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2020 DIGILAW 677 (ALL)

Shobha Jain v. State of U. P.

2020-03-03

ROHIT RANJAN AGARWAL

body2020
ORDER : Rohit Ranjan Agarwal, J. 1. Heard Sri Rahul Jain, learned counsel for petitioner, Sri Shekhar Singh, learned Additional Chief Standing counsel for respondent nos. 1 to 3 and Sri Rajeev Asthana, learned counsel for respondent no. 4. 2. This writ petition has been filed assailing the order dated 31.05.2014 passed by respondent no. 3 as well as seeking direction not to give effect to letter dated 02.01.2014 issued by Manager of Jain Inter College Khekda, District Baghpat (hereinafter referred to as 'Institution') as well as directing respondents to pay arrears of salary for the period 22.07.1991 to 30.09.1992 and from November, 2009 to 31.07.2011, further treating petitioner a regular/confirmed L.T. Grade teacher in the Institution from 22.07.1991 and also to deduct the G.P.F. from the salary of petitioner. 3. Facts in brief as disclosed in writ petition are that Jain Inter College, Khekda, District Baghpat is a recognised and aided intermediate college governed by provisions of U.P. Intermediate Education Act, 1921. The Institution was given recognition of a minority college by orders of Secretary, U.P. Government on 16.11.2006. 4. One Rakesh Malik resigned as a teacher in the Institution in the year 1991, thus, one L.T. Grade post for teaching Sanskrit fell vacant. Petitioner along with two other teachers were appointed as ad hoc Assistant Teacher and papers regarding their selection were forwarded to office of District Inspector of Schools on 24.06.1991. As no approval was received, Management after expiry of seven days, issued appointment letter to petitioner on 01.07.1991. 5. According to petitioner, she joined as ad hoc L.T. Grade teacher and is teaching in the Institution since then. As approval was not granted nor salary was being paid, it appears that petitioner approached this Court by filing Civil Misc. Writ Petition No. 30132 of 1992, wherein this Court on 25.08.1992 restrained respondents from interfering with petitioner's working and further directed that salary be paid regularly. Pursuant to interim order, petitioner continued to work and she was paid salary. 6. It appears that the said writ petition was dismissed by this Court on 15.11.1999 and petitioner was not aware of the said fact and continued to work in the Institution and was being paid salary. Pursuant to interim order, petitioner continued to work and she was paid salary. 6. It appears that the said writ petition was dismissed by this Court on 15.11.1999 and petitioner was not aware of the said fact and continued to work in the Institution and was being paid salary. It was in the year 2004 on coming to know about said fact, recall application was filed along with delay condonation application which was allowed vide order dated 20.05.2011 and order dated 15.11.1999 was recalled. Further, on the same day, this Court disposed of the petition with a direction to respondent no. 1 i.e. District Inspector of Schools to consider and decide petitioner's matter in accordance with Section 16-FF(4) of Intermediate Education Act. The said orders have been brought on record as Annexures-3 and 4 to writ petition. 7. In between, as the Institution as well as authorities were not aware of the fact that petition filed by petitioner was dismissed, she continued to work in the Institution and was paid salary till 06.11.2009, thereafter, she was not permitted to sign attendance register. After the order dated 20.05.2011, District Inspector of Schools on 25.07.2011 granted approval to appointment of petitioner under Section 16-FF(4) of the Act. 8. Sri Rahul Jain, learned counsel appearing for the petitioner submitted that once this Court on 20.05.2011 recalled its earlier order dated 15.11.1999, writ petition as well interim order granted earlier were restored and respondent Institution as well as authorities were not justified in withholding to pay salary of petitioner from November, 2009 to 31.07.2011. It was also contended that once approval was granted by D.I.O.S. on 25.07.2011, petitioner is also entitled to salary for the period 22.07.1991 to 30.09.1992. As far as order of respondent no. 3 dated 31.05.2014 is concerned, it is submitted that once the approval has been granted by D.I.O.S. under Section 16-FF(4), no question of regularisation arises in view of Act No. 5 of 1982. 9. Reliance has been placed upon decision of Apex Court in case of Vareed Jacob v. Sosamma Geevarghese and others (2004) 6 SCC 378, wherein it has been held that restoration of suit revives ancillary orders. 9. Reliance has been placed upon decision of Apex Court in case of Vareed Jacob v. Sosamma Geevarghese and others (2004) 6 SCC 378, wherein it has been held that restoration of suit revives ancillary orders. As far as payment of salary for the period in question reliance has been placed upon decision of this Court in case of Vijay Kumar Yadav vs. State of U.P. and others 2019 (4) ADJ 781 , wherein this Court held that when an employee is not allowed to work due to fault of employer/authorities, such person is entitled for the salary, as he was not allowed to work. 10. Similarly, reliance has been placed upon Apex Court judgment in case of Sobha Ram Raturi vs. Haryana Vidyut Prasaran Nigam Limited, (2016) 16 SCC 663 wherein the Apex Court held that principle of no work no pay cannot be applied wherein the fault lies with the employer in not utilizing the services for the period. Petitioner has also relied upon Division Bench judgment of this Court in case of Smt. Rajmati Singh vs. State of U.P. and others, 2017(3) ADJ 656 on the same question that principle of no work no pay would not be applicable where the employer was at fault, same view has been taken in Ram Prasad Singh vs. State of U.P. and others Writ-A No. 1053 of 2006. Reliance has also been placed on judgment of Apex Court in case of Commissioner, Karnataka Housing Board vs. C. Muddaiah 2007(2) SCC (L&S) 748, Subhash Chandra vs. State of U.P. and 3 others 2018(11) ADJ 433 , Shanti Kunwar Choudhary vs. Committee of Management, Vidyawati Darbari Girls College, Lukerganj, Allahabad and others 1991(1) UPLBEC 588, Committee of Management of Dadaur Inter-College, Dadaur, Rae Bareli vs. District Inspector of Schools, Rae Bareli and others 1985(2) UPLBEC 1378. 11. On the other hand, learned Standing counsel contended that petitioner was being paid salary after the interim order of this Court dated 25.08.1992 till she continued in service up to November, 2009, when Principal of the Institution found that petition filed by petitioner was dismissed, petitioner was not permitted to perform her duties and put her signature on attendance register since 07.11.2009 and was not entitled for salary from November, 2009 till 31.07.2011. 12. 12. It was further contended that at the time when petitioner was appointed in the Institution in the year 1991, the college was not a minority Institution and was given status of minority Institution in the year 2006, while petitioner was appointed as ad hoc teacher thus, her services are to be regularised first, and as she was appointed as a temporary Assistant Teacher, according to rules, G.P.F. is deducted only in case of permanent teachers and she is not entitled for the G.P.F. deduction. 13. Emphasis had been laid upon the fact that petitioner had concealed about dismissal of petition from the Institution as well as the authorities and she has withdrawn salary for 10 years, for which she was not entitled, as she was working only on the strength of interim order granted by this Court. 14. Reliance has been placed upon the decision of this Court in case of Mustaq Ullah vs. State of U.P. and others 2014(4) ADJ 546 , wherein petitioner had obtained appointment on the basis of forged mark-sheet and certificate, which amounted misrepresentation and fraud on public authority. Reliance has also been placed on decision of Atul Kumar Verma vs. Chief Judicial Officer, Farrukhabad and another 1996(3) UPLBEC 1782 , wherein the Court had refused to interfere, when petitioner had not approached with clean hands and it was a case of appointment obtained by misrepresentation. 15. Sri Rajeev Asthana, learned counsel for the Management pressed before the Court that on 23.06.1991, Committee had passed resolution resolving to appoint petitioner as ad hoc L.T. Grade teacher till regularly selected candidate from Commission joins. Further, papers regarding selection were forwarded to D.I.O.S. on 24.06.1991 for approval, as the same was not received then, on 01.07.1991, Management issued appointment letter to petitioner. 16. In Para 12 of counter affidavit filed by Management, it has been specifically stated that as the Principal of the Institution came to know that previous petition filed by petitioner was dismissed, she was not permitted to sign the attendance register, it is also stated that petitioner had moved application before previous Manager that she may be permitted to sign the attendance register as she was not permitted to sign them and has been regularly going to Institution. Further, in Para 21, it is submitted that without order of regularisation of service, it was not possible for answering respondent to deduct G.P.F. from the salary of petitioner. 17. Having heard learned counsel for the parties and from perusal of material on record, the question which emerges for consideration is whether the petitioner was appointed in a minority Institution, or her appointment was under Section 18 of U.P. Act No. 5 of 1982 and, therefore, her services were to be regularised before giving her the benefits as claimed by her. 18. As seen in the present case, when post in question fell vacant in the year 1991, the Institution was not a minority Institution as admitted to either of the parties. As the Institution in question was granted minority status by State Government on 16.11.2006, thus, when petitioner was appointed as an ad hoc Assistant Teacher, L.T. Grade in the year 1991, in pursuance to Section 18 of the Act of 1982, appointment letter was issued to petitioner, as approval was not received from office of D.I.O.S., further providing that her appointment was made till regularly selected candidate is sent by Commission. Copy of the appointment letter is part of record as Annexure-2 to writ petition. 19. Section 30 of U.P. Act No. 5 of 1982 categorically provides for exemption to minority Institution, which is extracted hereas under: "Exemption to Minority Institution-Nothing in this Act shall apply to an Institution established and administered by a minority referred to in clause (1) of Article 30 of Constitution of India." 20. While Section 33-A and 33-B provides for regularisation of certain appointments, Section 33-C provides for regularisation of appointment made by promotion or by direct recruitment on or after 14.05.1991 but not later than August 6, 1993 on ad hoc basis against substantive vacancy in accordance with Section 18, in the Lecturer Grade or trained graduate grade. 21. As the appointment of petitioner was not approved by then D.I.O.S., nor salary was being paid, she approached this Court in the year 1992 and on the strength of interim order granted on 25.08.1992 she continued to work on the post of Assistant Teacher, L.T. Grade and her salary was also being paid from the State exchequer. 22. 21. As the appointment of petitioner was not approved by then D.I.O.S., nor salary was being paid, she approached this Court in the year 1992 and on the strength of interim order granted on 25.08.1992 she continued to work on the post of Assistant Teacher, L.T. Grade and her salary was also being paid from the State exchequer. 22. It was on 15.11.1999 that her writ petition was dismissed and till that date her appointment was neither regularised nor any approval had been granted by educational authorities. It was in the year 2004 that she had filed a recall application for recalling the order dated 15.11.1999, and this fact was not brought to the notice of either the Principal of the Institution or the educational authorities. 23. For the first time when Principal of the Institution came to know of said fact on 06.11.2009, petitioner was stopped from signing attendance register from 07.11.2009 onwards till her writ petition was disposed of finally on 20.05.2011 and earlier order was recalled. 24. In between, the Institution in question was granted minority status on 16.11.2006 by State Government and this Court on 20.05.2011 while recalling the order dated 15.11.1999 further directed District Inspector of Schools to decide her claim in view of Section 16-FF(4) of the U.P. Intermediate Education Act, 1921, as at that relevant point of time the Institution was having minority status. Acting on directions of this Court, D.I.O.S. on 25.07.2011 granted approval to the appointment of petitioner. 25. The claim of petitioner as far as payment of salary from 22.07.1991 to 30.09.1992 is concerned, she is entitled for the same as D.I.O.S. had granted approval to her appointment and it is not a disputed fact that petitioner had joined on 22.07.1991 and was working since then, but was paid salary from the State exchequer from October, 1992 onwards, after directions of this Court issued on 25.08.1992. 26. But as far as the claim of petitioner for payment of salary from November, 2009 to 30.07.2011 is concerned, she is not entitled for the same, as she has not worked during the said period due to the fact that her petition was dismissed on 15.11.1999, though, it was restored on 20.05.2011. 27. 26. But as far as the claim of petitioner for payment of salary from November, 2009 to 30.07.2011 is concerned, she is not entitled for the same, as she has not worked during the said period due to the fact that her petition was dismissed on 15.11.1999, though, it was restored on 20.05.2011. 27. Reliance placed on number of decisions by learned counsel for petitioner as far as principle of 'no work no pay' not being applicable to those cases, where the employee could not work due to fault of employer/authorities or has been prevented by employer was entitled for the payment of salary for the said period, does not apply in the instant case. 28. As, it is clearly evident from the facts of the case that writ petition of petitioner was dismissed on 15.11.1999 and the said fact was never brought to the notice of the educational authorities or the Institution by petitioner and she kept on drawing salary from State exchequer for 10 years, while she came to know about the dismissal of her petition in the year 2004 itself and a recall application was filed by her along with delay condonation application in 2004. While the writ petition was restored on 20.05.2011 and the order dated 15.11.1999 was recalled, meaning thereby that not only writ petition was restored but also the interim order was restored as held by Apex Court in case of Vareed Jacob (supra), but that would not entitle the petitioner to claim her salary for the period 2009 to 2011 for which she did not work, as it was not due to fault of employer/authorities but it was due to her fault and also concealment of the fact that her writ petition was already dismissed on 15.11.1999 and she had been continuously drawing salary from the State exchequer. Petitioner cannot be given benefit for her own fault and the reliance placed upon decision of Apex Court in case of Sobha Ram Raturi (supra), Subhash Chandra (supra), and Smt. Rajmati Singh, as in all those cases, the Court found that employee was not permitted to work due to fault of employer/authorities, but this is not the case in hand and in the present case petitioner herself is to be blamed and she cannot take benefit of the fact that she remained out of work due to her own fault, furthermore the authorities had immediately after directions of this Court dated 20.05.2011, on 25.07.2011 granted approval to her appointment under Section 16-FF(4) of the U.P. Intermediate Education Act. 29. Claim of petitioner for G.P.F. would also not arise as her initial appointment was made as a temporary teacher on ad hoc basis under Section 18 which continued and when approval was granted, the Institution became a minority Institution and approval granted was under Section 16-FF (4) of 1921 Act. Unless and until services of a teacher/employee becomes permanent, she is not entitled for G.P.F., thus, the claim of petitioner can only be considered after 25.07.2011. 30. From the perusal of the order impugned dated 31.05.2014, it appears that Joint Director of Education has been swayed away with the fact that initial appointment of petitioner as an ad hoc teacher made under Section 18, in the year 1991 was not regularised, as such she was not eligible for the benefit claimed by her. 31. The said finding is totally wrong and against the provision of Section 30 of U.P. Act No. 5 of 1982 which clearly exempts minority Institution, meaning thereby that they are not applicable to such Institutions and once approval was granted by D.I.O.S. under Section 16-FF(4) of U.P. Intermediate Education Act, 1921 then no question of regularisation as envisaged under U.P. Act No. 5 of 1982 arises, thus, the order impugned is unsustainable in the eyes of law and is hereby quashed. 32. Thus, in view of above, petitioner is only entitled for the salary for the period 22.07.1991 to 30.09.1992 in view of approval granted by District Inspector of Schools on 25.07.2011. 33. For the claim of G.P.F., the matter is remitted to Joint Director of Education, respondent no. 32. Thus, in view of above, petitioner is only entitled for the salary for the period 22.07.1991 to 30.09.1992 in view of approval granted by District Inspector of Schools on 25.07.2011. 33. For the claim of G.P.F., the matter is remitted to Joint Director of Education, respondent no. 3 to take a call on the same in accordance with law, keeping in mind the fact that petitioner has been granted approval under Section 16-FF (4) by District Inspector of Schools on 25.07.2011. 34. In view of observation made above, the writ petition stands partly allowed.