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Rama Shanker Yadav & Others v. Jt. Director Of Education & Others - WRIT - A No. 29375 of 2002 [2005] RD-AH 6184 (22 November 2005)


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).


Court No. 50


Rama Shankar Yadav & others


Joint Director of Education, VIIth Region, Gorakhpur & others


Hon'ble D.P. Singh, J.

Heard learned counsel for the parties.

Bhagwan Parashuram Dham Uchchatar Madhyamik Vidyalaya Sohnag, Salempur in Deoria is a duly recognized and aided intermediate college wherein the petitioners were appointed as class IV employees since 1976-1977. The said institution was earlier a Junior High School but in March, 1981 it was granted recognition for higher secondary classes and 19 posts of teachers and other employees were sanctioned on 29.8.1981. By subsequent orders dated 2.12.1988 and 7.11.1990 another set of 19 posts of teachers and other employees was sanctioned. After upgradition of the institution the appointment of the petitioners including the subsequent 19 appointees was approved by the District Inspector of Schools vide his order dated 12.2.1987. The institution was taken in the grant in aid list for the first time under U.P. Act No. 24 of 1971 w.e.f. 1.4.1991. However, the District Inspector of Schools did not pay the salaries and, thus, all the 38 teachers and other employees of the institution preferred Writ Petition No. 16902 of 1992 wherein an order was passed on 13.7.1992 directing the respondents either to pay the salary of the petitioners or to show cause. In pursuance thereof, the Deputy Director of Education vide his order dated 10.9.1992 passed an order holding that those teachers and other employees appointed against posts created after 14.10.1986 only were entitled for payment by the State while for the rest teachers and other employees it held that in view of Section 7-AA of the Act they are not entitled for salary from state funds. Thus, the present five petitioners along with 14 others challenged the aforesaid order on the ground that Section 7-AA of the Act was not applicable to their case through an amendment in the aforesaid writ petition. This petition was decided by order and judgment dated 7.12.1995 without considering the objection of the petitioners that they were not disentitled for payment under Section 7-AA of the Act. Aggrieved, the petitioners and other similarly placed employees preferred Special Appeal no. 43 of 1996, which was allowed vide order and judgment dated 24.5.1996 holding that Section 7-AA was not applicable to the case of the petitioners and similarly placed other employees of the institution and remanded the matter to the Regional Deputy Director of Education to consider the question of entitlement of the petitioners and other similar employees within three months. In pursuance thereof, the Deputy Director of Education vide his order dated 16.11.1996 though held that the petitioners were validly appointed against sanctioned posts which appointment was also approved but payment of salary by the State was declined again on the ground of Section 7-AA of the Act. This forced the petitioners to file Writ Petition No. 1688 of 1997, which was allowed after exchange of affidavits vide judgment and order dated 8.7.1999 and where it was held:-

"Since the question of validity of appointment has already been decided in favour of the petitioners holding that they are entitled to salary, follow up action should be taken in terms of the said order by the respondents in the matter of payment of salary. Since it has been found that the said school was brought within the purview of payment of salary Act the question that the appointment was subject to condition that the payment of salary would be made by the management as they are apparent from the impugned order, cannot be maintained between 2.12.1988 and 7.11.1990. The said school was not within the purview of payment of salary Act. Inasmuch as the school was brought under the payment of salary Act w.e.f. 1.4.1991.

In fact, the court held, that even though appointments made against posts sanctioned in 1988 and 1990, as this institution was included in the grant in aid list w.e.f. 1.4.1991, those appointees were also entitled for salary, and as such the respondents were directed to pass orders inconformity with the findings. The Joint Director of Education, after obtaining the report of the District Inspector of Schools passed an order on 26.11.1999 directing payment of salary to the petitioners and other similarly placed employees holding their appointment to be in accordance with law. Thereafter the salary of the petitioners was released and continued to be paid. However vide order dated 4.6.2002 passed by the Joint Director of Education, the salary of the petitioners has been stopped  acting on a private complaint and holding that the alleged approval order dated 12.2.1987 was fraudulently obtained.

Apart from several arguments, learned counsel for the petitioner has urged that the impugned order was passed without any notice or opportunity to the petitioner and also without serving a copy of the alleged complaint and the report of the District Inspector of Schools which formed the basis of the impugned order. This factual averment made in paragraphs no. 22 and 26 of the Writ Petition has not been denied in the counter affidavit filed on behalf of the state respondents. In fact it is stated that since the approval was obtained fraudulently, no opportunity or notice was required to be given to the petitioners. While noting the facts as aforesaid, it is evident that the validity of the appointment of the petitioners had engaged the attention of this court at least on three different occasions, once before the appellate court and twice before learned Single Judge of this court. The judgment in the three instances was given after exchange of pleadings and hearing the parties at length. Normally, in a case perpetuated by fraud, the Writ Court may not exercise its discretionary jurisdiction even on the ground of absence of opportunity, but in the present case twice the appointments of the petitioner have been considered by this court and found to be valid and at least on two occasions the Educational Authorities themselves have also found it as such. Even otherwise assuming for the sake of arguments that there was no approval of the appointment of the petitioners, the question still remains whether approval in law was required for the petitioners who are class IV employees of the institution. It is evident that regulation 101 was introduced in chapter III of the regulations framed under the Act for the first time on 30.7.1992 which mandates financial approval of appointment on class III and class IV posts of recognized educational institutions, but prior to that there was no such requirement whatsoever. There is absolutely no denial either in the impugned order or in the counter affidavit of the state respondents that the petitioners were appointed and have been continuously working since 1976-1977. On the facts of this case, the petitioners were entitled to a proper notice and opportunity before any order adverse to their interest could be passed.

For the reasons given above, this petition succeeds and is allowed and the impugned order dated 4.6.2002 is hereby quashed. Cost on parties.

D/- 22.11.2005.



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