JUDGMENT Hon’ble Arun Tandon, J.—Heard learned counsel for the petitioners, Sri Taj Bhan Singh, learned counsel for respondent Nos. 4 to 6 and learned Standing Counsel for the State-respondents. 2. This bunch of writ petitions has been filed by teachers and other staff appointed in recognized junior high schools. At that time, the institutions were not within the grant-in-aid list of the State Government. 3. All these writ petitions raise common question of law and facts and have, therefore, been clubbed together and are being decided together by means of this common order. Civil Misc. Writ Petition No. 74389 of 2011 (Thakur Prasad Yadav and others v. State of U.P. and others) has been treated to be the leading writ petition. 4. It is admitted to the parties before this Court that on the date of appointment of the petitioners, the provisions of Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (hereinafter referred to as the “Rules, 1978”) were applicable in respect of teachers of such institutions while in respect of other staffs of such institutions, the provisions of Uttar Pradesh Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Ministerial Staffs and Group ‘D’ Employees) Rules, 1984 (hereafter referred to as the “Rules, 1984”) were applicable. 5. It is also admitted that at the time of their appointment, the provisions of U.P. Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978 (hereafter referred to as the “Act, 1978”) were not applicable. 6. It is the case of the petitioners that they have all been appointed in accordance with aforesaid the statutory Rules, 1978/Rules, 1984 with the prior approval of the District Basic Education Officer. 7. The institutions in question are stated to have brought within the provisions of Act, 1978 subsequent to the appointment of the petitioners. For the purposes of regulating the fixation and payment of salary to the teachers and staffs of such institutions, which have been subsequently taken on grant-in-aid list, the State Government came out with a Government Order dated 15th July, 1999. 8. It is relevant to reproduce the paragraphs of the said Government Order, which read as follows: “......................... For the purposes of regulating the fixation and payment of salary to the teachers and staffs of such institutions, which have been subsequently taken on grant-in-aid list, the State Government came out with a Government Order dated 15th July, 1999. 8. It is relevant to reproduce the paragraphs of the said Government Order, which read as follows: “......................... y[kuÅ fnukad 15 tqykbZ 1999 fo"k; % vuqnku lwph ij j[ks x;s leLr iwoZ ek/;fed fo|ky;ksa ds f’k{kdksa@f’k{k.ksRrj deZpkfj;ksa ds izkjfEHkd osru fu/kkZj.k ds lEcU/k esaA egksn;] mijksDr fo"k;d f’k{kk funs’kd ¼csfld½ mRrj izns’k ds ifji= i=kad vFkZ ¼4½@2716&2790@nl&bZ&32@1986&87 fnukad 24-7-1986 ds dze esa ipkad vFkZ ¼1½@8704@1998&99 nukad 23-1-1999 }kjk lanfHkZr izLrko ds ifjizs{; esa eq>s ;g dgus dk funsZ’k gqvk gS fd jkT;iky f’k{kk funs’kky; ds ifji= i=kad vFkZ ¼4½@3122&3222@1992&93 fnukad 13-7-92 dks ,rn~}kjk vfrdzfer djrs gq, izns’k dh vuqnku lwph ij fy;s x;s v’kkldh; ekU;rk izkIr mPp izkFkfed fo|ky;ksa ds f’k{kd@f’k{k.ksRrj deZpkfj;ksa dks muds vuqeksnu dh frfFk ls vkx.ku djds izkjfEHkd osru fu/kkZfjr fd;s tkus dh lg"kZLohÑfr iznku djrs gSaA 1- ;fn fdlh v/;kid@deZpkjh dk okLrfod osru fo|ky; ds vuqnku lwph esa lfEefyr fd;s tkus dh frfFk ls rRle; ykxw osrueku ds U;wure nj ls de gks rks mls ml osrueku ds U;wure osru nj ls izkjfEHkd osru vuqeU; gksxkA 2- ;fn fdlh v/;kid@deZpkjh dk okLrfod osru rRle; ykxw osrueku ds U;wure ls vf/kd fdlh lksiku ds cjkcj gks rks mls ml osrueku ds mlh lksiku dk osru vuqeU; gksxk] ftl lksiku ij og osru ik jgk gksA 3- ;fn fdlh v/;kid@deZpkjh dk okLrfod osru ,slk gks rks rRle; ykxw osrueku ds U;wure ls vf/kd gks] ijUrq og fdlh lksiku ds cjkcj ugh gks rks mls ml osrueku esa vxys lksiku dk osru vuqeU; gksxkA 4- mi;qZDr izfdz;kuqlkj fu/kkZfjr osru ds vfrfjDr bu laLFkkvksa ds v/;kid@deZpkjh vuqnku lwph ij vius vkus dh frfFk ls lgk;rk izkIr v’kkldh; iwoZ ek/;fed fo|ky;ksa ds v/;kidkss@deZpkfj;ksa dh Hkkafr mDr frfFk dks vuqeU; rFkk mlds mijkUr le;≤”ij 'kklu }kjk vuqeU; eagxkbZ HkRrk@vfrfjDr eagxkbZ HkRrk Hkh ik;saxsA 5- bl izdkj osru fu/kkZfjr djrs le; bl ckr dk Hkh /;ku j[kk tk; fd lacafèkr vè;kidksa@deZpkfj;kssa dks mRrj izns’k ekU;rk izkIr csfld Ldwy ¼twfu;j gkbZLdwy½ ¼v/;kidksa dh HkrhZ vkSj lsok dh 'krsZa½ fu;ekoyh] 1978 ds vuqlkj vuqeksfnr lsokvksa ij gh fu;ekuqlkj osruo`f};ka Lohd`r dh tk;saxhA ftu izca/k ra=ksa }kjk vius fo|ky;ksa ds deZpkfj;ksa dks mudh fu;qfDr dh frfFk ls fo|ky; ds vuqnku lwph ij vkus dh frfFk rd jkT; fuf/k ls lgk;rk izkIr v’kkldh; iwoZ ek/;fed fo|ky;ksa ds deZpkfj;kssaa ds fy;s vuqeU; osruekuksa esa deZpkjh }kjk vftZr osru o`f};ksa lfgr osru vkfn dk Hkqxrku fo|ky; ds vlgkf;d voLFkk esa jgrs gq, Hkh fd;k tk jgk gks] ,sls fo|ky; ds deZpkfj;ksa dks muds }kjk vf/kd nj ij osru dk Hkqxrku djus gsrq vko’;d gS fd fo|ky; dh dS’k cqd] osru iaftdk vkfn lacaf/kr vU; vfHkys[kksaa dk ijh{k.k dj fy;k tk;A 6- ;fn fdlh laLFkk dks vuqnku lwph ij ysrs le; fo|ky; }kjk fdlh vè;kid@deZpkjh dks U;wure ls vf/kd nj ij osru fn;k tk jgk gS rks mDr izfdz;k vuqlkj vuqeU; osrueku esa lkekU; osru o`f};ksa dks 'kkfey djrs gq, ftruk osru fn;k tk ldrk gS] mlls mPp Lrj ij osru dk fu/kkZj.k ugh fd;k tk ldrk gSA 7- eq>s ;g Hkh dgus dk funsZ’k gqvk gS fd Ñi;k mijksDr fu/kkZfjr izfdz;k ds vuqlkj lacaf/kr ftyk csfld f’k{kk vf/kdkjh] ys[kkf/kdkjh ds lg;ksx ls izkjfEHkd osru fu/kkZj.k lqfuf’pr djsaxs ,oa fdlh Hkh izdkj dh vfu;ferrk ds fy;s lacaf/kr ftyk csfld f’k{kk vf/kdkjh lh/ks O;fDrxr :i ls nks"kh gksaxsA 8- mDr vkns’k foRr foHkkx ds v’kk0i0la0&11@1888@nl&99 fnukad 15 tqykbZ 1999 esa izkIr mudh lgefr ls fuxZr fd;s tk jgs gSaAÞ 9. The Director of Education (Basic) on 4th January, 2007 issued a circular addressed to all the Regional Assistant Directors of Education (Basic), U.P. providing therein that fixation of salary of teachers and staff taken on grant-in-aid list be done in terms of the Government Order dated 15th July, 1999 and for the purpose records of the institutions be verified with specific reference to the Bank Account Book, salary register, and other documents, as may be available. Such direction has been issued in the background of the conditions incorporated in the Government Order dated 15th July, 1999. 10. According to the petitioners, their salary was determined under an order of the Finance and Accounts Officer in the office of the District Basic Education Officer, Azamgarh dated 1st May, 2008 after taking into consideration the annual increments, which the petitioners earned with reference to the date of approval of the District Basic Education Officer qua their appointment and entire length of service rendered since then. 11. Audit of the fixation of salary in respect of teachers and staffs of the institution of District Azamgarh was carried out by the Audit Team in the office of the Director of Education (Basic) U.P. Allahabad. In the audit report dated 3rd August, 2011, it has been recorded that fixation of salary has been done treating the first date of appointment as the date of approval granted by the District Basic Education Officer, without verifying the exact amount of salary, which was being paid, from the relevant record of the institution, namely, Bank Pass Book, salary register, bank statement etc. It has been clarified that for the purpose relevant records pertaining to deductions towards General Provident Fund amount and Central Provident Fund etc. did need examination. 12. In view of the audit objection so raised, Finance and Accounts Officer in the office of District Basic Education Officer has issued the impugned order dated 2nd September, 2011, which is followed by the consequential order for recovery of excess salary paid dated 9th November, 2011. 13. Under the order impugned it has been directed that the records in the matter of payment salary to the teachers and staff be produced by the Committee of Management/Principals of the respective institutions in light of the letter of the Director of Education (Basic) dated 4th January, 2007. If any excess salary has been paid the same shall be recovered. Under the order impugned it has been directed that the records in the matter of payment salary to the teachers and staff be produced by the Committee of Management/Principals of the respective institutions in light of the letter of the Director of Education (Basic) dated 4th January, 2007. If any excess salary has been paid the same shall be recovered. Reference has also been made to the audit objection as per the report of audit referred to above. It has been provided that in case of non-compliance the salary for the month of December, 2012 shall not be paid. 14. This Court while entertaining the present writ petition granted an interim order in favour of the petitioners on 20th December, 2011. The High Court restrained further action in terms of communication dated 2nd September, 2011. 15. Learned counsel for the petitioner challenging the order dated 2nd September, 2011 submitted as follows: (a) their fixation had been done in accordance with the Government Order dated 15th July, 1999 and therefore, there is no occasion for the issue being reopened, (b) at the time the institutions were taken into grant-in-aid list, there was no standing direction for payment of salary through Bank Transfer/Account Payee Cheque only, therefore, it was not necessary for every institution to have paid salary to its teachers and staff through Bank Transfer/Account Payee Cheques. The conditions imposed in the letter of the Director for verification of the payment of salary through Bank Statement only is not justified, (c) if the Committee of Management of the institutions had not made deductions towards General Provident Fund, Employees Provident Fund, Contributory Provident Fund etc., the petitioners cannot be held to be responsible, nor their right for fixation of salary from the date of approval of their appointment can be diluted on that ground. 16. Learned Standing Counsel for the State-respondents and learned Counsel for the District Basic Education Officer in reply submit that only a notice has been issued to the Committee of Managements/Principals of the institutions in light of audit objections raised to produce the records for verification, so that correctness or otherwise of the fixation of salary in terms of the Government Order dated 15th July, 1999 applicable may be examined. Petitioners-Committee of Managements/Principals of the institutions must respond to the notice and must submit the relevant documents so that the mistake, if any, in the fixation of salary may be corrected. They submit that it is always open to the State Government to rectify its mistake committed earlier and this Court may not interfere with the power of the State Government to correct its own mistake. 17. I have considered the submissions made by the learned counsel for the parties and have examined the records of the present writ petition. 18. At the very outset this Court may record that from the orders, which have been brought on record by the petitioners qua their fixation of their salary after adding of the annual increments from the date of the order of approval of their appointment by the District Basic Education Officer, it is not discernable as what documents were examined before coming to the conclusion that the petitioners were getting salary, which was not less than that was applicable to the respective posts held by them in the recognized junior high school. 19. Clauses-1 and 5 of the Government Order dated 15th July, 1999 which admittedly applies in the matter of fixation of salary of the petitioners, after the institution has been taken in grant-in-aid list, it is provided that if the teacher concerned was actually getting salary less than that applicable to the post on the date the institution was brought on grant-in-aid list, he would be entitled to the minimum of the pay-scale applicable to the post. In that circumstance the date of approval of appointment would be rendered innocuous. Government Order dated 15th July, 1999 is not under challenge in the present writ petition. 20. This Court finds that for proper fixation of salary of the petitioners in terms of the Government Order dated 15th July, 1999, it is but necessary that the relevant records of the institution, namely, salary register, mode and manner of payment, cash book etc. which may reflect upon the actual payment made to the teachers/staff did need examination and therefore, if the State-authorities in view of the audit objection raised have now called upon the Committee of Management/Principals of the institutions to produce the relevant documents, no fault can be attributed. Every authority has the jurisdiction/authority to correct its own mistake. which may reflect upon the actual payment made to the teachers/staff did need examination and therefore, if the State-authorities in view of the audit objection raised have now called upon the Committee of Management/Principals of the institutions to produce the relevant documents, no fault can be attributed. Every authority has the jurisdiction/authority to correct its own mistake. This Court in exercise of powers under Article 226 of the Constitution of India will not perpetuate any illegality only because it has continued for long. The Hon’ble Supreme Court of India in the case of Ghulam Rasool Lone v. State of Jammu & Kashmir, JT 2009 (13) SC 422, has held that there can be no negative equality and no mandamus can be issued by a writ Court asking the State authorities to perpetuate the illegality. 21. The issue as to whether any recovery can be made after such correction of mistake, if any, is an issue to be examined by the authority concerned, in the background as to whether there has been any misrepresentation or fraud in the matter of earlier fixation of salary or not. No final opinion is being expressed by this Court on the aforesaid aspect of the matter. 22. It is clarified that there may be institutions where payment of salary may have been made to the approved teachers/staffs of such recognized institutions in cash, inasmuch as at the relevant time, there was no Government Order directing payment of salary to the teachers and staffs of recognised institutions (unaided) through bank transfer only. At least, no such Government Order has been brought to the notice of the Court. Therefore, merely because an institution has not made payment of salary to the approved teachers and staff through Bank transfer or Account Payee Cheque, no adverse inference can be drawn. Similarly in the matter of non-deduction of General Provident Fund, Contributory Provident Fund, Employees Provident Fund etc. responsibility in that regard was upon the Committee of Management only and if such deductions have not been made and no records in that regard are available, the teachers/staffs cannot be permitted to suffer. 23. Similarly in the matter of non-deduction of General Provident Fund, Contributory Provident Fund, Employees Provident Fund etc. responsibility in that regard was upon the Committee of Management only and if such deductions have not been made and no records in that regard are available, the teachers/staffs cannot be permitted to suffer. 23. These observations of the Court will not in any way dilute the determination of the issue, as to what was the exact salary paid to the teachers and staffs on the date the institution was taken on the grant-in-aid list with reference to the relevant documents, as must be produced by the Committee of Management, namely, cash book, mode and manner of payment of salary, total income of the institution etc. as reflected there from. 24. In these circumstances this Court finds it just and proper to dispose of the present writ petition by following directions: 25. The Committee of Management and Principals of the institutions as well as the petitioners individually are permitted to file their respective documents in response to the letter of the Finance and Accounts Officer in the office of District Basic Shiksha Adhikari, Azamgarh dated 2nd September, 2011 before the authority concerned within two weeks from today. Finance and Accounts Officer shall decide the fixation of the salary of the petitioners as per the Government Order dated 15th July, 1999, letter of the Director dated 4th January, 2007 and the audit objection, in light of the observations made herein above by this Court. The Finance and Accounts Officer shall pass a reasoned speaking order institutions-wise/teachers-wise. The aforesaid exercise may be completed within two months from the date the documents asked for are filed by the respective institutions/petitioners. Till fresh orders for fixation are passed, no recovery shall be affected from the petitioners in terms of the orders impugned dated 2nd September, 2011 and dated 9th November, 2011. 26. However, it is provided that in case the Committee of Management/Principal of the institutions or the petitioners do not respond to the order of the Finance and Accounts Officer dated 2nd September, 2011 as indicated above, they shall not be entitled to the benefits of this order and the authorities will be free to proceed in accordance with law. 27. However, it is provided that in case the Committee of Management/Principal of the institutions or the petitioners do not respond to the order of the Finance and Accounts Officer dated 2nd September, 2011 as indicated above, they shall not be entitled to the benefits of this order and the authorities will be free to proceed in accordance with law. 27. It may also be recorded that the Hon’ble Supreme Court as well as this Court have repeatedly held that if any excess salary has been paid because of wrongful fixation, fault whereof lies upon the authorities themselves and there are no allegation of fraud or misrepresentation by the teacher/employee concerned, recovery of excess salary paid cannot be made from the teacher/employee. Reference “State of Orissa v. Adwait Charan Mohanty, 1995 Supp (1) SCC 470: 1995 SCC (L&S) 522, Union of India v. Sita Ram Dheer; 1994 SCC (L&S) 1445, Nand Kishore Sharma v. State of Bihar; 1995 Supp (3) SCC 722: 1996 SCC (L&S) 124, State of Karnataka v. Mangalore University Non-Teaching Employees’ Assn.; (2002) 3 SCC 302 : AIR 2002 SC 1223 and State of U.P. and others v. Nagesh Upadhyay and another, 2008(9) ADJ 215 (DB) : 2008(5) ESC 3157 (All)(DB).” All the writ petitions of this bunch stand disposed of. Interim order stands discharged. ———————