Allahabad High Court
Jeet Lal Saroj vs State Of U.P. And 3 Others on 25 August, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Neutral Citation No. - 2023:AHC:171459 Reserved on 18.08.2023 Delivered on 25.08.2023 Court No. - 35 Case :- WRIT - A No. - 10696 of 2023 Petitioner :- Jeet Lal Saroj Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Shivendu Ojha,Sneh Pandey,Sr. Advocate Counsel for Respondent :- C.S.C.,Prabhakar Awasthi,Ramesh Chandra Dwivedi,Santosh Kumar Mishra Hon'ble Vikas Budhwar,J.
1. Heard Sri R.K. Ojha, learned Senior Counsel assisted by Sri Shivendu Ojha, learned counsel for the writ petitioner, Sri Pradeep Kumar Shahi, learned Additional Chief Standing Counsel who appears for respondents No. 1 and 2, Sri R.C. Dwivedi, learned counsel who appears for respondent No. 3 and Sri Prabhakar Awasthi, learned counsel who has put in appearance on behalf of respondent No. 4.
2. Since affidavits have been exchanged between the parties and the learned counsel for the parties do not propose to file any further affidavits, thus, with the consent of the parties, the writ petition is being decided at the fresh stage.
3. The facts of this case shorn off unnecessary details as worded in the writ petition are that the third respondent, Sarswati Shiksha Sadan Intermediate College Marrron, Handia, District Prayagraj (in short respondent institution) is a recognized and aided institution under the provisions of Uttar Pradesh Intermediate Education Act, 1921, the provisions of U.P. (Services Selection Board) Act, 1982 as well as Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 are applicable.
4. As per the writ petitioner, Jeet Lal Saroj son of Sri Ram Shiromani Saroj, he was selected and appointed as Lecturer (Sanskrit) pursuant to the recruitment exercise undertaken by the U.P. Secondary Education Service Selection Board against the Advertisement No. 1 of 2009 and the writ petitioner was accorded placement in Maharana Pratap Inter College Ram Dayalganj, District Jaunpur by virtue of the letter dated 08.12.2010. The writ petitioner claims to have joined the post of Lecturer (Sanskrit) in Maharana Pratap Inter College, Ram Dayalganj, District Jaunpur on 04.01.2011. It is further the case of the writ petitioner that on his request, he was transferred from Maharana Pratap Inter College Ram Dayalganj, District Jaunpur to the third respondent, Sarswati Shiksha Sadan Intermediate College Marrron, Handia, District Prayagraj, by virtue of the transfer order dated 28.06.2019 passed by the Additional Director of Education (Madhyamic), U.P., Prayagraj and the petitioner assumed the charge on the post of Lecturer (Sanskrit) in the third respondent institution on 04.07.2019. In para 8 of the writ petition, it has been pleaded that fourth respondent Lalmani son of Hub Lal was selected as Assistant Teacher (Physical Education) pursuant to the recommendation of the U.P. Secondary Education Service Selection Board dated 05.07.2006 and the consequential letter of the District Inspector of Schools, Etawah dated 19.08.2006. In para 9 of the writ petition, it has been further asserted that the fourth respondent was issued appointment letter on 05.10.2006 pursuant whereto he joined as Assistant Teacher (Physical Education) in Zila Panchayat Inter College, Haivara, Etawah.
5. Pleadings further reveal that the fourth respondent preferred an application seeking transfer in the third respondent institution in pursuance thereof he was transferred on 07.01.2016 as Assistant Teacher (Physical Education) in the third respondent institution. In para 11 of the writ petition, further pleadings have been made that the fourth respondent was accorded joining as Assistant Teacher (Physical Education) in the third respondent institution on 01.02.2016. According to the writ petitioner, the fourth respondent preferred an application on 21.09.2018 for claiming Lecturer pay and Lecturer post in pursuance of the Government Orders dated 28.02.1990 and 25.10.2000, however, the second respondent, District Inspector of Schools, Prayagraj by order dated 26.11.2018 declined to grant Lecturer pay and Lecturer post on the premise that the fourth respondent was not fulfilling the conditions as stipulated in Government Orders in question. However, as per the writ petitioner, the second respondent, District Inspector of Schools, Prayagraj accorded selection grade pay to the fourth respondent on 18.07.2018. Aggrieved against the non-according of Lecturer pay and Lecturer post since 05.10.2016 the fourth respondent is stated to have approached the SC/ST Commission while drawing proceedings, pursuant whereto the SC/ST Commission sought clarification from the Director of Education (Madhyamic), U.P., Prayagraj and thereafter by virtue of the order dated 14.05.2023 the second respondent, District Inspector of Schools, Prayagraj entitled the fourth respondent to be conferred the benefits of Lecturer pay and Lecturer post with effect from 05.10.2016.
6. Questioning the order dated 14.05.2023 passed by the District Inspector of Schools, Prayagraj, second respondent, making the fourth respondent entitled for Lecturer pay and Lecturer post in pursuance of the Government Orders dated 28.02.1990 and 25.10.2000, the writ petitioner has filed the present writ petition.
7. While entertaining the writ petition, this Court on 11.07.2023 proceeded to pass the following orders.-
"Heard Sri R.K. Ojha, learned Senior Counsel assisted by Sri Shivendu Ojha, learned counsel for the petitioner, Sri Santosh Kumar learned Standing Counsel who appears for the respondent nos. 1 and 2 and Sri Anil Bhushan, learned Senior Counsel assisted by Sri Pradeep Srivastava, who appears for the fourth respondent.
Sri Ojha has sought to argue that the order dated 14.5.2023 passed by the second respondent, District Inspector of Schools, Prayagraj proceeds on misconception of facts and law particularly in view of the fact that admittedly in the order in question there is a recital to the effect that earlier the claim of the fourth respondent was turned down by the District Inspector of Schools, Prayagraj on 26.11.2018 according to which it was held that the fourth respondent is not entitled to be conferred with the benefit of Lecturer Pay/Lecturer Post since 5.10.2016 however without there being any power of review the order has been sought to be reviewed that too on the behest of SC/ST Commission in this regard. He further submits that as per the recital contained in the order in question the fourth respondent was appointed as Assistant Teacher (Physical Education) in Zila Panchayat Inter College Haivara, Etawah on 5.10.2006 and he on 7.1.2016 was posted in the third respondent institution and he was accorded joining on 1.2.2016 as Assistant Teacher (Physical Education). Hence in the wake of the Government Order dated 25th October, 2000 which even in fact takes note of the earlier Government Order dated 20th February, 1990 the twin conditions stands applicable with regard to the fact that a teacher is to impart education to the students of Class-11 and 12 for a period more than 10 years and also getting the pay scale of Lecturer is only eligible to be conferred with the said benefit.
It is further submission of the learned counsel for the petitioner that the entire exercise has been tailored in order to give benefit to the fourth respondent on the dictates and the directions of the SC/ST Commission itself.
Sri Bhushan on the other hand submits that, firstly, the writ petitioner has no locus to maintain the present petition as by virtue of grant of the said benefits only re-designation /up-gradation has been done with even in fact would not at this present moment given any legal injury to cloth the writ petitioner to put legal action into motion. He has further referred to the order impugned while inviting attention towards the second last paragraph so as to contend that might be the order do not happily worded and the benefit has been given to the fourth respondent on the basis of the benefits accorded to Bacchu Lal and even in fact the said benefits have been accorded to number of incumbents and no illegality whatsoever can be pointed out.
Sri Ojha on the other hand submits that the question of legal injury so sought to be propounded by the fourth respondent is of no benefit to him as once a benefit is not to be accorded as per the Act and the Rules framed therein under and the Government Order in question then the said benefits become void ab initio from the very inception as tomorrow on the strength of the said order now the fourth respondent shall stay his claim to become Principal and get benefits in that regard.
Matter requires consideration.
Since the third respondent Committee of Management is not before this court the learned counsel for the petitioner shall serve the third respondent by both ways within a period of three day.
Affidavit of compliance be filed before the next date.
Learned Standing Counsel as well as counsel appearing for the respondents shall file their respective responses within 10 days. Three days time is allowed to the petitioner for filing rejoinder affidavit.
Put up this case as a fresh case on 21.7.2023.
Since the matter pertains to Prayagraj itself and legal question is also involved so it is expected that the learned Standing counsel and the respondents shall file their response before the next date.
Government Order dated 22nd February, 1990 and set of documents submitted by learned counsels is retained on record as Appendix-1 and 2."
8. Pursuant to the order dated 11.07.2023, the order sheet depicts that the notices were issued to the third respondent since the first and second respondents were represented by the learned Standing Counsel and the fourth respondent by its counsel. A counter affidavit has been filed by the learned Standing Counsel who appears for the second respondent, District Inspector of Schools, Prayagraj sworn by him on 20.07.2023. A counter affidavit has been filed by the third respondent, Committee of Management, Sarswati Shiksha Sadan Intermediate College Marrron, Handia, District Prayagraj to which a rejoinder affidavit is available on record. A short counter affidavit has been filed by the fourth respondent and in reply thereto a short rejoinder affidavit has been filed by the petitioner.
9. As noticed above, the learned counsel for the rival parties do not propose to file any further affidavit, thus, the matter has been taken up for final disposal.
10. Sri R.K. Ojha, learned Senior Counsel assisted by Sri Shivendu Ojha, learned counsel for the writ petitioner while assailing the order dated 14.05.2023 has submitted that the order of the District Inspector of Schools, Prayagraj, second respondent cannot be sustained even for a moment on various counts, firstly, the Government Orders dated 28.02.1990 and 25.10.2000 is not applicable in the case of the fourth respondent as the fourth respondent became eligible and suitable for grant of Lecturer pay and Lecturer post the issuance of the said Government Orders and in view of the specific clause contained in the Government Order dated 25.10.2000 eligibility is to be obtained prior or on the date of issuance of the Government Order dated 25.10.2000 and since the fourth respondent attained eligibility post issuance of the Government Order dated 25.10.2000, thus, the fourth respondent is not entitled to the benefits. Secondly, earlier also by virtue of the order dated 26.11.2018 the second respondent, District Inspector of Schools, Prayagraj had declined to grant Lecturer pay and Lecturer post to the fourth respondent being non-eligible for the same, thus, in view of no change in the circumstances the second respondent, District Inspector of Schools, Prayagraj had no power to review its own order, thirdly, the order impugned in the writ petition passed by the second respondent, District Inspector of Schools has been passed at the behest and the dictates of the SC/ST Commission as there has been no independent application of mind, fourthly, merely because some of the Assistant Teachers have been made entitled to the Lecturer pay and Lecturer grade in pursuance of the Government Orders dated 28.02.1990 and 25.10.2000 illegally would not be a ground to accord and extend the said benefit to the fourth respondent, fifthly, the fourth respondent even otherwise is not eligible and qualified for being appointed on the post of Assistant Teacher (Physical Education) in that regard.
11. Elaborating the said submission, learned Senior Counsel for the writ petitioner has submitted that the Government Order dated 28.02.1990 granting pay scale in the case of C.T. Grade Teacher subject to suitability and eligibility as L.T. Grade and L.T. Grade Teacher to Lecturer which stood followed in the subsequent Government Order dated 25.10.2000 does not imply that the said benefit is to be granted for the time immemorial, however, the Government Order dated 25.10.2000 contained a specific stipulation that the eligibility is to be obtained by an Assistant Teacher (Physical Education) till/on the date of issuance of the Government Order dated 25.10.2000, since the fourth respondent as per his own saying was appointed as Assistant Teacher (Physical Education) on 05.10.2006 and one of the conditions was 10 years of continuous uninterrupted service coupled with the grant of the pay scale of Lecturer was a mandatory condition for grant of Lecturer post but as the fourth respondent obtained the said eligibility post issuance of the Government Order dated 25.10.2000 in the year 2016 i.e., 05.10.2016 the fourth respondent is not entitled to the said benefits.
12. Sri Ojha, learned Senior Counsel for the writ petitioner in order to buttress his submission that the said facility/benefit was available to the Assistant Teacher (Physical Education) as one time measure has sought to rely upon the judgment in Writ A No. 43794 of 2011 (Vijay Bahadur Singh Vs. State of U.P. & Others) decided on 14.12.2011 followed in Writ A No. 16881 of 2012 (Bani Singh Vs. State of U.P. & Others) decided on 07.02.2019. He also relies upon the judgment in the case of Shiv Poojan Vs. State of U.P. reported in 2019 (6) ADJ 654.
13. Additionally, it is being sought to be argued on behalf of the writ petitioner that there is no concept of negative equality as Article 14 of the Constitution of India does not permit it but to the contrary forbids it and further it has been argued that the order passed by the second respondent, District Inspector of Schools, Prayagraj is bereft of any reasons which can be said to be within the four corners of law and according to him, the order impugned in the writ petition be set aside and the matter be remitted back to the second respondent to pass a fresh order. Though an attempt has also been made by the learned Senior Counsel for the writ petitioner questioning the appointment of the writ petitioner as Assistant Teacher (Physical Education) on the ground that the fourth respondent is not eligible and qualified for the said post but pleadings to the said effect are missing in the writ petition and it sought to be developed in the rejoinder affidavit.
14. Countering the submission of the learned Senior Counsel for the writ petitioner, Sri Prabhakar Awasthi has sought to argue that the order passed by the District Inspector of Schools, Prayagraj dated 14.05.2023 is perfectly followed in accordance with law and no fault whatsoever can be attributed in this regard. He submits that the Government Order dated 28.02.1990 followed in the Government Order dated 25.10.2000 clearly applies in the case of the fourth respondent as according to him, the said Government Order cannot be interpreted in such a manner so as to exclude those Assistant Teacher (Physical Education) whose appointment was valid since inception but in view of the fact that no formal Government Order has been issued specifically extending the benefits, as from the conduct of the State Government, it is very much clear that the State Government is extending the said benefits while granting Lecturer pay and Lecturer post to the Assistant Teachers who have obtained eligibility even post issuance of the Government Order dated 25.10.2000. In a nutshell, the argument is that the fourth respondent is eligible in all respects as the conditions precedent in the Government Order dated 25.10.2000 stood fulfilled at the end of the fourth respondent. It has also been argued on behalf of the fourth respondent that, in case, the logic of the learned Senior Counsel for the writ petitioner is taken into face value then it would create havoc and undesired results particularly when the future of the Assistant Teachers (Physical Education) would be kept in dark and uncertainty. Submission is that once the fourth respondent qualifies the eligibility test as provided in the Government Orders then clause 6 of the Government Order dated 25.10.2000 is to be ignored in that regard.
15. Much emphasis has been laid down by the learned counsel for the fourth respondent that the writ petitioner has even otherwise no locus to institute and to maintain the present proceedings in view of the fact that the writ petitioner sustains no legal injury as of now as mere grant of Lecturer post and Lecturer pay scale would not cause any legal injury so as to maintain the present proceedings.
16. Contention of the learned counsel for the fourth respondent is that grant of Lecturer post and Lecturer pay scale are the individual aspects confining to the benefits being bestowed to a particular teacher and the same cannot possibly cause an injury as it is not a case wherein at the present stage any seniority is being sought to be disturbed or any issue of promotion is involved particularly at a point the writ petition is being preferred by the writ petitioner. He, thus, submits that the writ petition be dismissed with cost.
17. Sri Awasthi, learned counsel who appears for the fourth respondent has placed reliance upon the judgment in Special Appeal No. 48 of 2020 (Smt. Krishna Shri Gupta Vs. State of U.P. & Others) decided on 11.02.2020 and Writ A No. 49341 of 2008 (Sangam Lal Vs. State of U.P.) decided on 05.10.2012.
18. Sri R.C. Dwivedi, learned counsel who appears for the third respondent, Committee of Management has supported the case of the fourth respondent and he adopts the submission of the learned counsel for the fourth respondent. He, however, while drawing attention towards the counter affidavit filed by him seeks to argue that Annexure 2 at page 18 is a document which happens to be the certificate of Zila Panchayat Inter College Haivara, Etawah which shows that the fourth respondent had been teaching XI and XII class. According to Sri Dwivedi, who appears for the third respondent, the benefits which have been accorded to the fourth respondent in pursuance of the Government Orders dated 28.02.1990 and 25.10.2000 has been extended to many Assistant Teachers and he, thus, relies upon Annexure 4 at page 27 of the paper book.
19. Sri Pradeep Kumar Shahi, learned Standing Counsel who appears for the first and second respondents has argued that the order of the second respondent, District Inspector of Schools, Prayagraj cannot be faulted in any manner whatsoever as the same has been passed in furtherance to the Government Orders dated 28.02.1990 and 25.10.2000 and the fourth respondent is entitled to the benefits which has been made available to him.
20. Before embarking upon an inquiry with regard to the legality and the validity of the order passed by the second respondent, District Inspector of Schools, Prayagraj it would be apposite to notice the Government Orders governing the filed.
Government Order dated 28.02.1990 कक्षा, व्यायाम शिक्षकों का वेतन प्रेषक, श्री शरविन्दु, संयुक्त सचिव, उत्तर प्रदेश शासन।
सेवा में, शिक्षा निदेशक, उत्तर प्रदेश, लखनऊ/इलाहाबाद शिक्षा [8] अनुभाग लखनऊः दिनांक फरवरी 28, 1990
विषय- वेतन पुनरीक्षण समिति, उत्तर प्रदेश, 1989 की संस्तुतियों पर लिये गये निर्णयानुसार अशासकीय सहायता प्राप्त उच्चतर माध्यमिक विद्यालयों/इण्टर कालेजों में शैक्षिक पदों पर पुनरीक्षित वेतनमानो की स्वीकृति।
महोदय, उपर्युक्त विषयक शासनादेश संख्या 4749/15-8-89/3087/89 दिनांक 4-अक्टूबर 1989 के पैरा-3 के अनुक्रम में मुझे यह कहने का निर्देश हुआ है कि कला, व्यायाम, भाषा, गृह विज्ञान, शिल्प, संगीत, विभाषा, पेंटिंग टंकण, आशुलिपि तथा क्राफ्ट विषयों को कक्षा 9-10 में पढ़ाने वाले सी०टी० ग्रेड में निर्धारित अर्हता के अधीन नियुक्त अध्यापकों को जब कक्षा 9-10 में पढ़ाते हुए 10 वर्ष पूरे हो जायें तो उन्हें एल०टी० ग्रेड के साधारण वेतनमान सं० 1400-40-1800-द० रो०-50-2300 दिया जाय।
2- उक्त विषयों को कक्षा 11-12 में पढ़ाने वाले एल०टी० ग्रेड के ऐसे अध्यापकों को जिनकी नियुक्ति निर्धारित अर्हता के अधीन हुई है- जब कक्षा 11-12 में पढ़ाते हुए 10 वर्ष पूरे हो जायें तो उन्हें प्रवक्ता वेतनमान रू० 1600-50-2300-द० रो०-60-2600 दिया जाय।
3- भविष्य में उपर्युक्त विषयों को पढ़ाने वाले अध्यापकों की एल०टी० एवं प्रवक्ता वेतनमान में नियुक्ति के लिए सम्बन्धित व्यवसाय की अर्हता के साथ क्रमशः स्नातक/स्नातकोत्तर अर्हता निर्धारित की जाती है।
4- ये आदेश वित्त (वेतन आयोग) अनुभाग-2 के अशासकीय संख्या-वे०आ०(2) 55/10-90 दिनांक 28 फरवरी,1990 में प्राप्त उनकी सहमति से जारी किये जा रहे हैं।
भवदीय (शरविन्दु) संयुक्त सचिव संलग्न प्राइमरी शिक्षकों का वेतन संख्याः 1120/15-8-90/3087/89 प्रषेक, श्री शरविन्दु, संयुक्त सचिव, उत्तर प्रदेश शासन।
Government Order dated 25.10.2000 कला, व्यायाम, भाषा, शिल्प आदि अध्यापकों को प्रवक्ता पदनाम दिया जाना संख्या-3203/15-8-2000,3287/90 प्रेषक, सेवा में, पी०के० झा, शिक्षा निदेशक (माध्यमिक) सचिव, उत्तर प्रदेश,लखनऊ/इलाहाबाद। उत्तर प्रदेश शासन। शिक्षा (8) अनुभाग। लखनऊ दिनांकः 25 अक्टूबर, 2000
विषयः- अशासकीय सहायता प्राप्त माध्यमिक विद्यालयों के कला, व्यायाम,भाषा शिल्प आदि विषयों के अध्यापकों को प्रवक्ता पद की निर्धारित अर्हता रहने पर प्रवक्ता पद नाम दिये जाने के सम्बन्ध में।
महोदय, उपर्युक्त विषयक निदेशालय के पत्रांकःसंख्या-(1)शि०/8744/2000-2001, दिनांक 4 सितम्बर,2000 के सन्दर्भ में मुझे यह कहने का निदेश हुआ है कि अशासकीय सहायता प्राप्त ऐसे माध्यमिक विद्यालयों (इण्टर कालेजों), जो कला, व्यायाम, भाषा, शिल्प आदि विषयों से इण्टर स्तर तक मान्यता प्राप्त है, में कार्यरत उक्त विषयों के ऐसे अध्यापकों जो निरन्तर 10 वर्ष से इण्टर में पढ़ा रहे हैं तथा प्रवक्ता वेतनमान प्राप्त कर रहे हैं, को निम्न शर्तो एवं प्रतिबन्धों के अधीन "प्रवक्ता" पद नाम दिये जाने की श्री राज्यपाल सहर्ष स्वीकृति प्रदान करते हैं।
(1) जिन अशासकीय सहायता प्राप्त माध्यमिक विद्यालयों (इण्टर कालेजों) में कला, व्यायाम, भाषा, शिल्प, संगीत आदि विषयों में प्रवक्ता के पद सृजित नही है, उनमें प्रवक्ता वेतनमान में कार्य करने वाले अध्यापकों को स्नातक श्रेणी के मूल पद को समाप्त करते हुए प्रवक्ता पद में उच्चीकृत किया जायेगा तथा प्रवक्ता वेतनमान प्राप्त अध्यापकों को यदि वे प्रवक्ता पद हेतु निर्धारित अर्हता रखते हो, उपर्युक्तानुसार उच्चीकृत पदों के सापेक्ष नियुक्त कर दिया जायेगा।
(2) प्रवक्ता वेतनमान प्राप्त ऐसे अध्यापक जो प्रवक्ता पद हेतु निर्धारित अर्हता नही रखते हैं, वे पूर्ववत् स्नातक वेतन क्रम की भांति शिक्षा प्रदान करते रहेंगे तथा उनकी सेवानिवृत्ति के उपरान्त स्नातक श्रेणी का पद उसी तिथि से समाप्त होकर प्रवक्ता पद में परिवर्तित हो जायेगा।
(3) उपर्युक्त प्रस्तर-1 एवं 2 में वर्णित सुविधा केवल उन्हीं अशासकीय सहायता प्राप्त माध्यमिक विद्यालयों के अध्यापकों को प्राप्त होगी, जिन्हें सम्बन्धित विषय में इण्टर स्तर की मान्यता प्राप्त हो।
(4) सम्बन्धित अध्यापक को शासनादेश संख्याः 1121/15-8-90/3087/89, दिनांकः28 फरवरी, 1990 के प्रस्तर-3 के अधीन सम्बन्धित व्यवसाय की अर्हता के साथ स्नाताकोत्तर उपाधि की अर्हता रखना आवश्यक है।
(5) यह सुविधा केवल उन्हीं अध्यापकों को अनुमन्य होगी, जो सम्बन्धित विषयों में कक्षा-11 एवं कक्षा 12 को पढ़ाते हुये 10 वर्ष की निरन्तर संतोषजनक सेवा पूरी करते हुए प्रवक्ता का वेतनमान 1600-2660 (पुराना) वैयक्तिक रूप से प्राप्त कर चुके हो।
(6) उक्त विषयों के केवल उन्हीं अध्यापकों को प्रवक्ता पद नाम अनुमन्य होगा, जो इस आदेश के जारी होने की तिथि तक निर्धारित अर्हता पूरी कर चुके हों।
(7) प्रवक्ता पद पर कार्यभार ग्रहण करने वाले अध्यापकों की ज्येष्ठता उक्त पद पर कार्यभार ग्रहण करने की तिथि से ही निर्धारित की जायेगी। उनकी पूर्व सेवाए स्नातक श्रेणी के अध्यापक के रूप में मानी जायेगी तथा प्रवक्ता पद का कार्यभार ग्रहण करने के बाद स्नातक श्रेणी की सेवाओं का कोई लाभ प्रवक्ता पद के चयन/प्रोन्नति वेतनमान दिये जाने हेतु अनुमन्य न होगा।
(8) पद नाम परिवर्तित होने के फलस्वरूप यदि किसी भी प्रकार का वित्तीय भार उत्पन्न होगा, तो उसका वहन राज्य सरकार अथवा शिक्षा विभाग के मुख्यालय द्वारा नही किया जायेगा और न ही इस विषय में किसी भी प्रकार का अनुदान किसी भी श्रोत से उपलब्ध कराया जायेगा।
(9) उपर्युक्तानुसार प्रवक्ता पद की अर्हता रखने वाले अध्यापकों को पद नाम दिये जाने से पूर्व उनके लिखित अण्डर टेकिंग ले ली जायेगी, ताकि ज्येष्ठता निर्धारण आदि के सम्बन्ध में बाद में कोई विवाद उत्पन्न न हो।
2- यह आदेश (वित्त आयोग) अनुभाग-2 के अशासकीय संख्याः वे०आ०(2)/507/दस/2000, दिनांक 25 अक्टूबर, 2000 में प्राप्त उनकी सहमति से निर्गत किये जा रहे हैं।
भवदीय, पी०के० झा, सचिव।
21. I have heard the learned counsel for the parties and perused the record carefully.
22. Undisputedly, the third respondent institution, Sarswati Shiksha Sadan Intermediate College Marrron, Handia, District Prayagraj is an Inter College governed under the provisions of U.P. Intermediate Education Act, 1921, U.P. Act No. 5 of 1982 and the U.P. Act No. 24 of 1971 stand applicable. It is also not in dispute that the writ petitioner has been appointed as Lecturer (Sanskrit) in Maharana Pratap Inter College Ram Dayalganj, District Jaunpur on 04.01.2011 and he was transferred to the third respondent institution as Lecturer (Sanskrit) and he joined on 04.07.2019. Likewise, the fourth respondent was appointed as Assistant Teacher (Physical Education) in Zila Panchayat Inter College Haivara, District Etawah on 05.10.2006 and he was transferred on 07.01.2016 and he joined on 01.02.2016 as Assistant Teacher (Physical Education) in the third respondent institution. The bone of contention between the rival parties is whether the fourth respondent is entitled to be conferred with the benefit of Lecturer pay scale and Lecturer post completion of 10 years of service in the light of Government Orders dated 28.02.1990 and 25.10.2000. Though Sri Prabhakar Awasthi, learned counsel who appears for the fourth respondent has vehemently argued that the writ petitioner has no locus standi to institute and maintain the present petition as he is not a person aggrieved in view of the fact that the fourth respondent has only been conferred that the benefit of Lecturer pay scale and Lecturer post. The question of locus standi is to be decided at the first instance, however, in order to arrive at the conclusion as to whether the writ petitioner has any locus to maintain the present proceedings this Court in the present case is to bestow its consideration upon the backgrounds and the sequence of the facts then only a conclusion can be arrived at.
23. Basically, there are two Government Orders first, 28.02.1990 and second, 25.10.2000. So far as the Government Order dated 28.02.1990 is concerned it spelt out in the subject column that an approval has been granted pursuant to the recommendations and the acceptance of the Pay Commission by the State of Uttar Pradesh of the year 1989 with regard to Non-Governmental Aided Higher Secondary Schools/Inter Colleges with regard to the teaching post, with respect to revision of the pay scales. Thus, the said Government Order talks about revision of the pay scale. According to the said Government Order in terms of para 3 of the Government Order dated 04.10.1989 the C.T. Grade Teachers who had been teaching Arts, Physical Training, Language, Home Science, Craft, Music, Tankan, Stenography and Craft in IX-X Classes and were having required qualifications after completion of 10 years of services were made entitled to the pay scale of L.T. Grade, Rs. 1400-40-1800-DA-50-2300, the second clause of the Government Order dated 28.02.1990 further provided that those L.T. Grade Teachers who had eligibility and who have been teaching XI-XII Classes for the period of 10 years they were to be accorded Lecturer pay scale of Rs. 1600-50-2300-EB-60-2600. Clause (3) of the said Government Order further provided that in future the qualifications with respect to the L.T. Grade and Lecturers would be graduate/post graduate. Primarily, the Government Order dated 28.02.1990 provided for pay scale, however, subsequently another Government Order was issued on 25.10.2000 providing for the grant of designation as "Lecturer" to the teachers who were teaching Arts, Physical Training, Literature, Crafts etc. in Non-Governmental Aided inter Colleges. The said Government Order was issued in context of the letter No. (1)/Shi./8744/2000-2001 dated 4th September, 2000 whereby His Excellency, The Governor was pleased to accord the designation of Lecturer subject to various terms and conditions to the teachers who have consistently been teaching Arts, Physical Training, Language, Crafts etc. in Inter College for 10 years in Non-Governmental Aided Secondary Schools (Inter Colleges) recognized upto intermediate level with the subjects and are drawing pay scale of lecturers as such. Besides the other clauses of the Government Order dated 25.10.2000, clause (6) further stipulated that the benefits with regard to the above noted subjects was confined to those teachers who were fulfilling the eligibility on the date of issuance of the Government Order dated 25.10.2000.
24. Now the principal question which falls for consideration before this Court is whether the fourth respondent was entitled to be conferred the benefit of the designation "Lecturer" or not. It is not in dispute that the fourth respondent was appointed as Assistant Teacher (Physical Education) on 05.10.2006, thus, in order to attain eligibility for being conferred the benefits of Lecturer pay scale/Lecturer post one of the necessary eligibility was that a teacher is to consistently teach Arts, Physical Training, Language, Craft etc. in intermediate classes for 10 years in Non-Governmental and Aided Secondary School (Inter Colleges) upto the Intermediate level subjects and is drawing pay scale of Lecturers as such.
25. A conjoint reading of various provisions contained under the Government Orders dated 28.02.1990 and 25.10.2000 would clearly show that the teacher in the said subjects is to teach in the institution which is recognized at the Intermediate Level and imparting education continuously for the period of 10 years in the Intermediate Classes that too on the date of issuance of the Government Order dated 25.10.2000. In order to analyze the fact as to whether the fourth respondent satisfied the conditions or not, this Court is to remind itself to the chronology and the dates and events of the working (teaching) of the fourth respondent. Undisputed facts reveal that the fourth respondent was appointed on 05.10.2006 as Assistant Teacher (Physical Education) in Zila Panchayat Inter College Haivara, Etawah he was accorded joining in the third respondent institution on 01.02.2016 pursuant to the transfer order dated 07.01.2016 as Assistant Teacher (Physical Education). By the order impugned in the writ petition, the writ petitioner has been accorded pay scale of Lecturer and designation/post of Lecturer with effect from 05.10.2016. Apparently the 10 years of continuous services while teaching in an intermediate class as well as designation as a Lecturer is to be seen in the light of clause (6) of the Government Order dated 25.10.2000. The net logical conclusion which stands arrived is that the writ petitioner as per the impugned order attains eligibility on 05.10.2016 which is post issuance of the Government Order dated 25.10.2000, thus, clause (6) of the Government Order dated 25.10.2000 would come in the way of the fourth respondent making him ineligible for according of the said benefits.
26. Nonetheless, the law in the background of the Government Orders dated 28.02.1990 and 25.10.2000 has been subject matter of scrutiny and interpretation by this Court in the case of Vijay Bahadur Singh (supra) wherein the following was observed:-
"16. Government Order dated 25.10.2000 states that in all those non Government aided colleges where Lecturers posts in the subject of Arts, Physical Training, Language, Music etc. has not been created(LT Grade) post shall be upgraded as Lecturer's post and those Teachers who possess requisite qualification for the post of Lecturer shall be appointed on such upgraded post. However, this benefit would be available only to such Teachers who have been imparting education in Class XI and XII for the last ten years, had completed satisfactory services and, have also been granted Lecturer's pay scale personally. Further the aforesaid benefit has been confined to only those Teachers who have completed requisite eligibility on the date of issuance of Government Order dated 25.10.2000. It also provides that seniority of such Teachers would count only from the date on which person so promoted as Lecturer joins a promoted post. His previous service shall be treated to be a service rendered as LT Grade Teacher and no benefit shall be accorded for the purpose of selection and promotional pay scale on Lecturer's post.
17. Even if what is said by respondent no.5 is treated to be correct, it is evident that on the date of issuance of Government Order dated 25.10.2000 he had not completed ten years of service even as Assistant Teacher(LT Grade) (P.T.I.) and, therefore, para 6 of Government Order dated 25.10.2000 makes him ineligible for claiming any benefit under the said Government Order . Para 6 reads as under :
^^6- mDr fo"k;ksa ds dsoy mUgha v/;kidksa dks izoDrk in uke vuqeU; gksxk] tks bl vkns'k ds tkjh gksus dh frfFk rd fu/kkZfjr vgZrk iwjh dj pqds gksaA** " The designation of Lecturer shall be admissible only to those Teachers of the said subjects who have acquired the prescribed eligibility/qualification by the date of issuance of this Order." (English Translation by Court)
18. Para 6 refers to the subjects mentioned in Government Order , namely Arts, Physical Training, Language, Craft etc. Respondent no.5 having been appointed on 29.1.1991, even in LT Grade had not completed ten years of service, hence question of imparting education for ten years to Class XI and XII on 25.10.2000 does not arise at all. This aspect, it appears, has not at all been considered by respondents No. 3 and 4 while extending giving benefit of the said Government Order to respondent no.5. Moreover respondent no.5 was Assistant Teacher (LT Grade) and, therefore, could not have imparted education to the students of Class XI and XII. The very first paragraph of Government Order dated 25.10.2000 shows that it is applicable to those teachers who are imparting education to Intermediate students for the last ten years and are already in Lecturer's pay scale only. They have been given the benefit of designation of Lecturer with certain conditions and restrictions mentioned therein. On the date of issuance of Government Order dated 25.10.2000 neither respondent no.5 was discharging duties as Teacher imparting education to Intermediate class students for ten years nor was working in Lecturer's pay scale. The very opening paragraph of Government Order dated 25.8.2000 reads as under :
"उपर्युक्त विषयक निदेशालय पत्रांक संख्या - (1) / शि0 /8744 / 2000-2001, दिनांक 4 सितम्बर, 2000 के सन्दर्भ में मुझे यह कहने का निर्देश हुआ है कि अशासकीय सहायता प्राप्त ऐसे माध्यमिक विद्यालयों (इण्टर कालेजों), जो कला, व्यायाम, भाषा, शिल्प आदि विषयों से इण्टर स्तर तक मान्यता प्राप्त हैं में कार्यरत उक्त विषयों के ऐसे अध्यापकों, जो निरन्तर 10 वर्ष से इण्टर में पढ़ा रहे हैं तथा प्रवक्ता वेतनमान प्राप्त कर रहे हैं, को निम्न शर्तो एवं प्रतिबन्धों के अधीन "प्रवक्ता" पद नाम दिये जाने की श्री राज्यपाल सहर्ष स्वीकृति प्रदान करते हैं ।" (emphasis added) "In context of letter No. (1)/Shi./8744/2000-2001, dated 4th September 2000, I am directed to say that His Excellency the Governor is pleased to accord the designation of 'Lecturer', subject to the following terms and restrictions, to those Teachers who have constantly been teaching Arts, Physical Training, Language, Craft etc. in Intermediate Classes for ten years in Non-Governmental aided Secondary Schools (Inter Colleges) recognized upto Intermediate level with such subjects and are drawing pay scale of Lecturer as such." (emphasis added) (English Translation by Court)
19. Respondent no.5 in para 10 of counter affidavit has admitted that he was appointed as LT Grade Teacher on 29.01.1991. On 25.10.2000 he was not getting Lecturer's grade at all. This Government Order thus did not and could not have been resorted to confer any benefit on respondent no.5 i.e. to grant Lecturer's Grade at all. Hence, the entire exercise on the part of respondent authorities in granting Lecturer's scale to respondent no.5 with reference to Government Order dated 25.10.2000 vide order dated 8.7.2006 was beyond the aforesaid Government Order. Even assuming that after order dated 08.07.2006 passed by D.I.O.S. Saharanpur permitting petitioner to work in Lecturer's pay scale prospectively with effect from 29.01.2001, but for the purpose of Appendix-A Chapter II of the Regulations, the actual functioning of respondent no.5 to impart education to Intermediate Classes while getting Lecturer's pay scale would commence from the date of the said order, namely, 08.07.2006, even then he did not and could not possess experience of ten years as provided in the aforesaid Regulation so as to become eligible for officiating Principal.
20. Evidently respondents No. 3 and 4 in the present case have acted wholly illegally. It appears that they have grossly misconstrued and misapplied Government Orders aforesaid, in order to confer certain benefit on respondent no.5 which in law were not applicable to him. The action of respondents No.3 and 4, therefore, is wholly unjust, illegal and travelled in the realm of malice in law, i.e., for collateral purpose, to grant undue and illegal advantage to respondent no.5. While passing the impugned order respondent no.3 ought to have considered and looked into all these aspects of the matter. Unfortunately it has committed a patent error in simply approving officiating promotion of respondent no.5 on the post of officiating Principal without looking into these aspects of the of the matter relating to eligibility, etc. of the incumbents concerned."
27. The judgment in the case of Vijay Bahadur Singh (supra) was also followed in the case of Bani Singh (supra).
28. The case of Shiv Poojan (supra) further throws light upon the Government Orders dated 28.02.1990 and 25.10.2000 wherein this Court in paras 5, 6, 15, 16, 17, 18, 19, 20, 22, 23 and 24 observed as under:-
5. Learned counsel for the petitioner submits that the aforesaid two Government Orders merely grants benefit of Lecturer's pay scale and designation to the teacher concerned, which is personal to him, he does not occupy the post of Lecturer substantively nor would he be entitled to seniority on the post of Lecturer. It is also submitted that promotion in an Intermediate institution has to be necessarily granted in accordance with the provisions of the U.P. Secondary Education Services Selection Board Act, 1982 as well as the U.P. Secondary Education Service Selection Board Rules, 1998, and that any other manner of conferring appointment or promotion to the post of Lecturer in the grade would be be viod by virtue of Section 16(2) of the Act of 1982. It is submitted that since procedure contemplated under Section 12 of the Act of 1982 read with Rule 14 of the Rules 1998 have not been followed as such grant of seniority to the post of Lecturer would be hit by Section 16(2) of the Act of 1982, but this aspect of the matter has not been taken note of.
6. Learned counsel for the respondents, on the other hand, submits that the post of Lecturer in physical education was not sanctioned in the institution concerned and that it was pursuant to the Government Order dated 25th October, 2000 that the post of L.T. Grade teacher was upgraded to the post of Lecturer upon completion of 10 years working as L.T. Grade teacher. It is contended that upgradation of post was automatic and conferment of benefit thereunder is a natural consequence, once the condition enumerated therein are met. Contention is that merely for the reason that proceedings under Section 12 read with Rule 14 have not been undertaken the benefit of Lecturer's post and pay scale granted in terms of the Government Order dated 15th October, 2000 would not be denied to the respondent no. 4. Learned counsel further submits that while determining the issue of seniority, the legality of initial appointment or promotion cannot be questioned when there is no specific plea taken in that regard. In the alternative, learned counsel submits that respondent no. 4 was the only teacher of physical education in the institution who was eligible for promotion in terms of the Government Order and that the procedure contemplated under the Rules of 1998 can still be resorted to and the benefit of promotion ought to be granted from the date of entitlement as per the Government Order dated 25th October, 2000.
15. The Government Order dated 28.2.1990 provides that teachers appointed in the specified subjects including physical education, who have been teaching for the last 10 years in Classes 9th and 10th and were appointed in C.T. Grade would be given the pay scale of L.T. Grade, if they possess such qualification. Similarly, teachers appointed on the post of L.T. Grade have been granted Lecturer's grade upon completion of 10 years teaching in the subject concerned provided the teacher possesses requisite qualification. This Government Order only grants benefit of higher pay scale to the teacher concerned without grant of any substantive right to the higher post itself. The subsequent Government Order of 25th October, 2000, however, grants the designation and benefit on the post of Lecturer to those teachers who have been teaching Intermediate classes for the last 10 years. Clause (1) of this Government Order provides that the post of L.T. Grade teacher, substantively held, would be upgraded to the Lecturer's post and the substantive post of L.T. Grade teacher would stand abolished. Clause (7) of the Government Order provides that benefit of seniority on the post of Lecturer would be granted only from the date such teacher joins on the upgraded post and no benefit would be granted for any period prior to it. Respondent no.4 with reference to this Government Order states that since he had been teaching students of Classes 11th and 12th for the last 10 years in the subject of physical education, as such he was entitled to benefit of seniority on Lecturer's post from 25th October, 2000 and such claim has also been accepted by the Joint Director of Education.
16. The post of Lecturer in an institution recognized under the Act of 1921 can be filled either by direct appointment through the U.P. Secondary Education Service Selection Board or by promotion in accordance with Section 12 of the Act of 1982 read with Rule 14 of the Rules of 1998. There is no other way in which a substantive appointment on the post of Lecturer could be offered in the institution concerned. There is no provision in the Act of 1982 which contemplates appointment on the post of Lecturer by way of upgradation of post held in lower grade by the teacher concerned. The Act of 1982 also does not empower the State Government to issue any Government Order, whereby appointment on the post of Lecturer could be granted by upgrading the post held substantively in L.T. Grade.
17. The only power whereunder such a Government Order could be issued is Section 9(4) of the Act of 1921. The State Government in exercise of its power thereunder could modify, rescind or make any regulation in respect of any matter covered under the Act of 1921. The Government Order, therefore, can at best modify or rescind a regulation framed under the Act of 1921 or to frame a regulation.
18. The Government Order dated 25.10.2000 if is treated as an enabling provision for appointment on the post of Lecturer in an institution recognized under the Act of 1921 then the Government Order would introduce a new avenue of appointment which is not contemplated in the Act of 1982 and would incur wrath of Section 32 of the Act of 1982.
19. Admittedly respondent no.4 has been substantively appointed as teacher in L.T. Grade on 7.8.1993. The only way in which he can occupy the post of Lecturer would be by way of promotion by following the procedure prescribed under Section 12 read with Rule 14 of the Act of 1982 read with Rules of 1998. Respondent no.4 has not been granted promotion to the post of Lecturer in the manner so contemplated. Any other manner in which seniority in Lecturer's grade and post is offered would necessarily become void by virtue of Section 16(2) of the Act of 1982.
20. The Government Order of 25th October, 2000 upgrades the post of L.T. Grade teacher in specified circumstances and also grants benefit of designation on the post of Lecturer as also seniority from the date a person joins on the post of Lecturer. The benefit in that regard is personal to the teacher concerned inasmuch as the post of L.T. Grade teacher would be treated to have been abolished. Such promotion cannot be treated to be a substantive promotion in the grade and cadre of Lecturer since the procedure for appointment to the post of Lecturer as per the Act of 1982 is not followed. Such promotion at best can be treated personal in nature to the teacher concerned against an ex-cadre post or else the Government Order itself would become inconsistent with the Act of 1982. The seniority of teacher who is granted the benefit of personal promotion under the Government Order dated 25th October, 2000 therefore would have to be separately maintained. The benefit of seniority in the cadre of Lecturer therefore cannot be granted under Regulation 3 framed under Chapter-II to the Act of 1921.
22. This Court in Bharti Roy Vs. Deputy Director of Education-II, Kanpur and others, 2008 (2) ADJ 134, has also taken the view that benefit of seniority cannot be granted unless the appointment or promotion is in accordance with the Regulations and the Act of 1982. After referring to Division Bench judgment of this Court in Madan Gopal Agrawal and others Vs. The District Inspector of Schools, Bijnor and others, 1996 (3) ESC 202, this Court observed as under in paras 26 to 29:-
"26. Same view was taken by another Hon'ble Single Judge (Dr. B.S. Chauhan, J.) in Madan Gopal Agrawal and Ors. v. The District Inspector of Schools, Bijnor and Ors. 1996 (3) ESC 202 (All). However, this Court also held that grant of LT grade under the aforesaid Government Orders is personal and it does not mean posting in LT grade, inasmuch as, when such a person would retire, it would result in a vacancy in CT grade and not in LT grade since the incumbent cannot be said to hold the post of Assistant Teacher in LT grade. The observations of this Court are as under:
"7. ... under the different Government Orders issued from time to time the teachers working in C.T. Grade become eligible to be considered for L.T. Grade as a personal pay scale. This does not mean the posting in L.T. Grade and the post which becomes vacant after the retirement of such a teacher would not be deemed to be a vacant post in L.T. Cadre nor such a person can take benefit on the post of the L.T. Grade for promotion and seniority as he is not holding the post in Grade in L.T. Grade vide Rashmi Srivastava v. University , Virendra Pandey v. State of U.P. 1994 (24) ALR (H) 19, Writ Petition No. 30754 of 1991 Madljuri Devi v. Regional Inspectress of Girls Schools, decided on 20.3.1995 and Vipin Kumar v. District Inspectress of Schools 1993(2) Educational and Service Cases 456.
8. It is not to be treated as their promotion in L. T. Grade till they are promoted to the post in L.T. Grade strictly in accordance with law."
27. Same view has been expressed by another Hon'ble Single Judge (Hon. Ashok Bhushan, J.) in Civil Misc. Writ Petition No. 39731 of 2000, Ansan Lal Jha v. District Inspector of Schools and Ors. decided on 13.2.2006.
28. A pari material Government Order was issued on 28.2.1990 for grant of Lecturer Grade to those teachers who were working in L.T. Grade and had completed ten years of service and were imparting education to the students of XI and XII class continuously for ten years. The incumbent was granted Lecturer's Grade pursuant to the Government Order dated 28.2.1990 and he raised a similar contention which came up for adjudication before a Division Bench of this Court in Vipin Kumar v. District Inspector of Schools (1993) 3 UPLBEC 1900 and in paragraphs No. 6, 9 and 13 the Court held:
"6. ...A teacher may be given lecturer's pay scale even though there is no vacancy to the post of lecturer. The grant of lecturer's pay scale is not correlated with the filling of vacancy in a particular post. In a college where teachers are appointed in L. T. grade and they are given lecturer's pay scale, then in that situation there would not occur any vacancy to the post of lecturer and on the other hand the post may not exist but the teachers are given lecturer's pay scale. The word "grade" has different connotations in the context of a particular statute."
"9. The word "grade" used in Para 4(2) of the Removal of Difficulties Order, 1981, Rule 9 of U.P. Secondary Education Service Commission Rules, 1983 and Regulation 6 of Chapter II of Intermediate Education Act, 1921 must be taken as "post" of lecturer. A teacher, who is working in L T. Grade is to be promoted to the post of lecturer's grade in the sense that he is to be promoted to the post of lecturer in an institution. A teacher may be given lecturer's pay scale but he may not be given the post. Unless he is given a post the mere fact that he has been given lecturer's pay scale will not be taken as to have given him the post of lecturer unless he is duly promoted to the said post in accordance with the provisions of a Statute."
"13. The seniority of a teacher of a lecturer's grade is also to be considered from the date of appointment to the post in lecturer's grade and not from the date of payment of lecturer's pay scale. Regulation 3 of Chapter II of Regulations of the Intermediate Education Act contemplates seniority from the date of appointment and the same principle has to be made applicable in case of persons appointed on ad hoc basis. The seniority cannot be fixed on the basis of grant of pay scale given by the Government under its own orders."
29. In view of the aforesaid authorities which are binding on this Court as well and even otherwise, I am also in respectful agreement with the law laid down therein, it is evident that the first petitioner even if treated to have been granted L.T. grade w.e.f. 1.7.1992 after completion of ten years of service in C.T. Grade, that would not entitle her to claim seniority on the post of Assistant Teacher (L.T. Grade) unless she is appointed or promoted in accordance with the Regulations and 1982 Act on the said post. Neither there is any averment in any of the petitions filed by the first petitioner nor any order is available on record to show that the first petitioner was ever promoted on the post of Assistant Teacher (L.T. Grade) in accordance with 1982 Act read with Regulations framed under 1921 Act. In these circumstances, I am clearly of the view that she could not have been granted benefit of seniority on the post of Assistant Teacher (L.T. Grade) and could not have been placed above the second petitioner who admittedly was appointed directly as Assistant Teacher (L.T. Grade) and was regularised on the said post on 27.1.1994. Thus, the entire claim and dispute raised by the first petitioner loses its ground resulting in vitiating the order dated 12.7.2006 passed by Joint Director of Education, Kanpur Region whereby she has been declared first petitioner senior to the second petitioner ignoring the exposition of law on the subject in its entirety. "
23. The respondent no.4 therefore cannot claim seniority in the grade of Lecturer nor could he be held senior to the present petitioner. The upgradation of post substantively held in L.T. Grade by respondent no.4 to the Lecturer's grade would at best be treated personal to him on an ex-cadre post. A separate seniority list would have to be drawn in respect of such teachers.
24. Even otherwise on facts it is admitted that benefit of substantive appointment on the L.T. Grade post has been granted to respondent no.4 on 7.8.1993. He could be held entitled to the benefit of the post of Lecturer only upon completion of 10 years working as such and not before that. Ten years would, therefore, be completed on 7.8.2003 and the petitioner having been appointed prior to it would have to be placed above respondent no.4 in the seniority."
29. Sri Prabhakar Awasthi, learned counsel who appears for the fourth respondent has relied upon the judgment in the case of Smt. Krishna Shri Gupta (supra) while relying upon para 31.-
"31. The facts of the present case, as reflected from the order dated 16.05.2013 passed by the DIOS, which was under challenge in the writ petition, indicate that the appellant herein possessed a second class post graduate degree (M.A. in Sanskrit), and had been granted the Lecturer's pay scale with effect from 17.02.2001. She also had a teaching experience of 10 years in intermediate classes as on the date of occurrence of vacancy against the post of Principal on 30.06.2009. In addition, the appellant also possessed the training qualifications of C.P.Ed and D.P.Ed."
30. Further reliance has been placed upon the decision in the case of Sangam Lal (supra) while relying upon paras 4 to 7 which are quoted hereunder.-
"4.The Standing Counsel in reply to the aforesaid arguments submitted that Lakhan Kumar Srivastava was not promoted on the post of Lecturer's grade. He was merely given promotional pay scale in view of Government order dated 28.02.1990. Accordingly, there was no post of Lecturer's grade, in which Lakhan Kumar Srivastava was working nor any vacancy in Lecturer's grade arose on his retirement.
5.In the counter affidavit, it is admitted that Lakhan Kumar Srivastava was granted pay scale of Lecturer's grade under the Government Order dated 28.02.1990 as he was regularly teaching Hindi in Intermediate section for more than 10 years but it has been stated that Lakhan Kumar Srivastava was given merely pay scale of Lecturer's grade and he was never promoted in Lecturer's grade. Thus no post of Lecturer (Hindi) has been created in the college. The respondents did not refer the Government Order dated 25.10.2000 which clearly provided that if a person is teaching in the Lecturer's grade continuously for 10 years and getting Lecturer's grade under Government Order dated 28.02.1990, then his original post of L.T. Grade be merged in the post of Lecturer's grade.
6.Accordingly, in view of Government Order dated 25.10.2000 the post of Lakhan Kumar Srivastava shall be treated as post of Lecturer grade and on his retirement on 30.06.2002, vacancy in the post of Lecturer (Hindi) arose in the college. The order of rejection of the resolution of the Committee of Management for promotion of the petitioner on the ground that there was no vacancy by the Regional Level Promotion Committee is illegal.
7.Accordingly, the writ petition succeed and is allowed. Order of Regional Level Promotion Committee (respondent-2) dated 28.07.2008 is set aside. The matter is remitted to Regional Level Promotion Committee (respondent-2) to grant approval of the resolution of Committee of Management (respondent-4) dated 19.04.2003, promoting the petitioner on the post of Lecturer (Hindi) in the college w.e.f. 01.07.2002 and give difference of arrears of salary and all other consequential benefits within a period of two months from the date of producing certified copy of the order before District Inspector of Schools, Allahabad."
31. The judgments in the case of Vijay Bahadur Singh (supra) followed in Bani Singh (supra) clinches the entire issue as it squarely applies in the present facts of the case particularly in view of the fact that the Government Orders in question have been not only being referred to but discussed in extenso. Insofar as the judgment relied upon Sri Awasthi, learned counsel who appears for the fourth respondent are concerned they even in fact do not touch the said issues might be in the writ petition the said issue from the said perspective was not the matter before the Court.
32. Now a question arises as to whether this Court is to adjudicate upon the validity of the order impugned passed by the second respondent, District Inspector of Schools dated 14.05.2023 or not at the behest of the writ petitioner. It is the case of the fourth respondent that the writ petitioner has no locus to maintain the writ petition. In the normal circumstances, the Courts of law are not supposed to adjudicate upon an issue at the instance of a party who does not possess any locus standi to maintain the proceedings but in order to arrive at the conclusion as to whether there is any locus standi or not, various factors are to be kept in mind. Here, according to Sri Awasthi, learned counsel who appears for the fourth respondent submitted that only Lecturer pay scale and Lecturer designation (post) has been accorded to the fourth respondent which even in fact is a personal benefit to the fourth respondent causing no legal injury to the writ petitioner, thus, this Court should not exercise its extraordinary jurisdiction under Article 226. Assuming for a moment that as per the fourth respondent, the benefits are personal to the fourth respondent then to this Court has to bear in mind the fact as to how the State Authorities and its functionaries are performing their duties and function. Notably, there is a specific provision, clause (6) of the Government Order dated 25.10.2000, putting an embargo that an Assistant Teacher seeking entitlement for Lecturer grade in the concerned subject has to attain eligibility before or on the date of issuance of the Government Order dated 25.10.2000, however, instead of the existence of the said embargo now the State and its instrumentalities are extending the said benefit, however, to those Assistant Teachers who have attained eligibility post issuance of the Government Order. The Courts of law cannot be a mute spectator while allowing the said illegality to be continued in perpetuity as the same would result to a situation whereby the Assistant Teachers who are non-deserving without there being any statutory backing would be entitled to the benefits which even otherwise they are not entitled to. Additionally, also there happens to be two judgments on the said aspects interpreting clause (6) of the Government Order dated 25.10.2000 holding that the eligibility is to be seen on the date of issuance of the Government Order dated 25.10.2000. Thus, in the opinion of the Court, the entire exercise undertaken by the respondents which is in the shape of the Order dated 14.05.2023 of the District Inspector of Schools, Prayagraj, second respondent was totally uncalled for and the order impugned cannot be sustained in the eyes of law. Sri Prabhakar Awasthi has candidly argued that at present stage of the filing of the writ petition, no legal injury whatsoever has been sustained, however, Sri Awasthi is conscious about the fact that might be according to him, injury may be sustained subsequently. Moreover, once the very basis of according designation of Lecturer itself is without any base then the very foundation gets eroded hence, any benefit which would be available to a non-deserving Assistant Teacher would be detrimental to the interest of the deserving Teacher with regard to their future prospects. The Courts of law have a solemn duty to correct the errors, if any, occurred at the time when it comes to its notice i.e., by way of the writ petition.
33 Accordingly, this Court is of the firm opinion that the objection of Sri Awasthi that the writ petition is not maintainable at the behest of the writ petitioner is liable to be rejected.
34. This Court even otherwise on 16.08.2023 proceeded to pass the following order.-
"Today, when the matter was heard, then a question arose, as to whether the Government Order dated 25.10.2000 is still in existence in view of a specific provisions contained in Clause VI of the same. Further, the learned counsel for the parties shall also apprise the Court regarding the fact as to whether any intra-court appeal has been preferred against the judgment in the case of Shiv Poojan Vs. State of U.P. and Others, reported in 2019 (6) ADJ 654.
Put up this case day after tomorrow i.e. 18.08.2023, as fresh at 02:00 p.m."
35. The basic reason to pass the said order was to give an opportunity to the learned Additional Chief Standing Counsel to place the stand of the State Government as to whether the Government Order dated 25.10.2000 has been further explained or referred and is in existence. Sri Pradeep Kumar Shahi, learned Additional Chief Standing Counsel has made a statement at bar that 25.10.2000 is the last Government Order and after that there is no other Government Order granting benefit of designation of Lecturer/Pay Scale.
36. Coming to the order impugned in the writ petition of the District Inspector of Schools, Prayagraj, second respondent this Court finds that the said order proceeds on various shortcomings particularly in view of the fact that there has been no independent application of mind by the author of the said order. Though the order notices that the fourth respondent was held to be not fulfilling the conditions for grant of Lecturer pay/Lecturer post on 26.11.2018 but taking clue of the fact that clarification had been sought by the SC/ST Commission and similar benefits have been accorded to other benefits the writ petitioner is entitled to the said benefits. The said logic and reason assigned in the order of the District Inspector of Schools, Prayagraj dated 14.05.2023 is not at all convincing as the author of the order appears to be swayed away of certain factors which are totally foreign to service jurisprudence and uncalled for. Nonetheless, this Court cannot endorse the view taken by the DIOS, Prayagraj that since similar benefits have been accorded to other Assistant Teachers, the same is to be extended to the fourth responded particularly in view of the fact that there is no concept of negative equality as the Courts of law are supposed to advance the justice in such a manner that there is no discrimination being meted out under Article 14 of the Constitution of India, meaning thereby, that any benefit extended illegally to the similar circumstances cannot be a ground to extend the same to an incumbent who even otherwise is not entitled for the same. Further, Sri Ojha, learned Senior Counsel for the writ petitioner though has made a feeble attempt questioning the appointment of the fourth respondent as Assistant Teacher (Physical Education) on the ground of lack of eligibility but he did not substantiate the same. Pleadings in the writ petition are completely lacking in that regard. Further an attempt has been made somehow to a limited extent to develop it in the rejoinder affidavit but as already discussed it has not been substantiated, thus, this Court is not going into the said issue.
37. Since the order dated 14.05.2023 impugned in the writ petition passed by the District Inspector of Schools, Prayagraj, second respondent, suffers from patent and manifest illegality and the core and fundamental issues have not been addressed, thus, in the facts and circumstances of the case, the order of the District Inspector of Schools, Prayagraj cannot be sustained in the eyes of law and it is liable to be set aside.
38. Accordingly, the writ petition is allowed, the order dated 14.05.2023 passed by the second respondent, District Inspector of Schools, Prayagraj is set aside. The matter is remitted back to the second respondent, District Inspector of Schools, Prayagraj to pass a fresh order in the light of the observations made hereinabove and in accordance with law within a period of two months from the date of production of certified copy of the order after affording opportunity of hearing to the concerned/affected parties.
Order Dated:- 25.08.2023 Rajesh