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Bansh Narain Pandey vs Secretary, Madhyamik Shiksha ...

High Court Of Judicature at Allahabad|27 January, 1999


1. By or under a letter dated 4th August. 1983, contained in Annexure-1 to the writ petition, the Secretary, Madhyamik Shiksha Parishad had granted permission in respect of additional subjects in the Commerce Department, in Sanskrit, Mathematics and Statics. In the said letter, it was pointed out that the School may obtain permission from the Inspector for running classes in those additional subjects. By or under a letter dated 27th August. 1983 contained in Annexure-2 to the writ petition, the Inspector had granted permission to run Class XI in respect of the additional subjects. Clause 4 of the letter dated 4th August, 1983, provides that the Lecturers who are lesser qualified may be removed and adequately qualified Lecturers may be appointed in their place according to the rules.
2. Mr. Arun Tandon, learned counsel for the petitioner Sri B. N. Pandey contends in Writ Petition No. 10666 of 1992 that the petitioner had been teaching intermediate classes in Mathematics and Statics right from 1983. He had completed 10 years' service In L.T. grade in 1982. therefore, he was eligible for being promoted to the post of Lecturer in Mathematics. The School Authority by or under Us letter dated 22nd August, 1983. had requested the Director of Education for creation/sanction of the post in the additional subjects as recognised by the letter dated 4th August. 1983. The said letter is Annexure-4 to the writ petition. The petitioner had also made representation which is Annexure-6 to the writ petition.
claiming salary in the post of Lecturer on account of his teaching the said subject. This was also certified by the school authority through its letter dated 21st August. 1990, which is Annexure-7 to the writ petition. This fact is also admitted in the counter-affidavit on behalf of the State respondents in paragraph 6 to the extent that the petitioner is teaching Mathematics in intermediate classes on stop-gap arrangements. The only ground on which the State respondent had denied the claim of the petitioner, as stated in paragraph 4 of the said counter-affidavit, is that the post was not sanctioned and, therefore, no ad hoc appointment could be made pursuant to the letter dated 4th August, 1983. In such circumstances, Mr. Tandon placed reliance on the decision in the case of Arjun Singh v. State of U. P, and others. 1997 (31) ALR 485, and contended that the petitioner should be given appointment to the post of Lecturer since the creation of the post was implied in the grant of recognition in respect of the said subject.
3. Mr. K. P. Shukla, learned counsel for the petitioner, Sri A. N. Yadav in Writ Petition No. 1385 of 1993 contends that the petitioner was appointed as Lecturer in Commerce on 15th September, 1990 which is Annexure-3 to this writ petition on ad hoc basis till a regularly selected candidate by the Commission joins. He claims that he had been working as a teacher in Commerce since 1990 and therefore, he should be given salary in Lecturer's grade since 1983. As contended in paragraph 24 of the writ petition, the petitioner having been appointed in 1990 cannot claim payment of salary in Lecturer grade since 1983.
4. The learned counsel for the petitioner contends that an application for amendment was made and that was allowed but he is unable to point out the date on which the amendment was allowed. However, from the records, it does not appear that there is any application for amendment or it was allowed. Be that as it may even in the writ petition, it does not seem that the amendment was incorporated.
5. By reason of provisions contained in Order VI, Rule 18 of the Code of Civil Procedure, failure to carry out the amendment results into the lapse of the order of amendment. Even if the provisions of Code of Civil Procedure may not be applied in a proceeding under Article 226 of the Constitution because of specific bar provided in Section 141 of the Code of Civil Procedure, yet the principle applies and in case the petitioner is not diligent in carrying out the amendment, the same could be ignored.
6. Be that as it may, it is not necessary to go into the said question for two reasons. Inasmuch as apparently, it is merely a typographical error and too trifle and technical and. therefore, can be taken notice of the Court by permitting the petitioner to correct the prayer portion through its counsel. The second reason Is that the counsel for the petitioner claims that the petitioner was appointed as a Lecturer in Commerce and not in Mathematics and Statics. However, his letter of appointment contained Annexure-3 describes the appointment as on ad hoc basis on the post of Commerce Lecturer in Mathematics and Statics. Whether he Is eligible for being so appointed or not is a question to be decided by the appropriate authority having regard to the facts and circumstances of the case on the basis of the result in the Writ Petition No. 10666 of 1992.
7. The claim of the petitioner in Writ Petition No. 1385 of 1993 has since been opposed by the petitioner in Writ Petition No. 10666 of 1992. Sri B. N. Pandey. the petitioner In Writ Petition No. 10666 of 1992 had filed an application for impleadment in Writ Petition No. 1385 of 1993 filed by Amar Nath Yadav. Since both the writ petitions are connected and are being taken up together and are being represented by the respective counsel, the application for impleadment is allowed, Since both the counsel had addressed the Court on the respective merits and demerits of the writ petitions, tt is no more necessary to give an opportunity to file a counter-affidavit or otherwise. Neither of the counsel had prayed for any such accommodation and had proceeded on the basis of the materials already on record in support of their respective cases. In such circumstances, the matter was heard on merits addressed by both the counsels and both the matters were taken up together.
8. I have heard Mr. Arun Tandon and Mr. K. P. Shukla, learned counsel for the petitioner in respective writ petitions filed by Sri. B. N. Pandey and Sri Amar Nath Yadav respectively as well as Mr. K. R. Singh, learned standing counsel at length.
9. In the case of Arjun Singh (supra), it was held that the grant of recognition implies creation of post, in the said decision, it was held as follows :
"When sanction is given for opening a new class or subject it is implied that a post is created by reasons of recognition of new subject or new section. If no such post is created then the recognition should be meaningless. The very definition of teacher defined in Section 2(e) which includes a person employed in fulfilment of such grant of recognition clearly indicates such an interpretation. Thus, a person employed in fulfilment of the condition for recognition entitles him to receive salary by reason of the definition of teacher. The condition that the school has to bear the expenses does not include the salary of a teacher. It relates to the expenses other than the salary of the teacher, viz., provision for class room, furniture and other necessary expenses required to open and continue with the class in new subject or section. Inasmuch as the said condition cannot override the express provision of law. At the same time the said condition is an executive direction which in no manner can supersede the legal provision."
10. In the present case, the sanction of the additional posts are admitted in paragraph 4 of the counter-affidavit filed on behalf of the State which is also apparent from Annexure-1 to the writ petition, since not been disputed by any of the authorities. Pursuant to such recognition of additional subjects, permission to open classes were accorded which is Annexure-2 to both the writ petitions. It is also admitted by the State respondent that the petitioner B. N. Pandey is teaching Mathematics on stop-gap arrangement on the basis of such recognition and that Sri Pandey had been a L.T. grade teacher since 1972 by reason whereof he has completed 10 years in L.T. grade in 1982 whereas the sanction of the additional subjects was accorded in 1983. The Committee of Management had already applied for creation/ sanction of the post through its letter dated 22nd August, 1983, which fact has also not been disputed or denied by the State respondent.
11. It is preposterous that permission to open new class was accorded and sanction to teach additional subject was granted but for the last 15 years, no post is being sanctioned. It was incumbent on the respondents to create or sanction the post after making appropriate enquiry within a reasonable time. After such sanction was accorded, it was open to the respondent to either allow or reject the prayer made by the Committee of Management on 22nd August, 1983. for sanction of post. It has no business to sit upon it and thereafter denying sanction of the post or payment of salary to a person who had been carrying on the duty of teaching in Lecturers grade even though appointed on stop-gap arrangement. It would be violative of Article 39 in that it is an extortion of service on lesser pay which is otherwise impliedly prohibited, by reason of Article 23 of the Constitution.
12. Paragraph 4 of the letter dated 4th August. 1983 specifically provides that qualified teacher may be appointed according to law. This Implies creation of the post. It is not disputed that the petitioner B. N. Pandey is not qualified.
13. Mr. K. R. Slngh, learned standing counsel submits that the letter was Issued by Secretary of Madhyamik Shiksha Parlshad, whereas the post is to be sanctioned by the Director of Education. therefore, there cannot be any question of implied sanction of a post by issue of a letter by the Madhyamik Shiksha Parishad. It is the Director who has to issue order for sanction of the post.
14. But the fact remains that the letter dated 22nd August. 1983. was addressed to the Director of Education for creation of post. If there is absence of co-ordination between the two organs of the same department of the Government, namely, the education department under which the Madhyamik Shiksha Parishad operates as one of its organ, in that event, it is for the State Government to make suitable provision for appropriate coordination. It appears from the said letter dated 4th August. 1983, that copies of the said letters were also forwarded for appropriate action to the Deputy Director of Education, Varanasi region as well as the Deputy Director of Education. Madhyamik Shiksha Parishad and Director of Education U. P.. Allahabad as well as the Intermediate Examination Department regional office, Meerut. Therefore, the contention of Mr. Singh cannot be sustained, that there was no Implied sanction since it was issued by the Secretary. Madhyamik Shiksha Parishad who has no power to sanction the post. The present situation depicts lack of co-ordination between the different organs of the same and one department, namely. the education department of which Madhyamik Shiksha Parishad is a part though a different and distinct independent entity. It is expected that all the organs should work in coordination in between them so as to advance education. It is for the purpose and object of proper and better administration the Legislature in its wisdom had provided for creation of different organs having technically distinct and different entity, yet they are part of and are under the over all control and supervision regulated by express provisions contained in the legislation creating such entities. Such object and purpose can only be furthered through co-ordination between the different organs. It is not open to the State to take such a stand. Inasmuch as in such event the jurisdiction of the Parishad to recognise or sanction classes or section or subjects would be meaningless and ineffective. Such attitude on the part of the other organs of the same department would amount to nullifying the creation of the jurisdiction through legislation by executive action or flat. When a class, section or subject is recognised or sanctioned by the Parishad In exercise of its jurisdiction unless there are exceptional or extraordinary reasons, the part to be played by the Directorate is only ministerial subject to satisfaction of compliance of the required formalities and requirements provided and regulated by the provisions contained in the legislation or the rules and regulations framed thereunder,
15. In view aforesaid. I do not find any reason to differ from the view taken in the case of Arjun Singh (supra) as is sought to be distinguished by Sri K. R. Singh.
16. In such circumstances, the respondents shall consider the question of grant of salary to the petitioner Sri B. N. Pandey. In the post of Lecturer, namely, payment of difference of pay of the post of Lecturer and L.T. grade teacher, as the case may be from the date Sri B. N. Pandey is working in the said post having regard to the record of the school which may be produced by the institution before the appropriate authority which may be called for. in the light of the observations made above, as early as possible preferably within a period of three months from the date a copy of this order is furnished to the appropriate authority, having regard to the principles enunciated tn this judgment as well as the Judgment tn the case of Arjun Singh (supra). It would be open to the respondents to scrutinise the records and take an appropriate decision in the matter after giving opportunity to the petitioner Sri B. N. Pandey and the school authority.
17. Similarly so far as the case of Amar Nath Yadav is concerned, in the other Writ Petition No. 1385 of 1993, the same may also be considered in the background of the decision in the Writ Petition No. 10666 of 1992, after the case of Sri B. N. Pandey is considered and decided. In case Sri Amar Nath Yadau is appointed in a post different from that of Lecturers in Mathematics and Sanskrit in that event, his case may be considered without affecting the case of Sri B. N. Pandey in any manner whatsoever within a period of three months from the date of the decision taken in case of Sri B. N. Pandey, the petitioner in Writ Petition No. 10666 of 1992, in a post other than that of Lecturer in Mathematics and Sanskrit.
18. With these observations both these writ petitions are disposed of.
There shall however, be no order as to costs.
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Bansh Narain Pandey vs Secretary, Madhyamik Shiksha ...


High Court Of Judicature at Allahabad

27 January, 1999
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