Committee of Management, Azad Uchchattar Madhyamik Vidyalaya and Another vs State of U.P. and Others

Rakesh Tiwari, J.—Heard Sri Ashwani Kumar Misra, counsel for the Petitioners, Sri G.K. Singh, counsel for caveator Respondent No. 5 and the standing counsel.

This writ petition has been filed challenging the validity and correctness of the order dated 28.3.2008, passed by the Regional Level Committee, 7th Region, Gorakhpur appended as Annexure-18 to the writ petition.

The Petitioner has sought a writ in the nature of certiorari quashing the aforesaid order as well as a writ in the nature of mandamus directing holding of an independent high level inquiry into the alleged scam of forged and manipulated appointments of 21 teachers attached to the primary section of Azad Uchchattar Madhyamik Vidyalaya, Runuwa, Maharajganj and for punishing the erring persons/ employees/officials of the education department in this regard.

The impugned order has been challenged on the ground that the Regional Level Committee has no statutory basis for its existence, hence it has no jurisdiction in the eyes of law to pass the impugned order which is wholly in excess of the jurisdiction, illegal, unjust and is bad in law and is liable to be quashed ; that, according to the Petitioner, the competent authority to pass an order for single operation of the accounts of the institution under the Payment of Salaries Act, 1971, is the Regional Deputy Director of Education and not the Regional Level Committee ; that neither any direction was issued by the D.I.O.S. u/s 6 (1) of the Act nor was there any disobedience of any such direction, hence necessary ingredients for invoking the jurisdiction u/s 6 of the Payment of Salaries Act were completely non-existent ; that the impugned order has been passed in violation of the provisions of the Act as even notice u/s 2A to the Petitioner committee has not been provided nor any proper reasons have been disclosed. The impugned order, according to the Petitioner, is mala fide having been passed at the instance of the Joint Director of Education only to protect the retired principal-Respondent No. 5 who is said to be related to him and who has not provided details and records with regard to creation of posts, appointment letters and its approval in respect of alleged 21 teachers in the primary section in collusion with him.

It is lastly urged that the Petitioner''s committee has raised bona fide questions in the public interest and for protection of public money, therefore, raising of such questions cannot constitute any act of disobedience by any stretch of imagination for passing the impugned order u/s 6A of the Payment of Salaries Act.

Sri G.K. Singh, counsel for the Respondent, has submitted that earlier the institution had come on the grant in aid list and a question arose as to whether untrained teachers of primary section of the institution, would be entitled to salary or not, and in that respect the Committee of Management had filed Writ Petition No. 31754 of 1997, (Committee of Management Azad Uchchattar Madhyamik Vidyalaya, Runuwa, Maharajganj v. State of U. P. and others), for release of the salaries. The aforesaid writ petition was allowed alongwith Writ Petition No. 6391 of 1991, (Committee of Management Azad Uchchattar Madhyamik Vidyalaya, Runuwa and Ors. v. State of U. P. and another), which was disposed of by the same judgment dated 28.1.1993, in the following terms:

The teachers who are teaching in the institution at present will be paid salary w.e.f. 1st January, 1993. However, with regard to the arrears of the past salary, necessary enquiry will be made by the District Inspector of Schools and thereafter salary shall be paid to such teachers who had been teaching in the primary section.

With the aforesaid direction, the writ petition succeeds and is allowed. There is no order as to costs.

The order will also dispose of Writ Petition No. 6391 of 1991, Committee of Management, Azad Uchchattar Madhyamik Vidyalaya, Runuwa and Ors. v. State of U. P. and another.

Aggrieved State Government went in appeal against the aforesaid order in Special Appeal No. 131 of 1993, State of U. P. through the Secretary, Department of Education, Anubhag-8, Lucknow and Anr. v. Committee of Management, Azad Uchchattar Madhyamik Vidyalaya, Runuwa, Maharajganj and another, which was dismissed on 7.9.1994 with the following order:

This special appeal is directed against the impugned order dated 28.1.1993, passed by the learned single Judge.

After hearing learned Counsel for the Appellants and going through the impugned order, we are of the opinion that the learned single Judge has rightly directed for payment of salary to the teachers w.e.f. 1.1.1993 in addition to conduct necessary enquiry through the District Inspector of Schools in respect of arrears of past salaries. Thus, the interest of both the parties has already been saved. The impugned order, therefore, does not suffer from any error of law apparent on the face of the record warranting interference with the same in special appeal.

The appeal, therefore, has no merits, it is accordingly dismissed. Stay order, if any, is vacated.

Thereafter, the State went in Civil Appeal No. 700 of 1997, State of U. P. and Ors. v. Committee of Management, Azad Uchchattar Madhyamik Vidyalaya and another, before the Apex Court. It appears from the orders of the Apex Court that a report was called for which was submitted on 25.1.1997 regarding inspection of the attached primary section of the institution which was inspected on 7.1.1997. The Apex Court after noticing rival contentions of the parties in its order noted that as per details furnished in the report regarding number of students found in the primary section of the institution on the basis of inspection made on 7.1.1997, a total number of 859 students had been registered, out of which 611 students were present. While disposing of the appeal, the Apex Court observed as follows:

In view of the above report, the question arises: whether the primary section of the Respondent institution should be continued to be attached to the High School or should be detached and whether a separate school is required to be established under the Basic Shiksha Parishad. When we put the question to the learned Counsel for the State whether any separate school has been established in that village, he is unable to give us any information in that behalf. It would be obvious from the report submitted that no other Government school appears to be functioning there. Otherwise, the Inspector would have reported in that behalf.

In view of the fact that more than 600 students as against more the 800 students enrolled, are actually studying in the school, we think that attachment of the primary section from 1970 to the upgraded school of 1974 would be justified. However, with regard to payment of salary, it is not clear from the record whether untrained teachers are entitled to payment of salary ; if so, at what rate and upto what period and whether untrained teachers are required to be appointed under the relevant rules. In the absence of such factual and legal position, it would not be safe to give any direction on that issue. Under those circumstances, we think that appropriate course would be that the District Inspector of Schools, Maharajganj be directed to enquire after notice to the teachers and manager-Respondents to decide whether the payment of salary to the 19 untrained teachers could be made and if so, at what rates, as per Government rules and upto what period and what would be the procedure taken for appointment of untrained teachers in the school as per the existing rules and the procedure. When the report in that behalf is given, the issue of payment of salary to them would be accordingly decided. As regards the two trained teachers, they are required to be paid the full salary as per the Payment of Salary Act, 1971 from the date of their acquiring qualifications or the date of their assuming the charge as teachers whichever is later. As regards the untrained teachers, they are required to be paid after the necessary enquiry is completed. The Inspector of Schools is directed to complete the enquiry within a period of two months from today and then make necessary payment of salary as per the Rules.

The appeal is accordingly disposed of. No costs.

From the aforesaid observations, it is apparent that the matter regarding appointment of teachers etc. and whether students are studying in the school, has received consideration upto the Apex Court. It also appears that the Apex Court was of the view that it would not be safe to give any direction until and unless an enquiry is made.

Sri A. K. Misra, counsel for the Petitioner submits that subsequently enquiry has been appointed by the Commissioner, Gorakhpur Region, Gorakhpur which is still pending consideration.

The matter in respect of the said forged appointment of 21 teachers, which according to the Petitioner were never appointed including the question as to whether there is school building or not or whether students are studying in the school or not, requires adjudication of factual questions on the basis of oral and documentary evidence. According to the Petitioner some children are brought to be shown as students at the time of inspection etc. etc., all are serious questions which can only be resolved after oral and documentary evidence are adduced by the parties in suit before the civil court. Hence, in the opinion of this Court, these facts can best be decided in a suit after the conclusion of the enquiry in pursuance of the judgment which is stated to be pending. In case, the enquiry is not concluded, the Commissioner, Gorakhpur Region, Gorakhpur shall also make spot inspection and look into actual records of appointment etc. before passing any order upon the enquiry report submitted to him.

For the reasons stated above, this Court is not inclined to interfere in the matter.

The writ petition is accordingly dismissed on the ground of alternative remedy as well as on the ground that enquiry pursuant to the order and judgment of the Apex Court is pending and in the circumstances of this case it would not be proper to interfere in the matter at this stage. No order as to costs.