- (1.) SUDHIR Agarwal, J. Both these writ petitions are connected and, therefore, as requested by the learned Counsel for the parties, have been heard together and are being decided by this common judgment.
(2.) THE writ petition No. 29208 of 1996 has been filed by the petitioners Smt. Madhuri Devi, Smt. Archana Saxena and Smt. Smit Tiwari [hereinafter referred to as petitioners (first set)] seeking a mandamus commanding the respondents to pay salary to the petitioners with effect from 1-2-1996. By way of an amendment application, which was allowed by the Court's order dated 15-7-1996 a writ of certiorari has also been sought for quashing the order dated 14-10-1996 passed by the Deputy Director of Education (Secondary), Kanpur Mandal, Kanpur (hereinafter referred to as 'dde') declining to grant financial approval to the appointment of the petitioners. The writ petition No. 40743 of 2004 is the result of certain subsequent orders of the educational authorities taken during the pendency of the aforesaid writ petition and the petitioner Smt. Smit Tiwari [hereafter referred to as petitioner (second set)] has filed the same. It appears she was promoted to L. T. Grade by the committee of management after obtaining approval from the District Inspector of Schools, Kanpur Nagar (hereinafter referred to as 'dios') which was granted by the DIOS's order dated 10-2- 2002. The Joint Director of Education, Kanpur Mandal, Kanpur however found the aforesaid approval being illegal and, therefore, cancelled the same by his order dated 15-7-2004 pursuant whereto the DIOS also issued a consequential order dated 6-8-2004 whereagainst the petitioner Smt. Tiwari has filed writ petition No. 40743 of 2004 challenging the orders dated 15-6-2004 and 6-8-2004 and seeking a mandamus commanding the respondents not to interfere in her functioning as Assistant Teacher, L. T. Grade, and pay salary on the said post regularly. The brief facts which are necessary for adjudication of the matter are that Kaushalya Devi Balika Uchchatar Madhyamik Vidyalaya, Kidwai Nagar, Kanpur (hereinafter referred to as the 'college') is a recognized institution by the Board of High School and Intermediate Education under the provisions of U. P. Intermediate Education Act, 1921 (hereinafter referred to as 'act') and is aided College governed by the provisions of U. P. High Schools and Intermediate Colleges (Payment of Salary of Teachers and other Staff) Act, 1971 for payment of salary to the teachers and other staff of the college. The manager of the College vide letter dated 1-1-1996 sought permission from the DIOS for making appointment on three posts of Assistant Teachers (B. T. C. grade) lying vacant in the College. It is said that the aforesaid permission was granted by DIOS on 4-1-1996 whereafter vacancies were advertised in a daily newspaper 'dainik Gatha' published from Kanpur and after making selection, appointment letters were issued to the three petitioners namely Smt. Madhuri Devi, Archana Saxena and Smit Tiwari on 27-1-1996 by the manager of the Committee of the Management of the College. The documents pertaining to appointment of petitioners (first set) were submitted in the office of DIOS on 1-2-1996 seeking his approval. It appears that the matter pertaining to the girls colleges was being looked after by the Regional Inspectress of Girls Schools (hereinafter referred to as 'rigs') and vide G. O. dated 9-4-1992 the posts of RIGS was designated as DDE and District Inspectress of Girls Schools was designated as District Inspector of Schools (Secondary ). Consequently the work of RIGS at Kanpur was being looked after by the DDE. Hence, the DIOS forwarded the papers to DDE for his approval vide his letter dated 9-6-1996. The DDE vide order dated 14-10-1996 declined to grant financial approval on the ground that the appointments were not made in accordance with law inasmuch as neither vacancies were advertised in the newspapers having wide circulation in the State nor reservation on the post was observed nor the approval was obtained from the competent authority and the number of posts sanctioned in the College were also not clearly stated though as per financial survey the college was found to have only three sanctioned posts.
(3.) THOUGH the petitioners (first set) by means of an amendment application sought to challenge the order dated 14-10-1996 and also prayed for an interim order restraining the respondents from terminating their services but the record does not show that any interim order was passed in favour of the petitioners (first set ). However the fact remains that the management allowed them to continue in service even after the approval was declined by the DDE by order dated 14-10-1996. The subsequent events are evident from the facts stated in the writ petition No. 40743 of 2004. It appears that the Education Minister (Secondary) sent a letter dated 13-7-1997 to the DDE seeking his report in the matter in furtherance whereto the DIOS (Secondary) Kanpur sent his report alongwith the covering letter dated 11-9-1997 to the Private Secretary of the Education Minister (Secondary), Lucknow in which he stated that the selection was made against three vacant posts by the management of the College after obtaining permission on 1-2-1996 from DIOS. The matter of approval was referred to DDE who sought some clarifications vide his letter dated 2-8-1996 and 14-10-1996 which were replied by the management vide letter dated 23-3-1997. He also mentioned the factum of pendency of writ petition No. 29208 of 1996 before this Court and that the opinion was sought from Chief Standing Counsel, High Court, Allahabad who informed that no order has been passed by the Court and, therefore, the matter may be disposed of by his office. Thereafter, the DIOS sought concurrence of the Finance and Accounts Officer vide letter dated 27-5-1997 which was granted on 20-6-1997. He further pointed out that the approval ought to have been granted within one month as per law but the DDE retained the papers without granting any approval. It further stated that in respect to the reservation the management has given an undertaking that in future as and when vacancies will occur the same will be filled in by applying the reservation. Thereafter, it appears that the Special Secretary, U. P. Lucknow sent a letter dated 16-12-1992 directing the DIOS to proceed in accordance with law and inform the Government with the action taken by him. The DDE also issued a consequential letter dated 26-12-1997 directing the DIOS to act in accordance with law and inform the State Government. The State Government again sought action taken report from Deputy Inspector of Schools vide its letter dated 19-2-1998 and, thereafter, the DIOS (Secondary) Kanpur Nagar, Kanpur vide its order dated 10-2-2000 granted approval to the appointment of Smt. Madhuri Bajpai, Smt. Smit Tiwari and Smt. Sashi Bhadauriya. The management, subsequently, promoted the petitioner Smit Tiwari (second set) in L. T. Grade on 1-7-2003 treating her to be qualified for the said post having completed 5 years of continuous service counting her service from 1-2-1996 and sought approval of the said promotion from DIOS, who granted the same vide order dated 8-8-2003 with effect from 1-7-2003. However, on the complaint made to the Joint Director of Education, he got the matter enquired and found that the promotion of the petitioner (second set) was not valid inasmuch she was appointed on regular basis in 2000 only vide appointment letter dated 24-1-2000, which was approved by DIOS on 10-2-2000. Therefore, promotion in L. T. Grade was not valid and he cancelled the same vide order dated 15-7-2004 pursuant whereto the consequential order was passed by DIOS Kanpur Nagar, Kanpur on 6-8-2004 whereagainst the petitioner (second set) has filed the writ petition.;