Desh Raj vs State of U.P. and Others

Ashok Bhushan, J.—These two Special Appeals have been heard together and are being decided by this common judgment. The Special Appeal No.263/2005 is being treated to be the leading appeal since the decision in Special Appeal No.263/2005 shall govern the decision in Special Appeal No. 264/2005.

We have heard Shri P.N. Saxena, learned Senior Advocate assisted by Shri Amit Saxena for the appellants, Shri Swapnil Srivastava for the respondent no.4 and Shri Neeraj Upadhyay, learned Additional Chief Standing Counsel for the State.

Brief facts giving rise to the Special Appeal No.263/2005 are; Adarsh Vidya Mandir, Junior High School, Chapunna, District Farrukhabad was recognised as a Junior High School in the year 1974. The appellant Desh Raj claims to be appointed as an untrained Teacher with effect from 01/7/1974 in the aforesaid Junior High School. After enforcement of Uttar Pradesh Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978, ( hereinafter called the "Rules, 1978") the Basic Shiksha Adhikari (hereinafter referred to as "BSA") is said to have issued a letter on 07/9/1979 approving 1 to 32 teachers and employees of the institution who were appointed between 01/7/1974 to 30/7/1977. The Committee of Management of the Junior High School submitted an application for upgradation of the institution as High School. In the papers submitted for upgradation of the institution, name of 9 teachers were mentioned and the name of the appellant was mentioned as Clerk having been appointed from 01/7/1974. The District Inspector of Schools, Farrukhabad (hereinafter referred to as "the DIOS") verified the details submitted by the Management and forwarded the same to the Secretary, Madhyamik Shiksha Parishad, Uttar Pradesh for recognition of the institution as High School vide its letter dated 28/8/1979. The institution namely; Adarsh Vidya Mandir was upgraded as High School in the year 1981. The appellant claims to have obtained BTC Training in the year 1983 through (Correspondence). By Government Order dated 13/11/1991, the institution was taken on grant-in-aid under the Uttar Pradesh High School and Intermediate Colleges Payment of Salary (Teachers and other employees) Act, 1971. The DIOS called for the details of the teachers and employees for approving them for payment of salary by the grant-in-aid w.e.f. 01/4/1991. The DIOS vide letter dated 16/10/1992 approved 5 teachers and the appellant as Clerk for payment of salary w.e.f. 01/4/1991. By another letter dated 02/1/1993, four more teachers were approved for payment of salary. Appellant, Desh Raj filed a Writ Petition No.46426 of 1993 in this Court challenging the order dated 16/10/1992, by which he was approved as a Clerk. The case of the writ petitioner Desh Raj was that he was appointed as an untrained teacher and was also approved by the BSA on 07/9/1979 and a direction be issued to pay salary to him as Assistant Teacher. The writ petition filed by the appellant Desh Raj was disposed of by this Court on 10/11/1993 permitting the petitioner to make an application before the DIOS putting his grievance which was directed to be decided by the DIOS within two months. The DIOS in pursuance of the order of this Court dated 10/11/1993, passed a detailed order on 02/2/1995 holding that appellant Desh Raj was working as a Clerk since 01/7/1974, therefore, he is not entitled for payment of salary as Assistant Teacher from the State Fund. A finding was also recorded that Desh Raj was working on the post of Clerk. The DIOS also held that the approval dated 08/9/1979 by the BSA was against the Rules 1978, since the teachers and employees were appointed much prior to 13/2/1978 i.e. before enforcement of 1978 Rules.

Appellant Desh Raj filed Writ Petition No.20455/1995, praying for quashing the order dated 02/2/1995,passed by the DIOS,Farrukhabad and praying for a mandamus commanding the respondents to pay salary to the petitioner of Assistant Teacher Lt. Grade w.e.f. 01/4/1991.

Counter affidavit was filed in the writ petition by the State justifying the payment of salary as Clerk. It was pleaded in the counter affidavit that the papers which were submitted for recognition of the Junior High School as High School, the appellant Desh Raj was shown as Clerk. Reference was made to the letter dated 28/8/1979 of the DIOS by which letter it was verified that the appellant was working as Clerk. The Writ Petition No.20455/1995 was dismissed by this Court by the judgment and order dated 18/8/2004, against which the Special Appeal No.263/1995 has been filed.

Facts giving rise to Special Appeal No. 264/1995, Ramesh Chandra Vs. State of Uttar Pradesh and Ors., is to be noted now. The case of the appellant Ramesh Chandra is that one Shri Ishwar Dayal was working as Clerk in the institution, he submitted his resignation in May, 1980. Appellant Ramesh Chandra claims his appointment as Clerk by appointment letter dated 08/7/1980 issued by the Manager. The letter dated 13/3/1982 of the DIOS is also relied by which the DIOS approved the teachers and Clerks and Class IV employees. The institution was recognised as High School in the year 1981 and it was taken on grant in aid w.e.f. 01/4/1991. The DIOS by letter dated 16/10/1992 approved 5 teachers and one Clerk Desh Raj for payment of salary and 4 more teachers by letter dated 02/1/1993. Appellant, Ramesh Chandra claiming his appointment as Clerk submitted his representation to the DIOS on 28/10/1992 praying approval and payment of salary as Clerk. Writ Petition No.43373/1993, was filed by Ramesh Chandra praying for payment of salary as Clerk w.e.f. 01/4/1991 under the payment of Salaries Act, 1971. Counter affidavit was filed by the State denying the claim of Ramesh Chandra. It was pleaded that only one post of Clerk is sanctioned in the institution on which Desh Raj was approved for payment of salary. Copy of the application submitted by the Management claiming upgradation of High School was filed in which the name of 9 teachers and the Clerk Desh Raj was mentioned. Rejoinder affidavit was filed by Ramesh Chandra in which it was claimed that Desh Raj has already filed writ petition claiming payment of salary as Assistant Teacher which was disposed of by this Court on 10/11/1993, directing the DIOS to consider the case of Ramesh Chandra. The writ petition of Ramesh Chandra was dismissed by this Court by the judgment and order of the learned Single Judge 18/8/2004, holding that on the post of Clerk, Desh Raj was working hence the petitioner Ramesh Chandra was not entitled to the post and payment of salary as clerk. Ramesh Chandra has filed Special Appeal No.264/2005, challenging the order of the learned Single Judge 18/8/2004.

Shri P.N. Saxena, learned Senior Advocate appearing for the appellants in both the appeals submits that the decision in the Special Appeal No.263/2005 shall also govern the fate of Special Appeal No.264/2005. Shri P.N. Saxena, learned Senior Advocate appearing for the appellants in both the appeals submits that the appellant Desh Raj was appointed by the Management as Assistant Teacher by appointment letter dated 30/6/1974 in untrained Grade. He submits that the BSA also issued an order on 06/9/1979 approving in all 32 teachers, Clerk and Class IV employees in which the name of Desh Raj was mentioned at Serial No.5 and his qualification was mentioned as B.A., IGD, Bombay. The case of the of the petitioner/appellant is that the Clerk, Ishwar Dayal having gone on leave the appellant was also asked to discharge the duty of Clerk, hence when the Management submitted papers for upgradation of the institution as High School, the appellant was shown as Clerk. He submits that the appellant having been appointed as Assistant Teacher was entitled for payment of salary as Assistant Teacher and showing the appellant as a Clerk in the papers submitted for recognition shall not affect the right of the appellant. He further submits that the appellant was also recommended for obtaining BTC Training for correspondence course which was obtained by the appellant Desh Raj in the year 1983, hence he was fully qualified for the post of Assistant Teacher and was entitled to be paid the salary from the State fund w.e.f. 01/4/1991. He has relied on the report of the DIOS dated 07/4/2003. In the said report the DIOS has mentioned that the appellant was appointed as Assistant Teacher in untrained Grade and in the approval letter, Ramesh Chandra was shown as clerk. The report of the DIOS was also forwarded to the Director of Education by Joint Director Education by letter dated 06/12/2003. Learned counsel for the appellant has referred to the time table of the institution for the year 1991 in which appellant Desh Raj was allocated certain sections for teaching.

Shri Neeraj Upadhyay, learned Additional Chief Standing Counsel for the State refuting the submission of the learned counsel for the appellants contended that while seeking upgradation of Junior High School as High School, appellant was shown as Clerk and upgradation of the High School was obtained showing appellant as clerk, he was rightly approved for payment of salary as Clerk by DIOS vide order dated 16/10/1992 and the appellant is throughout getting the salary from the State fund from 01/4/1991. He submits that the management having not claimed the appellant to be appointed as Assistant Teacher, it is not open for the appellant to claim appointment for payment of salary as Assistant Teacher. He submits that the appellant''s qualification in the papers submitted for upgradation were shown as M.A. without any training qualification. It is further submitted that in the writ petition of Desh Raj, this Court had issued a direction on 04/7/2003 directing the Director Education to examine all the relevant records and decide as to whether the appellant Desh Raj was appointed as Assistant Teacher or Clerk and to decide the matter accordingly. He submits that the Director of Education in pursuance of the order of this Court dated 04/7/2003 passed in writ petition No.20455/1995 summoned all the relevant records and the report from DIOS as well as from the institution and after hearing the petitioner Desh Raj passed a detailed order on 27/3/2004, holding that the petitioner Desh Raj was rightly been paid the salary of Clerk. Director of Education also held that since the papers submitted for recognition of the institution as High School, appellant Desh Raj was shown as Clerk, his approval for payment of salary as clerk was in accordance with law. He submits that the order of the Director of Education was brought on record in the writ petition along with the rejoinder affidavit which is also filed along with the counter affidavit of the State. The letter of management dated 26/7/1979 by which a request for upgradation of Adarsh Vidya Mandir as High School w.e.f. 1981 has also been brought on record.

We have considered the submissions of the learned counsel for the parties and have perused the record.

The principle prayer giving rise to the Special Appeal No.263/2005, is that a mandamus be issued directing the respondents to pay salary to the petitioner as Assistant Teacher in L.T. grade from 01/4/1991 and a prayer for quashing the order of the DIOS dated 02/2/1995 by which the DIOS has approved the appellant Desh Raj for payment of salary as Clerk. The case of the appellant for appointment as Assistant Teacher is based on the appointment letter dated 30/6/1974, issued by the Manager and the approval letter dated 07/9/1979 by the BSA in which letter the appellant Desh Raj was shown as Assistant Teacher. The DIOS in his order dated 02/2/2005 has held that the said approval was against the Rules, 1978, hence it is to be first considered as to what is the effect and consequence of approval dated 07/9/1979 by the BSA.

The statutory rules for appointment and approval by the BSA in the Junior High School are Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Services of Teachers) Rules, 1978 which were enforced w.e.f. 13/2/1978.

Rule 1 of the Rules, 1978 provides for Short title and commencement. Rule 1 of the Rules, 1978 is quoted below:

Short title and commencement.-(1) These rules may be called the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Services of Teachers) Rules, 1978.

(2) These rules shall come into force at once.

Rule 7 of the 1978 Rules provides for Advertisement of vacancy in at least one newspaper having adequate circulation. Rule 9 of the 1978 Rules provides for Selection Committee. A nominee of the District Basic Education Officer is also a member of the Selection Committee. Rule 10 of the 1978 Rules provides for Procedure for Selection. Rule 10 of the 1978 Rules is quoted below:

Procedure for Selection.-(1) The Selection Committee shall, after interviewing such candidates as appear before it on a date to be fixed by it in this behalf, of which due intimation shall be given to all the candidates, prepare a list containing as far as possible the names, in order of preference, of three candidates found to be suitable for appointment.

(2) The list prepared under clause (1), shall also contain particulars regarding the date of birth, academic qualifications and teaching experience of the candidates and shall be signed by all the members of the Selection Committee.

(3) The Selection Committee shall, as soon as possible, forward such list, together with the minutes of the proceedings of the committee to the management.

(4) The Manager shall within one week from the date of receipt of the papers under clause (3) sent a copy of the list to the District Basic Education officer.

(5) (i) If the District Basic Education Officer is satisfied that-

(a) the candidates recommended by the Selection Committee possess the minimum qualifications prescribed for the post;

(b) the procedure laid down in the rules for the selection of Headmaster or assistant teacher, as the case may be, has been followed he shall accord approval to the recommendations made by the Selection Committee and shall communicate his decision to the management within two weeks from the date of receipt of the papers under clause (4).

(ii) If the District Basic Education Officer is not satisfied as aforesaid, he shall return the papers to the management with the direction that the matter shall be reconsidered by the Selection Committee.

(iii) If the District Basic Education Officer does not communicate his decision within one month from the date of receipt of the papers under clause (4), he shall be deemed to have accorded approval to the recommendations made by the Selection Committee.

Rule 11 of the 1978 Rules, provides for Appointment by the Management after receipt of the communication of approval. The scheme of 1978 Rules as indicated above clearly indicates that approval of BSA is contemplated as per the Rules after advertisement of the vacancy, nomination of member in a selection committee and after holding of the interview. The approval order dated 07/9/1979 is not an approval which has been granted in accordance with the Rules 1978. The said letter has been filed as Annexure-2 to the affidavit in the special appeal which does not indicate any detail of any selection but it only contains a list of details of teachers and other employees, and in the bottom an endorsement by the District Basic Education Officer has been made that Serial Nos. 1 to 32 are approved. The approval order dated 07/9/1979 by the BSA is thus not in accordance with the Rules, 1978 and further the approval is of the appointments which were made from the period 01/7/1974 to 30/7/1977, i.e. the appointments which were alleged to be made much before the enforcement of the Rules 1978. The approval order dated 07/9/1979 was thus redundant. The Rules, 1978 does not contemplate approval of the appointments which were made prior to the enforcement of the Rules, 1978 since the Rules, 1978 were only prospective, thus the view of the DIOS that approval dated 07/9/1979 by the BSA was against the Rules, 1978 is correct and the letter dated 07/9/1979 has rightly been discarded.

From the materials brought on the record, it is clear that when the management submitted an application for upgradation before the Madhyamik Shiksha Parishad, the name of teachers and clerk were mentioned in the papers along with their qualifications and date of appointment in the institution. The said details were brought on record in the writ petition as well as in the counter affidavit. It is useful to refer to the details which were mentioned with regard to appellant Desh Raj. In the details submitted with regard to appellant Desh Raj he was mentioned as Clerk and is qualification was shown as only M.A. and the date of appointment was shown as 01/7/1974. The management did not claim the appellant appointed as Assistant Teacher when the papers were submitted for upgradation of the institution. Admittedly, on the above papers submitted by the management the upgradation was granted. The DIOS after receipt of the papers of the Management and after verification submitted the report endorsing the said details on the basis of which the institution was granted grant in aid on 01/4/1991. The DIOS approved the appellant as Clerk and he was being paid the salary as Clerk.

There are two important statutory provisions which needs to be noted in context of Junior High School seeking upgradation as High School, the first provision is the regulations framed under the U.P. Intermediate Education Act, 1921 (hereinafter called the "Act,1921") Chapter VII. Under the heading "Samanya Niyam" following is provided:

Another relevant regulation is Regulation 4 Chapter II of the Regulations framed under the Act, 1921 which is to the following effect is quoted below:

4.Where any Junior High School is recognised as a High School u/s 7, a permanent or temporary teacher of such school, possessing the minimum qualifications under Regulation 1, shall be deemed to be permanent or temporary teacher, as the case may be, of such High School, provided that the services of a temporary teacher who is not selected for appointment in accordance with the provisions of the Act and the regulations shall be dispensed with after giving him one month''s notice in that behalf or one month''s pay in lieu of such notice.

Explanation-Nothing in this regulation shall be construed to mean that High School includes Classes I to V.

The qualification of teachers is provided in Appendix A of Chapter II. For the teachers of Junior classes following is provided under the heading of "other teacher".

Other teacher

1

2

3

4

5

(1)

Teacher for junior Classes (Classes 6,7 & 8)

Intermediate examination and C.T.,B.T.C. or J.T.C. or any other equivalent training qualification.

(2)

Teacher for primary Classes (Classes 1-5) it attached with any any institution of girl''s

High School examination and J.T.C. or B.T.C. or H.T.C. or its equivalent other qualification.

Thus, the aforesaid statutory provisions clearly indicate that for upgradation, the teachers in the Junior High School should be teachers who fulfil the qualifications as mentioned in Regulation (Appendix A).

Regulation 4 Chapter II of the Act, 1921 as quoted above provides that only such permanent or temporary teacher of Junior High School, shall be deemed to be permanent or temporary teacher of the High School who possess minimum qualification as provided under the Regulation 1.

According to the case of the appellant, Desh Raj he had obtained BTC Training course by correspondence in the year 1983, thus at the time when the upgradation was granted by the institution from Junior High School to High School, the appellant had not obtained even the BTC training course by correspondence and he did not possess the qualification to teach even the junior classes i.e. VI to VIII. When the appellant was not fulfilling any qualifications even for teaching junior classes i.e. VI to VIII, he could not have been retained in a High School after upgradation, which may be one of the reason for management to show him as a Clerk. Had the appellant been shown as Assistant Teacher, by virtue of Regulation 4 Chapter 2 of the Act, 1921 he would not have become the teacher of High School.

Learned counsel for the appellants has referred to qualification of Desh Raj, B.A., IGD, Bombay. The IGD, Bombay Diploma certificate has neither been brought on record in the appeal nor in the writ petition and further it has not been explained as to how a person who claims to be in employment of the institution from 01/7/1974 continuously could have obtained IGD, Bombay Diploma which was not a course which could have been obtained by the correspondence course. In any view of the matter, the said qualification of IGD, Bombay is not even claimed in the papers which were submitted for the upgradation of the institution by the Management and the only qualification which is claimed in the said papers is M.A. which qualification cannot be said to be a qualification which may permit retention of the appellant in the High School as per Appendix A of Regulation I of Chapter 2 of the Act,1921. The appellant Desh Raj thus being not eligible to continue as Assisting Teacher after upgradation of the institution, the management at that time did not mention his name as Assistant Teacher and mentioned him only as a Clerk. The DIOS in his order dated 02/2/1995, has also recorded a finding that from the documents of the institution and from the papers submitted by the institution the working of appellant as a Clerk is proved.

In view of the aforesaid, we do not find any error in the decision of the DIOS in not approving appellant Desh Raj as Assistant Teacher and approving him as a Clerk w.e.f. 01/4/1991.

In view of the foregoing discussions, we are of the view that there is no error in the decision of the DIOS dated 02/2/1995, which may warrant interference by this Court in exercise of writ jurisdiction. It is also relevant to note that in pursuance of the order passed by this Court in the Writ Petition No.20455/1995 on 04/7/2003, Director of Education himself had examined all the relevant materials of the appellant and management and called for all the documents and approved the decision taken by the DIOS for payment of salary to the appellant as Clerk vide his order dated 27/3/2004.

We do not find any good ground to interfere with the order of the learned Single Judge dated 18/8/2004, by which the writ petition of the appellant was dismissed. The Special Appeal No. 263/2005 is thus dismissed.

In view of the dismissal of Special Appeal No. 263/2005, Special Appeal No. 264/2005 shall stand dismissed, since there is only one post of Clerk on which the appellant Desh Raj has already been approved and is getting the salary.

Both the appeals are dismissed.

Parties shall bear their own costs.