G.P. Mathur, J.@mdashThese are three connected special appeals directed against a common judgment and order dated 18.4.1996 of a learned single Judge by which three writ petitions were disposed of. Special Appeal No. 445 of 1998 arises out of Writ Petition No. 8785 of 1993. Special Appeal No. 446 of 1998 arises out of Writ Petition No. 16789 of 1993 and Special Appeal No. 447 of 1998 arises out of Writ Petition No. 8785 of 1993.
2. Special Appeal No. 445 of 1998 was filed on 14.8.1996 and was registered as defective Special Appeal No. 78 of 1996 as the same was not .In order. When the appeal was listed for admission on 19.8.1996, no one appeared to press the appeal. The case was listed on several dates and was dismissed in default on 10.3.1999. After restoration of appeal, it was heard on 30.4.2001, when certain directions were issued. The appellants then filed a supplementary affidavit bringing on record the judgment of a civil suit. Thereafter, all the three appeals have been heard for admission/ hearing.
3. For the purpose of array of parties, Special Appeal No. 445 of 1998 shall be treated as the leading case wherein. Hari Lal, Urmila Kumar Chandan. Smt. Prem Balika Devi, Radhika Devi, Ram Milan Yadav. Chandrika and Indra Bhushan are appellant Nos. 1 to 7. The main contesting respondents are Doodh Nath, Rempher Ram, Ashok Kumar, Mahendra Rai, Barkhu Yadav and Rajnath being respondent Nos. 2 to 7.
4. The dispute relates to working of teachers and payment of their salary in Maha Devi Verma Harijan Karmottar Bal Vidhyalaya, Langarpur. district Azamgarh (hereinafter referred to as school). According to the case of respondent Nos. 2 to 5. they have been appointed as Assistant teachers in the School on 1.7.1975, 1.7.1974, 1.9.1977 and 1.9.1981 respectively, and they had been continuously teaching therein. A dispute of Committee of Management of the Institution arose as Ram Bali Ram and Kamla Prasad both claimed to be the Managers of the Committee of Management. The result of this dispute was that hindrance was put in the working of the aforesaid teaches and in payment of their salary. The respondent Nos. 2 to 5, filed O.S. No. 424 of 1983 in the Court of Munsif. Mohamanabad Gohna, district Azamgarh, praying that a decree of injunction be passed restraining the defendants from interfering in their working as Assistant teachers in the School. They also filed an application for interim injunction for restraining the defendants of the suit from interfering in their working as Assistant Teachers in the suit. Initially, an ex parte injunction order was granted on 8.8.1983. The application was contested by the defendants and after hearing the parties, the learned Munsif by his judgment and order dated 25.4.1990 allowed the injunction application and restrained the defendants from interfering in the plaintiffs'' working as Assistant Teacher in the School. The defendants in the suit preferred an appeal against the said order, which was allowed on 30.8.1991 by the Additional District Judge and the injunction application was dismissed. The plaintiffs (respondent Nos. 2 to 5 of the Special Appeal) then filed Writ Petition No. 35787 of 1991, challenging the judgment and order dated 30.8.1991 in which the operation of the order of the Additional District Judge was stayed on 12.12.1991. Learned counsel for the parties have made a statement that the writ petition is still pending. The result of the stay order passed by this Court is that the injunction order, which had been initially granted by the learned Munsif on 8.8.1983 became operative.
5. The institution was initially not receiving any grant-in-aid. Subsequently, by the order of the State Government dated 31.3.1989, the institution came on grant-in-aid and started receiving aid from the State Government. However, on account of certain disputes, the State Government passed another order on 21.6.1989 by which the aid being given to the institution was stopped. Thereafter, Ram Bali Ram claiming to be the Manager of the Institution filed Writ Petition No. 14353 of 1990 for a direction to the State Government to give grant-in-aid to the institution. This writ petition was finally disposed of on 28.1.1991 with a direction to the writ petitioner to move a representation to the Director, Samaj Kalyan, U.P., who may decide the question of payment of grant-in-aid to the Institution. In pursuance of the said order Ram Bali Ram gave a representation to the Director, Samaj Kalyan, U.P. for making payment of grant-in-aid to the Institution. This matter was considered by the Director, Samaj Kalyan, U.P., who by his order dated 19.6.1993 granted sanction for payment of salary to respondent Nos. 2 to 7. He also appointed a receiver, an officer of the department, to manage the school in view of dispute of management.
6. After the order of the Director had been passed on 19.6.1993, Writ Petition No. 8785 of 1993 was filed by appellants of Special Appeal No. 447 of 1998 praying that a writ of mandamus be issued for payment of salary to them. Another writ petition being Writ Petition No. 16798 of 1993 was filed by the appellants of Special Appeal No. 446 of 1998 claiming similar relief. Writ Petition No. 24309 of 1993 has been filed by the appellants of Special Appeal No. 445 of 1998 for quashing of the order of the Director, Samaj Kalyan, U.P., dated 19.6.1993, and for a declaration that they are working as Assistant Teachers in the School. All the three writ petitions have been dismissed by the learned single Judge by a common Judgment and order dated 18.4.1996.
7. We have heard learned counsel for the parties and have perused the record.
8. The Director, Samaj Kalyan got an inquiry made from Deputy Director, Samaj Kalyan, Gorakhpur Division, who submitted a report on 13.3.1992. The Director has recorded a finding that respondent Nos. 2 to 7 have been working as Assistant Teachers in the school and they shall be recognised as regular Assistant Teachers. We do not find any infirmity in the aforesaid finding which has been recorded by the Director, Samaj Kalyan, after consideration of the relevant material.
9. The matter is governed by U.P. Recognised Basic Schools (Recruitment and Conditions of Service of Teachers and Others Conditions) Rules, 1975 and Rule 9 thereof reads as under :
"9. Appointment of teachers. --No person shall be appointed as teacher or other employee in any recognised school unless he possess, such qualifications as are specified in this behalf by the Board and for whose appointment the previous approval of the Basic Shiksha Adhikari has been obtained in writing. In case of vacancy the applications for appointment shall be invited by the concerned management through advertisement in at least two newspapers (one of them will be daily newspaper), giving at least thirty days time for submitting application. The date of interview may be given in the advertisement or the candidates be informed of the date fixed for interview by registered post, giving them at least 15 days time from the date of issue of the letter. The management shall not select any untrained teacher and if the selected candidate is trained one, he will be approved by the Basic Shiksha Adhikari."
10. There is no averment in the writ petition that the writ petitioners (appellants in the special appeals) had been appointed after following the procedure prescribed by Rule 9. There is no pleading that the vacancy had been advertised in two newspapers and thereafter any interview was held. Similarly, there is no pleading that the appointment of the writ petitioners had been made after previous approval of Basic Shiksha Adhikari. The Director has also recorded a finding that the Manager had appointed some persons who were his relations and while making the appointments, the requirement of Rule 9 had not been followed. In this view of the matter, the appellants cannot claim that they are legally appointed teachers of the School. Therefore, they have no legal right to get salary and the view taken by the Director is perfectly correct.
11. It may also be mentioned here that in Writ Petition No. 8785 of 1993 and Writ Petition No. 16789 of 1993 giving rise to (Special Appeal Nos. 446 of 1998 and 447 of 1998), the writ petitioners concealed the fact that the respondent Nos. 2 to 7 had obtained a temporary injunction order in their favour in O.S. No. 424 of 1983, which continued to operate in their favour by virtue of the interim order dated 12.12.1991 passed in Writ Petition No. 35787 of 1991. The learned single Judge also took note of this fact and was of the opinion that this was an additional ground for dismissing the writ petitions. We are also in agreement with the view taken by the learned single Judge,
12. A development which has taken place during the pendency of the appeals may also be noted. By the order dated 30.4.2001, a direction was issued for early disposal of O.S. No. 424 of 1983. The learned Civil Judge (Sr. Division), Azamgarh, by the judgment and order dated 6.11.2001 abated the suit on the finding that the same was cognizable by U.P. Public Services Tribunal and further issued a direction that the record be transmitted to the Tribunal. Learned counsel for the contesting respondents has made a statement that a revision has been preferred against the aforesaid order before the District Judge, Azamgarh. Learned counsel for the appellants has fairly admitted that the service dispute of a teacher is not cognizable by U.P. Public Services Tribunal. However, the decision of the suit will not make any difference now in view of the fact that the controversy has been decided by the Director, Samaj Kalyan, by his order dated 19.6.1993, wherein, a finding has been recorded that respondent Nos. 2 to 7 are working as Assistant Teachers in the school and they are entitled to get salary.
13. Learned counsel for the appellants has urged that appointment of respondent Nos. 2 to 7 was also not proper and the same has not been made in accordance with Rules. In view of the finding of Director, Samaj Kalyan, U.P., in favour of respondent Nos. 2 to 7, we are not inclined to accept the contention of the learned counsel for the appellants. That apart, the appellants having filed the writ petition, they can succeed only by showing that their own appointment is proper and valid and that the same has been made in accordance with the Rules. The appellants having failed to do so cannot get any relief by contending that the appointment of the contesting respondents was not valid. The principal prayer made by the appellants is payment of salary to them, The Director, Samaj Kalyan, has recorded a clear finding in favour of respondent Nos. 2 to 7, that they are working as Assistant Teachers in the school. The appellants have not been found to be working as Assistant Teachers. It has not been pleaded by them that they possess the necessary qualification or their appointment was made in accordance with Rule 9 of the Rules. In these circumstances, the appellants have absolutely no case for payment of salary to them.
14. We are in agreement with the view taken by the learned single Judge.
15. All the special appeals lack merit and are hereby dismissed at the admission stage.
