SABHAJEET YADAV,J - (1.) BY this writ petition the petitioner who is a part time Lecturer in the institution in question has moved to this Court seeking relief in the nature of writ of certiorari quashing the term and conditions of his appointment letter which provides that he will be paid honorarium at a rate of Rs.10/- per period and further writ in the nature of mandamus directing the respondent to pay him regular and equal remuneration/salary as being paid to a lecturer teaching in the intermediate classes in the subjects in question in the institution which is on grant-in-aid list of the State Government and further direction of payment of arrears of salary and interest at the rate of 10% thereon has also been sought for. By amendment application moved in the writ petition further relief has been sought in the nature of mandamus directing the respondent to treat the petitioner as a regular teacher and quash the provisions of para 6 of the Government order dated 10.8.2001.
(2.) THE facts of the case in brief are that Baba Gaya Das Technical Inter College, Barhaj, Deoria is privately managed recognized institution under the provisions of U.P. Intermediate Education Act, 1921 (hereinafter referred to as ''U.P. Act No. 2 of 1921'. Vide order/letter dated 12.8.1993 contained in Annexure-1 of the writ petition, the Secretary, U.P. Secondary Education Board (hereinafter referred to as ''Board') communicated to the Manager of the institution that under the provisions of Section 7-A of the ''U.P. Act No. 2 of 1921' the ''Board' with previous approval of the State Government recognized the institution for imparting the instruction in the intermediate classes in Physics, Chemistry, Biology and Mathematics subjects with conditions indicated in the letter. In pursuance there-of the committee of management of the institution has appointed the petitioner for teaching intermediate classes in the subject of Biology as a part time teacher on a honorarium payment of Rs.10/- per period vide letter of appointment issued by manager of the institution dated 26.8.1993 (Annexure-2 of the writ petition). In pursuance thereto the petitioner has immediately joined the institution on the aforesaid post as a part time teacher in Biology by submitting his joining report on 27.8.1993 (Annexure-3 of the writ petition). According to the petitioner, that prior to his appointment as such he was fully eligible and qualified for the post and duly selected by the selection committee constituted for the purpose by the Committee of Management of the institution. Since the aforesaid date of joining on 27.8.1993 he is continuously teaching the students of Intermediate and High School classes in Biology subject but being paid very meagre remuneration at a rate of Rs.10/- per period although he is teaching the classes like other regularly appointed Lecturers in the institution in question who are getting remuneration at a rate of Rs.12,000/- per month, whereas the petitioner is being paid for the same and similar work a sum of rupees not more than 500/- per month. According to the petitioner that although he has been appointed as a part time lecturer for teaching Biology subject in the intermediate classes but besides the intermediate classes he is also teaching the students of High School in the aforesaid subject and is performing duties and responsibilities like a regular lecturer as a invigilator as well as valuar of answer books in the examinations conducted by the ''Board'. In this regard he has also filed several certificates issued by the relevant authorities from time to time along with paper book of the writ petition. It is further stated that for redressal of his grievances several representations have been moved by the petitioner to the authorities concerned as contained in Annexure nos. 15, 16, 17 and 18 of the writ petition but since no heed has been paid over the same, therefore, he has been compelled to file above noted writ petition. By way of amendment application the petitioner has also filed a Government order dated 10th August, 2001 which has been issued prescribing eligibility, procedure for recruitment and other term and conditions of services of part time teacher including the provisions regarding their remunerations, disciplinary action and termination of services. The petitioner has challenged the provisions of para 6 of aforesaid Government order on various grounds mentioned in the amendment application wherein it is stated that under the provisions of Sub-section 5 of Section 7- AA the power has been conferred upon the State Government to fix honorarium to be paid to the part-time teacher by a general or special order issued in this behalf. The power in this regard cannot be delegated to the management of the institution so far as fixation amount of payment of salary as honorarium is concerned. In substance the petitioner has alleged that since he is discharging duties and responsibilities at par with regular lecturer in the institution in question and also eligible and qualified for the post and has been duly selected by the committee of management of the institution, therefore, the respondents cannot discriminate the petitioner in the matter of payment of salary which is being paid to the regular lecturer teaching the aforesaid subject. The action of respondents is violative of Article 14 and Article 39 (d) of the Constitution of India. It is also alleged that the services of petitioner are not comparable from the services of "skilled workman" and term and conditions of the services fixed by the Government in the aforesaid Government order is highly unreasonable and arbitrary inasmuch as runs contrary to the several decisions of Apex Court mentioned in the amended pleadings of the writ petition. It is further alleged that despite request made to the Director through the representations made to him and fulfillment of conditions under relevant Government orders including the Government order 20th November, 1977, the Director of the Secondary Education who is competent authority to create and sanction the post for the purpose of payment of salary from the State Exchequer did not create such post by now although the petitioner is continuously working on the aforesaid post since very inception of his appointment till the date. On behalf of respondents of the writ petition three detailed counter affidavits have been filed, one by Associate District Inspector of Schools, Deoria, another by Joint Secretary, Secondary Education, Government of Uttar Pradesh and the third by the management of the institution in question. In the counter affidavit filed on behalf of District Inspector of Schools, Deoria, respondent no. 3 it is stated that under the provisions of Section 7-A of U.P. Intermediate Education Act, the ''Board' with previous approval of the State Government has recognized the institution in some new subjects or group of subjects for intermediate classes on 12.8.1993 and while granting such recognition the ''Board' has directed the committee of management of the institution to make payment of salary of teachers to be employed on account of such recognition from its own resources. The recognition so granted was without sanction of finance (Vittavihin). It is further stated that since the petitioner was appointed for imparting instruction in the subject which was recognized by the ''Board' without financial sanction to it and without creating any post for such appointment by competent authority, as such the liability of payment of salary to the petitioner cannot be fastened upon the State Exchequer. In para 11 of the counter affidavit it has been stated that except to the teachers appointed for teaching Science subjects in intermediate classes, other teachers already working in the institution against duly sanctioned posts are being paid salary from State Exchequer under the provisions of Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971, herein after referred to as U.P. Act No. 24 of 1971. Since the petitioner's appointment was not made against duly sanctioned post of a teacher, therefore, the relief for payment of salary to the petitioner from State Exchequer is liable to be rejected and the petition is liable to be dismissed. Another counter affidavit has been filed on behalf of respondents no.1, 2 and 3 of the writ petition sworn by one Sri Shiv Prakash Gupta, Joint Secretary, Secondary Education, Government of Uttar Pradesh, Lucknow also reiterates the averments made in the counter affidavit filed by District Inspector of Schools, Deoria, but on account of direction of this Court dated 19.3.2004 the same has been filed to place Government order dated 10th August, 2001 which has been issued in purported exercise of power of State Government under Section 7-AA (4) and (5) of the U.P. Act No. 2 of 1921. One more counter affidavit has also been filed on behalf of respondent No. 4 i.e. committee of management of the institution wherein in para 7 of the counter affidavit it has been stated that the petitioner has been appointed on the post of Biology lecturer in pursuance of appointment order dated 26.8.1993 and joined the service on 27.8.1993. From the bare perusal of which, it seems that the committee of management of the institution has virtually admitted the averments made in the writ petition.
(3.) I have heard learned counsel for the petitioner Sri Yogesh Agrawal, Advocate and learned Standing counsel on behalf of respondents no. 1,2 and 3 as well as Sri Jai Bahadur Singh counsel for the respondent no. 4 of the writ petition and also perused the record.;