- (1.) D. P. Mohapatra, CJ. In these appeals, filed under Chapter VIII, Rule 5 of the Rules of Court, the appellants have assailed the judgment rendered by a single Judge of this Court on 7-12-1995 in Writ Petition No. 16902 of 1992 dismissing the writ petition. The operative portion of the judgment read : "in view of the above, the instant petition is devoid of any merit and the petitioners are not entitled for any relief whatsoever. The petition is dismissed accordingly. However, it is clarified that under the impugned order of Deputy Director of Education dated 10-9-1992 those persons who have been found eligible for payment of salaries under the U. P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 shall no be adversely affected by this order. "
(2.) THE teaching and non-teaching staff of Bhagwan Parasuram Dham Laghu Madhyamik Vidyalaya Sohnag, Salempur, district Deoria, 38 in number, filed the writ petition seeking a writ of mandamus directing the respondent to pay salary to them alongwith arrears from 1-4-1991, that is, the date on which the Institution was brought on the grant-in-aid list of the State Government. THE State of U. P. through Secretary, Education Department, Government of Uttar Pradesh, Lucknow, the Deputy Direc tor of Education, VII Region, Gorakhpur, the District Inspector of Schools, Deoria, the Committee of Management of the College and its Principal were arrayed as opposite-par ties in the case. THE gist of the case of the writ petitioners was that they were appointed on regular basis in posts sanctioned on different dates and their appointments were approved by the District Inspector of Schools. At the time of their appointment the Institution was not received any grant-in-aid from the State Government. It became an aided Institution when effect from April, 1981. On the Institution becoming aided, the writ petitioners claimed payment of salary by the District Inspector of Schools under the provisions of U. P. High School and Intermediate Colleges (. Payment of Salaries of teachers and other Employees) Act, 1971 (hereinafter referred to as the Act ). Since the authorities paid no heed to their claim, the writ petitioners filed the writ petition seeking the relief noted above. authorities paid no heed to their claim, the writ petitioners filed the writ petition seeking the relief noted above. During the pendency of the writ petition this Court by order dated 13th July, 1992, directed the Deputy Director of Education, VII Region, Gorakhpur to decided the claim of salary of the writ petitioners. In pursuance of die said order the Deputy Director of Education by an order dated 10th September, 1992, accepted the claim for salary of 19 writ petitioners out of 38 while rejected the claim in that behalf of remain ing 19 on the ground that their appointments were made after 14-10-1986, the cut off date prescribed under Section 7-A A of the U. P. Intermediate Education Act, 1921. The said order was filed by the writ petitioners as Annexure 1 to the supplementary affidavit in the writ petition. That is the reason why the learned single Judge, while dismissing the writ petition, has made it clear that the order will not affect the case of the 19 writ-petitioners who were held by the Deputy Director of education to be entitled to pay ment of salary under the Act. The remaining 19 writ petitioners, to whom relief was declined, are the appellants in three Special Appeals. The learned single Judge, as the judgment shows, has dismissed the writ petition mainly on the ground that the writ petitioners have failed to establish that they were validly appointed to the posts. In this connec tion, it will be relevant to note a few observations made by the learned single Judge : "shri T. N. Tewari, learned counsel for the petitioners has vehemently challenged the finding of fact reached by the Deputy Director of education. Impugned order makes it clear that petitioners failed to produce any evidence before the Deputy Director of Education regarding their employment, including the letters of appointment or any material disclosing the procedure and formalities followed while appointing the petitioner. Confron ted with this fact situation Mr. Tewari relied upon chart filed as Annexure 5 to the Supplementary affidavit before this Court. When the said chart was scrutinised thoroughly, 1 found the most distressing and perturbing facts from it. Some peti tioners had been shown in the chart as possessing the qualifica tions of B. S. , B. Ed. and other eligible qualifications at the rele vant time of their appointment but they were minor on thy said date. Mr. Tewari could not furnish any explanation what so ever for filing such forged and fabricated document before this Court. No other evidence was produced before me also showing the appointment letters etc. of the petitioners. " "no separate evidence has been filed before this Court, for such petitioners and it is not possible to place any reliance on the said chart. It is, however, beyond my imagination as to why the petitioners have not produced the said documents to prove their case, before this Court, particularly when such crystal clear observation had been given against them by the Deputy Director of Education. Mr. Tewari, did not ask the Court to give some time to place the said material before this Court, instead asked to remand the case to the Deputy Director of Education to examine afresh. I could not find it convincing as there is nothing on record to examine except the said chart, which is certainly not worth putting any reliance on it. There compelling circumstance to remand the case. " Thereafter the learned single Judge proceeded to discuss the point on merits of discretionary jurisdiction and equitable jurisdiction under Article 226 of the Constitution in favour of writ petitioners, who have not appro ached the Court with clean hands and referring to the judgments of the Supreme Court in the cases of Andhra State Financial Corporation v. Gar Re : Rolling Mills, (1994) 2 SCC 647; State of Maharashtra and others v. Prabhu, (1994) 2 SCC 481; Chandra Shashi v. Anil Kumar Verma, 1995 (1) SCC 421; Dhananjay Sharma v. State of Haryana, (1995) 3 SCC 775; Ramjas Foundation and others v. Union of India and others, AIR 1993 SC 582 ; G. Narainswami Reday v. Government of Karnataka and others, AIR 1991 SC 1726 ; K. R. Srinhas v. R. M. Premchand and others, (1994) 6 SCC 620 and Gurdeep Singh v. State of J. and K. and others, 1995 (Supp) 1 SCC 188, held that the writ petition was devoid of merits and the writ peti tioners were not entitled for any relief whatsoever.
(3.) THE thrust of the submissions of Sri T. N. Tewari, learned counsel for the appellants, was that the learned single Judge erred in rejecting the claim of salary of the appellants on the ground of invalidity of their appointments inasmuch as validity otherwise of their appointments was never an issue in the case. According to Sri Tewari neither the respond-dent had raised the question of validity of the appointments nor was it a ground stated in the order of the Deputy Director of Education dated 10th September, 1992 (Annexure 1 to the supplementary-affidavit) for declining to accept the claim of salary of the appellants. Sri Tiwari further submit ted that the main reason stated in the order of the Deputy Director of Education for rejecting the claim of the appellants was that their appointments were made after 14-10- 1986, the date on which Section 7-AA was introduced in the U. P. Intermediate Education Act, 1921 by U. P. Act 18 of 1987 ; therefore the appellants advanced arguments on the applicabi lity or otherwise of Section 7-AA in their case. According to Sri Tewari Section 7-AA, which makes provision for employment of part time teachers or part time instructors, has no application to the appellants since they are neither part time teachers nor instructors but hold regular and substantive appointments. Sri Tewari further, pointed out that the learned single Judge in his judgment has not recorded any finding on the question of applicability or otherwise of Section 7-AA, which was the main ground urged before him; instead he has proceeded to consider the case on an altogether new point, that is, validity of appointment of the appellant and has made observation, gist of which has been noted above, which submits Tiwari, are wholly un called for. Lastly, Sri Tewari, submitted that if the learned single Judge had any doubt about the validity of the appointments, then he should have decided the question of applicability of Section 7- AA to the case and remitted the matter to the Deputy Director of Education. Learned counsel appearing for respondents 1 to 3 contended that that while sanctioning the posts held by the appellants it was made clear by the concord authority that liability for the salary will be borne by the management of the Institution and, therefore, in view of the said condition the appellants are not entitled to claim benefit under the Act.;