Deepak Kumar And Others vs State Of U.P. And Others
2016 Latest Caselaw 1937 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
AFR
 

 
Court No. - 59
 

 
Case :- WRIT - A No. - 2227 of 2000
 
Petitioner :- Deepak Kumar And Others
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- L.K. Dwivedi,B.P. Singh,Dr. Daya Shankar
 
Counsel for Respondent :- C.S.C.,A.K.Yadav,Atul Kumar,B.P. Singh,C.B. Yadav,G.M. Tripathi,J.P.Singh,Shree Prakash Singh,Sumati Rani Gupta,V.P. Shukla,Vineet Kumar Singh
 

 
		Connected with
 
Case :- WRIT - A No. - 2750 of 2000
 
Petitioner :- Santosh Kumar Singh
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- A.K. Srivastava,A.N. Sinha,C.B.Yadav,Dr.Daya Shanker,Vineet Kumar Singh
 
Counsel for Respondent :- C.S.C.,L.K. Dwivedi
 

 
		   And
 
Case :- WRIT - A No. - 36093 of 2005
 
Petitioner :- Jai Karan Singh
 
Respondent :- State Of U.P. Thru' Secy Basic Education And Others
 
Counsel for Petitioner :- B.S. Pandey
 
Counsel for Respondent :- C.S.C.,L.K. Dwivedi
 

 
Hon'ble Ashwani Kumar Mishra,J.

1. Vishwanath Purv Madhyamik Vidyalaya, Mundera, Allahabad (hereinafter referred to as the 'institution'), is a recognized Junior High School. It was granted recognition w.e.f. 1st of July, 1974, vide order dated 10th July, 1975. The institution was taken on the list of aided institutions, by extending provisions of The Uttar Pradesh Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978, vide Government Order dated 20th March, 1997, w.e.f. the financial year 1996-1997. It is in respect of the dispute relating to payment of salary to the teachers and employees of the institution that these three writ petitions have been filed, which are connected, and have been heard together. All three writ petitions are being disposed of by this common judgment.

2. Petitioners' claim for payment of salary stands rejected, vide order dated 18th December, 1999, which is impugned in these petitions. A further prayer has been made to direct the respondent State to release salary to them, out of State funds, from the date institution has been taken on aid. The institution is being run by a Society registered in the name of 'Shree Chandra Kumari Shiksha Samiti, Allahabad'.

3. The Government Order dated 20th March, 1997, whereby the institution was taken on aid, specifies in definite terms the category of teachers and employees, who were to receive salary from State. Clause-4 of the Government Order dated 20th March, 1997, which is relevant for the present purposes, is reproduced:-

"4. layXu lwph esa mfYyf[kr fo|ky;ksa ds ogh f'k{[email protected]'k{k.ksRrj deZpkjh Hkqxrku gsrq ekU; gksxs tks vuqnku lwph ij fy;s tkus gsrq vkosnu i= izLrqr fd;s tkus ds iwoZ ls gh fu;ekuqlkj fu;qDr dk;Zjr izf'kf{kr ,oa l{ke izkf/kdkjh }kjk vuqeksfnr gksaA"

4. Thus, only those teachers/employees are entitled to receive salary from State, who have been appointed prior to making of application for institution to be taken on aid in accordance with law, are trained and working, and their appointment stands approved by the competent authority.

5. Petitioners' claim for salary stands rejected on the ground that they do not fulfill the conditions contained in the Government Order, aforesaid. In these writ petitions, the Government Order dated 20th March, 1997 or the conditions contained in Clause-4, extracted above, are not under challenge. Petitioners, therefore, have to establish that they fulfill the conditions contained in Clause-4, before any interference is made with the order impugned, or a direction is issued, as prayed.

Claim of petitioners in Writ Petition No.2227 of 2000:-

6. Writ Petition No.2227 of 2000 has been filed by seven petitioners. Petitioner no.2, Smt. Kailash Kumari, has died, and her legal representatives have been substituted as petitioner nos.2/1 to 2/3. Petitioner nos.1 to 6 claim themselves to have been appointed as Assistant Teachers, while petitioner no.7 claims her appointment as Peon. Petitioners have sought quashing of order dated 18th December, 1999, contained in Annexure-17 to the writ petition, passed by Additional Director (Basic) to the extent it rejects claim of petitioners for payment of salary. The petitioners have also prayed for issuance of writ of Mandamus directing the respondents to pay regular salary to them alongwith arrears due w.e.f. 1.4.1997. This writ petition was entertained on 18th January, 2000, and an interim order was passed permitting the petitioners to continue to work in the institution. By a subsequent order dated 27th March, 2000, the initial interim order dated 18th January, 2000 was extended until further orders, and the petitioners have been held entitled to receive salary also. The interim orders dated 18th January, 2000 and 27th March, 2000 are reproduced:-

Order dated 18.1.2000:

"Learned Standing Counsel has put in appearance on behalf of respondents no.1 to 6. He prays and is granted one months' time to file counter affidavit. Rejoinder affidavit, if any, may be filed within two weeks.

List this petition for admission in the week commencing 13th March, 2000.

The petitioners are permitted to continue to work in the institution."

Order dated 27.3.2000:

"Learned Standing Counsel prays for and is granted a months' time for filing counter affidavit.

The point raised by the learned counsel for the petition in this writ petition is that the petitioners 1 to 6 were appointed on 1.7.77 i.e. for the enforcement of the Rules namely, U.P. Reconised Basic Schools (Junior High School) (Recruitment and conditions of service of teachers) Rules, 1978. These Rules came into force w.e.f. 13.2.1978. They have only prospective effect and they cannot be implemented retrospectively.

There is no mention in the Rules regarding the persons who were already appointed before the enforcement of the said Rules. Meantime, these petitioner have already got teachers training course i.e. B.Ed./I.T.

The contention raised by the learned counsel for the petitioner is arguable.

There is already an interim order passed in favour of the petitioners dated 18.1.2000, that the petitioners shall be permitted to continue to work in the institution.

In view of the facts and circumstances of the case, it is provided that the interim order dated 18.1.2000, shall remain in operation until further orders and the petitioner shall be entitled to get their due salary which shall be paid to them.

It is hereby clarified that this order would be implemented only in respect of the present petitioners only."

7. To put the records straight, it is noticed that after the aforesaid interim orders were passed, an application for its recall, being Civil Misc. Recall Application No.110511 of 2004, was filed before this Court, upon which following orders came to be passed on 20th July, 2004:-

"Heard Sri C.B. Yadav, learned Chief Standing Counsel, for the applicants and Sri L.K. Dwivedi, learned counsel appearing for the petitioners.

Vide order dated 18th January, 2000, this Court had directed the petitioners to continue to work in the institution in question. The said order was modified vide order dated 27th March, 2000 with the direction that the petitioners shall be entitled to get their salary which shall be paid to them. The aforesaid order was confirmed by this Court vide order dated 27th March, 2001. An application for impleadment of some of the persons filed on behalf of Jaikaran Singh and five others was rejected by this Court vide order dated 17.7.2001. The application was for impleadment and vacating the interim order.

This application has been filed for recall/vacating the interim order on which learned counsel for the parties have been heard.

Sri C.B. Yadav, learned Chief Standing Counsel submitted that the petitioners were never appointed in the institution in question and if they are paid salary it would be difficult for the State to recover from them as the salary is due from 1st April, 1997 when the institution was brought in grant-in-aid list by the State Government.

Sri L.K. Dwivedi, learned counsel for the petitioners submitted that the petitioners were duly appointed as teachers in the institution concerned and they are teaching, therefore, they are entitled to get salary. It is not in dispute that prior to 27th March, 2000 these petitioners were not getting any salary as their appointments have been held to be illegal by the authorities and the matter was under consideration before this Court. While entertaining the writ petition vide order dated 18th January, 2000, this Court had only permitted the petitioners to continue to work in the said institution. However, vide order dated 27th March, 2000, for the first time this Court had modified the earlier order by directing for payment of salary which order has been confirmed vide order dated 27th March, 2001 after the exchange of affidavits. The fact remains that the petitioners' appointment/regularization has not yet been approved by the authorities and a decision has to be taken by this Court on the question as to whether they are entitled for approval or not. Since there is already an order for payment of salary interest of justice will be best served if the order dated 27.3.2000 as confirmed by order dated 27.3.2001 is modified and it is provided that the Basic Shiksha Adhikari shall deposit the entire amount of salary which is due to the petitioners from 1.4.1997 till 31.7.2004 with the Registrar General of this Court. He shall deposit the same by 22nd July, 2004. Shri C.B. Yadav, learned Chief Standing Counsel shall get this order complied with. So far as the question of payment of salary for the period 1.8.2004 is concerned, the Basic Shiksha Adhikari shall deposit the salary and other wages of the petitioners as and when it falls due by 7th of each succeeding month with the Registrar General of this Court. The Registrar General shall invest this amount in some interest bearing account which shall abide by the result of this writ petition. In the event of default this order shall stand discharged and the earlier order shall revive.

The learned counsel may file an application for expeditious hearing of the writ petition. However, it shall not be treated as tied up or part hard with me."

8. This Court is informed that educational authorities continued to deposit the salary payable to the petitioners in the Registry of this Court till February, 2012, whereafter the deposit was not made in terms of the order dated 20th July, 2004. A contempt petition, which was already pending since 2001, was pressed, in which following orders were passed on 28th August, 2012:-

"Heard learned counsel for the applicants and Sri A. K. Yadav, Advocate, representing the Opposite Parties No.12 and 13.

This contempt application has been filed alleging non- compliance of the order dated 27th March, 2001 whereby the petitioner-applicants were allowed to continue to work and also receive the salary. The said order had been passed in Writ Petition No. 2227 of 2000. Subsequently, it appears that the writ Court passed an order on 20th July, 2004 modifying the earlier interim order dated 27th March, 2001 to the effect that the salary of the applicants would be deposited with the Registrar General of this Court by 7th of each month, failing which the interim order dated 27th March, 2001 would stand revived. On number of occasions the opposite party - District Basic Education Officer has committed default in making the deposit as required by order dated 20th July, 2004. However, the writ court upon application being filed had been granting indulgence to the District Basic Education Officer, Allahabad in enlarging the time and ratifying the default. Today, it is the admitted position that the District Basic Education Officer, Allahabad has not deposited the salary of the applicant from the month of March 2012 onwards i.e. for the last six months. In view of the fact that as on date there is default of the order dated 20th July, 2004 and the subsequent orders enlarging the time passed by the writ Court. The condition was that in the event of default earlier order dated 27th March, 2001 would stand revived. At present applicant would be entitled to the benefit of the said interim order dated 27th March, 2001. According to Sri Dwivedi, learned counsel for the applicants, that the applicants are continuously working but they are not receiving any salary on account of the modified order dated 20th July, 2004. It is further stated that the writ petition is still pending and is being regularly listed for hearing but not being taken-up by the writ Court for various reasons beyond its control.

In view of the above facts, the applicants would be entitled to the benefit of the interim order dated 27th March, 2001 as admittedly there is default of almost six months.

Opposite Parties No.12 and 13 who are presently posted at Allahabad would ensure compliance of the order dated 27th March, 2001 within one month from today and start paying the salary to the applicants for the period from which the default has been committed and file an affidavit to that effect by the next date failing which opposite parties no.12 and 13 shall remain present before this Court.

List on 3rd October, 2012."

9. Pursuant to the orders passed in contempt petition, petitioners are being paid salary from March, 2012 onwards, in purported compliance of the orders passed by this Court on 27th March, 2000. An application made in contempt petition for release of salary, lying in deposit with the Registry, has been rejected by the Contempt Court on 20th February, 2014, vide following observations:-

"As prayed by Sri L.K. Dwivedi, learned counsel for the applicants list after two months to enable him to approach the writ court for release of amount deposited with the Registrar General of the High Court under the orders of the writ court dated 20.7.2004.

Civil Misc. Application No.59066 of 2013 praying for release of arrears of salary deposited with the Registrar General of the High Court does not require consideration by the contempt court. The said application is accordingly dismissed with liberty to the applicants to approach the writ court."

10. The order dated 18.12.1999 had been passed in compliance of the orders passed in Writ Petition No.11771 of 1991 (Syed Maqsood Hasan and others Vs. State of U.P. and others) on 29.7.1999, which is reproduced:-

"Heard learned counsel for the parties.

The petitioners have alleged that they were appointed in the institution in question and their appointments have been approved by the Basic Shiksha Adhikari, but they are not getting salary after the grant in aid dated 20.3.97.

Learned counsel for the petitioners have stated that there is an enquiry report of the BSA dated 16.11.98 in favour of the petitioner. On the other hand Sri A.N. Singh learned counsel for the newly impleaded respondent claims that the persons represented by him were validly appointed teachers and staff in the institution in question and approval was granted on 15.7.98. In my opinion it will be in the interest of justice that the education department authorities should decide this factual controversy. Hence I direct that Additional Director (Basic) Education, Allahabad to decide this factual controversy. Parties shall appear before the Additional Director (Basic) Education, Allahabad on 12.8.99 and no separate notices will be send to them. On that date Additional Director will fix date of hearing within two weeks thereafter and after hearing the parties will pass an order within a week thereafter in accordance with law.

Petition disposed of."

11. The order of Additional Director rejects the claim for payment of salary, in view of the finding returned in the order that their appointment was not valid. It has been stated that appointments were not made in accordance with Rule 9 of the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Services of Teachers) Rules, 1978, nor any recognition in terms of the Rules was accorded. It is recorded that in Writ Petition No.11771 of 1991, apart from petitioner Syed Maqsood Hasan, 17 other persons had claimed payment of salary, including the petitioners of this petition. As per report of District Basic Education Officer dated 28.8.1999, the Management had forwarded names of teachers/employees on 27.7.1990, and that financial approval has been granted to 08 persons on 31st July, 1990. The order mentions that apart from one Anendra Singh, none of the other 07 persons was actually working. Moreover, Anendra Singh claimed himself to be appointed by the Manager, Sri Bharat Singh, and it is not in dispute that Bharat Singh was never recognized as Manager of the institution. So far as Syed Maqsood Hasan is concerned, it has been stated that his appointment was validly made on 27.7.1972, which has also been approved. Petitioner nos.2 to 7 of Writ Petition No.11771 of 1991 i.e. Deepak Kumar, Kailash Kumari, Om Prakash, Mamta Bansal, Geeta Gupta and Aftab Haider are petitioner nos.1 to 6 in Writ Petition 2227 of 2000, who claim to be appointed on 1.7.1977. All of them were untrained on the date of their alleged appointment. It would be appropriate to note that the petitioner nos.1 to 6 of the writ petition 2227 of 2000 allege that after the Rules of 1978 got enforced, their appointments were regularized, vide order dated 19th July, 1980 of the District Basic Education Officer, Allahabad. The order records that all these teachers were untrained in 1978, and there was no provision under the rules providing for regularization, as was claimed by them. The order further records that the alleged regularization order of 19.7.1980 is not available on record, and is highly doubtful. The order dated 19th July, 1980 is annexed as Annexure-10 to the writ petition. As per it, petitioners' appointment got regularized, since appointments had been made prior to enforcement of Rules of 1978. Petitioners' status has been shown as temporary employees in the order dated 19.7.1980, who were appointed on 1.7.1977. The order dated 19th July, 1980 has been disbelieved on the ground that there was no requirement of passing any order of regularization, with reference to the provisions of Rules of 1978. It has also been stated in the counter affidavit that the records produced before the Additional Director does not contain any such regularization order. In the counter affidavit filed before this Court, the educational authorities have denied issuance of any such order. The original dispatch register was also produced before the Court, in order to demonstrate that no such order of the date was actually issued, and genuineness of the order has been strongly doubted. A finding has also been returned in the order that Manager of the institution throughout was one Sri Harish Chandra Agarwal, and that Sri Bharat Singh, who claimed himself to be the Manager, was never elected and recognized as the Manager of the institution.

12. Attention of the Court has also been invited to an affidavit filed by Deputy Basic Education Officer, Allahabad, stating that none of the petitioners possesses qualification for appointment to the post of Assistant Teacher.

13. On 26.10.2015, following orders were passed by this Court:-

"Parties are at issue on the question as to whether petitioners possessed minimum qualification required for appointment on the date of their alleged appointment i.e. 1.7.1977.

Petitioners therefore are permitted to file a supplementary affidavit annexing the qualification held by them along with their respective age on 1.7.1977.

The District Basic Education Officer, Allahabad is also directed to file a further affidavit specifying as to whether the letter dated 19th of July, 1980 had been issued from his office.

List on 3rd of November, 2015.

A responsible Officer from the Office of District Basic Education Officer, Allahabad along with the complete records shall remain present on the next date fixed to assist the Court."

14. In para-3 of the affidavit, filed in compliance of the aforesaid directions, it is stated that available certificates of the petitioners have been filed alongwith supplementary affidavit dated 4.1.2016. From its perusal, it transpires that Deepak Kumar, petitioner no.1, had passed High School Examination, conducted by the U.P. Board, in March/April, 1976, and his date of birth is 5th March, 1959. Prima facie, it appears that petitioner no.1, Deepak Kumar, was not even an intermediate on 1.7.1977, as he had passed his High School only in 1976. Petitioner no.2, Smt. Kailash Kumari Srivastava, passed High School Examination in 1975, whereafter she appeared in intermediate in 1977. The certificate produced shows that she appeared in back paper in July, 1977. The certificate of intermediate has been issued only on 30th August, 1977, and as such petitioner no.2 also could not be an intermediate on 1.7.1977. Petitioner no.3 is stated to have passed High School in 1969, intermediate in 1971, and thereafter has done his graduation in September, 1974 and M.Com in July, 1976 (all certificates, annexed, shows petitioner's name as Om Prakash Ruia, whereas his name disclosed is Om Prakash in the writ petition, and it has not been shown that Om Prakash and Om Prakash Ruia are one and the same person). Petitioner no.4, Smt. Mamta Bansal, has passed High School Examination in 1975, and as per the supplementary affidavit filed was not even an intermediate on 1.7.1977. Petitioner no.5, Smt. Geeta Gupta, has passed High School Examination in 1975, and that is the only qualification possessed by her. Petitioner no.6, Syed Aftaq Haider, has passed High School Examination in 1973, intermediate in 1975. None of the petitioners, however, possessed any training qualification. In the supplementary affidavit, an order dated 26.4.2014 has been brought on record, according to which exemption from training has been granted to petitioner nos.2 and 6 w.e.f. 1.9.1994, but it is apparent that none of the petitioners in writ petition no.2227 of 2000 possessed any training certificate.

15. In respect of the appointment and working of petitioners of Writ Petition No.2227 of 2000, it is asserted that they were appointed on 1.7.1977, and working on the date when institution was taken on aid. According to the petitioners, proceeding for taking institution on aid had commenced with issuance of Government Order dated 31st August, 1992. A time schedule was fixed, according to which applications were to be submitted on the prescribed format by 20th September, 1992. Petitioners allege that in the manager's return, which was submitted pursuant to such Government Order, their names were shown as teachers working in the institution. This Court in order verify correctness of such averments had summoned the original records. The original records show that manager's return of 1990 exists on record, on the basis whereof institution was taken on aid, and none of the petitioners are shown as teachers or the employee working as per it. Parties are its serious issue as to whether the alleged manager's return of 1990, which does not contain the name of petitioners, is genuine or manipulated. However, it is not in dispute that this is the only manager's return available on record, which does not show petitioners to have been appointed as teachers. A counter affidavit on behalf of Sri Harish Chandra Agrawal, alleged Manager of the Committee of Management, has been filed stating that petitioners had been appointed in the institution. Reliance has been placed by the petitioners upon a decision of this Court in Riksha Pal Singh Vs. Secretary, U.P. Basic Education Board, Allahabad and others, reported in (1990) 1 UPLBEC 351, to contend that a Teacher appointed prior in point in time could not be terminated on the ground that he does not fulfill the qualification required for appointment to the post of Assistant Teacher, in terms of the Rules of 1978.

16. Petitioners' claim has been opposed by filing a counter affidavit on behalf of Educational Authorities, and by private respondents, who were subsequently impleaded vide order dated 18.1.2007. On 5.8.2010, following orders were passed in the matter:-

"By means of order dated 17th May, 2007, this Court directed the learned Chief Standing Counsel to file a copy of the Managerial Return filed along with the application for bringing the institution under the grant-in-aid within three weeks.

The record shows that the no Managerial Return has been filed till date.

Dr. Daya Shanker, learned counsel for the respondents prays that the respondents may be directed for compliance of the order dated 17th May, 2007.

In view of the above, learned Chief Standing Counsel is directed to ensure the compliance of the order dated 17th May, 2007 within a period of three weeks.

List after expiry of the aforesaid period."

17. A supplementary counter has been filed annexing therewith the manager's return for the 1990-1991, submitted on 31st July, 1990, alongwith which details of teachers working on 31st July, 1990 has been annexed. The Manager's return filed alongwith supplementary counter affidavit does not show that any of the present petitioners were working, although names of Jai Karan and Santosh Kumar Singh have been shown as teachers, working in the institution. Name of petitioner no.7 has also not been shown. The alleged order of July, 1990 has also been annexed. A counter affidavit has also been filed by Santosh Kumar Singh on behalf of respondent nos.8 to 13, disputing the claim of petitioners. Various supplementary counter affidavits have been filed on behalf of respondents from time to time.

18. Following orders were passed in this petition on 20th January, 2016:-

"Supplementary affidavit filed today on behalf of the petitioner bringing on record certain Government Orders is taken on record.

Learned counsel for the respondents, in case they are so advised may file a reply annexing therewith the Government Orders, which they intent to rely upon.

Learned counsel appearing for the Basic Education Department shall file an affidavit clearly disclosing as to on the date of alleged appointment of the petitioners i.e. 1.7.1977 what were the service conditions and eligibility criteria for appointment of Assistant Teacher in the Institution.

List in the next cause list."

19. An affidavit of Sri Raj Kumar, District Basic Education Officer, Allahabad, dated 24th February, 2016, has been filed. Paragraphs 3 and 4 of the affidavit reads as under:-

"3. That as per direction of Hon'ble Court dated 20.1.2016 the answering respondent have gone into 'Uttar Pradesh Basic Shiksha Karmchari Varg Niyamawali, 1973' read with 'Uttar Pradesh Basic Education Act, 1972', and after examining the provisions enshrined under U.P. Basic Shiksha Karmchari Varg Niyamawali, 1973, the deponent has gone into the qualification as prescribed under Rule 10 of said Rules, wherein the minimum educational eligibility criteria has been mentioned. Rule 10 of said Rules reads as under:-

"Rule 10: Educational Qualification-

The minimum educational qualifications are as under:-

(a). Teachers of Nursery Vidyalaya:-

Nursery Training from Trained Institutions.

(b). Teachers (Male/Female) for Junior Basic Schools:-

Trained High School/Teachers from old trained Junior High Schools are eligible for appointments.

(c). In Senior Basic Institutions, Teachers (Male/Female) are being appointed, who possess the minimum educational qualification of Intermediate with Training."

4. That in view of aforesaid, it is evident to mention here that before commencement of Uttar Pradesh Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Services of Teachers) Rule, 1978, the minimum qualification for an appointment of a teacher for Junior Basic Schools was 'High School with Training' as well as Junior High Schools for 'Old Teachers with Training' and for Senior Basic Institutions, the minimum educational qualification was prescribed 'Intermediate alongwith Training Qualification'. The training qualification is said to be BTC, HTC, JTC etc. ..."

20. It is in the context of these facts and circumstances that petitioners' claim for payment of salary is required to be considered. Admittedly, none of the petitioners possesses training qualification. The service rules in respect of teachers of privately managed Junior High Schools were framed in 1978, which required minimum qualification of intermediate with recognized training qualification. The minimum qualification otherwise specified in respect of teachers of Junior High School under U.P. Basic Education Employees Service Regulations, 1973, readwith Basic Education Act, 1972, is trained High School for Junior Basic Schools and trained Intermediate for Senior Basic Schools. Learned counsel for the petitioners contend that prior to framing of 1978 rules, there existed no rules, which prescribed any minimum qualification for appointment of teachers. In case this contention is to be accepted, then anybody could become a teacher and claim salary from State. This contention, therefore, cannot be accepted. It cannot be presumed that task of teaching students could be left to even an illiterate person. Even if no statutory rules existed on 1.7.1977, prescribing the minimum qualification for appointment to the post of Assistant Teacher in a Junior High School, yet, the State would be justified in insisting upon a reasonable qualification to be possessed, before he/she could be held entitled to payment of salary from the State. Apex Court, in its decision in State of Orissa Vs. Mamata Mohanty; (2011) 3 SCC 436, has been pleased to hold that possessing of minimum qualification is essential for standard of education to be maintained, and the State would be justified in insisting upon minimum qualifications to be possessed for grant of aid. The minimum qualification prescribed in respect of similar teachers under U.P. Basic Education Employees Service Regulations, 1973 readwith U.P. Basic Education Act, 1972, is a trained matriculate. The possessing of training qualification is otherwise mandatory by virtue of the Clause-4 of the Government Order dated 20.3.1997. Petitioners admittedly do not possess any recognized training qualification on the date of their appointment i.e. 1.7.1977. It is, therefore, to be observed that the petitioner nos.1 to 6 could not have been validly appointed in the institution due to lack of minimum qualification possessed, nor in its absence, they are entitled to payment of salary from State, in view of Clause-4 of the Government Order dated 20.3.1997.

21. There is a serious issue on facts as to whether petitioners' appointment had been approved. The petitioners have referred to the approval dated 31st of July, 1990 but no such order exists on record. The original dispatch register has been produced before the Court to show that no such letter/order was dispatched on the relevant date. Even otherwise, no provision has been shown under the rules of 1978, whereunder any order of regularization/approval could be issued. I am, therefore, inclined to hold that no order of approval exists in favour of the petitioners, as alleged by them, in terms of Clause-4 of the Government Order dated 20.3.1997. So far as petitioner no.7 is concerned, no approval of appointment exists in her favour either, once the approval dated 31st of July, 1990 is disbelieved.

22. Although an affidavit has been filed by the respondents, pursuant to order of this Court, holding that petitioners are working in the institution, but it is observed that their continuation in the institution was under interim order passed by this Court, and as such, not much importance can be attached to it. Even the payment of salary to petitioners have been made under the interim orders.

23. In view of the discussions made above, none of the petitioners of writ petition no.2227 of 2000 are found entitled to payment of salary from the State, and rejection of their claim, vide order dated 18.12.1999, suffers from no illegality. The writ petition, consequently, fails, and is dismissed. It is, however, provided that no recovery shall be made from the petitioners of the amount already disbursed to them, under the interim order. However, the amount lying in deposit with the Registry of this Court shall be remitted back to the concerned educational authorities of the State.

Claim of petitioner in Writ Petition No.2750 of 2000:-

24. Writ Petition No.2750 of 2000 has been filed by one Santosh Kumar Singh, claiming himself to be validly appointed Assistant Teacher in the institution on 30.6.1986. He was impleaded as respondent no.14 in writ petition no.22771 of 1991, and his claim for payment of salary, out of State funds, has also been rejected by the same impugned order of Additional Director, dated 18th December, 1999. The order is under challenge in this petition. A further prayer has been made to direct the respondents to release salary to the petitioner, who is stated to be working since 1990. This petition was connected alongwith writ petition no.2227 of 2000 on 24th January, 2000. While issuing notices, no interim protection was granted. Pleadings have been exchanged between the parties.

25. Admittedly, appointment of petitioner has been made after the rules of 1978 got enforced. There is nothing on record to show that procedure contemplated for appointment of a teacher in terms of the rules of 1978 had been followed. Petitioner is also not trained. He has also not been found to be working in the institution, in the affidavit filed by the authorities pursuant to the orders passed in Writ Petition No.2227 of 2000. Petitioner, however, claims that his appointment has been approved on 15.7.1990, and his name was included in the list of teachers in the manager's return.

26. The claim has been opposed by the respondents. Although it is not disputed by State respondents that petitioner's name figured in the manager's return, but so far as alleged approval to petitioner's appointment is concerned, it is stated that the approval letter dated 15.7.1990, relied upon by the petitioner, is forged, and has otherwise not been issued. It is also pointed out that 15.7.1990 was a Sunday.

27. Examining petitioner's claim in light of para-4 of the Government Order dated 20.3.1997, it is found that appointment of petitioner was not made in accordance with law, in view of the fact that procedure contemplated for appointment under the rules of 1978 had not been shown to have been followed. The alleged approval of 1990 otherwise appears to be forged, as no office order would be issued on a Sunday. The alleged approval dated 15.7.1990 is otherwise not available on record. Petitioner also does not possess the training qualification prescribed. In such view of the matter, his claim for payment of salary has rightly been rejected, and requires no interference.

Claim of petitioner in Writ Petition No.36093 of 2005:-

28. Writ Petition No.36093 of 2005 has been filed by Jai Karan Singh, claiming himself to have been appointed as Assistant Teacher on 30th June, 1977. His claim for payment of salary has also been rejected, vide order dated 18th December, 1999, which has been assailed in the writ petition, by way of amendment. The petitioner has also challenged an order dated 23rd March, 2005, contained in Annexure-19 to the writ petition, whereby the order dated 18.12.1999 has been reiterated, after the claim of petitioner was examined pursuant to an order passed by this Court on 24.8.2004. The Writ Petition No.34320 of 2004 was filed by the petitioner, claiming himself to be the Principal of institution.

29. Petitioner alleges that he was appointed on 30th of June, 1977 by Sri Bharat Singh, the then Manager of the institution. It is claimed that his appointment was approved on 15.7.1990, and that he has been appointed as Principal on 1.3.2000.

30. Petitioner's claim is opposed by the respondents, contending that Bharat Singh was never recognized as Manager, and that he was running a different institution; the alleged approval letter dated 15.7.1990 is forged; that petitioner has filed original suit no.820 of 1998, in which he has admitted that no approval has been granted to his appointment. It is also stated that petitioner did not possess required training qualification.

31. While dealing with the claim of petitioner Santosh Kumar Singh, I have already held, for the reasons stated, that alleged approval letter dated 15.7.1990 is not a valid document, and cannot be relied upon. It is otherwise undisputed that petitioner did not possess required training qualification. It is further not in dispute that Bharat Singh was never recognized as Manager of the institution. Petitioner has also not been found to be working. Plaint of original suit no.820 of 1998 has been filed alongwith the rejoinder affidavit filed in writ petition no.2227 of 2000 to show that there exists a clear admission of the petitioner that no approval has been granted to his appointment. This admission is sought to be explained by contending that the approval referred to in the plaint was for the post of Headmaster. This explanation also is not convincing, inasmuch as no other approval to petitioner's appointment has been disclosed in the plaint.

32. In the absence of any valid appointment made by the recognized Manager, absence of training qualification possessed, and on account of the fact that no approval has been granted to petitioner's appointment, the order rejecting petitioner's claim for payment of salary out of State fund does not appear to suffer from any infirmity in the eyes of law. The writ petition lacks merit.

33. For the reasons stated, all the three writ petitions fail, and are dismissed. There shall, however, be no order as to costs.

Order Date :- 27.4.2016

Anil