State liable for teachers' salaries from grant-in-aid date when posts created; token grants invalid; employees entitled to arrears despite delayed absorption and institute not litigating.

JUDGMENT :

Subhash Upadhyay, J.

Heard the learned counsel for the petitioner and learned counsel for the State of Uttarakhand.

2. This writ petition has been filed with the following prayers:

“i) Issue a writ order or direction in the nature of mandamus commanding the respondents to pay the salary to the petitioner from the date of including the school S.R.D. Bahuguna Inter College, Sevelakala, Dehradun under the Grant-In-Aid i.e. 28.2.2014.

ii) Issue any other or further writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.

iii) To award the cost of the petition in favour of the petitioner.”

3. The facts narrated in the writ petition are as follows:

The petitioner was appointed as an Assistant Teacher on 03.07.2012 at the SRD Bahuguna Inter College, Sevelakala, Dehradun. The said institute is recognized by the Uttarakhand Education Board and was run by the Committee of Management. The Government of Uttarakhand took a decision to include the said institute into grant-in-aid and a notification dated 28.02.2014 was issued to the said effect.

Learned counsel for the petitioner submits that the salary to the petitioner was not paid w.e.f. 28.02.2014 and as such he submitted a representation on 01.04.2017 for the payment of salary and when no decision was taken on the said representation then the present writ petition was filed.

4. Learned counsel for the petitioner submits that as per Section 50 of the UTTARAKHAND SCHOOL EDUCATION ACT , 2006, the liability in respect of salary of the teaching and non-teaching staff is of the State Government. Section 50 of the UTTARAKHAND SCHOOL EDUCATION ACT , 2006 reads as under:

“ Section 50 - Liability in respect of salary:

(1) The State Government shall be liable for payment of salaries of teachers and employees of every institution receiving maintenance grant from the State Government due in respect of any period from the date of the commencement of this Act.

(2) The State Government may recover any amount in respect of which any liability is incurred by it under sub-section (1) by attachment of the income from the property belonging to or vested in the Institution as if that amount were an arrear of land revenue due from the institution receiving maintenance grant from the State Government.

(3) Nothing in this section shall be deemed to derogate from the liability of the institution for any such dues to the teacher or employee.”

5. Learned counsel for the respondents, however, submits that the posts were not sanctioned vide order dated 28.02.2014 which is a condition prerequisite and the institute was thereafter taken under token grant vide GO dated 01.02.2016 as such petitioner is not liable to be paid salary w.e.f. 28.02.2014.

6. In reply, learned counsel for the petitioner submits that there is no provision of token grant and vide notification dated 28.02.2014 when the institute was taken into grant-in-aid the posts were also created in the institute. He submits that after filing of the writ petition, the Government of Uttarakhand issued another notification dated 28.02.2019 wherein the earlier Government Order by which the institute was taken into token grant was obliterated and the Government Order dated 28.02.2014 was never cancelled.

7. He further submits that in similar circumstances, the State Government has issued notifications wherein the institutes which were earlier taken into grant-in-aid were put into token grant and the said order of putting the said institute into tok