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C/M SARASWATI VIDYA MANDIR JUNIOR HIGH SCHOOL MAU & ANOTHER versus STATE OF U.P. THRU' SECY. MINISTRY OF EDUCATION & OTHERS

High Court of Judicature at Allahabad

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C/M Saraswati Vidya Mandir Junior High School Mau & Another v. State Of U.P. Thru' Secy. Ministry Of Education & Others - WRIT - A No. 441 of 2002 [2006] RD-AH 7286 (5 April 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.26

CIVIL MISC. WRIT PETITION NO. 441 OF 2002

Committee of Management and another

Versus

State of Uttar Pradesh and others

-----

HON. SHISHIR KUMAR, J.

By means of the present writ petition the petitioners have approached this Court for quashing the order dated 24.8.2001 passed by the Director of Education (Basic), Annexure-24 to the writ petition.

The institution in question is a Junior High School and is on grant-in-aid list. Subsequently, on various dates three extra sections for Classes - VI, VII and VIII have been sanctioned. From the record it is clear that the extra sections have been sanctioned by the competent authority. Copy of this sanction letter dated 17.4.1992 has been annexed as Annexure-7 to the writ petition.  In view of the aforesaid fact, the Committee of Management- petitioner submitted an application for sanction of the post of three teachers in view of the enhancement of the three sections as mentioned above. The Committee of Management made advertisement for appointment of three assistant teachers in the institution on 21.7.1994. The various persons have been considered and the three persons namely Sri Udai Narina, Smt. Saroj Dixit and Sri Parmanand Maurya being the suitable candidates amongst the various candidates were selected and appointment letters were issued and they are working in the institution regularly. Their names find place at serial nos. 15, 16 and 17 respectively in the staff statement of the institution.

On the basis of the aforesaid fact an application was made for sanction of three posts before the Competent authority but no orders were passed, then the petitioner approached this Court by way of Writ petition No.44521of 2000 and the same was decided finally on 6.11.2000 with a direction to the respondents to decide the claim of the petitioner by speaking and reasoned order within a period of one month. The Basic Shiksha Adhikari on the basis of the directions issued by this Court was pleased to pass a detailed and reasoned order dated 13.6.2000 stating all the facts and reasons recommending the case of the petitioner that the three posts of teachers may be sanctioned.

It has been submitted that as the Director of Education is the relevant authority for sanction of the posts in an institution, as such the recommendation and other relevant papers were placed before the respondent no.2 for considering after sanction of the three extra posts of teachers.

It has been submitted on behalf of the petitioner that without taking into consideration the relevant factors that the sections have been sanctioned by the competent authority on the basis of the strength of the students and there is nothing on record to show that strength of students at any point of time has been reduced and there is no sufficient accommodation in the institution, the three teachers for which the sanction of posts has been requested from the competent authority have been appointed when there was a need as the sanction of extra sections for Classes-VI, VII and VIII  was made by the competent authority. Further contention raised on behalf of the petitioner is that as regards the ban stated in the order, it is apparent from the record that the ban has already been lifted and at the time when the appointments were made there was no ban. It is not the case of the respondents that while appointing the three teachers, the proper procedure as provided in the rules have not been followed. Only the reason given by the respondents is that there will be a financial burden. The petitioner submits that this cannot be aground for rejection of the claim of the petitioners, as such the order impugned is liable to be quashed.

The writ petition was entertained and the counter and rejoinder affidavits have been exchanged as such with the consent of the parties, the matter is being disposed of.

Sri Prakash Padia has placed reliance upon the judgment reported in 2002 (3) A.W.C. 2373, Lal Bahadur Shastri Junior High Schooland others Vs. State of U.P. and others and has referred to para 5 of the said judgment which is reproduced below:

"5. As noted earlier, the District Inspector of Schools, Muzaffarnagar vide the order dated 27th July,1987 accepted the request of the management of the school and sanctioned additional sections in classes VI and VIII. In the Government order dated 20.1.1986 the standard staffing pattern of the teaching staff for a recognized junior high school is set out. It is also provided in the Government order that whenever additional classes or sections are permitted to be opened in the school, additional teachers should be appointed so that teaching in the newly opened classes does not suffer. In this case, the matter relating to sanction of additional posts of teachers has been dragging on since 1987 and the problem remains unsolved. From the order passed by the Director, it is clear that the authority did not consider the matter improper perspective. No attempt was made to ascertain if there is a need for extra teachers in the school. The ground of want of financial sanction of the government is, in our consideration, not an acceptable reason particularly after the additional sections in the two classes were sanctioned by the District Inspector. Despite the directions of the High Court to the Director of Education (Basic) to examine the matter and pass appropriate order vide order dated 4.3.1997 in Civil Miscellaneous Writ petition No.7785 of 1997, care has not been taken to consider the relevant aspects of the matter."

In view of the aforesaid fact, learned counsel for the petitioner Sri Prakash Padia has submitted that refusal by the Director on the ground of want of financial sanction cannot be a ground for sanction of the post. Another judgment relied upon by the counsel for the petitioner is the judgment reported in Judgment Today 2000 (1) S.C.159, Chandigarh Administration and others Vs. Mr. Rajni Vali and others and has referred to paras 6, 9 and 10 which are reproduced as under:

"6. The position has to be accepted as well-settled that imparting primary and secondary education to students is the bounden duty of the State Administration. It is a constitutional mandate that the state shall ensure proper education to the students on whom the future of the society depends. In line with this principle, the state has enacted statutes and framed Rules and regulations to control/regulate establishment and running of private schools at different levels. The State Government provides grant-in-aid to private schools at different levels. The State Government provides grant-in-aid to private schools with a view to ensure smooth running of the institution and to ensure that the standard of teaching does not suffer o account of paucity of funds. It needs no emphasis that appointment of qualified and efficient teachers is a sine qua non for maintaining high standard of teaching in an educational institution. Keeping in mind these and other relevant factors this Court in a number of cases has intervened for setting right any discriminatory treatment meted out to teaching and non-teaching staff of a particular institution or a class of institutions. To notice a few such decisions on the point we may refer to the case of Haryana State Adhyapak Sangh and others etc. v. State of Haryana and others, etc. JT 1988 (3) SC 172 = (AIR 1988 SC 1663) in which this court issued a direction that the State government will also take up with the Management of the aided schools the question of bringing about parity between the teachers of aided schools and the teachers of Government schools for the period following that to which the thirty five installments relate, so that a claim for payment may be evolved after having regard to the different allowances claimed by the petitioners. In the case of Haryana State Adhyapak Sangh & Ors. V. State of Haryana & Ors. JT 1990 (1) SC 293 =(AIR 1990 SC 968), a bench of three learned Judges of thisCourt clarifying the judgment in Haryana State Adhyapak Sangh & Ors. Etc. v. State of Haryana & Ors. Etc. (supra), issued a direction, inter alia, that the parity in the pay scales and dearness allowance of teachers employed in aided schools and those employed in Government schools shall be maintained and with that end in future the pay scales of teachers employed in Government schools shall be revised and brought at par with the aided schools and dearness allowance payable to the teachers employed in Government schools with effect from January 1st, 1986.

9.Tested on the touch stone of the principles laid down in the aforementioned decisions, the position is manifest that there is no justification for denying the claim of the respondents for parity of pay scale and to accept the contention of the appellants will amount to confirming the discriminatory treatment against the respondents. Therefore, the High Court rightly rejected the case of the appellants. The directions issued in the impugned Judgment to pay the respondents 1 to 12 the same salary as is being paid to their counter parts in the privately managed Government aided schools in Chandigarh in the circumstances is unassailable.

10.Coming to the contention of the appellants that the Chandirgarh Administration will find it difficult to bear the additional financial burden if the claim of the respondents 1 to 12 is accepted, we need only say that such a contention raised in different cases of similar nature has been rejected by this Court. The State Administration cannot shirk its responsibility of ensuring proper education in schools and colleges on the plea of lack of resources. It is for the Authorities running the Administration to find out the ways and means of securing funds for the purpose. We do not deem it necessary to consider this question in further details. The contention raised by the appellants in this regard is rejected. It is, however, clarified that the proportion in which the additional burden will be shared by the Chandigarh Administration and the Management of the school will be in accordance with the Grant-in-aid Scheme applicable to the school from time to time. The judgment of the High Court that the sharing of the financial burden will be in the ratio of 95% to 5% is modified accordingly."

Another judgment relied upon by the counsel for the petitioners is judgment in Writ petition No.7802 of 1989 decided on 31.1.1991, Committee of Management, Krishak Intermediate College and others Vs. Direction of Education. In support of the contention raised by the petitioners, the petitioners have submitted that in the aforesaid judgment this Court has taken an analogy to this effect that once the extra sections has been sanctioned and on that basis the qualified teachers have been appointed, it is the duty of the State to make payment of salary, and the Hon'ble Single judge has held that he is entitled for salary. Reliance has been placed on para 5 of the said judgment, which is quoted below:

"5.Second relief sought in the writ petition is for a direction to the respondents to pay salary to petitioner No.2. As it has already been held that by virtue of order dated 27.11.1984 teacher could be appointed for teaching students of agriculture classes the appointment of petitioner No.2 could be made on post under the aforesaid order. However, in none of the application moved by the petitioners, prayer for payment of salary has been made, and there is no order on record to show that petitioner ever approached respondents for the payment of salary of petitioner and it has been refused. However, as it has been alleged in the writ petition that petitioner No.2 was appointed on the post by order-dated 12.9.1985 (Annexure No.3) he may be working on post and if so he shall be entitled for the salary. In the circumstances its hall be in the interest of justice that respondent no.3 may be directed to consider and dispose of the representation of petitioner No.2 for payment of salary within a period of two months from the date a certified copy of this order along with the representation is filed before him by the petitioners."

In view of the aforesaid fact, learned counsel for the petitioners has submitted that the order impugned is liable to be quashed as it has been passed without assigning any reason that under what circumstances the sanction of three extra teachers in spite of the fact that extra sections have been sanctioned by the competent authority cannot be given. The financial difficulty as submitted by the petitioner is not tenable.

On the other hand counsel for the respondent has filed a counter affidavit and only ground taken in the counter affidavit is that the appointment of the three teachers has been made without taking any approval from the competent authority. As such, the order passed by the Director is valid and the writ petition is liable to be dismissed.

I have heard the learned counsel for the petitioners and the counsel for the respondents and have perused the record. On the perusal of the various orders it is clear that three sections of Classes-VI, VII and VIII were sanctioned after due inspection by the competent authority and it was felt that there are sufficient students in the institution as such three extra sections for Classes VI, VII ad VIII were sanctioned. As the extra sections were sanctioned, therefore, the necessity arose to appoint three teachers for teaching those sections which have been created on the basis of the approval granted by the competent authority. Basic Shiksha Adhikari has recommended after consideration of various records that the teachers who have been appointed, the posts may be sanctioned. It is not the case of the respondents that there was some irregularity in making the appointment of the teachers. The ground taken only is that there was a ban. As from the record it is clear that the ban was lifted and as regards the denial of sanction of three posts on the basis of the financial difficulty, it cannot be a ground for the purpose of refusing to sanction the post in view of the judgment of the Apex Court relied upon by the counsel for the petitioner.

In view of the aforesaid fact the order dated 24.8.2001, Annexure-24 to the writ petition is hereby quashed and the matter is remitted back to respondent no.2 to consider the claim of the petitioners regarding sanction of three posts of teachers in the light of the observations made above taking into consideration the judgment of the Apex Court and will also take into consideration that the financial burden cannot be a ground for refusal for sanction of the post. The aforesaid exercise shall be done by respondent no.2 regarding consideration of the claim of the petitioners preferably within three months from the date of production of a certified copy of this order before him. It is however, made clear that while considering the claim of the petitioners, respondent no.2 shall pass a detailed and reasoned order according to law.

With these observations the writ petition is disposed of. No order as to costs.

5.4.2006

V.Sri/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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