ASHWANI KUMAR MISHRA,J. - (1.) Petitioner had earlier approached this Court by filing Writ Petition No.39950 of 2007 in respect of his grievance relating to payment of salary, which was dismissed. A Special Appeal No.1345 of 2010 thereafter was filed, which was disposed of on 19.2.2013. Operative portion of the order passed in special appeal, dated 19.2.2013, is reproduced hereinafter:- "We have heard Sri Ajay Bhanot for the appellant. The cause shown for delay and the absence of the counsel on the date fixed for hearing shown, is sufficient. The order dated 18.10.2012, dismissing the Special Appeal for want of prosecution is recalled. The Special Appeal is restored to its original number and was heard. This intra court appeal has been filed against the order of the learned Single Judge dated 20.07.2010, dismissing the writ petition of the petitioner-appellant. The Court found that the petitioner was not appointed on any sanctioned post. The subject of 'Biology' was recognized in the institution.The petitioner was appointed on part-time basis, to teach the subject in the institution. In the counter affidavit, filed in the writ petition, it is stated that recognition for the subject was granted by the Madhyamik Shiksha Parishad, Meerut Region, Meerut by order dated 21.12.1990, with the condition that for the purpose of imparting education, for running the newly recognized subject, the entire financial burden will be borne by the institution in question. It is further stated in the counter affidavit that for the purpose of appointment of teachers as part-time teacher, the responsibility will be undertaken by the institution in question. In the recognition letter dated 21.12.1990, it is clearly stated that for imparting eduction for running a new subject, the responsibility for the purpose of payment etc would be bear by the institution itself. The Court observed that in the event, the State Government proceeds to take any decision, with regard to creation of post, it shall be open to the authorities, to consider the grievance of the petitioner or of the institution, as the case may be. Sri Ajay Bhanot has relied on a Division Bench of the Court in Rajesh Yadav and another Vs. Director of Education (Madhyamik) U.P. Allahabad and others [2008 (4) ESC 2406], and a Full Bench decision in Gopal Dubey Vs. District Inspector of Schools, Maharajganj and another [1999 (1) UPLBEC 1]; He also relies on the Supreme Court decisions in Chandigarh Administration and another Vs. Rajni Vali (Mrs.) and others [(2000) 2 SCC 42] and Lal Bahadur Shastri Smarak Junior High School and another Vs. State of U.P. and others [2002 (2) UPLBEC 1840]. In all these judgments, the Courts have taken into consideration the plight of teachers who are appointed, to teach the recognized subjects, and are not being considered for payment of salary in regular scale. In this case, learned Single Judge has observed that if the State Government proceeds to take decision with regard to creation of post, the grievance of the petitioner shall be considered by the authorities. Learned counsel for the petitioner-appellant submits that the once the subject has been recognized, the post should have been sanctioned by the respondents, and the petitioner should have been considered for payment of salary in regular pay scale on the sanctioned post. The sanction of posts is a part of financial implication and budgetary exercise by the State Government. There may be many teachers, who are working on ad hoc basis, teaching recognized subjects. Neither the petitioner, nor the respondents have placed any data, as to how many such posts have been sanctioned for the recognized subjects, and whether the petitioner falls in any of criteria laid down by the State Government for sanction of posts, for payment of salary. We, however, find it appropriate to direct the State Government that the consideration for creation of post on which the petitioner is teaching in the institution should be made expeditiously, and if possible to the competent authority in the State Government. With the aforesaid directions, this Special Appeal is disposed of."
(2.) It is pursuant to this order that the claim of petitioner has been examined and rejected by the State Government vide order impugned dated 21.5.2013. The order impugned records that since institution concerned i.e. Chaharwati Inter College, Akola, Agra, has been upgraded to Intermediate level under Section 7-A(a) of the U.P. Intermediate Education Act, 1921, as such salary has to be paid only by the Management out of his own resources and the State Government has no obligation to pay the salary to petitioner. The order has been challenged primarily on the ground that upgradation under Section 7-A(a) of the Act of 1921 was made in 1991 and the petitioner has been continuing ever since then as a teacher in the institution. Submission is that the provisions under Section 7-A(a) of the Act of 1921 is temporary in nature and the State is expected to create regular post, inasmuch as the temporary upgradation cannot be allowed to continue indefinitely. Reliance is placed upon a judgment of this Court in Rana Vijendra Pratap Singh Vs. State of U.P. and others, reported in 2019 (2) ADJ 542. Attention of the Court has been invited to observations made in para 49 of the judgment, which is reproduced hereinafter:- "49. Before concluding it would be necessary to invite immediate attention of the State Government to certain important aspects which require consideration at its end. First and foremost it is emphasized that U.P. Act No.18 of 1987 permitted employment of part-time teachers by the Management under Section7-AA, for imparting instructions in any subject or group of subjects or for higher classes or of an existing class for which permission is granted under Section 7-A, from its own resources, only as an interim measure. Some mechanism has to be evolved by the State for recruitment of regular teachers against it as the interim measure cannot continue indefinitely. More than three decades have otherwise gone by but the interim arrangement continues. Part-time teachers engaged under Section 7-AA by the private Managements although possess minimum qualification prescribed for regular teachers and are also performing functions of a regular teacher yet they are invariably paid much lesser salary and have also to face naked hire and fire policy without much safeguards. The State must evaluate as to whether such teachers would be able to provide quality education to the students. Desirability of having two different set of teachers drawing different salary and governed by different set of rules, in the same institution, may also be examined." It is further pointed out that a bunch of special appeals filed against the judgment in Rana Vijendra Pratap Singh (supra) has also been dismissed on 13.8.2019 and the judgment of the learned Single Judge has been upheld. It is contended that in view of the observation made in Rana Vijendra Pratap Singh (supra), petitioner's claim is also liable to be considered.
(3.) Learned Standing Counsel submits that the observation made in para 49 of the judgment in Rana Vijendra Pratap Singh (supra) would not create any right in favour of the petitioner to seek appointment, inasmuch as the observation contained in para 49 is to State Government to evaluate whether temporary arrangement made is liable to be continued indefinitely and to take an appropriate decision.;