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1990 DIGILAW 545 (ALL)

Umesh Kumar v. Joint Secretary

1990-05-18

K.P.SINGH, R.A.SHARMA

body1990
JUDGMENT : K.P.Singh, J. 1. The petitioners are untrained teachers in Harijan Primary Pathashalas in the district of Ghazipur. They have drawn Rs. 335/- which is monthly salary according to the new pay scales. They have been paid till December, 1987. Since January, 1988 their payments have been stopped. They are in service and are still working as Assistant Teachers untrained in Harijan Primary Pathashalas. It has been stated in para 21 of the writ petition that they are in service and their services have neither been suspended nor terminated but payment to them have been stopped. 2. Aggrieved, the petitioners have approached this Court under Article 226 of the Constitution. They have prayed for the following reliefs :- (a) issue a writ, rule, order or direction in the nature of certiorari quashing the Government Order No. 1778/26-78-7 (88)/74, dated 4th April, 1978. (b) issue a writ, order or direction in the nature of certiorari quashing the letter dated March 16th 1988 written by Additional Director Harijan and Social Welfare Lucknow to Deputy Director, Harijan and Social Welfare, Varanasi, Region, Varanasi. , (c) issue a writ, order or direction in the nature of certiorari to quash the letter dated 16-12-1988 (Annexure no, 14 to this writ petition). (d) issue a writ, order or direction in the nature of mandamus to the respondents to pay the regular salary of the petitioners. (e) issue a writ, rule, order or direction in the nature of mandamus to the respondents to pay the arrears (from January, 1988) very soon. (f) issue other writ, order or direction which this Honourable Court deems fit and proper. (g) award costs of the petition to the petitioners. According to the counter affidavit filed in this case, it appears that according to the opposite parties, the petitioners were not legally appointed, therefore, the opposite parties have taken stand that their payments have been correctly stopped in the present case. Vide para 8 of the counter affidavit, it has been admitted that the petitioners have been paid till December, 1987. In para 10 of the counter affidavit, it has been emphasized that the appointment of untrained teachers is not in consonance with the Government Order dated 4-4-1978, therefore, there is no duty upon the opposite parties to pay the salary of the petitioners. 3. In para 10 of the counter affidavit, it has been emphasized that the appointment of untrained teachers is not in consonance with the Government Order dated 4-4-1978, therefore, there is no duty upon the opposite parties to pay the salary of the petitioners. 3. After hearing the learned counsel for the parties, we think that the petitioners are entitled to their pay till their services are terminated strictly in accordance with law. In the present writ petition are not deciding the various contentions raised by the parties. We confine our conclusions to the question that admittedly when the petitioners are in service and are performing their duties and if their appointments are not in consonance with the Government Order of 1978 and they had been paid till December, 1987, there is no earthly reason why the petitioners should not be paid till they are serving the institution. We think that the opposite parties are wrong in not paying the salary to the petitioners for the last two years and more. The ends of justice demands that the opposite parties may be directed to pay the salary of the petitioners till they are in the service of the institution. 4. It is note-worthy that some untrained teachers who have been appointed after 29-3-1985 and their services have been terminated, vet they are getting salaries due to stay order of this Court in Writ Petition No. 15309 of 1985 Nagendra Singh v. Dy. Director, Harijan and Social Welfare, Gorakhpur. Since the petitioners have been appointed much before 29-3-1985 and they have been paid till December, 1987, we think that it is but proper that the petitioners should be paid their salary till they are serving the institution. It is necessary to observe that on the materials in the present writ petition there is a dispute between the parties whether the petitioners were legally appointed. According to the petitioners they have been legally appointed and according to the opposite parties their appointment is illegal and that the opposite parties and their officers have committed wrong in appointing the petitioners and the officers might be called upon for their conduct. In such circumstances, it is but proper that the petitioners should not be punished for the wrong of the officers of the opposite parties who have appointed the petitioners in contravention of the G. O. of 1978. In such circumstances, it is but proper that the petitioners should not be punished for the wrong of the officers of the opposite parties who have appointed the petitioners in contravention of the G. O. of 1978. If knowingly the petitioners who were untrained teachers were appointed and there is provision for training of untrained teachers, why should the petitioners be not afforded an opportunity for training and why should they not be absorbed in the institution specially when their appointments were necessitated due to the strength of students in the institutions. Since the petitioners are working in the institution, their payment should not be stopped otherwise it would lead to starvation of their familes. In the facts and circumstances of- this case, it is desirable that the opposite parties should pay the arrears of salary to the petitioners within a month from the date when a certified copy of this order is produced before them. 5. It is note-worthy that the qualification at the time of appointment should be seen. Any subsequent condition would not invalidate the appointment and the appointment authority is under obligation to adhere to the situation on the date of appointment. In this view of the matter it would be but proper for the opposite parties to deal with the claim of the petitioners strictly in accordance with the situation relevant at the time of appointment. 6. In AIR 1990 Supreme Court p. 371 Bhagwati prasad v. Delhi State Mineral Development Corporation, their Lordships of the Supreme Court have made the follow low observations in para 6 of the judgment :- ....................The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time. It would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualification." The other contentions raised in the present writ petition are not necessary to be dealt with at present. It would be open to the petitioners to take up all the points involved in the present writ petition if their services are terminated hereafter by the opposite parties. 7. It would be open to the petitioners to take up all the points involved in the present writ petition if their services are terminated hereafter by the opposite parties. 7. It is note-worthy that their Lordships of the Supreme Court in AIR 1990 SC 592 Ram Sukh v. State of Rajasthan have dealt with the fate of untrained primary school teachers. They have indicated in para 8 of their judgment as below :- "...........................Since the petitioners have served in rural areas, it would be proper for the Government to allow them relaxation in age to the extent of service rendered as teachers, for appointment under the State if they possess other requisite qualifications............." 8. For the foregoing discussion, the writ petition succeeds and the' opposite parties are directed to pay the regular salary of the petitioners till they are in service of their respective institution s. It is also proper for the opposite "parties not to terminate the services of the petitioners till the writ petition No. 15309 of 1985 Nagendra Singh v. Deputy Director, Harijan and Social welfare, Gorakhpur is decided by this Court. It is also desirable that the petitioners' claims hereafter should be decided strictly in accordance with dictum of law laid down by their Lordships of the Supreme Court in the cases mentioned above. There would be no order as to costs. Petition allowed.