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Suman Srivastava v/s State of U.P.

    Civil Misc. Writ Petition Nos. 5318 (S/S) of 1987, 1172 (S/S) of 1996 & 6221 (S/S) of 1987

    Decided On, 17 February 2014

    At, High Court Of Judicature At Allahabad Lucknow Bench

    By, THE HONOURABLE MR. JUSTICE SUNEET KUMAR

    For the Appearing Parties: ------.



Judgment Text

Suneet Kumar, J.

1. Writ Petition No. 5318 of 1987, Km. Suman Srivastava v. State of U.P. and others, and connected petitions Writ Petition No. 1172 of 1996, Smt. Abha Rastogi v. State of U.P. and others, and Writ Petition No. 6221 of 1987, Smt. Abha Rastogi v. R.I.G.S. Lucknow and others, the facts are common pertaining a single selection, and as such, these writ petitions are being decided together, on the consent of the parties, at the admission stage as per Rules of the Court. Heard the petitioner, Km. Suman Srivastava appearing in person in Writ Petition No. 5318 of 1987, Sri K.D. Nag, learned Counsel for the petitioner in the other connected petitions and Sri Somesh Tripathi for Committee of Management as well as learned Standing Counsel for the State-respondents.

2. The facts of the case is that Hanuman Pd. Rastogi Girls' Inter College, Subhash Marg, Lucknow is an institution recognized under the U.P. Intermediate Education Act, 1921 and Regulation framed thereunder and the provisions of U.P. Secondary Education Services Selection Board Act 1982 is applicable. The institution is grant-in-aid. One post of Assistant Teacher Science in C.T. Grade was advertised on 5.12.1986. The post was for short term vacancy to be filled up in accordance to Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981. Several candidates applied for the said post and the Selection Committee recommended the name of Abha Rastogi and other candidates were Basanti Rastogi, Kumari Swatantra Bala Rastogi and Kumari Suman Srivastava in the order of merit.

3. The Manager sent appointment letter on 31.12.1986 to Smt. Abha Rastogi who was placed at Serial No. 1 of the select list without sending papers of selection for prior approval of the RIGS as required under Order 1981. It is alleged by Suman Srivastava that Smt. Abha Rastogi refused the offer of appointment vide letter dated 12.2.1987, this fact is denied by Smt. Abha Rastogi. It is for the first time on 2.2.1987 the manager sent the name of the selected candidate namely Smt. Abha Rastogi alongwith the records of selection for approval under the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 and the Regional Inspector of Girls School (RIGS) accorded approval in respect of the selection of Abha Rastogi vide letter dated 28.2.1987 which was received by the institution on 3.3.1987. The Management of the institution issued appointment letter dated 25.8.1987 in favour of Smt. Abha Rastogi and she accordingly joined on 26.8.1987. In the intervening period i.e. on the date on which approval of the RIGS was received i.e. 3.3.1987, the Manager sent a letter seeking approval in respect of Suman Srivastava without informing that the incumbent had joined attempting to dislodge rightful claim of Smt. Abha Rastogi. On account of misrepresentation and misconception by the Manager the approval granted in favour of Smt. Abha Rastogi was cancelled by RGIS vide order dated 25.8.1987 and in pursuance thereof the management vide order dated 31.8.1987 terminated the services of Abha Rastogi. Both the

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letter dated 25.8.1987 issued by the R.I.G.S. Cancelling the approval and the consequential termination order dated 31.8.1987 are impugned in the Writ Petition No. 6221 of 1987 by Abha Rastogi. Suman Srivastava approached this Court seeking writ of mandamus to treat her appointed as Assistant Teacher under the deeming clause of 1981 Order. There was interim orders in respect of the respective parties, but only Smt. Abha Rastogi was allowed to continue and was paid her salary whereas Suman Srivastava was not allowed to work for want of approval and appointment letter.

4. It is submitted by Km. Suman Srivastava that once Smt. Abha Rastogi vide letter dated 12.2.1987 refused the appointment, she does not have any legal right to claim appointment on the said post and since the other two candidates have refused appointment, therefore, Km. Suman Srivastava being the fourth candidate became eligible for the appointment. RIGS never approved the appointment of Suman Srivastava but it is contended by her that since seven days had lapsed from the date of receipt of particulars pertaining to her selection it will be deemed that approval was granted by RIGS. The proposal sent by the Manager for approval of the name of Suman Srivastava was wrongly rejected by RIGS by order dated 25.8.1987.

5. Km. Suman Srivastava has relied upon following judgments in support of her contentions:

1998 UPLBEC 640, Nagar Palika Inter College Vs. Dr. Hawaldar Singh and Others, , Nagar Palika Inter College v. Havildar Singh; 1991 ACJ 125, Sukhanandan v. D.I.O.S. And 1983 UPLBEC 768, Rajendra Prasad v. Kayastha Pathsala.

6. There was interim order in favour of Suman Srivastava, however, it was never given effect to finally interim order was vacated on 9.3.1990 after exchange of affidavits. Interim order dated 9.3.1990 is reproduced herein below:

"Application for Stay

Lucknow DATED 9.3.1990.

Hon'ble D.K. Trivedi, J.

Writ Petition No. 5318 of 1987, was filed by Kumari Suman Srivastava, whereas writ petition No. 6221 of 1987 was filed by Km. Abha Rastogi.

There is no dispute that there is one vacancy of Assistant Teacher in C.T. Grade in the College. Admittedly, for this ad hoc appointment a selection took place and in the said selection Km. Abha Rastogi, was placed at serial No. 1. It is further alleged that name of Km. Suman Srivastava finds place at serial No. 4. The R.I.G.S. by letter dated 28.2.1987, granted an approval in favour of Km. Abha Rastogi. The said letter was received in the office of College on 3.3.87. The above mentioned facts are not disputed by the Counsel for the parties. Counsel for Km. Suman Srivastava states, on the basis of some letter of the Management that Km. Abha Rastogi has refused to join the post by letter dated 12.2.87. R.I.G.S. canceled the order of approval granted in favour of Km. Abha Rastogi. Km. Abha Rastogi, has denied this fact and Counsel for the Abha Rastogi, pointed out that admittedly the approval was granted by R.I.G.S. On 28.2.87. Therefore, there is no question for refusal of joining the post on 12.2.87 as alleged by the other side. There is no letter of 12.2.87 on record. It is also not disputed between the parties that if there is no refusal of Km. Abha Rastogi, then, Km. Suman Srivastava, has no right to continue in service as there is only one post on which Km. Abha Rastogi has better claim. She is admittedly selected by the Selection Committee and placed at serial number 1.

From the perusal of the file it appears that whole controversy has been created by the management of the college. As there is no letter of refusal of Km. Abha Rastogi on record and further in view of the fact that Km. Abha Rastogi as well as R.I.G.S. including the Manager of College, are now denying this fact of refusal, therefore, in my opinion, there is no justification in continuance of the stay order, passed in favour of Suman Srivastava of Writ petition No. 5318 of 1987. Stay order dated 21.8.87 is therefore, vacated.

Sd/- D.K. Trivedi,

9.3.1990."

7. It is alleged on behalf of Committee of Management that Km. Suman Srivastava was working in the institution prior to the issuance of the advertisement. She was engaged on honorarium of Rs. 200 and further she was an applicant to the post advertised for temporary vacancy but in the order of merit she finds place at Serial No. 4 and at no point of time she was issued appointment letter nor her name was ever approved by RIGS nor she has been paid salary from the State Exchequer. On the other hand, Committee of Management contends that Smt. Abha Rastogi was issued appointment letter and in pursuance thereof she joined. The Manager admits that there was no refusal on the part of Smt. Abha Rastogi as alleged by the Km. Suman Srivastava.

8. During the pendency of the writ petition, Smt. Abha Rastogi was brought into L.T. grade on regular basis by order dated 13.2.2006 w.e.f. 5.4.1995 and since then she has been working in the L.T. Grade and on account of pendency of writ petition her regularization is not being considered and on the strength of her 26 years service she claims regularization under Section 33B of 1982 Act for which Smt. Abha Rastogi preferred Writ Petition No. 1172 of 1996.

9. In rebuttal, Sri K.D. Nag, Advocate appearing for Smt. Abha Rastogi contends that the appointment letter dated 31.12.1986 was an invalid appointment letter as it was issued prior to the approval of the RIGS. Under the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981, the selection process has to be approved by the RIGS and it is only after the approval the appointment letter could have been issued. According to Sri K.D. Nag, appointment letter was issued on 25.8.1987 and Smt. Abha Rastogi had duly accepted and joined. She had approached the RIGS on several occasions vide complaint dated 14.4.1987, 5.5.1987 and again on 25.5.1987 for issuance of appointment letter, but the Management was conniving with Km. Suman Srivastava and in turn misleading the RIGS. It is further contended that Km. Suman Srivastava has no locus to challenge the appointment of Smt. Abha Rastogi as Smt. Abha Rastogi had accepted the offer of appointment and the select list stood exhausted. It is on account of misrepresentation on the part of Committee of Management that the RIGS had passed the impugned order dated 25.8.1987 by which approval was rejected and in pursuance thereof the Committee of Management had terminated the services of Smt. Abha Rastogi vide order dated 31.8.1987.

10. Sri K.D. Nag, Advocate appearing for Smt. Abha Rastogi has relied upon following judgments.

Buddhi Nath Chaudhary and Others Etc. Vs. Abahi Kumar and Others, ; (2007) 1 UPLBEC 120, Sadhna Kumari (Smt.) v. State of U.P. and (1994) All C.J. 781, Rajendra Prasad Srivastava v. DIOS Gorakhpur. Civil Misc. Writ Petition No. 13572 of 2003, Chandra Mohan Pandey v. District Inspector of Schools, Deoria and others, decided on 23.8.2005. The judgment was affirmed in Special Appeal No. 977 of 2006, District Inspector of Schools, Deoria and another v. Chandra Mohan Pandey and another decided on 8.12.2006.

11. Learned Standing Counsel has not disputed the factual matrix and has contended that as per the provisions of the Act and the Regulations framed there under and Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981, a valid appointment letter can be issued after the approval has been granted by the RIGS. Any appointment letter sent prior to the date is nullity within the meaning of law and in case appointment letter is issued prior to the date of approval then it would only become valid from the date on which the approval was granted by the RIGS. The legal right to salary accrues only from the date of approval, the Order 1981 requires prior approval. In respect of Km. Suman Srivastava no approval was granted nor payment of salary was made at any point of time, she has no claim as the candidate at serial No. 1 i.e. Abha Rastogi had joined the post of Assistant Teacher.

Rival submissions fall for consideration.

12. In Ashika Prasad Shukla Vs. District Inspector of Schools, Allahabad and another, , a Division Bench of this Court held:

"15. The next question that falls for consideration is whether the appointment of the petitioner-appellant could still stand invalidated on the ground that it was make without prior approval of the District Inspector of Schools, Sri Yatindra Singh placed reliance on a Division Bench decision of this Court in A.K. Pathshala v. Smt. M.D. Agnihotri, 1971 Alld. L.J. 983, wherein it was held, on construction of Section 16-F(1) of the U.P. Intermediate Education Act, 1921, that appointment without prior approval by the Competent Authority would, in the eye of law, be no appointment. The ratio of the said decision as held by a subsequent Division Bench in Lalit Mohan Misra v. District Inspector of Schools, 1979 All. L.J. 1025, is that a "person gets the status of a teacher when requisite formality is completed." The relevant observation are as under:

"Without approval the person does not get the status of a teacher even though the approval is to be followed by formal letter but in the absence of formal letter the person gets the status of a teacher after approval to the appointment is given by the District Inspector of Schools. The appointment of a person as a teacher becomes effective only from the date approval is given and even if a person is allowed to work before that the same has no recognition under the U.P. Intermediate Education Act."

16. Paragraph 2(3)(iv) of the Second Removal of Difficulties Order is not phrased in a prohibitory language as was the language used in Section 16-F(1) of the U.P. Intermediate Education Act, 1921. The words 'prior approval' have been used in sub-clause (ii) of paragraph 2(3) of the Second Removal of Difficulties Order and a conjoint reading of sub-clauses (ii), (iii) and (iv) of clause (3) of paragraph 2, no doubt, leads to an inescapable conclusion that the appointment would be issued under the signature of the Manager only on the approval having been communicated by the District Inspector of Schools within seven days of the receipt of the papers or where the approval is deemed to have been accorded as visualized by sub-clause (iii) of clause (3) of paragraph 2 of the Second Removal of Difficulties Order. However, appointment if made prior to approval or deemed approval, would become effective from the date of approval of deemed approval as held by the Division Bench of this Court in Lalit Mohan Misra."

Similar view was again held by a Division Bench of this Court in Special Appeal No. 319 of 2005 in Smt. Shobha Rastogi v. The Committee of Management and others, decided on 22.3.2005. From the aforesaid judgments, the conclusion arrived is that the appointment could be issued by the Manager only on the approval communicated by the District Inspector of Schools within seven days of the receipt of the papers or where the approval was deemed to have been accorded as visualized by sub clause (iii) of clause (3) of Paragraph 2 of the Second Removal of Difficulties Order. Further, any appointment made prior to the approval or deemed approval would become effective only from the date of approval or deemed approval and that the appointment made prior to the approval or deemed approval would not be held to be illegal. In view of the aforesaid, the authority was not justified in rejecting the case of the petitioner on this ground..............."

13. This Court in Lal Bahadur Vs. State of U.P. and Others, , had interpreted "prior approval" and "permission" as contained in Regulation 101 in case of appointment of class IV post and relied upon Amit Kumar Vs. District Inspector of Schools, Jaunpur and janother, , wherein it has been held that Regulation 101 clearly expresses that prior approval of D.I.O.S. is a condition precedent for making any appointment on a non-teaching post. Relevant extract of the aforesaid judgment is quoted below:

"From the aforesaid meaning of the word "except" it is clear that the expression "except" has been used in Regulation 101 to mean "only". Therefore, the appointing authority before making appointment on a non-teaching post could make any appointment only after obtaining prior approval of DIOS. In my opinion use of these two words 'shall' and "except" have been used in imperative terms. And clearly express that prior approval of DIOS is a condition precedent for making any appointment on a non-teaching post. Use of word "except" with the prior approval of DIOS does not leave any discretion to the appointing authority to make any appointment without obtaining his prior approval. If Regulation 101 is treated to be directory then the appointing authority could make appointment on non-teaching post even without prior approval of the DIOS. It would result in giving power to the appointing authority to make appointment first and thereafter obtain financial approval. This was not the intention of legislature or the Rule making authority. And it clearly intended that before making any appointment the appointing authority must obtain prior approval of the DIOS. The legislative intent has to be given effect to while interpreting regulatory provisions of Regulation 101. Regulations 103 to 106 to Regulations further make it clear that the Regulation 101 cannot be construed as permissive or directory. Further the procedural safeguard contained in Regulation 101, making it obligatory for the appointing authority in matters of making appointment on non-teaching posts, not to fill the vacancy except with the prior approval of the DIOS, has an element of public interest. Regulation 103 providing for appointments under the Dying in Harness Rules makes it obligatory on the DIOS to provide appointment to dependents not only in the institution where the deceased was working but any other institution, therefore, the only reasonable interpretation which can be given to the two words "shall" and "except" used in Regulation 101 is that these expressions are imperative and the regulatory provision contained in Regulation 101 is mandatory and cannot be treated to be directory. The requirement of obtaining prior approval of DIOS is not an empty formality. It is in public interest. The appointment of petitioner being contrary to Regulation 101 did not vest any right in him either to claim his appointment as regular or any salary."

13. Regulation 101 was again interpreted by a Division Bench of this Court in the case of Jagdish Singh v. State of U.P. and others, 2006 (24) LCD 1712, wherein after discussing entire provisions on the subject, the Division Bench of this Court has clearly held that prior approval contemplated in Regulation 101 is the prior approval of the District Inspector of Schools after completion of the process of selection and before issuance of appointment letter to the selected candidates. This Court in the aforesaid judgment of Jagdish Singh v. State of U.P. And others (supra) has clearly discussed the difference between iwokZuqeksnu and vuqefr i.e. 'prior approval' and 'permission'. After discussing the issue, it has been held by this Court in the said case that what Regulation 101 requires is that District Inspector of Schools will accord his approval to the selection made by the appointing authority and it is only after approval of the District Inspector of Schools to the selection that appointing authority can issue appointment order to the selected candidate."

14. From the facts and law stated herein above, it is admitted case of the respondents viz Committee of Management and RIGS that no approval was accorded to the selection of Km. Suman Srivastava and no appointment letter was issued to her, where as approval was accorded to the selection of Smt. Abha Rastogi by RIGS and appointment letter was issued to her and she joined in pursuance thereof and is working on L.T. Grade after abolition/merger of C.T. Grade to L.T. Grade. In the opinion of the Court Km. Suman Srivastava has no locus to challenge the selection of Smt. Abha Rastogi nor is she an aggrieved persons.

15. The meaning of the expression 'person aggrieved' will have to be ascertained with reference to the purpose and the provisions of the statute. One of the meaning is that person will be held to be aggrieved by a decision if that decision is materially adverse to him. The restricted meaning of the expression requires denial or deprivation of legal rights. A more legal approach is required in the background of statues which do not deal with the property rights but deal with professional misconduct and morality. Bar Council of Maharashtra Vs. M.V. Dabholkar and Others, .

16. Broadly, speaking a party or a person is aggrieved by a decision when, it only operates directly and injuriously upon his personal, pecuniary and proprietary rights (Corpus Juris Seundem. Edn. 1, Vol. IV., p. 356, as referred in Kalva Sudhakar Reddy Vs. Mandala Sudhakar Reddy and Others,

17. The expression 'person aggrieved' means a person who has suffered a legal grievance i.e. a person against whom a decision has been pronounced which has lawfully deprived him of something or wrongfully refused him something.

18. Km. Suman Srivastava does not dispute that she was not the selected candidate and appointment letter was issued in favour of Smt. Abha Rastogi and her selection was also approved by the R.I.G.S. After issuance of appointment letter and in pursuance thereof Smt. Abha Rastogi joined the post, Other candidates in the list had no locus as the selections stood exhausted. The Committee of Management as well as the R.I.G.S. have not supported the case of Km. Suman Srivastava and the approval of Km. Suman Srivastava was rightly rejected by the R.I.G.S. Km. Suman Srivastava had no locus to challenge the selection of Smt. Abha Rastogi and neither she was an aggrieved person.

19. This Court while vacating the interim order passed in favour of Km. Suman Srivastava had noticed vide order dated 9.3.1990 that the Management by one letter gave an impression to the RIGS that Smt. Abha Rastogi had refused the offer of appointment and on the basis of the letter of the Management the RIGS cancelled the approval in favour of Smt. Abha Rastogi and thereafter the Committee of Management terminated her service. No opportunity was given to Smt. Abha Rastogi before passing the impugned order.

20. In Basudeo Tiwary Vs. Sido Kanhu University and Others, , Hon'ble Supreme Court held requirement of audi alteram partem flows from Article 14 in order to ensure State action to be just, fair and reasonable procedural requirement of natural justice has to be implied before dispensing with the services of a person. Paragraphs 9 and 10 are reproduced:

9. The law is settled that non-arbitrariness is an essential facet of Article 14 pervading the entire realm of State action governed by Article 14. It has come to be established, as a further corollary, that the audi alteram partem facet of natural justice is also a requirement of Article 14, for natural justice is the antithesis of arbitrariness. In the sphere of public employment, it is well-settled that any action taken by the employer against an employee must be fair, just and reasonable which are the components of fair treatment. The conferment of absolute power to terminate the services of an employee is an antithesis to fair, just and reasonable treatment. This aspect was exhaustively considered by a Constitution Bench of this Court in Delhi Transport Corpn. v. D.T.C. Mazdoor Congress.

10. In order to impose procedural safeguards, this Court has read the requirement of natural justice in many situations when the statute is silent on this point. The approach of this Court in this regard is that omission to impose the hearing requirement in the statute under which the impugned action is being taken does not exclude hearing-it may be implied from the nature of the power-particularly when the right of a party is affected adversely. The justification for reading such a requirement is that the Court merely supplies omission of the legislature, (vide Mohinder Singh Gill v. Chief Election Commissioner, and except in case of direct legislative negation or implied exclusion, (vide S.L. Kapoor v. Jagmohan).

21. In Mohan Lal Sharma v. The District Inspector of Schools Muzaffar Nagar and others, 1982 UPLBEC 213, the Division Bench has held that the D.I.O.S. has no power to review once an approval has been granted and even assuming that the order of approval was granted by mistake even then D.I.O.S. has no jurisdiction to revoke the same unless opportunity of explanation of hearing was given. Paragraph 1 is reproduced:

"There is no provision in the Intermediate Education Act or in the regulations framed thereunder conferring power on the District Inspector of Schools to review an order according approval under Section 16-E of the Act. The District Inspector of Schools, like any other statutory authority, has, however, power to recall or revoke its order it is obtained by mistake, misrepresentation or fraud. Even assuming that the order of approval was passed under some mistake, the Inspector had no jurisdiction to revoke the same unless some opportunity of explanation of hearing was given to the petitioner because once an approval is granted to the appointment of a teacher and if orders of his appointment are issued, vested rights are created in his favour."

22. It is not in dispute between the parties that it was temporary vacancy and the procedure as prescribed under the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 is applicable. Sub-clause 3(i) provides that management shall intimate the vacancies to the District Inspector of Schools/RIGS and shall also immediately notify the same on the notice board of the institution, requiring the candidates to apply to the Manager of the institution alongwith the particulars given in Appendix "B" to this Order. Order (ii) of sub-clause 3 provides names and particular of the candidate and also of other candidates and the quality point marks allotted to them shall be forwarded by the Manager to the District Inspector of Schools for this prior approval. Sub-clause (iv) provides on receipt of the approval of the District Inspector of Schools or, as the case may be, on his failure, to communicate his decision within seven days of the receipt of papers by him from the Manager, the management shall appoint the selected candidate and an order of appointment shall be issued under the signature of the Manager. Order (i), (ii), (iii) and (iv) of sub-clause 3 are reproduced:

"(3)(i) The management shall intimate the vacancies to the District Inspector of Schools and shall also immediately notify the same on the notice board of the institution, requiring the candidates to apply to the Manager of the institution alongwith the particulars given in Appendix "B" to this Order. The selection shall be made on the basis of quality point marks specified in the Appendix to the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, issued with Notification No. Ma-1993/XV-7 (79)-1981, dated 31.7.1981, hereinafter to be referred to as the First Removal of Difficulties Order, 1981. The compilation of quality point marks shall be done under the personal supervision of the Head of institution.

(ii) The names and particulars of the candidate selected and also of other candidates and the quality point marks allotted to them shall be forwarded by the Manager to the District Inspector of Schools for his prior approval.

(iii) The District Inspector of Schools shall communicate his decision within seven days of the date of receipt of particulars by him failing which the Inspector will be deemed to have given his approval.

(iv) On receipt of the approval of the District Inspector of Schools or, as the case may be, on his failure, to communicate his decision within seven days of the receipt of papers by him from the Manager, the Management shall appoint the selected candidate and an order of appointment shall be issued under the signature of the manager."

23. A bare perusal of Para 3 sub-clause (ii) and (iii), it is incumbent upon the Manager to issue an order of appointment after prior approval from the D.I.O.S. Or after a lapse of seven days from the date of receipt of particulars.

24. It is evident from the facts that on 25.8.1987 the case of Km. Suman Srivastava has been rejected by the RIGS and on the same date appointment letter is issued to Km. Abha Rastogi and she joined on the following date. The approval was granted by R.I.G.S. on 28.2.1987. The Manager of the College in connivance with Suman Srivastava tried to mislead the RIGS by creating an impression that Km. Abha Rastogi has refused to join vide letter dated 12.2.1987. The RIGS in the impugned order dated 25.8.1987 takes notice of the fact that Km. Abha Rastogi vide letter dated 25.4.1987 had complained to the RIGS that the Management is not cooperating and not issuing the appointment letter and taking notice of the fact that the Management had allowed Km. Abha Rastogi last opportunity to join by 10.2.1987 and vide letter dated 12.2.1987 Abha Rastogi refused the offer of appointment, the impugned order has been passed without issuing notice to Smt. Abha Rastogi. The approval is granted in February, 1987 and the Management issues appointment letter in August, 1987 and in the intervening six months the Management in collusion with Km. Suman Srivastava tried to non-suit Smt. Abha Rastogi on fact which was otherwise false and fabricated. The R.I.G.S. Should have issued notice to Km. Abha Rastogi before passing the order dated 25.8.1987 for the reason that Km. Abha Rastogi had already complained to the R.I.G.S. that the Manager was not issuing appointment letter. The withdrawal of approval and consequential order of termination without opportunity was bad and unsustainable and is liable to be set aside on that ground alone.

25. In due course of time, one Smt. Raksha Saxena Assistant Teacher working in L.T. Grade was confirmed by letter dated 9.5.1989. The post occupied by Km. Abha Rastogi became substantive vacancy. Section 33B was inserted on 6.4.1991 in U.P. Secondary Education Services Selection Board Act 1982 for regularization of ad hoc teachers including teachers appointed on short term vacancy. It is not in dispute that Km. Abha Rastogi fulfills all conditions for regularization under Section 33-B. C.T. Grade was declared dying cadre by the State of U.P. and as a matter of policy decision all C.T. Grade teachers were liable to be brought into next higher grade in the L.T. Grade. Km. Abha Rastogi was brought into L.T. Grade on regular basis w.e.f. 5.4.1995 vide letter dated 13.2.2006. The District Inspector of Schools rejected the claim of Km. Abha Rastogi for regularization in C.T. Grade vide order dated 23.3.1995 which is impugned in respect of Writ Petition No. 1172 of 1996 and was stayed by this Court vide order dated 27.2.1996. Thereafter, the District Inspector of Schools issued another letter on 13.12.1996 to the manager of the college to send papers of Km. Abha Rastogi for regularization. The matter is pending and has not been considered for regularization on account of the pendency of the writ petition. For the reasons and law stated hereinabove, the writ petition No. 5318 of 1987, Km. Suman Srivastava v. State of U.P. and others, is devoid of merit and is dismissed. Writ Petition No. 1172 of 1996, Smt. Abha Rastogi v. State of U.P. and Writ Petition No. 6221 of 1987, Smt. Abha Rastogi v. R.I.G.S. Lko, are allowed. The impugned orders dated 25.8.1987 and 31.8.1987 passed by the R.I.G.S. Lucknow and Manager respectively and order dated 23.3.1995 passed by the District Inspector of Schools, Lucknow, are quashed. It is directed that the case of Smt. Abha Rastogi shall be considered for regularization under Section 33-B of the U.P. Secondary Education Selection Board Act, 1982 within three months from the date of service of certified copy of the order.

No order as to cost.
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