Smt. Poonam Tiwari & Others vs State Of U.P. & Others
2012 Latest Caselaw 2356 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 28
 

 
Case :- WRIT - A No. - 50802 of 2008
 

 
Petitioner :- Smt. Poonam Tiwari & Others
 
Respondent :- State Of U.P. & Others
 
Petitioner Counsel :- Gopal Ji Rai
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble B. Amit Sthalekar,J.

This writ petition has been filed by the petitioners who are 4 in number challenging the order dated 3.9.2008 passed by the Additional Director of Education (Basic), respondent No. 2 whereby the claim of the petitioners for payment of salary under the Payment of Salary Act, 1972 has been rejected.

The facts of the case in brief are that, there is an Institution known as Mahatma Buddha Kanya Junior High School, Balupur, Ballia, District Ballia (hereinafter referred to as the Institution). The said Institution is recognized and is governed by the provisions of U.P. Basic Education Act, 1972 and also under the provisions of U.P. Recognized Basic School (Recruitment and Conditions of Services of Teachers and other Employees) Rules, 1978. The Institution has also been taken in grant-in-aid list.

The case of the petitioners is that the Committee of Management of the Institution sought permission from the District Basic Shiksha Adhikari, Ballia for running classes in extra Sections in Classes 6, 7 and 8. The Zila Basic Shiksha Adhikari passed order dated 1.6.1988 and granted permission for running additional Sections in each of the Classes of 6, 7 and 8 (Annexure 2 to the writ petition). In pursuance thereof sanction was sought from the District Basic Shiksha Adhikari for appointment of Assistant Teachers to run the extra Classes. The District Basic Shiksha Adhikari granted sanction by its letter dated 29.11.1999. Accordingly, a Selection Committee was constituted by the Committee of Management and the applications were invited and selections were held. The petitioners were found to be the most suitable candidates and they were issued appointment letters on 30.11.1990. However, the petitioners were not being paid salary from the State-Exchequer. Aggrieved, they filed Writ Petition No. 63340 of 2008 Poonam Tiwari and others Vs. State of U.P. and others. The said writ petition was disposed of by this Court by order dated 20.12.2007 with a direction that in case a Representation is made by the petitioners, the Additional Director of Education (Basic) Azamgarh Region, Azamgarh, shall examine the claim of the petitioners and pass a reasoned and speaking order. It is in pursuance of this direction of this Court this impugned order has been passed.

I have heard Sri K.R. Sirohi, learned Senior Counsel assisted by Sri Gopalji Rai and Sri C.K. Rai, learned counsel appearing for the petitioners, learned Standing Counsel appearing for the respondent Nos. 1, 2, 3 and 5. None appears for respondent No. 4. Although notices were issued and steps were taken by the petitioners on 13.10.2008 and as per the office-report dated 19.7.2011 neither acknowledgment nor undelivered cover has been received back after service of notice. Thus, the service on respondent No. 4 shall be deemed to be sufficient. The list has been revised. The order is being dictated in open Court.

From a perusal of the impugned order, it will be seen that the reason for the rejecting the claim of the petitioners is that the petitioners were appointed on 1.5.1990 and they have been working as Assistant Teachers since then. This finding is based on report of the concerned authority. In the impugned order, it has not been disputed that by order dated 1.6.1988 sanction granted by the District Basic Shiksha Adhikari, Ballia for running additional classes in each of the Classes 6, 7 and 8 and it is in pursuance thereof that the petitioners were appointed after the posts were advertised on 10.9.1990 and Interview had been held on 25.11.1990. In the Selection Committee, one Shri Om Prakash Singh was also a member of the said Committee as nominee of the BSA. A finding has also been recorded that ever since the petitioners took charge of the post of Assistant Teacher they have been continuously working till date. The sole basis for rejecting the claim of the petitioners however, is that in the Manager's Report dated 31.3.2007, the total strength of the teaching staff has been shown as one Head Master plus 4 teachers (names at Serial Nos. 1 to 5). Thus, the sole ground for rejecting the claim of the petitioners is the Manager's Report. At the time of hearing original records were called for and the same has also been produced before the Court.

From a perusal of the Manager's Report dated 31.3.2007, the strength of teaching staff was shown as 5, i.e., one Head Master plus 4 Assistant Teachers. The records also reveal that a spot inspection report was prepared, in which the sanctioned sections were shown to be 6 (six) but on the date of the inspection only 3 (three) sections were found to be functional. There is no dispute with regard to the existing strength of the teachers which is still shown as one Head Master plus 4 (four) Assistant Teachers.

The sole ground for rejecting the claim of the petitioners is that at the time of spot inspection, the number of sections were found to be only 3 (three) and therefore the sanctioned strength was sufficient for purposes of three sections and hence, the appointment of the petitioners was made against non-sanctioned posts.

This finding definitely appears to be erroneous inasmuch as from the own records, it is established that one additional Section each in Classes 6, 7 and 8 were sanctioned by the District Basic Shiksha Adhikari as far back as in 1988 and a finding has been recorded in the impugned order that the petitioners were appointed against those posts on 1.12.1990 and they are working till date. What however, is not coming forth from the impugned order is that when one additional Section was sanctioned, then how the sanctioned strength continued to be shown as only 3 (three) in the Manager's Report. The District Basic Shiksha Adhikari appears to have blindly accepted the Manager's Report showing three Sections but Manager's Report also shows that there were 6 (six) Sections sanctioned. The Spot Inspection Report does not indicate as to what was the total strength of the students and what in the circumstances should have been the strength of the teachers in the Institution as per the teacher-student ratio 1.5:40 (one and half is to forty). The learned counsel for the petitioners has relied upon a single Judge decision of this Court reported in [(2004) 3 UPLBEC 2892], Committee of Management, V.K. Higher Secondary School and another Vs. State of U. P. and others, wherein the Court has held as follows: (Para 11)

"Having heard learned Counsel for the parties and on perusal of record, I am of the view that once a competent authority has approved the opening of new sections in the primary section of the institution, which is admittedly under the grant-in-aid list of the State Government, the liability for payment of salary to teacher appointed on such additional posts would be that of the State Government. Admittedly, the approval for opening new sections had been duly accorded by the District Inspector of Schools without any condition that no grant-in-aid would be provided for any additional staff. The Director of Education on 19.7.1990 had already clarified that the payment of salary to such teachers of the primary section for additional recognized classes shall be determined on the basis of the Notification dated 12.11.1989. The said notification provides that the salary of the teachers in the primary sections would be paid on the basis of one teacher per class and that payment of salary to one teacher in every additional section should also be ensured. The State-respondents have not been able to establish from the record that as to under which provision of law, after recognition/sanction of additional sections, new posts of teachers are to be created by the State Government. Once the Director of Education has clarified that the payment of salary on additional post would be made as per the Notification dated 12.11.1989 which provides for payment of salary to one teacher in every section including additional section also, the liability for such payment would certainly be that of the State Government."

In coming to the conclusion, the learned Single Judge has relied upon a judgment of Supreme Court reported in JT 2000 (1) SC 159, The Chandigarh Administration and others Vs. Mrs. Rajni Vali and others, which has been referred in Para 6. Para 6 of the said judgment reads as follows:

"The position has to be accepted as well-settled that imparting primary and secondary education to students is the bounden duty of the State Administration. It is a Constitutional mandate that the State shall ensure proper education to the students on whom the future of the society depends. In line with this principle, the State has enacted Statutes and framed Rules and Regulations to control/ regulate establishment and running of private schools at different levels. The State Government provides grant-in-aid to private schools with a view to ensure smooth running of the institution and to ensure that the standard of teaching does not suffer on account of paucity of funds. It needs no emphasis that appointment of qualified and efficient teachers is a sine qua non for maintaining high standard of teaching in any educational institution. Keeping in mind these and other relevant factors this Court in a number of cases has intervened for setting right any discriminatory treatment meted out to teaching and non-teaching staff of a particular institution or a class of institutions. To notice a few such decisions on the point, we may refer to the case of Haryana State Adhyapak Sangh & Ors. etc.Vs. State of Haryana & Ors. etc. ( AIR 1988 SC 1663), in which this Court issued a direction that the State Government will also take up with the Management of the aided schools the question of bringing about parity between the teachers of aided schools and the teachers of Government schools for the period following that to which the thirty five installments relate, so that a claim for payment may be evolved after having regard to the different allowances claimed by the petitioners. In the case of Haryana State Adhyapak Sangh & ors.Vs. State of Haryana & Ors. (AIR 1990 SC 968), a bench of three learned Judges of this Court  clarifying the judgment in Haryana State Adhyapak Sangh &  ors. etc. Vs. State of Haryana & Ors. etc. (supra), issued a direction, inter alia, that the parity in the pay scales and dearness allowance of teachers employed in aided schools and those employed in Government schools shall be maintained and with that end in future the pay scales of teachers employed in Government schools shall be revised and brought at par with the aided schools and dearness allowance payable to the teachers employed in Government schools with effect from January 1st, 1986."

There is absolutely no dispute with regard to the legal propositions settled by this Court following the law laid down by the Supreme Court.

The contention of the respondents however, is that the Institution was taken at grant-in-aid list on 2.12.2006 and that the salary to be paid from the State-Exchequer to the outcome payable only after the said date. The question that however, still remained unanswered in the impugned order is that when sanction had been granted by the District Basic Education Officer for creation of one additional section each in Classes 6, 7 and 8 and petitioners had been appointed and there was no flaw or legal infirmity in the appointment of the petitioners then how is the Manager's Report silent on the question regarding the work of the petitioners against the additional sanctioned sections. From the impugned order, it does not appear that any query was made by the District Basic Shiksha Adhikari from the Manager of the Committee of Management in this regard.

In the circumstances, the impugned order dated 3.9.2008 cannot be sustained in law and is liable to be quashed and it is accordingly, quashed. The writ petition is allowed.

The matter is remitted back to the Additional Director of Education (Basic), Uttar Pradesh to pass a fresh reasoned and speaking order after making proper inquiry with regard to the teacher-student ratio, the strength of the students in the Institution and as to the fact, whether the additional sanctioned Sections were still existing in the Institution and the petitioners were teaching against the additional sanctioned sections. This exercise shall be completed by the Additional Director of Education (Basic), Uttar Pradesh within a period of three months from the date, a certified copy of this order is received by him.

Order Date :- 30.5.2012

Arun K. Singh