WRIT PETITION 37561 of 2013 on 15 June 2012

1. Heard Sri J.P. Singh, learned counsel for the petitionerand learned Standing Counsel for the respondents.

2. The petitioner by means of the present writ petition hasprayed for the following relief:- “i. To issue a writ, order or direction in the natureof mandamus commanding the Director ofEducation (Secondary), U.P./Respondent No.2 topass appropriate order for maintaining previouslysanctioned strength of 20 Lecturers in the College(as per post creation order dated 29.12.1992passed by the then Deputy Director of Education,Seventh Region, Gorakhpur).

ii. To issue a writ, order or direction in the natureof mandamus commanding the State Governmentto issue necessary order sanctioning/creating 20posts of Lecturers in the College in terms of theGovernment Order dated 15.06.2012 within thetime to be specified by the Hon'ble Court.

iii. To issue any other writ, order or directionwhich this Hon'ble Court may deem fit and properin the circumstances of the case.

iv. To Award costs of the petition to thepetitioners.”

3. The petitioner-Shibli National Inter College, Azamgarh(hereinafter referred to as 'College') is a recognised and aided Intermediate College. According to the petitioner, the Collegeis a Minority Institution, and is governed by the Provisions ofU.P. Intermediate Education Act, 1921 (hereinafter referred toas 'Act, 1921') and the relevant Regulations framed thereunderas well as U.P. High Schools and Intermediate Colleges(Payment of Salaries of Teachers and Other Employees) Act,1971 (hereinafter referred to as ‘the Act, 1971’) .

4. According to the case of the petitioner, the sanctionedstrength in the College is 20 posts of Lecturers, 29 posts ofAssistant Teachers in LT/CT Grade in the College, 01 post ofHead Clerk, 04 posts of Assistant Clerk and 16 posts of'Paricharak' (Class-IV Employee), total 71 posts. Subsequently,the post of Lecturer was reduced from 20 posts to 10 posts.

5. Being aggrieved by the same, the College preferredWrit-A No.37561 of 2013 in which this Court by order dated15.07.2013 directed the petitioner-College to represent theirclaim before the Secretary, Secondary Education, U.P.Government, Lucknow. Relevant extract of the order dated15.07.2013 is reproduced herein below:- “Consequently, in the facts of the case, at thisstage no interference is being made by this Courtbut proceeds to give liberty to the petitioners torepresent their claim before the SecretarySecondary Education U.P. Government Lucknow.In case any such representation is moved, sameshall be dealt with in accordance with lawpreferably within three months from the date ofpresentation of certified copy of the order passedby this Court.

With the above direction present writ petition isdisposed of.”

6. It is stated in the writ petition that the District Inspectorof Schools, Azamgarh by letter dated 10.02.2016 directed theManager/Principal of the College to produce followingdocuments:- “1. वेतन िवतरण अधिधिननयम 1971 से आच्छादिदित होने कादशादसनादेश/पदि सृजन सम्बन्धिनी मूल अधिभिलेख की छादयादप्रतित याद प्रतथमवेतन िबल की छादयादप्रतित l

2. िवगत पादंच वषर की छादत्र संख्याद l

3. वतरमादन मे कादयरत स्टादफ स्टेटमेट l”

7. According to the petitioner, he has submitted theinformation required by the District Inspector of Schools,Azamgarh by letter dated 10.02.2016 in time. When nodecision was taken, the petitioner-College approached thisCourt by filing the present petition and prayed for the aforesaidrelief.

8. The case of the respondents in the counter affidavit isthat with regard to determination of sanctioned strength ofaided Secondary Institutions, this Court vide judgment andorder dated 22.05.2012 passed in Writ-A No.26307 of 2010(Dhruv Narain Singh Vs. State of U.P. and others) issued thefollowing directions, the operative portion of which is extractedherein below:- “The District Inspector of schools of each districtshall be called upon to submit before the ChiefSecretary or the officer designate for the purposethe details of posts institution-wise qua whompayment of salary is actually being made as on datealongwith records which may be available in theoffice of District Inspector of Schools in the matterof sanction of posts.

At least this part of the work must be completed by

the State respondents on or before the next datefixed in the matter i.e. 09[th] July, 2012.”

9. It is further stated that in compliance with the order dated22.05.2012 passed by this Court in Writ-A No.26307 of 2010,the State Government vide Government Order dated15.06.2012 constituted a Committee headed by the AdditionalDirector of Education (Secondary), U.P. Prayagraj for thepurpose of re-determination of Janshakti (sanctioned strength)of the aided Institutions with a direction to make verification ofInstitutions at District Level and submit report/recommendationby 30.06.2012. The Committee constituted by the StateGovernment comprises the following:-

1. Additional Director of Education (Secondary), U.P. Chairman

2. Joint Director of Education (Arth) Member

3. Senior Finance & Accounts Officer Member

4. Deputy Director of Education (Secondary-2) Member

5. Deputy Director of Education (Secondary-3) Member

10. Further case of the respondents is that since the originalposts creation order of the College was not available in theoffice of District Inspector of Schools, Azamgarh or with theCollege, therefore, on the basis of first salary bill of teachers/employees of the College after the College was brought withinthe purview of Act, 1971, the then District Inspector ofSchools, Azamgarh vide his letter/report dated 26.12.2012made recommendations to the Additional Director of Education(Secondary), U.P. Prayagraj for sanction of following posts inthe College:-

11. Further case in the counter affidavit is that the aforesaidreport dated 26.12.2012 of the then District Inspector ofSchools, Azamgarh was forwarded by the Director ofEducation (Secondary), U.P. Lucknow to the State Governmentfor re-determination of Janshakti (sanctioned strength) of theof the College.

12. The State Government on the basis of the report/recommendation received from the Director of Education(Secondary), U.P. Lucknow vide Government Order dated29.05.2013 re-determined the Janshakti (sanctioned strength) ofof the College in question as follows:

Total 60 posts

13. The further case of the respondents is that the thenDistrict Inspector of Schools, Azamgarh after re-determinationof the Janshakti (sanctioned strength)of the College on

29.05.2013 and without verification of original records relatingto the post creation order in the College vide his letter dated23.10.2013 wrongly made following recommendation to theDirector of Education (Secondary), U.P. Prayagraj fordetermination of Janshakti (sanctioned strength) of theCollege:-

14. It is further stated that the report/recommendation of thethen District Inspector of Schools, Azamgarh dated 23.10.2013was without verification of original post creation order dated29.12.1992, and after the determination of the Janshakti(sanctioned strength) by the State Government, therecommendation of the then District Inspector of Schools,Azamgarh dated 23.10.2013 cannot be the basis for re-determination of Janshakti(sanctioned strength) of the College.

15. In the rejoinder affidavit, it is stated that the documentsrequired by the District Inspector of Schools, Azamgarh byletter dated 10.02.2016 had been supplied in the office ofDistrict Inspector of Schools, Azamgarh on 15.02.2016.

16. It is further stated that the sanctioned strength of theLecturer in the College was 20 and reduction of sanctionedstrength of the Lecturer in the College is not as per law and against the record.

17. It is contended by the learned counsel for he petitionerthat there is an order dated 29.12.1992 issued by the DeputyDirector of Education, Seventh Region, Gorakhpur to theDistrict Inspector of Schools, Azamgarh which shows that thesanctioned strength of the Lecturer in the College is 20 posts.It is further submitted that there was various reports namely,the letter dated 07.10.2013 issued by the Joint Director ofEducation, Gorakhpur Mandal, Gorakhpur stating thatverification from dispatch register suggest that the sanctionstrength order dated 29.12.1992 had been issued from theoffice of Deputy Director of Education, Seventh Region,Gorakhpur.

18. He further submits that the District Inspector of Schools,Azamgarh submitted a report dated 23.10.2013 by placingreliance upon the report dated 09.05.2013 submitted by theCollege to the District Inspector of Schools, Azamgarh andalso the Joint Director of Education, Gorakhpur Mandal,Gorakhpur (appearing on page-61 of the paper book) on07.10.2013 to the Director of Education (Secondary) thatsanctioned strength in the College is as follows:-

19. It is submitted that the District Inspector of Schools,Azamgarh also vide letter dated 10.02.2016 has directed theManager/Principal of the College to submit necessarydocuments referred in the said letter, which have beensubmitted by the College in time, and in such view of the fact,the reduction of post of Lecturer from 20 to 10 is illegal andarbitrary exercise of power by the respondents.

20. It is submitted that it is established from the order dated29.12.1992, the authenticity of which is not disputed by therespondents that the sanctioned strength of the Lecturer in theCollege is 20 posts, therefore, reduction of 10 posts of Lecturerin the College cannot be sustained in law.

21. It is further submitted that it is evident from the orderdated 29.12.1992 that the post has been sanctioned by theDeputy Director of Education under Section 9 of the Act,1971, and since it has been done in accordance with theprocedure contemplated under the Act, therefore, the reductionof sanctioned post of Lecturer in the College is illegal.

22. Per contra, learned Standing Counsel for the respondentswould contend that there is delay and laches in filing thepresent writ petition, inasmuch as it is evident from the recordthat the sanctioned strength of the College was re-determinedby the State Government by order dated 29.05.2013. Thereafter,the petitioner approached this Court by filing Writ-A No.37561of 2013 in which the petitioner was relegated to the StateGovernment to represent his grievance. The petitioner,thereafter, did not espousehis cause and approached this Courtin the year 2022 by filing the present writ petition on09.03.2022, therefore, there was a delay of about 9 years in filing the present writ petition. It is submitted that since, thewrit petition does not involve recurring cause of action,therefore, the writ petition is liable to be dismissed on theground of delay and laches.

23. It is submitted that in compliance of the order dated22.05.2012 passed by this Court in Writ-A No.26307 of 2010, aCommittee was constituted by the State Government byGovernment Order dated 15.06.2012 headed by the AdditionalDirector of Education (Secondary) U.P. Prayagraj for thepurpose of re-determination of sanctioned strength of the postof Lecturer, and the Committee after verifying the record andafter obtaining report/recommendation from the Director ofEducation (Secondary), U.P. Prayagraj vide order dated29.05.2013 re-determined the sanctioned strength of theCollege. Accordingly, it is contended that once the StateGovernment has re-determined the sanctioned strength by orderdated 29.05.2013 after following the due procedure of law, andthe petitioner has failed to demonstrate from the record in thepresent writ petition that the sanctioned strength of Lecturer inthe College was 20, therefore, the relief prayed for by thepetitioner cannot be granted.

24. I have heard counsel for the petitioner and learnedStanding Counsel for the respondents.

25. According to the petitioner, the sanctioned strength ofpost of Lecturer in the College was 20, but consequent torecommendation/ order dated 26.12.2012 of the then DistrictInspector of Schools, Azamgarh, it was reduced on re-determination of post by the Government Order dated29.05.2013 in compliance of the order passed in Writ-A

No.26307 of 2010. The petitioner, thereafter, approached thisCourt by filing Writ Petition No.37561 of 2013, in which thisCourt relegated the petitioner to the State Government. Therelevant extract of the order of Writ Petition No. 37561 of2013 has been already quoted above. So, the petitioner wasrelegated to the State Government in the year 2013, andthereafter, the petitioner kept mum as he did not espouse hiscause before the Court of law for about 9 years, and hasapproached this Court after 9 years by filing the present writpetition on 09.03.2022.

26. Learned counsel for the petitioner though has tried toexplain the delay by submitting that the District Inspector ofSchools, Azamgarh by letter dated 10.02.2016 asked thepetitioner to submit certain documents referred in the saidletter, which have been submitted by the petitioner in time, andnecessary averments in this regard has been made by thepetitioner in paragraph 20 of the writ petition, a copy ofreceiving of the document by the District Inspector of Schoolson 15.02.2016 is enclosed as Annexure-4 to the rejoinderaffidavit, therefore, it is not a case where the petitioner wasdormant about his cause, and in fact the petitioner was pursuingthe matter.

27. This Court does not find merit in the submissionsadvanced by counsel for the petitioner for the reason thatthough certain information had been sought by the DistrictInspector of Schools, Azamgarh by letter dated 10.02.2016, andaccording to the petitioner in compliance of said letter dated10.02.2016, he had submitted the documents required by letterdated 10.02.2016 within time. There is no specific averment in paragraph- 20 of the writ petition as to the date on which thepetitioner had supplied the documents in response to the letterof District Inspector of Schools dated 10.02.2016. Even, theletter of receiving enclosed along with the rejoinder affidavit onpage-25 though shows that documents had been received bysomebody on 15.02.2016, but there is no stamp of the office ofDistrict Inspector of Schools, Azamgarh, nor the identity of theperson is clear from the signatures who received it. The saiddocument of receiving enclosed (appearing on page 25 of therejoinder affidavit) cannot be considered for one more reasonthat the respondents did not get any opportunity to verify thesaid document and reply the same in the counter affidavit,inasmuch as the said document was not filed along with thepresent writ petition, and has been filed with the rejoinderaffidavit.

28. In such view of the fact, it is hard to believe that thepetitioner had submitted any response in reply to the letterdated 10.02.2016 of the District Inspector of Schools,Azamgarh. Even otherwise, after the letter dated 10.02.2016issued by the District Inspector of Schools, Azamgarh, thepetitioner became dormant for six years and has approachedthis Court by filing the present writ petition on 09.03.2022without there being any explanation of delay in filing thepresent writ petition, therefore, this Court is of the opinion thatthere is an inordinate delay and laches in filing the present writpetition.

29. Now, coming to the submissions advanced by counsel forthe petitioner that it is evident from the order dated 29.12.1992issued by the Deputy Director of Education, Seventh Region, Gorakhpur and also from the report of the Joint Director ofEducation, Gorakhpur Region, Gorakhpur dated 07.10.2013(appearing on page 61 of the paper-book), and the report of theDistrict Inspector of Schools, Azamgarh dated 23.10.2013 thatthe College has sanctioned strength of 20 posts of Lecturer,which had been sanctioned by the Deputy Director ofEducation, Secondary under Section 9 of the the Act, 1971,and, therefore, any conclusion against the said report isarbitrary and against the record. This Court does not find anymerit in the submissions advanced by learned counsel for thepetitioner for the reasons recorded below.

Conclusion

30. There is no case of the petitioner in the writ petition thatearlier the College was brought under the Payment of Salariesof Teachers and Other Employees) Act, 1971,there wassanctioned strength of 10 posts of Lecturer in the Collegewhich was later on increased to 20 posts of Lecturer. Thepetitioner has failed to produce the original order dated29.12.1992 which is the order sanctioning the strength of 20posts of Lecturer in the College.

31. The record reflects that in compliance of the order passedby this Court in Writ-A No.26307 of 2010, an exercise wasundertaken to re-visit the sanctioned strength in the Colleges,and in pursuance of the order passed by this Court in Writ -ANo.26307 of 2010, a Committee was constituted headed by theAdditional Director of Education, Secondary, U.P. TheCommittee thereafter sought a report from the Director ofEducation, Secondary, and based on the said report, the StateGovernment vide Government Order dated 29.05.2013 re-determined the sanctioned strength of the Lecturer in the College, besides the other posts. The report of the JointDirector of Education, Gorakhpur Mandal Gorakhpur dated07.10.2013 reads as under:

“संयुक्त िनदिेशक (िशक्षाद)

गोरखपुर मण्डल गोरखपुर।

,सेवाद मे

आजमगढ़ मण्डल आजमगढ़।

पत्रादंक िडस्पैच- 2013-14

िदिनादंक 07 अधक्टूबर 2013

िवषयः- -िशबली ने० इ० कादलेज आजमगढ़ के पदि सृजन आदिेश पत्रादंक माद० 2/19597-601/92-93 िदिनादंक 29.12.1992 के सत्यादपन के सम्बन्धिन मे।,महोदिय उपयुरक्त िवषयक आप के पत्रादंक 3708/2013-14 िदिनादंक 30 िसतम्बर2013 के सन्दिभिर मे सूच्य है िक इस कादयादरलय के िडस्पैच पंिजकाद के अधनुसादर पत्रादंकमाद०-2/19597-601/92-93 िदिनादंक 29.12.1992 िजलाद िवद्यादलय िनरीक्षकआजमगढ़ को सम्बोिधिनत तथाद प्रतबन्धिनक/ प्रतधिनादनादचादयर िशबली नेशनल इण्टर कादलेज, आजमगढ़ सिहत अधन्य को पृष्ठादंिकत हैपदिों काद सृजन आदिेश िनगरत िकयाद गयाद है।

भिवदिीय

(िदिव्यकादन्त शुक्ल)

गोरखपुर मण्डल गोरखपुर।

पृ० सं० िडस्पैच/534850/2013-14 तदि् िदिनादंक।

-प्रतितिलिप िनम्नादंिकत को सूचनादथर प्रतेिषत 1- िजलाद िवद्यादलय िनरीक्षक आजमगढ़।

2- प्रतबन्धिनक िशबली ने० इण्टर कादलेज आजमगढ़।

(िदिव्यकादन्त शुक्ल)

संयुक्त िनदिेशक (िशक्षाद)

गोरखपुर मण्डल गोरखपुर।"

32. The aforesaid report reflects that the Joint Director ofEducation has only verified the dispatch register dispatchingthe order dated 29.12.1992, but he did not see the original orderto verify the correctness or genuineness of the order dated29.12.1992. In such view of the fact, this Court is of the viewthat the report dated 07.10.2013 of the Joint Director ofEducation cannot be relied upon in the absence of anyverification with regard to original order dated 29.12.1992regarding the sanctioned strength of the posts of Lecturer.Consequently, the report of District Inspector of Schools dated23.10.2013 cannot be relied upon for the reason that the saidreport is based upon the report of the Joint Director ofEducation dated 07.10.2013.

33. The specific case of the respondents is that since theoriginal order dated 29.12.1992 was not available either withthe College or in the record of the District Inspector of Schools,Azamgarh, therefore, on the basis of the salary bill paid to theLecturer after the College was brought under the Payment ofSalaries Act, the sanctioned strength is determined, and thesanctioned strength of the post of Lecturer is 10.

34. The petitioner’s case in the writ petition is not that earlierthere was sanctioned strength of 10 posts of Lecturer in theCollege which was later on increased to 20 posts of Lecturers.There is no such pleading in the writ petition nor the petitionerhas produced any relevant record demonstrating that theprocedure contemplated under Section 9 of the Act, 1971 wasfollowed by the Deputy Director of Education in issuing theorder dated 29.12.1992. Thequestion whether the photo-copy of letter dated 29.12.1992 is the true copy of original order is adisputed question of fact, which cannot be determined by thisCourt in the absence of any document on record supporting theassertion of the petitioner regarding genuineness of the orderdated 29.12.1992, therefore, this Court is of the view that therelief prayed for by the petitioner in the present writ petitioncannot be granted.

35. Consequently, the writ petition lacks merits and is,accordingly, dismissed with no order as to costs.

Order Date :- 7.2.2025NS