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PETITIONER: STATE OF U.P. & ORS.

       Vs.

RESPONDENT: COMMITTEE OF MANAGEMENT AZADUCHCHTAR MADHYAMIK VIDYALAYA & A

DATE OF JUDGMENT:       03/02/1997

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted. We have heard counsel on both sides.      This appeal  by special  leave arises from the judgment of the  Division Bench  of the Allahabad High Court, made on September 7, 1994 in Special Appeal No. 131/93.      The Division  Bench by  the impugned order has directed the Inspector  of Schools  to  inspect  the  primary  school covered under  the provisions of Payment of Salary Act, 1971 to find  out whether  the primary section has been merged or attached to  the High  School which  was upgraded  in  1974, whether the  teachers have  been working  in that school and whether salary  was to  be paid  to such  teachers  who  are working as  per the said report. We have called for the said report in  that behalf.  In the  report dated 25.1.1997, the District Inspector of Schools has stated that the inspection of  the   attached  primary   section  of   the  respondent- Institution was  made on  January 7,  1997.  It  is  further stated that the primary section of the school was recognised as an attached institution as per the orders of the District Inspector of Schools, Gorakhpur, dated September 6, 1989 and the payment of salary to the teachers of the primary section attached to  the High Court was being made under the Payment of Salary  Act, 1971. But after the school was detached from the list of the approved schools, the payment of salary came to be  stopped. It is further stated that as per the records of  the   Institution,  the   attached  Primary   School  is continuing from the year 1970. It is also stated that "[I] n the attached Primary Section of the institution total number of 21  teachers are teaching in which 19 (Nineteen) teachers are untrained  and 2  (Two) are  trained". More details have been furnished  in the  report. As  regards  the  number  of students found in the Primary section of the institution, it is furnished  in the report that as on 7.1.97 a total number of 859  students had  been registered  and 611 students were present. It  is further  stated that "[T]he present attached Primary  Section  is  /  governed  by  the  same  Authorised Controller/Principal of  the High  Secondary School  and the Education is imported within the same campus as per rules."      In view  of the  above  report,  the  question  arises: whether the  Primary section  of the  respondent-Institution

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should be  continued to  be attached  to the  High School or should be detached and whether a separate school is required to be  established under the Basic Shiksha Parishad. When we put the  question to  the  learned  counsel  for  the  State whether any  separate school  has been  established in  that village, he  is unable  to give  us any  information in that behalf. It  would be  obvious from the report submitted that no other  Government school appears to be functioning there. Otherwise, the Inspector would have reported in that behalf.      In view  of the  fact that  more than  600 students, as against  more   the  800  students  enrolled,  are  actually studying in  the school,  we think  that attachment  of  the Primary section  from 1970  to the  upgraded school  of 1974 would be  justified. However,  with  regard  to  payment  of salary,  it  is  not  clear  from  the  record  whether  the untrained teachers are entitled to payment of salary; if so, at what  rate and  upto what  period and  whether  untrained teachers are  required to  be appointed  under the  relevant rules. In the absence of such factual and legal position, it would not be safe to give any direction on that issue. Under those circumstances,  we think that appropriate course would be that  the District  Inspector of Schools, Maharaj Ganj be directed to  enquire,  after  notice  to  the  teachers  and Manager-respondents to  decide whether the payment of salary to the  19 untrained  teachers could  be made  and if so, at what rates,  as per  Government rules,  and upto what period and what  would be  the procedure  taken for  appointment of untrained teachers  in the  school as per the existing rules and the  procedure. When the report in that behalf is given, the issue  of payment of salary to them would be accordingly decided. As  regards the  two  trained  teachers,  they  are required to  be paid  the full  salary as per the Payment of Salary  Act,   1971  from   the  date   of  their  acquiring qualifications or  the date  of their assuming the charge as teachers, whichever  is  later.  As  regards  the  untrained teachers, they  are required  to be paid after the necessary enquiry is  completed. the  Inspector of Schools is directed to complete  the enquiry  within a period of two months from today and  then make  necessary payment of salary as per the rules.      In appeal is accordingly disposed of, No. costs.