Smt. Anju Tiwari And Others vs State Of U.P. Thru. Prin. Secy. ...
2019 Latest Caselaw 822 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 23
 

 
Case :- SERVICE SINGLE No. - 12202 of 2018
 

 
Petitioner :- Smt. Anju Tiwari And Others
 
Respondent :- State Of U.P. Thru. Prin. Secy. Madhyamik Shiksha And Others
 
Counsel for Petitioner :- Manish Kumar
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajesh Singh Chauhan,J.

Heard Sri Manish Kumar, learned counsel for the petitioners and Sri Ran Vijay Singh, learned Additional Chief Standing Counsel for the State-respondents.

By means of this writ petition, the petitioners have prayed that the District Inspector of Schools, Hardoi (here-in-after referred to as the "D.I.O.S.") be directed to pay the regular monthly salary to the petitioners regularly each and every month along with their arrears since their date of appointment/ joining i.e. 27.03.2017.

The Arya Kanya Pathshala Inter College, District-Hardoi (here-in-after referred to as the "Institution") is a recognized Institution by the Board and is in the list of grant-in-aid Institutions. The Institution is being run by the Society known as Arya Samaj, District Unit, Hardoi for imparting education for Classes from-II to XII.

As per learned counsel for the petitioners, the Board sanctioned total 8 posts, against which the teachers are teaching in the Institution in Primary Section. The substantive vacancies have occurred due to promotion of 3 Assistant Teachers from Primary Section to L.T. grade in the year 2016. Out of 3 Assistant Teachers, 2 belongs to the general category and 1 belongs to Scheduled Caste category. On occurrence of the vacancy, the Manager of the Institution forwarded the request to the office of the D.I.O.S. for its approval for filling up those vacancies and the approval has been granted by the D.I.O.S. on 01.08.2016, which is contained as Annexure No.RA-3 to the rejoinder affidavit.

After the aforesaid approval, the Manager of the Institution made an advertisement in two daily newspapers, namely, "Dainik Jagran" and "Aaj" on 04.09.2016. As per the advertisement, the petitioners fulfilled the qualifications as prescribed and applied against the posts and appeared in the interview held on 23.10.2016, as mentioned in the advertisement, along with other candidates.

After completing the aforesaid selection, the Committee of Management of the Institution forwarded the papers of the petitioners to the D.I.O.S. and the D.I.O.S. has forwarded the same to the Mandaliya Samiti. Thereafter the approval for appointment has been granted by the Mandaliya Samiti and in pursuance of which on 27.03.2017 the appointment letters have been issued in favour of the petitioners. Accordingly, the petitioners have submitted their joining on the same date i.e. 27.03.2017. After joining of the petitioners, the documents have been forwarded to the respective Board/ University for the purposes of verification of the documents and the same have returned back by the concerned Board/ University to the Institution in the second week of May, 2017 to the best of the information of the petitioners.

After the aforesaid exercise being carried out, the salary bills of the petitioners must have been forwarded to the Competent Authority.

As per learned counsel for the petitioners, the petitioners have not been paid their salary so the petitioners approached the authorities concerned for claiming their salary, for which, they were legally entitled.

As per learned counsel for the petitioners, when more than five months have passed from the date of submission of salary bill of the petitioners, the petitioners made representation dated 08.11.2017 to the D.I.O.S. concerned for making payment of salary specifically mentioning therein that after verification of the documents with the Board/ University, the salary of the petitioners have been forwarded by the Manager of the Committee of Management to the office of the D.I.O.S.

As per Sri Manish Kumar, learned counsel for the petitioners when no action has been taken by the opposite parties by passing an appropriate order for payment of salary to the petitioners, the petitioners preferred another representation dated 09.01.2018 by hand on 10.01.2018 to the Joint Director, Education, Shashtham Mandal, Lucknow. The Joint Director of Education passed an order dated 20.02.2018 addressing to the D.I.O.S. with the clear findings that in the present matter at the divisional level, the Committee of Management constituted under the Chairmanship of the Joint Director of Education, a decision has been taken regarding approval for payment of salary to the petitioners, therefore, there is no requirement to issue any direction separately.

As per learned counsel for the petitioners, despite the aforesaid order being passed on 20.02.2018 by the Joint Director of Education, the petitioners have not been paid their salary.

Feeling aggrieved against the aforesaid inaction on the part of the D.I.O.S., the petitioners have filed the instant writ petition.

This Court vide order dated 27.04.2018 directed the learned Standing Counsel to seek instructions in the matter and vide order dated 08.10.2018 directed to file the counter affidavit.

Learned Additional Chief Standing Counsel filed counter affidavit on 29.10.2018. In the aforesaid counter affidavit, the learned Standing Counsel has submitted that the State Government has made the provisions of selection of teachers in the Primary Sections attached with the Inter College vide Government Order dated 03.01.2017 and the selection proceedings has to be carried out in accordance with the aforesaid Government Order. The said Government Order dated 03.01.2017 has been annexed as Annexure No.CA-1 to the counter affidavit.

Learned Additional Chief Standing Counsel has submitted that in the Primary Section of the said Institution, total 8 posts are sanctioned and in view of the sanctioned posts, the payment of salary is being made to 5 teachers. He has further submitted that appointment of 3 Assistant Teachers have been made by the Committee of Management in addition to the sanctioned strength.

As per learned Additional Chief Standing Counsel, there shall be one teacher for one class in the Primary Section from Class-I to Class-V and in the Institution in question, 5 teachers are already working and getting their salary from the public exchequer. Therefore, remaining 3 teachers, the petitioners hereto, are not entitled to get salary as their selection has been made in contravention to the Government Order dated 03.01.2017.

It is to be noted here that in para-8 of the counter affidavit it has categorically been admitted by the State-respondents that in the Primary Section of the said Institution, total 8 posts are sanctioned. Since there are total 8 posts, how the payment of salary can be denied to the petitioners.

Learned counsel for the petitioners has drawn attention of this Court towards Annexure No.7 to the writ petition, which is a letter dated 27.12.2017 preferred by the D.I.O.S. to the District Magistrate, Hardoi wherein the D.I.O.S. has categorically indicated that since the exercise of verification of the documents of the petitioners is in progress, therefore, the payment of salary would be made to them after verification of the documents.

Admittedly, no reference of Government Order dated 03.01.2017 has been made. He also drawn attention of letter dated 25.03.2017 (Annexure No.RA-4), which has been preferred by the D.I.O.S. to the Manager of Committee of Management of the Institution (opposite party No.4), wherein he has indicated that as soon as the documents of the petitioners shall be verified from the Board/ University, the necessary exercise for making payment of salary would be carried out. Admittedly, in the aforesaid letter dated 25.03.2017, there is no reference of the Government Order dated 03.01.2017.

Sri Manish Kumar, has submitted with vehemence that the reference of the Government Order dated 03.01.2017 in the instant matter is incorrect and misconceived for the reason that the selection whereupon the petitioners have been selected had started in the year 2016, more particularly, in July, 2016, whereas the Government Order dated 03.01.2017 had been issued subsequently and the same would not be applicable upon the selection process which has already started. He has further submitted that the Government Order dated 03.01.2017 does not have any retrospective effect. Further, the selection of the petitioners has been conducted in accordance with the Government Order dated 25.05.2012 (Annexure No.RA-1) which was holding the field at the relevant time. He has further submitted that once the approval for selection of the petitioners has already been approved by the Competent Authority, the claim of the petitioners cannot be refused on the ground of Government Order dated 03.01.2017. Further, the Government Order dated 03.01.2017 is contrary to the statutory provisions of Right of Children to Free and Compulsory Education Act, 2009, wherein the teacher people ratio has been prescribed to be 1:40 for the Institutions where the strength of the children is above 200 and in the present case the strength of the children is more than 400 and, as such, as per the statute there is requirement of as many as 10 teachers in the Institution.

Therefore, Sri Manish Kumar has submitted that if for sake of arguments, it is admitted that the Government Order dated 03.01.2017 speaks otherwise or speaks against the petitioners, even then in view of the aforesaid Act, 2009, the selection of the petitioners has rightly been made.

Sri Manish Kumar has also drawn attention of this Court towards Annexure No.RA-5 of the rejoinder affidavit, which clarifies the sanctioned strength of the teachers in the Institution from 1986, which clearly reveals that right from 1986 to 2016, the strength of the teachers in the Institution in question is 8. This fact has however been admitted by the State-respondents in the counter affidavit, in para-8 thereof.

Sri Manish Kumar has also submitted with vehemence that till date, there is no withdrawal with respect to sanctioned posts in the Institution in question, which is admitted position by the State-respondents himself.

Sri Manish Kumar has placed reliance upon the judgment of Division Bench of this Court rendered in re: Naresh Chandra Gupta vs. Collector, Meerut and others reported in (2018) 3 UPLBEC 1976, wherein this Court has followed the settled proposition of law of Hon'ble Apex Court that once a selection proceeding has been initiated and during the pendency of the selection proceeding, if rule is amended, that will not effect the selection proceeding already going on. As per the Division Bench, once the game has started, the rules of the game cannot be changed.

He has also placed reliance upon the Judgment of Hon'ble Apex Court in re: N.T. Devin Katti and others vs. Karnataka Public Service Commission and others reported in (1990) 3 SCC 157 submitting that the Hon'ble Apex Court has held that if an eligible person has qualified in accordance with the relevant rules and terms contained in the advertisement, he / she does acquire a vested right of being considered for selection in accordance with the rules as they existed on the date of advertisement. As per the Hon'ble Apex Court, the person cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless the amended rules are retrospective in nature.

He has further cited the dictum of Hon'ble Apex Court in re: Union of India and others vs. B. Valluvan and others reported in (2006) 8 SCC 686 submitting that Hon'ble Apex Court has held that the Selection Committee is bound to comply with the selection process only in terms of existing rules. The Hon'ble Apex Court has further held that the Selection Committee is bound to follow the stipulations made in the advertisement itself.

I have heard learned counsel for the parties and perused the material available on the record.

In the issue in question, I have found that the appointment of the petitioners has been made strictly in accordance with law, pursuant to the advertisement and also in the light of the Government Order which was holding the field at that point of time. Further, there were only 8 sanctioned posts of the teachers in the Institution in question since 1986 and all 8 teachers were getting their regular salary. Further, now there are total 8 teachers in the Institution in question including the petitioners. Further, as per the provisions of Right of Children to Free and Compulsory Education Act, 2009, there should be atleast 10 teachers in the Institution in question, however, only 8 teachers are imparting education including the petitioners. Therefore, there may be no infirmity or illegality of any kind whatsoever in the appointment of the petitioners in the Institution in question.

Not only the above, in the light of the dictum of Hon'ble Apex Court as well as of this Court, as referred above, I am of the considered view that the petitioners are legally entitled to be paid regular monthly salary with effect from the date of their respective appointment/ joining i.e. 27.03.2017.

Accordingly, the writ petition is allowed.

A writ in the nature of mandamus is issued commanding the opposite party No.3 i.e. the District Inspector of Schools, Hardoi to pay regular monthly salary to the petitioners regularly each and every month along with their arrears since their date of appointment/ joining i.e. 27.03.2017, with expedition, preferably within a period of eight weeks from the date of presentation of a certified copy of this order, failing which, the petitioners may be entitled for the interest.

No order as to cost.

Order Date :- 8.3.2019

Suresh/

[Rajesh Singh Chauhan,J.]