Ramesh Chandra Upadhyay vs D.I.O.S., Varanasi and Others

Sibghat Ullah Khan, J.—Heard learned counsel for the petitioner on the review petition. Through this petition review of my judgment and order dated 14.5.2009 given in the writ petition through which writ petition was dismissed has been sought. The main point argued by learned counsel for the petitioner is that the Division Bench authority in Joint Director of Education, Azamgarh Mandal and District Inspector of Schools Vs. Udai Raj Vishwakarma and Committee of Management, Vindheshwari Inter College, , on which reliance was placed by me while dismissing the writ petition is in direct conflict with another Division Bench authority of this Court in Ashika Prasad Shukla Vs. District Inspector of Schools, Allahabad and another, .

Even though in the authority of Udai Raj Vishwakarma, the authority of Ashika Prasad Shukla has been dealt with in para 19 but it appears that there is some conflict between the two Division Bench authorities. However, I still prefer to follow the later authority of Joint Director of Education v. Udai Raj Vishwakarma.

Apart from the above there are some other important aspect of the matter which are as follows.

It was stated in the writ petition that the short term vacancy was advertised in two widely published newspapers Janvarta and Sanmarg on 4.9.1993- Prior to the authority of K.N. Dwivedi v. D.I.O.S., 1994 UPLBEC 461, decided in January 1994 there was absolutely no requirement of advertising short terms vacancy in newspapers (the authority of K.N. Dwivedi was duly approved in the Full Bench authority of Kumari Radha Raizada Vs. Committee of Management, Vidyawati Darbari Girls Inter College and Others, . The newspapers mentioned in para 5 of the writ petition, i.e., Janvarta and Sanmarg have never been heard of. Even photocopies of the newspapers have not been annexed. It is, therefore, quite clear that a false statement has been made regarding advertisement of the vacancy in the newspaper.

It is stated in the writ petition that Committee of Management on 27.9.1993 sent the matter of petitioner''s appointment to District Inspector of Schools for approval on which D.I.O.S. did not communicate its decision within seven days (or at any point of time). Even though in the counter-affidavit it has not been denied that on the letter sending information of the appointment, available with the Management there are signatures of the then Assistant District Inspector of Schools however, from several other circumstances it is evident that no such communication was sent. May be the then Assistant D.I.O.S. after transfer from the District in question signed the acknowledgement of receipt of the documents.

The most important circumstance is that in case petitioner had in fact been appointed in September 1993 and started teaching, he would not have remained silent without payment of salary for several years. In such circumstances in normal course a teacher or employee starts writing letters, applications etc. for payment of salary immediately after one month of working. Even though in paragraph 16 of the writ petition it is mentioned that Committee of Management sent several reminders to the D.I.O.S. however, neither any date has been mentioned nor copies of alleged reminders have been annexed. Most important thing is that there is not even an allegation in the writ petition that petitioner also made some demand for payment of salary.

If petitioner had been in fact appointed, the most important evidence would have been managerial returns which are sent every month by the management for payment of salary of the teachers and other employees containing their names. If petitioner had been appointed, managerial returns could be filed to show that bill was sent for payment of his salary but no salary was being paid to him. Obviously if petitioner''s name had been included in the managerial returns then either salary must have been paid or some objections must have been raised by Accounts Officer or D.I.O.S. In para 20 of the writ petition it is mentioned that first communication/representation sent by the petitioner was dated 20.10.1997 (after more than four years of appointment). The first writ petition which the petitioner filed was in the year 1998 (22865 of 1992).

The promotion of Shri A.N. Pandey had been approved by D.I.O.S. through order dated 7.10.1995 and thereafter D.I.O.S. referred the matter to Director of Education through letter dated 27.1.1997.

If petitioner had been appointed before 7.10.1995. there was absolutely no occasion for the D.I.O.S. to state in the said letter that no short term appointment shall be made.

The next important point is that in-fact there was no short term vacancy. In the writ petition it has been stated that the short term vacancy came into existence due to ad hoc promotion of Shri A.N. Pandey from C.T. grade to L.T. grade by the Committee of Management through resolution dated 2.9.1993. This promotion was approved by D.I.O.S. on 7.10.1995. If management was authorised to promote Shri A.N. Pandey on its own then on the promotion permanent substantive vacancy came into existence and not a short term vacancy. If promotion was to be effective from the date of its acceptance/approval by D.I.O.S. (which was done on 7.10.1995) then till then no vacancy either substantive or short term came into existence. In any case even if appointment of petitioner had been made in September, 1993 on short term vacancy, it would have come to an end on 7.10.1995 when short term vacancy, even if presumed to have occurred on 2.9.1993, came to an end by its conversion in substantive vacancy as held by the Full Bench authority in Smt. Pramila Mishra Vs. Deputy Director of Education and Others, .

Accordingly, I do not find any merit in the review petition. It is, therefore, dismissed.