Court No. - 30
Case :- WRIT - A No. - 45553 of 2013 Petitioner :- Smt. Manju Dass Respondent :- State Of U.P.& 5 Ors.
Counsel for Petitioner :- Siddharth Khare,Ashok Khare Counsel for Respondent :- C.S.C.,Santosh Kumar Yadav
Hon'ble Vivek Kumar Birla,J.
Heard Shri Siddharth Khare, learned counsel for the petitioner, Shri Santosh Kumar Yadav, learned counsel appearing for respondent No. 6-Committee of Management, learned Standing Counsel for the respondent No.5.
The facts, in brief, of the case suitably noted in second paragraph of the judgment dated 15.3.2003 passed in writ petition No. 12087 of 1999 (Smt. Manju Dass versus Regional Joint Director of Education, Gorakhpur Region and others), are quoted as under:
"Briefly stated facts of the case are that Carmel Girls Inter College, Gorakhpur (in short called as the "Institution") is a recognised Intermediate College. It is a minority institution in terms of Article 30(1) of the Constitution of India. It receives aid out of the State Fund. The provisions of the U.P. Intermediate Education Act, 1921 (in short called as the "Act, 1921") and the Regulations framed thereunder and the U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 are applicable to the institution. The Committee of Management of the institution published an advertisement for appointment to the post of Assistant Teacher in L.T. Grade on 04th February, 1997, pursuant to which the petitioner submitted her application. It is stated that the petitioner was found suitable against the said vacancy and was selected by the Selection Committee. Accordingly, the Committee of Management forwarded the necessary papers to the Deputy Director of Education for approval. However, the Deputy Director of Education by the impugned order dated 11th July, 1997 has disapproved the appointment of the petitioner on two grounds; firstly, the Committee of Management of the institution is not validly constituted, and secondly, the petitioner does not possess the essential qualifications in terms of the advertisement. Challenging such order, the present writ petition has been filed."
Initially, the interim order dated 30.11.1999 was passed in the above noted petition, which is also quoted as under:
"Heard learned counsel for the petitioner as well as learned Standing Counsel.
Since the institution is a minority institution, therefore, in view of law laid down in the case reported in (1998) 6 SCC, 674 (A. Ammad versus Manager Emjan H.S. & Ors) that no approval is required in case of appointment in minority institution, the operation of the impugned order shall remain stayed and the petitioner shall be paid his salary regularly every months."
Ultimately, the above-noted petition was finally allowed and the matter was remanded back to the Deputy Director of Education - respondent No. 2 to decide the matter afresh after giving opportunity of hearing to the petitioner and Committee of Management. Relevant paragraph whereof are quoted as under:
"From the plain reading of said section it is evident that only on the ground of minimum qualifications the approval can be denied. Thus, the Deputy Director of Education has travelled beyond his jurisdiction as he rejected the approval on the ground that the Committee of Management is not duly constituted. As regards the second ground that the petitioner lacks qualification in terms of the advertisement is concerned, the qualification is always seen in terms of the statutory provision. The institution in question is a recognized Intermediate College, therefore, the qualifications prescribed under the Appendix-A of Regulation 1, Chapter- II of the Regulations made under the Act, 1921, which deals with the minimum qualifications of the teachers in the recognized institutions, shall prevail. However, the Deputy Director of Education has not applied his mind in terms of the qualifications mentioned under the Appendix-A. Therefore, the second ground mentioned in the impugned order is also unsustainable. As regards the submission of learned Standing Counsel that the appointment of the petitioner has been made beyond the sanctioned strength is concerned, the said plea has been taken in the counter affidavit, whereas in the impugned order this ground has not been mentioned by the Deputy Director of Education. A Constitution Bench of the Supreme Court in the case of Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others, reported in (1978) 1 SCC 405 : AIR 1978 SC 851, has laid down the law that the reasons can be seen only from the impugned order and it cannot be supplemented by way of affidavits. The said judgement of the Constitution Bench has been followed in a series of judgements by the Supreme Court and this Court.
Having heard learned Counsel for the parties and considered the facts and circumstances of the case, a direction is issued upon the Deputy Director of Education, the respondent no. 2 herein, to consider the matter afresh after giving opportunity to the petitioner as well as the Committee of Management. Since by virtue of the interim order of this Court the petitioner is receiving her salary and she is continuing as Assistant Teacher, L.T. Grade, in the institution, the interim protection granted by this Court shall continue till the fresh decision is taken by the Deputy Director of Education. The Deputy Director of Education shall undertake the aforesaid exercise as expeditiously as possible preferably within a period of four months from the date of communication of this order.
Learned Counsel for the petitioner has also submitted that the salary of the petitioner between the period when the interim order was granted and till the dismissal of special appeal filed by the Department has not been paid, therefore, a direction may also be issued for payment of the same. I am of the view that no such direction can be issued but the petitioner is at liberty to file a separate representation in respect of payment of salary of the said period in case her appointment is found to be valid by the Deputy Director of Education.
Thus, the writ petition succeeds and is allowed."
Pursuant to the aforesaid order, the petitioner filed a representation for payment of salary to the petitioner from 30.7.1997 till March, 2016. The same was rejected by the impugned order on the ground that the approval was granted by the Regional Committee w.e.f. 1.9.2006, therefore, prior to the above noted date in view of Section 16 FF (3) of the U. P. Intermediate Education Act, 1921 (hereinafter referred to as the 'Act, 1921') no salary is payable to the petitioner as approval was granted w.e.f. 1.9.2006 and that payment is being made thereafter.
It may be noticed that this order dated 2.9.2006 was passed by the Regional Committee, which is annexed as Annexure-5 to the petition, during pendency of the writ petition No. 12087 of 1999. In the counter affidavit, a ground was taken that the appointment of the petitioner was beyond the sanctioned strength. This ground was rejected on the ground that the reasons cannot be supplemented by way of affidavit and it is only the reason that has been given in the impugned order can be seen.
Submission of the learned counsel for the petitioner is that since by the impugned order dated 30.11.1999 this Court has specifically directed for making payment of salary regularly every month to the petitioner by staying the operation of the impugned order whereby selection of the petitioner was disapproved under such circumstances, he is entitled for payment of salary for the aforesaid period as is being claimed as there is no dispute that petitioner is continuously working in the institution.
Par contra, learned Standing Counsel has submitted that for the aforesaid period since the approval was granted w.e.f. 1.9.2006 as per Section 16 FF (3) of the Act, 1921 State-authority is not responsible to make such payment and petitioner can claim from the Committee of Management .
I have considered the rival submission and perused the record.
There is no dispute about the fact that initial order dated 11.7.1997 passed by the Deputy Director of Education was set aside by this Court vide judgment dated 15.3.2003. It appears that the aforesaid order of the Regional Committee dated 2.9.2006 was not brought to the knowledge of this Court. As such, the ground taken by the learned Standing Counsel that the appointment of the petitioner was beyond the sanctioned strength was considered and rejected in view of Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others, reported in (1978) 1 SCC 405.
A perusal of the order of the Regional Committee dated 2.9.2006 at Page 25 clearly indicates that the District Inspector of Schools has submitted its report that the appointment of the petitioner was made against the sanctioned strength after obtaining due permission from the educational authorities. Under such circumstances, it is clear that the selection and appointment of the petitioner was made against the sanctioned strength. Further, after staying the operation of the order dated 11.7.1997, whereby the appointment of the petitioner was disapproved, a positive direction in categorical terms was given that the petitioner shall be paid salary regularly every month.
It appears that payment has been rejected in view of Section 16 FF (3) of the Act, 1921. However, the direction of this Court to pay regular salary as given by interim order dated 30.11.1999 has been completely over looked. It has been noticed that against the aforesaid interim order, Special Appeal No. 183 of 2000 (Regional Joint Director of Education and others versus Smt. Manju Dass and another) was also filed by the State, which was dismissed on the ground that the same was not maintainable as it was not against the final order. In the special appeal also no interim order was granted.
From the perusal of record, it is also clear that the interim order dated 30.11.1999 granted by this Court continued and as noticed by this Court in its final order dated 15.3.2013, wherein on the basis of interim order, further protection till the passing of the order was also granted by the present case. From the above noted discussion, it appears that now no issue is left pending to be decided by the Educational Authorities inasmuch as in the year 2006 the approval to the appointment of the petitioner was granted during the pendency of the writ petition of the 1999 and the ground that the appointment was not against the sanction strength, is also contrary to the record as noted on page 25 of the paper book.
The order of the Regional Committee dated 2.9.2006 authorities is prima facie correct in ascertaining that the State authorities is not liable to pay salary prior to the date of approval in view of Section 16 FF (3) of the Act, 1921. However, the salary was liable to be paid to the petitioner in view of the interim order dated 30.11.1999 which was maintained throughout. Under such circumstances when the actual working of the petitioner is appears to be not in question, the impugned order does not appears to be sustainable in the eyes of law. The impugned order dated 20.7.2013 passed by the Joint Director Education, 7th Region, Gorakhpur is not sustainable in the eyes of law and is hereby set aside. The respondent authorities are directed to sanction and release the arrears of salary of the petitioner for the period of 20.3.1997 to March, 2006. In the facts and circumstances of the case, the petitioner is not entitled for any interest on the aforesaid amount as genuine litigation was pending between the parties. It is also made clear that in case any amount has been paid to the petitioner by the State authorities they are at liberty to adjust the same.
Present petition is allowed. The said exercise may be completed within a period of 4 months from the production of certified copy of this order..
Order Date :- 26.2.2018 Ravi Prakash