Ram Kumar Agarwal vs State of U.P. and Others

D.K. Seth, J.—The Petitioner was appointed as L.T. grade teacher in Sri. Gulab Rai Inter College on 2.8.1960. Subsequently, by an order dated 21.5.1983 along with two other persons, the post of L.T. grade teacher held by the Petitioner was upgraded In the scale of Rs. 1,650-1,280 which is the scale of Lecturer with effect from 1.7.1983. By an order dated 2.7.1988, the Additional Director, Madhyamik, U.P. cancelled the said upgradation, which is Annexure-2 to the writ petition. In the said order, it was pointed out that three posts were upgraded, one of which was held by the Petitioner. According to the said order, the District Inspector of Schools did not have any authority to create posts in view of Section 16E(10) of the Intermediate Education Act, therefore, the upgradation of the post of the Petitioner was cancelled.

MR. V.K. Singh, learned Counsel for the Petitioner attacked the said order on two fold grounds:

The first ground was that when by one order three posts were upgraded, only one out of them cannot be cancelled by singling out the Petitioner alone allowing the other two persons to reap the benefit of the said order despite the finding that the District Inspector of Schools did not have jurisdiction to do so.

Second contention of Mr. Singh was that the upgradation of the post was not a creation of post which is otherwise forbidden by reason of Section 9 of z, neither the same is hit by the provisions of Section 16E(10) of the U.P. Intermediate Education Act. Relying on the definition of ''teacher'' given In the Payment of Salaries Act, Mr. Singh contends that the approval is with regard to the post, but not with regard to promotion or upgradation there of.

In paragraph 15A of the writ petition, it has been specifically stated that the other two candidates have been allowed to continue while that of the Petitioner has been cancelled. The said paragraph 15A of the writ petition has been dealt with in the counter-affidavit in paragraph 9 where the said statement has not been denied. Nothing has been brought to the notice of this Court, as to whether the other two orders have also been similarly cancelled. It was the duty of the State-Respondent to disclose the fact. If the two other appointments were also cancelled. learned Counsel appearing on behalf of the Additional Director, Madhyamik has not contended that the other two appointments were also cancelled.

As relied on by Mr. V.K. Singh on the decision in the Case of Sengara Singh and Others Vs. State of Punjab and Others, , which has laid down that In case of mass dismissal, the reinstatement of persons through arbitrary picking and choosing is violative of Article 14, it appears that in the present case just reverse has been done in respect of an order whereby three posts were upgraded and by arbitrary picking and choosing only that of the Petitioner was cancelled. Applying the analogy of the said ratio decided in the Case of Sengara Singh (supra), the present order cannot be sustained, if the upgradation of the other two posts were not cancelled.

So far as the question of prohibition provided u/s 9 of the Payment of Salaries Act read with Section 16E(10) of the Intermediate Education Act, namely, as to whether the upgradation of a post would amount to creation of a post and appointment of a teacher In the said post, admittedly the post held by the Petitioner was already created and the appointment of the Petitioner was In the said post was already approved. Therefore, the continuation of the Petitioner in the post of L.T. grade teacher was neither hit by Section 3 of the Payment of Salaries Act nor by Section 16E(10) of the Intermediate Education Act. On the other hand, the same was done following the procedure laid down in the said provisions. It was merely an upgradation of an already existing post held by a teacher, therefore, it cannot be said that there was any appointment of the Petitioner in the said post so upgraded within the meaning of Section 16E(10) of the U.P. Intermediate Education Act. Therefore, the mischief of Section 16E(10) of the said Act cannot be attracted.

So far as Section 9 of the Payment of Salaries Act, which prohibits creation of a post, the upgradation of the post does not create a new burden on the State exchequer. It only increases the old burden to certain extent.

Now a person, who is appointed in 1960 and has been serving in the same post till 1983, for over long 23 years, he cannot be compelled to serve the same post for such an Indefinite long period. He should have been promoted long ago to some suitable grade, so as to have some financial benefit. Therefore, the upgradation at best be treated to be a promotion or an upgradation of an existing post, but not creation of the post, particularly when the post of L.T. grade teacher stood abolished on the upgradation thereof and no sanction was given for creation of the said post. Therefore, by no stretch of imagination, it can be said that there was a creation of post as forbidden by Section 9 of the Payment of Salaries Act.

In that view of the matter, the order impugned, being Annexure-2 to the writ petition, cannot be sustained on the ground that upgradation of the post is neither appointment nor a creation of a post in the facts and circumstances of the present case and, therefore, it was not outside the Jurisdiction of the District Inspector of Schools, as has been held in the said order impugned in the present writ petition, being order dated 2.7.1988 contained in Annexure-1 to the writ petition, being memo dated 5.7.1988.

In the result, the writ petition succeeds and is accordingly allowed. The impugned order, contained in Annexure-2 to the writ petition, is hereby quashed. Let a writ of certiorari do accordingly issue. There will, however, be no order as to costs.