Allahabad High Court
Shiv Prakash Tiwari And Others vs Director Of Secondary Education ... on 14 March, 2019
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved on 28.02.2019
Delivered on 14.03.2019
Court No. - 34
Case :- WRIT - A No. - 9997 of 2001
Petitioner :- Shiv Prakash Tiwari And Others
Respondent :- Director Of Secondary Education And Others
Counsel for Petitioner :- B.S.Pandey,R.S. Pandey
Counsel for Respondent :- C.S.C.
Hon'ble Sudhir Agarwal,J.
1. Heard Sri B.S.Pandey, learned counsel for petitioners and learned Standing Counsel for respondents 1 to 5.
2. This writ petition under Article 226 of Constitution of India has been filed by three petitioners namely Shiv Prakash Tiwari, Ray Sahab Singh and Devendra Pratap Singh praying for issuance of writ of mandamus commanding respondents to release salary to petitioners 1 and 2 from July, 1991 to July, 1998 and December, 1998 onward and in respect of petitioner 3 from September, 1997 to July, 1998 and December, 1998 onward, alongwith interest at the rate of 18%. Petitioners have also sought a writ of mandamus commanding respondents to consider petitioners 1 and 2 for regularization under Section 33-C(1) (a) of Uttar Pradesh Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as "Act, 1982").
3. Shree Krishna Vidya Mandir Uchchattar Madhyamik Vidyalaya, Gajendrapur, District Jaunpur (hereinafter referred to as 'School') is a Secondary Education Institution. It is governed by the provisions of "U.P. Intermediate Education Act, 1921" (hereinafter referred to as "Act 1921"). Payment of salary to teaching and non-teaching staff is governed by the provision of "U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act 1971" (hereinafter referred to as "Act 1971"). Recruitment of teaching staff is governed by the provisions Act 1982.
4. Due to resignation tendered by Sri Gayadeen Kevat and Surendra Bahadur Singh, Assistant Teacher (C.T. Grade) (converted to L.T.Grade), requisition sent by Management of School vide letter dated 12.4.1991 proposing one teacher in English and another in Sanskrit. Since no recommendation was made by Commission/Board within two months, Management proceeded for making adhoc appointment in accordance with the procedure laid down in Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981 (hereinafter referred to as "First Order").
5. An advertisement was published in daily newspapers "Tarun Mitra" dated 26.6.1991 wherein three vacancies of Assistant Teachers (L.T.Grade) in English and Maths were advertised. All the three petitioners were selected and appointed on adhoc basis vide appointment letter dated 28.07.1991, 28.07.1991 and 01.9.1997 respectively. The aforesaid appointments were approved by District Inspector of Schools, Jaunpur (hereinafter referred to as "DIOS") vide letter dated 15.09.1997. Subsequently, it appears that salary was stopped hence petitioner 1 Shiv Prakash Tiwari filed Writ Petition No.16674 of 1999, which was finally disposed of vide judgment dated 24.9.1999. Operative part of judgment reads as under :
"In view of the aforesaid facts, it is hereby directed as under :-
(1) The petitioners shall make an applications for payment of their salaries within 10 days from today before the District Inspector of Schools, respondents No.1.
(2) If application is filed by the petitioners within the aforesaid time it shall be decided by the respondent no.1 within a month thereafter in accordance with law by a speaking order.
With these observations and directions these petitions are finally disposed of."
6. DIOS then passed order dated 30.10.1999 holding that appointment of petitioners have been found in accordance with rules hence their salary is being released. However, with regard to validity of appointment of petitioners, Director of Education made certain queries vide letter dated 20.7.2000. The said queries of Director of Education were forwarded by DIOS to Management of School to give reply to those queries. The same was replied by Manager/Principal of School vide letter dated 05.08.2000 wherein it was clearly said that appointments of petitioners were made under First Order and it was also pointed out that three vacancies, on which petitioners were appointed, for the same requisitions were sent on 09.03.1992. Since in view of aforesaid queries, petitioners' salaries was again stopped hence they filed present writ petition wherein an interim order was passed on 20.3.2001 which reads as under :
"Connect with the writ petition No.67 of 2000 involving similar controversy. Learned Standing Counsel appearing for respondent Nos. 1 to 5 prays for and is granted a month's time to file a counter affidavit. Rejoinder affidavit, if any, may be filed within one week. List in the week commencing 7th May, 2001.
In view of the order of approval dated 15.9.97 passed by the District Inspector of School wherein the appointment of the petitioner have been approved, the District Inspector of Schools is directed to pay current salary to the petitioner within one month of the certified copy of this order is filed before him or to show cause within the same period."
7. Respondents have filed a counter affidavit stating that vide office order dated 31.5.2004, salary of petitioners 1 and 2 was released and they are getting salary. Similarly, vide order dated 12.9.2006 salary of petitioner 3 has also been released but he has left the job on 26.6.2018. Till the date petitioner 3 left the job in the School, he was getting salary. Copies of three orders dated 31.05.2004, 31.05.2004 and 12.9.2006 have been placed on record to show that salary has been released but it is subject to final order passed by this Court.
8. Now, by means of amendment application, petitioners claim that for certain period, salary has not been paid though their appointments have been found valid therefore they are entitled for salary for entire period they have worked pursuant to their ad hoc appointment in the School. It is also stated that petitioners are also entitled to be considered for substantive appointment under Section 33-C of Act, 1982.
9. Since respondents' admitted case is that petitioners' appointment are valid and for substantial period salary has also been paid to them, I find no reason to deny salary to petitioners for some other period, they have have worked. So far question of substantive appointment concerned, petitioners are entitled to have their matter to be considered by Competent Authority in accordance with Section 33-C of Act, 1982.
10. In view thereof, writ petition is disposed of finally directing DIOS to look into the matter and pass appropriate order with regard to claim of petitioners for payment of salary for the period it has not been paid and consider claim of petitioners for substantive appointment of petitioners under the provision of Act, 1982.
11. While considering question of substantive appointment, Competent Authority of respondent shall look into the law laid down by five Judges' Bench of this Court in Special Appeal No. 280 of 2013 (Jahaj Pal Vs. District Inspector of Schools and Another) decided on 21.02.2019.
12. The aforesaid exercise shall be completed by respondents Competent Authority within three months from the date of production of a certified copy of this order before him.
Order Date :- 14.03.2019
KA
