HARI MANGAL SINGH Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned counsel for the petitioners at the admission stage on several dates. Petitioners have also filed three supplementary affidavits. This writ petition has been filed by Hari Mangal Singh, Deenanath and Ganesh Prasad Shukla, who claim to be validly appointed teachers in Janta Junior High School Gurusandi Mirzapur on 25.06.1985, 25.12.1985 and 25.02.1987. In the institution in question, several teachers and other employees had been appointed over and above the sanctioned strength, hence their appointments were cancelled/they were not paid salary under U.P. Junior High School (Payment of Salaries of Teachers and other employees) Act, 1978 (U.P. Act No.6 of 1978). Accordingly, they filed three writ petitions in this Court being writ petitions No.13306 of 1989, 17449 of 1989 and 13324 of 1989. Last writ petition had been filed by the three petitioners of this writ petition. The first two writ petitions were dismissed by me on 19.03.2009. The earlier petition filed by the petitioners of this writ petition, i.e. W.P. No.13324 of 1989, was dismissed on 09.12.2003. However in special appeal, the said judgment was set aside on 08.09.2006 and Director was directed to conduct an enquiry. Thereafter, Director decided the matter on 21.05.2007 against the petitioners. Through this writ petition, order of the Director of Education (Basic) dated 21.05.2007 has been challenged. My entire judgment dated 19.03.2009 (supra) is quoted below: "Both the petitioners of the first writ petition claim to have been appointed as peons in Janta Junior High School, Gurusandi, Mirzapur which is a recognised Junior High School and salary to its teachers and employees is paid under U.P. Junior High School (Payment of Salaries of Teachers and other Employees) Act 1978 (U.P. Act No.6 of 1979). Petitioner no.1 of the said writ petition claims to have been appointed on 15.9.1981 and petitioner no.2 claims to have been appointed on 28.9.1986. There are 8 petitioners in the second writ petition. Petitioners nos. 1 to 6 of the said writ petition claim to have been appointed as teachers in the same school and petitioners nos. 7 and 8 claim to have been appointed as peons. The appointments are stated to be of 1982, 1985, 1986 and 1987. It has also been stated that appointments were approved by District Basic Shiksha Adhikari, Mirzapur. Lekhadhikari in the office of B.S.A., Mirzapur wrote a letter on 15.6.1989 to Manager/Principal of the School intimating therein that Assistant Director of Education, Varanasi through letter dated 24.1.1987 had sanctioned only 21 posts of teachers and employees of the school in question consisting of one head-master, sixteen Assistant teachers, one clerk and three peons. However, at that time salary was being received for 34 persons who were working including one head-master, twenty five teachers, two clerks and six peons. In the second writ petition an interim order was passed on 21.12.1989 staying the operation of order dated 15.6.1989 and it was directed that petitioners should be paid salary. Similarly in the first writ petition stay order was granted on 27.6.1989 and 21.12.1989. Thereafter both the petitions were dismissed in default. First writ petition which was dismissed in default on 30.9.2003, was restored on 5.12.2008. Second writ petition was dismissed in default on two or three occasions and thereafter restored. The last dismissal in default order was set aside on 28.07.2008. Some other teachers and other employees of the same institution had also filed writ petition no.13324 of 1989 which was dismissed on merit on 9.12.2003. Against the said order special appeal no. of 2004 was filed. Said special appeal was disposed of on 8.9.2006 directing the Director to conduct an enquiry regarding sanctioned strength and validity of appointment of the petitioners of the said writ petition who were three in number Ganesh Prasad Shukla, Hari Mangal Singh and Deena Nath. The Director called for a report from the B.S.A. which was supplied. Thereafter the Director decided the matter on 21.5.2007. The orders passed on the special appeal and of Director have been annexed alongwith amendment application filed in the second writ petition which has been allowed. As the petitions had been dismissed in default, hence D.I.O.S. passed an order on 03.03.2008 directing that no salary shall be paid to the petitioners. Said order has also been challenged through amendment application filed in the second writ petition. In view of order passed by Director on 21.05.2007, it is quite clear that petitioners of both the writ petitions along with three other teachers and employees, who had filed Writ Petition No.13324 of 1989, were appointed over and above the sanctioned strength. Accordingly, there is no question of payment of salary to them by the Government. Their appointments were illegally approved by District B.S.A. Dealing with similar situation in High Schools and Intermediate Colleges, in a full Bench authority of this Court reported in Gopal Dubey Vs. D.I.O.S., Maharajganj and another, 1999 (1) UPLBEC 1, it has been held that State Government is not at all liable to pay salary to teachers and other employees appointed over and above the sanctioned strength in privately managed recognised and aided schools and colleges. Accordingly, there is absolutely no merit in the writ petitions, hence writ petitions are dismissed." Learned counsel for the petitioners has vehemently argued that as petitioners were appointed after sanction of additional posts, hence they must be treated to be validly appointed teachers against the newly sanctioned posts and the teachers, who had earlier been appointed by the management over and above sanctioned strength at that time should be treated to have illegally been appointed. I do not agree with this contention. If some teacher or other employee is appointed over and above the sanctioned strength and in other regards the appointment is quite valid then after sanction of additional post he will have to be adjusted first before making fresh appointment. Assistant Director of Education, Varanasi, through letter dated 24.01.1987 had approved/sanctioned only 16 posts of assistant teachers, however at that time salary was being received by 25 teachers. Accordingly, only those 16 validly appointed teachers are to be paid salary, who were appointed first. It is not the case of the petitioners that when they were appointed, there were less than 16 assistant teachers in the school in question. Accordingly, there is no error in the impugned order, hence this writ petition is dismissed.