Judgment : M.L. Bhat 1. THE two writ petitions No. 20320 of 1991 and 9955 of 1992 are decided by a common judgment because they relate to the same institution and controversy raised in both the writ petitions is inter-related. 2. IN writ petition No. 20320 of 1991, petitioner seek a writ of mandamus directing the respondents to treat and to include the 30 preexisting post of C. T. Grade teachers existing and not dead while calculating the total strength of sanctioned teachers in the institution and not to treat the C. T. grade post as dead for the purpose of determination of Government aid for payment of salary to the teachers and staff of the petitioner's institution, and they pray for issuance of writ of mandamus commanding the respondent to make payment of salaries to all the teachers and staff of the institution whose names were recommended by D.I.O.S, Deoria vide his final recommendation letter dated 24-1-1992 for teachers and staff of the Institution. In the writ petition No. 9955 of 1992, petitioner pray for a writ of mandamus commanding the respondents to make payment of salary to the teachers and staff working in the institution since before the school was upgraded to High School and to make payment of salary as and when it becomes due along with the arrears of the salary. 3. FACTUAL position which emerges out from the pleadings of the parties are summarrised as under. 4. THE institution in question is said to be a registered society. THE main object of the society is to develop the educational standard in the area where it exists. THE affairs of the institution are looked after by the duly elected Committee of Management. In 1971-72, the school was granted temporary permission for running junior high school. In the year 1976 permanent recognition for junior high school was accorded to it. THE strength of teacher and staff in the year 1976 was 31 which would include 15 trained teachers, 11 untrained teachers, 4 peons and one clerk. THE Basic Shiksha Adhikari vide his letter dated 23-11-1979 granted conditional approval of the staff including trained teachers and untrained teachers. Untrained teachers had to complete their training at the junior high school stage. There were 22 sanctioned post of Assistant teachers including the Head Master. THE Basic Shiksha Adhikari vide his letter dated 23-11-1979 granted conditional approval of the staff including trained teachers and untrained teachers. Untrained teachers had to complete their training at the junior high school stage. There were 22 sanctioned post of Assistant teachers including the Head Master. THE Committee of Management is said to have requested the authorities to treat the post of Head Master over and above the list of 26 teachers. This controversy remained unsolved upto the junior stage. School was upgraded as high school on 8-3-1982 and according to the requirement of the school additional posts were sanctioned. Additional sections were permitted to be opened on 22-8-1984 by the D.I.O S. Additional sections of Class VI to X were permitted to be opened by the D.I.O.S. After knowing the strength of the students on roll this permission was granted. There were 23 sections in all. For additional sections further permission was granted as a result of which there were 30 sections in all classes. On 10-8-1990 D.I.O.S. is said to have written to D D.R. VIIth Region, Gorakhpur for creation of further posts of teachers and staff in accordance with the strength of students as per norms provided under the Act and Rules framed thereunder. THE recommendation was accepted by D.D.R. vide his letter dated 31-8-1990/ 3-9-1990. 10 posts of L. T. grade teachers along with other staff was created. C. T. grade teachers were left out on the ground that C. T. grade posts has become dead. This observation is said to be unjustified and totally wrong because 26 teachers of C. T. grade were already working right from the Junior High School stage as such the posts held by them could not be said to be dead. Out of 26 C! T. grade teachers 14 teachers have put in more than 10 years of service who under law are entitled to get L. T. grade. Other 12 C. T. grade teachers have completed 8 years of service and if their period of experience as untrained teachers is also counted they also have completed 10 years of service in C. T. grade. Detailed description was given to the respondents in this regard. THE D.I.O.S. is said to have granted provisional sanction for adjustment of 21 teachers by his letter dated 27-8-1990 with a condition that it would be subject to the approval of D.D.R. VII. Detailed description was given to the respondents in this regard. THE D.I.O.S. is said to have granted provisional sanction for adjustment of 21 teachers by his letter dated 27-8-1990 with a condition that it would be subject to the approval of D.D.R. VII. By the same letter approval was granted for 10 L. T. grade teachers, one post of clerk and 8 posts of IV class employees. THE D.I O.S. thereafter vide his letter dated 10-10-1990 is said to have written to the D.D.R. VII for creation of further 6 posts of L. T. grade teachers and 4 posts of C. T. grade teachers, the D.D.R. VII vide his letter dated 2-2-1991 finally sanctioned additional 6 posts of L. T. grade teachers increasing the total strength of L. T. grade teachers to 16. He further raised one additional post of clerk and one additional post of peon. However, he did not say anything about the conversion of pre-existing C. T. grade posts to L. T. grade or the adjustment of C. T. grade teachers into L. T. grade teachers. This arrangement was conveyed to the petitioner by the D.I.O.S, vide his letter dated 25-2-1991. The Government Order dated 4th September 1990 indicates that after the notification, the C.T. grade posts will be converted into L.T. grade. The petitioner is said to have written to D.I.O.S. on 1-7-1991 about the difficulty faced by them with regard to the payment of salary to the teachers and staff which was not being legally adjusted towards the additional posts. The sanctioned strength of C.T. grade teachers at junior high school level was 26 and after increase of sections 16 more teachers for 12 sections of Class IXth and Xth were required. Though the respondents No. 2 and 3 have tried to fulfil the need of class IXth and Xth but they have not cared for class VIth to VIIIth. D.I.O.S. has also recommended vide his letter dated 3-7-1991 case of C.T. grade teachers. Though the respondents accepts the pre-existing posts of C.T. grade teachers being 26 but their contention is that these posts are dead. This contention is incorrect and against law. The posts on which the C.T. grade teachers are working have not become dead but in future creation of C.T. grade teachers cannot be made. 5. Though the respondents accepts the pre-existing posts of C.T. grade teachers being 26 but their contention is that these posts are dead. This contention is incorrect and against law. The posts on which the C.T. grade teachers are working have not become dead but in future creation of C.T. grade teachers cannot be made. 5. ON 29-3-1991 Government of the State brought the petitioner's institution along with many other institutions under the grant-in-aid scheme and the petitioner's institution appears at serial no. 153 of the notification. The total strength of the teachers for the institution including the pre-existing C.T. grade teachers is 46. Only those teachers should be paid salary for whose services grant-in-aid is received by the institution. All the C.T. grade teachers would be deprived of their salaries if the contention of the respondent No. 2 that C.T. grade posts have become dead is accepted. The institution is entitled to receive grant-in-aid for all the 46 teachers including 26 C.T. grade teachers under law. The correspondence of the different authorities in this regard is being mis-interpreted. It does not indicate that pre-existing posts of C.T. grade teachers would be declared dead. It only indicates that no further posts of C.T. grade teachers can be created. The respondents are not converting the C. T. grade posts into L.T. grade posts of incumbents who have completed 10 years of service. In addition to the posts which have been sanctioned there are at present 30 posts of C.T. grade and one post of Principal and 16 posts of L T. grade teachers besides the staff members. It is the obligation of the respondents to convert these C.T. grade teachers into L.T. grade teachers and pay them salary under rules. 6. THE prayer in the writ petition No. 9955 of 1992 with regard to the payment of salary to the teachers and staff working in the institution depends on the relief, if any, granted in the writ petition No. 20320 of 1991. Counter affidavit and supplementary counter affidavit has been filed in writ petition No. 20320 of 1991. In the counter affidavit filed on behalf of respondent no. 3 it is stated that as junior high school the petitioner's institution was not included in grant-in-aid list. It is stated that it has been included in grant-in-aid list on 1-4-1991 though it was upgraded in the year 1982. In the counter affidavit filed on behalf of respondent no. 3 it is stated that as junior high school the petitioner's institution was not included in grant-in-aid list. It is stated that it has been included in grant-in-aid list on 1-4-1991 though it was upgraded in the year 1982. The payment of Salary Act of 1971 is applicable to the institution in question w.e.f. 1-4-1991. The posts of 16 teachers and Principal have been sanctioned by the Regional Deputy Director, Gorakhpur. It is denied as incorrect that the 26 C.T. grade teachers were working in the institution. It is submitted that this disputed question of fact is to be verified from the record. The institution was not on grant-in-aid list of the State and no salary from the State Government was ever paid to the teachers and staff of the institution It is further, stated that in respect of the fact as to how many C.T. grade teachers are working in the institution, matter needs to be investigated. Basic Shiksha Adhikari reported that there were only 12 teachers besides 2 teachers working in three language formula on the basis of the strength of the students. Additional posts can be created by the department if the petitioner approaches the department and same is permissible. It is denied that 29 persons were provisionally adjusted by the D.I.O.S. as teachers and staff of the institution. The D.I.O.S. is said to have informed the petitioners that C.T. grade teachers was a dying cadre and no recruitment of C.T. grade teachers can be made. However, beyond 29 posts of teachers and staff posts have not been sanctioned, therefore, only the senctioned strength of teachers and employees are entitled to get salary under law. For other teachers which are working in the institution, the respondents have no responsibility for payment of their salary. The responsibility is on the petitioners in this behalf. There was a ban imposed on the appointment of teachers to C.T. grade which was a dying cadre. However, C.T. grade teachers were to work and after completion of 10 years of service they were allowed L.T. grade. No C.T. grade post was sanctioned after it was declared dying cadre. No direction for creation of post can be issued by the Court. However, C.T. grade teachers were to work and after completion of 10 years of service they were allowed L.T. grade. No C.T. grade post was sanctioned after it was declared dying cadre. No direction for creation of post can be issued by the Court. The controversy can be settled by the department by conducting investigation in respect of number of teachers that are required to be sanctioned on the basis of strength of students. 7. THE supplementary affidavit is filed by the Deputy Director of Education also, who is respondent No. 2 in this writ petition. THE letter dated 2M1-1979 alleged to have been issued by the District Basic Shiksha Adhikari, Deoria is said to be forged. Recognition was granted for junior high school in 1973-84 and not in 1971-82 as alleged. THE school was granted temporary recognition of junior high school in 1974 and at that time the number of teachers including the Head Master was 6. In 1979 when the school was granted permanent recognition of junior high school, the number of teachers working in the school including the Head Master was 6. In August 1978 the Committee of Management applied for recognition of High School and at that time the number of working teachers shown in the application form at page No. 4 was at 8 teachers including the Principal and there were only 3 sections from VI to VIII. THE true copy of the statement is annexed as CA-3. In 1990 the institution applied for recognition of Intermediate classes and the application submitted for the number of working teachers was given 14 including the Head Master. It is, further submitted that DIOS on enquiry has found 13 teachers i.e. 12 L.T. grade and one Head Master eligible for payment of salary. In August 1978 total strength of the students was 152. It is denied that due to recognition of High School additional new posts were sanctioned THE number of total sanctions in the school are 22 or not 23. For the additional section created by the institution expenditure will not be borne by the Government. 10 posts of L. T. grade teachers were created on 3-9-1990. No C. T. grade posts was ever created in this institution. Additional 6 posts of L. T. grade teachers which were under rules sanctioned by D. D. E. VII, Gorakhpur Region. For the additional section created by the institution expenditure will not be borne by the Government. 10 posts of L. T. grade teachers were created on 3-9-1990. No C. T. grade posts was ever created in this institution. Additional 6 posts of L. T. grade teachers which were under rules sanctioned by D. D. E. VII, Gorakhpur Region. There was no C.T. grade post in the school at any stage, therefore, conversion of C. T. grade teachers in L.T. teachers has, no relevance. That there was no C. T. grade teacher was clarified in the letter of Deputy Director dated 30-7-1991. Token grant of Rs. 1001/- was sanctioned to the institution at the time when it was included in grant-in-aid list. Recommendations of the D.I.O.S. were never approved by the Deputy Director because same were obtained by misleading the D.I.O.S. 8. SECOND supplementary counter affidavit is filed by the D.I.O.S. This counter affidavit is filed in- response to the interim orders issued by the Court in respect of payment of salary to the teachers. The D.I.O.S. has denied strength of 30 teachers in C. T. grade which posts were pre-existing in the institution according to the petitioners. Rejoinder affidavits have been filed by the petitioners in which they have reiterated their stand taken in the writ petition and have refuted the averments made by the respondents in their counter affidavits. 9. I have heard the learned counsel for the parties and examined the record. The main contention raised by the respondents is that the posts of C. T. grade teachers is a dying cadre, therefore, they cannot be converted into L. T. grade teachers. It is also submitted that there are no pre-existing C.T. grade teacher's post before the institution was brought on grant-in-aid list. 10. THOUGH, the C. T. grade teachers is a dying cadre that would mean that no teacher can now be appointed to C. T. grade and nor can any post be created in the C. T. grade. However, it would not affect the teachers who are already working as C. T. grade teachers. They are to be converted into L. T. grade teachers subject to certain conditions. Law does not permit C. T. grade teachers to be thrown out or their services be dispensed with. However, it would not affect the teachers who are already working as C. T. grade teachers. They are to be converted into L. T. grade teachers subject to certain conditions. Law does not permit C. T. grade teachers to be thrown out or their services be dispensed with. Bar is created only with regard to appointment of C. T. grade teachers and creation of post of C. T. grade teachers. There arc 30 pre-existing C. T. grade teachers out of which 26 were duly sanctioned by the Basic Shiksha Adhikari at Junior High School stage and 4 were created by the authorities after the upgradation of the Junior High School as High School. This teachers who were working in the school before it was upgraded are not to be thrown out but at the time of upgradation if they continue in service their services cannot be dispensed with merely because they belong to C.T. grade cadre or the school was upgraded. In fact at the time of upgradation of the institution all the 30 teachers who were working as C. T. grade teachers were required to be made L. T. grade teachers. By terming that the said 30 C. T. grade teachers belong to' dying cadre, it is not provided under any rule that they cannot be borne on the strength of - the staff of the school. They are to be calculated in the total strength of the sanctioned teachers and they are not to be refused benefit as teachers. It is to be noted that the 26 of them were employed before the upgradation of the school and they existed there when the school was upgraded. 4 of them were later on sanctioned. The posts held by these teachers cannot be declared dead nor can they be refused relief merely because they belong to a dying cadre. Under the regulation framed under the U. P. Intermediate Education Act of 1921 a provision is made with regard to the teachers of Junior High School after it is upgraded as High School. The posts held by these teachers cannot be declared dead nor can they be refused relief merely because they belong to a dying cadre. Under the regulation framed under the U. P. Intermediate Education Act of 1921 a provision is made with regard to the teachers of Junior High School after it is upgraded as High School. Regulation 4 reads as under :- "Where any Junior High School is recognised as a High School under Section 7, a permanent or temporary teacher of such school, possessing the minimum qualifications under regulation 1, shall be deemed to be permanent or temporary teacher, as the case may be, of such High School provided that the services of a temporary teacher who is not selected for appointment in accordance with the provisions of the Act and the regulations shall be dispensed with after giving him one month's notice in that behalf or one month's pay in lieu of such notice. Explanation-Nothing in this regulation shall be construed to mean that High School includes Classes I to V." The appendix-'A' of regulation 1 prescribes the minimum qualifications for appointment as Head of Institution and teachers in any recognised institution, whether by direct recruitment or otherwise. Under regulation 3 Committee of Management of every institution is to prepare a seniority list of teachers in accordance with the provisions contained in the regulation. From the careful reading of the regulations, there is no manner of doubt that when the Junior High School is recognised as High School a permanent or temporary teacher of such school who possess the minimum qualification is to be deemed to be a permanent teacher as the case may be of such High School. However, service of temporary teachers who were not selected for appointment in accordance with the provisions of Act or regulation can be dispensed with by giving one month's notice in that behalf or one month's pay in lieu of such notice. 11. THE pre-existing teachers which are 30 in number have not been issued any notice nor have been paid one month's notice with a view to dispense with their services. That could not be done because there is no dispute about the pre-existing teachers having been appointed in accordance with the Act or Regulation, therefore, whether they are permanent or temporary, they acquire certain rights and are to be continued and paid salary in accordance with law. That could not be done because there is no dispute about the pre-existing teachers having been appointed in accordance with the Act or Regulation, therefore, whether they are permanent or temporary, they acquire certain rights and are to be continued and paid salary in accordance with law. 12. THE respondents have brought the institution on grant-in-aid list and it is their obligation to make payment for all the pre-existing teachers whether they belong to C.T. grade or L.T. grade. Their services cannot be dispensed with on the pretext that C.T. grade cadre of teachers is dying cadre. Connotation of making it a dying cadre is different. Fresh appointment to C.T. grade teachers cannot be made is the only attribute of a dying cadre but the pre -existing teachers who hold the post whether in C.T. grade or L.T. grade are to be paid salary and recognised as teachers. In fact on certain conditions they are to be converted into L.T. grade teachers. It is not, therefore, correct in the part of the respondents to deny payment of salary to the C.T. grade teachers and refuse their status as teachers. The institution has 16 posts of L.T. grade teachers and the post of Principal as also other staff i.e. class III and class IV employees in addition to 30 pre-existing posts of teachers who are serving in the institution are required to be paid salary by the respondents No. 1 to 3. This is so because the institution was brought in grant-in-aid list. Salary of the teachers and the staff of any category whether C.T. grade or L.T. grade teachers or whether class III or class IV employees cannot be refused to be paid by the respondents. 13. FOR the reasons stated above, petitioners are entitled to a writ of mandamus. Accordingly, the respondents are directed by a writ of mandamus to treat and include to 30 pre-existing posts of C.T. grade teachers as existing and not to treat them as dead cadre while calculating the total strength of teachers and make provisions for payment of their salary. The respondents are also directed to pay salary to L.T. grade teachers and other staff also. 14. The respondents are also directed to pay salary to L.T. grade teachers and other staff also. 14. AS a consequence of success of petitioners in writ petition No. 20320 of 1991, the petitioners are entitled to get the relief of mandamus against the respondents and can seek payment of salary of the teachers and staff working in the institution since before the school is upgraded to the High School. The respondents are, therefore, directed to make payment of the salary as and when it becomes due alongwith the arrears to all the teachers whether they belong to C.T. grade or L.T. grade and other members of the staff of the school and bring the school under the provisions of Act No. 24 of 1971. - The respondents are directed to make the payment of salary to all the teachers and staff of the institution whose names are recommended by the D.I.O.S. Deoria vide his final recommendation letter dated 24-1-1992 within a period of three months alongwith the arrears. The time of three months shall commence from the date of supply of certified copy of this judgment to the respondents by the petitioner. Petitioner shall be given certified copy of this judgment within a period of ten days on payment of usual charges. 15. BOTH the writ petitions No. 20320 of 1991 and W.P. No. 9955 of 1992 are allowed. There will be no order as to costs. Petition allowed.