AI Structured Summary
Not yet generated for this judgment
Judgment
Instant appeal under Chapter VIII Rule 5 of the Rules of the Court has been preferred against the judgment and order dated 19.3.2010, passed by learned Single Judge in Writ Petition No. 4968(S/S) of 1987. While allowing the writ petition, a mandamus has been issued to take work from the petitioner-respondent on the post of Assistant Teacher in the institution in question and pay back wages to the extent of 50%.
The respondent-petitioner was appointed on 8.9.1978. The appointment was approved by the District Basic Education Officer by letter dated 4.9.1978. In July, 1984, the institution was brought under grant-in-aid. Since the respondent petitioner''s salary bill was not prepared by the Manager, he moved a representation to the District Basic Education Officer who by letter dated 31.7.1985, directed the Manager to allow the respondent petitioner to continue on the post of Assistant Teacher and he be paid salary. The order of the District Basic Education Officer was not complied with, hence the petitioner submitted representation and reminders but failed to get response. Plea before the District Basic Education Officer was that by change of management, he has been ousted to accommodate other. The Manager was playing fraud by manipulating the record. It was also pleaded that the appointment was made within the sanctioned strength before the college came into grant-in-aid list.
The District Basic Education Officer sent another letter dated 20.2.1987 directing that unless the petitioner-respondent''s services were absorbed and be paid salary, no further appointment shall be made. The order of the District Basic Education Officer was not complied with. Hence, a notice dated 25.4.1987 was served on the Manager for single hand operation and by an order dated 18.5.1987, the Accounts Officer was directed to submit salary bill.
Instead of ensuring compliance of the order passed in the manner hereinabove, the District Basic Education Officer for extraneous reasons permitted to make advertisement on 7.7.1987 for fresh recruitment without reviewing the order dated 20.2.1987 with due opportunity to the petitioner-respondents. Hence, the petitioner approached this Court by preferring writ petition in the year 1987 with the prayer that he may be paid salary as his services have not been terminated with due communication in accordance with law and he be permitted to continue in service. The petitioner-respondent claimed salary from July, 1986 on the post of Assistant Trained Teacher and from August, 1985 to June, 1986 in untrained scale.
Relying upon the directions issued by the District Basic Education Officer from time to time and keeping in view the fact that the appointment was duly approved before the college came into grant-in-aid and the respondent-petitioner was having right to continue in service, learned Single Judge while allowing the writ petition issued mandamus as mentioned above.
While assailing the impugned order, Dr. L.P. Mishra, learned Counsel appearing on behalf of the appellants submits that the reinstatement could not be done with 50% back wages, the respondent petitioner could not have been permitted to continue in service as another person has been appointed. Under the relevant Act, only the recognised staff may be paid salary and the petitioner''s services have been deemed to be terminated as the services of one Moti Lal Yadav has been approved by the District Basic Education Officer.
Attention of the Court has not been invited to any material on record on record that the services of the respondent petitioner were terminated in accordance with law with due communication. It has been vehemently argued that the approval was only for one year. The letter dated 4.9.1978, written to the Manager by the District Basic Education Officer shows that the approval was granted to seven teachers along with the petitioner. The letter does not show that the approval was for a limited period. Dr. Mishra has invited attention to the letter dated 20.9.1978 which seems to have been written by the District Basic Education Officer to Mr. Dhani Ram Goswami, the Headmaster of the school in question communicating information that his appointment has been approved on temporary basis only for one year, i.e. upto 30.6.1978. Relying upon this letter, it is stated that the approval of the petitioner-respondent was only for a year. Though the note to the letter dated 20.9.1978 shows that the District Basic Education Officer had instructed the Headmaster to communicate the same to all the teachers but at the face of record, the letter dated 4.9.1978 (Annexure-2) does not speak so that the service condition of the Headmaster and other teachers shall rest on the terms of their appointment. Approval granted to the petitioner and six other teachers does not show that it was for limited period, hence any observation made in the letter of the Headmaster does not seem to attract the case of the petitioner respondent.
Moreover, there is one other aspect of the matter. Nothing has been brought on record that after 1978, every year case of individual teacher was considered by the District Basic Education Officer granting year wise approval, hence it appears that the teachers continued in service on the basis of the approval granted to them vide letter dated 4.9.1978 till 1984 when the college came into grant-in-aid list.
So far as the appointment of another person is concerned, in absence of any pleading to establish that the service of the petitioner respondent was terminated in accordance with law with due communication; rather the order of the District Basic Education Officer dated 31.7.1985 followed by notice for single operation dated 25.7.1987 and enforcement of single operation on 18.5.1987 makes it amply clear that the petitioner-respondent was treated to be in service by the statutory authority and effort was made for payment of salary. Accordingly, the submission of the petitioner-respondent''s counsel that the his services were never terminated with due communication seems to be correct. It is trite in law that the order of termination comes into effect only when it is communicated on the employee by the competent authority.
Payment of salary to the teachers and staff in a Junior High School receiving grant-in-aid is governed by the statutory provisions contained in U.P. Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 (in short, Act). u/s 4(1) of the Act, the Education Officer has possessed all powers to call for record to ascertain the validity of appointment and accordingly ensure payment of salary to the teachers and staff of any school receiving grant-in-aid from the State Government. He has also got power to issue appropriate direction for the purpose. Section 4(1) of the Act is reproduced as under:
Power to inspect.- (1) The Education Officer may, at any time, for the purpose of this Act, inspect or cause to be inspected any institution or call for such information and records (including registers, books of accounts and vouchers) from its management with regard to the payment of salaries to its teachers or employees or give its management any direction for the observance of such canons of financial property (including any direction for retrenchment of any teacher or employee or for prohibition of any wasteful expenditure) as he thins fit.
Under Sub-section 5 of the Act, it is the statutory duty of the District Basic Education Officer to ensure that the salary is paid to the teachers and staff. The proviso to Sub-section (1) of Section 5 further empowers the Education Officer to instruct the bank that the accounts shall be operated only by him or by an officer authorised by him (single operation).
u/s 6, on the basis of the recommendation of the Education Officer, the Regional Deputy Director may supersede the Committee of Management for specified period not exceeding one year in case the action given under Sections 3, 4 and 5 of the Act is not complied with. u/s 10 of the Act, it is the liability of the State Government to pay salary to the teachers and employees of other institution due in respect of any period after the appointed day. Meaning thereby, after a school comes under grant-in-aid, it shall be the liability of the State Government to pay salary of teachers and staff.
u/s 9, the institutions have been restrained to create new post of teachers and other employees except with the approval of the Director or such other officer empowered by general or special order.
In view of above, once the District Basic Education Officer had passed an order for payment of salary to the respondent petitioner and even taken steps to place the school under single operation, he was not justified to take a decision which may amount to deprive the respondent-petitioner from source of livelihood. The provisions contained in Section 4 are mandatory and could not have been violated by the District Basic Education Officer. Accordingly, the decision taken by the District Basic Education Officer for the services of Shri Moti Lal Yadav, as submitted by Dr. Mishra, shall not affect the service career of the petitioner-respondent.
It is settled law that right to livelihood is a fundamental right protected by Article 21 of the Constitution of India. A person cannot be deprived from the source of livelihood dehors the rules vide Kapila Hingorani Vs. State of Bihar, Bangalore Medical Trust Vs. B.S. Muddappa and others, Hinch Lal Tiwari Vs. Kamala Devi and Others, AIR 2007 SC 1046 Milkman Colony Vikas Samiti v. State of Rajasthan and Ors. and 2006 13 SCC 382 Nagar Nigam v. Al Faheem Meat Export (P) Limited.
It is also settled law that a person cannot be deprived in violation of the statutory provisions from the source of livelihood. In case the authorities want to do certain thing, then that must be done as provided in the Act or statutory and not otherwise vide AIR 1936 253 (Privy Council) Deep Chand Vs. The State of Rajasthan, Patna Improvement Trust Vs. Smt. Lakshmi Devi and Others, State of Uttar Pradesh Vs. Singhara Singh and Others, The Barium Chemicals Ltd. and Another Vs. The Company Law Board and Others, Chandra Kishore Jha Vs. Mahavir Prasad and Others, Delhi Administration Vs. Gurdip Singh Uban and Others, Dhanajay Reddy v. State of Karnataka AIR 2001 SC 1512, Commissioner of Income Tax, Mumbai Vs. Anjum M.H. Ghaswala and Others, Prabha Shankar Dubey v. State of M.P. AIR 2004 SC 486 and Ram Phal Kundu Vs. Kamal Sharma, Taylor v. Taylor (1876) 1 Ch.D. 426 ; Nika Ram Vs. State of Himachal Pradesh, Ramchandra Keshav Adke (Dead) by Lrs. and Others Vs. Govind Joti Chavare and Others, Chettian Veetil Ammad and Another Vs. Taluk Land Board and Others, State of Bihar and Another Vs. J.A.C. Saldanha and Others, A.K. Roy and Another Vs. State of Punjab and Others, State of Mizoram Vs. Biakchhawna,
It is also argued by the appellants'' counsel that the respondent-petitioner was appointed afresh in the year 1980 and his services were terminated in the year 1983. Admittedly, the school in question was a recognised school. Though no grant-in-aid was there but being a recognised institution, the appointment and termination of employee could have been done only with due approval of the District Basic Education Officer but same seems to be missing creating reasonable doubt over the submissions made by the appellants'' counsel. It appears that the case has been cooked up to deprive the respondent-petitioner from the source of livelihood. In case the submission of the appellants'' counsel is treated to be correct, then there was no occasion on the part of the District Basic Education Officer to send letters in the years 1985 and 1987 for payment of salary or place the college under single operation.
U.P. Recognised Basic Schools (Recruitment and Conditions of Service of Teachers and Other Conditions) Rules, 1975 (in short, Rules) provides that every school shall be bound by the conditions and restrictions specified therein (Rule 3). Rule 11 of the Rules provides that no order of removal or termination of the teacher of a recongised school shall be passed without prior approval of the District Basic Education Officer. It is relevant to quote Rule 11 of the Rules as below:
Dismissal and removal of teachers.- No order dismissing, removing or terminating the services of a teacher or other employee of a recognised school shall be passed save with the prior approval in writing of the Basic Shiksha Adhikari:
Provided that in case of recognised schools established and administered by minority referred to in Clause (1) of Article 30 of the Constitution, such an order shall not require the approval of the Basic Shiksha Adhikari but shall be reported to him.
In the present case, in case the submission of the Dr. L.P. Mishra is accepted, then there appears to be nothing on record that any approval was given by the District Basic Education Officer with regard to termination of services of the respondent petitioner. Accordingly, the argument advanced fails. Next question relates to qualification. While granting approval of appointment to the petitioner-respondent, the qualification has been recorded as B.A. I.G.D.E. According to the learned Counsel for the respondent, I.G.D.E. is a training which the petitioner possessed at the time of appointment obtained from other State. Admittedly, later on, the petitioner-respondent has done B.Ed. which is higher qualification than required for the purpose. A perusal of the order of 4th September shows that several teachers were having B.Ed. qualification like Krishna Murari Pandey, Ram Krishna Vishwakarma, Raja Ram Tripathi, Ram Narain Singh who seems to have been retained in service. Only two teachers, namely Kashi Prasad Singh and Ashok Kumar Singh were possessing B.T.C. certificate. Moreover, such objection may not be raised at belated stage in a collateral proceeding.
There is one other aspect of the matter. The order passed by the District Basic Education Officer directing for payment of salary and for the purpose placing the college under single operation seems to have not been impugned. The action taken by the District Basic Education Officer to pay salary seems to make out a case that the petitioner-respondent was in service and his services were not dispensed with.
So far as the submission of the appellants'' counsel raising objection with regard to payment of back wages is concerned, it does not seem to be sustainable keeping in view the fact that the Committee of Management is not responsible to pay salary, more so when the statutory authority is satisfied with the nature of appointment of the petitioner-respondent. The burden is on the State Government to ensure payment of salary to the teachers and staff of the institution in question. Repeated orders passed by the District Basic Education Officer to ensure payment of salary have been violated. The respondent petitioner suffers from no fault on his part with mental pain, agony and humiliation and having financial constraints. Accordingly, payment of 50% back wages under exceptional circumstances of the case seems to be justified.
In view of above, the special appeal fails. The impugned order dated 19.3.2010, passed by learned Single Judge is affirmed. The State shall ensure compliance of the judgment expeditiously, say within a period of two months from the service of the present order.
No order as to costs.