Allahabad High Court
The State Of U.P Through Secy Edu.In Re ... vs Sri Ramesh Singh on 2 August, 2019
Bench: Ajai Lamba, Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved AFR Court No. - 2 Case :- SPECIAL APPEAL No. - 424 of 2005 Appellant :- The State of U.P Through Secy Edu. In Re W.P 1400 S/S 1993 Respondent :- Sri Ramesh Singh Counsel for Appellant :- C.S.C Counsel for Respondent :- Ramesh Pandey, M.S.Rathaore, Sanjay Misra Hon'ble Ajai Lamba,J.
Hon'ble Chandra Dhari Singh,J.
[Per Chandra Dhari Singh, J.]
1. The instant appeal has been filed for correctness of the order dated 01.09.2004 passed by the learned Single Judge in Writ Petition Service Single No.1400 of 1993 (Ramesh Singh vs. State of U.P. and others), by which the learned Single Judge has allowed the writ petition with direction to appellant to make payment of salary as well as arrears of salary to the respondent/writ petitioner in L.T. Grade from the date of his respective appointment within a period of three months.
2. Briefly stated the facts are that the college namely Dr. Ram Manohar Lohia Inter College, Semri, Faizabad ('college' for short) is a recognized college from the Board of High School and Intermediate Education, U.P., Allahabad and is governed by the provisions of the U.P. intermediate Education Act, 1921; U.P. Secondary Education Services Commission and Selection Board Act 1982; and U.P. High School and Intermediate College (Payment of Salaries of Teachers and other Employees, Act of 1971. The recognition upto High School was granted by the Board on 13.07.1977 in six subjects i.e. in Hindi, Sanskrit, English, Maths, Geography and Economics in Literary Group. Further, on 02.08.1984, recognition in seven subjects i.e. Hindi, English/Sanskrit, Math, Science, Social Science, Biology, Moral and Physical Science in Science Group. In pursuance to recognition, the District of Inspector of Schools Faizabad granted permission to start the classes vide orders dated 11.07.1978 & 10.04.1986 and the same are being regularly held since then in all ten subjects.
3. The respondent / writ petitioner was appointed on 01.07.1989 by the Committee of Management of the 'college' for teaching English and Social Science in High School Classes in L. T. Grade but the appointment of the writ petitioner was made on ad-hoc basis in science group. The recognition by the 'Board' in intermediate classes for teaching six subjects was given through order dated 17.07.1991 in Hindi, English, Sanskrit, Geography, and Economics and Education for the session for the year 1991 and in pursuance to recognition granted by the Board, the District Inspectors of Schools, Faizabad granted permission to start classes by his order dated 21.08.1991. After the recognition granted to the 'college', the petitioner was further appointed as part time teacher in intermediate classes under the provisions of sub-clause (VI) of section 7-AA of the Act of 1921 read with section 7-AB.
4. From the date of appointment, the respondent/writ petitioner has been continuously serving in the 'college' without any break and impart teaching classes from class 6 to 12 but he has not been paid salary inspite of his repeated request to respondent no.2 (Committee of Management of the 'college') but respondent no.2 has been continuously evading the matter for payment of salary of respondent/writ petitioner on the ground that the post has not yet been created, however, he has been assured that the salary would be paid as soon as the post has been created.
5. On 18.12.1992, the respondent /writ petitioner made a representation to the Committee of Management of the 'college' for payment of his salary. The said representation was referred to the District Inspector of Schools, Faizabad with a request that the salary of respondent/writ petitioner in L.T. Grade Teacher may be paid. Respondent no.2 through his letter dated 06.01.1993 informed the respondent/writ petitioner that the District Inspector of Schools, Faizabad has turned down the request for the payment of salary on the ground that the post on which the respondent/writ petitioner was appointed on L.T. Grade has not been created formally and no approval for his appointment was obtained and, as such, in absence of the formal creation of the post and approval, the respondent/writ petitioner cannot be paid the salary under the provisions of the Act of 1971.
6. Respondent/writ petitioner filed a writ petition bearing Writ Petition No.1400 (S/S) of 1993 challenging order dated 05.01.1993/06.01.1993 passed by the District Inspector of Schools, Faizabad with a prayer to make payment of salary since 03.07.1989 on the ground that respondent / writ petitioner has been appointed as L.T. Grade Teacher in pursuance of the recognition granted. The writ petition was allowed vide order dated 01.09.2004 and the order denying the payment of salary to the teachers already appointed in pursuance of the directions issued by the State Government to appoint the teachers to teach subjects are quashed. Direction was also issued to respondents/appellants to make payment of salary as well as arrears of salary to the respondent/writ petitioner in L.T. Grade from the date of his respective appointment within a period of three months. The order dated 01.09.2004 passed by the learned Singe Judge was challenged by filing the present Special Appeal.
7. With this backdrop, learned counsel for the appellants/writ respondents has submitted that the learned Single Judge has committed manifest error of law in passing the order impugned and without considering the judgment of Hon'ble the Apex Court in the case of Director of Education and Others vs. Gajadhar Prasad Verma; AIR 1995 SC 1121 wherein it has been held as follows :
"4. Be that as it may, the crucial question is whether the school of the respondent can claim reimbursement of the salary of such clerk from the Government? The U.P High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees Act 1971 (24 of 197 1) (for short 'the Act'), regulates the payment of the salary by the Government. Section 9 is relevant in that behalf. It provides that no institution shall create a new post of teacher or other employee except with the previous approval of the Director or such officer as may be empowered in that behalf by the Director. Admittedly, no steps have been taken by the Management to have obtained prior approval of the Director or any other authorised officer for creation of the additional post of clerk. The prior approval of the Director or the empowered officer is a condition precedent and mandatory, for creation of an additional post of a teacher or other employee. The reason behind Section 9 is that prior to grant of aid the Government had before it the relevant data of the posts for which the grant of aid was sanctioned...................."
"5. ...................We are concerned with the creation of the additional post, may be, due to the increase in the strength of students. What is material is whether prior approval of the Director or the empowered officer has been obtained before creating that post. It is not the case of the respondent or the Management that such prior approval had been obtained or given by the competent officer. Therefore, so long as prior approval had not been given, though the respondent might have been appointed by the Management, the Government is not obliged to reimburse the salary paid to such clerk. The Management has to bear the expenditure from its own resources without claiming any reimbursement from the Government. The High Court, therefore, has committed grievous error of law in not adverting to this crucial question and allowing the writ petition directing the Government to create the post and to make the payment of the salary etc. The directions are wholly illegal and legally unsustainable.
8. Learned counsel appearing on behalf of the appellants has submitted that the Hon'ble Single Judge has failed to appreciate that selection of respondent no.1/writ petitioner was unlawful and in violation of U.P. Secondary Education (Services Selection Board) Act, 1982 as well as the U.P. Secondary Education Services Selection Board Rules. It is further submitted that respondent no.1/writ petitioner was engaged by the Committee of Management of the said institute on a non-existent and non sanctioned posts and therefore, the liability goes to the Committee of Management to pay salary to respondent no.1.
9. It is further argued that provisions of U.P. High School and Intermediate Colleges (Payment of Salaries of Teacher and other Employees) Act 1971 are effective on the institution and under the provisions, the salary is paid only against the post created under Section 9 of the Act by the competent authority. The learned Single Judge has committed manifest error of law by ignoring the facts and in view of the provisions of Section 7-AA of the U.P. Intermediate Education Act 1921, the Committee of Management is only obliged to pay salary to the teachers from its resources against the non-sanctioned post. He has submitted that the order impugned has been passed without considering the ratio laid down by Hon'ble the Apex Court in the case of State of Punjab vs. Jagdeep Singh; AIR 1964 S.C. 521, wherein their Lordships of Hon'ble the Apex Court has held as under :
"........In our opinion where a Government servant has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give, he will not in law be deemed to have been validly appointed to the post or given the particular status........"
10. Per contra, learned counsel appearing on behalf of the respondent/writ petitioner has vehemently opposed the submissions made by the learned counsel for the appellants. Respondent no.1/writ petitioner was appointed as L.T. Grade Teacher in pursuance of the recognition granted by the Board. Therefore, he is covered in the definition of Teachers as given in the Act of 1971 and, as such, the appellants/writ respondents are legally bound to make the payment of salary to respondent no.1. It is submitted that since the recognition order was issued by the Board and, as such, there was no necessity for obtaining any formal order for the selection on the said post. Respondent no.1 was fully qualified person for being appointed as L. T. Grade Teacher in the said 'college' and he has been teaching since 03.07.1989 continuously, therefore, he is entitled to the entire salary since 03.07.1989. The order passed by the Hon'ble Single Judge, after considering the entirety of the matter and in accordance with the provisions provided in the statute and therefore, there is no illegality in the order of the Hon'ble Single Judge for issuing the mandamus to pay salary to respondent no.1/writ petitioner. It is submitted that in the order of the State Government, it has been mentioned that recognition granted to teach additional subjects was duly approved vide order dated 12.03.1984 and it was specifically directed that the appointment of the teacher to tech additional subjects should be made form amongst having minimum requisite qualifications in accordance with law, meaning thereby that the government has authorized the appointment of the teachers in accordance with law, on the subjects, recognition of which was granted.
11. Learned counsel appearing on behalf of the respondent relied on the judgment of the Hon'ble Supreme Court in the case of Chandigarh Administration and others vs. Rajni Vali (Mrs.) and others reported at (2000) 2 SCC 42, wherein Hon'ble the Apex Court in para 6 to 10 has held as under :
6. The position has to be accepted as well-settled that imparting primary and secondary education to students is the bounden duty of the State Administration. It is a Constitutional mandate that the State shall ensure proper education to the students on whom the future of the society depends. In line with this principle, the State has enacted Statutes and framed Rules and Regulations to control/ regulate establishment and running of private schools at different levels. The State Government provides grant-in-aid to private schools with a view to ensure smooth running of the institution and to ensure that the standard of teaching does not suffer on account of paucity of funds. It needs no emphasis that appointment of qualified and efficient teachers is a sine qua non for maintaining high standard of teaching in any educational institution. Keeping in mind these and other relevant factors this Court in a number of cases has intervened for setting right any discriminatory treatment meted out to teaching and non-teaching staff of a particular institution or a class of institutions. To notice a few such decisions on the point, we may refer to the case of Haryana State Adhyapak Sangh & Ors. etc.Vs. State of Haryana & Ors. etc. ( AIR 1988 SC 1663), in which this Court issued a direction that the State Government will also take up with the Management of the aided schools the question of bringing about parity between the teachers of aided schools and the teachers of Government schools for the period following that to which the thirty five instalments relate, so that a claim for payment may be evolved after having regard to the different allowances claimed by the petitioners. In the case of Haryana State Adhyapak Sangh & ors.Vs. State of Haryana & Ors. (AIR 1990 SC 968), a bench of three learned Judges of this Court clarifying the judgment in Haryana State Adhyapak Sangh & ors. etc. Vs. State of Haryana & Ors. etc. (supra), issued a direction, inter alia, that the parity in the pay scales and dearness allowance of teachers employed in aided schools and those employed in Government schools shall be maintained and with that end in future the pay scales of teachers employed in Government schools shall be revised and brought at par with the aided schools and dearness allowance payable to the teachers employed in Government schools with effect from January 1st, 1986.
7. In the case of State of Maharashtra Vs. Mannubhai Pragati Vashi & Ors. JT 1995 (6), SC 119), this Court held that the decision of the Government of Maharashtra not to extend the Grant-in-aid Scheme to private law colleges was discriminatory and this Court directed the State of Maharashtra to extend the Grant-in-aid Scheme to all recognized private law colleges on the same criteria as such grants are given to other Faculties, namely, Arts, Science, Commerce, Engineering and Medicine from the academic year 1995.
8. In the case of State of Haryana & Anr. Vs. Ram Chander & Anr. (1997 (5) SCC 253), this Court considered the case of language teachers in the Haryana Government Vocational Education Institute, who taught Hindi and English to 11th and 12th standard students in the Institute, that they should be given parity in pay scale with the teachers who taught 11th and 12th standard students in Higher Secondary Schools who were designated Lecturers. This Court upheld the judgment of the High Court granting parity of scale of pay to the aggrieved teachers on the finding , inter alia, that whether the teachers teaching Hindi and English languages to 11th and 12th standard students in a technical institution or in a Higher Secondary School makes no difference in the nature of duties and functions performed by these two sets of papers when they teach the same syllabus of Hindi and English to 11th and 12th standard students who appear at the same type of examination and write the same papers as were written by 11th and 12th standard students who are taught Hindi and English in Higher Secondary Schools.
9. Tested on the touch stone of the principles laid down in the aforementioned decisions, the position is manifest that there is no justification for denying the claim of the respondents for parity of pay scale and to accept the contention of the appellants will amount to confirming the discriminatory treatment against the respondents. Therefore, the High Court rightly rejected the case of the appellants. The directions issued in the impugned Judgment to pay the respondents 1 to 12 the same salary as is being paid to their- counter parts in the privately managed Government aided schools in Chandigarh in the circumstances is unassailable.
10. Coming to the contention of the appellants that the Chandigarh Administration will find it difficult to bear the additional financial burden if the claim of the respondents 1 to 12 is accepted, we need only say that such a contention raised in different cases of similar nature has been rejected by this Court. The State Administration cannot shirk its responsibility of ensuring proper education in schools and colleges on the plea of lack of resources. It is for the Authorities running the Administration to find out the ways and means of securing funds for the purpose. We do not deem it necessary to consider this question in further detail. The contention raised by the appellants in this regard is rejected. It is, however, clarified that the proportion in which the additional burden will be shared by the Chandigarh Administration and the Management of the school will be in accordance with the Grant-in- aid Scheme applicable to the school from time to time. The judgment of the High Court that the sharing of the financial burden will be in the ratio of 95 % to 5% is modified accordingly."
12. He further relied on the judgment in the case of Lal Bahadur Shashtri S. Jr. High School and another vs. State of U.P. and others; reported at (2002) 3 ESC (SC) 103, in which Hon'ble the Supreme Court in para 6 & 7 has held as under :
6. The High Court also did not considered the matter on merit but dismissed the writ petition and the special appeal merely on the ground that the writ petitioners had no right to get sanction of the additional posts of teachers. The High Court failed to take note of the fact that the additional sections lad been sanctioned by the departmental authority.
Thereafter, to say that the management cannot claim extra posts is in our view contradictory and against maintenance of proper standard of teaching in educational institutions. Financial sanction of the government may be an administrative pre-condition for the Director which he should have obtained but that cannot be accepted as the sole ground for rejecting the request of the management for the additional posts in the context of the sanction of additional sections.
7. At the cost of repetition it may be stated that all relevant aspects of the matter have not been considered by the Director while passing the order rejecting the appellants' request for additional posts of teachers. The High Court also did not consider the matter on merits and dismissed the writ petition/special leave on the technical ground of want of enforceable right of the writ petitioners/appellants. The order passed by the Director as well as the judgments of the High Court are unsustainable. Therefore, the orders passed by the High Court dismissing the writ petition and special appeal are set aside, the writ petition is allowed and the order of the Director of Education (Basic), Uttar Pradesh dated 13.8.1998 is quashed. The Director will consider the request of the appellants' school for sanction of additional posts of teachers for the extra sections sanctioned, in accordance with the norms set out in the government orders and executive instructions which were prevailing when the request of the management of the school was received in his office and pass a reasoned order within three months from the date of the receipt of the intimation of this order. The Director will give opportunity of hearing to the management of the school or its representative before passing the order."
13. Learned counsel for respondent no.1/writ petitioner has submitted that the letter of recognition was addressed to the Additional Secretary, Secondary Education Board, U.P. and a copy of the same was sent to the District Inspector of Schools with an intention that he should provided written permission to run classes of those additional subjects mentioned in that Government Order and to get other formalities completed after enforcement of provisions of Payment of Salaries Act and recognition of aided institution is fully dependent on the grant in aid given by the State Government. Learned counsel submits that in such a situation, the additional subjects have been permitted to be recognized by the State Government with the permission to appoint teacher to teach those subjects having minimum qualifications laid down under the Act in accordance with law. Therefore, it cannot be presumed that the management has been given burden to pay salary of those teachers appointed under the direction of the State Government.
14. We have heard learned counsel appearing on behalf the parties and perused the pleadings of the writ petition.
15. Respondent no.1 was appointed on 01.07.1989 by the Committee of Management as L T. Grade Teacher keeping in view the necessity of the college and in that anticipation, the post shall be sanctioned in future, but the post was not sanctioned and the respondent was teaching continuously inspite of non-sanction of said post. The work was being taken from respondent no.1 by the Committee of Management of the institution on a non-existent and non-sanctioned post and therefore, the salary was not paid by the department.
16. As per section 7-A of the U.P. Intermediate Education Act, 1921 enumerate power of the Board. In sub-section (4) thereof one of the powers vested in the Board is to recognize the institution for the purpose of its examinations and the District Inspector of Schools may permit an institution to open a new section in an existing class. As per Section 7-A, which was substituted in the statute by amendment w.e.f. 14.10.1986 by U.P. Act No.18 of 1987.
17. Section 7-AA of the U.P. Intermediate Education Act provides for employment of part-time teachers by the Management of the institution from its own resources for imparting instructions in any subject or group of subjects or for a higher class for which recognition is given or in any section of an existing class for which permission is granted under Section 7-A.
18. The post in question has never been sanctioned by the department/State Government and the Committee of Management without any sanction of post by any authority, selected the respondent. Under the provisions of U.P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order 1981, no appointment should be made on a non-sanctioned and non-existent post, wherein it has been provided that the Management of the institution may fill the vacancies by direct recruitment in the manner laid down in clause (3) which arises as short term vacancy on the post of teacher, caused by grant of leave or on account of suspension of any teacher duly approved by the District Inspector of Schools, as well as the duration of the ad-hoc appointment.
19. The appointment of the teacher is to be made under section 16-E of the Act, against a post. The post means a post sanctioned by the Director of Education or a competent authority. The Payment of Salaries Act, on the other hand, is an Act to regulate the payment of salaries of teachers and other employees of High Schools and Intermediate Colleges receiving aid out of the State funds and to provide for matters connected therewith. An institution under the said Act means a recognised institution for the time being receiving maintenance grant/grant-in-aid from the State Government. In respect of such an institution the State Government takes the liability to pay salary to the teachers and the other employees of the institution. A teacher or employee , in order to claim the benefit of payment of salary under the said Act has to fulfill certain conditions prescribed under the statute. The Management of the institution, in order to claim reimbursement of salary of its teachers and employees, is also to fulfill the conditions prescribed under the Act. In Section 9 of the Act it is mandated that no institution shall create a new post of teacher or other employee except with the prior approval of the Director or such other officer as may be empowered in that behalf by the Director.
20. It is apparently clear that in the case of respondent no.1, the said difficulties removal order are neither applicable nor has been followed as he has been appointed on a non-sanctioned and non-existent post. No permission was taken by the District Inspector of Schools, selection has not been made on the basis of quality point marks as well as it was incumbent on the Committee of Management of the College to notify the vacancies in two newspapers having adequate circulation in Uttar Pradesh, which had not been done in this case.
21. Merely granting recognition for additional subjects by the educational authorities and thereafter permission to start classes would not mean and cannot be taken to mean that the required post also stands created/sanctioned.
22. In the instant case, admittedly the post has neither been created nor sanctioned. If the Committee of Management of its own knowing fully well that it has no right to appoint a teacher on a post, which does not exist for teaching even the additional subjects had appointed the respondent no.1, it would be responsible to make payment of the salary in whatever scale from its own resources, but the Committee of Management cannot pursue that such a teacher/appointee should be paid salary under the provisions of the U.P. High School and Intermediate College (Payment of Salaries of Teachers and other Employees) Act, 1971.
23. In Gopal Dubey vs. District Inspector of Schools, Maharajganj and another; (1999) 1 UPLBEC 1, a Full Bench of this Court was required to consider the liability of the State Government for payment of the salary to the teachers of the institution where such teachers are appointed for subjects, without obtaining sanction for that subjects from the educational authorities. The Full Bench held that on recognition granted by the Board in respect of a subject in an institution under Section-7A of the Act, it will not be presumed that the post of lecturer/teachers in such subject stands sanctioned by the Director of Education under Section 9 of the Payment of Salaries Act, 1971. Since no prior approval of the Director was obtained before appointment of the petitioner in that case, as a Lecturer in the subject, the claim for payment of salary from the State Government was unsustainable. The management was also not entitled to reimbursement of the salary in absence of approval of the post/appointment.
24. For the aforesaid reasons, we do not agree with the submissions of learned counsel for the respondent that the State is under liability to pay salary to the respondent.
25. So far as the present appeal is concerned, the same deserves to be allowed on the ground that in the absence of any post of Assistant Teacher in the subject concerned being sanctioned, the payment of salary cannot be directed to be made as has been done.
26. In view of above, order dated 01.09.2004 passed by the learned Single Bench in Writ Petition Service Single No.1400 of 1993 (Ramesh Singh vs. State of U.P. and others) is set aside.
27. The appeal is accordingly allowed.
No costs.
Order Date :- August 2, 2019 VNP/-
(Chandra Dhari Singh, J.) (Ajai Lamba J.)