C/M Abhay Nandan Inter College And ... vs State Of U.P. And 3 Others
2015 Latest Caselaw 2242 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 10
 

 
Case :- SPECIAL APPEAL No. - 638 of 2015
 

 
Appellant :- C/M Abhay Nandan Inter College And Anr.
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Appellant :- Akhilesh Kumar Singh,Radha Kant Ojha,Shivendu Ojha
 
Counsel for Respondent :- C.S.C.,A.B. Singh
 

 
Hon'ble Arun Tandon,J.

Hon'ble Shashi Kant,J.

This special appeal is directed against the judgment and order of the Hon'ble Single Judge dated 21.08.2015.

The facts giving rise to the present special appeal are as follows:

Abhay Nandan Inter College, Vishnu Mandir, Medical College Road, Gorakhpur is a recognized and aided Intermediate College, which claims to be a minority institution. The institution is stated to have passed an order for terminating the services of respondent nos. 3 and 4, who were employed as Assistant Teacher on ad hoc basis. This order, according to the committee of management, was made in compliance to the order of the Hon'ble High Court passed in Writ Petition No. 36165 of 1995. The decision so taken by the committee of management was annulled by the District Inspector of Schools, Gorakhpur vide order dated 14.08.2015. The District Inspector of Schools also went on to cancel the advertisement which had been published for making fresh ad hoc appointment against the posts held by the aforesaid two respondents.

The committee of management not being satisfied with the order of the District Inspector of Schools, file Writ Petition No. 47407 of 2015. The Hon'ble Single Judge under the order impugned dated 21.08.2015 has recorded that the matter requires consideration and thereafter, on the statement made by the Senior Advocate appearing on behalf of the committee of management, it has been recorded that it shall be open to the committee of management i.e. the petitioner to take work or not to take work from the private respondents, but they shall be entitled to their salary, which shall not be stopped. The committee of management has also been restrained from making any fresh selection on the post held by respondent nos. 3 and 4.

On behalf of respondent nos. 3 and 4 it is stated that the order has been passed on a statement made by counsel for the petitioner himself and therefore it does not lie in the mouth of the petitioner to challenge the direction for payment of salary even if the management decides not to take work from the teachers concerned and because there cannot be double payment of salary against the same post, there can be no valid objection to the further restrain on fresh appointments on the posts held by respondent nos. 3 and 4.

In our opinion a very serious issue reflecting upon public money has arisen in the present appeal.

The right of the employer to take work or not to take work from his employee and to continue to make payment of salary without taking work is well recognized. But this general principle may not be applicable in respect of recognized and aided intermediate colleges and other such aided institutions where the liability of payment of salary is taken over by the State Government.

As a matter of fact in recognized and aided intermediate colleges and other such institutions, where liability of payment of salary is taken over by the State Government, namely, private aided degree colleges etc., there is a tripartite arrangement. The first party i.e. the employer is the management which has a right to appoint the employee after due procedure and to take work. Second party in the agreement is the teacher/employee, who works in such an institution, who has right to be paid his salary if his appointment is in accordance with law and there is no legal justification for withholding his payment even if the management does not take work from him, and there is a third party i.e. the State Government, which takes over the liability of payment of salary to the staff and teachers of such recognized and aided institutions. In the case of intermediate colleges such liability of payment of salary has been taken over by the State Government vide U.P. Act No. 24 of 1971.

We may record that the liability of payment of salary, which has been taken over by the State Government, is only in respect of teachers and staff who are appointed against sanctioned posts. The issue in that regard has been settled by the Full Bench of this Court in the case of Gopal Dubey vs. District Inspector of Schools, Maharajganj, reported in 1999 (1) UPLBEC 1.

There is another aspect to this liability, namely, such responsibility to release the payment of salary to the teacher/employee concerned would only arise if such teacher/employee actually discharges his duties in the institution unless he is sanctioned leave permissible under the rules.

If the management of the institution decides on its own not to take work from such teacher/employee, then there cannot be a corresponding obligation upon the State Government to make payment of salary to the teacher/employee concerned when he is actually not discharge his duties in the institution.

If the decision to not to take work from the employee concerned is of the management of the institution in its own discretion, then the liability of payment of salary to such person shall also be upon the management alone, inasmuch the management of the institution while exercising its power of the employer to not to take work cannot transfer the financial obligation upon the State Government.

Teachers and employees of aided institutions are paid salary from public exchequer which is public money. It cannot be permitted to be paid without actual discharge of duties by the person/employee concerned.

We have, therefore, no hesitation to record that even if the Hon'ble Single Judge has proceeded on the statement made by the counsel for the management, the High Court cannot in exercise of its power under Article 226 of the Constitution of India issue a direction to the State Government to make payment of salary to an employee/teacher who does not discharge his duties in the institution. If the restrain on the discharge of duties and responsibility by the teacher has been put by the management of the institution, then the management also must suffer the consequences.

We have no hesitation to record that the High Court, while passing the order permits the management of an aided recognized institution to take or not to take work from the teacher/employee concerned, must couple the said direction with a further direction that it shall be responsibility of the management to make payment of salary to such teacher/employee from whom it decides not to take work. The State Government may not be fastened with the responsibility to make payment of such employee, who actually does not work because of the order of the management.

We are, therefore, of the opinion that the order of the Hon'ble Single Judge, in so far as it directs the payment of salary to respondent nos. 3 and 4 through State exchequer even when the management decides not to take work from the said respondents, cannot be legally sustained. Therefore, we provide that if the management still insists upon to not to take work from the respondent nos. 3 and 4, then it must also bear the consequences of payment of salary to the employee/teacher concerned from its own resources. The payment shall not be made from the State exchequer so long as the respondent nos. 3 and 4 are not permitted to discharge their official duty in the institution.

This order shall not prejudice the right of the petitioner to make an application before the Hon'ble Single Judge or for modification of the order under appeal, as may be necessary, inasmuch as the Hon'ble Single Judge has proceeded on the concession of the counsel for the petitioner. In view of what has been recorded above, the counsel may like to withdraw the concession so made. Petitioner is also at liberty to file such further application as may be necessary.

With the aforesaid direction, this appeal is disposed of. The order of the Hon'ble Single Judge stands modified to the extent indicated above.

Order Date :- 10.9.2015

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