MOHAMMAD FUZAIL ANSARI Vs. STATE OF U P

JUDGEMENT

(1.) The only question in this petition is whether the petitioner who has been appointed by the management on 7.7.1997 on the post of Lecturer Urdu, in absence of any creation or sanction of post of Lecturer Urdu is entitled to continue as Lecturer and payment of salary as he is teaching Urdu in intermediate classes since his appointment?

(2.) The controversy stands squarely covered by a Full Bench decision of this Court in Gopal Dubey v. District Inspector of Schools, 1999 (1) UPLBEC 1. It was held that recognition of a subject did not amount to presumed creation of post. The Bench, held that in absence of sanction or creation of post, the State Government was not liable to pay the salary nor the management could claim reimbursement of it. But Sri P. K. Ganguli the learned counsel for the petitioner vehemently argued that once the District Inspector of Schools. Azamgarh (in brief DIOS) granted permission to start intermediate class in Urdu, it shall be deemed that the post was created and the petitioner who was appointed by the management was entitled to salary. He relied on the judgment of Apex Court in Chandigarh Administration and others v. Rajni Vali (Mrs.) and others, (2000) 2 SCC 42.

(3.) To decide whether the ratio laid down by the Apex Court is helpful to the petitioner, it is necessary to narrate facts in brief. Muslim Inter College, Mau (in brief institution) was granted recognition in 1956 under the U. P. Intermediate Education Act. 1921 (in brief Act 1921). The institution was taken in grant-in-aid list, in April 1971, under the U. P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act. 1971 (in brief Salaries Act). The DIOS by its order dated 13.7.1976 on the request of the institution, granted permission to run Urdu classes. By order dated 24.2.1977, it was made effective from 1977 examination. Till 1993, there was no difficulty as Sri Abdul Ali, the Principal of the institution taught Urdu to intermediate classes. He retired on 30.6.1993. On 26.10.1994 the State Government recognised it as minority institution. This order was set aside in Civil Misc. Writ Petition No. 37414 of 1994 decided on 22.8.1997. Special Appeal is pending against this order. The Bench directed status quo to be maintained. During the pendency of Special Appeal, the management appointed petitioner on 7.7.1997 as Urdu Lecturer. His appointment was approved by the DIOS. The Deputy Director of Education appears to have initiated inquiry in the matter of approval granted to petitioner's appointment and by his order dated 17.12.1997, payment of salary to petitioner was stopped. This order dated 17.12.1997 was challenged by petitioner in Civil Misc. Writ Petition No. 12477 of 1998. This Court disposed of the writ petition on 9.4.1998 and directed the Joint Director of Education, Azamgarh, to decide the representation of the petitioner. By his order dated 14.7.1998, the representation has been rejected by Joint Director of Education on the ground that eleven posts of Lecturer in different subjects had been sanctioned in the institution but no post of Lecturer Urdu was created or sanctioned. Therefore, the management could not appoint the petitioner on the post of Lecturer Urdu. Approval of DIOS was obtained by concealment of material facts. It is this order dated 14.7.1998 which has been challenged by the petitioner in the present writ petition. Petitioner has filed documents to show that Urdu was recognised by authorities since long but he has failed to produce any document to show that sanction for creation of post was granted.