SUBASH YADAV Vs. STATE OF U P

JUDGEMENT

(1.) D. P. Mohapatra, CJ. In these appeals, filed under Chapter VIII, Rule 5 of the Rules of Court, the appellants have assailed the judgment rendered by a single Judge of this Court on 7-12-1995 in Writ Petition No. 16902 of 1992 dismissing the writ petition. The operative portion of the judgment read : "in view of the above, the instant petition is devoid of any merit and the petitioners are not entitled for any relief whatsoever. The petition is dismissed accordingly. However, it is clarified that under the impugned order of Deputy Director of Education dated 10-9-1992 those persons who have been found eligible for payment of salaries under the U. P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 shall no be adversely affected by this order. "

(2.) THE teaching and non-teaching staff of Bhagwan Parasuram Dham Laghu Madhyamik Vidyalaya Sohnag, Salempur, district Deoria, 38 in number, filed the writ petition seeking a writ of mandamus directing the respondent to pay salary to them alongwith arrears from 1-4-1991, that is, the date on which the Institution was brought on the grant-in-aid list of the State Government. THE State of U. P. through Secretary, Education Department, Government of Uttar Pradesh, Lucknow, the Deputy Direc tor of Education, VII Region, Gorakhpur, the District Inspector of Schools, Deoria, the Committee of Management of the College and its Principal were arrayed as opposite-par ties in the case. THE gist of the case of the writ petitioners was that they were appointed on regular basis in posts sanctioned on different dates and their appointments were approved by the District Inspector of Schools. At the time of their appointment the Institution was not received any grant-in-aid from the State Government. It became an aided Institution when effect from April, 1981. On the Institution becoming aided, the writ petitioners claimed payment of salary by the District Inspector of Schools under the provisions of U. P. High School and Intermediate Colleges (. Payment of Salaries of teachers and other Employees) Act, 1971 (hereinafter referred to as the Act ). Since the authorities paid no heed to their claim, the writ petitioners filed the writ petition seeking the relief noted above. authorities paid no heed to their claim, the writ petitioners filed the writ petition seeking the relief noted above.

(3.) THE thrust of the submissions of Sri T. N. Tewari, learned counsel for the appellants, was that the learned single Judge erred in rejecting the claim of salary of the appellants on the ground of invalidity of their appointments inasmuch as validity otherwise of their appointments was never an issue in the case. According to Sri Tewari neither the respond-dent had raised the question of validity of the appointments nor was it a ground stated in the order of the Deputy Director of Education dated 10th September, 1992 (Annexure 1 to the supplementary-affidavit) for declining to accept the claim of salary of the appellants. Sri Tiwari further submit ted that the main reason stated in the order of the Deputy Director of Education for rejecting the claim of the appellants was that their appointments were made after 14-10- 1986, the date on which Section 7-AA was introduced in the U. P. Intermediate Education Act, 1921 by U. P. Act 18 of 1987 ; therefore the appellants advanced arguments on the applicabi lity or otherwise of Section 7-AA in their case. According to Sri Tewari Section 7-AA, which makes provision for employment of part time teachers or part time instructors, has no application to the appellants since they are neither part time teachers nor instructors but hold regular and substantive appointments. Sri Tewari further, pointed out that the learned single Judge in his judgment has not recorded any finding on the question of applicability or otherwise of Section 7-AA, which was the main ground urged before him; instead he has proceeded to consider the case on an altogether new point, that is, validity of appointment of the appellant and has made observation, gist of which has been noted above, which submits Tiwari, are wholly un called for. Lastly, Sri Tewari, submitted that if the learned single Judge had any doubt about the validity of the appointments, then he should have decided the question of applicability of Section 7- AA to the case and remitted the matter to the Deputy Director of Education.