STATE OF U P DIRECTOR OF EDUCATION DISTRICT INSPECTOR OF SCHOOLS Vs. KAILASH PATI PANDEY SARVAJIT PANDEY

JUDGEMENT

(1.) List revised. None responded on behalf of the respondents even in the revised call although names of Dr. R.G. Padia, Sri Prakash Padia and Sri Indra Dev Mishra are shown in the cause list as counsel for the respondents. However, Sri Amitabh Singh, Advocate, holding brief of Sri Prakash Padia, learned counsel for the respondents informs that he has no instruction in the matter from the respondents and in fact Sri Indra Dev Mishra, Advocate has now been instructed to appear, who has also filed counter affidavit. Name of Sri Indra Dev Mishra, learned counsel is shown in the cause list despite that he is not present. We have, therefore, taken up the matter.

(2.) It appears that Sri Radha Krishan Inter College, Talpurwa, Siddharthnagar is a recognized institution under the U.P. Intermediate Education Act, 1921 and governed by the provisions of the U.P. High School and Intermediate College (Payment of Salaries of Teachers and Ors. Employees) Act, 1971. The institution is being managed by a Committee of Management. It further appears that the committee of management, without there being any vacant sanctioned posts, appointed the petitioner-respondents vide letter of appointment dated 31.1.1991 and when they were not paid salary either by the management or by the State Government, they made a representation before the Manager on 20.3.1991 for the payment of their salary. Thereafter they filed writ petition No. 10966 of 1992 with the prayer, inter alia, that the respondents to the writ petition may be commanded by issuing a writ of mandamus to make regular payment of salary to all the petitioners/respondents along with the arrears of salary w.e.f. 1.2.1991 till the regularly selected candidates from the commission are not appointed. The writ petition was thereafter allowed by the learned Single Judge vide order dated 24.5.1996 directing the State Government to make the payment of salary to all the petitioners/respondents and also to grant approval to their appointment within a period of three months from the date of the order of the Court i.e. 24.5.1996 without further consideration of the fact that the post against which they have been appointed so far have not been created. It is this order of the learned Single Judge, which is impugned in this appeal.

(3.) Sri Haider Zaidi, learned Standing Counsel appearing for the State-appellants submitted that the sole controversy involved in this special appeal is as to whether the State Government is liable to pay salary even if the post is not sanctioned by it. It is submitted that this question was considered by a Full Bench of this Court in the case of Gopal Dubey v. District Inspector of Schools, Maharajganj and Anr., 1999 (1) UPLBEC 1 wherein it was held that merely on auomt of recognition by the board in respect of the subject in the institution Under Section 7-A of the U.P. Intermediate Education Act, 1921 the State Government cannot be saddled with the liability to pay the salary of a teacher unless the post is sanctioned and prior approval is taken by the State Government. He further drew our attention to Section 9 of the Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act 24 of 1971 (hereinafter referred to as 'the Act') and argued that no institution can create new post of teacher or other employees except with the previous approval of the Director, or such officer as may be empowered in that behalf by the Director but the learned Single Jude without considering all these aspects and ignoring Section 9 of the Act, by the impugned order, has directed the appellants to make the payment of salary to the respondents and grant approval of their appointment within a period of three months. It is submitted that in view of the aforesaid judgment and also in view of the provisions contained in Section 9 of the Act, the State Government is not liable to pay salary to the teachers, who are appointed without taking prior approval of the Director, as is required Under Section 9 of the Act and thus, the order of the learned Single Judge cannot br sustained.