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Surendra Kumar Pathak & Others v. State Of U.P. Through Secretary (Basic) Education Lko. &Ors - WRIT - A No. 49163 of 2002 [2005] RD-AH 5477 (9 November 2005)


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Civil Misc. Writ Petition No.    49163          of 2002

Surendra Kumar Pathak and others............................Petitioners


State of U.P. and others........................................Respondents.


Hon.Tarun Agarwala,J.

  Heard Sri Ashok Khare, the learned senior counsel, assisted by Sri Vashishtha Tiwari, for the petitioners, Sri P.K.Sharma, appearing for District Basic Shiksha Adhikari and Sri Jai Krishna Tiwari, the learned Standing Counsel for respondent nos.1, 2, 3 and 4.

Janta Junior High School, Math, Mathura is a recognized and aided institution, governed under the provision of U.P. Basic Education Act, 1972. Permanent recommendation of this institution was granted in the year 1984. It transpires that the Committee of Management by resolution dated 19.12.1999 resolved to appoint the petitioners against the vacancy occurring in future as there was requirement of Assistant Teachers in the institution. It further transpires that by an order of the Assistant Director of Education(Basic), dated 31.1.2001, three posts were created subject to the condition that the financial burden of this post shall be borne by the institution. It further transpires that petitioner nos.1, 2 and 3 were adjusted against these posts and subsequently their appointments were approved by the District Basic Shiksha Adhikari by order dated 23.3.2000. The appointment of the petitioner no.1, on the resignation of another Assistant Teacher, was also approved by order dated 16.8.2000, passed by the District Basic Shiksha Adhikari. It transpires that by an order dated 22.2.2001 the institution came under the purview of the grant-in-aid list. The petitioners submitted that they are entitled to be given the pay and other benefits under Section 3 of the Uttar Pradesh Junior High School (Payment of salaries of teachers and other employees) Act, 1978 (hereinafter referred to ''Act of 1978'). Since action has been taken by the educational authorities, the petitioners have filed the present writ petition praying that the respondents be directed to make the payment of the salary to the petitioners on the post of Assistant Teachers under the Act of 1978.

A counter affidavit has been filed by the Standing Counsel stating that the salary to the petitioners are not being paid on account of the fact that their names were not found in the Managers Return (M.R.) and consequently the State Government was not obliged to make the payment under the Act of 1978. The Standing Counsel further submitted that the appointment of the petitioners was not made in accordance with the roster indicated in the U.P.Act  of 1994. Further three posts which was created by an order dated 31.1.2000 contained a stipulation that the financial burden of those post shall be borne by the Committee of Management and therefore, the State Government was not entitled to make the payment.

The learned counsel for the petitioner submitted that the respondents are referring to the Manager's Return for the period 1998 during which time the petitioners admittedly were not appointed and therefore, the question of their names being found in the Manager's Return does not arise. The respondents were required to consider the Manager's Return of the year 2000 and thereafter when the petitioners were appointed. Further the learned counsel for the petitioner submitted that the embargo contained in the order dated 31.1.2000 could only be limited till such thim when the institution was outside the purview of the Act of 1978 and the moment the institution came under the grant-in-aid list, the salary of all the teachers on the sanctioned strength was liable to be paid under Section 3 of the Act of 1978.

With regard to the question that the appointments were not made in accordance with the roster under the U.P. Act of 1994, it is made clear, that the said Act was not applicable at the time when the appointment of the petitioners was made in the year 1998 inasmuch as the institution in question in which the petitioner was appointed was an unaided institution and, therefore, outside the purview of the Act of 1994 and in view of Section 2(c)(iv) of the Act, since the institution was not receiving any grant from the State Government, the Act of 1994 was not applicable.

Since necessary details in this regard are lacking, it not possible to decide the controversy in this writ petition. Consequently, I direct the petitioners and/or the Committee of Management to move an appropriate application before the Director of Education (Basic), who will consider and decide the matter by a reasoned and speaking order within two months from the date of production of a certified copy of this order along with the copy of the application in the light of the observation made above.

The writ petition is disposed of with the aforesaid observation.

Dated: 9.11.2005



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