petitioner is Annexure-2 which is a typed copy of office order of the respondent D.S.E. contained in memo no. 689 dated 2.7.1983. Clearly this order was issued by the D.S.E. much prior to the advertisement of the post by the Managing Committee in the issue of ‘The Gaya Samachar’, if at all it was done. This order shows that some resolution of the Managing Committee dated 7.11.1982 recommending the appointment of the petitioner with effect from 1.7.1983 was being approved. This clearly contradicts the case of the petitioner that his initial appointment was by the Secretary which was approved by the Managing Committee in its meeting dated 30.12.1984 after adopting the due process of advertisement, interview and selection. By this order of the respondent D.S.E. the recommendation in favour of the two persons namely, the said Awadh Bihari Pandey and this petitioner for their appointment was approved. The date of recommendation for appointment of this petitioner is shown as 1.7.1983 and this memo of the respondent D.S.E. is dated 2.7.1983 i.e. merely one day after. Petitioner claims himself appointed by the Secretary on 30.6.1983/1.7.1983 and this approval is of the next date i.e. 2.7.1983. This completely 9 falsifies the case of advertisement of post, interview and selection. These circumstances clearly show how the records and facts have been created to establish before this Court a valid appointment of the petitioner. Secondly the approval of the appointment of the petitioner by the D.S.E. was on two conditions i.e. (i) the petitioner had to get the training at his own cost as soon as possible and, (ii) during the period of his training one post was to remain reserved. These conditions show that the petitioner’s joining and functioning on the post was not allowed. Only his appointment was approved subject to his completing the training and the post was ordered to be kept reserved for him. This order is of 2.7.1983. The petitioner thereafter, as per his own case, took 11 years to get the certificate of training from an institution of the State of U.P. namely Bhartiya Shiksha Parishad, Lucknow. That certificate is also not on record and only absolutely faint copy of mark-sheet has been annexed. It is contended that the respondent D.S.E. got the certificate verified and found it genuine. As per the condition put in the order of approval of his services one post was to remain reserved for the petitioner in the School. But the office order of the respondent D.S.E., as contained in Annexure-4, 10 shows that one post in the school fell vacant in 1993 due to superannuation of a teacher. Therefore, since the petitioner had completed training in July, 1994 his case was considered for absorption against the said post. This shows that no post remained vacant in the school for the petitioner. The same could not be also, due to the fact that the petitioner took 11 years in completing the training, even if the said certificate of the petitioner is taken to be genuine. The above facts show that the initial claim of the petitioner of his appointment in the school even if true was on the basis of illegal act on the part of the Managing Committee and the then D.S.E. Clearly the said resolution of the Government dated 31.12.1982 prohibited such approval in definite terms. The recommendation of his appointment made on 1.7.1983 being approved by the D.S.E. on the next date i.e. 2.7.1983 is also too much for this Court to accept as valid and genuine. Thus the claim of petitioner of entering into service at initial stage itself, as asserted by the petitioner is surrounded by clearly unacceptable facts and circumstances. His second attempt to enter into service after more than 11 years on the basis of some marks-sheet of an institution of the State of U.P. on vacancy arising only one year earlier is also a blatant 11 attempt to circumvent the rule of law and the establish procedure for entering into public service. Lastly the reliance placed by learned counsel for the petitioner on letter no.4109 dated 5.9.1979 is also totally misconceived. The said letter provides for appointment of an untrained candidate only if trained candidates were not available and they had to be appointed on stipend and were to be sent for training failing which their appointment was to automatically stand terminated. Petitioner’s case is clearly not covered by the said provisions of the letter. This Court finds it a daredevil attempt by the petitioner to get a seal of approval from this Court to his illegal attempts to enter into arena of public service on the basis of unacceptable facts and highly doubtful documents. The writ application is, accordingly, dismissed. Patna High Court The 22nd December, 2010 N.A.F.R./Arvind ( J. N. Singh, J.)