Heard Sri B.K. Singh, learned counsel for the petitioner and Sri Pankaj Khare, learned Additional Chief Standing Counsel for the State.
These two writ petitions have been filed by the same petitioner having same facts and issues. The adjudication of first writ petition shall have impact on the merits of second one. Therefore, the learned counsel for the respective parties are agreeable for joint hearing and disposal thereof.
By means of first petition the petitioner has prayed following reliefs which as under :
"1. to issue a writ, order and direction in the nature of certiorari quashing the impugned order dated 08.02.2008 passed by opposite party no. 4 i.e. District Inspector of School, Lucknow and which was received by the petitioner on 13.02.2005 contained in Annexure no. 1 to this writ petition with all consequential benefits.
2. to issue a writ and order and direction in the nature of mandamus to the opposite party no. 4 to decide the matter on merits considering the facts, circumstances and material available fact on records and the representations produced by the petitioner before the opposite party no. 4 on merits. It is further prayed to this Hon'ble Court to direct the opposite party no. 4 i.e. District Inspector of School, Lucknow to consider to petitioner's case for getting salary as well as the similar situated person / teacher in the same college and other case has already been considered by them.
3. to issue any other appropriate order or direction which the Hon'ble Court cases fit and proper under the facts and circumstances of the case and in the interest of justice in favour of petitioner.
4. to award cost of the writ petition to the petitioner.
5. to issue a writ, order or direction in the nature of certiorari quashing the office order / letter dated 19-7-1990 passed by respondent no. 2 contained as Annexure No. 10 to this writ petition."
The prayers of second writ petition are as under :
I. Issue a writ, order or direction in the nature of Certiorari quashing the impugned order dated 08.03.2019, passed by the opposite party no. 4, contained in Annexure No. 1 to the writ petition.
II. Issue a writ, order or direction in the nature of Mandamus commanding the respondents to pay trained pay scale to the petitioner w.e.f. 01.10.1989 along with arrears of salary forthwith."
In the first writ petition the petitioner has assailed the order dated 8.2.2008 passed by the District Inspector of Schools, Lucknow (hereinafter referred to as the D.I.O.S.) which is said to have been received on 13.2.2008. As per aforesaid order the petitioner was paid the salary and other benefits of trained teacher w.e.f. 1.1.2004, not from the date of her initial appointment i.e. 4.9.1989, for the reason that her initial appointment was not in consonance of the relevant rules being not possessing required qualification for the post of Basic Teacher, however, in the light of guidelines of G.O. dated 9.12.2003 whereby the factum of experience has been taken into account for relaxing the factum of training, if incumbent has got experience of five years or more w.e.f. the cut off date i.e. 31.12.2003 the same shall be treated as trained teacher with all consequential benefits. Hence, her claim for the salary and other benefits w.e.f. 1989 to 31.12.2003 has been denied.
In view of the above the representation of the petitioner dated 12.12.2000 and 17.7.2007 preferred in compliance of the order of this Court passed in W.P. No. 3943 (SS) of 1995 has been rejected. Further, the petitioner has also assailed the office order dated 19.7.1990 issued by the Assistant Deputy Director, Education clarifying that for the appointment as basic teacher the qualification like A.M.T., I.G.D., C.P.Ed., D.P.Ed. and Sangeet Visharad shall not be treated required qualification as qualification for appointment of basic teacher would be B.T.C. or H.T.C. for untrained teachers. The petitioner has enclosed the aforesaid orders as Annexure no. 1 and 10 to the writ petition.
The order under challenge in the second writ petition is order dated 8.3.2019 passed by the D.I.O.S. (Annexure no. 1), whereby he has reviewed the earlier order dated 16.2.2017 passed by the then D.I.O.S. providing the benefit of pay scale etc. to the petitioner admissible to the trained teacher w.e.f. 1.10.1989, treating that order being contrary to the Government Orders and departmental orders.
Learned counsel for the petitioner has submitted that the petitioner was appointed as Assistant Teacher in the Basic section of Maharaja Agrasen Vidyalaya, Motinagar, Lucknow on 4.9.1989. Further the qualification of the petitioner is B.A. and Sangeet Visharad from Bhatkhande Sangeet Vidyapeeth, Lucknow. The qualification to be appointed on the post of Assistant Teacher in Basic section at that point of time was High School and J.T.C. or B.T.C. or H.T.C. or equivalent thereto.
The case set forth by the learned counsel for the petitioner is that since the petitioner has been teaching in the institution in question w.e.f. 1989, therefore, the D.I.O.S. should consider the case of the petitioner for granting salary and other benefits w.e.f. the date she has been teaching. The petitioner has been Music Teacher in the Primary section of the institution in question and the qualification being possessed by the petitioner is sufficient even to be appointed as Music Teacher from Class IX to X and Class XI to XII. Since the petitioner is a trained Music Teacher, therefore, she is entitled for the benefits of trained teacher for Basic Section in the institution in question.
Per contra, learned Addl. C.S.C. has submitted that the petitioner did not fulfill the minimum qualification to be appointed as trained Assistant Teacher in the Basic section as indicated in the Government Order dated 19.7.1990 where the degree of Sangeet Visharad is not treated essential qualification for the trained teacher, therefore, she is not entitled for the pay scale etc. admissible for the trained teacher w.e.f. 1.10.1989 and all arrears thereof. Further, there is no subject appointment in the Basic section, therefore, the petitioner may not be treated as Basic Teacher in the subject of Music. For the Basic section the appointment is made only on the post of Assistant Teacher.
The detailed counter affidavit has been filed on 5.3.2013 wherein vide para 3(I) it has been categorically indicated that the institution in question is controlled and governed by the U.P. Intermediate Education Act, 1921 (Act no. 2 of 1921) and regulations framed thereunder. The provisions of U.P. Secondary Education Service Commission and Selection Board Act, 1982 ( U.P. Act No. 5 of 1982) and U.P. High School and Intermediate Colleges Payment of Salaries of Teachers and other Employees Act, 1971 and Payment of Salaries Act, 1973 ( Act of 1973) are applicable. Para 3(II) of counter affidavit indicates that the petitioner was posted as Assistant Teacher w.e.f. 6.9.1989 with her qualification as B.A. (Music) and Sangeet Visharad. The State Government vide G.O. dated 28.2.1990 included the institution in question into grant-in-aid list and trained teachers posted in Primary section attached with Intermediate College came into the grant-in-aid list by the said Government Order. Trained teachers were given pay scale of 3500-5500 and untrained teachers were given fixed salary of Rs. 335/- per month. A letter dated 19.2.1990 was issued by the then D.I.O.S., Lucknow to the Manager of the institution wherein it was clarified that since the petitioner was B.A. and Sangeet Visharad which was not recognized trained certificate, therefore, the petitioner was given fixed salary of Rs. 335/- per month. Later on the D.O. letter dated 19.7.1990 was issued from the office of Director, Secondary Education, Allahabad indicating that teachers possessing A.M.T., I.G.D., C.P.Ed., D.P.Ed. and Sangeet Visharad would not be treated as trained teacher. Para 3(III) of counter affidavit further provides that all such teachers who were possessing the B.T.C. or H.T.C., or J.T.C. or C.T.C. certificate are given trained pay scale and since the petitioner is B.A. and Sangeet Visharad, hence she was not considered as trained teacher. The fixed pay of Rs. 325/- was sanctioned to her. However, pursuant to the Government Order dated 9.12.2003 the experience of the petitioner was taken into account and since she was having more than five years of experience on the cut off date i.e. 31.12.2003 as per Government Order dated 31.12.2003, therefore, w.e.f. 1.1.2004 trained pay scale was sanctioned to her and since then she has been receiving her full salary. Para 3 (IV) of the counter affidavit clearly mentions that in view of the aforesaid fact the claim of the petitioner for giving her salary in the trained pay scale w.e.f. the date of her initial appointment is baseless and misconceived. It is further indicated that in compliance of the order of this Court in W.P. No. 3943(SS) of 1995 her grievance had been considered, however, she was not found entitled for the trained pay scale w.e.f.1989 till 31.12.2003, therefore, her representation was rejected. Para 3(V) of the counter affidavticlarifies that even the qualification of D.P.Ed. is not proper qualification, therefore, another teacher namely, Smt. Anju Srivastava who is having D.P.Ed. qualification has not been treated as having proper qualification.
The petitioner filed rejoinder affidavit on 8.4.2013 but the submissions of para 3 (I to VI) could not be denied with the support of relevant material and documents.
Sri B.K. Singh, learned counsel for the petitioner has drawn attention of this Court towards Annexure no. 12 of second writ petition which is the order dated 16.2.2017 whereby the then D.I.O.S. has provided the benefit of salary etc. admissible to the trained teacher w.e.f. 1.10.1989 in the same manner it has been given to the similarly placed teacher subject to the final outcome of W. P. No. 7162(SS) of 2008, (first writ petition).
As per Additional C.S.C. the aforesaid order dated 16.2.2017 has been passed on the representation of the petitioner whereby she had requested for similar order in similar matter and this Court had directed in first writ petition to decide the representation in pending writ petition. The said order was subject to final outcome of the writ petition. However, no benefit was given to the petitioner pursuant to the order dated 16.2.2017. Sri B.K. Singh has, therefore, submitted that when the order dated 16.2.2017 was passed subject to final outcome of the writ petition then the impugned order dated 8.3.2019 should not have been passed by the D.I.O.S. during the pendency of the writ petition. Even otherwise, the administrative authority i.e. D.I.O.S. has got no jurisdiction to review the order passed by the same authority, so not providing the benefit of the order dated 16.2.2017 to the petitioner is colourable exercise of powers.
Sri B.K. Singh, learned counsel for the petitioner has filed written arguments wherein he has raised arguments as under :
"The first argument of the petitioner is that if the teachers who are B.Ed./ L.T. or D.P.Ed. are eligible and qualified for trained pay scale from the date of grant-in-aid, the petitioner is also entitled for the trained pay scale like other teachers who are working along with petitioner on the date of grant-in-aid. The argument of the respondent is that J.T.C. or B.T.C. or H.T.C. is entitled to be treated as trained teacher, is misconceived, discriminatory and arbitrary for the reason that B.Ed./L.T. or D.P.Ed. prior to 10.04.2010 these qualifications have been mentioned in the Appendix A of Regulation 1 of the Chapter II of Intermediate Education Act. The Sangeet Visharad is equivalent to B.Ed./L.T., D.P.Ed. as mentioned in the Appendix 'A' of Regulation.
The second argument of the petitioner is that if Smt. Anju Srivastava, D.P.Ed. is entitled for the trained pay scale from the date of grant-in-aid, the petitioner who is trained teacher in Music is also entitled for the trained pay scale. Moreover, if Smt. Anju Srivastava is getting trained pay scale in pursuance of the interim order dated 17.9.2013, the petitioenr is also entitled for the same benefit of interim order dated 28.3.2019 and D.I.O.S. cannot say that one interim order will be complied and another cannot be complied with.
The third argument of the petitioner is that considering the similarity of the petitioner along with other similarly situated teachers, once the trained pay scale has been granted, there is no occasion to review the order dated 16.2.2017 vide impugned order dated 9.3.2019, after a lapse of two years, even without issuing any show cause or without opportunity of hearing. The said order reviewed, when this Hon'ble Court has been pleased to summon the D.I.O.S.
The fourth argument is that, once the petitioner has acquired a vested right, the D.I.O.S. has no right to pass non-speaking order without application of mind and without giving any opportunity of hearing, which is settled law.
The fifth argument of the petitioner is that, the D.I.O.S. has no right to review or recall his own order as per the law laid down in the catena of cases of Dr. (Smt.) Kuntesh Gupta vs. Management, Hindu Kanya Mahavidyalaya, Sitapur [AIR 1987 SC 2186], State of Orissa and others v. Commissioner of Land Records and Settlement [(1998) 7 SCC162], Krishna Ashram Education Trust v. District Judge[AIR 1995 All. 415] and Suresh Chandra Sharma v. The Presiding Officer, Labour Court-IV U.P. Kanpur & Others [(2003) 2 UPLBEC 1119], but in the instant case the D.I.O.S. has passed the impugned order dated 8.3.2019 without giving any opportunity to the petitioner.
The sixth argument of the petitioner is that, after the order dated 16.02.2017 passed by the D.I.O.S. for payment of trained pay scale, the writ petition 7172(SS) of 2008 has become infructuous and in the writ petition no. 8320(SS) of 2019, the D.I.O.S. himself, passed the orders dated 27.04.2019, 14.05.2019, 01.06.2019 and 07.09.2019 for compliance, therefore, there is no occasion to grant any liberty to the D.I.O.S. in the present matter.
The seventh and last argument of the petitioner is that if the averments made in the writ petition have not been controverted, it will be deemed to be admitted, and there is no legal impediment to allow the writ petition no. 8320(SS) of 2019 with all consequential benefits.
Sri Pankaj Khare, learned Addl. C.S.C. has also filed written arguments wherein he has categorically indicated that the essential qualification for the Primary Teacher is B.T.C., J.T.C. and H.T.C. and the petitioner was not possessing such qualification at the time of her appointment, therefore, she was not given the benefit of trained teacher w.e.f.1.10.1989. Sri Khare has also submitted that since the matter of Smt. Anju Srivastava is pending consideration before this Court, therefore, the petitioner may not claim parity with Smt. Anju Srivastava. He has drawn attention of this Court towards para 4 of supplementary counter affidavit dated 6.9.2013 wherein he has clarified the position regarding Smt. Anju Srivastava by submitting that way back on 19.2.1990 Smt. Anju Srivastava was sanctioned the trained pay scale though in view of the Government Order dated 19.12.1976 read with Government Order dated 10.4.2010 which has been enclosed with the supplementary counter affidavit as S.C.A.-1 and S.C.A.-2 she does not possess requisite qualification to be appointed as trained Assistant Teacher, therefore, vide order dated 17.8.2013 the benefit given to Smt. Anju Srivastava were stopped. However, vide interim order dated 17.9.2013 passed by this Court in Service Single No. 5432 of 2013 the order dated 17.8.2013 passed by the D.I.O.S. has been stayed and said writ petition is pending consideration.
Heard learned counsel for the parties and perused the material available on record of both writ petitions.
The question to be considered is that as to whether in absence of possessing requisite qualification to be appointed on the post in question, the incumbent can claim benefit of her long services rendered. Further, as to whether the benefit of granting exemption from training can be provided prior to the cut off date so fixed by the Government Order. As to whether the D.I.O.S. who as an administrative authority could have reviewed / recalled its earlier order against the spirit of that order. Lastly, as to whether any order having civil consequence or affecting adversely to a person can be passed without affording an opportunity of hearing.
It would be apt to observe here that I do not find any infirmity or illegality in the office order / letter dated 19.7.1990 issued by the Assistant Deputy Director, Education clarifying that qualifications like A.M.T., I.G.D., C.P.Ed., D.P.Ed. and Sangeet Visharad shall not be treated required qualification for the post of Assistant Teacher (Basic) as this is the prerogative of the State authorities to fix the requisite qualification for the posts in question keeping in a view the nature of job etc. In the present case since the petitioner is not possessing the requisite qualification to be appointed on the post of Assistant Teacher in the Basic Section of the institution in question in terms of relevant provisions of law applicable on the issue i.e. U.P. Intermediate Education Act, 1921 (Act no. 2 of 1921) and regulations framed thereunder, the provisions of U.P. Secondary Education Service Commission and Selection Board Act, 1982 ( U.P. Act No. 5 of 1982) and U.P. High School and Intermediate Colleges Payment of Salaries of Teachers and other Employees Act, 1971 and Payment of Salaries Act, 1973 ( Act of 1973), therefore, the petitioner may not be entitled for such benefit w.e.f. 1989 to 31.12.2003. However, the petitioner has been granted exemption from training in terms of Government Order dated 9.12.2003 as per cut off date 31.12.2003 and she is being paid salary and all other benefits admissible to the trained teacher w.e.f. 1.1.2004, therefore, I do not find any infirmity or illegality in the order dated 8.2.2008, received to the petitioner on 13.2.2008 (Annexure no. 1) to the first writ petition, passed by the D.I.O.S., Lucknow, hence, no interference is required in such order.
The order dated 16.2.2017 was passed by the then D.I.O.S. providing the benefit of pay scale etc. to the petitioner treating her as trained teacher in Basic w.e.f. 1.10.1989 disposing of her representation in compliance of the order of this Court passed in first writ petition on the basis of principle of parity, however, subject to the final outcome of the writ petition. It is not in dispute that the efforts have been done to get the order dated 16.2.2017 executed for almost two years as visible from perusal of para 18 and 19 of the second writ petition. It was the order of this Court dated 4.1.2019 in the first writ petition directing the State counsel to seek the instructions as to why the petitioner has not been paid the pay of trained teacher in terms of the order dated 16.2.2017. Further orders dated 16.1.2019, 28.1.2019 and 4.2.2019 have been passed by this Court but no instructions could be received, therefore, vide order dated 11.2.2019 the appearance of D.I.O.S. has been directed. As per Sri Singh, learned counsel for the petitioner the impugned order dated 8.3.2019 is an outcome of aforesaid order being passed by the Court. Admittedly, the impugned order dated 8.3.2019 has been passed recalling the order dated 16.2.2017 during pendency of the writ petition, therefore, the order dated 8.3.2019 has not been passed as per spirit of the order dated 16.2.2017. Further, vide order dated 8.3.2019 the same authority i.e. D.I.O.S. has reviewed / recalled its own order which is not permissible inasmuch as the administrative or quasi-judicial authority cannot review its own order. No legal provision has been shown to me authorising the D.I.O.S. to review its own order. It is also an admitted position that before passing the order dated 8.3.2019 no opportunity of hearing has been provided to the petitioner. It is apt to note here that this Court vide interim order dated 28.3.2019 has stayed the operation of order dated 8.3.2019 and that interim order remained in existence till the final hearing of these writ petitions.
If the order dated 16.2.2017 was against the relevant rules or government orders or Directorate orders etc. it could have been very well reviewed or recalled by the authority competent having such power after final disposal of the writ petition but not otherwise. Since the order dated 8.3.2019 has been passed during the pendency of writ petition, therefore, said order is nullity in the eyes of law and liable to be set aside. Besides, that order had been stayed by this Court, therefore, that order shall be treated as non-est and the petitioner shall not be discriminated by the order dated 8.3.2019 as that order is set aside. This Court has not been shown any cogent reasons by the State Counsel for discriminating the petitioner with the identically placed persons for providing pay scale etc. of trained teacher despite the order dated 16.2.2017 having been passed. Admittedly, the writ petitions of both the persons were pending consideration but the order dated 16.2.2017 has not been executed and the similarly placed person was being paid pay of trained teacher. Therefore, I put my displeasure on record against the concerning authorities.
In view of the above, I do not interfere with the order dated 8.2.2008 passed by the D.I.O.S. received to the petitioner on 13.2.2008, as contained in Annexure no. 1 to the first writ petition. I hereby set aside the order dated 8.3.2019 passed by the D.I.O.S. as contained in Annexure no. 1 to the second writ petition, therefore, the petitioner shall be entitled to all consequential benefits. In compliance of this order the necessary order shall be passed within a period of three months.
Accordingly, both the writ petitions are disposed of in view of the aforesaid terms.
No order as to costs.
Order Date :- 08.1.2021 Om [Rajesh Singh Chauhan, J.]