Allahabad High Court
Udai Pratap Singh vs State Of U.P. And Others on 16 September, 2010
Bench: Sunil Ambwani, Kashi Nath Pandey
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No.32 Special Appeal No.1108 of 2008 Udai Pratap Singh Vs. State of U.P. & Ors. Hon. Sunil Ambwani, J.
Hon. K.N. Pandey, J.
We have heard Shri Yogesh Agrawal, learned counsel for the petitioner-appellant. Shri J.K. Tiwari, learned Standing Counsel appears for the State-respondents.
The petitioner was appointed as part time teacher under Section 7AA of the U.P. Intermediate Education Act by the Committee of Management of Baba Gyandas Technical Inter College, Barhaj, Deoria on 26.8.1993 for teaching 'Biology'. Prior to the petitioner's appointment the college was given recognition under Section 7A for running classes in Science subjects in Class-11 and 12. The recognition granted under Section 7A provided for certain conditions and which included Condition No.5, under which the management of the institution was to be responsible to arrange for finances for running the classes. The condition No.4 of the recognition provided for appointment of only those teachers, who possessed minimum qualifications prescribed by the Board.
The appointment letter issued to the petitioner by the Committee of Management dated 26.8.1993 stated that he is being invited to teach as part time teacher on payment of Rs.10/- per lecture as honorarium.
It is stated by Shri Yogesh Agrawal that the petitioner was allowed to continue to teach the subject. With his efforts the college has achieved excellent results in the subject of Biology in the examinations for several years. He made representation for payment of regular salary on the same rates as it was provided to the regular teachers in the institutions receiving the grant in aid, and for which State is responsible for payment of salaries under the U.P. High School and Intermediate Colleges (Payment of Salary of Teachers and Other Employees) Act, 1971.
The petitioner filed the writ petition with following prayers:-
"(i) issue a writ, order or direction in the nature of certiorari quashing the term in the petitioner's appointment letter providing that he will be paid Rs.10/- per period.
(ii) issue a writ, order or direction in the nature of mandamus directing the respondent to pay the petitioner regular and equal remuneration as is payable to a lecturer teaching in intermediate classes in subject which is recognised and grant in aid has been given for payment of salary to a teacher.
(iii) issue a writ, order or direction in the nature of mandamus directing the respondent to pay the arrears of the remuneration to the petitioner which is payable to regular lecturer teaching subject recognised in intermediate classes.
(iv) issue writ, order or direction in the nature of mandamus directing the respondents to pay the interest at rate of 18%.
(v) issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.
(vi) award the cost of the petitioner."
Learned Single Judge has by a long and reasoned order dated 21.3.2005, partly allowed the writ petition. The petitioner's claim for the salary in the same scale of pay, admissible to aided institutions, claimed to be the constitutional obligation of the State, was turned down. The Court also did not find it appropriate to consider the petitioner for regularisation under Section 33A, 33B, 33C and 33D of the U.P. Secondary Education Services and Selection Board Act, 1982 (U.P. Act No.5 of 1982). Learned Single Judge has, however, found that while issuing the Government Order dated 10th August, 2001, it was not within the competence of the State Government to prescribe any honorarium to be paid to the part time teachers of educational institutions prescribing wages, less than minimum wages fixed under the Minimum Wages Act. The provisions of paragraphs 6 of the Government Order dated 10th August, 2001 have been struck down. Learned Single Judge, thereafter, proceeded to determine a formula for payment of honorarium to the part time teachers and directed the State Government to take into account the working hours of teachers of institutions recognised by the Board in the Government Order dated 20.11.1977, wherein regular teachers of Intermediate Colleges are required to teach 30 period/ hours in a week, with five periods/ hours in a day. He has worked out that the teachers will be required to teach for atleast 120 period/ hours and that the rate of remuneration and amount so worked out, should be paid to them accordingly. A direction has been issued to the State Government, to ensure payment according to the rate indicated in the judgment with effect from the date of appointment, and to pay to the teachers the entire arrears, after adjusting honorarium/ remuneration paid to them, with simple interest at the rate of 5% on the balance of remuneration.
The petitioner is not satisfied with the judgment and has claimed regular salary as it is paid to the regular teachers appointed by the U.P. Secondary Education Service Selection Board or regularised under the Act from the grant-in-aid received by the recognised institutions.
Shri Yogesh Agrawal, learned counsel for the petitioner-appellant has relied upon the judgments in Chandigarh Administration & others Vs. Mrs. Rajni Vali and others, JT 2000 (1) SC 159; State of West Bengal & Ors. Vs. Pantha Chatterjee and Ors., JT 2003 (5) SC 448 and A.K. Behra Vs. Union of India, JT 2010 (5) SC 290 to submit that the State has constitutional obligation to pay equal wages for equal work. Once the State Government has accepted and recognised the subject in the college, even if appointment is made by Committee of Management, the State is obliged under Art.21 of the Constitution of India to provide wages equal to wages paid to the regular employees. Article 14 of the Constitution of India guarantees equal protection of laws. He submits that Art.14 and 16 of the Constitution of India prohibits discrimination and protects the rights of similarly situate employees, performing same duties, on the principle of 'equal pay for equal work'.
Learned Standing Counsel would submit that the appellant does not have a fundamental right to be paid salary by the State Government. He was employed by the Committee of Management of the recognised educational institution on the terms and conditions fixed and accepted by it in respect of financial liability of teaching science subjects, for which recognition was granted by the State Government, and to ensure compliance of the rules and regulations of the High School and Intermediate Education Board, and to comply and maintain the standards of education. The State has neither given nor promised grant-in-aid or committed payment to any teachers in respect of newly recognised subject in the colleges after 30th November, 1967. No new institution, or any subject in the new institution has been given any grant in aid after 30th November, 1967. The petitioner does not have right to be paid from the government account. A Full Bench of this Court in Gopal Dubey Vs. D.I.O.S. Maharajganj & Anr., 1999 (1) E.S.C. 168 (All.) had considered the question of payment of regular salary to teachers appointed, in the subject, for which recognition has been granted under Section 7A. The Court held that teachers appointed under Section 7AA, to teach subjects recognised under Section 7A, do not have right to be paid from the State exchequer. In para 21 of the judgment it was held that recognition being granted by the Board in respect of subject under Section 7A, will not presume that the post of Lecturer stands sanctioned by the Director of Education under Section 9 of the Payment of Salary Act, 1971.
Learned Standing Counsel also submits that reliance upon State of U.P. Vs. Committee of Management, Mata Tapeshwari Saraswati Vidya Mandir & Ors., AIR 2010 SC 402 is not appropriate in as much as in that case the Supreme Court was not concerned with the payment of salary to the part time teachers. The issue raised in the Supreme Court was with regard to grant in aid to be given to Junior High Schools for Classes 6 to 8, which were not being run independently.
Section 7-A of the U.P. Intermediate Education Act, 1921 provides for recognition by the U.P. High School and Intermediate Board to any institution, in any new subject, or for a higher class, providing that notwithstanding anything contained in Clause (4) of Section 7, which provides for recognising instructions for the purposes of examinations, the Board may with the prior approval of the State Government recognise an institution in any new subject or group of subjects or for higher class. The Inspector may under clause (b) permit an institution to open a new section in an existing class. Section 7-AA inserted in the Act by the same amendment. U.P. Act No.18 of 1987 w.e.f. 14.10.1986 provides in sub-section (1) that notwithstanding anything contained in the Act management of an institution may from its own resources employ (i) as an interim measure, part time teachers, for imparting instructions in any subject or group of subjects or for higher class for which recognition is given or in any section of an existing class for which permission is granted under Section 7A. The Committee of Management under sub-section (2) has to furnish security in cash or by way of bank guarantee to the Inspector as may be specified by the State Government from time to time. Sub-section (3) provides that no part time teachers shall be employed in any institution unless such conditions may be specified by the State Government by order in this behalf are complied with and sub-section (4) provides that no part time teacher or part time instructor shall be employed unless he possess such minimum qualifications as may be prescribed. Sub-section (5) relevant for the purposes of this case provides:-
"(5) A part-time teacher or a part-time instructor shall be paid such honorarium as may be fixed by the State Government by general or special order in this behalf."
Section 7-AB provides for exemptions as follows:-
"7-AB. Exemption- Nothing in the Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 (U.P. Act No.24 of 1971), or the Uttar Pradesh Secondary Education Services (Commission and ) Selection Boards Act, 1982 (U.P. Act No.5 of 1982) shall apply in relation to part-time teachers and part-time instructors employed in an institution under Section 7-AA"
The scheme of the Act for granting recognition to an institution in any new subject or for higher class as employment of part time teachers or part time instructors, even after the amendments of the U.P. Intermediate Education Act, 1921 by the U.P. Act No.18 of 1987, does not give any right to the teachers employed on part time basis, to be paid from government account. An institution may be brought under grant-in-aid in accordance with the scheme framed by the State Government, subject to its financial resources. The teachers employed as part time teachers in the new subject sanctioned under section 7-A on a specific condition that they shall be paid, such honorarium as may be fixed by the State Government by general or special order in this behalf, and for which the Committee of Management will take the responsibility exempting the State from the liability to pay such amount, does not get a right to receive regular salary from the State Government.
The Courts under Art.226 of the Constitution of India do not have power to legislate, on policy matter and saddle the State Government with financial liability. In Mrs. Rajni Vali (Supra) and in Pantha Chatterjee (Supra) the Supreme Court has not laid down any such principle of law, which may permit the Court to encroach into the legislative and executive powers reserved under the Constitution of India, for giving directions for payment of regular salary to part time teachers on the principles of equal pay for equal work. The Court can, if a strong case is made out of discrimination and violation of fundamental rights, make a recommendation to provide for regularisation and payment of regular salary.
In Secretary, State of Karnataka and Ors. v. Umadevi and Ors., AIR 2006 SC 1806, the Supreme Court has laid down in para 43 as follows:-
"Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College [(1962) Supp 2 SCR 144]. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the Government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent."
We also do not find substance in the contention of learned counsel for the petitioner appellant that having served as part time teacher, performing same duties and responsibilities as regularly appointed teachers, the petitioner has acquired any right to claim equal pay for equal work.
The petitioner was appointed on 26.8.1993 as teacher in Biology for intermediate class on part time basis. At that time U.P. Secondary Education Services and Selection Boards Act, 1982 had come into force and that selections for regular teachers in recognised and aided colleges was provided to be made on a vacancy on the sanctioned post, after it was requisitioned by the college through the District Inspector of Schools and was filled up by the Board, after wide advertisement from amongst the persons eligible having requisite qualifications. The petitioner was not selected and appointed in accordance with the procedure prescribed under the U.P. Secondary Education Service and Selection Board Act, 1982; he has no right to claim parity with regularly employed teachers appointed on sanctioned and vacant posts after advertisement and selections. The Full Bench of this Court in Gopal Dubey (Supra) has answered similar questions namely whether on recognition being granted by the Board in respect of subject in an institution under Section 7A of the U.P. Intermediate Education Act, 1921 it will not be presumed that the post of Lecturer in such subjects stands sanctioned by the Director of Education under Section 9 of the Payment of Salaries Act.
For the aforesaid reasons, we do not agree with the submissions of learned counsel for the petitioner that the State is under liability to pay salary to the petitioner equal to regularly appointed teachers under Payment of Salaries Act, 1971. The observations made by learned Single Judge of the payment of minimum wages, worked out on the basis of number of working hours or periods, and payment of balance amount, as arrears with interest was neither prayed for nor appears to be argued. The formula adopted by the learned judge also encroaches upon policy matters reserved for executive powers, imposes financial liability on the State Government. We do not approve of such adhoc approach adopted in ignorance of the Full Bench decision in Gopal Dubey's case. The State is not bound to comply with such directions.
The special appeal is dismissed.
Dt.16.09.2010 SP/