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Smt. Anamika Narula v. D.I.O.S., Kanpur Nagar & Others - WRIT - A No. 14472 of 1996  RD-AH 252 (19 May 2004)
Civil Misc. Writ Petition No.14472 of 1996
Smt. Anamika Narula Vs. District Inspector of Schools-II,
Kanpur-nagar and others.
Hon'ble V.C. Misra, J.
Heard Sri Rajendra Kumar learned counsel for the petitioner, Sri Mohan Yadav learned standing counsel on behalf of respondents 1 & 2 and Sri Ashok Kumar Srivastava learned counsel on behalf of respondent no.3. On the joint request of the counsels for the parties, this case is finally decided at this stage in terms of the High Court rules.
The facts of the case, in brief are, that the respondent no.3 is running an institution known as Madan Mohan Agarwal Balika Higher Secondary School (hereinafter referred to as the institution), duly recognized under the provisions of U.P. Intermediate Education Act, 1921. 15 new posts including 6 posts in the C.T. grade were sanctioned by the Regional Inspectress of Girls Schools (RIGS) under the directions of the Directorate of Education vide order dated 12.1.1988 (annexure-1 to the writ petition). Respondents no.3-committee of management proceeded for making direct appointment on ad hoc basis against the newly created substantive vacancy in accordance with the provisions of Section 18 (as it then stood) of the U.P. Secondary Education Services Commission and Selection Board Act, 1982 (Act no.5 of 1982) exercising its powers provided in para-2 of First Removal of Difficulties Order as substituted by the Removal of Difficulties (Second) Order, 1981, which reads as under:-
Section 18 of the Act would be applicable in the case of appointment of a teacher in the C.T. grade where the District Inspector of Schools does not make an appointment under the order. It is, therefore, clear that the Commission or Management can make an ad hoc appointments of teacher in C.T. grade under Section 19 of the Act.
For making appointment of a teacher in the C.T. grade the management has to notify the vacancy to the Selection Board and in its absence to the District Inspector of Schools.
In accordance with law, after advertising the post and constituting a selection committee, the petitioner appeared before the selection committee and was selected on the basis of quality point marks awarded to the candidates who had appeared before the selection committee. The petitioner was issued an appointment letter dated 30.9.1989 (annexure-2 to the writ petition) against the duly sanctioned post in the C.T. grade and the necessary papers and documents were sent to the District Inspector of Schools by the managing committee for approval. Since the institution was unaided at the point of time of appointment of the petitioner, the salary was being paid to her continuously by the managing committee from its own funds till 31.3.1991. On 1.4.1991, the institution came in grant-in-aid from the State government hence, the liability of the payment of salary fell on the District Inspector of Schools in accordance with the provisions of U.P. High School & Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971.
Since, the petitioner was to be paid salary by the respondent no.1 under the Payment of Salaries Act after 1.4.1991, the petitioner made several representations before the concerned District Inspector of Schools for releasing the payment, but no action had been taken in this regard for a quite long time and the petitioner continued working regularly and performing all the duties of the teacher in the institution. The petitioner along with 2 other similarly situated teachers, filed 3 separate Writ Petitions before this Court, the details of which are 14471 of 1996 Smt. Suman Trivedi Vs. District Inspector of Schools-II, Kanpur-nagar and others, 14472 of 1996 Smt. Anamika Narula Vs. District Inspector of Schools-II, Kanpur-nagar and others (present writ petition) and 14470 of 1996 Smt. Mithilesh Gupta Vs. Vs. District Inspector of Schools-II, Kanpur-nagar and others.
Counter and rejoinder affidavits were exchanged. The Writ Petition No.14470 of 1996 Smt. Mithilesh Gupta Vs. District Inspector of Schools-II, Kanpur-nagar and others, was finally heard and allowed vide Judgment and Order dated 10.1.2002 and the respondents were directed to make the payment of the salary to her with effect from April 1991 with all consequential increments and benefits to be provided to her as claimed by her. Exemplary cost of Rs.5,000/- was also imposed on the concerned District Inspector of Schools to be realized from him personally and deposited in the High Court Legal Service Committee, Allahabad. Since, it was found and held that the petitioner had to suffer due to inaction on the part of the concerned District Inspector of Schools.
In the counter affidavit, the respondents have raised the point that the petitioner was not duly appointed in accordance with law since, the management had no power to make any appointment under Section 10 of the U.P. Secondary Education Services Commission and Selection Board Act, 1982 (U.P. Act no.5 of 1982) and the power vested in the Board or the Commission. Learned standing counsel has also pointed out, that, the services of the petitioner have yet not been approved by the District Inspector of Schools, however, during the course of arguments, the learned standing counsel on behalf of the respondents, has fairly conceded to the fact that under the provisions of para-2 of First Removal of Difficulties Order (as substituted), the management committee had the right to make an ad hoc appointment by direct recruitment in accordance with the provisions of the said order against the substantive vacancy so sanctioned by the respondents. He has also accepted that the fact of the continuous working of the petitioner in the institution has also not been denied by the respondents.
Learned counsel for the petitioner has submitted that in accordance with the provisions of Section 33-A (1-B), the petitioner shall be deemed to have been appointed in a substantive capacity and, therefore, was entitled to payment of her regular salary with effect from 1.4.1991, the date, the institution came in grant-in-aid by the State of U.P. regularly month to month.
I have looked into the matter in detail, and I find, that the petitioner having been appointed by direct recruitment on 30.9.1989 (before 31.7.1988) on ad hoc basis against a substantive vacancy in C.T. grade in accordance with the provisions of Section 18 of the Commission Act (U.P. Act no.5 of 1982) as it then stood being duly qualified and eligible for the said post and having continuously served the institution from the date of her initial appointment, her services stand duly regularised in accordance with the provisions of Section 33-A (1-B) of the Commission Act (U.P. Act no.5 of 1982) with effect from the date of commencement of the U.P. Secondary Education Services Commission Ordinance/Act and is also entitled for the payment of salary under the provisions of Payment of Salaries Act.
Section 33-A (1-B) reads as under :-
(1-B) Every teacher directly appointed after June 12, 1985 and before May 13, 1989 on ad hoc basis against a substantive vacancy in the Certificate of Teaching grade in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981 as amended from time to time, who possesses the qualifications prescribed under, or is exempted from such qualification in accordance with the provisions of the Intermediate Education Act, 1921 shall with effect from the commencement of the Uttar Pradesh Secondary Education and Services Commission and Selection Boards (Amendment) Act, 1991, be deemed to have been appointed in substantive capacity provided such teacher has been continuously serving the institution from the date of such ad hoc appointment to the date of such commencement.
Under the above said facts and circumstances, the respondents are directed to make payment of salary to the petitioner regularly month to month in accordance with law and shall also pay the entire arrears of salary to her with effect from 1.4.1991 till date with all consequential increments and benefits to which she would be entitled to in accordance with law, along with simple interest @ of 10% per annum on the arrears, within a period of three months from the date a certified copy of this order is filed before the respondent no.1.
The Principal Secretary (Secondary Education), State of Uttar Pradesh, is directed to recover the amount of interest imposed, a burden on exchequer from the concerned erring official/officials after instituting an enquiry in accordance with law.
With these observations, the writ petition is allowed. No order as to costs.
May 19, 2004
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