Javed Ahmad Khan And Ors. vs State Of U.P.Thru Secy & Ors.
2013 Latest Caselaw 5239 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

'AFR'
 
                                                                  Judgment reserved on 29.07.2013
 
Judgment delivered on 29.08.2013
 
Case :- WRIT - A No. - 4273 of 2013
 
Petitioner :- Javed Ahmad Khan And Ors.
 
Respondent :- State Of U.P.Thru Secy & Ors.

Counsel for Petitioner :- Siddharth Khare,Ashok Khare

Counsel for Respondent :- C.S.C.

And

Case :- WRIT - A No. - 4275 of 2013

Petitioner :- Tariq Maqbool And Ors.

Respondent :- State Of U.P.Thru Secy & Ors.

Counsel for Petitioner :- Siddharth Khare,Ashok Khare

Counsel for Respondent :- C.S.C.,G.K.Singh,V.K.Singh

Hon'ble Manoj Misra, J.

1. As both these writ petitions arise out of a common cause of action, with the consent of learned counsel for the parties, they are being decided together by a common judgment. In both the writ petitions, I have heard Sri Ashok Khare, learned senior counsel assisted by Sri Siddharth Khare, for the petitioners, Sri G.K. Singh and Sri V.K. Singh for the respondent No.5 and the learned Standing Counsel for the respondents 1 to 4.

2. Briefly stated the relevant facts of the case are that Siddiq National Intermediate College, Pilibhit (hereinafter referred to as an Institution) is recognised as a minority institution and, as such, by virtue of Section 30 of the U.P. Act No. 5 of 1982, the provisions of the said Act are not applicable thereto. It is not disputed that the Institution is a recognised and aided Inter College, governed by the provisions of U.P. Intermediate Education Act, 1921 including the regulations framed thereunder as also the U.P. High Schools and Intermediate College (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as U.P. Act No.24 of 1971).

3. According to the petitioners, vide advertisement dated 08.09.2011, one post of Lecturer and 15 post of Assistant Teachers (L.T. grade) in the Institution were advertised. The posts of L.T. Grade teachers, so advertised, were for different subjects. Three posts were for Hindi, one for Urdu, one for Commerce, one for English, one for Mathematics, one for Science, one for Sanskrit, one for Art, one for Wood Craft and four for Social Science. The writ petitioners, of writ petition No. 4273 of 2013, applied for appointment on the advertised posts, in the following manner: (i) the petitioner No.1 applied for Urdu; (ii) the petitioner No.2 applied for Commerce; (iii) the petitioner No.3 applied for English; and (iv) the petitioner No.4 applied for Social Science. Likewise, the writ petitioners, of writ petition No. 4275 of 2013, pursuant to the said advertisement, applied in the following manner: (i) the petitioner No.1 applied for Mathematics; (ii) the petitioner No.2 applied for Science; (iii) the petitioner No. 3 applied for Woodcraft; and (iv) the petitioner Nos. 4 and 5 applied for Social Science.

4. It is the case of the petitioners that upon being called and interviewed by the Selection Committee, they got selected for appointment on the respective post and, thereafter, the papers pertaining to their selection were submitted in the office of the District Inspector of Schools, Pilibhit, for approval, on 05.12.2011. The District Inspector of Schools, thereafter, forwarded the papers to the Regional Level Committee, headed by the Joint Director of Education, for approval.

5. From the communication dated 24.12.2011 (Annexure 5 to the petition) written by the Joint Director, Bareilly Region, Bareilly to the Secretary, Secondary Education, Govt. of UP, it appears that the Regional Level Committee met on 23.12.2011 and upon examining the papers and the report of the District Inspector Schools, based on fourth financial survey, the Committee found that on a strength of 579 students in the Institution, there was a requirement of only 9 Assistant Teachers in the Institution, as per the student-teacher ratio prescribed by the Government Orders, and as there were already 14 such teachers appointed in the college, therefore, there was no need to appoint further teachers. It further appears from the letter dated 24.12.2011 that as the Manager of the Institution was a State Minister and and was pressing for sanction, the matter was being communicated to the Secretary, Secondary Education for guidance.

6. According to the petitioners, as there was no communication of any order, expressing disapproval to the proposed appointments, the management of the Institution issued appointment letters to the petitioners and, pursuant thereto, the petitioners joined the institution on 16.04.2012. Thereafter, the management submitted the salary bill for the month of April, 2012 to the District Inspector of Schools, Pilibhit, which was returned by the District Inspector of Schools, Pilibhit, vide letter dated 25.06.2012, thereby informing the management, inter alia, that considering that there were only 588 students, as on 30.09.2011, in the Institution, only 14 Assistant Teachers could be appointed in the Institution and as there were already 14 such teachers appointed and working in the Institution, there was no scope for further appointment, accordingly, no salary could be paid to such newly appointed teachers from the State funds.

7. Aggrieved by the communications dated 24.12.2011 and 25.06.2012, the petitioners have filed the present writ petitions with a prayer that the aforesaid communications be quashed and a direction be issued to the respondents to pay regular monthly salary to the petitioners for their respective post.

8. In support of the writ petitions, the learned counsel for the petitioners submitted that, admittedly, there were 30 sanctioned posts of Assistant Teacher (L.T. Grade) in the Institution and before the appointment of the petitioners there were only 14 Assistant Teachers ( L.T. Grade) appointed and working in the Institution, therefore, 16 posts were lying vacant. It was submitted that as the petitioners were appointed against vacant posts, and the Institution was a minority institution, by virtue of sub-section (4) of section 16 FF of the U.P. Intermediate Education Act, 1921, the approval could have been withheld only in a case where the selected candidate did not possess the requisite qualifications or was, otherwise, not eligible for the post. It was further submitted that the Government Orders, which provided for maintaining the student-teacher ratio in the Government aided colleges, did not provide for automatic abolition of posts, therefore, reliance on such Government Orders for denying salary to the petitioners, was misconceived. It was also submitted that there cannot be a general application of the student-teacher ratio while approving or disapproving appointment of teachers, inasmuch as, teachers are required subject-wise, dependent on subject-wise recognition of the Institution, therefore, it has to be assessed first, whether there are teachers of concerned subject available in the Institution or not and then only it is to be seen whether they are surplus or not.

9. In the alternative, it was submitted that the Regional Level Committee had wrongly placed reliance on Government Order dated 09.10.1999 for assessing the number of posts available in the Institution, inasmuch as, the posts had been in existence since much prior to the year 1999, therefore, the said Government Order would not affect existing posts.

10. In support of his contention, the learned counsel for the petitioners placed reliance on several decisions of this Court i.e. Krishna Kumar Singh v. D.I.O.S., Deoria & others: 1995 AWC 183; Mohd. Ayub v. D.I.O.S., Moradabad and others: 2005 (1) UPLBEC 763; Sarbjeet Kaur (Smt.) v. The State of U.P. and others : [(2005) 2 UPLBEC 1921; and an unreported decision dated 30.07.2013 in Writ-A No.8070 of 2011: Smt. Suman Kalyan v. State of U.P. and others) so as to contend that an appointment made on a sanctioned post cannot be invalidated merely on the ground that the teachers working in the institution are in excess, as per the policy laid down by the Education Department of the Government, particularly, when the posts have not been specifically abolished. On the strength of the decision rendered in Smt. Suman Kalyan's case (supra), it was contended that there could be no automatic abolition of the posts. It was also submitted that, although, the posts are created under Section 9 of the U.P. Act No.24 of 1971, but there is no provision therein with regard to their abolition, much less automatic abolition. It was thus submitted that refusal to pay salary to the petitioners, who were appointed against duly sanctioned posts, is wholly unjustified.

11. Per Contra, the learned Standing Counsel, appearing for the state-respondents, submitted that the liability of the State to pay salary to a newly appointed teacher would arise only when the post, on which the teacher is appointed, falls within the permissible student-teacher ratio, fixed from time to time by various Government Orders. It was submitted that by Government Orders dated 20.11.1976, 25.5.1977 and 09.08.1999 such ratio has been fixed and re-fixed. It was further submitted that a circular letter dated 09.06.2011 (Annexure No.8 to W.P. No.4275 of 2013) has been issued by the Director, Madhyamik, addressed to the District of Schools throughout the State of UP to identify such institutions, where teachers in excess of the permissible ratio are working and to send proposal for their adjustment elsewhere as also to freeze such excess posts. It was submitted that as, admittedly, the number of teachers in the Institution were in excess of the permissible strength of teachers, as calculated on the basis of student-teacher ratio prescribed under the Government Orders, refusal to pay salary from Government fund cannot be faulted. It was further submitted that whether an institution is a minority institution or not, the liability to pay salary can be fastened on the State only if the appointment is made on posts which fall within the limits provided for by the Government Orders, dependent on the student-teacher ratio.

12. The learned counsel appearing for the Institution, however, supported the claim of the petitioners.

13. Having considered the rival submissions as also on perusal of the record, the admitted position that emerges is that in the Institution there were 30 sanctioned posts of Assistant Teachers (L.T. Grade) out of which 14 posts were filled. By the present recruitment process, 11 Assistant Teachers (L.T. Grade) were selected for appointment. The Regional Level Committee found that in classes 6 to 10 there were, in all, 579 students, which justified appointment of 9 Assistant Teachers (L.T. Grade), under the norms set out by the Government. Whereas, the District Inspector of Schools, in his communication dated 25.06.2012, found that there were 588 students in the Institution, as on 30.09.2011, which justified appointment of 14 Assistant Teachers (L.T. Grade). Although the petitioner claims, in paragraph 33 of the writ petition no.4275 of 2013, that in the academic session 2012-2013 there were 735 students, but it is not claimed that at the time of the advertisement i.e. 08.09.2011, there were more than 588 students. In such a situation, when it is not disputed that there were 14 Assistant Teachers (L.T. Grade) already appointed and working since prior to the appointment of the petitioners, therefore, whether there were 579 students or 588 students, the petitioners were appointed in excess of the permissible limits set out by the Government through various Govt. Orders.

14. It is well settled in law that mere selection does not confer any indefeasible right to appointment. It is equally well settled that an employer cannot be forced to fill up all posts. (vide Shankaran Dash v. Union of India, (1991) 3 SCC 47). This position has been reiterated by the apex court in the case of Batiarani Gramiya Bank v. Pallab Kumar, (2004) 9 SCC 100 where, vide paragraph no.29 of the report, after noticing various earlier decisions, it was held that an employer cannot be forced to fill up all the vacancies, particularly, if the decision not to fill up all the vacancies is based on sound bona fides and appropriate reasons.

15. Therefore, even if the vacancies exist, the employer is not precluded from taking a policy decision not to fill up such vacancies. And if such decision is taken on sound reasons, the same cannot be questioned. In the case of an aided recognised institution, although, the immediate employer of its teachers is the Management, but if the liability to pay salary is to be fastened on the State, it is always open to the State to take a policy decision that further appointments of teacher in the institution would not be approved for payment of salary from State fund, if the number of students do not justify such appointments.

16. In the instant case, it is not disputed that the State, by issuing Government Orders, has prescribed for a student-teacher ratio thereby limiting the number of teachers that can be appointed in an institution dependent on the strength of its students. The object of such Government Orders is, obviously, to avoid wastage of public funds by payment of salary to such teachers where there may be no requirement for them. No doubt, the Government Orders do not expressly abolish the posts which fall in excess of the student-teacher ratio. But the G.O. Dated 20.11.1976, definitely, creates an obligation on the authorities to identify such excess staff and seek for its adjustment elsewhere and, thereafter, to seek for abolition of posts that have been identified as excess after such adjustment (vide note 2 of G.O. dated 20.11.1976 at page 59 of writ petition no.4275 of 2013). Therefore, even if there is no automatic abolition of the posts that fall in excess of the prescribed student-teacher ratio, there is a clear mandate to the authorities to seek for abolition of such excess posts. In the light of such mandate, the State cannot be fastened with liability to pay salary to such teachers who are appointed against such posts that have already been rendered surplus under the norms set out by the Government. The position might be different where the strength of students fall in an institution after an appointment has already been made. But that does not appear to be the case here.

17. In the case of Kolawana Gram Vikas Kendra v. State of Gujarat, (2010) 1 SCC 133, the apex court, while considering the right of a minority institution to appoint its staff, has held that it is open to the State, while granting financial approval to the appointment, to consider whether there were actually posts available in the institution as per the strength of students. The relevant observation is contained in paragraph 7 of the report, which reads as follows:

"It would be perfectly all right for a minority institution to select the candidates without any interference from the Government. However, the requirement of this prior approval is necessitated because it is for the Government to see as to whether there were actually posts available in the said institution as per the strength of students and secondly; whether the candidates, who were sought to be appointed, were having the requisite qualifications in terms of the rules and regulations of the Education Department."

Thus, the strength of the students in an institution becomes a relevant consideration at the time of deciding whether to accord or not to accord approval to new appointments. Therefore, the Govt. Orders providing for maintenance of student-teacher ratio in an institution, cannot be said to be arbitrary.

18. Further, in the case of Tulsi Ram and others v. State of U.P. & others, 2010 (78) ALR 693, it was held that such Government Orders have the force of law, inasmuch as, the State Government has the power to issue such orders in exercise of the powers vested in it under section 9(4) of the U.P. Intermediate Education Act, 1921. While holding as above, the Court observed that in the earlier judgments rendered in the case of Krishna Kumar v. DIOS (supra) and Mohd. Ayub v. DIOS (supra), the impact of the Govt. Orders was not considered. Therefore, in the light of the decisions of the apex court noticed above, as also the decision of this Court in the case of Tulsi Ram (supra), the authorities cited on behalf of the petitioners are not of much help to them.

19. For the reasons detailed above and in view of the finding that the petitioners were appointed in excess of the permissible limits set out by various Government Orders, this Court is of the considered view that refusal to pay salary to the petitioners from the State fund is neither arbitrary nor illegal in any manner.

20. In addition to above, there is another reason on which, though not taken by the respondents, no relief can be granted to the petitioners. From the averments made in the writ petition (i.e. paragraph nos.5, 29, 30, 31 and 32 of writ petition no.4275 of 2013), it appears that the advertisement, inviting applications for appointment on one post of Lecturer and 15 posts of Assistant Teachers in the Institution concerned, was published on 08.09.2011 whereas the posts, on which the appointments were sought and allegedly made, had fallen vacant much prior to three months from the date of the advertisement. In fact, some of the posts, detailed in the writ petition, had fallen vacant several years prior to the advertisement. As per Regulation 20 of Chapter II of the regulations framed under the U.P. Intermediate Education Act, 1921, where the Committee of Management has failed to advertise any sanctioned post, which has fallen vacant, in accordance with the regulations contained in the said Chapter, within a period of three months from the date of occurrence of the vacancy, such post would be deemed to have been surrendered and would not be filled up unless its creation is sanctioned afresh by the Director. There is nothing on record to show that fresh sanction was sought from the Director, and was obtained, before advertising the vacancies and completing the selection process, as required by Regulation 20.

21. This court in several decisions i.e. Mumtaz Ahmad v. Deputy Director of Education, Allahabad Region, Allahabad and others: 1997 (31) ALR 150; Mohammad Rafey v. State of U.P. and others : [(2011) 1 UPLBEC 258]; Vinay Kumar Sharma v. District Inspector of Schools, Firozabad and others : [2004 (56) ALR 203]; Jai Nath Prasad Maurya v. Joint Director of Education, Varanasi and others: 2005 (4) AWC 3236, has held that the provisions of Regulation 20 would continue to apply to a minority institution by virtue of section 30 of the U.P. Act No.5 of 1982, therefore, where the vacancies are not notified/ advertised within the stipulated period, they can be filled up only after a fresh sanction by the Director and any appointment dehors such fresh sanction would not be vaild.

22. Even though no such ground has been taken by either the Regional Level Committee, headed by the Joint Director of Education, or by the District Inspector of Schools, while returning the salary bills, and there is also no plea to that effect taken in the counter affidavit, yet this being an important aspect, cannot be overlooked by the Court, particularly, when it appears on the face of the record. Thus, no relief can be provided to the petitioners also for the reason that the appointments were not valid in view of the provisions of Regulation 20 of Chapter II of the Regulations framed under the U.P. Intermediate Education Act, 1921.

23. For the reasons detailed above, both the writ petitions are liable to be dismissed and are, accordingly, dismissed. However, dismissal of the writ petitions will not preclude a claim for a fresh sanction of posts and consequential recruitment/ appointment, in accordance with law. There is no order as to costs.

Date :-29.08.2013                                                                                      Sunil Kr Tiwari