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2018 DIGILAW 597 (ALL)

SANTOSH KUMAR DUBEY v. STATE OF U. P.

2018-03-13

PANKAJ MITHAL, SARAL SRIVASTAVA

body2018
JUDGMENT By the Court.—Heard Sri V.D. Shukla, learned counsel for the petitioners and Chief Standing Counsel-2 for respondent Nos. 1 and 4. Sri Ved Byas Mishra, learned counsel for the respondent No. 3 and Sri Ashwani Kumar Mishra learned counsel for the respondent No. 5 have also appeared. 2. All the respondents except the State have filed counter-affidavits despite time allowed on several occasions in the past. Therefore, we are proceeding with decision on merits. 3. The petitioners No. 1 and 2 were appointed as Assistant Teachers in Sahitya and Modern Hindi respectively on 11.9.2015 at the Institution Sri Sampurnanand Sanskrit Mahavidyalaya, district Chandauli which is affiliated to Sampurnanand Sanskrit Vishwavidyalaya, Varanasi. 4. The petitioners in pursuance of the aforesaid appointment have joined duties on 12.9.2015 but they were not paid salary. Thus they preferred Writ Petition No. 43863 of 2016, Santosh Kumar Dubey and two others v. State of U.P. and others, which was disposed of vide order dated 29.9.2016 with the direction to the Director to consider the grievance of the petitioner and to decide the representation of the petitioners in accordance with law. The Director Education (Madhyamic), Uttar Pradesh by the impugned order dated 6.1.2017 states that as the approval of the State Government was not taken for the purposes of payment of salary, the appointments of the petitioners are not in accordance with law and as such they are not entitle for salary. 5. The pleadings reveal that on the directions of the University the Management had given approval on 5.7.2013 to fill up the aforesaid vacancies. Accordingly, advertisement was issued in the news papers on 2.11.2014 inviting applications to fill up the above posts. On the request of the college, the University nominated two subject experts to participate in the process of selection. The petitioners were called for interview before the Selection Committee on 18.2.2015 and were declared successful. The selection of the petitioners was duly approved by the Vice Chancellor of the University vide order dated 10.9.2015. Accordingly, Management gave appointment to the petitioners on 11.9.2015 whereupon they joined on 12.9.2015. 6. In view of the aforesaid, the entire procedure for selection and appointment of the petitioners was duly followed by the College as well as the University. The selection of the petitioners was duly approved by the Vice Chancellor of the University vide order dated 10.9.2015. Accordingly, Management gave appointment to the petitioners on 11.9.2015 whereupon they joined on 12.9.2015. 6. In view of the aforesaid, the entire procedure for selection and appointment of the petitioners was duly followed by the College as well as the University. None of the parties could show us any provision whereunder any approval of the State Government is also required to be taken for the purposes of making appointment of the teachers in a College affiliated to the University. 7. The averments made in the writ petition rather reveals that after the Management had given approval for the appointments, the D.I.O.S. Chandauli had sent the papers to the University for the purposes of constitution of the selection committee. The selection was done by duly constituted Selection Committee with the experts as nominated by the Vice Chancellor. The appointments were given to the petitioners only after the selection was approved by the Vice Chancellor. 8. In such a situation, We do no find that any illegality was committed in the matter of appointment of the petitioners or that the appointments were in any way illegal for want of any approval from the State Government. Learned Standing Counsel is unable to show any provision under which any approval in this regard was required from the State Government. 9. The impugned order mentions that Uttar Pradesh Board of Secondary Education (Appointment and Conditions of Service of Heads of Institution, Teachers and Other Employees of the Institutions) Regulations, 2009 has been enforced w.e.f. 15.1.2010. Therefore, in respect of Sanskrit Institutions affiliated to Sampurnanand Sanskrit Vishwavidyalaya, Varanasi a letter regarding appointments of teachers therein have been written to the Government for necessary guidelines. 10. The aforesaid Regulations have been framed under the Uttar Pradesh Board of Secondary Sanskrit Education Act, 2000. The said Act defines Institutions to mean a Sanskrit School imparting Sanskrit education upto Uttar Madhayama. Section 13 of the said Act provides that all Institutions situate in the State before the commencement of the Act imparting education upto Uttar Madhayama and affiliated to Sampurnanand Sanskrit Vishwavidyalaya, Varanasi shall seize to be affiliated to it and shall be governed by the provisions of this Act. 11. Section 13 of the said Act provides that all Institutions situate in the State before the commencement of the Act imparting education upto Uttar Madhayama and affiliated to Sampurnanand Sanskrit Vishwavidyalaya, Varanasi shall seize to be affiliated to it and shall be governed by the provisions of this Act. 11. The Institution in question is a degree college affiliated to the Sampurnanand Sanskrit Vishwavidyalaya, Varanasi and as such is not an Institution within the meaning of the aforesaid Act to which Section 13 of the Act would apply and as such it continues to be governed by the provisions of the U.P. State Universities Act, 1973. Thus, any procedure for selection or appointment of teachers prescribed under the aforesaid Act and Regulation would not be applicable to the teachers of the Institution in question. 12. Counsel for the parties accept that after the petitioners have joined and they are regularly functioning and teaching at the Institution. 13. In the aforesaid facts and circumstances of the case, when the petitioners are working on due selection they cannot be denied salary as otherwise it would amount to ‘begar’ which is prohibited by Article 23 of the Constitution of India, we find no justifiable reason for not paying salary to the petitioners. 14. Accordingly, the impugned order dated 6.1.2017 is quashed and a writ in the nature of mandamus is issued to the respondents to pay the entire arrears of salary from the date they are working and pay continue to make payment of the salary to them in accordance with law on monthly basis. The Writ Petition is allowed.