Subash Yadav vs State of U.P. and Others

D.P. Mohapatra, C.J.—In these appeals, filed under Chapter VIII, Rule 5 of the Rules of Court, the Appellants have assailed the judgment rendered by a single Judge of this Court on 7.12.1995 in Writ Petition No. 16902 of 1992 dismissing the writ petition. The operative portion of the judgment reads:

In view of the above, the instant petition is devoid of any merit and the Petitioners are not entitled for any relief whatsoever. The petition is dismissed accordingly.

However, it is clarified that under the impugned order of Deputy Director of Education dated 10.9.1992 those persons who have been found eligible for payment of salaries under the U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 shall not be adversely affected by this order.

The teaching and non-teaching staff of Bhagwan Parasuram Dham Laghu Madhyamik Vidyalaya Sohnag, Salempur, district Deoria, 38 in number, filed the writ petition seeking a writ of mandamus directing the Respondent to pay salary to them alongwith arrears from 2.4.1991, that is, the date on which the Institution was brought on the grant-in-aid list of the State Government. The State of U.P. through Secretary, Education Department, Government of Uttar Pradesh, Lucknow, the Deputy Director of Education, VIIth Region, Gorakhpur, the District Inspector of Schools, Deoria, the Committee of Management of the College and its Principal were arrayed as opposite-parties in the case. The gist of the case of the writ Petitioners was that they were appointed on regular basis in posts sanctioned on different dates and their appointments were approved by the District Inspector of Schools. At the time of their appointment, the Institution was not receiving any grant-in-aid from the State Government. It became an aided Institution with effect from April, 1991. On the Institution becoming aided, the writ Petitioners claimed payment of salary by the District Inspector of Schools under the provisions of U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as the Act). Since the authorities paid no heed to their claim, the writ Petitioners filed the writ petition seeking the relief noted above.

During the pendency of the writ petition, this Court by order dated 13th July, 1992, directed the Deputy Director of Education, VIIth Region, Gorakhpur to decide the claim of salary of the writ Petitioners. In pursuance of the said order, the Deputy Director of Education by an order dated 10th September, 1992, accepted the claim for salary of 19 writ-Petitioners out of 38 while rejected the claim in that behalf of remaining 19 on the ground that their appointments were made after 14.10.1986, the cut-off date prescribed u/s 7AA of the U.P. Intermediate Education Act, 1921. The said order was filed by the writ Petitioners as Annexure 1 to the supplementary-affidavit in the writ petition. That is the reason why the learned single Judge, while dismissing the writ petition, has made it clear that the order will not affect the case of the 19 writ Petitioners who were held by the Deputy Director of Education to be entitled to payment of salary under the Act. The remaining 19 writ Petitioners, to whom relief was declined, are the Appellants in these three Special Appeals.

The learned single Judge, as the judgment shows, has dismissed the writ petition mainly on the ground that the writ-Petitioners have failed to establish that they were validly appointed to the posts. In this connection, it will be relevant to note a few observations made by the learned single Judge:

Shri T. N. Tewari, learned Counsel for the Petitioners has vehemently challenged the finding of fact reached by the Deputy Director of Education. Impugned order makes it clear that Petitioners failed to produce any evidence before the Deputy Director of Education regarding their employment, including the letters of appointment or any material disclosing the procedure and formalities followed while appointing the Petitioner. Confronted with this fact situation Mr. Tewari relied upon chart filed as Annexure 5 to the Supplementary affidavit before this Court. When the said chart was scrutinised thoroughly, I found the most distressing and purturbing facts from it. Some Petitioners had been shown in the chart as possessing the qualifications of B. Sc., B. Ed. and other eligible qualifications at the relevant time of their appointment but they were minor on the said date. Mr. Tewari could not furnish any explanation whatsoever for filing such forged and fabricated document before this Court. No other evidence was produced before me also showing the appointment letters etc. of the Petitioners.

No separate evidence has been filed before this Court, for such Petitioners and it is not possible to place any reliance on the said chart. It is, however, beyond my imagination as to why the Petitioners have not produced the said documents to prove their case, before this Court, particularly when such crystal clear observation had been given against them by the Deputy Director of Education. Mr. Tewari, did not ask the Court to give some time to place the said material before this Court, instead asked to remand the case to the Deputy Director of Education to examine afresh. I could not find it convincing as there is nothing on record to examine except the said chart, which is certainly not worth putting any reliance on it. There is no compelling circumstance to remand the case.

Thereafter the learned single Judge proceeded to discuss the point on merits of discretionary jurisdiction and equitable jurisdiction under Article 226 of the Constitution in favour of writ-Petitioners, who have not approached the Court with clean hands and referring to the judgments of the Supreme Court in the cases of Andhra Pradesh State Financial Corporation Vs. M/s. GAR Re-Rolling Mills and another, ; State of Maharashtra and Others Vs. Prabhu, ; Chandra Shashi Vs. Anil Kumar Verma, ; Dhananjay Sharma v. State of Haryana (1995) 3 SCC 775; Ramjas Foundation and Ors. v. Union of India and Ors. AIR 1993 SC 582 ; G. Narayanaswamy Reddy (dead) by L.Rs. and another Vs. Government of Karnataka and another, ; K.R. Srinivas Vs. R.M. Premchand and Others, and Gurdeep Singh Vs. State of Jammu and Kashmir and others, , held that the writ petition was devoid of merits and the writ Petitioners were not entitled for any relief whatsoever.

The thrust of the submissions of Sri T. N. Tewari, learned Counsel for the Appellants, was that the learned single Judge erred in rejecting the claim of salary of the Appellants on the ground of invalidity of their appointments inasmuch as validity or otherwise of their appointments was never an issue in the case. According to Sri Tewari, neither the Respondents had raised the question of validity of the appointments nor was it a ground stated in the order of the Deputy Director of Education dated 10th September, 1992 (Annexure 1 to the supplementary-affidavit) for declining to accept the claim of salary of the Appellants. Sri Tewari further submitted that the main reason stated in the order of the Deputy Director of Education for rejecting the claim of the Appellants was that their appointments were made after 14.10.1986, the date on which Section 7AA was introduced in the U.P. Intermediate Education Act, 1921 by U.P. Act 18 of 1987; therefore, the Appellants advanced arguments on the applicability or otherwise of Section 7AA in their case. According to Sri Tewari, Section 7AA, which makes provision for employment of part-time teachers or part-time instructors, has no application to the Appellants since they are neither part-time teachers nor instructors but hold regular and substantive appointments. Sri Tewari further pointed out that the learned single Judge in his judgment has not recorded any finding on the question of applicability or otherwise of Section 7AA, which was the main ground urged before him; instead he has proceeded to consider the case on an altogether new point, that is, validity of appointment of the Appellant and has made observations, gist of which has been noted above, which, submits Sri Tewari, are wholly uncalled for. Lastly, Sri Tewari submitted that if the learned single Judge had any doubt about the validity of the Appellants'' appointments, then he should have decided the question of applicability of Section 7AA to the case and remitted the matter to the Deputy Director of Education.

Learned Counsel appearing for Respondents No. 1 to 3 contended that while sanctioning the posts held by the Appellants, it was made clear by the concerned authority that liability for the salary will be borne by the management of the Institution and, therefore, in view of the said condition, the Appellants are not entitled to claim benefit under the Act.

Learned Counsel appearing for Respondent No. 4. the Committee of Management of the Institution, has supported the case of the Appellants.

In view of the contentions raised by Sri T. N. Tewari, we perused the record of the writ petition to ascertain whether any of the par ties in the case had raised the issue of invalidity of the appointments of the Appellants in the posts in question. We did not find any such issue being raised either in the counter-affidavit filed on behalf of the State or the counter-affidavit filed by the management of the Institution. A group of 12 applicants claiming to be approved staff of the Institution, had filed an application alongwith an affidavit for being impleaded in the case, in which the question of validity of the appointments of the Appellants was raised; but the said impleadment application was rejected by order dated 22.3.1993 holding that the applicants had failed to establish that they were necessary parties in the case. Therefore, Sri Tewari is right in contending that the question of validity or otherwise of the appointments of the Appellants was not an issue raised in the case before the learned single Judge. Further, the Deputy Director of Education in the order dated 10th September, 1992 has not stated the same as a reason for declining to accept the claim of salary of the Appellant and has left the question of validity of appointment open to be decided subsequently. The further contention raised by him is that in case, the learned single Judge had any doubt about the validity of the Appellants'' appointment, then it would have been appropriate on his part to remit the matter to the Deputy Director of Education with a direction to pass suitable order after holding necessary enquiry. The question of appointment is essentially a question of fact and it is to be decided on the basis of the materials available with the Appellants and the management of the Institution. The High Court in proceedings under Article 226 of the Constitution was not the appropriate forum for determining such a question. The concerned authority of the Department, that is, the Regional Deputy Director of Education, VIIth Region, Gorakhpur, should have been asked to take a decision in the matter.

Coming to the question of applicability of Section 7AA of the U.P. Intermediate Education Act, suffice it to say that the said section has no application to the case of the writ Petitioners and indisputably they are not holding posts of part-time teachers or instructors. On a bare reading of the Section, it is manifest that the provision applies only to cases of part-time teachers and instructors. Therefore, the reason stated by the Deputy Director of Education in the order dated 10th September, 1992 that the 19 posts held by the Appellants having been sanctioned after 14.10.1986 (9 posts on 2.12.1988 and 10 posts on 7.11.90), that is, the date on which section was introduced by way of amendment in the U.P. Intermediate Education Act, they could not claim salary under the Act is wholly without basis. The contention raised by the learned Standing Counsel that since in the order sanctioning the post held by the Appellants, a condition had been imposed that liability for payment of salary will be borne by the management of the Institution and, therefore, the claim of the Appellants for salary under the Act cannot be entertained, is also not tenable. As noted above, the posts in question were sanctioned in 1988 and 1990 when the Institution was not receiving any grant-in-aid from the State; therefore, the State Government bearing liability of salary of any of the posts did not arise and that position was reiterated in the sanction orders but the situation changed in April. 1991 when the Institution became entitled to receive grant-in-aid from the State Government and was brought within the fold of aided educational institutions. Therefore, it is trite to say that merely because in the sanction order such a stipulation was made, the Appellants will not be entitled to the benefit of the statutory provisions in the Act.

On giving our anxious consideration to the facts and circumstances of the case and the contentions raised on behalf of parties, it is our considered view that the Regional Deputy Director of Education, VIIth Region, Gorakhpur, the Respondent No. 2, should consider the question of entitlement of the 19 Appellants for payment of salary under the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 giving opportunity to the Appellants and the management of the Institution, Respondent No. 4, to place relevant materials in support of the appointments of the Appellants and if he finds that the Appellants are entitled to the benefit of payment of salary under the Act, the arrears due to the Appellants, if any will be paid within three months from the date of his order. The Deputy Director of Education will complete and exercise within three months from the date of production of a certified copy of this order before him. It is ordered accordingly.

The Special Appeals are disposed of with the above order. Respective parties shall bear their own costs in all the cases.