Uma Shanker Yadav vs State Of U.P. And Others
2011 Latest Caselaw 4380 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 

 
Case :- WRIT - A No. - 38656 of 2006
 

 
Petitioner :- Uma Shanker Yadav
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- A.K. Shukla
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Sudhir Agarwal, J.

1. Aggrieved by the order dated 10th July 2006 (Annexure 6 to the writ petition) passed by Director of Education (Secondary), U.P. Lucknow, respondent no.2, this writ petition under Article 226 of Constitution of India has been filed by the petitioner Uma Shankar Yadav seeking a writ of certiorari for quashing the same. He has also sought a writ of mandamus commanding the respondents not to interfere in the working of petitioner as Assistant Teacher and pay entire arrears of salary w.e.f. July 1995 till date with interest @ 12% per annum.

2. By means of impugned order the respondent no.2 has held that the petitioner was never appointed on the post of Assistant Teacher in the institution in question legally and, therefore, his claim for salary from the State exchequer cannot be accepted.

3. The facts giving rise to the present dispute, as stated in the writ petition, are being stated briefly as under.

4. Naveen Adarsh Higher Secondary School situated at Isari Salempur, District Ballia (hereinafter referred to as "the School") was a Junior High School. It was upgraded as High School on 12th August 1977.

5. As Junior High School, it was not receiving any grant-in-aid and, therefore, salary to staff of the school used to be paid by management from its own resources.

6. The committee of management passed a resolution on 1st January 1978 approving recommendations of Selection Committee for appointment of 3 Assistant Teachers, (L.T. Grade), 10 Assistant Teachers (C.T./B.T.C. Grade), one Clerk and certain class IV employees. The petitioner was already working pursuant to appointment letter dated 20th July 1977. After approval of District Basic Education Officer (hereinafter referred as the "DBEO") granted on 20th August 1977, he was also absorbed.

7. The School was brought on grant in aid list w.e.f. 1st January 1983 but salary was not paid to the petitioner since his name was not shown in the list of teaching staff approved for payment of salary from State Exchequer.

8. The petitioner preferred writ petition no. 1117 of 1985. This Court after noticing the facts as stated by the petitioner, disposed of vide judgment dated 30.08.1994, observing as under:

" The matter required investigation. It is further admitted to the petitioner that ten posts of Assistant Teachers in C.T./B.T.C. Grade were sanctioned and he has annexed the copy of the letter of Director of Education dated 28th November 1977 as Annexure 1 to the rejoinder affidavit.

The matter has to be re-examined keeping in view regulation 4 of chapter II referred to above after giving opportunity of hearing to the petitioner and to such other persons who are affected.

The petitioner shall make a fresh representation a certified copy of this order and a true copy of the writ petition before respondents No. 1. Respondent No.1 shall pass a fresh reasoned order keeping in view the observation made above in accordance with law within three months from the date of making representation as stated above."

9. The matter thereafter was examined by District Inspector of Schools (for short "D.I.O.S."). He submitted report on 9th March 1998 to respondent no.2 stating that petitioner was wrongly omitted in the list of teaching staff, submitted at the time of bringing the School on grant-in-aid inasmuch as, he was allowed leave without pay at the relevant time and, therefore, sought appropriate direction from respondent no.2. In reference thereto, the Joint Director, Azamgarh Region, sent a letter dated 23rd October 1999 directing D.I.O.S. to look into the matter at his level and if the petitioner was appointed in accordance with law, should be paid salary.

10. Thereafter again the petitioner came to this Court in writ petition no. 35009 of 2004 alleging that nothing has been done by D.I.O.S. despite letter of Joint Director, Azamgarh referred above. The said writ petition was disposed of on 23rd August 2005 with the following directions:

"In view of the aforesaid circumstances, it would be appropriate that the matter of the petitioner is also referred by the respondent no.2 District inspector of schools Ballia forthwith to the Director of Secondary Education Allahabad for appropriate order. The District Inspector of schools shall forward the entire papers pertaining to the petitioner to the Director of Education within 15 days from the date of production of the certified copy of this order before him. The Director of Education thereafter shall proceed to examine the contention of the petitioner and pass orders within 6 weeks from the date of receipt of the documents from the district Inspector of schools in accordance with law.

With the aforesaid directions the writ petition is disposed of. "

11. Pursuant to this judgment, impugned order has been passed by Director of Education, (respondent no.2) holding that petitioner was not appointed in accordance with law and, hence was not entitled to payment of salary from State Exchequer.

12. A supplementary affidavit dated 26th July 2006 has been filed. Annexure SA-1, places on record appointment letter dated 9th July 1977 whereby Manager of the School appointed petitioner on the past of Assistant Teacher, B.T.C. subject to approval by DBEO. Another order dated 20th August 1977 has been filed as Annexure SA-2 which is said to be the letter of approval issued by DBEO. Photo copy of the original letter dated 20.08.1977 has also been filed.

13. A counter affidavit has been filed on behalf of respondents no.2 and 3 sworn by Sri Chhotey Lal, Principal, Government Inter College, Ballia having additional charge of D.I.O.S. Ballia. It says that School was upgraded as High School on 12th August 1977 and, therefore, on 20th August 1977 the DBEO had no jurisdiction or authority to grant approval to the teaching staff of the School. It fell within the domain of D.I.O.S. It also says that financial survey of School was made in 1987-88 and it transpired that there were 14 sanctioned teachers including Headmaster and four posts above 14 sanctioned posts were declared surplus. The name of petitioner appears to have been manipulated/included in the list though initially it was not there.

14. Salary was allowed to be paid to the petitioner for 7 months in 1994-95 against the post vacated by another teacher in 1980 but this payment (allegedly erroneous) continued only for seven months whereafter it was stopped. Such payment was made under the order of one Sri Ram Ganesh who was working as City Magistrate at the relevant time and had no authority to pass such order. The factum of receiving of documents relating to payment of petitioner and issuance of approval by D.I.O.S. is denied. It is also said that in respect of appointment of teachers in Secondary School at District Ballia, this Court had passed order for general investigation through CBCID and in the investigation made by the said Agency, petitioner's name had not been mentioned in the list of teachers whose appointments have been found validly made.

15. In the rejoinder affidavit, petitioner has given details of 14 teachers working in the school against sanctioned posts including his name therein. It is said that letter of approval issued by DBEO on 20th August 1977 was in respect of several teachers, but except the petitioner, for other teachers the same has been treated valid by respondents and they are being paid salary. Only the petitioner has been discriminated and singled out.

16. Since new facts were stated in the rejoinder affidavit, the respondents were granted opportunity to file supplementary counter affidavit which has been filed on 29th January 2011 sworn by one Madhavji Tiwari, D.I.O.S., Ballia. In general he has reiterated what is stated in the earlier counter affidavit but in respect to para 5 of the rejoinder affidavit, evasive reply has been given in para 13 without clarifying the facts.

17. Learned counsel for the petitioner vehemently contended that the respondents on the one hand have admitted that there were 14 sanctioned posts in the school, which were duly filled in, yet it has illegally omitted petitioner's name and this fact is admitted in the report submitted by D.I.O.S. but the same has been ignored arbitrarily by respondent no.2 in the impugned order. He contended that in 1977 there was no provision requiring prior approval of DBEO for appointment of a teacher in a Senior Primary School i.e., Junior High School and, therefore, whether appointment of petitioner was approved by the DBEO or not or whether rightly approved or not, would make no difference since for a Junior High School no such requirement existed under any provision of the statute. He lastly contended that since he is working in the school concerned since 1977 and now is at the verge of retirement, he ought not be denied his right of salary and other benefits. Hence, the impugned order deserves to be quashed.

18. Per contra, learned counsel for respondents submits that the appointment of the petitioner having not been made in accordance with law, he has no right to claim salary from State Exchequer and all the aspects have been considered in detail by the Director of Education in the impugned order, hence no interference is called for particularly when the petitioner has failed to point out any perversity therein.

19. From the rival submissions as also perusal of record the facts which are found to be undisputed are that the School was upgraded on 12.08.1977. Till then it was a Junior High School. As a Junior High School the recruitment and conditions of service of teaching or non-teaching staffs have not been shown to be regulated or governed by any statutory provision till 12.08.1977 though the School was recognised by Board of Basic Education governed by provisions of U.P. Basic Education Act, 1972. Since it was a privately managed unaided Junior High School upto 12.08.1977, the power of creation of post, appointment and management including the arrangement of funds was the sole responsibility of management of School. Learned Standing Counsel could not place any provision before this Court to show that before 12.08.1977, Schools like petitioner's one were regulated or governed by any statutory provision in the matter of creation of posts, appointment of teachers etc. Even the respondent no. 2 has not referred to any such provision in the impugned order.

20. The petitioner claims to have been appointed by letter of appointment dated 09.07.1977 issued by Manager of School. Copy of this letter has been placed on record as Annexure-SA-1 to the supplementary affidavit. Copy of this affidavit was served upon learned Standing Counsel on 26.07.2006. Reply to this supplementary affidavit has been given in supplementary counter affidavit sworn by Sri Chhotey Lal, Principal Government Inter College, Ballia having additional charge of DIOS, Ballia and para 4 thereof which he has sworn on the basis of record. He has not denied the said letter of appointment but simply says that such letter of appointment is not established from official record of the office of DIOS, Ballia. He further says that in this regard detail and comprehensive reply has been given in the counter affidavit.

21. In the counter affidavit also para 12, 13 and 16 relates to this part of the matter but there also the stand of respondents is only to the extent that documents relating to selection and appointment of petitioner are not available in their office and the Management of School has also not made available despite demand made by DIOS's letter dated 27.12.2010. In fact Sri Jai Shanker Singh, Manager of School has informed that such record is not available. It has however submitted only copy of the salary voucher for the month of January, 1983 showing payment of salary to 12 teachers including the Headmaster, one Clerk and nine Class-IV employees. The management also sent a copy of DIOS's dated 05.08.1978 which it had issued after the School was brought in grant-in-aid approving payment of salary to 13 teachers, one clerk and nine Class-IV employees. The 13 teachers who were approved for payment of salary are, (1) Ramagya Yadav, (2) Rajendra Upadhyay, (3) Rama Shanker Verma, (4) Deenbandhu Tiwari, (5) Ram Lal, (6) Veer Bahadur, (7) Ram Kinker, (8) Jagdish Tiwari, (9) Hridayanand, (10) Ram Chandra Ram, (11) Sarvadev Ram, (12) Phenku Singh Yadav, (13) Baleshwar.

22. It is interesting to notice that in the salary statement of January, 1983 only 12 names out of the above 13 are mentioned and the name of Baleshwar is not there. It is also evident from the letter dated 04.08.1980 issued by Deputy Director of Education, Varanasi (at page 17 of supplementary counter affidavit of State which is part of Annexure-2) that after upgradation of School as High School the Director of Education, U.P. vide its letter No. Adhyadesh/922/146-63/77-78 dated 28.11.1977 granted approval to following category of staffs:

	Category 				Number of sanctioned posts
 
	Headmaster					1
 
	Assistant Teacher (Trained Graduate)	3
 
	Assistant Teacher (C.T./B.T.C.)		10
 
	Clerk							1
 
	Peon 							9
 
23.	Thus in all in the category of Teachers 14 posts were sanctioned. 
 

24. Further, the factum that DBEO issued a letter dated 20.08.1977 granting approval to the appointment of petitioner as such is not disputed but what is contended that in law such order was not legal since the School in the meantime was already upgraded as High School resulting in withdrawal of jurisdiction of DBEO and conferment thereof to DIOS. If the issuance of letter dated 20.08.1977 is not disputed by respondents, it obviously mean that record pertaining to appointment of petitioner must have been received in the office of DBEO, he had examined and applied its mind and thereafter issued order dated 20.08.1977. It is not unworthy to point out that appointment has been claimed by petitioner to have been made in July, 1977 when admittedly DBEO had the authority and jurisdiction in respect to Primary Schools including the Junior High School. Therefore, even though no such approval of DBEO is shown to be necessary under any statute yet if the management intended to convey appointment of teacher in a recognised primary school it would have sent the letter to DBEO and not DIOS. The DIOS in July, 1977 had not come into picture at all. On 12.08.1977 the documents, therefore, obviously lie in the office of DBEO. The question whether upgradation from Primary School to High School would deprive DBEO its jurisdiction in respect to classes up to Junior High School was not very much clear at that time since that dispute has recently been settled by this Court. The fact remains that once the documents were available in the office of DBEO and he had passed an order conveying his approval, that makes it beyond doubt that the claim of petitioner that a process of selection had undergone in July 1977 and a letter of appointment was also issued to him by Manager on 09.07.1977 cannot be doubted at all.

25. Learned Standing Counsel tried to suggest that in the DBEO letter, name of petitioner appears to have been inserted subsequently. However I find no substance in the submission since a photocopy of letter dated 20.08.1977 has been filed as Annexure-SA-2 to the supplementary affidavit and a bare perusal thereof would show that the name of petitioner at serial No. 7 has been mentioned in natural and ordinary course and thereafter two more names are mentioned. If the appointment of other six persons has been treated valid, I failed to understand how petitioner's appointment could have been overlooked.

26. Moreover, the number of posts sanctioned were 14 though the salary document shows that it was allowed to only 13 teachers. The appointment of petitioner, therefore, cannot be considered to be beyond the number of sanctioned strength at the relevant time, i.e., when the institution was brought in grant-in-aid in 1983. It is not the case of respondents that petitioner did not possess requisite qualification etc. particularly considering the fact that there did not exist any rule regulating or governing recruitment or conditions of service in Junior High School in July, 1977. The statutory rules have been framed and made applicable in 1978. The Director of Education in observing that order of DBEO was illegal being unauthorised, has completely failed to consider the fact that question of prior approval in July, 1977 in respect to a Junior High School was not contemplated by statutory provision. If by abundant precaution and only in furtherance of total transparency the management forwarded documents regarding selection of petitioner to DBEO, that would not covert the matter like a statutory requirement.

27. I am pained to observe that an officer like Director of Education has failed to consider and misdirected himself by assuming requirement of approval etc. though there was no such statutory provision in July, 1977 when petitioner was appointed. Regarding working of petitioner in the institution as Assistant Teacher there is no real dispute in the matter and for a miss on the part of management by not communicating or forwarding the name of petitioner to respondents after the school was brought in grant-in-aid, the petitioner cannot be made to suffer once he has been validly appointed and has continued to work. It is nobody's case that at any point of time after his appointment, petitioner was ever terminated. This is really unfortunate that stressing upon his fundamental right of "Right to Earn Livelihood" the petitioner has to struggle and continued to litigate against respondents for almost 27 years and odd. This shows the testing of stress of patience and capacity of survival of a person including his family. It also demonstrate apathy and indifferent attitude on the part of respondents in not considering the matter in proper perspective so as to impart justice by meeting a legal right of a harassed person causing serious prejudice and starvation not only to himself but the entire family. The relentless fight of petitioner for his survival really deserves kudos and appreciation. The mere wordily commendation may not be appropriate unless the petitioner is also provided a solace for such extraordinary prolonged harassment and victimization.

28. I, therefore, allow this writ petition in the following manner:

1. The impugned order dated 10.07.2006 passed by respondent no. 2 (Annexure-6 to the writ petition) is hereby quashed.

2. The respondents are directed to pay entire salary to petitioner alongwith arrears within three months from the date of production of a certified copy of this order before them.

3. The respondents shall also pay interest at the rate of 10% per annum on the entire arrears of salary from the date, petitioners first Writ Petition No. 1117 of 1985 was decided by this Court, i.e., 30.08.1994 and as and when the arrears fell due thereafter.

4. The petitioner shall also be entitled to costs which I quantify to Rs. 50,000/- against respondent no. 2. However, at the first instance the cost shall be paid by respondent no. 1 but it shall have the liberty to recover the said amount of cost from respondent no. 2, i.e., the officer who held the office of respondent no. 2 when impugned order was passed.

Dt/-06.09.2011

AK