JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. It is averred in the writ petition that since 1969 the primary section classes were started in the Institution and in the year 1972, the school was thereafter raised to High School. By G.O. dated 6,9.1989 in which it has been laid down that those primary sections which are in existence before 1973 and which have been attached to the higher secondary classes w.e.f. 1.10.1989 will pay the salary of the teachers of primary section under the Payment of Salary of Teachers and Other Employees Act, 1971.
3. The petitioners were appointed as Assistant Teachers in Primary School on 1.8.1988 and 1.9.1989 respectively. Their grievance is that payment of their salaries has been stopped by respondent No. 3 and they have not been allowed to sign on the attendance register.
4. The case of the petitioners is that since the primary school classes started prior to 1975, they are entitled to payment of their salaries under the aforesaid G.O. dated 6.9.1989 but have been discriminated on the ground that they are untrained teachers, though there is no such bar in the aforesaid G.O. dated 6.9.1989.
5. The counsel for the petitioners submits that the petitioners took classes upto 5.7.1990 and thereafter they have been illegally restrained. On representations dated 12.7.1990, 13.7.1990 and 16.7.1990 being made by the petitioners to the Manager, assurance was given to them that their salaries would be paid ; but no orders were communicated by the Manager of the Institution.
6. Aggrieved, the petitioners moved D.I.O.S. by representation dated 16.7.1990 ventilating their grievance that they have not been paid their salary and have been restrained from marking their signatures on the attendance register. This grievance was also made to the Deputy Director VIIth Region, Gorakhpur but all was in vain. As a last recourse they represented to the Deputy Director and the Additional Director of Education, but no orders were passed and all their representations remained undecided. The petitioners in paragraph Nos. 19 and 20 of the writ petition have stated that benefits of G.O. dated 6.9.1989, have been given to all the untrained teachers of primary sections of the institution, which were in existence prior to 1973 and are attached to Higher Secondary w.e.f. 1.10.1989. Two such institutes being (a) Navyog Vidaya Mandir Uchhatar Madhyamik Vidalaya Chowka Ghat, Varanasi and (b) Majidia Islamia Inter College, Allahabad. A letter of the D.I.O.S. granting the scale to the teachers of Majidia Islamia Inter College, Allahabad under G.O. dated 6.9.1989 has been appended as Annexure-XIV to the writ petition from which it is clear that untrained teachers of primary schools have been granted the pay scale under G.O. dated 6.9.1990. Thus, sanction of 5 posts of teachers is wholly irrelevant.
7. Standing counsel has contended that the petitioners were not appointed legally as no approval was accorded by the competent authority to their appointments hence, they are not entitled for payment of salary. It is further contended by him that only five posts of teachers in primary school are sanctioned and approval to appointments of five teachers has been accorded by the D.I.O.S. and the teachers appointed against these sanctioned posts are being paid the salary regularly.
8. Counter-affidavit has been filed by an office Assistant in the office of the D.I.O.S., the averments made wherein are wholly vague. In paragraph 3 of the counter-affidavit, it has been stated that the strength of students in primary section of the Institution since 1973-74 to 1988-89 has been minimum ; with only exception in year 1989-90. In this year there was increase in the strength of the students. The averments made by the petitioners regarding their date of appointments given in paragraph Nos. 4 to 7 have been replied by the respondents in paras 7 and 8 of the counter-affidavit. It has not been denied that the petitioner No. 1 was the seniormost teacher in the primary section appointed in 1969 since inception of the school. It is also not denied that petitioner Nos. 1, 2 and 3 had been appointed on 1.8.1988, 1.7.1969 and 1.9.1989 respectively. It has only been stated that since approval has not been granted to the appointments of the petitioners by the D.I.O.S., they are not entitled for the salary and the teachers, who have been granted approval are being paid salary under the Payment of Salary of Teachers and Other Employees Act, 19.71.
9. Neither the names of these teachers whose appointment is said to have been approved, nor their date of appointments have been given in the counter-affidavit. Thus, pick and choose policy cannot be ruled out why the dates of appointment and any defects forming basis of granting approval to only some teachers by the D.I.O.S. ignoring the claim of the petitioners is not clear. It cannot be said in these circumstances that the petitioners have been given fair and transparent treatment in the matter of employment. The averments made in the counter-affidavit that strength of students has been increased from 92, 99, 78, 69 and 61 in Class I to V to 391 appears to be without any basis. No reasons have been given as to why these figures are not acceptable for appointments of teachers and why the number of teachers is being not increased when the student strength has increased to 391. The respondents could have verified the student strength by physical verification if there was any doubt about the increase in number of students. Thus question of sanction of five posts is without any basis and is irrelevant.
10. The contention of the petitioners that untrained teachers in almost all primary schools are being paid pay scale under the G.O. dated 6.9.1989, has been accepted by the State in paragraph No. 18 of their counter-affidavit which is as under :
^^18- ;g fd ;kfpdk ds izLrj 19 esa of.kZr rF; esa dsoy bruk Lohdkj gS fd ekud ds vuqlkj fjDr in ij vuqeksfnr vizf'kf{kr v/;kidksa dks osru forj.k vf/kfu;e ds vUrXkZr HkqXkrku dk izko/kku jktkKk fnukad 6&9&1989 esa fn;k x;k gS ;kph dh rFkkdfFkr fu;qfDr ekU;fjDr in vuqeksfnr gS bl laLFkk esa ikp in ekU; gSa ftl ij 5 vuqeksfnr v/;kid dk;Zjr gS osru izkIr dj jgs gSaa A**
11. From the facts on record, discrimination is writ large on the face of record. The inaction of the respondents in not taking any decision on the representations of the petitioners' smacks of arbitrariness, is unfair and unjust. The petitioners have been made to run from pillar to post for last more than 10 years.
12. Respondent No. 4 is, therefore, directed to decide the representations of the petitioners within a period of two months from the date of production of a certified copy of this judgment. If untrained teachers in primary sections of other institutes are being given the benefit of G.O. dated 6.9.1989, then the petitioners shall also be given the same benefits with arrears in light of the observations made in this judgment.
13. With aforesaid directions the writ petition is disposed of.
14. No order as to costs.