Allahabad High Court
Smt. Sarbjeet Kaur W/O Sri Milkiyat ... vs The State Of U.P. Through The Secretary ... on 15 April, 2005
Author: A.P. Sahi
Bench: A.P. Sahi
JUDGMENT A.P. Sahi, J.
1. Heard Shri A.P. Srivastava, learned counsel for the petitioner and Shri Alok Singh, learned Standing Counsel on behalf of the respondents.
2. The petitioner has impeached the order passed by the Deputy Director of Education, Agra, dated 27.4.1998 which has affirmed the earlier order passed by the District inspector of Schools dated 8.9.1997 and has held that the approval to the appointment of the petitioner cannot be granted in view of the fact that the petitioner has not been appointed against a sanctioned post and secondly that the petitioner was appointed against a post which was held by a Teacher with regard to which a Civil Suit is already pending before the Civil Court. A counter-affidavit has been filed on behalf of the respondents to which a rejoinder-affidavit has been filed by the petitioner. The stand taken by the respondents is that the letter dated 21.8.1979 sanctioned only 5 posts of Assistant Teacher and not 6 inasmuch as even though 6 posts were referred to therein but the note appended to the said letter stated that one post re remains unapproved and as such the post which is being claimed by the petitioner is not available and therefore, it was rightly disapproved.
3. Having examined the contention of the parties and the orders impugned, the facts that emerge are that one Km. Harbhajan Kaur was appointed as a teacher for teaching Punjabi language in the institution which admittedly is a minority institution. The appointment was made under the provisions contained under U.P. Intermediate Education Act and the Regulations framed therein under an order of the Director of Education dated 26.10.1979 which has been appended along with Annexure-1 to the writ petition. The aforesaid appointment has been approved by the Director of Education, who under U.P. Act No. 24 of 1971 is the authority competent to sanction the post. It is admitted to the parties that Harbhajan Kaur continued to get salary where after she retired and against the said post Smt. Jasjeet Walia was appointed which appointment was also approved and Smt. Jasjeet Walia continued to get salary on the post in question. It is also admitted to the parties that Smt. Jasjeet Kaur Waliya was dismissed from her services and against her dismissal order, she approached the Civil-Court by filing a civil suit being Suit No. 412 of 1995. The fact that the, petitioner was appointed against the aforesaid post, which fell vacant after the dismissal of Smt. Jasjeet Kaur Waliya is also not disputed by the parties. It is, thus, dear from the admitted facts that the petitioner' was appointed against the post which was being occupied on substantive basis by the earlier incumbents and who had also been paid salary continuously.
4. The appointment of the petitioner, which was proposed to be approved by the respondents authorities, was forwarded by the District Inspector of Schools to the Accounts Officer but no formal order of approval emanated as a result whereof the petitioner approached this Court by filing a writ petition and a direction was issued to the authorities to decide the claim of the petitioner. The District Inspector of Schools, thereafter, passed the impugned order dated 8.9 1997 whereby he has found that the petitioners appointment could not be approved on account of the pendency of the litigation in the Suit filed by Smt. Jasjeet Kaur Waliya. The District Inspector of Schools has further stated that petitioner's appointment was not approved also on account of the fact that there was no sanctioned post available.
5. Having examined the aforesaid fact which have been brought out on the record, it is evident that the aforesaid finding of the District Inspector of Schools is erroneous inasmuch as the post against which the petitioner was appointed was a clear substantive post winch continued to exist since 1979 upon the sanction having been made by the Director of Education vide letter dated 26.10.1979. The District Inspector of Schools has, nowhere recorded an adverse finding on the authenticity of the aforesaid order dated 26.10.1979. Further the petitioner was appointed on the post which had fallen vacant on account of the termination of the services of Smt. Jasjeet Walia which termination is still intact and no orders have been passed reversing the same. The order of the District Inspector of Schools is founded on a complete miscalculation in identifying the post against which the petitioner was appointed. In view of this, the order of the District Inspector of Schools is unsustainable in law and, as such, the same deserves to be set aside.
6. The petitioner preferred an appeal against the aforesaid order before the Deputy Director of Education which has also been rejected by the order dated 27.4.1998 impugned in the present writ petition and appended as Annexure-9. A perusal of the aforesaid order indicates that the finding recorded by the Deputy Director of Education, Agra, is that the order dated 26.10.1979 does not amount to creation of a post and it only sanctions the payment of salary to the petitioner. The aforesaid finding recorded fails to take into account the provisions of Section 9 of the U.P. Act No. 24 of 1971 which is quoted herein below for ready reference:
9. Approval for post-No institution shall create a new post of teacher or other employee except with the previous approval of the Director. or such other officer as may be empowered in that behalf by the Director.
7. A perusal of the Setter dated 26.10.1979, which was issued much after the post were created earlier leaves no room of doubt that the Director clearly intended to create the post and sanction salary in respect of the appointment of Harbhajan Kaur. The Deputy Director of Education has, therefore, erred in interpreting the order dated 26.10.1979 and as such, the order of the Deputy Director of Education dated 27.4.1998 is equally unsustainable. The Deputy Director of Education has also failed to take notice of the admitted facts indicated herein above that earlier incumbents to the post had been appointed and approved by the authorities themselves under the very same order dated 26.10.1979 and the post has been continuing since 1979 Even otherwise, it would, be absolutely unjust to deprive an institution of a post which has been allowed to continue by the respondents for more than 20 years.
8. In view of the facts and circumstances and the findings recorded hereinabove, the order dated 27.4.1998 passed by the Deputy Director of Education, Agra, and the District Inspector of Schools, Agra, dated 8.9.1997 are hereby quashed.
9. The order dated 27.4.1998 passed by the Deputy Director of Education records that the petitioner has been continuously functioning in the institution since 1995 and, as such, on humanitarian grounds she should be paid salary from the sources of the institution. This Court had passed interim orders on 13.8.1999 directing the respondents to pay salary to the petitioner.
10. In view of the aforesaid fact that the Deputy Director herself has found the petitioner to be continuing in service, the appointment of the petitioner shall now be considered in the light of the aforesaid observations and the order shall be passed by the respondent District Inspector of Schools in respect of the approval of the appointment of the petitioner within one month from the date on production of the certified copy of the order before the District Inspector of Schools
11. With the aforesaid directions, the, writ petition is allowed. No order as to cost