Judgment:
V. M. Sahai, J.,
1. The short question that arises for consideration in this petition is whether a part-time teacher working in an aided institution and paid honorarium by the management to teach a subject recognised by the Board under Section 7-A of the U. P. Intermediate Education Act. 1921, can claim regularisation and payment of salary even though the post is not sanctioned or created by the Government?
2. Sri Mahabir Shiksha Sadan Inter College, Jain Nagar, Meerut (in brief institution) is a recognised and aided institution. By order dated 13.8.1982, permission was granted to the institution, for teaching Science subject in High School, by the Additional Secretary, Board of High School and Intermediate Education, Meerut. And by the same order, the District Inspector of Schools, Meerut (in brief DIOS) was directed to permit the institution to start classes in Science. The DIOS granted permission on 9.10.1985. The management issued an advertisement in newspaper 'Dainik Prabhat' on 28.6.1989 that two assistant graduate lady teachers were required, one for teaching Mathematics and Physics. And the other to teach English and Sanskrit. The petitioner was M.Sc. in Mathematics. She applied in pursuance of the advertisement. She was appointed as assistant teacher by the management on 7.7.1989 on total emoluments of Rs. 450 per month. She joined on 8.7.1989. Thereafter, she passed B.Ed. examination in 1991. She claims that the management again appointed her in 1992 but no appointment letter was issued to her. It appears that a short vacancy, till 15.5.1996, occurred in the institution. The petitioner applied for appointment on 5.5.1995. In interview held on 6.6.1995. she was selected. The management on 10.6.1995 appointed her as assistant teacher (part-time) on the temporary post in the short vacancy that was upto 15.5.1996, on total emoluments of Rs. 550 per month. She claims that papers were submitted to DIOS for payment of salary but no orders was passed. It is also claimed that one lady teacher Smt. Krishna Mukerjee appointed in 1991 for teaching biology was being paid salary from the grant-in-aid by the DIOS. She filed Civil Misc. Writ Petition No. 25175 of 2000 before this Court claiming regularisation of her service as assistant teacher, and salary on the Principle of equal pay for equal work. This petition was disposed of on 25.5.2000 permitting the petitioner to make a representation before the DIOS for regularisation and payment of regular pay scale. And the representation was to be decided within a period of three months. This order was served on the DIOS on 13.6.2000. It is alleged that after opening of the college, the petitioner was permitted to discharge her duties from 1.7.2000. But she was not permitted to sign from 24.7.2000. In the meantime, the management issued an order purporting to appoint her from 1.7.2000. She was pressurised to sign this appointment letter. She did not sign it. She was not assigned any duty from 7.8.2000. She made a representation to DIOS on 9.8.2000 that the management is not permitting her to discharge her duties. She filed Civil Misc. Writ Petition No. 38018 of 2000 for a direction to the management to allow the petitioner to work as assistant teacher in Mathematics and Science in the institution and pay her salary. In Writ Petition No. 38018 of 2000 counter-affidavit was filed by the Principal of the institution. It has been filed as Annexure-11 to this writ petition. In paragraph 11 of the counter-affidavit it has been stated after permission to start classes in science subject was granted without any grant-in-aid, therefore, the management is employing part-time teachers who are being paid honorarium by the management from its own resources. It was stated that U. P. Secondary Education Services Commission and Selection Boards Act, 1982 (in brief U. P. Act No. 5 of 1982, does not apply to part-time teacher. In paragraph 12 of the counter-affidavit it has been stated that petitioner was never paid honorarium for entire session. In 1989-90 and 1990-91 session, she was given assignment only for 10 months. In 1992 and 1996, her assignment was only for 9 months. It was further stated that the petitioner was given assignment on a fixed honorarium. No regular appointment could be made due to non-sanction of post of Science teacher. In paragraph 19 of the counter-affidavit, it has been stated that petitioner is not working since 24.7.2000 in the institution. Appointment letter was issued to her on 1.7.2000 as part-time teacher for 2000-2001 session but she did not accept it and insisted that papers for regularisation of her service be sent to the DIOS. The petitioner was informed that neither the post of Science teacher has been created nor the management is receiving grant-in-aid, therefore, her claim for regularisation could not be recommended. The DIOS by order dated 18.9.2000 has rejected the representation of the petitioner on the ground that the post on which the petitioner was working, was neither created nor sanctioned. The management was making the payment of salary to her from its own resources, therefore, she was not entitled for any salary. It was further mentioned in the order that the petitioner was working as part-time teacher in the institution and such teachers are appointed in July or August of the session and their services are terminated in May, at the end of the academic session. They are not paid any salary for the month of June. The provisions of U. P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees} Act. 1971 (in brief Salaries Act) and U. P. Act No. 5 of 1982 are not applicable to the petitioner and she is not entitled for any salary. It was further held that the petitioner is not entitled for regularisation of her service as assistant teacher, therefore, no approval could be granted. It is this order passed by the DIOS on 18.9.2000 that has been challenged in this petition.
3. Sri Ashok Khare, the learned senior counsel assisted by Sri Vinod Kumar Singh, the learned counsel appearing for the petitioner has vehemently urged that the petitioner has been working in the institution for about eleven years and she is entitled for payment of her salary as other teachers in; the institution are being paid salary from the grant-in-aid of the institution whereas the petitioner is the only teacher in the institution who is not being paid salary from the grant-in-aid received by the Government, therefore, non-payment of salary to the petitioner is discriminatory in view of decision of the Apex Court in Chandigarh Administration and others v. Rajni Vali (Mrs.). (2000) 2 SCO 42. The learned counsel urged that one lady teacher Suit. Krishna Mukerjee was also appointed in 1991 for teaching Biology to High School classes. She has been sanctioned payment of salary by the DIOS, therefore, the petitioner could not be discriminated and is entitled for payment of regular salary. The learned counsel further urged that Sections 7A and 7AA of the U. P. Intermediate Education Act, 1921 [in brief Act) came into force on 14.10.1986 but the recognition for teaching science subject in the institution having been granted on 13.8.1982, with effect from 1984, and this being prior to the enforcement of Section 7AA and Section 7A of Act, the petitioner could not be treated to be a part-time teacher under these provisions and the DIGS committed an error in holding that the petitioner was a part-time teacher not entitled for any salary. The learned counsel urged that even if it is found that the petitioner is not entitled for payment of salary from grant-in-aid received from Government, her service is liable to be regularised under Sections 33A, 33B and 33C of the U. P. Act No. 5 of 1982 as the petitioner has been working in a substantive vacancy since 1989. He further urged that even if the petitioner is a part-time teacher she could not be disengaged or terminated in violation of Section 16G of the Act and Chapter III of the Regulations framed under U. P. Intermediate Education Act. 1921 (in brief Regulations). He relied on the decision of this Court in Smt. Shashi Kala Singh v. District Inspector of Schools. Maharajganj and others, 2000 (3) UPLBEC 2327 and Dharmendra Pal Dwivedi v. District Inspector of Schools and another, 2000 (2) LBESR 790.
4. Sri S. P. Pandey, the learned standing counsel has urged that the petitioner was not working against any sanctioned post, therefore, she was not entitled for any salary. He urged that the petitioner was not entitled to claim regularisation of service and the provision of U. P. Act No. 5 of 1982 is not applicable to a part-time teacher or a teacher who is working on a post which has neither been created nor sanctioned under the Salaries Act. He urged that in view of the Full Bench decision of this Court in Gopal Dubey v. District Inspector of Schools. 1999 (1) UPLBEC 1, the petitioner is not entitled for any relief.
5. From the facts stated above, it is clear that even though the permission to teach science subjects was granted in 1982, but when the petitioner was appointed in July. 1989, in pursuance of advertisement dated 28.6.1989 Section 7A had been substituted and Section 7AA had been inserted on 14.10.1986 by U. P. Act No. 18 of 1987. Since the permission granted by the authorities was 'vitta vihin', that is unaided, and no post was sanctioned or created, the appointment of the petitioner could be part-time or honorarium. In the first appointment letter, she was appointed on a salary of Rs. 450 per month. The second letter filed as Annexure-3 to the petition, appointing her in 1995 shows that she was appointed as part-time assistant teacher on a salary of Rs. 550 per month. The allegation in the counter-affidavit filed in earlier writ petition shows that she used to be engaged for nine or ten months in a year. The petitioner does not claim that the statement of fact in the counter-affidavit is incorrect. Her entire claim is based on length of period she has been serving and applicability of U. P. Act No. 5 of 1982. It is true that the petitioner appears to have worked for more than ten years, on a meagre, salary. She is M.Sc. B.Ed. She might have accepted the appointment in the hope that sooner or later she would be absorbed as a regular teacher. But the expectations did not materialise. She had to approach this Court thrice. It is unfortunate. But no amount of sympathy or compassion can overcome the law. The petitioner can succeed only if she can be held to have some right either for regularisation or salary. This Court in the Full Bench decision in Gopal Dubey (supra) has held that if permission to teach a subject has been granted but the post has not been created or sanctioned under the Salaries Act, then no salary could be paid to the teacher from the grant-in-aid received from the Government. The learned counsel for the petitioner urged that in view of the decision of Apex Court in Chandigarh Administration (supra), the respondents cannot refuse payment of salary to the petitioner who is teaching science subject in High School classes. And non-payment of salary amounted to discrimination as other teachers working in the institution are being paid salary from the grant-in-aid received from the Government. This argument is devoid of any merit. This Court in Civil Misc. Writ Petition No. 29097 of 1998, Mohammed Fuzail Ansari v. State of U. P. and others, decided on 30.11.2000, has held that the decision of the Apex Court could not help a teacher who has been appointed on a post which was not been created or sanctioned.
6. Shri Khare urged that Section 7A and Section 7AA of Act came into force with effect from 14.10.1986 but since recognition for teaching science subject having been granted on 31.8.1982 with effect from 1984 in High School examination, the amended provisions did not apply and the petitioner could not be treated to be a part-time teacher. The argument is devoid of any substance. The petitioner can claim right on the law prevalent on the date of her appointment and not on the law as it was when permission was granted. And in 1989 the date of her first appointment. Sections 7A and 7AA had come into force, therefore, she could be treated either a part-time or honorary assistant teacher. The recognition granted in 1982 was of no consequence. If the argument of the learned counsel for the petitioner is accepted, it would be in contrary to statutory provisions. The nature of petitioner's appointment has been explained in the counter-affidavit filed by the Principal of the institution in Civil Misc. Writ Petition No. 38018 of 2000. It shows that the petitioner was never appointed as a regular teacher in the institution. And since she did not accept the appointment made by the management on 1.7.2000 as a part-time teacher, the petitioner cannot claim that she has acquired any right to continue as a teacher in the institution. Even if the petitioner had worked for short period in the institution from time to time for more than ten years, it would not confer any right on her to claim a regular appointment or claim that she be regularised in the institution. The claim that one lady teacher Smt. Krishna Mukerjee was appointed in 1991 for teaching Biology to High School classes and she has been granted approval and her salary is being paid by the DIGS cannot be accepted as the learned counsel for the petitioner has not filed the order of the DIGS by which salary is being paid to Smt. Krishna Mukerjee. Further, it was not raised before the DIGS. In absence of any material to support the assertion made in paragraph 14 of the writ petition, it cannot be accepted that Smt. Krishna Mukerjee is being paid salary against a post which is not created or sanctioned under the Salaries Act.
7. The petitioner having been appointed in 1989 against a post which was neither sanctioned nor created but to teach a subject for which permission was granted, her appointment could be deemed to be under Section 7AA only. A Full Bench of this Court in Radha Raizada and others v. Committee of Management, Vidyawati Darbari Girls Inter College and others 1994 (3) UPLBEC 1551, had considered the question of ad hoc or short term appointment on a post of teacher which has occurred and remained unfilled due to non-appointment of a regular teacher selected by commission under U. P. Act No. 5 of 1982. In his separate but concurring judgment Hon'ble G. P. Mathur, J. In paragraph 72 has observed that the management could make arrangement during the interregnum by appointing suitable persons and pay them salary out of its own resources. And it was not repugnant to any statutory provision or scheme of the Act. The management could appoint or employ qualified persons who may be even retired teachers under Section 7-AA of the Act as part-time teachers for the period of interregnum. In another Division Bench decision of this Court in Tulsi Ram and others v. State of U. P. and others, 1998 (3) ESC 1617, it had been held that the part-time teachers appointed under Section 7AA are not regularly appointed teachers. They are engaged for imparting instructions on the part-time basis for which the Board has granted permission under Section 7A of the Act. The provisions of Salaries Act and U. P. Act No. 5 of 1982 are not applicable in relation to part-time teachers and part-time instructors employed in the institution under Section 7AA of the Act. The Bench held that three years teaching experience of part-time teachers working in any recognised institution cannot be deemed to be equivalent to three years teaching experience of regularly selected teachers according to the rules. It is, thus, clear that a part-time assistant teacher or a teacher engaged on honorarium is not a regular teacher. The U. P. Act No. 18 of 1987 in the Act inserted Sections 7A and 7AA. The objective of these provisions is that studies of the students may not suffer due to non-availability of the regularly selected teachers. They are engaged by the management on part-time basis, without obtaining the approval of the District Inspector of Schools and they can be disengaged by the management either at the end of the session or when the necessity to continue such teachers comes to an end. There is no bar or restriction against such disengagement. Thus, part-time teachers cannot be deemed to be a teacher as mentioned in Section 16G of the Act and Regulations framed thereunder. The decision of this Court in Shashi Kala Singh (supra) is of no help to the petitioner as in this decision, the Court was not concerned with regularisation or payment of salary. Further this decision was obtained on incorrect facts. The Hon'ble Judge was led to believe that the employment of even part-time teacher was 'Niyamit' Image appearing... (???). The actual word in the Government order is 'Niyantrit' Image appearing... (???). But in the photocopy attached with the supplementary affidavit to the writ petition of Shashi Kala Singh (supra) only the first three letters ' Image appearing...???' were legible and the learned Judge reading it as 'Niyamit' held that the appointment of a part-time teacher being 'Niyamit' (regular) his services could not be terminated without complying Section 16G of the Act. But with word 'Niyantrit' the entire meaning changes. The petitioner was a part-time teacher or honorary teacher, therefore, could not claim payment of salary under the Salaries Act as Section 7AB inserted by U. P. Act No. 18 of 1987 exempts applicability of Act to part-time teachers. The decision in Dharmendra Pal Dwivedi (supra) is also of no help. It was concerned with Regulation 29. The Court was not concerned with nature of appointment, as an assistant teacher under Section 7AA of the Act.
8. The last argument of the learned counsel for the petitioner is that the petitioner had been working in the institution for about eleven years, therefore, her service stood regularised under Sections 33A. 33B and 33C of the U. P. Act No. 5 of 1982. Section 7AB of the Act clearly provides that the provisions of U. P. Act No. 5 of 1982 shall not apply in relation to part-time teacher and part-time instructor employed in the institution under Section 7AA. Since the provision of U. P. Act No. 5 of 1982 does not apply to part-time teacher, appointed under Section 7AA of the Act, the petitioner could not claim any regularisation under the provisions of the aforesaid Act. The petitioner, therefore, is not entitled to any relief.
9. For the aforesaid reasons we do not find any merit in this petition.
10. The writ petition fails and is accordingly dismissed.