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Judgment
Rakesh Tiwari, J.—This writ petition has been filed against the orders dated 2.3.1988; 9.3.1988 and 12.10.19888 appended as Annexures 2.3 and 9 respectively to the writ petition passed by the respondent Nos. 1.2 and 3 respectively.
Facts of die case giving rise to the instant writ petition are that the petitioner was reserve pool teacher. He was appointed as Lecturer to teach Hindi subject in the Intermediate College Bhaisauli, district Fatehpur vide order dated 22.2.1978 passed by the District Inspector of Schools (for shor ''DIOS'') Fatehpur respondent No. 2. He was appointed in the same capaciy in Ram Deen Singh Inter College, Gazikhera, Fatehpur in the pay scale of Rs. 650-1280 vide order dated 8.11.1985 passed by the respondent No. 2. This order, according to the petitioner, was passed in accordance with Section 21 (Gha) of Ordinance No. 12 of 1985.
Thereafter, respondent No. 1 vide impugned order dated 2.3.1988 appended as Annexure 2 to the writ petition, directed the respondent No. 3 to absorb the petitioner in G.N.K. Inter College, Kanpur Nagar as Lecturer in Hindi. In compliance of the aforesaid order, the petitioner submitted his joining report before the respondent No. 3 on 10.3.1988.
Since in the impugned order dated 2.3.1988 respondent No. 3 was directed to absorb the petitioner, he moved a reperesentation dated 19.3.1988 to respondent No. 1 - the Director of Education staling therein that he was already absorbed vide order dated 8.11.1985, as such, the impugned order dated 2.3.1988 contained wrong word. i.e., ''absorption'' instead of ''transfer''. The order dated 2.3.1988 is as under:
�izs�kd% mi f�k{kk funs�kd prqFkZ e.My] bykgkckn lsok esa] ftyk fo|ky; fujh{kd dkuiqj uxj<
Ik=kad ih&3@87&88 fnukad 2-3-88 fo�k; % vkjf{kr lewy v/;kid ds vkesyu ds laca/k esaA
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�kklu dh vf/klwpuk la[;k 931@l=g&180&1@2 d&10&1985 fnukad 12 twu 1985 }kjk izdkf�kr m0iz0 ek/;fed f�k{kk lsok vk;ksx vkSj p;u cksMZ la�kks/ku v/;kns�k 1985% m0iz0 v/;kns�k la0 12 lu~ 1985 dh /kkjk x�1� ds vUrxZr /kkjk 21&1�2� rFkk f�k{kk funs�kd dh vf/klwpuk la[;k lkekU; �1� izFke@8692&8892@85&86 fnukad 21-6-86 ,oa mi f�k{kk funs�kd �ek0� f�k{kk funs�kky; m0iz0 bykgkckn ds v0�kk0 Ik=kad lkekU; �1�@izFke@1111&1211@86&87 fnukad 8-6-86 esa fufgr funsZ�kksZa ds vuqikyu esa vkns�k fn;k tkrk gS fd Jh deyk dkUr] ftudk fooj.k ftyk fo/kky; fujh{kd] Qrsgiqj ls izkIr djds] tks vius tuin ds vkjf{kr lewg v/;kid iaftdk esa vafdr dj vius tuin ds th0,u0ds0b.Vj dkyst dkuiqj uxj esa izoDrk �fgUnh� ds in ij Jh jked`�.k cktisbZ izoDrk �fgUnh� ds vodk�k xzg.k djus ds QyLo:Ik gqbZ fjfDr ds izfr rRdky vkesfyr djussa dh dk;Zokgh djsaA d`r dk;Zokgh ls bl dk;kZy; dks rRdky voxr djk;saA
Hkonh; g0 v�i�V� 2-3-88 mi f�k{kk funs�kd] prqFkZ e.My bykgkckn
In response to the aforesaid representation, the petitioner was informed by the respondent No. 3 vide impugned order dated 1 2.10.1988 that he did not possess the requisite qualifications for absorption as Lecturer in Hindi.
Aggrieved, the petitioner moved representation to the Additional Director Madhyamik dated 27.10.1988 and thereafter filed the instant writ petition.
The contention of counsel for the petitioner is that once the petitioner was absorbed vide order dated 8.11.1985 he could not be absorbed again in another institution and could have only been transferred, as such order dated 2.3.1988 using the word ''absorption'' ought to have been corrected by the concerned authority by substitution of the word ''transfer'' in its place. It is submitted that the petitioner having been appointed, his services could not be terminated without affording opportunity of hearing.
It is stated that since the petitioner has now attained the age of superannuation, as such, the Court in the circumstances may pass order of treating the period of his illegal termination till he attained the age of superannuation as continuous service for the purpose of retiral and pensionary benefits.
Per contra. Standing counsel vehementlv urged that the petitioner did not possess minimum qualification for the post of Lecture in Hindi and, therefore, he cannot be absorbed/appointed as such.
It is admitted position that the petitioner was appointed on the post of Lecturer in Hindia vide order dated 22.2.1978 passed by the DIGS Fatehpur from the reserve pool in the Intermediate College Bhaisauli, district Fatehpur. He was thereafter appointed in the same capaciy in Ram Deen Singh Inter College, Gazikhera, Fatehpur in the pay scale of Rs. 650-1280 vide order dated 8.11.1985 u/s 21 ((Gha) of Ordinance No. 12 of 1985 passed by the respondent No. 2. The orders clearly show that he was absorbed as Lecturer in Hindi subject as appointment on leave vacancy or ad hoc basis cannot continue for fore than a year. Admittedly, petitioner continued in service from 1978 to 1985 as a regular employee. In the circumstances, he could have been transferred to another institution and not ''absorved'' in service as per the order contained in the letter dated 8.11.1985.
In this connection, reference may be made to a decision of this Court in Gyan Prakash v. District Inspector of Schools, Azqmgarh and Ors. 2000 (39) ALR 145 wherein the words ''absorption'' and ''transfer'' in the context of a teacher were discussed and it was held that:
The contention of the contesting respondent is that (Ivan Prakash has not been transferred but. in fact, he has been absorbed in Udyog Vidyalaya Inter College. Azamgarh. There is a difference between transfer and absorption. It is however to be seen whether order passed be the District Inspector of Schools Azamgarh amounts to absorption or transfer. The mere use of the word ''Samayojan'' (absorption) is not decisive but it has to be examined on the facts of each case. Gyan Prakash. the petitioner, claimed that he was already appointed in Heera Lal Smarak Inter College on 19.1.1987 and thereafter he joined on 20.1.1987. Once he was appointed in the said institution, it will be taken that he was absorbed in the said institution. Section 21-B of Act No. 5 of 1982 uses the word ''absorption'' and not appointment. Gyan Prakash having been appointed in Heera Lal Smarak Inter College shall be taken to have been absorbed in the said institution. Once he has been absorbed in the said institution, he cannot be absorbed again in another institution. He can only be transferred after he was absorbed in one institution.
The controversy involved in the instant case is identical to the controversy in Gyan Prakash (supra). In the instant case also, once the petitioner was appointed in 1985 in Ram Deen Singh Inter College Gazikhera, Fatelipur, he could only be transferred to G.N.K. Inter College. Kanpur Nagar and the word ''absorption'' used in the impuguned order dated 2.3.1988 was misnomer. Once he has been absorbed in Ram Deen Singh Inter College Gazikhera, Fatehpur, he cannot be absorbed again in another institution. He can only be transferred after he was absorbed in one institution.
So far as case of the respondents that the petitioner did not possess the requisite qualification for the post of Lecturer in Hindi is concerned. suffice it to say that if he subsequently acquires the requisite qualifications, he cannot be removed from service. From perusal of paragraph 11 of the rejoinder affidavit, it is apparent that the petitioner completed graduation with Sanskrit in 1989. This averment has not been controverted. This view is supported by the decisions in B.S. Dixit v. Sri Marwadi Vidhxalava and Ors. 1984 UPLBEC 667 and Smt. Shanti Devi Verma v. The Deputy Director of Education, Region I, Meerut and Ors.1982 UPLBEC 365 wherein it has been held that lack of prescribed qualification at the time of appointment of teacher can be cured by that teacher by getting himself qualified after his appointment. Similarly in Chandra Bhushan Singh v. D.B.E.O and Ors. 2007 (66) ALR 66, it has been held that if the case is not of fraud or connivance and the petitioner has put in best part of his life in service, the respondents are estopped from dispensing with the services of the petitioner. The ratio laid down in Chandra Bhushan Singh (supra) applies with full force to the facts and circumstances of the instant case as in the case on hand, neither there is any allegation of fraud having been played by the petitioner nor that that appointment was obtained in connivance of any officer/official.
There is yet another aspect of the matter. The petitioner was appointed as Lecturer to teach Hindi subject in the Intermediate College Bhaisauli, district Latchpur vide order dated 22.2.1978 passed by the District Inspector of Schools '' for shor ''DIOS'') Fatehpurrespondent No. 2. He was appointed u/s 21 (Gha) of Ordinance No. 12 of 1985 in the same capacity in Ram Deen Singh Inter College, Gazikhera. Fatehpur in the pay scale of Rs. 650-1280 vide order dated 8.11.1985 passed by the respondent No. 2. Thereafter, respondent No. 1 vide impugned order dated 2.3.1988 appended as Annexure 2 to the writ petition, directed the respondent No. 3 to absorb the petitioner in G.N.K. Inter College, Kanpur Nagar as Lecturer m Hindi. In compliance of the aforesaid order, the petitio.net "submitted his joining report before the respondent No. 3 on 10.3.1988''. Thus, it is crystal clear that the petitioner was allowed to continue in service w.e.f. 22.2.1978 to 12.10,1988, i.e., more than a decade.
Thus, even if the contention of the respondents that he did not possess the requisite qualifications for appointment to the post of L.T. Girade teacher is accepted, one fails to understand as to how they appointed an unqualified teacher and allowed him to continue in service for more than a decade. However, it is not denied that the petitioner possessed the requisite qualifications for the post while in service. Thus, the respondents are bound by principle of promisory as well as equitable estoppel. This view finds support from the decision in B.L. Sreedhar and Others Vs. K.M. Munireddy (Dead) and Others, wherein it has been held by Hon''ble the Apex Court that:
If a man either by words or by conduct has intimated that he consents to an act which has been done and that he will not offer any opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that which they otherwise might have abstained from, he cannot question the legality of the act he had sanctioned to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct.
At the time of admission of the instant writ petition, no interim order was passed in his favour. The petitioner is out of employment since 1988. From the facts and circustances narrated above, it is absolutely clear that the services of the petitioner have been wrongly dispensed with.
Accordingly, the writ petition is allowed. Impugned orders dated 2.3.1988; 9.3.1988 and 12.10.19888 appended as Annexures 2.3 and 9 respectively to the writ petition passed by the respondent Nos. 1,2 and 3 respectively are hereby quashed. Since the petitioner cannot be reinstated in service now as he has already attained the age of superannuation, hence it would be futile to direct for payment of entire arrears of his salary or some percentage thereof. However, equity can be met by directing that the period during which he remained unemployed by virtue of illegal, orders terminating his service till the date he attained the age of superannuation, be treated as continuous service for the purposes of calculation of his retiral and pensionary benefits.
The Court is conscious of the fact that the petitioner remained unemployed for a long period without there being any fault on his part. This was only due to illegal and arbitrary orders passed against him. He has now reached the age of superannuation and cannot get back his salary, status and hence may be compensated by Court for forced unemployment upon the petitioner for more than a decade till his retirement. In this behalf, reference may be made to a decision rendered by Hon''ble the Apex Court in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), wherein it has held that-
So far as awarding of costs at the time of judgment is concerned, awarding of costs must be treated generally as mandatory inasmuch as the liberal attitude of the Courts in directing the parties to bear their own costs had led the parties to file a number of frivolous cases in the Courts or to raise frivolous and unnecessary issues. Costs should invariably follow the event. Where a party succeeds ultimately on one issue or point but loses on number of other issues or points, which were unnecessarily raised. Costs must be appropriately apportioned. Special reasons must be assigned if costs are not being awarded. Costs should be assessed according to rule in force. If any of the parties has unreasonably protracted the proceedings, the judge should consider exercising discretion to demands that the petitioner be compensated on account of his non payment of salary by payment of Rs. 1,00,000 (rupees one lac) to be paid by G.N.K. Inter College, Kanpur Nagar within three months from the date of production of a certified copy of this order.
Order accordingly.