Faggun Jamadar vs District Inspector of Schools, Fatehpur and another

V. M. Sahai, J.—The petitioner was appointed as sweeper in the institution on 1.7.1973. His services were regularised by an order dated 22.4.1992 passed by the District Inspector of Schools. He was also given salary from April. 1991 to January, 1992 for ten months. Thereafter another District Inspector of Schools by his order dated 6.10.1992 refused salary to the petitioner on the ground that when the petitioner became continuous appointed in 1990, his age was 51 years 4 months, therefore, he became overage for regularisation. The petitioner has challenged the order of the District Inspector of Schools dated 6.10.1992 by means of the instant writ petition.

Heard Sri S. K. Pal. learned counsel for the petitioner and Sri S. N. Srivastava, learned standing counsel appearing for respondent No. 1 and Sri Prem Prakash Tewari. learned counsel appearing for respondent No. 2.

The District Inspector of Schools in his order dated 22.4.1992 found that the petitioner was appointed from 1.7.1973 and was entitled for salary. The subsequent District Inspector of Schools by his order dated 6.10.92 refused to pay salary as he was of the opinion that continuous service of the petitioner started from 2.7.90, therefore, he could not be regularised on 22.4.92 as he had become overage. For coming to finding that the petitioner''s service started on 2.7.90, he has mentioned various dates and examined the record and found that the petitioner was appointed in 1981 and he was not regular. In paragraph 7 of the counter-affidavit, it is admitted that no opportunity of hearing to the petitioner was considered necessary by the District Inspector of Schools as he had examined the records of the institution. The District Inspector of Schools also held that the appointment of the petitioner in 1973 was fictitious.

The petitioner has filed copy of Manager''s return filed in 1973. He is shown as employee in it. He has also filed his service book. In counter-affidavit filed on behalf of the management, it is stated that petitioner is employee since 1973. In the order and in paragraph 6 of the, counter-affidavit filed by the District Inspector of Schools, it is stated that entry of 1973 was fictitious. In law, fictitious has a technical meaning. It has to be proved. The District Inspector of Schools on the other hand, as stated by him in his order, has drawn this inference on his own without hearing the petitioner or even the management. Inquiry if any made by the District Inspector of Schools behind the back of the petitioner could not furnish the basis for passing the impugned order. Similarly, the finding that petitioner was appointed in 1981 and he was in continuous service from 1990 being based on material of which petitioner was not apprised and the management does not support it becomes erroneous at the face of it. It was contrary to rules and principles of natural justice. The District Inspector of Schools was not entitled to reopen the order passed by his predecessor except in accordance with law. He could not set aside earlier order, on inquiry if any, held behind the back of petitioner and without issuing notice to him. It may not be out of place that he passed similar order against other teachers and employees which was latter recalled. There was no material on record on the basis of which the District Inspector of Schools held that the petitioner came into service from 1981. Therefore, the order passed by the District Inspector of Schools cannot be maintained.

In the result, the writ petition succeeds and is allowed. The impugned order dated 6.10.1992 passed by respondent No. 1 Annexure-4 to the writ petition so far as it relates to the petitioner is quashed. The respondents are directed to reinstate the petitioner in service and pay his entire arrears of salary within two months from the date a certified copy of this order is produced before them.

There shall be no order as to costs.