Chottey Lal And Another vs State Of U.P. and Others

Heard Sri Dr. H.N. Tripathi, learned counsel for the petitioners, Sri Dinesh Kumar Tiwari, learned counsel appearing for the respondent no.5 and Sri Vijay Pratap Singh-I, the learned Standing Counsel.

The petitioners assail the correctness of the orders dated 27 October 2004 and 31 January 2012 passed by the respondents. They are principally aggrieved by the fact that although they are stated to have been continually working in the concerned institution since prior to its take over under the grant-in-aid list, they have been denied benefits of that order illegally by the respondents. The order of 27 October 2004 while extending coverage of grant-in-aid to the institution in which the petitioners were employed, has failed to include them amongst the list of Class-IV employees employed in that institution.

The order of 31 January 2012 has come to be passed by the State Government pursuant to the directions issued by the Court on an earlier writ petition preferred seeking the State to consider the claim of the petitioners for being extended benefits of the grant-in-aid order. The impugned order principally takes the position that as per the norms fixed, only five sanctioned posts in the Class-IV cadre could be viewed as existing in each Higher Secondary School and since at the relevant time more than five persons were working in the Class-IV cadre, the petitioners were liable to be excluded. It also takes note of an affidavit stated to have been filed on 16 June 2004 by the Manager which set forth the names of the teachers and employees working in the institution as on that date. In that affidavit, the names of the petitioners were not included and it is this fact which appears to have essentially weighed with the respondents in proceeding to reject the names of the petitioners.

During the pendency of the present petition, two significant orders were passed on 07 and 20 December 2017. On 07 December 2017, the Court observed:-

" Heard learned counsel for the petitioners and the learned standing counsel.

Submission of the learned counsel for the petitioners is as under:

(i) Before the Institution was taken on grant-in-aid list by Government Order dated 27.10.2004 with provision for one post of Principal, 11 posts of Assistant Teachers, one post of Clerk and 5 posts of Class-IV employees, total 18 posts, the sanctioned strength was one post of Principal, 4 posts of L.T. Grade Assistant Teachers, 9 posts of C.T. Grade Assistant Teachers, one post of Clerk and 7 posts of Class-IV employees, total 22, which were sanctioned by letter of the Divisional Deputy Director of Education, III Division, Bareilly vide letter dated 31.08.1992 (Annexure-4 to the writ petition). Therefore, aforesaid impugned Government Order dated 27.10.2004 is arbitrary and illegal to the extent the already sanctioned posts in the Institution were reduced.

(ii) In the impugned order dated 31.01.2012 (Annexure-12 to the writ petition) passed by the Secretary Education Department, Government of U.P. Lucknow is arbitrary inasmuch as the said authority, although noted the report of the Director of Education (Madhyamik) dated 24.09.2010 and yet failed to consider it, in which the sanctioned strength of posts of the Institution prior to the Government Order for grant-in-aid dated 27.10.2004, has been mentioned. The Institution in question has been taken on grant-in-aid list by the aforesaid Government Order dated 27.10.2004 for High School standard and the post created/ sanctioned relates to the teachers and non-teaching staff upto High School. Therefore, there was no justification to reduce the strength while issuing the grant-in-aid order.

No material has been brought on record in the counter affidavit which specifically replies the basic contention of the petitioners as afore-noted.

In view of the aforesaid, a week's time is granted to the respondent Nos.2 and 3 to file their personal affidavits replying the afore-noted contentions of the petitioners. Along with the said supplementary-counter affidavit, they shall also file copies of the relevant statutory provisions and Government Orders relating to grant-in-aid. They shall also clearly state as to whether the Institution in question can be taken on grant-in-aid list with such number of teaching and non-teaching staff which is lower than the sanctioned strength of teaching and non-teaching staff of the Institution. If the sanctioned strength has actually been lowered, then the aforesaid respondents shall also clearly state the reasons and the statutory provisions empowering them to do so. Copies of relevant statutory provisions/ Government Orders in this regard shall also be filed along with the supplementary counter affidavit.

Put up on 14.12.2017 along with connected writ petitions."

The order passed on 20 December 2017 is extracted below:-

"Heard Dr. H.N. Tripathi, learned counsel for the petitioners and Sri I.S. Tomar, learned standing counsel for the State-Respondents.

Personal affidavits of respondent Nos.2 and 3, both dated 20.12.2017, have been filed today which are taken on record.

Perusal of the affidavits shows that neither the respondent No.2 nor the respondent No.3 have complied with the directions of this court contained in the order dated 07.12.2017 on the following points:-

(a) Along with the supplementary-counter affidavit, copies of the relevant statutory provisions and Government Orders relating to grant-in-aid shall also be filed.

(b) It shall be clearly stated as to whether the Institution in question can be taken on grant-in-aid list with such number of teaching and non-teaching staff which is lower than the sanctioned strength of teaching and non-teaching staff of the Institution.

(c) If the sanctioned strength has actually been lowered, then the reasons and the statutory provisions empowering them to do so, shall be clearly stated.

In para-7(c) of the personal affidavit of respondent No.2, it is admitted that the Deputy Director of Education, III Region, Bareilly had passed the order dated 31.08.1992 and thereby created two more posts of L.T. Grade Teachers and two posts of IV Class employees for the institution although by Government Order dated 09.12.1986, a ban was imposed on creation of posts. It is stated in para 7(d) that the aforesaid four posts were created against the Government Order dated 09.12.1986. Based on these allegations, it has been stated in paragraph-7(e) of the personal affidavit that thus out of 22 posts, only 18 posts were created in the institution in question. The respondents have thus not recognized the two posts of L.T. Grade Teacher and two posts of Class IV employees which were created in the institution in question by order of the Deputy Director of Education, III Region, Bareilly dated 31.08.1992. No information has been disclosed in the affidavit that what action was taken against those officers who created the post after the Government Order dated 09.12.1986 in the institution in question and other institutions. It has also not been disclosed in the affidavit that in other institutions where posts were created subsequent to the G.O. dated 09.12.1986, have been taken on grant-in-aid list with such created posts or in all such cases, the posts subsequently so created, have been ignored. That apart, the Government Order dated 09.12.1986 does not reflect that a complete ban on creation of post was imposed.

Let personal affidavit in the form of supplementary counter affidavit be filed by the respondent Nos.2 and 3 within two weeks.

Put up on 04.01.2018 before the appropriate court along with connected writ petitions."

Upon noticing the issue which had been raised and noted in those orders, this Court on 22 January 2020 encapsulated the principal issues which appear to arise and fall for consideration in the following terms:-

"The Court notes that detailed orders have been passed by a learned Judge on 07 December 2017 as well as 20 December 2017. Notwithstanding the issues which stand flagged in those orders, the Court notes that undisputedly the number of Class-IV posts which stood sanctioned in respect of the institution prior to its take over on the grant in aid list was seven and in terms of the Government Order of 27 October 2004, the number of Class-IV posts came down to five. That however does not detract from the admitted position which is evidenced from the Managers Return appearing at page 80 where both the petitioners are shown to have been appointed prior to all other Class-IV employees whose details have been setforth in paragraph 5 of the counter affidavit filed by the Principal purporting to be on behalf of the respondent nos.1 to 4. The Court notes that presently there is no dispute with respect to the appointment of the petitioner no.1 on 22 January 1979 and the petitioner no.2 on 15 September 1992. The inclusion of their names in the Managers Return is also not disputed. There is also no dispute that their appointments were duly approved and that they were working in the institution prior to the issuance of the Government Order of 27 October 2004.

Consequently the respondent no.3 is hereby commanded to produce on the record of this petition a fresh order dealing with the claim of the petitioners bearing in mind the observations entered above.

List on 10 February 2020. "

Pursuant to the last order passed, the Director of Education has through the Chief Standing Counsel placed an order dated 10 February 2020 on the record. That order for the purposes of identification is marked as 'X'. Before proceeding to deal with the merits of the claim as laid by the petitioners, the Court is at the outset constrained to observe that the Director, Education has failed to either notice or deal with the issues which were flagged in the order of 22 January 2020. The order which he chose to pass and frame pursuant to the directions issued on 22 January 2020, are merely repetitive of the stand taken earlier and embodied in the impugned orders. In that sense, the Court has no hesitation to record and hold that there has been an abject failure on the part of the Director, Education to apply his mind.

Reverting then to the record as it exists, it is undisputed before the Court that while the petitioner no.1 was appointed on 22 January 1979, the petitioner no.2 came to be appointed on 15 September 1992. Their names were also duly included in the Managers Return which has been appended at page 80 of the paperbook. The names of the two petitioners appear in priority to the other Class-IV employees who are stated to have been engaged in the institution and were working on the date when the order for taking that institution on the grant-in-aid list came to be passed. The respondent institution appears to have proceeded on the basis that it was entitled to appoint seven persons in the Class-IV cadre. The State however while passing the order of 27 October 2004 took the stand that only five sanctioned posts in the Class-IV cadre could be recognised to exist. The principal question which therefore falls for determination is whether the petitioners were liable to be excluded from the benefits flowing from the extension of the facility of grant-in-aid.

Assuming that two surplus hands had been employed by the Management and that the number of Class-IV staff was to be restricted to five, it was incumbent upon the respondents to consider which of the existing Class-IV employees were liable to be declared as surplus. As is evident from the Managers Return, both the petitioners had been appointed prior to the other Class-IV employees and were clearly senior. The respondents, as noted hereinabove, appear to have been swayed by an affidavit purported to have been filed by the Manager on 16 June 2004. That affidavit was clearly at variance with the documents appearing at page 80 of the paperbook. The respondents, even though that discrepancy was ex facie evident, do not appear to have posed any query to the Management in this regard. No independent enquiry also appears to have been undertaken in order to ascertain the persons actually working in the Class IV cadre on the relevant date. The Managers Return has been ignored merely on account of the subsequent affidavit filed by the Manager which too fails to explain the evident discrepancy.

The stand of the Management may also be evaluated in light of the affidavit which has been  filed on its behalf in these proceedings. In paragraph 37 of the affidavit filed, it has been stated that both the petitioners were appointed in accordance with law, their appointments duly approved by the respondent no.4 and that they have continually worked in the institution in question. The Manager asserts that the grant-in-aid Committee of the State Government illegally reduced the sanctioned strength of Class-IV employee and it is consequent to that the name of the petitioners came to be excluded.

Despite the categorical orders passed and queries framed, the Court notes that the State respondents have neither disputed a valid appointment having been made in favour of the petitioners nor do they dispute their working and existence in the institution on the date when the grant-in-aid order came to be passed. The Managers Return appearing at page 80 which clearly evidences the appointment and continuance of the petitioners in the institution has also not been denied.

Regard must also be had to the fact that this Court on 20 December 2017 had noticed the submission addressed on behalf of the State that two posts in the Class IV cadre had been wrongly sanctioned and in violation of the ban which stood imposed by the Government Order of 9 December 1986. It becomes relevant to note that the two additional posts in the Class IV cadre came to be created and sanctioned by an order of the Deputy Director on 31 August 1992. The petitioner no. 1 had admittedly come to be appointed in 1979 and thus much before the passing of that order. The Court in that order had further raised a pointed query regarding whether all posts created in violation of the Government Order of 9 December 1986 had been discounted while taking institutions on the grant in aid list. The affidavit dated 6 January 2018 filed in response to this order remains silent in this regard. In any case the Court had noted that the Government Order in question could not be read as having imposed a complete ban on the creation of posts.

In summation the Court is of the considered view that a mere affidavit subsequently filed allegedly by the Manager could not have detracted from the factum of the appointment of the petitioners here in 1979 and 1992. The claim of the petitioners who are entitled to be extended the benefits of grant-in-aid cannot be left to the wagaries of an affidavit that the concerned Manager may choose to file before the State respondents. It was clearly incumbent upon the State to independently examine and ascertain the correctness of the disclosures made by the Manager in his affidavit. The respondents also do not hold that the details as appearing in the Managers Return did not depict the true and correct position as obtaining when the grant in aid order came to be passed. Even if the number of posts in the Class IV cadre were to be treated as 5, the respondents have proferred no explanation why the petitioners who were the senior most in that cadre were not included in the list of staff taken over at the time of extension of benefits of grant in aid. In light of the aforesaid facts which emerge from the record, it is evident that the name of the petitioners have been wrongly excluded by the respondents.

The grant of relief to the petitioners however would not necessitate the order of 27 October 2004 being quashed in its entirety as is claimed in the writ petition. The ends of justice would merit a suitable writ being issued commanding the State respondents to extend all requisite benefits to the two petitioners here taking into account their admitted appointment and continuous working in the institution up to the stage when the grant-in-aid order came to be passed.

Accordingly and for the reasons aforenoted, the petition is allowed. The impugned order dated 31 January 2012 is hereby quashed. The order of 27 October 2004 shall be liable to be read in light of the observations entered hereinabove. The petitioners are held entitled to all consequential benefits.