SUGRIVE PRASAD PANDEY Vs. DIST INSPECTOR OF SCHOOL

JUDGEMENT

(1.) The appellant was a fourth clerk in the Anand Vidyapitih Uchchatar Madhyamik Vidyalaya, Kakarahi, in district Gorakhpur. He was appointed in the year 1970 and after one year's probation was confirmed in the post. The U. P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971, came into force on August 30, 1971. Section 3 read with Section 10 of this Act provides that the salaries of teachers and other employees of the institutions in respect of any period after March 31, 1971, shall be paid to them by the State Government. Accordingly the salaries of the appellant were paid by the District Inspector of Schools.

(2.) It appears that under a Government order dated August 31, 1966, norms were laid down for appointment of clerks. This order provided that in an institution where there were 700 students three clerks could be employed and if there were more students than 700 a fourth clerk could be employed. It is not disputed that at the time of the appointment of the appellant the number of students in the Vidyalaya was sufficient to justify the appointment of the fourth clerk. Being apparently of the view that the number of students had fallen below the number justifying a fourth clerk the District Inspector of Schools stopped paying the salary of the appellant from the month pf July, 1974. A copy of the pay-bill is annexed as Annexure VI to the writ petition and there against name of the appellant it is stated that he was retrenched as he was above the norms prescribed. The appellant thereupon filed a writ petition in this Court challenging the action of the Inspector of Schools. The writ petition was dismissed by a learned single Judge. Hence this appeal.

(3.) Having heard learned counsel for the parties we have come to the conclusion that the action of the Inspector of Schools cannot be justified. There is no doubt that the initial appointment of the appellant was valid and legal and he was being paid his salary by the Government. If the authorities were of opinion that on account of the decrease in the number of students in the vidyalaya the continuance of a fourth clerk was not justified under the G. O. of 1966 then the only course open was to take action under Section 4 of the Act. Sub-section (1) of Section 4 empowers the Inspector to give a direction to the institution to retrench the employee. Sub-section (2) of Section 4 provides that when such a direction has been given for retrenchment of an employee it shall be complied with by the institution in accordance with the provisions of the Intermediate Education Act, 1921 and the Regulations as the case may be. It appears to us that no direction as contemplated by sub-section (1) of Section 4 was ever issued by the Inspector to the Vidyalaya. Learned standing Counsel has relied on paragraphs 9, 10 and 16 of the counter affidavit to contend that necessary directions had been given to the management. It appears that a general order had been sent by the Director of Education of the Regional Inspector of Schools, Gorakhpur a copy of which is Annexure I to the counter-affidavit, directing that fourth clerks employed in institutions in violation of the norms set out in the 1966 G. O. should not be paid out of Government funds. A copy of this order was sent, according to the counter-affidavit, to the Vidyalaya also. The counter-affidavit categorically states that the payment of the salary to the appellant was stopped under the orders of the Director of Education. From all this it is clear that no direction was given to the Vidyalaya to retrench the appellant as required by sub-section (1) of Section 4. Unless such a direction was given and unless in obedience thereof the services of the appellant were retrenched by the Vidyalaya the Government was bound under Section 3 read with Section 10 (1) to continue to pay the salary of the appellant. There is no provision in the Act which empowers the Inspector without taking recourse to the procedure under Section 4 to stop payment of the salary to any teacher or employee of an institution governed by the Act. It may be pointed out that if a direction had been given under Section 4 (1) and had been disobeyed under Section 4 (2) then any salary which the Government would have been compelled to pay to the appellant could have been recovered by the Government from the Vidyalaya as arrears of land revenue under sub-section (2) of Section 10. Further for disobedience action could be taken under Section 6 by the appointment of an Authorised Controller.