Pancham Lal Pandey vs Neeraj Kumar Mishra

CIVIL APPEAL NO. OF 2023 [Arising out of Special Leave Petition (C) No.3329 OF 2021]

PANCHAM LAL PANDEY ….. APPELLANT

versus

NEERAJ KUMAR MISHRA & ORS. …..RESPONDENTS

J U D G M E N T

PANKAJ MITHAL, J.

1. Heard Mr. Praveen Chaturvedi, learned counsel for the

appellant and Mr. V.K. Shukla, Senior Counsel assisted by

Ms. Parul Shukla, learned counsel for the respondents and

perused the pleadings exchanged between the parties.

2. Leave granted.

Signature Not Verified

3. Digitally signed by NIRMALA NEGI Date: 2023.02.15 Tripathi Ramroop Sanskrit Vidyalaya, Jogapur, Kaushambi 15:21:58 IST Reason:

in the State of Uttar Pradesh is a recognised institution

1 imparting Sanskrit Education upto Uttar Madhyama, i.e.,

Class I to XII. It was granted permanent recognition on

22.02.1999. The Government of Uttar Pradesh decided to

take Sanskrit Vidyalaya and Mahavidyalaya on Grant­in­Aid

List. The criteria for taking institutions under the Grant­in­

Aid List was laid down in G.O. dated 07.02.2014. The State

Government vide its order dated 11.08.2015 notified the list

of institutions which were taken in the Grant­in­Aid list of

the Government, which included the above institution at

Serial No.47.

4. The State Government sanctioned five posts for payment of

salary from the State Exchequer in respect of the above

institution, one for the Headmaster and four for the

Assistant Teachers.

5. The Principal Secretary, Government of Uttar Pradesh

issued a Circular dated 01.01.2016 granting approval for

the payment of salary to all the teachers of the institutions

receiving Grant­in­Aid, who were actually working prior to

taking the institution under the Grant­in­Aid list. Another

Circular dated 18.03.2016 provided for the application of

2 reservation policy. Since the said Circulars were affecting

some of the teachers, one of them Satya Prakash Shukla

filed Writ Petition No.29784 of 2016 before the Lucknow

Bench of the Allahabad High Court. The said Writ Petition

was allowed vide order dated 21.12.2016 on the statement

made by the Joint Secretary, Department of Secondary

Education “that the payment of salary to the teachers shall

be made on the basis of seniority of teachers as disclosed in

the Manager’s Return”. Unfortunately, the Director

Secondary Education ignoring the statement so made by the

Joint Secretary before the High Court bifurcated the posts of

Assistant Teachers vide order dated 28.03.2017 and

directed that one Neeraj Kumar Mishra, who was almost five

years junior to one Pancham Lal Pandey, to be paid salary.

Accordingly, the aforesaid Pancham Lal Pandey preferred

Writ Petition No.19709 of 2017 challenging the order dated

28.03.2017 passed by the Director Secondary Education.

The aforesaid writ petition upon hearing the parties was

allowed vide judgment and order dated 15.04.2019

quashing the order dated 28.03.2017 with directions to the

3 authorities to declare Pancham Lal Pandey entitled to

payment of salary from the State Exchequer.

6. The aforesaid judgment and order of the High Court dated

15.04.2019 was assailed by Neeraj Kumar Mishra as well as

State Government by separate Special Appeal Nos.578 of

2019 and 767 of 2019. The Special Appeal No.578 of 2019

of Neeraj Kumar Mishra was dismissed on 14.05.2019 and

that filed by the State Government, i.e., Special Appeal

No.767 of 2019 was dismissed on 22.08.2019.

7. The aforesaid Neeraj Kumar Mishra preferred Special Leave

Petition (Civil) No.23466 of 2019 before this Court which

came to be dismissed vide order dated 14.10.2019.

8. Upon dismissal of the Special Appeal filed by the State, a

Special Leave Petition (Civil) Diary No.782 of 2020 was

preferred by the State and the same was dismissed on

24.01.2020 with the clarification that the liability of the

State shall be limited to pay the salary to the Headmaster

and four teachers upto the sanctioned strength.

9. It is in the above background that Neeraj Kumar Mishra

applied for the review in Special Appeal No.578 of 2019, i.e.,

4 against the order dated 14.05.2019, whereby his Special

Appeal against the judgment and order of the learned Single

Judge dated 15.04.2019 was dismissed. The aforesaid

Review Application has been allowed by the impugned

judgment and order dated 05.02.2021.

10. In assailing the aforesaid order, the submission of learned

counsel for the appellant herein, i.e., Pancham Lal Pandey is

that the Review Application was not maintainable as there

was no error apparent on the face of the record in

dismissing the Special Appeal filed by Neeraj Kumar Mishra

and that the review has been allowed without considering

his objections with regard to its maintainability.

11. Mr. V.K. Shukla, learned Senior Counsel on the other hand

defended the order on the ground that the learned Single

Judge has manifestly erred in law in allowing the writ

petition and that if the order is allowed to stand, it will

perpetuate illegality which is not permissible in law. The

review petition was rightly allowed as there was an error

apparent in the order of the Division Bench dismissing the

Special Appeal inasmuch as in the light of Section 9 read

5 with Section 10 of the Uttar Pradesh High Schools and

Intermediate Colleges (Payment of Salaries of Teachers and

other Employees) Act, 1971, the institution is not entitled to

create any new post of a teacher or any employee without

the previous approval of the Director and that the State

Government is liable for payment of salary of teachers and

employees only in respect of those, who have been validly

appointed with the approval of the Director.

12. In the review petition the order of the Division Bench dated

05.02.2021 was sought to be reviewed and not of the Single

Judge allowing the writ petition. The illegality, if any,

pointed out in the order of the Single Judge is not material

to review the decision of the Division Bench passed in

Special Appeal.

13. The Single Judge has allowed the writ petition in the light of

the statement of the Joint Secretary, Department of

Secondary Education that payment of salary to teachers

shall be made on the basis of seniority and therefore, the

subject of teaching had no relevance. The bifurcation of the

sanctioned posts of Assistant Teachers of the institution

6 subject wise is simply an internal matter of the institution

which does not put any extra burden upon the State. The

institution was taken on Grant­in­Aid list with a

Headmaster and four Assistant Teachers in order of

seniority and thus permitting only five persons to receive

salary from the Government fund is not illegal. There is no

creation of any new post of Assistant Teacher at the

Institution by the Court. The Writ Court, therefore, rightly

allowed the writ petition and the Division Bench has not

committed any error in dismissing the Special Appeal.

14. It is not the case of any one that the above orders permit

payment of salary to teachers beyond the sanctioned

strength. Therefore, the Full Bench decision in State of

U.P. through Secretary, Secondary Educations & Ors.

vs. C/M, Sri Sukhpal Intermediate College, Tirhut,

Sultanpur & Ors. in Special Appeal Defective No.673 of

2014 decided on 12.5.2015 holding that in the absence of

sanctioned post, a direction for payment of salary cannot be

given is not helpful.

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15. The provision of review is not to scrutinize the correctness of

the decision rendered rather to correct the error, if any,

which is visible on the face of the order / record without

going into as to whether there is a possibility of another

opinion different from the one expressed.

16. The Division Bench in allowing the review petition has dealt

with the matter as it is seized of the special appeal itself and

has virtually reversed the decision by taking a completely

new stand for the payment of salary to teachers’ subject­

wise. It amounts to rehearing and rewriting the judgment in

appeal without there being any error apparent on the face in

the earlier order. The Division Bench thus clearly exceeded

its review jurisdiction in passing the impugned order.

17. In the facts and circumstances of the case, we are of the

opinion that the impugned order dated 05.02.2021 allowing

the review is unsustainable in law and is accordingly set

aside.

18. The appeal is allowed with no order as to costs.

19. All the pending applications, if any, stand disposed of.

8 …………………………….. J.

[V. Ramasubramanian]

………………………………..J. [Pankaj Mithal] New Delhi;

February 15, 2023.

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