JUDGMENT Sunil Ambwani, J.
Heard Sri J.J: Munir for Committee of Management, Lt. Nahar Singh Intermediate College Quassi, Aligarh for petitioner in writ petition No. 55985/2003 and Sri M.K. Gupta for respondent No. 5 Smt. Prem Bala Faujdar. The writ petition No. 1514/2004 has been filed by Sri Prem Bala Faujdar.
1. The facts common in both these petitioners are that Smt. Prem Bala Faujdar was serving as L.T. Grade teacher in Arya Kanya Uchchtar Madhyamik Vidyalaya Chharra, District Aligarh. She sought transfer to a vacant post of Assistant Teacher in Lt. Nahar Singh Inter College Quarsi, Aligarh, on the ground that Charra, Aligarh is situate at about 40 KMs from Aligarh city and that she had to commute the distance every day to attend the teaching work. The Committee of Management of both the institutions gave their consent to the transfer, on which the District Inspector of Schools, Aligarh approved the transfer and forwarded the documents for approval to Regional Joint Director of Education, Agra Region, Agra. The transfer was approved by the Regional Joint Director of Education on 12.10.2001 and that the petitioner joined as Assistant Teacher in L.T. grade on 13.10.2001 in the same pay scale of Rs. 5500-8650/-.
2. It is alleged some differences arose between the petitioner and the Manager of the College, on which he made a false complaint against the petitioner to the Regional Joint Director of Education, Agra on 6.3.2002, alleging that the petitioner was not eligible to be appointed as L.T. grade teacher as she was initially appointed as a teacher in a Primary Section of Arya Kanna Uchchtrar Madhyamik Vidyalaya, Chharra, Aligarh. The District Inspector of Schools submitted a report staling that the primary section of the college was not regulated by the Intermediate Education Act 1921 and thus the transfer was illegal. Smt. Fauzdar submitted her explanation on 29.4.2002, stating that from the date of her initial appointment she was teaching secondary classes. Initially she was placed in the pay scale of trained B.T.C. teacher and that on 8.7.1979 she was given C.T. grade of Rs. 450 - 720/. At the relevant time the pay scale of teachers working in primary section was Rs. 350 - 500. She was given L.T. grade after completing 10 years in C.T. grade. By an order dated 24,5.2003 under challenge in writ petition No. 1514/2004, the Regional Joint Director of Education, Agra Region, Agra has found that the petitioner was appointed in the primary section and was never approved as a teacher of high school. She was wrongly given L.T. grade on 8.7.1989, as she was not appointed in C.T. grade. He has cancelled the transfer order and has directed the petitioner to be appointed in the primary section of the college from where she was transferred and the excess salary drawn by her shall be recovered by the District Inspector of School.
3. Smt. Faujdar preferred an appeal under Section 16-E (10) of the Intermediate Education Act 1921. The Director of Education (Madhyamik) Lucknow by his letter dated 26.6.2003 returned the original file with direction to Regional Joint Director of Education, Agra to reconsider his decision dated 24.5.2003, and until then the order dated 24.5.2003 was directed to be kept in abeyance. Aggrieved by the order dated 26.6.2003 passed by the Director of Education (Madhyamik) U.P. Lucknow, the Committee of Management, Lt. Nahar Singh, Inter College, Aligarh has filed writ petition No.55985/2002. Apart from praying for quashing the order dated 26.6.2003 and the consequential orders dated 4.7.2003 and 14.7.2003 passed by Regional Joint Director of Education, Agra and the District Inspector of Schools Aligarh, the Committee of Management, has also prayed for a writ of mandamus directing immediate repatriation of Smt. Prem Bala Faujdar to her parent institution, and to recover the salary drawn by her as L.T. grade teacher. The Committee of Management has also prayed for holding a departmental enquiry fixing the responsibility upon educational authorities who have allowed fraudulent transfer of Smt. Faujdar in higher grade and the scale to which she was not entitled.
4. Sri M.K.. Gupta, counsel for petitioner has fairly admitted that the order of the Regional Joint Director of Education, Agra dated 24.5.2003 was not appellable under Section 16-E (10) of the Act, and thus Smt. Faujdar has filed writ petition No. l 514/2004 challenging the order dated 24.5.2003 passed by Joint Director of Education, which may be considered on its own merit. According to Sri M.K.Gupta the order proceeds on wrong facts and cannot be sustained in law.
5. Section 16-E (10) of the Act of 1921 provides that if the State Government, in case of the appointment of the head of institution, and the Director, in the case of appointment of teacher of the institution, is satisfied that any person has been appointed as head of the institution or teacher, as the case may be, in contravention of the provisions of the Act, the State Government or as the case may be, the Director may after affording an opportunity of being heard to such person, cancel such appointment and pass such consequential order as may be necessary. The order dated 24.5.2003 passed by Regional Joint Director of Education, Agra does not fall in the category of the orders, which have been made subject to representation the State Government under Sub Section (10) of Section 16-E of the Act of 1921. On this concession, the Committee of Management of Lt. Nahar Singh Inter College, Aligarh, is entitled to the first relief in writ petition No.55985/03 and consequently Writ Petition No. 55985 of 2003 is partly allowed and the orders passed by the Director of Education (Madhyamik) U.P. Lucknow dated 26.6.2003 and the orders of the Regional Joint Director of Education, Agra dated 4.7.2003 and District Inspector of Schools, Aligarh dated 14.7.2003 are quashed and are set aside. The other reliefs namely the repatriation, and recovery of salary from District Inspector, of Schools are being considered along with reliefs claimed in writ petition No. 1514/2004.
6. Sri M.K. Gupta, counsel for Smt. Faujdar submits that after amendment of the U.P. Intermediate Education Act 1921 by U.P. Secondary Education and Laws (Amendment Act No.26/1975) the primary sections attached to the High Schools and Intermediate Colleges education also came to be governed by the provisions of the Act. The primary teachers working in primary sections were getting pay scale of Rs. 175 250 which was later on, revised to Rs. 350 - 500, w.e.f. 1.7.1979, and B.T.C. grade was declared as a dying cadre. The petitioner, however, was never appointed or treated as assistant teacher in primary section and was never given the pay scale of Rs. 350 - 500. She started teaching in Classes from VI onwards, from the very beginning which is admitted to the respondents. She filed a writ petition which was dismissed on 2.8.1990. In Special Appeal No. 10/1990 between Smt. Shushma Gupta and three others (including petitioner) by an order dated 19.3.1994, the Special Appeal was disposed of with the direction to the respondents to consider and decide the appellants' claims of fixation of their pay scale in the revised pay scales of 1986.
7. The then District Inspector of Schools, Aligarh by his order dated 25.2.1995, in pursuance of Government Orders dated 4.10.1989 and 11.8.1989 by which C.T. grade cadre was declared dying cadre, allowed L.T. grade to her w.e.f. 8.7.1989, after completing 10 years of satisfactory service in C.T. grade, and beginning with 8.7.1989, the District Inspector of Schools fixed the basic pay of petitioner at Rs. 1480/- in L.T. grade pay scale of Rs. 1400-40-1800-EB-2030. The petitioner along with Smt. Om Sharma, was given selection grade by order of District Inspector of Schools, Aligarh dated 11.9.2000 (Annexure-11 to the writ petition) w.e.f. 8.7.1999, and her pay was fixed in the pay scale of Rs. 5000 - 8600. The petitioner did not conceal any fact in her application for transfer. She had specifically stated in column-6 of her application that she was appointed on 8.7.1975 in B.T.C. grade, and that in column-7 she had stated that at present she is serving in L.T. grade w.e.f. 8.7.1989.
8. Sri M.K. Gupta submits that the order of District Inspector of Schools dated 25.2.1995 fixing petitioner's pay scale in L.T. grade w.e.f. 8.7.1989 was never challenged and has become final. This order was passed in pursuance of direction given in Special Appeal No. 10/1990. After these orders issued as long back as in 1995, it was not open to the Regional Joint Director of Education to cause any enquiry into the petitioner's initial appointment. He submits that even in this enquiry the Regional Joint Director has failed to take into account that where primary sections are run in the same campus and by the same management in the Intermediate colleges, the teachers' services will be regulated by the Intermediate Education Act 1921, and that the appointment of the petitioner in higher pay scale than the grade applicable to the primary teachers, entitled her to the benefit of C.T. grade and thereafter L.T. grade. Sri Gupta has relied upon various Government Orders with regard to fixation of pay scales and has also challenged the findings of the Joint Director on the ground that the enquiry made by him, with regard to appointment of the petitioner after 28 years of initial appointment was wholly unjustified. Her letter of appointment dated 22.6.1975, appointing her in B.T.C. grade on probation for one year cannot be a ground of enquiry with regard to the fact whether she was appointed in primary section or for secondary classes, when the fact of her placement in higher pay scale from the date of her initial appointment and the fact that she is all along taking higher classes and her pay scale was fixed in C.T. grade on 8.7.1979 and thereafter in L.T. grade on 8.7.1989 was not denied.
9. Sri J.J. Munir, on the other hand, supported the finding of the Joint Director of Education. He submits that the petitioner was appointed in pursuance of advertisement, in the primary section and was appointed in B.T.C. pay scale. She had concealed this fact in getting her pay fixed in L.T. grade. According to him, she is not L.T. grade teacher and is not qualified and that the management gave its consent on false and misleading facts given by her. Sri Munir submits that Smt. Faujdar is guilty of suppressing facts. She had challenged the order dated 11.7.1990 passed by Director of Education in writ petition which was dismissed and that the Special Appeal was disposed of on 19.8.1994. The petitioner had concealed these facts from the then District Inspector of Schools and had got her salary fixed in L.T. grade. The petitioner has all along taken junior classes and passed B.A. examination in 1976-77. She is, therefore, not entitled to L.T. grade and in these circumstances the management cannot accept her on transfer as L.T. grade teacher.
10. The short question to be considered in this case is whether Smt. Faujdar was appointed in the primary section of the College and that whether she had withheld the facts and manipulated in getting her appointment in B.T.C. grade and thereafter in C.T. grade. The petitioner was appointed in pursuance of selection held amongst those who had appeared in selections in response to the advertisement dated 30.5.1975. The petitioner was one of the five teachers selected for appointment. According to the advertisement the school was a high school. The Additional District Basic Education Officer (Women) Aligarh approved the appointments of the services of petitioner in B.T.C. grade and Smt. Om Sharma in C.T. grade. She joined the institution on 8.7.1975 and that by order of District Inspector of Schools dated 8.7.1979, she was placed in the pay scale of Rs. 450 - 750, which was drawn by her upto June, 1990. This revised pay scale was admissible to all the teachers in the pay scale of Rs. 200 - 320 w.e.f. 30.6.1979 and was given to the petitioner in accordance with her option dated 8.7.1979, as a B.T.C. teacher. The Director of Education, U.P. (Education-Arth-I) Allahabad vide his letter dated 11.7.1990 fixed her pay in the lower pay scale of Rs. 365 - 555.
11. The petitioner challenged the order in a writ petition which was dismissed on 2.8.1990. A Special Appeal No. 10/1990 was allowed and that the respondents were required to consider and decide the claim of appellants of fixation of their pay in the revised pay scale of 1996. In the said order in Special Appeal, the District Inspector of Schools, Aligarh by his order dated 25.2.1995 placed her in the pay scale revised in 1986 and according to Government Orders dated 4.10.1989 and 11.8.1989 by which C.T. grade was declared dying cadre, treated her to be in C.T. grade w.e.f. 8.7.1979 and in L.T. grade w.e.f. 8.7.1989, after completing 10 years of satisfactory service as trained graduate, and fixed her pay in the pay scale of Rs. 1400 - 2300 w.e.f. 8.7.1989. This order became final between petitioner and educational authorities, and that the petitioner now after about 8 years of issuance of this order, it cannot be said that the petitioner was not in L.T. grade teacher in. Kanya Uchchatar Madhyamik Vidyalaya, Chharra, Aligarh. The petitioner was thereafter given a selection grade on 11.9.2000. It was as such too late and inequitable to hold an enquiry with regard to her initial appointment.
12. The petitioner did not withhold and conceal any fact in her application for transfer and that on the aforesaid facts in which she was given L.T. grade by District Inspector of Schools, it cannot be said that she made any misrepresentation. The Court is not called upon to go into the reasons as to why the Committee of Management which had all the facts available and gave consent for her transfer, has now turned turtle and is resisting the transfer. The petitioner was relieved and has joined Lt. Nahar Singh Inter College, Quassi, Aligarh on 13.10.2001. The first letter of protest was sent by the Manager of Lt. Nahar Singh Inter College, Quassi to the District Inspector of Schools on 6.3.2002, purportedly on the ground that the fact came to his knowledge on a perusal of her service book. The Manager did not care to make any enquiry from Smt. Faujdar and did not care to find out and consider the order of District Inspector of Schools dated 25.2.1995, and has not even challenged this order in his writ petition.
13. There is no averment in the writ petition nor any finding has been recorded by the Joint Director of Education that the petitioner was taking primary classes after her appointment in B.T.C. grade in 1975. It is not denied that the petitioner was allowed to teach classes VI - X from the date of her appointment and was receiving salary in a grade higher than the B.T.C. grade since 1975. On these facts, I find that the order of Regional Joint Director of Education, Agra Cannot be sustained.
14. The writ petition No. 1514/2004 is allowed. The impugned order dated 24.5.2003 passed by Regional Joint Director of Education, Agra is set aside.
15. The writ petition No. 55985/2003 is partly allowed quashing the order dated 26.6.3003 passed by respondent No. 2 and the order dated 4.7.2003 and 14.7.2003 passed by respondent nos. 3 and 4. The remaining prayers of this writ petition are rejected. Smt. Prem Bala Faujdar, shall be entitled to costs of both the writ petitions from the Committee of Management of Lt. Nahar Singh Inter College, Quarsi, Aligarh.