Court No. - 58 Case :- WRIT - A No. - 893 of 2019 Petitioner :- Ram Bhujharat Singh Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Govind Krishna,Abhishek Krishna Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
1. This petition has been filed for a direction upon the respondents to consider petitioner's claim for appointment on the Class-IV post in 'Gandhi Gurukul Uchchattar Madhyamik Vidyalaya, Bhawarnath, District Azamgarh' and to accord financial approval to petitioner' appointment under the Act No.24 of 1971.
2. Brief narration of facts, giving rise to filing of the present Writ Petition would have to be necessarily noted first.
3. It is alleged that Gandhi Gurukul Uchchattar Madhyamik Vidyalaya, Bhawarnath, District Azamgarh is a Higher Secondary Institution, which is recognised under the 'U.P. Intermediate Education Act, 1921' and the provisions of the Payment of Salaries of Teachers and other Employees Act, 1971 are also applicable upon it. Petitioner submits that he was appointed as a Class-IV employee in the institution on 6.8.1984. The order of appointment is annexed as Annexure-1 to the writ petition. It mentions that petitioner is appointed on temporary basis and his services could be subsequently regularised. It is also recorded in the order that the post itself is covered under the Payment of Salaries Act 1971, and he could be granted salary out of State fund, after obtaining approval of the Inspector. According to petitioner, he joined pursuant to such order and continued to work. His claim for payment of salary, however, was not considered. A representation made by the Committee of Management of the institution for the purposes of payment of salary to petitioner, apparently, was rejected on 23.10.1991 on the ground that there exists no vacant Class-IV posts. The Principal of the institution again represented in the matter as claim of petitioner was rejected, once again, on 18.3.1993. It appears that the orders, in that regard, were challenged by the petitioner in his earlier Writ Petition No. 12601 of 1996 and this Court disposed of the writ petition on 11.12.2006 vide following orders:-
“ In view of the above discussion, it is clear that presently in the institution, only three peons are working. Under the norms prescribed by the State Government, institution upto High School level is required to engage at least 5 peons. In absence of any sanctioned posts for the petitioners, the impugned orders to that extent do not call for any interference by this Court. But that is not the end of the matter. It is desirable to every institution including the institution in question that they should carry on the institution as per the prescribed norms so that the imparting of education to the students is not impaired with. From the documents on the record it is evident that the institution in question is suffering on account of lack of requisite number of peons and has been approaching the authority concerned time and again. Looking to the facts and circumstances of the case as also the averments made by the Institution and the welfare of the students, it is desirable that the present writ petition may be disposed of with the direction to the respondents to consider the request of the Committee of Management to sanction requisite number of posts of peons as per the norms, guidelines and the relevant Rules and Regulations. The Committee of Management is hereby directed to approach the concerned respondent for this purpose and the concerned respondent shall take a decision in this regard preferably within a period of three months from the date of production of certified copy of order keeping in view the observations made above, in accordance with law to accord sanction of new Class-IV posts.
The writ petition is disposed of accordingly. No order as to costs.”
4. The claim of petitioner was forwarded by the District Inspector of Schools to the Director of Education, who vide order dated 15.6.2009 has rejected petitioner's claim by observing that only 3 Class-IV posts are in existence and that the petitioner's appointment was in excess of it. The order further records that there existed no requirement of additional posts in the institution concerned. This order of the Director of Education (Secondary) dated 15.6.2009 has been allowed to attain finality.
5. The claim for payment of salary is sought to be resurrected by the petitioner now on the ground that a post of Peon has fallen vacant due to retirement of one Mukesh Pathak on 1.9.2010. According to petitioner, the committee of management has allowed him to join against such vacancy and that his claim for payment of salary, out of State fund, is liable to be considered afresh, notwithstanding the earlier orders passed by the authorities.
6. Petitioner places reliance upon the Government Order dated 20.11.1977, whereby, norms were fixed for creation of posts in such Institution. Para-2 of the Government Order, which is pressed into service on behalf of petitioner, reads as under:-
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7. It is asserted on behalf of petitioner that the services of petitioner are liable to be adjusted in light of the aforesaid Government Order, and as the authorities have not taken any decision in respect of this claim,despite the fact that the petitioner has been allowed to join on the resultant vacancy in the year 2010, the petitioner is before this Court.
8. Learned Standing Counsel opposes the claim of petitioner on the ground that any fresh vacancy, created in the year 2010, would have to be filled, in accordance with law, afresh, and that petitioner's claim for payment of salary, which has already been rejected, cannot be adjusted against it.
9. Heard Sri Govind Krishna, learned counsel for the petitioner , learned Standing Counsel for the State and perused the materials available on record.
10. Admittedly, petitioner was appointed as a Class-IV employee in the year 1984. His claim for payment of salary out of the State fund, was rejected in the year 1991 and again in the year 1993. In the writ petition filed by the petitioner i.e. Writ Petition No. 12601 of 1996, these orders were assailed and the writ petition was disposed of with a direction upon the respondent-authorities to redetermine the number of posts that were required to be sanctioned, and for which payment of salary had to be disbursed out of State funds. The claim for payment of salary to petitioner, in light of the directions of this Court dated 11.12.2006, has been examined by the Director of Education (Secondary) in his order dated 15.6.2009. The order records that only three posts of Class-IV employee could be validly created and that petitioner's appointment was in excess of it. The order of Director, in that regard, has been allowed to become final. The Director has further observed that in case the management has appointed the petitioner, he would be entitled for payment of salary from the management, but no salary can be directed to be paid out of State funds.
11. The engagement of petitioner in the year 1984 as well as his right to receive salary out of State funds, therefore, stood conclusively rejected by the order of the Director of Education (Secondary) dated 15.6.2009 and there is no challenge in this petition to that aspect of the matter.
12. The claim of the petitioner is attempted to be resurrected by placing reliance upon the Government Order dated 20.11.1997, by submitting that the vacancy, which has now come into existence on 1.9.2010, could be utilised for adjusting/ accommodating petitioner's claim. Para-2 of the Government Order has already been extracted above. The object of the Government has to be understood in the context in which it was issued. Norms were being fixed for the first time for creation of posts in such institutions vide Government Order dated 20.11.1977. Prior to it payments were made to the Institutions as maintenance grant without any fixed norms. It was in that context that the Government Order provided in Clause-2 that any appointment already made in excess of the norms could be adjusted against the future vacancies. The norms have already been prescribed in Government Order dated 20.11.1977 and all appointments thereafter were required to be made against existing vacancies only. The payment of salary could be claimed only against the posts which were sanctioned or were liable to be sanctioned, pursuant to a specific approval obtained from the Director of Education (Secondary) under Section 9 of the Act of 1971. The position in that regard was clarified by a Full Bench of this Court in Gopal Dubey Vs. District Inspector of Schools, 1999 (1) UPLBEC 1. This Court vide judgment dated 11.12.2006 directed this aspect relating to accrual of vacancy examined in terms of the norms already fixed for the purpose. After the required consideration also the authorities found that petitioner's appointment was in excess of the sanctioned permissible strength.
13. Petitioner's appointment otherwise was made much after issuance of the Government order of the year 1977. Clause-2 of the Government Order, therefore, cannot be pressed into service, once his claim has been rejected by an specific order of the Director of Education (Secondary). Clause-2 cannot be pressed into service to legalise appointments made after 1977 in excess of prescribed norms. This would clearly run counter to the object of the Government Order itself. Any attempt on part of the petitioner, therefore, to seek revival of his claim for payment of salary from the State funds, cannot be accepted.
14. Writ petition accordingly stands dismissed.
15. Petitioner's right to claim salary from the Committee of Management, however, is not being examined nor such claim would be treated to have been rejected on account of dismissal of this petition.
Order Date :- 21.1.2019 n.u.