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Narendra Kumar Singh vs D.I.O.S., Allahabad & Others

High Court Of Judicature at Allahabad|31 May, 2012

JUDGMENT / ORDER

By means of this writ petition the petitioner is challenging the order dated 12.6.2008 by which matter relating to the appointment of the petitioner as Assistant Teacher (Sanskrit) in the institution, namely, Adarsh Uchhatar Madhyamik Vidyalaya, Malihan, Phoolpur, Allahabad and the approval granted to his appointment has been rejected by the Director Education( Secondary) U.P..
The case of the petitioner is that he was appointed in the C.T.grade for teaching Junior High School classes in the Adarsh Uchhatar Madhyamik Vidyalaya, Malihan, Phoolpur, Allahabad on 1.7.1976. The petitioner was an Intermediate pass on the date of appointment. The institution was granted permanent recognition as Junior High School with effect from 1.7.1978 vide letter dated 11.8.1978 of the Deputy Director of Education, Region-IV, Allahabad. Thereafter, it was upgraded to High School level in terms of Section 7A of the U.P. Intermediate Education Act, 1921 and granted permanent recognition by Additional Secretary, Secondary Education Board by his letter dated 24.12.1980. The petitioner has also passed M.A. B.Ed and claims to be entitled to the L.T.grade in terms of the G.O. dated 3.9.1986 upon the declaration of the C.T. Grade to be dying cadre.
When he was not paid salary, the petitioner along with two others filed Civil Misc.Writ Petition No.27713 of 1993. This writ petition was disposed of by this Court by order dated 29.6.1993 with a direction to the District Inspector of Schools to decide the representation of the petitioners including the present petitioner after giving him and the Committee of Management an opportunity of being heard. In compliance of the said order of this Court, the District Inspector of Schools, Allahabad reconsidered the matter and passed fresh order dated 3.8.1993, which is filed as Annexure-7 to the writ petition. The finding recorded by the District Inspector of Schools, Allahabad in respect of the petitioner, which is at page 53 of the writ petition clearly shows that the petitioner was appointed as Assistant Teacher (Sanskrit) by the Committee of Management on 1.7.1976 and that he did his M.A.(Sanskrit) in the year 1982 and passed the B.Ed. examination in 1985.
On 11.11.1980, the Principal/Manager sent a letter to the Basic Education Officer, Allahabad giving the list of teachers already working in the school. In this list the name of the petitioner also finds mention at Serial no.14 (Annexure-9 to the writ petition). However, by his order dated 3.8.1993 the District Inspector of Schools has rejected the claim of the petitioner for payment of salary on the ground that in the approval stated to have been granted by Basic Education Officer by his letter dated 19.12.1980 the name of the petitioner did not find mention.
Aggrieved by the said order the petitioner filed Writ Petition no.894 of 1995. The Court after considering the entire facts on record as well as original records, which were produced in the Court, held as follows:-
'The impugned order records that only those teachers were paid salary under the payment of Salary Act, 1971 whose name was in approved list sent by the Basic Shiksha Adhikari on 19.12.1980 and the reason given for rejecting the petitioner's claim is that his name was not there in the so called letter dated 19.12.1980. The record of the case was summoned and examined. the letter dated 19.12.1980 is nowhere on the record at all.........
In view of the fact that a factual controversy has developed during the hearing of this case and for the first time the respondents have come out with a new story that the letter dated 19.12.1980 is a forged letter. If, that is so, all those teachers approved by way of the letter dated 19.12.1980 were perhaps not approved at all, their approval also becomes doubtful. The matter, therefore, requires careful reconsideration. The matter is, therefore, remanded to the Director of Education, U.P. to look and enquire into the matter with regard to the claims of the petitioner for grant of salary with effect from 1.4.1991. he may look into the matter and pass orders in accordance with law within a period of three months from the date of production of a certified copy of this order and all others concerned may also be given an opportunity of hearing before the respondent no.2 passes orders. The impugned order dated 3.8.1993 is, therefore, set aside.' Thus this Court has recorded a clear cut finding that the so called letter dated 19.12.1980 stated to have been issued by the Basic Education Officer not being on record is a forged document. On the contrary, the letter dated 11.11.1980 by which approval was granted to the appointment of the petitioner is on record. It is in view of this, clear cut finding that this matter was remitted back with a direction to the Director of Education, U.P. to enquire into the matter with regard to the claim of the petitioner for grant of salary with effect from 1.4.1991.
In pursuance of the direction of this Court dated 8.4.2008 that the the impugned order dated 12.6.2008 has been passed by the Director of Education (Madhyamik), U.P., Allahabad.
I have heard Sri Rakesh Bahadur,Sri Anoop Misra, learned counsel appearing for respondent no.3 and learned standing appearing for respondent nos.1,2 and 4.
The facts regarding the appointment of the petitioner in the year 1976 and the approval granted on 11.11.1980 and filing of the writ petitions in between and the orders passed by the Deputy Director of Education,U.P. as well as the District Inspector of Schools are not disputed between the parties.
In para 6 of the counter affidavit, it has been stated by learned standing counsel that at the time of his appointment on 1.7.1976 the petitioner was only intermediate pass but on the upgradation of the Junior High School he was also required to possess the requisite qualifications for the same. In para-6 of the counter affidavit, it has been stated that at the time of his appointment the petitioner did not possess the requisite qualification and that there was no approval granted by the Basic Education Officer. However, it is stated that at the time of his appointment the petitioner was untrained teacher and at the time when the institution was upgraded to High School in 1980 he was an untrained teacher and his appointment had not been approved by the District Basic Education Officer, Allahabad.
From a perusal of the impugned order as well as averments made in paras-6 and 17 of the counter affidavit, it is not in dispute that the petitioner was an Intermediate pass at the time of his initial appointment in the year 1976. The institution was upgraded as Junior High School in 1978 and thereafter, the U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act 1978 became applicable. The institution was upgraded as a High School in 1980 by order dated 24.12.1980. This Court in its order dated 8.4.2008 after calling for the original record and perusing the same has recorded a clear cut finding that in the list which was forwarded by the Committee of Management for approval on 11.11.1980 the name of the petitioner finds place at serial no.14. Document filed as Annexure-9 to the writ petition at page 62 of the writ petition is the list dated 11.11.1980 which clearly shows the name of the petitioner at serial no.14.
Learned counsel for the petitioner has placed reliance upon a decision of a learned Single Judge reported in 1999 (3) UPLBEC 2379, Pati Ram Yadav vs. State of U.P. and others wherein this Court relying upon the provisions of G.O. dated 10.3.1971 has held that appointments prior 1978 did not require training as training was not an essential qualification and that an untrained teacher could be appointed between 1971-78. This Court also placed reliance upon a decision of this Court in 1990 UPLBEC 351, Rikh Pal Singh vs. District Basic Education Board, Allahabad and held that 1978 Rules were not retrospective, and therefore, appointment of an untrained teacher prior to these Rules could not be held to be bad in law and that an untrained teacher could be appointed permanently between 1971 and 1978. This Court has held as follows:-
"6. I would take up the case of Pati Ram Yadav as he was intermediate only on the date of his appointment and if he is found entitled for absorption and payment of salary then there would not be any difficulty for petitioners in Writ No.8166 of 1994 as on the date of their appointment they were either graduate or post-graduate. Pati Ram during service with the permission of the authorities obtained degree of M.A.(History), M.A. (Sociology) and training certificate from the Government Basic Training College, Lucknow on 16.7.1979. But the question is whether the ADE was justified in recording the finding that Pati Ram was neither eligible nor qualified to be appointed as assistant teacher in 1972. He has given three reasons in support of his finding one that the petitioner was not educationally qualified, second he was untrained and the third that his appointment was not approved by the basic education officer. Each reason given by him is either contrary to the provisions which were applicable to junior high schools at the time of petitioner's appointment or it is against facts. The ADE has not referred to any provision in the regulation or schedule appended to it, which may indicate that the minimum qualification for an assistant teacher in junior high school was more than intermediate. Even when U.P. Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules were enacted in 1978 (in brief Rules, 1978) the minimum educational qualification prescribed for appointment as assistant teacher was intermediate only. The petitioner, Pati Ram, was thus educationally qualified to be appointed as assistant teacher in Junior High School. It may now be examined whether an untrained teacher could be appointed permanently and whether such appointment was illegal. Before 10.3.1971 the services of assistant teachers in junior high schools were governed by provisions in the Education Code. Chapter V dealt with recognised junior and senior basic schools. It had two Sections A and B. The former dealt with school for boys and latter for girls. No qualification was prescribed for an assistant teacher in boys' schools. But paragraph 196 in B section provided that no untrained teacher shall be appointed permanently in a recognized school. This did not apply to boy's school. There was thus no bar on permanent appointment for an untrained teacher in boys schools. Even if it is assumed that the Regulation 196 applied to boys schools the doubt if any stood removed when the State Government issued the order in 1971. The order purported to revise the salary of assistant teachers in junior high schools but it made obligatory for any untrained teacher appointed after the notification was issued to acquire training certificate within five years of his appointment otherwise he would be paid the initial salary only. There was thus no restriction on the management of a Junior School in appointing an untrained teacher permanently. Pati Ram having been appointed permanently, as is clear from his appointment order, after the Government Order of 10.3.1971 had been issued his appointment was in accordance with law it was neither irregular nor illegal. Training became essential qualification under Rules, 1978. The appointment of petitioner, however, being prior to it and in accordance with law in force on the date of his appointment it did not suffer from any defect. In Rikhi Pal Singh vs. District Basic Education Board, Allahabad, 1990 UPLBEC 351, it has been held by this Court that the provisions in 1978 Rules were not retrospective therefore appointment of an untrained teacher prior to these rules could not be terminated. These rules did not in any manner effect the appointments made after Government Order of 1971. An untrained teacher, therefore, could be appointed permanently between 1971 and 1978. The appointment letters of all the petitioners clearly show that their appointment was permanent."
Thus in view of the settled legal position that where such appointments between 1971 to 1978 could not be said to be erroneous only because the only qualification possessed by the Assistant Teacher was Intermediate and approval had not been obtained from the District Basic Education Officer.
In my opinion, the impugned order dated 12.6.2008 is absolutely illegal and erroneous and cannot survive. The writ petition is allowed and the impugned order dated 12.6.2008 is, therefore, quashed. Respondents no.1 and 2 will take take steps for payment of salary to the petitioner within a period of three months from the date a certified copy of this order is received by them.
Order Date :- 31.5.2012 Asha
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Title

Narendra Kumar Singh vs D.I.O.S., Allahabad & Others

Court

High Court Of Judicature at Allahabad

JudgmentDate
31 May, 2012
Judges
  • B Amit Sthalekar