RAKESH TIWARI, J. - (1.) HEARD Sri V.K. Singh, Senior Counsel, assisted by Sri S. Shekhar, learned counsel for the appellants, learned standing counsel for the State -Respondents, and perused the record.
(2.) THIS special appeal has been preferred against the judgment and order dated 08.02.2013 passed in writ petition no. 24642 of 2008 : Ashok Kumar Dubey and others Vs. State of U.P. and others, whereby writ petition of the petitioners/appellants has been dismissed on the ground that the management has not satisfied the conditions laid down in the order granting the permanent attachment. The relevant extract of judgment and order impugned in this appeal reads thus: "The stand of the petitioners is that the attachment order passed in March 1972 has been issued by the District Inspector of Schools. The plain reading of the order indicates that the attachment order has been issued by the Assistant District Inspector of Schools. The stand of the respondent is that he was not authorised to issue such an order as It was only the District Inspector of Schools who was competent to pass such order. The petitioners, in their rejoinder affidavit, have again reiterated same stand which is contrary to what is indicated in the order. The first condition of the order for seeking grant -in -aid has not been satisfied by the petitioners. This by itself takes out the foundation of the petitioners' case. The claim for release of salary has been put by teachers who claim to have been appointed on or after 1989. The first set of petition was filed by the Committee of Management in the year 1997. Another petition was filed by Devendra Singh and others claiming themselves to be the Assistant Teachers. The audit report says that there are 37 teachers working in the primary section of the institution. On the basis of tabulation, the details given by the respondent in paragraph 18 of their counter affidavit shows the 57 teachers claim to be the Assistant Teachers working in the said Institution. The Management has not produced any record regarding the manner in which appointments have been made nor the strength of teachers who are to be appointed in the primary school. In the absence of their appointment orders and the manner in which they have been appointed, it is not possible for this Court to pass a direction to release the salary of the petitioners. As a matter of fact, it appears that in order to seek the benefit of grant -in -aid, the management has been making all efforts to get the said benefit without satisfying the basic conditions required for such aid. In essence, there is no definite picture emerging as to what is the actual strength of the teachers who claim their salary from the State Exchequer. In his report submitted by the District Inspector of Schools, it has been said that the primary section is being run in eight tin sheds of 13x15 Fts. dimension contrary to the condition prescribed.
(3.) IN paragraph 39 of the writ petition, the petitioners impliedly accepted this plea by stating that it is for the Management as well as the District Inspector of Schools to have looked into this matter. It is further stated that the District Inspector of Schools should have compelled the management to construct the class rooms as per the norms. From the overall discussion of the case, it clearly emerges that the management did not satisfy the conditions laid down in the order granting the permanent attachment. The permanent attachment granted to the primary school has been sanctioned by a person who is not competent to do that. The said certificate has been granted by the Assistant District Inspector of Schools, who is not competent to do. This fact has also not been denied by the respondents except reiterating the fact that the order has been passed by the District Inspector of Schools which is contrary to the record. The order granting permanent attachment has been passed by the Assistant District Inspector of Schools which clearly reflects in the order itself. The appointment order of the teachers who claim to have been appointed is also not forthcoming. Whether their appointments have been made in accordance with law, is not reflected by any order produced by the petitioners. Various teachers are claiming right to receive salary without showing their appointment.;