SIDDHARTH,J. - (1.) Heard Sri N.L. Pandey, learned Counsel for the petitioner and Sri Sankalp Narain holding brief of Shri V.K. Singh, learned Counsel for the respondents. This writ petition has been filed by the petitioner, praying for the following reliefs, a). a, writ of mandamus, order or direction in the nature of mandamus be issued commanding the opposite parties nos. 1,2 3 and 4 to direct the Management to produce the salary bill to the petitioner and to allow the petitioner to sign the attendance register; b). a writ of mandamus, order or direction in the nature of mandamus be issued directing the opposite parties to pay entire promotional benefit of the petitioner counting regular service of the petitioner on the basis of order dated 20.01.1994; c). any other writ, order or direction in the nature of a writ be issued, which this Hon'ble Court may deem fit and proper in the circumstances of the case and to which the petitioner is entitled in law;
(2.) The facts of the case are that Kanpur Kanya Mahavidyalaya Inter College (hereinafter referred to as ''Institution') is a recognized institution under the U.P. Intermediate Education Act, 1921, and Regulations framed there under. The payment of Salary Act, 1971, is applicable in the institution and, as such, the salary to the teachers and employees is being paid under the provisions of Payment of Salary Act, 1971. Under Section 3 of the Payment of Salary Act, 1971, the provisions have been laid down that in case the Management does not pay the salary to the teachers and employees of the institution the same can be paid by the District Inspector of Schools, under the provisions of Sub- section 3 of the said Section. It is further provided that in case the Management does not pay the salary to all the teachers and employees of the institution the District Inspector of Schools may disburse the salary by way of single operation of the account, so that the teachers or employees should not suffer. The petitioner was initially appointed in 1982, in L.T. grade against clear vacancy, to teach Science subjects to the students of Class IX and X and ever since the petitioner was continuously working in the institution as Assistant Teacher. The Principal of the institution has also issued a certificate to the petitioner on 9.1.1994, 30.10.1996 and 30.1.1989, stating clearly that the petitioner is teaching Science subjects to the students of Class IX and X since 1982 and her performance is upto the mark. The State Government promulgated an ordinance on 6.5.1991, by which the provisions of Section 33-A were added in the U.P. Secondary Education Service Commission and Selection Board Act, 1982 (hereinafter referred to as an ''Act No.5 of 1982') by adding said provisions. The teachers, who were appointed against clear vacancy after 12.06.1985 or before 13.05.1989 and were continued on their post, were regularized. After the aforesaid ordinance the petitioner sought her regularization on the post of L.T. grade teacher, by making various representations, but no heed was paid to the representations of the petitioner and, as such, the petitioner was left with no alternative but to file a writ petition in this Hon'ble Court claiming her right for regularization of the services in the institution. The writ petition of the petitioner was finally disposed of by order dated 26.07.1991 with observation that the petitioner's representation regarding regularization of her service be considered expeditiously be Regional Inspectress of Girls School within four months from the receipt of certified copy of this order. The petitioner constantly approached to the Authorities, but on account of inaction of the Management the petitioner's case remained pending for about two and half years and ultimately the case of the petitioner was decided by order dated 20.1.1994, passed by opposite party no.2. It is worthwhile to mention here that the post of Regional Inspectress of Girls Schools has been abolished and now matter is being dealt with the District Inspector of Schools, with regard to the payment of salary to the teachers and employees of Girls Schools as well as Boys School. The Management of the Institution was aggrieved against the petitioner and, as such, was not permitting the petitioner to mark her attendance in the attendance register of the Institution. There was no alternative left for the petitioner except to present herself in the office of the District Inspector of Schools and sign regularly. To give effect to the order, passed by the Deputy Director of Education (II), the petitioner repeatedly approached the Management for her attendance, but no heed was paid to regularize the petitioner, and, as such, the petitioner sent applications on 28.1.1994, 29.1.1994, 21.2.1994 and 28.2.1994, but no heed was paid to the request of the petitioner, nor the Management allowed the petitioner to sign the attendance register. The petitioner complained the matter of arbitrariness of the Management of the Institution, to the Educational Authorities. As directed by opposite party no.2 the petitioner regularly submitting her attendance in the office of the District Inspector of Schools since 31.01.1994. Attendances are being regularly marked in the office of the District Inspector of Schools. The petitioner submitted her representation to the Regional Deputy Director of Education (II), Kanpur Region, Kanpur, and to the Finance and Accounts Officer of the Office of the District Inspectoress of Schools, Kanpur City, Kanpur, on 18.02.1994, whch was duly received in the respective offices on the same date. The Regional Deputy Director of Education, Kanpur Region, Kanpur, issued another order on 4.3.1994, directing the District Inspector of Schools, Kanpur City, to allow the petitioner in the Institution and arrange for her salary. Inspite of the order dated 04.03.1994 nothing has done and, as such, another order dated 5.5.1994 was also issued by respondent no.2, but on one pretext or the other the matter of the petitioner was lingered. The compliance of orders dated 20.01.1994, 4.3.1994 and 5.5.1994 has not yet been done and the petitioner is being made to run from pillar to post. The orders dated 20.1.1994, 4.3.1994 and 5.5.1994 have neither been challenged by the Management of the Institution, nor the said order are being complied with. Whenever the petitioner has approached the respondents she has been directed to approach the Hon'ble High Court for proper and specific direction to comply the orders dated 21.1.1994, 4.3.1994 and 5.5.1994, issued by the Deputy Director of Education, Kanpur Region, Kanpur. The petitioner is suffering irreparable loss and injury, who is teaching in this Institution since 1982, and has regularly worked. After due enquiry her appointment has been regularized by the Deputy Director of Education (II), Kanpur Region, Kanpur. As stated above, the petitioner approached to the Authorities, but no heed has yet been paid to direct the Management of the Institution to send salary bill to the office of the District Inspector of Schools in compliance with the orders dated 20.01.1994, 4.3.1994 and 5.5.1994 and, as such, the petitioner is left with no other alternative remedy except by way of this writ petition under Article 226 of the Constitution of India for compliance of the orders dated 20.1.1994, 4.3.1994 and 5.5.1994.
(3.) The respondent no.3 has filed a Counter Affidavit stating that there is no iota of evidence available on record to show that the petitioner was appointed in the Institution after adopting proper procedure for appointment and she has also not filed her letter of appointment along with writ petition. The certificate annexed along with the writ petition shows that it is a letter dated 09.01.1994 in which it has been stated that she was engaged for teaching on leave vacancy for 3 years and the second annexure shows that she is working since July 1982 but neither appointment letter has been filed by the petitioner nor it is available in the office of the respondent no.3 nor any order of approval of appointment of the petitioner is available in the office record. Hence it cannot be said that the appointment of the petitioner was in accordance with law. The post of Regional Inspectress of Girls Schools was abolished and the same has been converted as Deputy Director of Education (2nd). There is no provision for joining of the petitioner in the office of District Inspector of School and signing regularly in his office. No question arises for submitting the petitioner's joining in the office of respondent no.3, since 31.03.1994. It is noteworthy here that as per order dated 20.01.1994 issued by the Dy. Director of Education (2nd), Kanpur Division Kanpur the Manager of the Institution was directed to comply the order of Dy. Director of Education regarding joining of petitioner. As per letter dated 04.03.1994 and 5.5.1995, the Dy. Director of Education-II directed for joining of the petitioner and in pursuance of the order of the Deputy Director, the Manager was directed to permit the petitioner to join her post as directed by the Dy.Director of Education. Lastly on 15.02.1997 the last direction was given from the office of the respondent no.3 to the Manager to permit the petitioner to join the post and it has also been mentioned that in the absence of obeying the order the payment will be made by single operation and the Manager assured vide letter dated 15.03.1997 that he will follow the order and will permit the petitioner to join. Similarly a letter has been written by the Manager to the petitioner to join her post. After giving letter to the petitioner for joining on her post in pursuance of the letters issued from the Educational Department. The Manager vide his letter dated 15.03.1997 informed the respondent no.3 that the petitioner was never given appointment in the Institution in L.T. Grade nor any approval was asked from the department but in fact she was engaged as part time temporary tutor but only on the basis of letters issued by the authorities, the petitioner has been permitted to join the post. As per letter dated 15.03.1997 it is crystal clear that the petitioner was not appointed after adopting due process of appointment and she has never even produced the appointment letter. It is not disputed that the direction has been received by the office of the respondent no.3 from the office of Director of Education, Kanpur but the Management informed that neither the petitioner was appointed as L.T. Grade nor any approval was accorded from the department, hence she was not entitled to get the salary from the public exchequer. But the office of the D.I.O.S., is small instrumentality of the Education Department in the District and is bound to follow the order of his superior officers and in pursuance of the order of the Dy. Director of Education, the respondent no.3 has to pass the orders in favour of the petitioner. The office of the respondent no.3 tried to get the order of Dy. Director of Education complied with. In absence of Counter Affidavit this Hon'ble Court has taken serious view and passed order dated 4.9.1997 and having left with no alternative the management was directed vide office letter of the respondent no.3 dated 8.4.1997, to permit the petitioner payment of salary. In absence of compliance of order the Institution in question be taken into single operation for payment of salary. Delay caused in filing Counter Affidavit was due to examination of High School and Intermediate and prior to 04.02.1997 the matter was not brought to the notice of the respondent no.3 The delay caused in filing the Counter Affidavit is highly regretted. The letter of the Manager reveals that she was not appointed in accordance with law nor Manager has sought any approval from the department even though the petitioner filed some paper before the Dy. Director of Education and got order from him and for compliance of the said order , the respondent no.3 also wrote to the department but thereafter, it was found that the petitioner is not entitled to get any relief from this Hon'ble Court for payment of salary from pubic exchequer. The grounds taken by the petitioner are frivolous and the writ petition is devoid of merits and is liable to be dismissed with costs.;