IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.236 of 2005 (S/B) (Old No.19436 of 1997) Sanjiv Kumar Thapliyal S/o Sri C.N. Thapliyal R/o 55-C, East Canal Road, Dehradun. ....Petitioner Versus 1. State of U.P. through Education Secretary (Higher Education) Sachivalaya, Lucknow. 2. The Director of Higher Education Uttar Pradesh, Allahabad. 3. The Deputy Director of Education Pauri Garhwal. 4. The District Inspector of Schools Dehradun. 5. The Committee of Management of D.A.V. Post Graduate College, Dehradun. 6. The Vice Chancellor, H.N. University Srinagar, Garhwal (commonly known as Garhwal University). ...Respondents Mr. Rajendra Dobhal, Senior Advocate assisted by Mr. G.D. Joshi, learned counsel for the petitioner. Mr. Subhash Upadhyay, Brief Holder for respondent nos.1 to 4. Mr. J.P. Joshi, Advocate for respondent no.6. None present for respondent no.5. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble V.K. Bist, J. 2 Prafulla C. Pant, J. (Oral) By means of this writ petition under Article 226 of the Constitution of India, the petitioner has sought writ in the nature of certiorari quashing the order dated 25.10.1996 (copy annexure 8 to the writ petition) whereby the Director Higher Education has referring to the Government Order dated 19.04.1993 directed the District Education Officer, Dehradun to inform the college run by respondent no.5 to send requisition for filling six posts in the law faculty. Also, a mandamus has been sought by the petitioner to permit him to work at part time lecturer in the D.A.V. Post Graduate College, Dehradun run by respondent no.5. A further mandamus has been sought providing the respondents to pay salary of the petitioner from month to month since 07.11.1991 till 30.04.1997. 2. Heard learned counsel for the parties and perused the affidavits on record. 3. Brief facts of the case as stated in the writ petition are that the petitioner is working as a part time lecturer in the Department of Law in the D.A.V. Post Graduate College, Dehradun since 07.11.1991. The College is affiliated with respondent no.6 University. It is stated that the petitioner’s appointment as part time lecturer, was made as per Government Order No.2251/15-78(11)-3(49)/75 dated 15th June, 1978 read with Government Order No.4811/15-78(11)- 3 3(84)/75 dated 16th August, 1978. It is pleaded that the petitioner’s appointment was approved by the Vice Chancellor of respondent no.6-University with whom the college is affiliated. However the respondent no.4 (District Inspector of Schools) vide letter dated 25.05.1996 kept the payment of salary of the petitioner from Government fund, in abeyance. Hence, this writ petition challenging the decision of the Government not to pay the salary. It is sated that under Section 60 E of the U.P. State University Act, 1973 payment of salary to the petitioner is to be made as and when it falls due and the petitioner cannot be denied the same. 4. In the counter affidavit filed on behalf of the respondent no.1 it has been stated that the college in which the petitioner is working as part time teacher is a private college. Under Government Order dated 15.06.1978 (copy of which is annexure 3 to the writ petition) there is stipulation that part time post in the college shall be sanctioned by the Director, Higher Education. As such without the permission and sanction of the Director no part time teacher could be appointed. The respondent no.5 has appointed the petitioner without seeking sanction from Director, Higher Education. Though the petitioner’s appointment was approved by the Vice Chancellor of the University concerned, but as per the Government Order dated 19.04.1993 the scheme of part time teachers had already been closed and the Vice Chancellor had no authority to approve the appointment of a part time teacher for which there was no provision in the law. After 4 filling of this writ petition, the petitioner also filed writ petition no.5734/1999 in which interim mandamus was issued directing the respondents to pay the salary or to show cause within six weeks. In compliance of said order dated 22.05.2000, after the petitioner filed contempt petition the payment was made to the petitioner. But he is not entitled to the same. 5. In the rejoinder affidavit the petitioner has reiterated the averments made in the writ petition. 6. Admittedly petitioner is working as part time lecturer with D.A.V. Post Graduate College run by respondent no.5 i.e. Committee of Management of the college, and he is not working in the Government College. No doubt the college is affiliated with the H.N.B. Garhwal University but before the respondent nos.1 to 4 are held liable to pay petitioner’s salary, the petitioner has to show that the appointment made was in accordance with law with the approval of the authorities of the State Government. Before further discussion it is pertinent to mention here that the Government Order No.2251 dated 15th June, 1978 (copy of which is annexure 3 to the writ petition), itself contains the condition that the part time teacher shall not be appointed for more than 10 months in a session and wherever the part time teacher could be needed the approval will be required before such teacher is appointed, from the Director, Higher Education. There is nothing on the record which shows that before 5 appointment of the petitioner as part time lecturer in D.A.V. Post Graduate College, any sanction or approval was sought from the Director by the Committee of Management, nor is there any such sanction on the record. 7. The learned counsel for the respondents drew attention of this Court to the Government Order No.574/15-10-93-15 (61)/91 dated 19th April, 1993 (copy of which is annexure 9 to the writ petition) whereby the Government has directed that in future no part time lecturers would be appointed and all the colleges were directed to fill the vacancies on regular basis. It is this Government Order in pursuance to which it appears that Director, Higher Education wrote a letter to the District Inspector of Schools, Dehradun (respondent no.4) to make payment in respect of the teachers who were posted against sanctioned post. Copy of the said letter dated 25.05.1996 is annexure 7 to the writ petition). Thereafter vide impugned order dated 25.10.1996 (copy of which is annexure 8 to the writ petition), the Director, Higher Education further directed that District Education Officer referring to the aforesaid Government Order dated 19.04.1993 directed the said authority (respondent no.4) to inform the Principal of the college to fill the six posts of the law faculty on regular basis and it is further clarified that it is not possible for the Government to pay the salary of part time teachers after the Government order dated 19.04.1993 is issued. 6 8. Learned counsel for the petitioner failed to show us as to how petitioner can continue to hold the post with regard to which neither there is sanction from the Director, Higher Education (respondent no.2) nor is the appointment of the petitioner is approved by said authority, more particularly when after the Government Order dated 19.04.1993 further extension of part time post was disapproved in the State and the colleges were directed to make appointments on regular basis. In view of the Government Order dated 15.06.1978 (copy annexure 3 to the writ petition) read with Government Order dated 19.04.1993, impugned order dated 25.10.1996 passed by the Director, Higher Education cannot be said to be illegal. That being so the petitioner is not entitled to the relief sought by him. 9. For the reasons as discussed above, this writ petition is liable to be dismissed. The same is dismissed. However, it is observed that the payment which has already been made to the petitioner during the pendency of the writ petition, shall not be recovered. No order as to costs. (V.K.Bist, J.) (P.C. Pant, J.) 23.12.2009 Arti