State Of U.P. Thru ... vs Vishwa Nath Tewari & 5 Ors.(S/S ...
2011 Latest Caselaw 2181 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

(Reserved)
 
Special Appeal No. 633 (S/B) of 2006
 
State of U.P. and others           versus           Vishwa Nath Tewari and others
 

 
Connected with
 

 
2. 	Special Appeal No. 116  (S/B) of 2007
 
	State of U.P. and others   versus  Rama Shankar Dubey and another
 

 
3.	Special Appeal No. 424 (S/B) of 2007
 
	State of U.P. and others   versus  Rajendra Prasad Mishra and another
 

 
4.	Special Appeal No. 425 (S/B) of 2007
 
	State of U.P. and others   versus  Shant Lal and others
 

 
5.	Special Appeal No. 426 (S/B) of 2007
 
	State of U.P. and others   versus  Ram Ujagir Tewari and others
 

 
6.	Special Appeal No. 427 (S/B) of 2007
 
	State of U.P. and others   versus  Vijay Dutt Pandey and another
 

 
7.	Special Appeal No. 428 (S/B) of 2007
 
	State of U.P. and others   versus  Om Prakash Shukla and another
 

 
8.	Special Appeal No. 429 (S/B) of 2007
 
	State of U.P. and others   versus  Jagdish Misra and others
 

 
9.	Special Appeal No. 430 (S/B) of 2007
 
	State of U.P. and others   versus  Anil Kumar Misra and another
 

 
10.	Special Appeal No. 431 (S/B) of 2007
 
	State of U.P. and others   versus  Suresh Dutt Pandey and another
 

 
11.	Special Appeal No. 432 (S/B) of 2007
 
	State of U.P. and others   versus  Om Prakash Misra and others
 

 
12.	Special Appeal No. 433 (S/B) of 2007
 
	State of U.P. and others   versus  Kripa Shanker Pathak and another
 
				And
 
13.	Special Appeal No. 434 (S/B) of 2007
 
	State of U.P. and others   versus  Shiv Shankar Singh and others
 
				
 

 
Hon'ble Pradeep Kant, J.

Hon'ble Vedpal, J.

(Delivered by Hon'ble Pradeep Kant, J.)

This bunch of special appeals challenges the order dated 10.3.2006, passed by learned Single Judge, by means of which, direction in the nature of mandamus has been issued commanding the respondents of the writ petition, namely, the appellants herein, to regularize the services of the respondents with all consequential benefits, with a further direction that payment of salary etc. would also be made to the respondents in their respective grades with effect from 1.4.1991 including arrears.

Nirmal Brahm Higher Secondary School, Madhupur, Ambedkar Nagar, hereinafter referred to as the School, was initially established as a Junior High School, but in the year 1981 it was upgraded upto the level of High School and recognition was granted on 18.12.1981. The school was taken on grant-in-aid vide Government Order dated 13.11.1991 with effect from 1.4.1991.

Once the school was recognized, provisions of U.P. Intermediate Education Act, 1921, hereinafter referred to as the Act, were made applicable. Under the provisions of Section 7-A of the said Act, the recognition was given to the School, which permitted the School to make appointments in consonance with the provisions of the Act. On the School being taken on grant-in-aid, the teachers, whose names were mentioned in the Management Return (M.R.) and who were working against the sanctioned posts, started getting their salary under the provisions of the U.P. High School and Intermediate (Payment of Salary of Teachers and Other Employees) Act, 1971, hereinafter referred to as the Act, 1971.

According to the appellants, there were only 10 duly created and sanctioned posts, namely, one post of Head Master, six posts of Assistant Teachers, one post of Clerk and two posts of Peons. Their further case is that for the first time, the management moved an application on 20.2.2006 for creation of posts with effect from the date when the School was taken on grant-in-aid, but without the posts being created and sanctioned by the competent educational authority, the School appointed a large number of teachers and non-teaching staff only because the School was recognized. It was only in the year 1996 that some teachers filed writ petitions claiming regularisation in service and payment of salary in the given grade from the date the School was taken on grant-in-aid and thereafter some more petitions were filed in the year 1997.

The respondents came up to this Court by filing writ petitions, alleging that the posts were created under the orders of the Deputy Director of Education and that they had been continuously working right from the date of their initial appointment, which was either sometime in the year 1984 or 1985 in case of different private respondents but they were neither being paid salary nor were being treated as regularized. They urged that the school was permitted to raise the strength of different classes by opening new sections, for which they alleged that prior to 1983, there were only 8 sections from classes 6 to 10, but in the year 1985, total number of sections in different classes was raised to 23. In the year 1987, the District Inspector of Schools had permitted the School to add two new sections in each class; thus, total number of sections in different classes from Class 6 to 10 became 33. The year-wise details were given in the writ petitions.

The respondents further alleged that the Deputy Director of Education, vide his order dated 7.7.1987 sanctioned 13 new posts in C.T. Grade of teachers and thus, 31 new posts were created. Earlier, there were only 13 posts viz. 4 posts in L.T.grade and 9 posts in C.T.grade. As a result of this increase, total number of sanctioned posts in the School became 45 i.e. 17 posts in L.T. Grade and 27 posts in C.T.grade plus one post of Principal. This order dated 7.7.1987, said to have been passed by the Deputy Director of Education, was filed by the respondents as Annexure-16 to the writ petition.

The respondents also filed orders of their appointments, joining reports and experience certificates. Annexure-16, referred to above, was said to have been sent by the Deputy Director of Education to the D.I.O.S and it was also said that vide this communication, the Deputy Director of Education had sanctioned creation of posts of teachers. Annexure-18 was the letter of D.I.O.S dated July 14, 1988, addressed to the Manager of the School, through which it was said that the D.I.O.S had sanctioned the appointment of teachers after considering the various facts.

The main argument of the respondents is that in this communication, the names of teachers including the respondents, who were already working, had been mentioned, which fortifies their case that they were regularly appointed in the school and were working as such since beginning and also on the date when the school came on the list of grant-in-aid.

Since a specific plea was taken by the State authorities in the counter affidavit that the documents regarding the creation of posts and sanction thereof were forged documents, this Court vide its order dated 25.4.1997 directed the Director of Education to conduct an enquiry and submit his report on the controversy which had arisen on account of these two communications, as referred to above.

The Director of Education conducted the enquiry and submitted his report on 30.6.1997 after giving opportunity to all concerned and found that the orders relating to creation of posts and approval of appointments were forged. He has observed that the aforesaid documents, Annexures 16 and 18, do not bear the signatures of the authorities, nor did they ever exist nor were at any point of time sent or dispatched by the office, from where, it is said, they had been sent nor were received.

In fact, this report of the Director of Education dated 30.6.1997 was placed before the State Government and on receipt of the said report, the State Government cancelled its earlier order dated 23.9.1997 on 30.10.2007. The order dated 30.10.2007 passed by the State Government has not been challenged.

Before proceeding further, it would be relevant to mention that an F.I.R under Sections 467/468/471/419/420 IPC was also lodged against the Manager of the School on 23.4.2001 for the alleged forgery, which was registered as criminal case no. 47 of 2001. The said case is still pending.

The learned Single Judge, though on the one hand, rejected the plea of the respondents that the report of the Director of Education should be rejected as it was not correct and suffered from various illegalities and irregularities, but on the other hand, making certain observations and pointing out some lacuna in the report, which are not very relevant to be repeated here, held that the respondents were continuously working in the school right from the year 1984 or 1985, and the school having been taken on grant-in-aid and their names having also been mentioned in the M.R sent by the School, the factum of respondents continuously teaching/working cannot be disputed and that in view of the fact that new sections were permitted to be opened and added, the posts were taken to be duly created and sanctioned, as the documents brought on record by the respondents show that different sections were allowed to be increased at different times and that if the authorities had permitted for opening and adding new sections in each class, increase in the strength of the teaching staff was a necessary consequence. He also observed that the report of the Director of Education dated 30.6.1997 shows that the conclusions in the report on points no. 2 and 3 had been drawn on the basis of inquiry on point no. 1 only. On other points, neither enquiry appeared to have been made nor other records appeared to have been examined and, therefore, he found merit in the contention of the respondents that the Director of Education should have also examined other records, some of which were filed with the petition and of some, details were given in various paras of the writ petition.

The law is well settled. The management of the school cannot appoint a teacher or any staff including non-teaching staff unless the post has been created and duly sanctioned. Mere grant of permission to open a new section or recognition of a new subject for imparting instructions would not be sufficient to presume that the corresponding post also stands created or sanctioned. There is a procedure prescribed under the Act for creation of post and sanction thereof, which normally has to be followed.

In the present case, the Director of Education was the competent authority to sanction such a post. Of course, the request should have been made by the management of the school giving reasons and justification for creation and sanction of the posts. This would include giving of all details regarding the permission of opening new sections, recognition of new subjects which are sought to be taught, the strength of students and the present staff besides other details as may be required under the Act and the Rules. The view aforesaid finds support from the Full Bench decision of this Court in the case of Gopal Dubey versus D.I.O.S, Maharajaganj and another, reported in 1999 (17) LCD 438. Reference can also be made to the cases- AIR 1995 SC 1121, Director of Education and others versus Gajadhar Prasad Verma, 1991 (1) UPLBEC 1, M.B.Majumdar versus Union of India and 2001 (1) AWC 465, Mohammad Fuzail Ansari versus State of U.P and others.

Creation of post or sanction thereof is not in the domain of the management. When a statute provides a particular thing to be done in a particular manner, the same has to be done in that manner and in no other manner. Even presuming, though disputed by the appellants that certain correspondence had taken place between the School management and the educational authorities for adding new sections and recognition of new subjects and also for creation of some posts and sanction thereof, yet the management was not at liberty to take such posts as created and sanctioned, muchless duly created or sanctioned by the competent educational authority. If any appointment has been made by the management of the school on posts of teaching and non-teaching staff, it would be their personal liability to make payment of salary to such staff or teachers, but the salary cannot be paid to them under the Act, 1971.

This apart, in the instant case it having been found by the Director of Education that letters of creation of the posts and approval of appointments were forged, there would have been no occasion for the learned Single Judge to take a different view by giving reasons which are not tenable. The learned Single Judge, though expressed his view that the validity of the report cannot be looked into by this Court under Article 226 of the Constitution of India, therefore, the documents filed by the respondents have to be taken as forged, but in the latter part of judgment, he observed that no efforts were made by the appellants to examine and verify the correctness or genuineness of the said documents and thus he accepted the contention of the respondents that they were duly appointed teachers against the existing sanctioned posts. This was not the scope of the writ petition.

Learned counsel for the appellants has also brought to the notice of the Court that the plea of the respondents that the posts were created and sanctioned, stands belied by the fact that for the first time, the management of the School had requested by moving an application on 20.2.2006 for creation of posts with effect from the date when the School was taken on grant-in-aid i.e. 1.4.1991. Their argument is that the aforesaid application of the management dated 20.2.2006 itself speaks the truth that prior to that, no additional posts had been created nor sanctioned in the School and, therefore, the State Government could not be held responsible for making payment of salary to the teachers who were illegally appointed by the committee of management.

We, thus, for the reasons given above, are of the considered opinion that the respondents cannot be treated to have been legally appointed by the management of the School on their respective posts so as to entitle them for regularisation in service and payment of salary in the given grade under the Act, 1971 from the date when the school was taken on the list of grant-in-aid. Directions issued to the contrary by the learned Single Judge are liable to be set aside, which are hereby set aside.

Before parting, we would like to observe that in view of the request made by the management of the School for creation and sanction of posts, the competent educational authorities may consider the same and if no such request has yet been sent, it would be open for the management of the School to make the same. The educational authorities including the Director of Education, on such a request being made, may consider the requirement of creation of additional posts and sanction thereof as per the norms prescribed and the rules/Government Orders, if any, applicable and while doing so, it be also considered whether any of the private respondents or all of them can be absorbed or regularized/appointed afresh on the posts if any created and sanctioned as per rules.

The Special Appeals stand allowed.

LN/-

31.5.2011