# SC 1707; C.I.T v. Sun Engineering Works (P) Ltd., (1992) 4 SCC 363; Sarv Shramik Sangh

- **Citation:** (2013) 1 ILRA 326
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-03-06
- **Case number:** Service Bench No. 1035 of 2011
- **Bench:** Devi Prasad Singh, Zaki Ullah Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sc-1707-c-i-t-v-sun-engineering-works-p-ltd-1992-4-scc-363-sarv-shramik-sangh-42500
- **Pages:** 5

## Headnote

Constitution of India,Art.-226-Payment
of salary-post of physics, chemistry and
mathematic-sanctioned on 01.07.1999
permanent sanction w.e.f. 08.08.1996
granted payment of salary denied in
view
of
G.O.
21.08.2000-by
which
Government prohibited to sanction new
post-held-any
G.O.
Has
prospective
force-once recognition granted-as aided
institution-claim for salary can not be
denied-order
impugned
quashed
-
necessary directions issued.

Held: Para-8

In view of the settled proposition of law
the Director of Higher Education seems
to be not justified in rejecting the
payment of the salary. The impugned
order at the face of record, seems to be
1 All] Dr. Arvind Kumar Singh and others Vs. State of U.P. and others
327
passed
incorrectly
interpreting
the
Government Order dated 21.08.2000.
Moreover, since the controversy has
been settled by this Court (supra) the
impugned
order
seems
to
not
sustainable. In view of the above, the
impugned order suffers from substantial
illegality and is not sustainable. The writ
petition deserves to be allowed.

Case Law discussed:
AIR 1996 SC 1; (2000)2 SCC 42; 2011 AIR
SCW 1332; (2008) 3 SCC 641

## Text

326 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
& others Vs. State of Gurajat, AIR
1980
SC
1707;
C.I.T.
Vs.
Sun
Engineering Works (P) Ltd., (1992) 4
SCC
363;
Sarv
Shramik
Sangh,
Bombay Vs. Indian Hume Pipe Co.
Ltd. & Anr., (1993) 2 SCC 386;
Haryana Financial Corporation & Anr.
Vs. M/s. Jagdamba Oil Mills & Anr.,
AIR 2002 SC 834; Mehboob Dawod
Shaikh Vs. State of Maharastra, (2004)
2 SCC 362; ICICI Bank & Anr. Vs.
Municipal Corporation of Greater
Bombay & others: AIR 2005 SC 3315;
M/s. Makhija Construction and Enggr.
Pvt. Ltd. Vs. Indore Development
Authority & others: AIR 2005 SC 2499;
and Shin-Etsu Chemical Co. Ltd. Vs.
Aksh Optifibre Ltd. & Anr.: (2005) 7
SCC 234. The case of Pushpa Srivastava
(supra) seems to be on different facts and
circumstances.

10. In academic matters where
teachers are engaged by the University
may be on contractual basis under the
scheme or course which is likely to
continue for years to come, ordinarily
such
engagement
should
not
be
terminated in case the conduct and work
of the person engaged is satisfactory. It is
not a case where work and conduct of the
petitioners are not satisfactory rather it
appears that petitioners have discharged
their obligation with bright service record.

11. In view of above, we allow the
writ petition. A writ in the nature of
mandamus
is
issued
directing
the
respondents to continue the petitioner in
service for academic session 2013 and
2014 and pay him honorarium/salary as
the case may be in accordance to Rules.
Petitioners shall be permitted to continue
in service till continuance of course or the
scheme, as the case may be and be paid
honorarium
subject
to
satisfactory
discharge of duties.

12. Writ petition is allowed
accordingly.

13. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.03.2013

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE ZAKI ULLAH KHAN, J.

Service Bench No. 1035 of 2011

Dr. Arvind Kumar Singh and others

 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Savita Jain
I.P.Singh

Counsel for the Respondents:
C.S.C.

Constitution of India,Art.-226-Payment
of salary-post of physics, chemistry and
mathematic-sanctioned on 01.07.1999
permanent sanction w.e.f. 08.08.1996
granted payment of salary denied in
view
of
G.O.
21.08.2000-by
which
Government prohibited to sanction new
post-held-any
G.O.
Has
prospective
force-once recognition granted-as aided
institution-claim for salary can not be
denied-order
impugned
quashed
-
necessary directions issued.

Held: Para-8

In view of the settled proposition of law
the Director of Higher Education seems
to be not justified in rejecting the
payment of the salary. The impugned
order at the face of record, seems to be
1 All] Dr. Arvind Kumar Singh and others Vs. State of U.P. and others
327
passed
incorrectly
interpreting
the
Government Order dated 21.08.2000.
Moreover, since the controversy has
been settled by this Court (supra) the
impugned
order
seems
to
not
sustainable. In view of the above, the
impugned order suffers from substantial
illegality and is not sustainable. The writ
petition deserves to be allowed.

Case Law discussed:
AIR 1996 SC 1; (2000)2 SCC 42; 2011 AIR
SCW 1332; (2008) 3 SCC 641

(Delivered by Hon'ble Devi Prasad Singh,J.)

1. Heard learned counsel for the
petitioner and the learned standing
counsel.

2. This is a writ petition under Article
226 of the Constitution of India, against the
impugned order dated 25.03.2011 passed by
Director
of
Higher
Education,
U.P.
Allahabad, declining to sanction post of the
subject namely Physics, Chemistry and
Mathematics on the ground that the State
Government vide Government order dated
21.08.2000, provided that the State shall not
provide any financial grant with regard to
the new posts or sanction posts for
appointment of teacher and staffs.

3. Brief facts of the present
controversy is that the opposite party no.
5,
Ranvir
Ranvijay
Post
Graduate
College, Amethi, District-Sultanpur was
granted temporary recognition for three
subjects namely Physics, Chemistry and
Mathematics in Bachelor of Science
(B.Sc.) course from 01.07.1993 for the
period of three years. By an order dated
08.08.1996, the State Government granted
permanent sanction to impart education in
the three subjects (supra). Admittedly, the
respondents Post Graduate College is a
Government aided college and against the
posts
sanctioned
by
the
State
Government, the salary is paid by the
Government itself. All the teachers and
staff of the respondents Post Graduate
College are paid salary from the public
exchequer by the State Government.

4. While passing the impugned order
the shelter has been taken of the
Government order dated 21.08.2000.
While
adjudicating
the
similar
controversy, considering the Government
Order dated 21.08.2000, the Division
Bench of this Court of which one of us
(Hon'ble Mr. Justice Devi Prasad Singh)
was
a
Member,
had
settled
the
controversy at rest and held that the
Government Order dated 21.08.2000 is
prospective in nature. It has been further
held after considering the catena of
judgment of Supreme Court that the
Government cannot compromise with
regard on the schedule of education on
account of paucity of fund. In case the
Government sanction the post then it shall
be incumbent upon the Government to
pay the salary. The relevant portion of the
judgment of this Court in the case of Dr.
Suresh
Kumar
Pandey
(supra)
is
reproduced as under:

"38. In the case reported in AIR
1996 SC 1: State of Maharashtra. Vs.
Manubhai Pragji Vashi and others,
their lordships of Hon'ble Supreme Court
ruled that State have got no right to
discriminate on the ground of paucity of
fund while providing grant-in-aid. No
hostile treatment can be imparted while
dealing with educational institutions for
any reason whatsoever. To quote relevant
portion of para 9 of the said judgment:-

"9. ... One facet of education cannot
be selected for hostile discriminatory
328 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
treatment, whatever may be the other
laudable
activities
pursued
by
the
Government in the matter of education or
its discretion to assign the order of
priorities
in
different
spheres
of
education."

39. In a case reported case in (2000)
2 SCC 42: Chandigarh Administration
and others. Vs. Rajni Vali (Mrs) and
others,
their
lordships
of
Hon'ble
Supreme Court held that purpose of grantin-aid is to ensure smooth running of
institution and the standard of teaching
should not suffer on account of paucity of
fund. To quote relevant portion:-

"It is a constitutional mandate that
the State shall ensure proper education to
the students on whom the future of the
society depends. In line with this
principle, the State has enacted statutes
and framed rules and regulations to
control/regulate
establishment
and
running of private schools at different
levels. The State Government provides
grant-in-aid to private schools with a view
to
ensure
smooth
running
of
the
institution and to ensure that the standard
of teaching does not suffer on account of
paucity of funds. It needs no emphasis
that appointment of qualified and efficient
teachers is a sine qua non for maintaining
high standards of teaching in any
educational institution."

40. In another case reported in 2011
AIR SCW 1332: State of Orissa & Anr.
Vs. Mamta Mohanty, their lordships of
Hon'ble Supreme Court reiterated the
aforesaid proposition holding that paucity of
fund cannot be a ground for State to
compromise the quality of its education.
Relevant portion from the case of Mamta
Mohanty (supra), is reproduced as under:-

"17. ... Paucity of funds cannot be a
ground for the State not to provide quality
education to its future citizens. It is for this
reason that in order to maintain the standard
of education the State Government provides
grant-in-aid to private schools to ensure the
smooth running of the institutions so that
the standard of teaching may not suffer for
want of funds."

5. Admittedly, the State Government
is making payment of salary to other
teachers and staffs who were appointed
prior to year 2000 against the sanctioned
posts. There appears to be no reason on
the part of the Government to decline to
pay the salary to the teachers and staffs
under the garb of Government order
issued in the year 2000. While concluding
the controversy in the case of Dr. Suresh
Kumar Pandey a mandamus was issued
by the Division Bench of this Court with
certain observations. The relevant portion
from the judgment and the finding
recorded is reproduced as under:

"53. We have noticed that not only in
the respondent's college, but in other
colleges of the State of U.P., the students
are admitted without following the norms
prescribed by the Statute as well as the
UGC. Accordingly, we are of the view
that the Government should look into it
and appropriate orders/circulars should be
issued immediately commanding different
universities and colleges aided as well as
non-aided,
containing
following
directions:-

(I) No student shall be admitted in the
college and universities beyond the
sanctioned strength.

(ii) Director of Higher Education or
the State Government as the case may be,
1 All] Dr. Arvind Kumar Singh and others Vs. State of U.P. and others
329
shall sanction the teachers keeping in
view the sanctioned strength of the
students in the recognized courses of the
universities, colleges receiving grant-inaid and pay salary.

(iii) All those courses which are
open under self-financing scheme, the
universities as well as colleges shall at
least pay minimum pay scale admissible
to teachers in accordance with Rules. The
services of teachers appointed under the
self-financing
scheme,
should
be
permitted to continue till continuance of
course or satisfactory discharge of duty.

(iv) Since 2000 and onward, the
Government has stopped the grant-in-aid
and sanction of new course, even then
Government shall ensure that Committee
of Managements do not exploit the
teachers and pay reasonable salary in
contractual and ad hoc appointments in
the recognized and affiliated colleges.

(v) Keeping in view the strength of
students sanctioned prior to August, 2000,
by the State Government, the Committee
of management of Government aided
colleges
receiving
grant-in-aid,
be
informed to send their proposal keeping in
view the teacher-student ratio within
specified period for sanctioning of posts
for respective course by the Government."

6.

Subject
to
the
aforesaid
observations the Division Bench (Supra)
had further issued a mandamus directing
the State Government to provide the
teacher and staffs against the post
sanctioned prior to the year 2000, the
operative portion of the judgment is
reproduce hereinbelow:

"57. In view of the above, the writ
petition deserves to be allowed. We allow
the
writ
petition
with
following
directions:-

(I). Accordingly, the writ petition is
allowed. A writ in the nature of certiorari
is issued quashing the impugned order
dated 6.2.2012 passed by the ViceChancellor of the University, as contained
in Annexure No.1 to the writ petition,
with all consequential benefits. The ViceChancellor of the University is directed to
pass a fresh order keeping in view the
observations made in the body of the
judgment with regard to petitioner's
service career expeditiously say, within a
period of one month from the date of
receipt of a certified copy of this
judgment and till then, status quo shall be
maintained in terms of the interim orders
passed by this Court.

(II). A writ in the nature of
mandamus is issued commanding the
Government of U.P. to provide teachers
keeping in view the sanctioned strength of
students as done prior to August, 2000
(supra), after taking into account the
Statutes of various universities, UGC
guidelines, Government circulars laying
down teacher-student ratio. The State
Government shall also ensure that number
of teachers should be such that every
section
of
every
subject
possesses
teachers to impart education in different
years of the discipline to meet out the
requirement.

(III). Respondent college shall
engage part time teachers to meet out the
requirement of 1556 students within a
month to impart education for the session
2012-2013. However, henceforth the
number of students in B. Com. and other
courses shall be confined to the extent of
sanctioned
strength.
The
State
330 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Government shall also ensure that in each
and every college of U.P., students are
admitted only in terms of sanctioned
strength and not beyond that. The colleges
admitting students beyond sanctioned
strength from the session 2013-2014 be
de-affiliated by the Universities and the
Government
and
recognition
be
withdrawn.

(IV). The Government of U.P. shall
issue a Government order or circular
communicating to all the universities and
affiliated colleges as well as related
Government Departments in terms of
observations made in the body of the
present judgment (para 53 and others) for
maintenance of standard of education
keeping in view the teacher-student ratio
expeditiously say, within two months."

7. Sri Indu Prakash Singh, learned
counsel for the petitioners has placed
reliance in the case of A. Manoharan
and others Vs. Union of India and
others (2008) 3 SCC 641 whereby in the
identical situation, the Hon'ble Supreme
Court held that an order issued dealing
with the matter having prospective effect,
cannot be applied retrospectively. The
relevant
portion
of
the
judgment
reproduce herein below:

"Furthermore, the Regulations have
been amended only with effect from
1.08.2004. It would have a prospective
effect.
It
cannot
be
applied
retrospectively. Any vacancy which has
arisen prior to coming into force of the
said amended Regulations must be filled
up in terms of the law as was existing
prior thereto."

8. In view of the settled proposition
of law the Director of Higher Education
seems to be not justified in rejecting the
payment of the salary. The impugned
order at the face of record, seems to be
passed
incorrectly
interpreting
the
Government Order dated 21.08.2000.
Moreover, since the controversy has been
settled by this Court (supra) the impugned
order seems to not sustainable. In view of
the above, the impugned order suffers
from substantial illegality and is not
sustainable. The writ petition deserves to
be allowed.

9. Accordingly, the writ petition is
allowed. A writ in the nature of certiorari
is issued quashing the impugned order
dated 25.03.2011 passed by the Director
of Higher Education, opposite party no. 2
with consequential benefits. A writ in the
nature
of
mandamus
is
issued
commanding
the
respondents
to
reconsider petitioners' claim with regard
to payment of the regular salary in the
light of observations made herein above
and pass a speaking and reasoned order
expeditiously say, within a period of three
months from the date of production of
certified
copy
of
this
order
and
communicate decision.

10. With the aforesaid direction, the
writ petition allowed.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.03.2013

BEFORE
THE HON'BLE SURENDRA VIKRAM SINGH
RATHORE, J.

Writ Petition No.1059 (M/S) Of 2013

Harihar Prasad Pathak and another

 ...Petitioner
Versus
State Of U.P. and another ...OppositeParties