Madhya Pradesh High Court
The State Of Madhya Pradesh vs Vishnu Adarsh Shishu Shiksha Samiti on 21 January, 2013
WRIT APPEAL No.965/2008 1
21.01.2013
Shri Swapnil Ganguly, learned Panel Lawyer for the
appellants.
Mrs. Amrit Ruprah, learned Counsel for the
respondent.
This writ appeal is directed against the order dated 05.02.2007 passed in W.P. No.1183/2001 under Section 2 of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005.
It is contended by learned Counsel for the appellants that learned single Judge has failed to appreciate that the appointment of 10 teaching staff in the school was dehors the provisions of Madhya Pradesh Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmachariyon Ke Vetano Ka Sandaya) Adhiniyam, 1978 (herein after referred to as 'Act'). It is contended that there was no prior approval of creation of post and neither any prior approval was obtained before appointment of teaching staff in the school in terms of provisions of Section 6 of the Act aforesaid. On the other hand, a demand being made by the respondent (petitioner), erroneously the payment of grant-in-aid was made for payment of salary to 40 staff members of the school whereas on earlier occasion sanction was granted for payment of grant-in-aid for the purposes of payment of salary to 30 staff members. It is contended that these aspects were not considered by learned Single Judge and as such the order impugned is bad in law.
WRIT APPEAL No.965/2008 2Per contra it is contended by learned Counsel appearing for the respondent that no misrepresentation whatsoever was done by the respondent. In fact the academic pattern of imparting education was changed in the school and two more classes were sanctioned in new pattern of 10+2. For the purposes of imparting education in two classes, i.e. 11th and 12th, 10 teachers were appointed and for them, the claim was made for payment of grant. Such a payment was recommended and only after making such a recommendation, the grant-in-aid was released by the competent authority in favour of the respondent. Drawing attention of this Court to the show cause notice (Annexure P-6 filed along with the writ petition), it is pointed out that the show cause notice do not contain any allegation that the appointment of any staff was made dehors the Act or the Rules aforesaid, therefore, the State Government was not liable to pay grant for the said teaching staff. On the other hand, the recommendations were sent in this regard after obtaining an explanation from the respondent by the competent authority to the State Government as is clear from Annexures P-7 and P-8 filed along with the writ petition. For any reason if the grant was not to be paid for the new appointed teachers, this was to be intimated to the respondent. Drawing attention of this Court to the order-sheet dated 20.12.2012, it is contended that time was taken by the learned Counsel for the appellant to seek instructions whether the Government will consider the eligibility of 10 WRIT APPEAL No.965/2008 3 teachers for payment of grant-in-aid by them or not. This too has not been done and in fact the appellants are not complying with the order passed by the learned Single Judge.
We have carefully gone through the order passed by learned Single Judge and have also examined the record. True it is that as per the provisions of the Act, prior approval for creation of the post was necessary and any appointment was also to be made in terms of the provisions of Section 6 of the Act. However, if a demand was made in that respect, no objection was raised at the relevant time, on the other hand the grant-in-aid was released in favour of the respondent, it cannot be said that any misrepresentation was done by the respondent.
Learned Counsel appearing for the appellant has placed his reliance in the case of Chandi Prasad Uniyal and others vs. State of Uttarakhand and others, (2012) 8 SCC 417 and contended that even if there was no misrepresentation, there was every right available to the appellants to recover the amount paid in excess to the respondent, from the public exchequer.
True it is that the law is very clear in this respect and misrepresentation by a concerned claimant will not be only ground to waive the recovery. However, it has to be seen that action was only for payment of salary to certain teachers appointed by the respondent for the purpose of manning the classes, which were additionally sanctioned in the school of respondent. Moreover, such a demand was made only when the sanction was already WRIT APPEAL No.965/2008 4 granted to open the classes in the school and it was deemed that for starting the said classes, the teaching staff would be required and in view of this, it cannot be said that on a false pretext the amount was received by the respondent. Therefore, the law laid-down by the Apex Court in the case of Chandi Prasad Uniyal and others (supra) is distinguishable. The other submission made by learned Counsel for the appellants is that on inspection it was found that such number of staff was not working in the school for which the grant-in-aid was being demanded by the respondent. We have seen that such was not the allegation made in the show cause issued to the respondent. However, that will be a totally different claim for which, still the action can be taken by the appellants in appropriate manner, if permissible under the law.
In view of the aforesaid, we do not find any apparent error in the order passed by the learned Single Judge. The appeal fails and is hereby dismissed.
(S.A. Bobde) (K.K. Trivedi)
Chief Justice Judge
Skc