Full Judgment Text
NonReportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
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. Tripathi Ramroop Sanskrit Vidyalaya, Jogapur, Kaushambi
Digitally signed by
NIRMALA NEGI
Date: 2023.02.15
15:21:58 IST
Reason:
in the State of Uttar Pradesh is a recognised institution
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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.
The State Government sanctioned five posts for payment of
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salary from the State Exchequer in respect of the above
institution, one for the Headmaster and four for the
Assistant Teachers.
The Principal Secretary, Government of Uttar Pradesh
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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
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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
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authorities to declare Pancham Lal Pandey entitled to
payment of salary from the State Exchequer.
The aforesaid judgment and order of the High Court dated
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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.
Upon dismissal of the Special Appeal filed by the State, a
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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.
It is in the above background that Neeraj Kumar Mishra
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applied for the review in Special Appeal No.578 of 2019, i.e.,
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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
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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.
The Single Judge has allowed the writ petition in the light of
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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
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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.
It is not the case of any one that the above orders permit
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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,
in Special Appeal Defective No.673 of
Sultanpur & Ors.
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.
In the facts and circumstances of the case, we are of the
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opinion that the impugned order dated 05.02.2021 allowing
the review is unsustainable in law and is accordingly set
aside.
The appeal is allowed with no order as to costs.
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19. All the pending applications, if any, stand disposed of.
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…………………………….. J.
[V. Ramasubramanian]
………………………………..J.
[Pankaj Mithal]
New Delhi;
February 15, 2023.
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