JUDGMENT V.M. Sahal, J.
1. The question that arises for consideration in these writ petitions is whether services of the petitioners who were appointed as untrained teachers, in junior high school in 1972, and have worked continuously since then, could be deemed to have come to an end after the institution was upgraded and came on grants-in-aid list because they were not trained teachers on the date of their appointment even though they acquired the necessary qualification and became trained teachers during service with permission of the authorities either after up-gradation of the institution or it's coming on grants-in-aid list in 1978.
2. Shri Krishan Vidyapeeth Uchchatar Madhyamik Vldyalaya, Chirraiya Kot. Mau (in brief institution), was granted recognition as Junior High School in 1971. On 10.3.1971 the State Government issued an order clause 5 of which permitted appointment of untrained teachers in junior high schools, subject to the condition that the appointee obtained training certificate within five years otherwise he would be entitled to the initial salary only. The petitioners were appointed as permanent assistant teachers in the institution after coming into force of this order in 1971-72. All of them were untrained. Sri Pati Ram Yadav was intermediate only. Others were graduate or postgraduate. The institution was granted recognition in 1974, under Section 7 of the U. P. Intermediate Act. 1921 (In brief Act), to impart education to high school. But the maintenance grant, was sanctioned in 1978. As a consequence of it the institution came under the purview of U. P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 (in brief Salaries Act). Till 1978 there was no dispute. But after the provisions of Salaries Act became applicable, the salaries of petitioners was stopped. Sri Pati Ram Yadav filed Writ Petition No. 7068 of 1978, before this Court, in which on 8.2.1979 a stay order was passed directing payment of salary to the petitioner. In compliance of the order the salary of the petitioner was paid and he continued. But it appears as a result of filing of the writ petition the management referred the dispute about payment of his salary to the District Inspector of Schools (In brief DIGS) who by his order dated 1.12.1980 held that the petitioner was entitled to trained LT grade. But this order was recalled on 17.3.1981 and the petitioner was placed in CT grade. And payment of salary was stopped again. The petitioner consequently filed another Writ Petition No. 8743 of 1981 wherein this Court, on 6.5.1983. again passed stay order in favour of the petitioner and salary of the petitioner was paid from June 1981 to February 1987. On 4.3.1987 the stay orders passed in both the Writ Petition No. 7068 of 1978 and Writ Petition No. 8743 of 1981 were vacated and the petitions were decided on 12.3.1993. directing the Director of Education (in brief DE) to pass orders in accordance with law with regard to the grievance of the petitioner either himself or through his nominee within a period of three months. The petitioner along with the Judgment dated 12.3.1993 made a representation to the DE on 12.4.1993. He nominated Additional Director of Education (Secondary), (in brief ADE) to decide the claim of the petitioner. The ADE called for a report from the D.I.O.S., Mau. who submitted his report on 14.12.1993 recommending that orders should be passed with regard to payment of salary of the petitioner. The report has been filed as Annexure-13 to the writ petition. In this report he held the management quietly for not taking steps for absorption of the petitioner under Chapter II Regulation 4 of the Regulations framed under the Act. But the ADE rejected the claim of the petitioner on 18.2.1994. He held that on the date of appointment in 1972 the petitioner was only intermediate and untrained and his appointment was not approved, therefore, he was not eligible to be appointed even in CT grade. And when the institution was upgraded in 1974 then eleven posts were approved in LT grade and 12 in CT grade in 1975 but management did not absorb the petitioner against it because he was working as unqualified and unapproved teacher. The ADE held that a teacher could be regularised under Regulation 4 of Chapter II as permanent teacher or temporary teacher only if he was qualified and eligible, therefore, the non-absorption of Patl Ram Yadav was Justified.
3. The salary of petitioners in Writ Petition No. 8166 of 1994 was also stopped after the provisions of Salaries Act became applicable. They too were untrained. They had been appointed permanently as assistant teachers on 1.7.72. 1.10.72, and 1.7.71 respectively. On the date of appointment petitioner Nos. 1. 3. and 4 were M. A. whereas petitioner No. 2 was Acharya from Sampurnanad Sanskrit Vishvavldalya. While in service they obtained degree of bachelor of education in 1975, 1976. 1988, and 1989 respectively. When their salary was stopped they filed Writ Petition No. 7068, 7069 and 7070 of 1978. These petitions, too, were disposed of by directing the ADE to decide as in case of Patt Ram Yadav. Their representation was also rejected as they being untrained were not eligible and they could not be absorbed.
4. In the counter-affidavit filed by the respondents the claim of petitioners is opposed on the ground that the petitioners being untrained, their appointment was not regular and they had been appointed without obtaining approval of basic education officer, therefore, they were neither entitled for absorption when the institution was upgraded nor for payment of salary. It is claimed that the grievance of petitioners was not justified as only those teachers who were having requisite qualification and were eligible and whose appointments were approved were entitled for absorption under Chapter II, Regulation 4 of the regulations after the upgradatlon of the institution as High School. The respondents further claim that it was not necessary to terminate the services of the petitioners as they were not entitled for any salary under the Salary Act and the writ petition filed by the petitioners was devoid of any merit,
5. I have heard Shrt Ashok Khare, learned counsel for the petitioner in Civil Misc. Writ Petition No. 8168 and 8166 of 1994 and Shri Namwar Singh for Damodar Yadav in Civil Misc. Writ Petition No. 8166 of 1994 and standing counsel for the respondents. The learned counsel argued that the petitioners having acquired training certificate and being graduate were entitled for LT grade and in any case their salaries could not be withheld as their appointment was made after 10.3.1971 in accordance with the Government order permitting junior high schools to appoint untrained teachers permanently. The learned counsel urged that the only restriction was that the untrained teacher was required to obtain training certificate within five years else he was to be paid his initial salary. The learned counsel pointed out that two of the petitioners in Writ No. 8166 of 1994 namely Dhani Ram and Damodar Yadav having obtained their training certificate within five years much before the Institution was brought in the grants-in-aid list they were entitled for absorption in the high school and the remaining were entitled to continue and were entitled to be absorbed as and when they obtained their training certificates. The learned counsel further argued that (here was no requirement of obtaining approval of the basic education officer at the time of their appointment. In any case Shri Khare argued that the petitioners having worked continuously for more than ten years and their appointment being in accordance with law, the respondents were not justified in withholding their salary. The learned standing counsel supported the impugned orders.
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 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 recognised school. This did not apply to boy's schools. 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 school, 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 taw in force on the date of his appointment, it did not suffer from any defect. In Rikh Pal Singh v. District Basic Education Board. Allahabad, 1990 VPLBEC 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 affect 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.
7. Corning to the last aspect whether the appointment was bad as it was not approved by the Basic Education Officer, the ADE did not point out any rule or regulation under which an unaided school was required to appoint a teacher in junior high school with approval of Basic Education Officer in 1971-72. I may point out that the junior high school of the institution came on grants-in-aid list in 1975-76 only. What happened in pursuance of it is mentioned in the report sent by the DIGS on 14.12.93 to the Deputy Director of Education (in brief DDE). The report mentioned that in 1974-75, that is immediately before the institution was brought on maintenance grants list as junior high school, it had 19 assistant teachers including the petitioners. The report noticed that their names were shown in the manager's return. And their salary, etc., was paid by the management from its own resources. The report further mentioned that non-recurring-grant used to be paid to the institution on the expenditure incurred by it. For determining this grant, the services of the petitioners were also included. After the institution was brought on maintenance grants list of junior high school, the pay fixation of the assistant teachers including petitioners was done by the Basic Education Officer and it was approved by the DDE. The report noticed that in consequence of pay fixation, the DE sanctioned an amount of Rs. 29,206.60 paisa for being paid to the teachers. including petitioners, as a result of revision of pay. The approval of the Basic Education Officer thus became necessary only after 1975-76. And it was complied as well when pay of the petitioners was fixed by the Basic Education Officer with approval of the DDE.
8. Since the petitioners were appointed in accordance with the Government order issued in 1971 and they were appointed permanently, their services could not come to an end except in accordance with law. It is thus clear that the entire claim in the counter-affidavit that since the petitioners appointment was not approved by the Basic Education Officer, therefore, they had no right appears to be erroneous as on the date of appointment, there was no requirement to obtain approval of the educational authorities and once the institution came on maintenance grants list, the approval was granted as mentioned earlier and the petitioners arrears in consequence of revision was also paid in pursuance of the order passed by the DE. The continuance of the petitioners, therefore, could not be treated either against law or in surplus of the sanctioned strength as the fault, if any, was of the respondents. If any appointment was made against the post or which the petitioners were working and it was approved by the educational authorities, then it was irregular and in any case it did not affect the petitioners.
9. The question still is whether the petitioners can claim regularisation or absorption under some other rule or principle. The petitioners were permanent assistant teachers. The service of a permanent teacher could not be dispensed with nor it could be deemed to have come to an end except in accordance with law. I have already mentioned that the petitioners were appointed after the Government order of 10.3.1971 had been issued. It permitted appointment of an untrained teacher permanently. If such a teacher obtained training certificate within five years of his appointment, then he was entitled to all the benefits. But if he did not. then his services did not come to an end nor he could be denied his salary. The institution was recognised as high school in 1974 but it came on grants-in-aid list in 1978 only. The effect of the grant-in-aid was two-fold, one that the institution came under the supervision of the D1OS and other that the provisions of the Salaries Act became applicable to it. The controversy, therefore, arose whether the petitioners who had been continuing were entitled to their salary. It was this controversy that gave rise to earlier petitions which have been referred above. I have already indicated that the appointment of petitioners was permanent and it could not be altered except in accordance with law. Since the petitioners were permanent teachers, their services could not be dispensed with nor it could be deemed to have come to an end. The only restriction in 1971 G. O. being of acquiring training else continuance on the initial salary was completely overlooked by the ADE. Two of the petitioners, namely. Sri Dhani Ram and Sri Girdhari Yadav acquired their training certificate within five years of their appointment. This was much before 1978 when the grant-in-aid for high school was given to the institution, therefore, they were entitled to be absorbed and were eligible to be appointed in high school.
10. As regards petitioners other than the two; who obtained their training within five years, their services too continued to be governed by the Government order of 1971 under which they were appointed permanently. Their services could not be terminated and in fact it was not terminated rather continued and their pay, etc., was also fixed in 1976. Since they did not acquire training certificate within five years, they continued on the initial salary fixed by the management in consultation with the authorities till they acquired the requisite training. Therefore, for the reasons mentioned earlier, they continued after expiry of five years from the date of their appointment till they acquired training certificate on their salary as fixed by Basic Education Officer. But their services could not be dispensed with nor their salary withheld.
11. The other finding of the ADE that the petitioners could not be absorbed under Regulation 4 of Chapter II of the regulations framed under the Act as they were untrained also is not correct as the regulation 4 did not apply. This regulation was enforced in 1976. To appreciate, it the regulation is extracted below :
4. Where any Junior High School is recognised as High School under Section 7. a permanent or temporary teacher of such school, possessing the minimum qualifications under Regulation 1. shall be deemed to be permanent or temporary teacher, as the case may be, of such High School, provided that the services of a temporary teacher who is not selected for appointment in accordance with the provisions of the Act and the regulations shall be dispensed with after giving one month's notice in that behalf or one month's pay in lieu of such notice.
Explanation.--Nothing in this regulation shall be construed to mean that High School includes Class I to V.
12. It is a beneficial provision enacted for the benefit of the teachers working in junior high school. It applies automatically on the date the institution is recognised as high school. The expression, 'shall be deemed to be permanent or temporary teacher', makes it clear that it applies once only on the date the institution is upgraded. The regulation does not apply to an institution upgraded prior to its coming into force. Since the institution was upgraded in 1974, the regulation did not apply to it. 1 may illustrate by taking an example.
Suppose the institution would have been upgraded in 1977. The petitioners being untrained, they could not have been absorbed in high school. But they would not have ceased to be teachers of junior high school. Therefore, they having had been appointed permanently under the Government order of 1971. Their services could come to an end and they could not be deemed to have ceased to be teachers as held by the ADE or has been attempted to be made out in the counter-affidavit.
13. Even if it is assumed as held by the ADE that Regulation 4 of Chapter II applied, the order cannot be maintained. Under the Regulation, a teacher who was working in the Junior high school was deemed to be appointed permanently or temporarily in the high school provided he was qualified as provided by Regulation 1. Since the petitioners were not trained, they could not be appointed permanently or temporarily. Therefore, they were not entitled for automatic absorption in the high school. But that could not result in termination of their services. It only meant that they could not avail of the benefit which was extended under the regulations to assistant teachers working in CT grade. The petitioners, therefore, continued as assistant teachers. It was for this reason that they were continued and their pay was fixed by the management and the Basic Education Officer after the institution came on maintenance grants list of Junior high school in 1975-76. The stand in the counter-affidavit that it was not necessary to pass any order as their services came to an end automatically is contrary to the rules, and terms of their appointment orders.
14. There is another reason because of which the order of the ADE cannot be maintained. The petitioners were appointed in 1972 in accordance with the Government order of 1971. They have continued since then. They have acquired requisite qualifications with permission of the authorities during service. The initial appointment was neither illegal nor irregular. In Ram Swarup v. State of Haryana and others. MR 1978 SC 1536, it was held by the Apex Court that appointment of an employee who did not have five years experience as required on the date of appointment but continued to work for nine years was not void but only irregular, therefore, it did not suffer from any defect. The case of petitioners stands on much better footing. In Smt Shanti Devi Verma v. Deputy Director Education, 1982 UPLBEC 365, it was held by this Court that lack of prescribed qualification at the time of appointment if not obtained by fraud, then it did not render the appointment void and the teacher could obtain necessary qualification after appointment. In Dr. M. S. Mudhol and another v, S. D. Haleqkar and others, 1993 (2) E.SC 245, the appointment of a principal who did not possess requisite qualification on the date of appointment, yet the Director of Education illegally approved the appointment was not interfered by the Apex Court after 12 years. The Courts, therefore, have refrained from taking away the bread and butter of a teacher for any defect in his appointment specially when he has worked for long years and was not responsible for the defect or did not obtain appointment by fraud. The petitioners had served the institution for more than eight years when the dispute about salary was raised. Their appointment was neither illegal nor irregular. It was on the other hand in accordance with law. The ADE thus has taken a view which is not only contrary to law but equity and justice. The petitioners are being asked to leave the institution after serving for more than twenty years when all the petitioners have not only become post graduates but they have acquired training certificate as well.
15. in the result, these petitions succeed and are allowed. The orders of the Additional Director of Education (Secondary) dated 18.2.1994 are quashed. Sri Dhani Ram and Girdhari Yadav having acquired necessary certificate before five years from the date of appointment and before the college came on grants-in-aid list, they were entitled to be absorbed in the high school. They shall be deemed to have been absorbed on due date and shall be paid their salary as well after granting adjustment of the amount already paid to them under the interim orders passed by this Court or otherwise.
16. So far remaining petitioners are concerned, they shall be enlitled to the initial salary fixed in 1976 till they acquired their training certificate. They shall be deemed to have been absorbed in the high school on the dale they acquired their training certificate. They shall be paid their salary subject to adjustment of the amount already paid.
17. This order shall not disturb any appointment already made. If as a consequence of absorption of these petitioners, the strength goes beyond the sanctioned limit, then the liability to pay these teachers shall be of the management so long they do not come within the sanctioned strength. It shall be open to management to take steps for increase of strength. But that would not be a reason for delaying absorption of the petitioners indicated earlier. If the management fails to comply with this order within two months, the District Inspector of Schools shall ensure compliance of this order within a further period of two months thereafter and shall take appropriate steps against the management.
18. The petitioners shall be entitled to their costs.