UP Secondary Education Act | Appointment Against Fraudulently Created Short-Term Vacancy Can't Be Regularised: Allahabad High Court
The Allahabad High Court has held that Section 33-F of the U.P. Secondary Education Services Selection Board Act, 1982 cannot be invoked to claim substantive appointment where the short term vacancy against which the teacher was appointed was itself fraudulently created.Section 33-F provides for regularisation of appointments made against short term vacancies, entitling teachers appointed...
The Allahabad High Court has held that Section 33-F of the U.P. Secondary Education Services Selection Board Act, 1982 cannot be invoked to claim substantive appointment where the short term vacancy against which the teacher was appointed was itself fraudulently created.
Section 33-F provides for regularisation of appointments made against short term vacancies, entitling teachers appointed against such vacancies between May 14, 1991 and August 6, 1993, where the vacancy was later converted into a substantive one, to substantive appointment on satisfying the conditions it lays down. Sub-section (4) provides that a teacher not found suitable or not eligible shall cease to hold the appointment on such date as the State Government may specify by order.
The bench of Chief Justice Arun Bhansali and Justice Kshitij Shailendra held,
“… occurrence of alleged short term vacancy as well as filling up of the same by appointing the appellant, was fraudulent and unlawful. There cannot be any law that even if Court finds an unlawful/fraudulent occurrence and filling of vacancy, it would ignore the same and would mechanically rely upon the provision so as to confer any benefit upon the wrongdoer.”
The Court observed,
“The case has a chequered history and sequence of events would reveal as to how robbery is committed on the purse of the State exchequer and, when revealed, in what manner unscrupulous litigants like the appellant herein, in collusion with those who are entrusted to protect rule of law and prevent misuse of State funds, succeed in abusing the process of law for years.”
Appellant's case was that a short term vacancy arose in Shastri Smarak Inter College, Ahmad Shahpur, District Baghpat, a recognised and aided institution, when one Ved Prakash Harit, an Assistant Teacher in the LT Grade, went on leave without pay for two years with effect from 9th September 1992. The Authorized Controller then in charge invited applications by notice dated 24th November 1992, and the appellant was appointed on 18th December 1992, treating the approval of the District Inspector of Schools, Baghpat as deemed.
When salary was not paid to him, the appellant filed a writ petition. The High Court directed the D.I.O.S. to decide the question of approval and permitted him to continue meanwhile. On 23rd May 1995, the then D.I.O.S., S.S. Rawat, approved the appointment in the pay-scale of 1400-2300, subject to the vacancy ending on Harit's return. The appellant continued to draw salary.
The petition came up for final hearing only in 2010. The D.I.O.S. then stated on affidavit that the institution had produced no record of Harit's leave application, service book or pay bills, no such documents existed in its office, and that Harit had neither returned nor applied for anything after the leave expired. He also placed on record a State Government order of 24th March 2009 seizing S.S. Rawat's entire gratuity and permanently deducting half his pension, charges of facilitating 96 fraudulent appointments during his tenure at Meerut having been proved against him.
The writ Court directed the management and the appellant to produce evidence that Harit had ever been paid salary from the State exchequer. On the next date, counsel for the appellant stated that he did not wish to file a reply and that the petition had become infructuous. Finding that Harit's name did not figure in the salary bills of 1991 to 1993, the writ Court dismissed the petition as infructuous and discharged the interim order.
Services of the appellant were terminated. His challenge was dismissed by a learned Single Judge, who imposed cost of Rs. 2,16,000 computed at Rs. 1,000 for every month for which he had drawn salary, recoverable as arrears of land revenue on default. This gave rise to the special appeal.
Examining the vacancy notice and the resolution passed by the Controller on 6th December 1992, the Court noted that the appellant, who does not belong to a reserved category, was selected because no reserved category candidate had appeared, which did not lend legality to the selection. It found no material to show that Harit had ever drawn salary from the State exchequer, nor any indication of when he went on leave or returned.
It observed that the erstwhile D.I.O.S. had approved the appointment without verifying whether there was any teacher named Ved Prakash Harit at all “or he was simply an imaginary figure brought on scene for the purposes of creating a short term vacancy so as to somehow accommodate the appellant”.
It held,
“The constitutional courts cannot permit the sanctity of public employment to be eroded by fraudulent or unlawful appointments secured through deceit, misrepresentation or abuse of judicial process. Public office is a public trust and every appointment made in contravention of law constitutes a direct assault on the constitutional mandate of equality, fairness and transparency embodied in Articles 14 and 16 of the Constitution.”
The Court held that an interim order is always subject to the final outcome and creates no independent right so that on dismissal of the writ petition every consequential benefit had to fall, the doctrine of restitution requiring the undeserved advantage to be restored.
The Court relied on Jainendra Singh v. State of U.P., where a fraudulently obtained appointment was held, by the Supreme Court, voidable at the employer's option, with years of continuance creating no equity or estoppel.
“..once the writ petition filed by the appellant was dismissed and interim order was discharged after recording reasons, not only in the final order but in previous orders too, no orders of any other nature were required to be passed by the respondents except to terminate the services of the appellant. The net effect is that no validity could be attached to the appointment of the appellant and whatever benefits he had received as salary from the State exchequer, the same were bound to be recovered from him.”
Declining a reference to the State Government under Section 33-F(4), the Court noted that the Supreme Court in Suvej Singh v. Ram Naresh and others had held that higher Courts should avoid unnecessary remand generating a fresh round of litigation.
Noting also that the appellant had not impleaded the State of U.P. in the earlier writ petition, the only State official arrayed being the D.I.O.S. later punished for facilitating 96 unlawful appointments, the Court observed,
“The said fact also goes to show that the appellant somehow wanted adjudication in his favour behind the back of the State Government and he almost succeeded in his designs.”
Holding the appointment unlawful from its very root, the Court declined relief even against recovery and dismissed the appeal.
Case Title: Subhash Chandra Tyagi v. State of U.P. and others