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Mary Wanamaker Girls Intermediate College v. State Of U.P. Ministry Of Education And Another - WRIT - A No. 53685 of 2003  RD-AH 4985 (2 March 2006)
Court No. 50
Civil Misc. Writ Petition No. 53685 of 2003
Mary Wanamaker Girl's Intermediate College
State of U.P. and others.
Hon'ble D.P. Singh, J.
Heard counsel for the parties.
This petition is directed against an order dated 11.11.2003 by which the advertisement made by the petitioner inviting application for appointment in the attached primary section of the institution has been cancelled on the ground that no post exists.
Mary Wanamaker Girl's Intermediate College is a duly recognized and aided minority institution imparting education uptill Intermediate. The attached primary section of the institution was duly recognized for class 1 to 5 in March, 1953. Due to increase in the number of students, further primary sections were allowed to be operated in 1967 and 1969. Through letter dated 15.9.1977 three vacancies in the higher classes were converted for the primary section. Kumari Maureen Vimla Ransom was appointed in the primary section as an Assistant Teacher on 10.9.1981 which was duly approved by the respondents vide letter dated 28.8.1981. After her marriage, she became Smt. Maureen Vimla Massey and retired on 30.6.2003. One Kumari Shanti Sahai was also appointed as Assistant Teacher in the primary section on 1.8.1970 which was also approved by the respondents vide order dated 9.2.1971. She married while teaching and became Smt. Shanti Nathaniel Das and retired on 30.6.2003. It is not disputed that both the teachers received their salary from the State Exchequer throughout their service. The management vide its letter dated 30.6.2003 sought permission of the respondent no. 2 to advertise the aforesaid two vacancies caused due to the retirement of the aforesaid two incumbents. This was reiterated vide letters dated 9.8.2003 and 4.11.2003 where it was impressed upon the respondents that session had commenced and as such the children were suffering on account of the aforesaid vacancies. None of the letters evoked any reply. The Management had no option but to advertise the aforesaid two vacancies in two widely circulated newspapers on 5.11.2003. By the impugned order, the aforesaid advertisement has been cancelled on the ground that there were only five sanctioned posts in the primary section in the institution and payment of salary to four teachers were being done from State Exchequer and only one post was vacant and for that single post, two different teachers had laid their claim and therefore there remained no vacancy in the institution.
The respondents have not denied that payment of salary against ten posts of teachers in the primary section of the institution was being made, which is evident from perusal of para 10 and its sub paras after due approval for the last more than two decades. Normally, when salary is paid by the State for such a long period, it can be presumed that payments are being made against sanctioned posts, until it is otherwise proved. In the impugned order there is only a recital that only five posts were sanctioned. In the counter affidavit, it is alleged that in the financial survey conducted only five posts of primary teachers were found to be sanctioned, but no copy of the said survey report has been filed by the respondent, even though a portion of the survey of 1976 and 1989 has been annexed by the petitioners showing ten teachers were drawing salary on approved appointments in the primary section. The assertion with regard to five sanctioned posts was denied in the writ petition and documents to show that five posts were sanctioned in 1953 while two posts and three posts were sanctioned in 1969 and in 1977 respectively, have also been filed. In paragraph 10 the details of all the teachers appointed and the approval granted have been given. In para 10 (1) it is alleged that one post become vacant on retirement of Smt. Maureen Vimla Massey on 30.6.2003, while in paragraph 10 (9) the vacancy for the other post on the retirement of Smt. Shanti Nathaniel Das has also been given. The petitioner has given the entire details of all the 10 teachers in paragraph 10 of the writ petition and has annexed a chart alongwith the rejoinder affidavit giving the details of the date of appointment and the date of approval granted by the authorities. These specific allegations have not been denied by the respondents. So far as the pendency of the two writ petitions are concerned, it is apparent from perusal of paragraph no. 12 of the writ petition that Kumari Anjela Singh and Kumari Veera Nath were appointed after due permission of the education authorities in the vacancy caused by the retirement of Kumari Joyce Ralph and Smt. E.M. David. During the arguments, the learned counsel for the petitioner has produced the judgment in the case of Kumari Veera Nath Vs. Director of Education [2004 (1) ESC 436] (writ petition no. 10548 of 2002) decided on 29.1.2004 wherein the appointment of Kumar Veera Nath has been upheld by the court and the directions have been issued for making payment of salary. Similarly, the case of Kumari Anjela Singh (Writ petition No. 12733 of 2004) has also been decided on 20.1.2004 wherein her appointment has been upheld by the court and directions have been issued for making payment of salary. Thus, the objection that two writ petitions which were allegedly pending on the date of the impugned order related to the vacancy which is sought to be advertised, is found to be incorrect. The respondents have not come out with any case to show that these two posts for which payment of salary is being made for last more than two decades, were not sanctioned. There is no justification as to how the salary was being made through the State Exchequer and the only conclusion can be reached is that the said two posts were duly sanctioned by the authorities. Thus, both the grounds taken in the impugned order and in the counter cannot be sustained.
For the reasons given above, this petition succeeds and is allowed and the impugned order dated 11.11.2003 is hereby quashed. The petitioner is permitted to proceed with the recruitment on the two posts. No order as to costs.
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