Dal Singar vs State of U.P. and Others

S.S. Chauhan, J.—The disapproval order in regard to the petitioner''s appointment dated 20.9.1984 is under challenge in this writ petition.

Shri Nehru Smarak Uchchatar Madhyamik Vidyalaya, Rupaidiha, Bahraich (for short "the School") was a Junior High School and in the year 1977-78, it was recognized up to High School u/s 7 of the U.P. Intermediate Education Act, 1921 (for short "the Act"). The recognition was duly approved u/s 7-A of the Act. After recognition, the students were admitted in classes-IX and X in the year 1977-78. After clearance of the first batch of High School in the year 1978-79, the School was continuously run and the strength of the students increased from year to year. In the year 1981, 547 students studied in the School in classes-IX and X and in the year 1981-82 about 1022 students studied in classes-IX and X. It is stated that there has been increase of students in the subsequent years as well i.e. 1982-83, 1983-84. The petitioner was appointed as Assistant Teacher in the School on 23.9.1980 in C.T. Grade and it is alleged that the said appointment was duly approved by the District Basic Education Officer. The petitioner continued to work in accordance with the increased strength of the student-teacher ratio. The petitioner was asked to teach the High School classes and it is alleged that the salary of the petitioner was also fixed accordingly by the DIOS. The School was brought under the grant-in-aid w.e.f. 1.3.1984 and the salary was to be paid under the Payment of Salary Act, 1978 to the teachers and staff of the School. After the School came under the grant-in-aid, a list of teachers and employees was forwarded to the DIOS. The DIOS recognized only six teachers vide order dated 20.9.1984 including the Principal, one Clerk and three class-IV employees for the purposes of payment of salary and as a result thereof, the services of the petitioner were terminated. Hence this writ petition.

Submission of learned Counsel for the petitioner is that identical issue was raised in another writ petition in respect of the same School in Writ Petition No. 4925 (MS) of 1984 and the said writ petition was allowed and the said judgment has attained finality. It is also submitted that in pursuance to the interim order of this Court dated 20.8.1985, the petitioner is continuously receiving salary and after such long span of time it would be too harsh to turn out the petitioner from service when he is at the verge of retirement. Learned Counsel has also submitted that additional Sections were opened in accordance with the permission of the DIOS and the post of the petitioner is covered within the student-teacher ratio as there were six Sections in class-IX and six Sections in class-X. It cannot be said that the petitioner is not entitled for continuance of the post in question and it was incumbent upon the DIOS to have referred the matter for creation of the post to the Director instead of sitting quiet after granting approval to the opening of the new Sections.

Learned Standing Counsel, on the other hand, by filing counter affidavit has submitted that the Committee of Management has acted illegally and proceeded to appoint the petitioner without authority of law and in absence of any sanctioned post, the appointment of the petitioner will not confer any right and neither the petitioner can claim any salary.

I have heard learned Counsel for the parties and gone through the record.

The controversy stands concluded by a judgment passed in Writ Petition No. 4925 (MS) of 1984 wherein this Court has held as under:

I have given my anxious consideration to the argument advanced by the parties'' counsel. Undoubtedly once the State Government or the authorities have permitted to run the institution in question then it was incumbent upon the State Government to sanction the posts keeping in view the teacher student ratio in pursuance to government order or other order for time being in force Up gradation of institution or permission to run higher classes without sanctioning the post or financial aid shall amount to taking away the right of citizens conferred either to impart education or to have education in the institution run in the private sector. It shall amount to mockery of system in case petitioners are not paid salary. Inspite of fact that the authorities to their own wisdom have permitted the institution in question to up grade its teaching affairs and run the classes. In the absence of any explanation on the part of opposite parties, I do not find any reason not to fill up the vacancies keeping the teacher student ratio. However, since the U.P. Intermediate Education Act and regulations framed there under provides that a post of Assistant Teacher should be sanctioned by the Competent Authority, it can be done by the District Inspect of Schools or by other Competent Authority at a later stage also as they themselves have been failed to sanction the post within reasonable time while granting the institution to run the classes. Petitioners have been discharging duties since last almost 26 years, respondents have not came forward that the Board has made any selection for the institution in question. Accordingly the continuance of petitioners as Assistant Teachers seems to be justified. Order of termination passed by the management on account of disapproval by the District Inspector of Schools seems to suffer from arbitrariness. In case the District Inspector of Schools has not accorded financial sanction to the appointment then it shall amount to closure of classes. Once the authorities grant sanction to run the new classes or subject then simultaneously necessary provisions should be made to make appointment on the post in question keeping in view the teacher student ratio as provided by Government Order dated 20.11.1977. Admittedly, grant in aid was sanctioned by the State Government in the year 1984 and no effort has been made by the State Government or by the Competent Authority to fill up the vacancies keeping in view the Government Order dated 20.11.1977.

The aforesaid teachers belong to the same School. The petitioner is also one of the teachers of the same School and he has also been identically appointed and the Sections were duly approved by the DIOS vide order dated 24.10.1981. After opening of the new Sections, it was incumbent upon the Director to have correspondingly sanctioned the post, which he has failed to do but looking to the fact that the petitioner is working since 1980 and continuously receiving his salary, it would not be proper at this stage to disturb his appointment and more particularly in the wake of the fact that the issue in question in respect of the identically situated teachers of the same School has been adjudicated upon finally.

Considering the finding recorded by this Court in the judgment dated 28.3.2006, I am not inclined to take a different view. The writ petition is accordingly allowed. A writ in the nature of certiorari is issued quashing the order dated 20.9.1984. The petitioner shall be entitled for L.T. grade from the date of approval of L.T. grade by the DIOS. The competent authority shall also consider the case of the petitioner sympathetically for regularization and absorption in the School in question keeping in view the Government Order dated 20.11.1977 and other orders and provisions being enacted from time to time. There shall be no order as to costs.