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Allahabad High Court · body

2019 DIGILAW 2007 (ALL)

Jitendra Tiwari v. State of U. P.

2019-08-26

SUNITA AGARWAL

body2019
ORDER : Sunita Agarwal, J. 1. The petitioners (five in number) are claiming payment of salary from the State Exchequer with effect from the date of their appointment i.e. on 18.05.2001 in the primary section (upto class V) attached to the institution namely Gyan Prakash Intermediate College, Bhaluwani, Deoria. 2. The stand of the petitioners is that the primary institution was established in the aforesaid institution in the year 1969 after it was granted recognition by the District Inspector of Schools vide letter No. 582 dated 17.03.1969. Thereafter, the order of attachment of the said section to the intermediate college was passed. The order of recognition or attachment are not on record. Moreover, there is no dispute about the fact that the primary institution is being run since its establishment in the year 1969 as an integral part of the intermediate institution having common management and is being managed by the duly constituted committee of management. 3. It is stated in the writ petition that the teacher as well as student attendance register being maintained in the institution have been verified from time to time by the District Inspector of School concerned. The payment of salary to the primary teachers was initially being made form the reimbursement grant received from time to time from the State Government as well as out of managerial resources. By the Government order dated 06.09.1989, issued to bring the primary teachers attached to 393 boys higher secondary school, the primary institution teachers of the institution in question were brought on the grant-in-aid list of the State Government. Consequently the teachers working in the primary section were held entitled to get salary from the State exchequer. The circular dated 28.12.1989 was then issued by the Director of Education (Madhyamik), U.P. providing for standard/fixing strength of the students per class/section as 40 (for class I to V) in continuation of the circular dated 21.10.1989, which in turn was issued for implementation of the Government order dated 06.09.1989 for bringing the attached primary schools to higher secondary institution running since 1973 or prior to that, in the grant-in-aid list of the State Government. 4. As per the aforesaid circular dated 28.12.1989, the standard per class/section of the teacher-student ratio to 1:40 was to be determined on the basis of strength of students as on 30.09.1989, it also provided that there should be one teacher for each class/section. 5. 4. As per the aforesaid circular dated 28.12.1989, the standard per class/section of the teacher-student ratio to 1:40 was to be determined on the basis of strength of students as on 30.09.1989, it also provided that there should be one teacher for each class/section. 5. The submission of the petitioners is that previously the attached primary section of the institution-in-question was sanctioned 14 sections as per the strength of the students, but in the year 1990, the strength of students was increased to 880 which necessitated sanction of more sections and teacher to man the same. The District Inspector of Schools vide letter dated 06.06.1990 granted approval for sanction of 11 additional sections in view of the increased strength of students to 880 in the primary section. It became, therefore, incumbent on the management to appoint 11 more teachers for the additional sections approved by the District Inspector of School. As the total number of sections was increased from 14 to 25, the committee of management of the institution had advertised vacancies in the daily newspaper "Akashmarg" on 15.05.1995 and after due selection, five teachers namely Tej Pratap Singh, Amar Nath Mishra, Bhanu Pratap Yadav, Smt. Anju Singh and Rajendra Prasad Yadav were appointed and joined the institution. 6. The papers pertaining to their selection was transmitted to the District Inspector of School, Deoria for financial approval but he sat tight over the matter. Resultantly, a Writ Petition No. 29388 of 1995 (Tez Pratap Singh Vs. D.I.O.S. Deoria & others) was filed which was disposed of vide judgment and order dated 06.08.2002 relegating the petitioners therein to approach the District Inspector of Schools who was required to take a decision by passing a reasoned order. Pursuant thereto, the teachers filed representation but the District Inspector of School had refused to grant approval, which was subjected to challenge in Writ Petition No. 35852 of 2004 (Bhanu Pratap Yadav Vs. State of U.P. & others) and other writ petitions being filed by the remaining teachers. 7. The Writ Petition No. 35852 of 2004 was decided on 02.09.2004 quashing the order dated 15.05.2004 passed by the District Inspector of School, Deoria further relegating the matter for fresh decision by the District Inspector of School for grant of financial approval to the appointment of the said petitioners. 7. The Writ Petition No. 35852 of 2004 was decided on 02.09.2004 quashing the order dated 15.05.2004 passed by the District Inspector of School, Deoria further relegating the matter for fresh decision by the District Inspector of School for grant of financial approval to the appointment of the said petitioners. Consequently, vide order dated 03.07.2006, the District Inspector of Schools, Deoria granted approval to the appointment of Bhanu Pratap Singh made in the primary section noticing that additional sections were approved by the District Inspector of School making the strength to 25. 8. It is then contended that two selected teachers namely Sri Amar Nath Mishra and Smt. Anju Singh did not join nor they made further claim for approval. Resultantly, five posts of teachers in the primary section fell vacant, as against 25 sanctioned post 20 teachers were working at that point of time. 9. Looking to the shortage of teachers in the primary section, the management wrote to the District Inspector of School on 23.04.2001 seeking prior approval for notification of the vacancies, which was duly granted by the District Inspector of School. The vacancies were published in the daily newspaper "Jagat Asha Deoria" and "Deoria Express Deoria" on 25.04.2001. The petitioners herein claim to have been selected by a duly constituted selection committee pursuant to the said advertisement and states that appointment letter were issued to them by the committee of management on 10.05.2001. It is claimed that the petitioners had joined their duties as Assistant Teachers in the attached primary school to the institution-in-question on 18.05.2001 and are discharging their duties since thereafter. 10. The papers pertaining to selection of petitioners were forwarded to the District Inspector of School on 10.05.2001 itself for grant of financial approval but till date, no approval has been granted nor salary had been paid to the petitioners from the State exchequer. The management had sent reminders on 16.10.2002, further in the year 2003-04 last being dated 11.04.2011. Inspite of the best efforts made by the management, the District Inspector of School did not grant approval to the appointment/selection of the petitioners against the substantive vacancies. The petitioners, thus, pray for a writ of mandamus commanding the District Inspector of School, Deoria to accord financial approval to the selection/appointment of the petitioners and pay them salary from the State exchequer with effect from the date of their joining i.e. 18.05.2001. 11. The petitioners, thus, pray for a writ of mandamus commanding the District Inspector of School, Deoria to accord financial approval to the selection/appointment of the petitioners and pay them salary from the State exchequer with effect from the date of their joining i.e. 18.05.2001. 11. The submission of learned counsel for the petitioner is that with the sanction of additional sections by the District Inspector of Schools, being satisfied with the increased strength of the students in the primary section, no exception could be taken by him for selection or appointment. Even otherwise, prior approval was taken for notifying the vacancies as on 25.04.2001. The District Inspector of School cannot keep quiet over the matter for such a long period. Approval was duly accorded to other teachers who had approached this Court at an earlier point of time against the increased strength of the teachers pursuant to the increase of sections. 12. Learned counsel for the petitioner further contends that by the Government order dated 24.07.2001 a ban was imposed for appointment/approval of the primary teachers in the attached primary sections of secondary education institutions which were taken on grant-in-aid list in the year 1958 and 1989, till framing of the Services Regulation. The District Inspector of Schools were directed to determine strength of the attached primary institution (from the date of maintenance grant till issuance of the said Government order). Again vide Government order dated 19.04.2003, a complete ban was imposed for creation of post, permission for additional section, appointment and approval of teachers in attached primary institutions without prior permission of the State Government. Appointment against the vacancies arose as a result of retirement of the then incumbent could be made as against the sanctioned post, after fresh determination of strength of students, sanctioned post and the working strength after prior permission of the State Government. 13. The aforesaid ban was relaxed vide Government order dated 25.05.2012 considering the fact that complete ban in the matter of appointment had disturbed the teaching work in the primary institution and in view of the mandate of the Right of Children to Free and Compulsory Education Act, 2009, it became necessary to appoint requisite number of teachers timely in the primary institutions. Taking note of the observations made by this Court in Writ Petition No. 12977 of 2012 and 25733 of 2012, it was noted therein that the matter of framing regulations for selection/appointment of teachers in the attached primary school was subject matter of active consideration of the State Government. However, till the said regulation are framed, the District Inspector of School is empowered to fill up the vacant posts in the attached primary institution subject to the terms and conditions provided therein which are relevant to be quoted herein:- 1- in l`tu~ vfrfjDr d{kk oxZ dh vuqefr fn;s tkus dk vf/kdkj ftyk fo|ky; fujh{kd dks ugh gksxk 2- vuqnkfur gksus ds le; lEc) izkbZejh izHkkx dh tu'kfDr fdruh Fkh vkSj mlds lkis{k orZeku esa fdruh tu'kfDr gS] dk lE;d ijh{k.k ftyk fo|ky; fujh{kd }kjk fd;k tkuk vkisf{kr gksxkA 3- izcU/kra= }kjk fdlh l`ftr in ds fo:) fu;qDr dh vuqefr ftyk fo|ky; fujh{kd ls ekaxh tk;sxh rks ftyk fo|ky; }kjk mDr fo|ky; esa v/;;ujr Nk=ks dh iathd`r Nk= la[;k] vkSpd fujh{k.k esa Nk=ks dh mifLFkfr dk laKku ysuk gksxk 4- ftyk fo|ky; fujh{k.k ;g lqfuf'pr djsxk fd fu;qDr dh izfØ;k ikjn'khZ gS] vkSj og ;g Hkh nsa[ksxs fd fjDr inks ds fo:) HkrhZ gsrq foKkiu fn;k x;k gS vFkok ugha 5- ftyk fo|ky; fujh{k.k }kjk tc HkrhZ gsrq vuqefr nh tk;sxh rks mldh lwpuk f'k{kk funs'kd ,oa 'kklu dks fuf'pr :i ls miyC/k djk;k tkuk vko';d gksxkA 6- ftyk fo|ky; fujh{kd }kjk Nk=ks dh la[;k ds lkis{k dk;Zjr v/;kidksa dh la[;k dk ijh{k.k ekud ds vuqlkj fd;k tkuk vfuok;Z gksxkA 7- ftyk fo|ky; fujh{kd ;g lqfuf'pr djsxsa dh vkj{k.k fu;eks dk dM+kbZ ls vuqikyu fd;k tk jgk gSA 8- la;qDr f'k{kk funs'kdks }kjk tuinh; Hkze.k ds nkSjku lEcaf/kr ftyk fo|ky; fujh{k.k }kjk inks dks Hkjs tkus gsrq nh x;h vuqefr dk lR;kiu fuf'pr :i ls fd;k tkuk lqfuf'pr fd;k tk;sxkA 9- fo|ky; izca/kr= ,oa ftyk fo|ky; fujh{kd dh nqjfHklaf/k dk izdj.k laKku es vkus ij fu;ekuqlkj n.MkRed dk;Zokgh lEcfa/kr l{ke Lrj ls dh tk;sxhA 14. Placing the said Government order dated 25.05.2012, it is contended by the learned Advocate that the ban imposed by the Government order was revoked with the direction to make appointment of teachers in the attached primary institutions looking to the strength of students studying therein. Placing the said Government order dated 25.05.2012, it is contended by the learned Advocate that the ban imposed by the Government order was revoked with the direction to make appointment of teachers in the attached primary institutions looking to the strength of students studying therein. It is, thus, vehemently contended that after removal of ban, it was incumbent on the District Inspector of School, Deoria to grant approval to the appointment of the petitioners against the substantive vacancies. Reliance is placed upon the judgments of this Court in Writ Petition No. 59940 of 2010 (Committee of Management, Shivdei Balika Junior High School, Bisalpur, Pilibhit & another Vs. State of U.P. & others), Lalit Mohan Misra & another Vs. District Inspector of Schools & others, reported in 1979 ALJ 1025, Chandra Mohan Pandey Vs. D.I.O.S.; Committee of Management, Mahant Triveni Parvat Inter College & others) reported in 2005 (6) AWC 6029 , Ashika Prasad Shukla Vs. District Inspector of Schools, Allahabad reported in 1998 (3) AWC 2150 to submit that approval being granted to the appointment of petitioners would be effective from the date of their initial appointment/joining as posts were advertised after seeking prior approval of the District Inspector of School who had duly determined the sanctioned strength for grant permission to make appointment against the available vacancies. 15. Counter affidavit filed on behalf of respondent no. 2 i.e. District Inspector of Schools, however, states that when the attached primary institution was taken on grant-in-aid list on 06.09.1989, at that point of time 14 posts of teachers were sanctioned. The District Inspector of School vide order dated 06.06.1990 granted permission to run 11 additional sections looking to the strength of the students. Resultantly, against 25 sections sanctioned, 20 teachers were working when appointment of the present petitioners was made against five vacancies. The committee of management though sent a letter dated 23.04.2001 pressing the necessity of the teachers in the primary institution but without waiting for prior approval of the District Inspector of School, vacancies were advertised on 25.04.2001. It is then contended that the District Inspector of School could not have determined the necessity of appointment of teachers in the primary section without making a spot inspection, so as to verify the strength of the students studying at the relevant point of time. 16. It is then contended that the District Inspector of School could not have determined the necessity of appointment of teachers in the primary section without making a spot inspection, so as to verify the strength of the students studying at the relevant point of time. 16. As far as the selection of the petitioners is concerned, it is contended that the publication of vacancy in the newspaper "Deoria Express" cannot be said to be proper, in as much as, the aforesaid paper was not having wide circulation in District Deoria. Objections have also been raised regarding constitution of the selection committee and further that no appointment letter could be issued to the petitioners without getting approval of the selection made by the committee of management. It is urged that since appointments are not in accordance with law, the State Government cannot be asked to make payment. It is the committee of management of the institution which has to pay salary to the teachers/petitioners. It is further contended that the reminder letters though were received in the office of the District Inspector of School, Deoria but original record pertaining to the selection proceeding was not made available in the office of the said respondents and hence no decision could be taken with regard to the selection of the petitioners. Reference has been made to the Government order dated 24.07.2001 to state that in view of the specific direction of the State Government, no appointment of the teachers in the attached primary section could be made by the committee of management without prior permission of the District Inspector of School who in turn was required to seek permission of the State Government. 17. The committee of management filed a counter affidavit to support the stand of the petitioners to seek payment of salary from the State exchequer and further to state that the entire papers with regard to the appointment of the petitioners were sent to the District Inspector of School, Deoria on 10.05.2001 for according financial approval and that the same was received in the office of the District Inspector of School on the same date. 18. 18. In the rejoinder affidavit, all the aforesaid assertions of the counter affidavit are denied and it is reiterated that the vacancies were in existence on the date of appointment, it is incorrect to say that the documents/record pertaining to selection was not forwarded by it. 19. In his argument learned counsel for the petitioners relied on the judgment of the Apex Court in Ashok Kumar Das & others Vs. University of Burdwan & others reported in 2010 (3) SCC 616 to submit that the approval can be ex-post facto and any action taken before "approval" stands validated as soon as, "approval" is granted. Only in a case where ex-post facto "approval" is refused, the appointment/action taken pending approval stands invalidated. It is contended that there was no requirement of seeking "prior approval" for making selection to the substantive vacancies. Any "approval" being granted by the District Inspector of School looking to the record of selection would validate the action of the committee of management in making appointments, in as much as, no objection has been taken by the District Inspector of School with regard to the eligibility of the petitioners for appointment to the post of Assistant Teachers in the attached primary section. 20. To deal with this, relevant is to note that the appointment of the petitioners on the post of Assistant Teacher in primary section required "prior approval" and not simply "approval" by the District Inspector of School. That means before making appointment, the record of selection was required to be examined by the District Inspector of School to ascertain that there was no discrepancy in the procedure of selection and the selected teachers possessed requisite eligibility qualification. "Prior approval" as has been explained by the Apex Court in Ashok Kumar Das (supra) means a condition which pre-supposes the action to be taken after grant of "approval" by the competent authority. If an appointment is made with the "prior approval" of a competent authority, any appointment is to be made without that would be invalid and the approval if any granted in future would not validate the said act rather the appointment would stand approved from the date of approval only. 21. In the case of the petitioners herein, "prior approval" being a pre-condition to the appointment was required to be fulfilled before issuance of appointment letters to the petitioners. 21. In the case of the petitioners herein, "prior approval" being a pre-condition to the appointment was required to be fulfilled before issuance of appointment letters to the petitioners. It, therefore, cannot be said that the appointment made by the committee of management without approval of the District Inspector of School would put obligation on the State to pay salary from the State exchequer merely for the fact that the appointments were made against the substantive vacancies. 22. It is further noteworthy that the petitioners claim to have been selected and appointed in the month of April & May, 2001. The ban imposed by the State Government vide Government order dated 24.07.2001, therefore, would not cover them. However, at the same time it is noted that the District Inspector of Schools, Deoria was not empowered to create new sections and permit sanction of posts, as sanction of posts is within the domain of the State Government. In case of any requirement of additional sections, coupled with the need to create posts to man the same, appropriate course of action for the District Inspector of Schools was to make an inspection of the primary institution and submit a report to the State Government making his recommendation after ascertaining the number of students studying therein. Under the Government order dated 25.05.2012, the District Inspector of Schools has been empowered to determine the sanctioned strength/requirement of teachers in an attached primary school at the time of bringing the institution on the grant-in-aid list. He is further required to make surprise inspection of the institution from time to time so as to satisfy as to the number of students registered and actually studying therein. He would also be required to determine the strength of the teachers in the ratio of students as per the fixed standard. 23. It is, thus, clear that the District Inspector of Schools could not have unilaterally accepted the claim of the committee of management for creation of additional sections and increase of the strength of teachers. Such decision could have been taken only by the State Government after a report/recommendation in this regard would have been submitted by the District Inspector of School. 24. In the said scenario, the decision of the District Inspector of School not to grant financial approval to the appointments of the petitioners cannot be said to be illegal. 25. Such decision could have been taken only by the State Government after a report/recommendation in this regard would have been submitted by the District Inspector of School. 24. In the said scenario, the decision of the District Inspector of School not to grant financial approval to the appointments of the petitioners cannot be said to be illegal. 25. This apart, the District Inspector of School has categorically asserted that the committee of management of the institution did not provide necessary documents pertaining to the selection and further that the advertisement was not made in two daily newspapers of wide circulation. No exception could be taken to the said reasons of denial of approval by the District Inspector of Schools in its stand taken in the counter affidavit. 26. For the aforesaid, no mandamus can be issued. However, it is left open for the committee of management to request the District Inspector of Schools, Deoria to make a fresh inspection of the institution-in-question and to submit his recommendations to the State Government strictly in accordance with the conditions provided in the Government order dated 25.05.2012 by determining the sanctioned strength of the attached primary sections in the standard teacher-students ratio. In case, the District Inspector of Schools finds that the number of students studying in the institution are much more and the students-teachers ratio is not in accordance with the fixed standard, he shall submit a comprehensive report for consideration before the State Government. 27. On presentation of the said report, the State Government would be under obligation to take an expeditious decision in accordance with law. 28. Subject to the above, the writ petition is disposed of.