- (1.) The instant writ petition has been filed by the petitioner who was appointed as Assistant Teacher, Sanskrit under Tribhasha Sutra Yojana in Swargeeya Jai Pal Singh Shitla Purva Madhyamik Vidyalaya, Mukharna, Jitauli, District Etah, a recognized Junior High School, under the provisions of U.P. Basic Education Act, 1972. It is pertinent to note that Assistant Director of Education (Basic) by communication dated 14.11.1995, addressed to District Basic Education Officer, Etah, informed him that out of four sanctioned posts of Assistant Teachers in the Institution, one would be for Sanskrit Language under Tribhasha Sutra Yojana. Pursuant thereto, the petitioner was appointed as Assistant Teacher in Sanskrit Language under the said scheme and the approval to his appointment was granted by the District Basic Education Officer, Etah vide his letter dated 7.12.1995 to the Management. It has come on record that for purposes of payment of salary to the petitioner, necessary grant in aid was provided by the State Government on yearly basis, e.g. in the year 1998-1999, a sum of Rs. 48,420/- was sanctioned vide order dated 8.3.2002 and for the year 1995-1996 and 1996-1997, a total sum of Rs. 50,869/- was sanctioned vide order dated 12.1.2004. The case of the petitioner is that although he had taught in the Institution continuously without any break in service, but he was not paid salary for Academic Sessions 1999-2000, 2000-2001, 2001-2002, 2002-2003, 2003-2004, 2006-2007 and 2007-2008. The petitioner therefore approached this Court in Writ Petition No. 36149 of 2008, raising a grievance regarding non payment of his salary. The writ petition was disposed of by order dated 31.7.2008, requiring Director of Education (Basic), U.P., Lucknow to decide the representation of the petitioner within two months. In compliance thereof, the Director of Education (Basic) by order dated 13.2.2009 decided the representation, admitting that the salary of the petitioner for the Academic Sessions 1995-1996, 1998-1999, 2004-2005 and 2005-2006 had been duly paid on basis of grant in aid made available to the Institution. In respect of the remaining years, it has been recorded that the payment could not be made as necessary budget was not made available. It has also been observed that as soon as budgetary allocation is made, the payment would be made.
(2.) The District Basic Education Officer has filed a counter affidavit in which he has also taken the same stand, namely that payment would be made as soon as budget is allocated in that regard by the State Government.
(3.) A separate counter affidavit has been filed by the Joint Director of Education on behalf of the State respondents, in which it is alleged that the Institution being an unaided one, the liability to pay salary to the petitioner was that of the Management. The Government is not responsible for paying salary to the petitioner. On the face of it, the stand taken in the counter affidavit is contrary to what has been recorded in the impugned order dated 13.2.2009 by Director of Education (Basic) himself, while deciding the representation of the petitioner. As noted above, in the said order, it was admitted that in previous years, the salary was paid to the petitioner from the budgetary allocation made by the State Government, specifically for the purposes of disbursement of salary to the petitioner. The order also contains an admission relating to liability of the State Government to make payment for the remaining period. The issue as to whether the State Government is liable to pay salary to the teachers appointed against sanctioned posts in Unaided Institutions under the Triple Language Scheme, is no more res integra, having been decided by a Division Bench of this Court in Special Appeal No. 1287 of 2009 ( State of U.P. and others vs. Smt. Anita Tyagi ), 2010 (6) ALJ 257. The Division Bench after taking into consideration the Triple Language Scheme of 1964 and various Government Orders issued from time to time, recorded its conclusion in paragraph 43 onwards as follows: - "43. The question would be as to whether a teacher appointed to teach the third language under the scheme of 1964 would be a teacher within the sanctioned strength of the institution or not. In the instant case the respondent petitioner was appointed and the letter dated 9th March, 1999 recites that she would be treated to have been approved against the existing one of the four sanctioned posts and it will not be an additional post. It is, therefore, clear that the respondent petitioner has been approved against a sanctioned post. 44. The institution however is not receiving any grant-in-aid in spite of the fact that the respondent petitioner has been appointed under the aforesaid conditions. Once the respondent petitioner has been appointed treating her appointment against one of the existing sanctioned posts then the next question is as to whether the teacher so appointed is not entitled for payment of salary under the 1964 Scheme. 45. The scheme in its opening clauses nowhere creates a distinction of its applicability in relation to the appointment of a third language teacher in an institution between the aided and unaided institutions. It only specifies that the grant which is being extended is for aided institutions. 46. An unaided institution as classified under the Education Code, is an institution which does not receive any assistance from public funds. There is nothing to indicate that the institution is receiving any other form of maintenance grant or aid from the Government. The grant-in-aid, therefore, in such a situation should be construed to mean receiving aid upon having been admitted to the maintenance grant-in-aid by the State Government. The institution should therefore be one which the State Government has accepted as an institution entitled to receive maintenance grant-in-aid. It is then only that the institution can be said to be an aided institution. It is also to be noted that an institution which is aided has salary of the teachers as a major component of the grant-in-aid. The other grants are subsidiary grants. Grant-in-aid in the present context directly relates to the salary of the teachers and therefore an aided institution will have to be construed in that context. 47. The difficulty in cases like the present one has arisen on account of the payments having been released in the past by the State Government itself to unaided institutions and its disbursal has been made by the authorities on their own without there being any misrepresentation or fraud on the part of the teachers or the management of the institution. The State Government and its authorities were itself in doubt and as a matter of fact the communications of the year 2006 noted herein above demonstrate that in spite of these doubts the funds have been released by the State Government in several crores for being paid to such teachers without there being any distinction between aided and unaided institutions. 48. There is one thing clear that after the promulgation of the Government order dated 11th May, 1992, it has been the categorical stand of the State Government that the post of the third language teacher would only be against a sanctioned post. In such a situation there would be not difficulty with regard to the payment of salary to a teacher against a sanctioned post and receiving grant-in-aid. However, an appointment beyond the strength would be an appointment in contravention of the said Government Order and the terms and conditions of recognition. In our opinion, any payment made to such a teacher from the State funds if continued would not be recoverable as there is no fault on the part of the teacher. 49. So far as institutions which are totally unaided, yet a third language teacher has been paid salary, the same would also not become recoverable for the same reasons. The State Government itself has proceeded to continue to make payments and therefore unless the said policy is altered, modified or reversed, such teachers cannot be said to have been paid salary illegally. The payment therefore, can be continued even otherwise if the State Government comes up with a firm and final decision on this score. 50. On record we do not find any final decision having been taken by the State Government except for some clarifications having been issued and therefore the claim of such teachers would be dependent upon any final decision being taken by the State Government in this regard. 51. The Scheme of 1964 was introduced when there were no rules or regulations statutorily controlling the sanctioned strength of teachers and their payment of salary. It was only through executive instructions that such payments were made through grants-in-aid under the Education Code of 1958. The arguments which have been advanced on behalf of the State with the aid of subsequent legislation therefore will have to be clarified and enunciated in the form of an appropriate decision keeping in view the objects and reasons for payment to teachers under the Third Language Scheme. 52. We, therefore, dispose of this appeal with liberty to the State Government to take a decision in relation to the payment of salary to teachers of the Triple Language Formula in unaided institutions in the light of that what has been indicated above and the judgment of the learned Single Judge would stand modified accordingly. The decision will be taken not later than three months from today and the consequential action shall follow immediately thereafter .";