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Judgment
S. K. Phaujdar, J.—The petitioner claims to be a Sanskrit teacher in Janta Kisan Vidyalaya Junior High School, Amolar, District Farrukhabad. He has prayed for issuance of a writ of mandamus against the respondents commanding them to pay him his entire salary from 171985 till date after adjusting a sum of Rs. 11,602 paid to him during the session 198889. He has also prayed for a direction that his future salary, be paid regularly in the admissible scale.
It is the case of the petitioner that the District Basic Shiksha Adhikari (for short, DBSA), Farrukhabad, had addressed a letter to the Manager of the concerned institution on 26111989 informing him that in terms of the direction of the Director of Education (Basic) in his letter dated 16101985 one post of Sanskrit teacher under the three language formula had been created in the institution w.e.f. July, 1985 to remain effective up to June, 1987, in the scale of Rs. 210330. After the creation of the post, the petitioner was appointed as a Sanskrit teacher in the institution by the Committee of Management and he had been working as such since July, 1985. Approval was accorded to the appointment of the petitioner as Sanskrit teacher by the DBSA by his letter dated 831988 for the sessions 198586 and 198687. The petitioner continued to work and approvals were given from time to time for the sessions 198788,198889 and 198990. He was paid salary only for the session 198990 for a sum of Rs. 11,602 withholding certain part of the salary due to him w.e.f. 1785. His services were further approved for the sessions 1990 1991 and 199192 and the management of the institution constantly pressed the DBSA, Farrukhabad, for sending grants for the three languageformula Sanskrit teacher so that the concerned teacher could be paid his salary w.e.f. 1785. Unfortunately, no such grant had been sanctioned and the action of the DBSA was only arbitrary and discriminatory.
It was averred in the writ petition that under an identical situation one Vijai Singh, a Sanskrit teacher in another institution in the same district, who also was not paid his salary since 171985 had filed CM. Writ Petition No. 27591 of 1989 and the writ petition stood allowed by Hon. A. P. Singh, J. on 2621993 and the respondents had been directed to pay the salary within a certain specific time. This judgment of the court was annexured as Annexure8 to the writ petition.
The petitioner prayed for the reliefs as aforesaid and required a direction for payment after adjusting the payments already made.
The DBSA came up with a counter affidavit in answer to the claim of the petitioner. The answering respondent did not accept that any letter dated 26111989 was issued from his office. It was not denied that the appointment of the petitioner for the sessions 198586 to 198990 was approved by the answering respondent. It was asserted that the information of appointment was received later in the office of the answering respondent, but the appointment of Sri Shiv Pal Singh was approved on 831988, which was precisely the averments of the petitioner. It was stated that the first ever grant was sought for in 1989 and it was duly forwarded to the Director of Education, U. P. Shiksha (Artha1), Anubhag, Allahabad. Due to delayed submission of prayer for grant, no payment could be made in the subsequent budget year. Subsequent demands for grant were forwarded to the departmental authorities and payment was made for the sessions 198889 to 199091. It was accepted that for the rest period, the approval for payment is to come from respondent No. 1 only. It was asserted that the pay for the Sanskrit teacher under the three language formula was to come under the approval of the respondent No. 1 only.
A rejoinder affidavit was filed on behalf of the petitioner asserting that approval of the appointment of the petitioner from time to time had been given by the DBSA himself and the petitioner went on demanding his salary for every year since July, 1985, but the respondents failed to pay the same. It was averred that for the budget year 198990 payment had been made to other institutions of Farrukhabad, but the petitioner was illegally excluded for which the respondents only were liable. Papers were appended to the rejoinder affidavit to show that demand letters for salary for every sessions from 198586 to 199691 were submitted.
No counter affidavit was filed on behalf of the respondents 1, 2 and 4 (management of the institution).
The judgment in Annexure8 to the petition related to a similar claim by one Vijai Singh claiming himself to be a Sanskrit teacher in another institution under the three language formula. For him, the post was sanctioned from time to time and appointment was approved for different sessions but payment was not made. A stand was taken in the counter affidavit of the respondents that the DBSA could not have created the post of a Sanskrit teacher and he had no power to grant approval with retrospective effect. The Hon''ble Judge considered all the aspects of the case and had held that the appointment of Sri Vijai Singh was rightly sanctioned by the DBSA, Farrukhabad, for different sessions and he had the authority to issue the orders for creation of the post. The writ petition was allowed and the first three respondents were directed to treat the petitioner as duly appointed Sanskrit teacher under the three language formula w.e.f. 171985 and to pay him his salary and other emoluments according to law. A direction was given for payment within three months from the date of the order.
The case at our hands tallies exactly in all respects with the decision relied upon by the petitioner. There is no denial in this case that the post was created in terms of a direction of Director of Education (Basic), U. P. Shiksha, Samanya AnubhagII, Allahabad. In terms of the judgment, the DBSA had the competence to create the post and in terms of the averment it was created according to a direction from the higher authorities and, as such, the creation of the post of Sanskrit teacher now occupied by the petitioner may not be challenged. There are further ample materials on record to infer that the appointment of the petitioner was approved from time to time from 198586 onwards and for every academic session separate prayers were made for the grant of payment of salary to the petitioner. It does not appeal to reason why only a part of the sum to the tune of Rs. 11,602 could be paid to the petitioner and the rest could not be paid when for all the sessions the appointment was approved and for all the sessions demand was duly placed. The mere cause of delay in making a prayer for grant as averred in the counter affidavit may not be sufficient to discard the claim of the petitioner who consistently made demands for his salary. Moreover, as per averments made in the rejoinder affidavit, grants were given to other institutions towards the pay of Sanskrit teacher and non payment to the present institution or the present teacher is certainly discriminatory.
The writ petition accordingly stands allowed. The respondent Nos. 1, 2 and 3 are directed to pay to the petitioner his lawful salary from the session 198586 till date, unless the sanction of the post has been withdrawn or unless the approval for any period has not been given. Payment is to be made for all the sums due within three months from today after adjustment of the sum already paid.