Upendra Singh vs State of U.P. and Others

Vikram Nath, J.—This petition has been filed under Article 226 of the Constitution of India with a prayer to quash the order dated 22nd July, 2006 passed by the Joint Director of Education (Secondary) Saharanpur Region, Saharanpur whereby claim of the Petitioner for payment of salary has been refused.

Janta Inter College, Lachhera, District Muzaffarnagar a recognized institution under the U.P. Intermediate Education Act, 1921 (hereinafter referred to as the Act) is governed by the provisions of the said Act as also the Rules and Regulations framed thereunder. Petitioner was selected on adhoc basis as Assistant Teacher L.T. Grade in August 1991 after due publication of advertisement. At that time the institution was not on the grant-in-aid list of the State. After the papers were forwarded to the District Inspector of Schools for approval and No. orders were passed thereon appointment letter was issued and the Petitioner was allowed to join in the institution. He started teaching w.e.f. 20th August, 1991. In the year 1998-99 the institution came into grant-in-aid list of the State w.e.f 01.12.1998. Some of the teachers duly appointed and working in the institution were not granted financial approval, after the institution came into the grant-in-aid list. As a result of which series of litigations cropped up. The Petitioner along with five other teachers who had been working in the institution but had not been granted financial approval represented to the authorities.

By order dated 24.06.2000 the Joint Director of Education (Secondary) Saharanpur declined to grant approval on the ground that the Petitioner and other teachers were appointed at the time when the State Government had imposed ban. Two writ petitions were filed against the said order dated 24.6.2000. Petitioner Upendra Singh and one Onkar Singh filed Writ Petition No. 30862 of 2000 whereas Mitra Pal, Lokendra Kumar and Sunil Kumar jointly filed Writ Petition No. 34517 of 2000. The only difference in the two set of teachers was that the Petitioner had been appointed u/s 18 of the Act against substantive vacancy whereas the other set of Petitioners had been appointed on adhoc basis against short term vacancies under the Removal of Difficulties Order 1981. Petitioners were granted an interim order on 1.8.2000 in the Writ Petition No. 30862 of 2000 whereby the Respondent No. 3 was directed to pay salary to both the Petitioners notwithstanding the order dated 24.6.2000. According to the learned Counsel for the Petitioner although salary was not paid to the two Petitioners however the said writ petition was allowed vide judgement and order dated 15.12.2004 on the ground that the ban did not effect the appointment of the Petitioners. The Court further directed the authorities to pass fresh orders. The operative portion of the order dated 15.12.2004 passed in Writ Petition No. 30862 of 2000 is quoted hereunder:

The writ petition is consequently allowed. The order dated 24.6.2000, passed by the Joint Director of Education is set aside. He is required to decide the matter afresh, after taking into account the matter of approval of Petitioners appointments, he will give opportunity to the Petitioners and record finding with regard to the availability of vacancies eligibility and the procedure followed in making the appointment. In case the Petitioners were validly appointed, they shall be considered for inclusion in the list of approved teachers for payment of salary. The required consideration shall be taken as expeditiously as possible, and in any case within there from the date of communication of this order on the Joint Director of Education, Saharanpur Region, Saharanpur.

Petitioner represented to the authorities and favourable reports were submitted by the District Inspector of Schools. However by the impugned order dated 22nd July, 2006 the Joint Director Education (Secondary), Saharanpur has declined to grant financial approval to the appointment of the Petitioner for the following reasons:

Despite the ban imposed by the Government appointment of the Petitioner had been made in August, 1991.

No. approval was taken from the Directorate with regard to appointment nor financial approval was taken from the Accounts Officer as such there was violation of provisions contained under the Payment of Salaries Act and therefore, Petitioners were not entitled to any salary.

The present petition has been filed against the aforesaid order of the Joint Director by the Petitioner alone. Apparently Sri Onkar Singh has left the institution.

Before proceedings further it would be relevant to mention here that the other writ petition filed by Mitra Pal and Ors. being Writ Petition No. 34517 of 2000 was allowed by this Court by judgement and order dated 18th July, 2001 and this Court after quashing the order dated 24th July, 2000 held that the Petitioners would be treated to have been approved in respect of their appointments and would be dealt with accordingly. The relevant extract of the judgement dated 18.07.2001 is quoted hereunder:

In the circumstances there is a case of deemed approval of the appointment of the Petitioners and the ground given in the impugned order that the Petitioners cannot be taken on the payment list under the Payment of Salaries act as their appointment had not been approved by the DIOS is factually and legally not correct.

In the circumstances the impugned order dated 24.6.2000 is quashed. The writ petition is allowed. The Petitioners will be treated to have been approved in respect of their appointments and will be dealt with accordingly.

The State filed a Special Appeal against the judgment dated 18th July, 2001 which was registered as Special Appeal No. 60 of 2003. The said appeal has since been dismissed by order dated 12th July, 2010, a copy of the order dated 12th July, 2010 has been placed on record and the said order of the Division Bench is quoted hereunder:

We have heard learned Counsel for the parties.

We find that the Respondents were appointed on Ad-hoc basis against short term vacancies, for which approval was sought for from the District Inspector of Schools. As there was No. reply received with the prescribed period of one week, later on the appointment letters were issued by the Management as it stood deemed that the appointments have been approved under the relevant provisions.

We, after having examined the records, do not find any error in the impugned judgment.

Considering the fact that the Respondents are continuing in service, the case of the Respondents can be considered for regularization according to law.

With the aforesaid observations, the special appeal is disposed of.

It would also be relevant to state here that after the judgement dated 18th July, 2001 as Respondents were not complying with the same contempt application was filed. However, later on the authorities by order dated 16th April, 2005 granted financial approval and started paying the salary to Mitra Pal and two other teachers, copy whereof has been annexed as Annexure No. 23 to the writ petition. If further mentions that the said teachers would also be entitled to salary w.e.f 01.12.1998 the date on which the institution was taken on the grant-in-aid list for which the approval was required from the Director of Education(Secondary).

In the above back drop, claim of the Petitioner is that he would also be entitled to protection of Payment of Salaries Act and would be entitled to salary from the date from which the other teachers have been getting their salary after the institution came into the grant-in-aid list.

I have heard learned Counsel for the Petitioner, Sri Awadh Narain Rai and the learned Standing Counsel representing State Respondents and Sri Amit Saxena, Advocate, representing Respondent No. 5 / Committee of Management.

The Committee of Management in its counter affidavit has supported the case of the Petitioner.

In the opinion of the court, the writ petition deserves to be allowed for two reasons firstly the impugned order is not sustainable in law and secondly the other set of teachers have been granted approval and also salary from 01.12.1998.

The order dated 22nd July, 2006 is based upon inconsistent facts and in fact upon facts which are not applicable in the case of the Petitioner. First ground for not granting approval of the appointment is the ban imposed by the State Government, which has already been held to be invalid in law. Therefore, the appointment could not be faulted on that ground. Second ground with regard to the financial approval had not been taken under the provisions of 1971 Act is factually incorrect. The appointment had been made in the year 1991 whereas the institution came into the grant-in-aid list w.e.f 01.12.1998 and therefore, 1971 Act would apply to the institution only upon the institution being taken into the grant-in-aid list and not before.

The other reason for allowing the writ petition is that other similarly situated teachers, the writ petition filed by them had already been allowed by the Writ Court and the Division Bench has already dismissed the Special Appeal of the State against the said judgement. Further those teachers are getting their salaries as per the order of the Joint Director Education (Secondary) dated 16.4.2005 and that too with effect from 01.12.1998.

In view of the above, the writ petition succeeds and is allowed with costs. The impugned order dated 22nd July, 2006 passed by the Joint Director Education (Secondary) is hereby quashed. The appointment of the Petitioner deserves approval. Further the Petitioner would be entitled to the salary w.e.f 01.12.1998 the date on which institution has been taken into the grant-in-aid list. Educational authorities to pass appropriate orders forthwith, ensure payment of current salary accordingly and further ensure payment of arrears within a period of three months from the date of production of certified copy of the order.