V.M.Sahai, J. - (1.) The short question that arises for consideration in this petition is whether a part-time teacher working in an aided institution and paid honorarium by the management to teach a subject recognised by the Board under Section 7-A of the U. P. Intermediate Education Act. 1921, can claim regularisation and payment of salary even though the post is not sanctioned or created by the Government?
(2.) Sri Mahabir Shiksha Sadan Inter College, Jain Nagar, Meerut (in brief institution) is a recognised and aided institution. By order dated 13.8.1982, permission was granted to the institution, for teaching Science subject in High School, by the Additional Secretary, Board of High School and Intermediate Education, Meerut. And by the same order, the District Inspector of Schools, Meerut (in brief DIOS) was directed to permit the institution to start classes in Science. The DIOS granted permission on 9.10.1985. The management issued an advertisement in newspaper 'Dainik Prabhat' on 28.6.1989 that two assistant graduate lady teachers were required, one for teaching Mathematics and Physics. And the other to teach English and Sanskrit. The petitioner was M.Sc. in Mathematics. She applied in pursuance of the advertisement. She was appointed as assistant teacher by the management on 7.7.1989 on total emoluments of Rs. 450 per month. She joined on 8.7.1989. Thereafter, she passed B.Ed. examination in 1991. She claims that the management again appointed her in 1992 but no appointment letter was issued to her. It appears that a short vacancy, till 15.5.1996, occurred in the institution. The petitioner applied for appointment on 5.5.1995. In interview held on 6.6.1995. she was selected. The management on 10.6.1995 appointed her as assistant teacher (part-time) on the temporary post in the short vacancy that was upto 15.5.1996, on total emoluments of Rs. 550 per month. She claims that papers were submitted to DIOS for payment of salary but no orders was passed. It is also claimed that one lady teacher Smt. Krishna Mukerjee appointed in 1991 for teaching biology was being paid salary from the grant-in-aid by the DIOS. She filed Civil Misc. Writ Petition No. 25175 of 2000 before this Court claiming regularisation of her service as assistant teacher, and salary on the Principle of equal pay for equal work. This petition was disposed of on 25.5.2000 permitting the petitioner to make a representation before the DIOS for regularisation and payment of regular pay scale. And the representation was to be decided within a period of three months. This order was served on the DIOS on 13.6.2000. It is alleged that after opening of the college, the petitioner was permitted to discharge her duties from 1.7.2000. But she was not permitted to sign from 24.7.2000. In the meantime, the management issued an order purporting to appoint her from 1.7.2000. She was pressurised to sign this appointment letter. She did not sign it. She was not assigned any duty from 7.8.2000. She made a representation to DIOS on 9.8.2000 that the management is not permitting her to discharge her duties. She filed Civil Misc. Writ Petition No. 38018 of 2000 for a direction to the management to allow the petitioner to work as assistant teacher in Mathematics and Science in the institution and pay her salary. In Writ Petition No. 38018 of 2000 counter-affidavit was filed by the Principal of the institution. It has been filed as Annexure-11 to this writ petition. In paragraph 11 of the counter-affidavit it has been stated after permission to start classes in science subject was granted without any grant-in-aid, therefore, the management is employing part-time teachers who are being paid honorarium by the management from its own resources. It was stated that U. P. Secondary Education Services Commission and Selection Boards Act, 1982 (in brief U. P. Act No. 5 of 1982, does not apply to part-time teacher. In paragraph 12 of the counter-affidavit it has been stated that petitioner was never paid honorarium for entire session. In 1989-90 and 1990-91 session, she was given assignment only for 10 months. In 1992 and 1996, her assignment was only for 9 months. It was further stated that the petitioner was given assignment on a fixed honorarium. No regular appointment could be made due to non-sanction of post of Science teacher. In paragraph 19 of the counter-affidavit, it has been stated that petitioner is not working since 24.7.2000 in the institution. Appointment letter was issued to her on 1.7.2000 as part-time teacher for 2000-2001 session but she did not accept it and insisted that papers for regularisation of her service be sent to the DIOS. The petitioner was informed that neither the post of Science teacher has been created nor the management is receiving grant-in-aid, therefore, her claim for regularisation could not be recommended. The DIOS by order dated 18.9.2000 has rejected the representation of the petitioner on the ground that the post on which the petitioner was working, was neither created nor sanctioned. The management was making the payment of salary to her from its own resources, therefore, she was not entitled for any salary. It was further mentioned in the order that the petitioner was working as part-time teacher in the institution and such teachers are appointed in July or August of the session and their services are terminated in May, at the end of the academic session. They are not paid any salary for the month of June. The provisions of U. P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees} Act. 1971 (in brief Salaries Act) and U. P. Act No. 5 of 1982 are not applicable to the petitioner and she is not entitled for any salary. It was further held that the petitioner is not entitled for regularisation of her service as assistant teacher, therefore, no approval could be granted. It is this order passed by the DIOS on 18.9.2000 that has been challenged in this petition.
(3.) Sri Ashok Khare, the learned senior counsel assisted by Sri Vinod Kumar Singh, the learned counsel appearing for the petitioner has vehemently urged that the petitioner has been working in the institution for about eleven years and she is entitled for payment of her salary as other teachers in; the institution are being paid salary from the grant-in-aid of the institution whereas the petitioner is the only teacher in the institution who is not being paid salary from the grant-in-aid received by the Government, therefore, non-payment of salary to the petitioner is discriminatory in view of decision of the Apex Court in Chandigarh Administration and others v. Rajni Vali (Mrs.). (2000) 2 SCO 42. The learned counsel urged that one lady teacher Suit. Krishna Mukerjee was also appointed in 1991 for teaching Biology to High School classes. She has been sanctioned payment of salary by the DIOS, therefore, the petitioner could not be discriminated and is entitled for payment of regular salary. The learned counsel further urged that Sections 7A and 7AA of the U. P. Intermediate Education Act, 1921 [in brief Act) came into force on 14.10.1986 but the recognition for teaching science subject in the institution having been granted on 13.8.1982, with effect from 1984, and this being prior to the enforcement of Section 7AA and Section 7A of Act, the petitioner could not be treated to be a part-time teacher under these provisions and the DIGS committed an error in holding that the petitioner was a part-time teacher not entitled for any salary. The learned counsel urged that even if it is found that the petitioner is not entitled for payment of salary from grant-in-aid received from Government, her service is liable to be regularised under Sections 33A, 33B and 33C of the U. P. Act No. 5 of 1982 as the petitioner has been working in a substantive vacancy since 1989. He further urged that even if the petitioner is a part-time teacher she could not be disengaged or terminated in violation of Section 16G of the Act and Chapter III of the Regulations framed under U. P. Intermediate Education Act. 1921 (in brief Regulations). He relied on the decision of this Court in Smt. Shashi Kala Singh v. District Inspector of Schools. Maharajganj and others, 2000 (3) UPLBEC 2327 and Dharmendra Pal Dwivedi v. District Inspector of Schools and another, 2000 (2) LBESR 790.;