Allahabad High Court
State Of U.P. & Others vs Smt. Anita Tyagi on 9 August, 2010
Bench: F.I. Rebello, A.P. Sahi
1
Reserved
Special Appeal No. 1287 of 2009
State of U.P. and others Vs. Smt. Anita Tyagi
Hon'ble F.I. Rebello,C.J.
Hon'ble A.P. Sahi,J This appeal, apart from raising a challenge to the judgment of a learned Single Judge of this Court in a matter relating to a claim of payment of salary by the respondent- petitioner as a Triple Language Teacher, also calls into question a wider issue which has been raised by the appellant State of U.P. namely that payment of salary from the State Exchequer to such teachers of unaided basic schools is inadmissible under the scheme promulgated through the Government Order dated 10th March, 1964.
During the pendency of the appeal an impleadment application has been filed by twelve other similarly situate teachers in other institutions of the same district of Banda and their intervention has been permitted by the Court vide order dated 5th July, 2009.
We have heard Sri Satish Chaturvedi learned Additional Advocate General for the appellant State of U.P., Sri Bhanu Pratap Singh learned counsel for the Basic Education Department, learned counsel for the respondent petitioner Sri R.K. Saini and Sri Ashok Khare Senior Advocate on behalf of the intervenors.
2The respondent-petitioner preferred the petition giving rise to this appeal by questioning the correctness of the order dated 9th January, 2009 whereby the Deputy Director of Education (Basic), Uttar Pradesh, Allahabad rejected the request of the respondent-petitioner on the ground that since there was no allocation of budget for payment of salary as claimed by the petitioner, therefore, it was not possible to make the payments as prayed for. This order was passed on a direction issued by this Court on 9.9.2008 calling upon the said authority to decide the claim of the petitioner. The order impugned also indicates that the respondent- petitioner had been paid salary for the Sessions 1998-99, 2004-05 and 2005-06.
The Court while entertaining the writ petition called upon the respondents to file their response and Mahendra Kumar Singh the Deputy Director who had passed the impugned order dated 9th January, 2009 filed his affidavit contending therein that since the institution in which the respondent-petitioner was working, is an unaided institution, and had not been brought on the grant-in-aid list, there was no liability of the State Government to extend the benefit of any payment. It was further indicated that primarily it is the responsibility and liability of the management for making payments as the earlier payments made to the respondent-petitioner were made only on release of some funds by the State Government. It has been 3 further stated that the State Government has taken a decision to hold an inquiry, about such teachers receiving salary and working in unaided institutions or beyond the sanctioned strength in aided institutions, as in the absence of any valid sanction of budgetary allocation the payments could not have been released. Accordingly the order impugned in the writ petition was justified.
The learned Single Judge vide order dated 21st April, 2009 directed impleadment of the State Government through the Principal Secretary (Finance) and also called upon him to file his affidavit. The Principal Secretary (Finance) Manjit Singh has filed his affidavit stating therein that the Finance Department, on its own, does not make any budgetary provision but does so on the basis of proposals made by the respective departments. The affidavit in Para-6 states that so far as the payments to Triple Language Formula Teachers are concerned, the same has been traditionally made under the head 'Sahayata Prapt Junior High School Evam K.G. Nursery Vidhyalayon Ko Sahayata'.
A Second affidavit was filed by the same Officer Mahendra Kumar Singh, the Deputy Director Education (Basic) who attempted to justify an inadvertent mistake in his earlier affidavit stating therein that the dictation noted down by the Stenographer of learned Standing Counsel was not correctly recorded and therefore Paragraph 12 of the earlier affidavit stating that the petitioner will be paid salary 4 after allocation of budget was wrongly incorporated.
Thereafter the Joint Secretary, Basic Education Govt. of U.P. was called upon to file his affidavit which was sworn by Ramesh Chandra Ghildiyal and in Paragraphs 10 and 11 of the said affidavit an explanation has been given about the manner of disbursement of grant to aided institutions and further that the affidavit of the Deputy Director Education is defective and does not reflect the stand of the Government accurately.
It appears that when the matter was finally heard before the learned Single Judge and oral arguments were advanced, the learned Additional Advocate General contended that in view of the Government Order dated 11th May, 1992 such liability of payment of salary will be upon the Management as the respondent petitioner is a teacher of an unaided institution. This contention of the learned Additional Advocate General was examined on merits and the learned Single Judge held that in view of the Government Order dated 10th March, 1964 no such distinction can be drawn, and since there was no challenge to the claim of the respondent-petitioner for payment of salary from the State Exchequer, in that event the order dated 9th January, 2009 correctly recorded that it was in the absence of budgetary allocation that the salary could not have been paid. It was further held that it does not lie in the mouth of the State Government to go behind the said order 5 and the budgetary allocation should be released and the payment of salary should be made to the respondent- petitioner.
Before entering into the merits of the contention we may point out that the institution with which we are presently concerned is a Junior High School governed by the provisions of the Basic Education Act and the conditions of the services of the teachers and their appointment are governed by a set of rules namely the Uttar Pradesh Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978. The recognition is granted by the department in exercise of powers vested under the Basic Education Act, 1972. The institution has been granted temporary recognition at the Junior High School level which recognition is continuing under the order of the competent authority dated 27.2.1998. Since these facts are not disputed between the parties, we have perused the recognition order dated 27.2.1998 placed by the learned Additional Advocate General before us even though the same does not form part of the record. The appointment of the respondent petitioner as a Triple Language Teacher is in the said institution which has been granted recognition on 27th February, 1998.
Sri Chaturvedi while advancing his submissions on behalf of the State of U.P. appellant contends that the scheme under which such payments are to be made is 6 contained in the Government Order dated 10th March, 1964 quoted in extenso in the Judgment of the learned Single Judge. He submits that keeping in view the object behind the said scheme the State Government approved the proposal for appointment of the Triple Language Teachers on the terms and conditions as set out therein in accordance with the Government Orders issued from time to time. Clause (3) on which heavy reliance has been placed by the learned Additional Advocate General is as follows:
"The Governor has further been pleased to place at your disposal a sum of Rs. 3,73,000/- (Round) Rupees three Lakhs seventy thousand) for payment of grant for wholly covering the additional expenditure on this account to the Non Govt. aided institutions during the current financial year (1963-64) out of the budgeted provision."
It is submitted that the said Clause clearly specifies that the budgetary allocation is only with regard to non- Government "aided" institutions. He submits that such a budgetary allocation is not available for a Triple Language Teacher appointed in an unaided institution. In essence the submission is that the scheme is only with regard to non- Government aided institutions and nothing beyond that. Accordingly, the stand of the State is that the respondent petitioner and the intervenors being teachers of unaided non-Government institutions are not entitled for release of 7 any salary or for any budgetary allocation under the said scheme.
Relying on the Government Order dated 11th May, 1992 the State contends that while indicating the terms and conditions for recognition of Basic Schools it is provided that the Management shall ensure payment of salary in the same grade to the teachers and employees of its institution and same shall be the responsibility of the concerned institution. He submits that accordingly, the institution which has been granted recognition on 27.2.1998, is bound by the Government Order and has to make the payments to the respondent-petitioner from its own sources.
On 9th March, 1999 the Assistant Director of Education (Basic) issued a letter to the District Basic Education Officer, Meerut in the matter of the respondent petitioner herself approving her appointment on the condition that her appointment shall be included within the sanctioned strength of the institution and shall not be an additional appointment over and above the sanctioned strength. The approval shall not be treated to be a sanction for an additional post. It was further clarified that the respondent petitioner shall be entitled to payment of salary from the own sources of the Management. Sri Chaturvedi therefore, submits that the respondent petitioner was not entitled to salary and the learned Single Judge has overlooked this aspect of the matter and has erroneously issued general 8 directions in this regard.
He has further invited the attention of the Court to the circular issued by the Director of Education, which is not a Government Order, dated 21.6.1999 filed by the intervenors and inviting the attention of the court to the same urged that it is a clarification keeping in view the past Government Orders categorically in relation to payments claimed by teachers of the Triple Language Scheme in unaided institutions. He submits that since under the Government Order dated 11th May, 1992 no additional post could have been created for a recognized institution, therefore, any such claim against the additional post under the scheme of 1964 is unfounded.
He, therefore, makes a twin fold submission in essence that neither the scheme of 1964 permits the release of any budgetary allocation to an unaided institution nor does the subsequent Government Order dated 11th May, 1992 as clarified under the Government Order dated 21st June, 1999 permit any institution to make appointment against any additional post or claim salary.
There is a third dimension to this payment which according to us also deserves to be examined, namely that in an unaided institution there are other teachers as well who are approved under the provisions of the Act but they do not get any salary. In such a situation it has to be examined as to 9 whether payment of salary to the Triple Language Formula Teacher would be an act of discrimination as against those teachers who are already working in the institution and approved under the sanctioned strength. The question will have to be examined from the point of view of impinging upon the rights of other teachers to receive salary thereby violating Article 14 of the Constitution of India.
Sri Khare appearing for the respondent intervenors contends that the Government Order was issued on 31st March, 2006 and under the said Government Order a circular was issued by the Director of Education on 15th June, 2006, a copy whereof has been filed along with a supplementary counter affidavit whereby budgetary allocations have been acknowledged for Triple Language Formula Teachers of unaided institutions. He submits that the respondent-petitioner and the intervenors have received salary in two or three sessions and the consistent stand of the State in all such claims has been only want of budgetary allocation. It is submitted by him that at no stage before any court, had the State taken a stand that such an aid was not admissible to non-Government unaided institutions. This stand of the State is by way of an improvement through the ingenuity of the arguments of the learned Additional Advocate General without there being any material in the affidavits filed by the Finance Secretary, the Secretary Basic Education Department and the Deputy Director Education (Basic). He submits that there is no such averment 10 contained in any of the affidavits which may justify advancing of such oral arguments by the learned Additional Advocate General.
He further submits that it was under a legitimate expectation that the respondent petitioner and the intervenors joined the institution and were also paid salary. He further submits that through out the State similar payments have been made to thousands of teachers of unaided institutions or beyond the strength in aided institutions and there is no such bar of extending such payment in the scheme of 1964. Sri Khare however did not plead estoppel but he submits that the Government itself has been construing and interpreting its actions by contending that the payments can only be made provided there is a budgetary allocation and nothing beyond that. He, therefore, submits that the arguments of the learned Additional Advocate General being an improvement upon the actual stand of the State deserves to be rejected.
He further submits that the directions issued by the learned Single Judge are perfectly justified and there is no mistake, fraud or misrepresentation on the part of the respondent petitioner or the intervenors in having received the salary in the past. He, therefore, contends that the continuity of payment should be maintained and there being no decision to the contrary to discontinue such payment by the State Government, the same cannot be inferred under 11 the Government Order dated 21st June, 1999. He submits that the long standing conduct of the State Government cannot be upturned merely on the oral submissions of the learned Additional Advocate General more so when the Director of Education has himself indicated the entitlement of payment to the teachers of unaided institutions in the circular dated 15.6.2006.
We may therefore, now consider the scheme itself dated 10th March, 1964. There is no dispute between the parties that the said scheme was promulgated under a Government Order which is traceable to the provisions of Article 162 of the Constitution of India. It is also undisputed that the State legislature has the powers to legislate on such business and accordingly the executive power of the State stands extended to such matters.
The said Government Order proceeds to acknowledge the proposal for appointment of additional teachers for teaching the third language in all recognized non- government Junior High Schools and Higher Secondary Schools of the State. The opening paragraph of the said Government Order does not draw any distinction between aided and unaided schools. It further provides for the scale of pay of different level of institutions and it also prescribes that dearness allowance shall be admissible in accordance with the Government Orders issued from time to time. The said Government Order also directs the authorities to 12 prescribe the qualifications of such teachers. Paragraph 2 of the Government Order reveals that the scheme may be extended to all institutions where there is a genuine demand from five or more students in a class of such schools for learning the third language. This Paragraph also does not draw any distinction between the aided and non-aided institutions. The third paragraph of the Government Order prescribes that the Governor has been pleased to place at the disposal of the Education Department a certain amount as grant for covering the additional expenditure on this count to the non-Government "aided" institutions during the current financial year 1963-64. Clause (5) of the Government Order authorises the department to pay this grant in future years subject to necessary funds and provisions being made in the budget to be voted by the legislature.
The learned Additional Advocate General contends that Clause (3) of the Government Order, therefore, obliges the State Government to make payments to such teachers appointed under the scheme for teaching the third language who are employed in an aided institution. He submits that this Clause (3), therefore, by its operation excludes any budgetary allocation for unaided institutions. On the strength of this Clause, the learned Additional Advocate General submits that the learned Single Judge has erroneously proceeded to record that there is no such distinction between aided and unaided institutions.
13We have examined the said provisions but before we form an opinion on the same it is necessary to examine the developments after 1964 in relation to the legislations brought about for regulating the recognition of institutions and appointment of teachers in such institutions. One will also have to examine the Government Orders which have been referred to herein to construe the real intent of the respondents.
The State Government in respect of recognized non- Government Schools promulgated statutory rules for employment known as Uttar Pradesh Recognized Basic Schools (Junior High School) (Recruitment and Conditions of Service of Teachers) Rules, 1978. Prior to this, the State Government had enacted the U.P. Basic Education Act, 1972 but no rules had been framed for non-Government recognized schools. Such institutions were governed by executive instructions and provisions of the Education Code of 1958 which were not strictly statutory in character.
The State Government had issued a Government Order on 5th September, 1972 clarifying that teachers under the aforesaid scheme of 1964 were to be governed in their matters of service on the same terms and conditions as the other teachers of the institution. It was further clarified that the scheme has come to stay permanently. This aspect of the matter appears to be borne out from paragraph 6 of the circular of Director of Education dated 21st June, 1999.
14The rules of 1978 were brought into effect on 18th October, 1978. The power to sanction or create such posts vested in the Regional Director of Education or Regional District Inspectress of Girls School which authority continued with the said Officers till 12th January, 1984. Thereafter this power was taken over by the Directorate of Education, Uttar Pradesh, Allahabad and again it was delegated to the Regional Assistant Director of Education (Basic) for some time w.e.f. 20th January, 1986. The power to create posts was again reverted back to the Directorate and continues to be retained by it till today. The power to approve appointments vests in the District Basic Education Officer.
The State Government has come up with a stand that no post can be treated to have been additionally created for a Triple Language formula teacher and it has to be within the sanctioned strength as prescribed while granting an order of recognition to an institution after the promulgation of the 1978 Rules. This clarification is reiterated in the Government Order dated 11th May, 1992 and, therefore, the State Government contends that teachers of unaided institutions are not entitled for salary under the State funds unless there is grant-in-aid available. A teacher under the Triple Language Scheme appointed in an unaided institution is not entitled for salary as he falls within the sanctioned strength of the institution of which all teachers are not 15 getting any salary from the State funds.
The learned Single Judge while proceeding to consider the aforesaid aspect has opined that the Government Order of 11th May, 1992 is for a different purpose as it regulates the payment of wages to the teachers appointed in the recognized institutions in relation to the subject for which recognition is granted. The learned Single Judge distinguished it by saying that the appointment of a teacher under the Triple Language Scheme is for imparting a third language which is in addition to the sanctioned strength whether the post of a third language teacher had been approved at the time of grant of recognition or thereafter or not. In essence the learned Single Judge holds that the post of the third language teacher cannot be treated under the sanctioned strength as the sanction of such a post and its separate budgetary allocation is governed by the 1964 Rules.
In order to ascertain the correctness or otherwise of this opinion we will have to further traverse the subsequent developments in the matter which has essentially given rise to the present controversy. It appears that the Directorate of Education came across certain orders by different Basic Educations Officers whereby they had treated the third language teachers' post to be a separate post and orders had been issued to that effect. Accordingly, these discrepancies were noticed and the Directorate issued a circular on 16 16.10.1985 to all the Basic Education Officers to ensure that such creation is made within the sanctioned strength of the institution and to remove any such discrepancies which have occurred in this regard.
It appears that difficulties were being faced with regard to the implementation of the said scheme vis-a-vis the creation of the post and release of grant as a result whereof another circular was issued by the Director of Education on 20th July, 1996. This position has been noted in Paragraph 5 of the circular of the Director dated 21st June, 1999 and it has been indicated therein that the Basic Education Officers continued to treat the post of Triple Language Formula to have been automatically created under the recognition order issued to an institution and on such misinterpretation salary was also disbursed to them which is indicated to be unauthorized. For this the reason given in the said circular are the terms and conditions of recognition as spelt out in the Government Order dated 11th May, 1992.
At this juncture a fact that deserves mention is that the approval in the present case in relation to the respondent- petitioner Smt. Anita Tyagi the Assistant Director of Education (Basic) issued a letter on 9th March, 1999 reciting therein that the said teacher will be treated to have been approved against the existing one of the four already sanctioned posts and that the said approval will not amount to an automatic creation of an additional post.
17A Government Order was issued on 16th March, 1999 for allocation of grant pursuant to the budget allotted for the said purpose. Prior to the said Government Order the allocation was made region-wise by the Directorate but under the said Government Order it was provided that henceforth all budgetary allocation under the Triple Language Scheme shall be given to the districts directly. It was further clarified that in respect of the unaided institutions such grant would be approved only with the prior approval of the Regional Officer and the District Basic Education Officer shall ensure that the payments are disbursed through bank operations. Other instructions were issued with regard to payments of arrears in previous years. It was also clarified that prior to 11th May, 1992 if there are any judicial orders the same shall be taken into account for release of such salary. It was further directed that the inquiry shall be made in relation to the recognition and other aspects of the institution as provided for in paragraph 10 of the said circular and that payments should be released after making due inquiries.
A perusal of the said circular indicates that the Director has accepted the release of such grants even to unaided institutions. The State Government has now come up contending that such directions are contrary to the scheme of 1964 and that action has been taken by the State Government by setting up an inquiry against such officers 18 who were responsible for this alleged unauthorized disbursement.
To examine the status of the Institution in which the respondent petitioner is appointed and to extend the benefit or otherwise under the Government Order 1964 reference may be had to the classification of educational institutions in Paragraph 2 of the Educational Code of Uttar Pradesh, 1958 which is quoted below:
"Para 2: Recognised institutions are divided according to the system of control into two categories:
(a) Under public management :
(i) Government institutions are public
institutions managed directly by the
Department.
(ii) District Board institutions are
institutions which are managed by a District Board.
(iii) Municipal Board institutions are institutions which are managed by a Municipal Board.
(b) Under private management :
(i) Aided institutions are private but recognised institutions which receive grant-in-aid from public funds, either from the Government or from Local Bodies (District Board, Municipal Board, etc.)
(ii) Un-aided institutions are those 19 which receive no assistance whatever from public funds and differ from private institutions mainly in being recognised by the Department.
Note- Rules applicable to Higher Secondary Schools maintaining classes XI and XII shall also apply to the Intermediate classes (Classes XI and XII) attached to Degree Colleges except in the matters relating to inspection."
With coming into force of the Basic Education Act, 1972, Junior and Senior Basic Schools came to be governed by the said enactment and the rules framed thereunder. The Basic Education Officer under the aforesaid enactment became the controlling and inspecting authority of Basic Schools. The rules of general application for extension of grant-in-aid to recognised institutions has been provided for in Chapter IX of the 1958 Code where grants have been classified like annual grants, grants made for the setting up of an improvement of institutions including building grants. Grants for purchase of furniture, fittings and books are also provided for separately. There is a separate grant for purchase of vehicles and also for substituting the endowments of the institution. A full procedure for receiving grant has been provided for in Para 307 of the said Education Code in an application form No. 38 appended to Appendix-1. Thus there are provisions for recurring and non-recurring expenditure to be extended in the shape of grants.
For Junior High Schools as in the present case, 20 teachers have to be appointed under the provisions of the 1978 Rules (supra). A teacher appointed in accordance with the said rules can get payment of salary if he is within the sanctioned strength and the institution is getting grant-in- aid. This has now been regulated by another enactment namely U.P. Junior High Schools Payment of Salaries of Teachers and Other Employees Act, 1978. Section 2(f) defines maintenance grant as follows.
"Sec. 2 (f): "Maintenance grant" means such grant-in-aid of an institution as the State Government by general or special order in that behalf, directs to be treated as maintenance grant appropriate to the level of the institution."
The said act applies in respect of a teacher as defined in Section 2 (h), quoted below:
"Sec. 2(h):"Teacher" of an institution means a Headmaster or other teacher in respect of whose employment maintenance grant is paid by the State Government to the institution."
The salary of such a teacher is defined in Section 2(i), quoted below:
"Sec. 2(i): "Salary" of a teacher or employee means the aggregate of the emoluments, including dearness or any other allowance, for the time being payable to him at the rate approved for the purpose of payment of maintenance grant."
A perusal of these provisions would indicate that the 21 salary from State funds would be payable in relation to a teacher of a recognised institution receiving grant-in-aid from the State Government. This enactment also empowers the Director or such other Officer of the department to create the post of a teacher. Section 9 of the said Act is quoted below:
"Sec. 9: Approval for posts.-
(1)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 by a general or special order in that behalf by the Director.
(2) If any new post is created with the previous approval referred to in sub-section (1) and no appointment is made to such post, within three months, the approval shall be deemed to have been withdrawn."
The aforesaid definition therefore makes it mandatory for a post to be created so as to bring within the purview of payment of salary of an institution receiving grant-in-aid. It is in these conditions that the liability for payment of salary rests on the State as per Section 10 of the Act, quoted below:
"Section 10: Liability in respect of salary.-
(1)The State Government shall be liable for payment of salaries of teachers and employees of every institution due in respect of any period after the appointed day.
(2) The State Government may recover an amount 22 in respect of which any liability is incurred by it under sub-section (1) by attachment of the income from the property belonging to or vested in the institution as if that amount were an arrear of land revenue due from the institution.
(3) Nothing in this section shall be deemed to derogate from the liability of the institution for any such dues to the teacher or employee."
It is, therefore, clear that the institution receiving a maintenance grant/grant-in-aid is to be regulated by the aforesaid provisions and the salary to a teacher would be payable, provided the post is sanctioned under the aforesaid provisions.
The question would be as to whether a teacher appointed to teach the third language under the scheme of 1964 would be a teacher within the sanctioned strength of the institution or not. In the instant case the respondent petitioner was appointed and the letter dated 9th March, 1999 recites that she would be treated to have been approved against the existing one of the four sanctioned posts and it will not be an additional post. It is, therefore, clear that the respondent petitioner has been approved against a sanctioned post.
The institution however is not receiving any grant-in- aid in spite of the fact that the respondent petitioner has been appointed under the aforesaid conditions. Once the respondent petitioner has been appointed treating her 23 appointment against one of the existing sanctioned posts then the next question is as to whether the teacher so appointed is not entitled for payment of salary under the 1964 Scheme.
The scheme in its opening clauses nowhere creates a distinction of its applicability in relation to the appointment of a third language teacher in an institution between the aided and unaided institutions. It only specifies that the grant which is being extended is for aided institutions.
An unaided institution as classified under the Education Code, is an institution which does not receive any assistance from public funds. There is nothing to indicate that the institution is receiving any other form of maintenance grant or aid from the Government. The grant- in-aid, therefore, in such a situation should be construed to mean receiving aid upon having been admitted to the maintenance grant-in-aid by the State Government. The institution should therefore be one which the State Government has accepted as an institution entitled to receive maintenance grant-in-aid. It is then only that the institution can be said to be an aided institution. It is also to be noted that an institution which is aided has salary of the teachers as a major component of the grant-in-aid. The other grants are subsidiary grants. Grant-in-aid in the present context directly relates to the salary of the teachers and therefore an aided institution will have to be construed 24 in that context.
The difficulty in cases like the present one has arisen on account of the payments having been released in the past by the State Government itself to unaided institutions and its disbursal has been made by the authorities on their own without there being any misrepresentation or fraud on the part of the teachers or the management of the institution. The State Government and its authorities were itself in doubt and as a matter of fact the communications of the year 2006 noted herein above demonstrate that in spite of these doubts the funds have been released by the State Government in several crores for being paid to such teachers without there being any distinction between aided and unaided institutions.
There is one thing clear that after the promulgation of the Government order dated 11th May, 1992, it has been the categorical stand of the State Government that the post of the third language teacher would only be against a sanctioned post. In such a situation there would be not difficulty with regard to the payment of salary to a teacher against a sanctioned post and receiving grant-in-aid. However, an appointment beyond the strength would be an appointment in contravention of the said Government Order and the terms and conditions of recognition. In our opinion, any payment made to such a teacher from the State funds if continued would not be recoverable as there is no fault on 25 the part of the teacher.
So far as institutions which are totally unaided, yet a third language teacher has been paid salary, the same would also not become recoverable for the same reasons. The State Government itself has proceeded to continue to make payments and therefore unless the said policy is altered, modified or reversed, such teachers cannot be said to have been paid salary illegally. The payment therefore, can be continued even otherwise if the State Government comes up with a firm and final decision on this score.
On record we do not find any final decision having been taken by the State Government except for some clarifications having been issued and therefore the claim of such teachers would be dependent upon any final decision being taken by the State Government in this regard.
The Scheme of 1964 was introduced when there were no rules or regulations statutorily controlling the sanctioned strength of teachers and their payment of salary. It was only through executive instructions that such payments were made through grants-in-aid under the Education Code of 1958. The arguments which have been advanced on behalf of the State with the aid of subsequent legislation therefore will have to be clarified and enunciated in the form of an appropriate decision keeping in view the objects and reasons for payment to teachers under the Third Language Scheme.
26We, therefore, dispose of this appeal with liberty to the State Government to take a decision in relation to the payment of salary to teachers of the Triple Language Formula in unaided institutions in the light of that what has been indicated above and the judgment of the learned Single Judge would stand modified accordingly. The decision will be taken not later than three months from today and the consequential action shall follow immediately thereafter.
With the aforesaid observation, the appeal stands disposed of.
Dt. 9 August, 2010
Sahu
(A.P. Sahi, J.) (F.I. Rebello, CJ.)