Ashok Bhushan, J. - (1.) THESE two Special Appeals have been heard together and are being decided by this common judgment. The Special Appeal No.263/2005 is being treated to be the leading appeal since the decision in Special Appeal No.263/2005 shall govern the decision in Special Appeal No. 264/2005.
(2.) WE have heard Shri P.N. Saxena, learned Senior Advocate assisted by Shri Amit Saxena for the appellants, Shri Swapnil Srivastava for the respondent no.4 and Shri Neeraj Upadhyay, learned Additional Chief Standing Counsel for the State. Brief facts giving rise to the Special Appeal No.263/2005 are; Adarsh Vidya Mandir, Junior High School, Chapunna, District Farrukhabad was recognised as a Junior High School in the year 1974. The appellant Desh Raj claims to be appointed as an untrained Teacher with effect from 01/7/1974 in the aforesaid Junior High School. After enforcement of Uttar Pradesh Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978, ( hereinafter called the "Rules, 1978") the Basic Shiksha Adhikari (hereinafter referred to as "BSA") is said to have issued a letter on 07/9/1979 approving 1 to 32 teachers and employees of the institution who were appointed between 01/7/1974 to 30/7/1977. The Committee of Management of the Junior High School submitted an application for upgradation of the institution as High School. In the papers submitted for upgradation of the institution, name of 9 teachers were mentioned and the name of the appellant was mentioned as Clerk having been appointed from 01/7/1974. The District Inspector of Schools, Farrukhabad (hereinafter referred to as "the DIOS") verified the details submitted by the Management and forwarded the same to the Secretary, Madhyamik Shiksha Parishad, Uttar Pradesh for recognition of the institution as High School vide its letter dated 28/8/1979. The institution namely; Adarsh Vidya Mandir was upgraded as High School in the year 1981. The appellant claims to have obtained BTC Training in the year 1983 through (Correspondence). By Government Order dated 13/11/1991, the institution was taken on grant -in -aid under the Uttar Pradesh High School and Intermediate Colleges Payment of Salary (Teachers and other employees) Act, 1971. The DIOS called for the details of the teachers and employees for approving them for payment of salary by the grant -in -aid w.e.f. 01/4/1991. The DIOS vide letter dated 16/10/1992 approved 5 teachers and the appellant as Clerk for payment of salary w.e.f. 01/4/1991. By another letter dated 02/1/1993, four more teachers were approved for payment of salary. Appellant, Desh Raj filed a Writ Petition No.46426 of 1993 in this Court challenging the order dated 16/10/1992, by which he was approved as a Clerk. The case of the writ petitioner Desh Raj was that he was appointed as an untrained teacher and was also approved by the BSA on 07/9/1979 and a direction be issued to pay salary to him as Assistant Teacher. The writ petition filed by the appellant Desh Raj was disposed of by this Court on 10/11/1993 permitting the petitioner to make an application before the DIOS putting his grievance which was directed to be decided by the DIOS within two months. The DIOS in pursuance of the order of this Court dated 10/11/1993, passed a detailed order on 02/2/1995 holding that appellant Desh Raj was working as a Clerk since 01/7/1974, therefore, he is not entitled for payment of salary as Assistant Teacher from the State Fund. A finding was also recorded that Desh Raj was working on the post of Clerk. The DIOS also held that the approval dated 08/9/1979 by the BSA was against the Rules 1978, since the teachers and employees were appointed much prior to 13/2/1978 i.e. before enforcement of 1978 Rules.
(3.) APPELLANT Desh Raj filed Writ Petition No.20455/1995, praying for quashing the order dated 02/2/1995, passed by the DIOS, Farrukhabad and praying for a mandamus commanding the respondents to pay salary to the petitioner of Assistant Teacher Lt. Grade w.e.f. 01/4/1991.;