STATE OF U P Vs. AMAR SINGH YADAV

JUDGEMENT

(1.) SUPPLEMENTARY affidavit filed today be placed on record. Heard the learned counsel for the appellants Sri Saurabh Lavania and Sri Ramesh Pandey for the respondents. A short question involved in this special appeal is as to whether in the absence of a post, namely, the post having not been created nor sanctioned by the concerned educational authorities, any appointment of the teacher on the said post could be made by the Committee of Management of the institution, which is governed by the provisions of U.P. Intermediate Education Act, 1921 and also by the U.P. High School and Intermediate College (Payment of Salaries of Teachers and other Employees) Act, 1971. In short the facts giving rise to the present special appeal are that in Dr. Ram Manohar Lohia Inter College Semri, Faizabad, which is a recognized institution from the Board of High School and Intermediate Education, U.P. Allahabad and is governed by the provisions of U.P. Intermediate Education Act, 1921, U.P. Secondary Education Services Commission and Selection Board Act, 1982 and also by the U.P. High School and Intermediate College (Payment of Salaries of Teachers and other Employees) Act, 1971, was granted fresh recognition in seven subjects i.e. Hindi, English/Sanskrit, Maths, Science, Social Science, Biology an Moral and Physical Science in science group. On 2.8.1984, the recognition was given and in pursuance of the recognition order, the District Inspector of Schools vide his order dated 10.4.1986 granted permission to start the classes in the above mentioned subjects. The respondent was appointed on 12.9.1990 by the Committee of Management for teaching Mathematics in L.T. Grade, allegedly his appointment was made on ad-hoc basis, but he was not paid salary. The respondent appears to have made approach to the Committee of Management for payment of salary on which, he was informed that for creation/sanction of the post, the relevant papers have been sent to the office of the District Inspector of Schools and he would be paid salary, the moment, the post is created/sanctioned. The respondent alleged that he continued to teach on the assurance given by the Committee of Management that when the post is created/sanctioned, he would be paid salary, but this contingency never happened with the result that he was not paid salary and he has not been paid salary till date. One more fact, which is brought on record in this special appeal is that the papers regarding creation and sanction of the post were forwarded by the Committee of Management in the year 1991, but they did not get any favourable response. The learned Single Judge has allowed the claim of the respondent after observing that the action/order of denial of salary to the respondent was wholly arbitrary and illegal and that it was the order of the government permitting to teach additional subjects and that the institution which is in grant in aid and salary of the teachers is paid by the government and the government also directed to appoint the teachers to teach additional subjects, the same direction would in fact be an order of sanctioning additional subjects to teach those additional subjects. We find that this paragraph appears to be wrongly phrased in the judgement. The intention appears to be that once the educational authorities/the State authorities granted recognition for teaching additional subjects and the permission for the said purpose has also been granted for starting classes by the District Inspector of Schools, the institution in question is in grant in aid and the salary being paid by the State Government, the sanction/creation of post would be deemed to have been granted, whether any formal order has been passed or not. With deep respect to the view expressed by the learned Single Judge, we cannot subscribe to the same in view of Full Bench Judgement of this Court in the case of Gopal Dubey vs. D.I.O.S. Maharajganj, 1999 (1) UPLBEC 1. We find that that aforesaid Full Bench Judgement appears not to have been cited before the learned Single Judge and, therefore, the directions issued by him cannot be upheld in the teeth of the aforesaid judgement. Merely granting recognition for additional subjects by the educational authorities and thereafter permission to start classes would not mean and cannot be taken to mean that the required post also stands created/sanctioned. The creation of post and its sanction is to be done specifically by the concerned authority, namely, the Director of Education. In the instant case, admittedly the post has neither been created nor sanctioned. If the Committee of Management of its own knowing fully well that it has no right to appoint a teacher on a post, which does not exist for teaching even the additional subjects had appointed the respondent, it would be responsible to make payment of the salary in whatever scale from its own resources, but the Committee of Management cannot pursue that such a teacher/appointee should be paid salary under the provisions of the U.P. High School and Intermediate College (Payment of Salaries of Teachers and other Employees) Act, 1971. The respondent was also made aware and rather undisputedly was communicated by the Committee of Management as far back as in the year 1991 that he would be paid salary only when the post is sanctioned or created. Even thereafter, he chose to continue to teach, therefore, he also cannot claim that he be paid salary from day one under the Payment of Salaries Act, 1971. We may like to put a note of caution at this place that the case of the respondent may be genuine but making of illegal and unauthorised appointments by the Committee of Management of different institutions of their own, cannot make an appointment legal, which results into payment of salary to such teachers some times under the orders of the court or otherwise. If the Act or the Rules provide a specific rule of appointment and the circumstances in which the appointment can be made on the post of Assistant Teacher, and if any appointment is made in deviation to the aforesaid statutory provisions, neither the appointee nor the employer or the appointing authority can claim any advantage for regularizing such an appointment or for payment of salary. At the same time, it is also a matter of concern that the educational authorities do grant recognition for teaching additional subjects and for which permission is also granted for running classes by the District Inspector of Schools but the posts are not sanctioned nor created. This creates an anomaly, if the additional subjects have been allowed to be taught to the students for which due recognition has been granted by the government and permission for running classes has also been granted by the District Inspector of Schools, but the post is not sanctioned. There cannot be any occasion for the concerned educational authority not to take an early decision with respect to the sanction/creation of the post. If the post is not created/sanctioned and if the Committee of Management cannot appoint a teacher in the absence of such a post, the grant of such recognition to start classes is meaningless and would be of no use. At this juncture, learned counsel for the State submits that after 14.10.1986, in pursuance of the Government Order dated 15.10.1986 whenever an institution is allowed to teach additional subjects, the recognition is granted, which is without financial assistance (Vitviheen Manyata). Be that as it may, in a case where the State Government is not under the obligation to make the payment of salary in terms of the recognition granted, it may be the responsibility of the Management to make the payment of salary unless due sanction is granted by the State Government for creation of post or allowing the payment by the State Government, but in either case, we do not find any reason as to why the concerned educational authority need not consider the question of creation/sanction of post if the law enjoins the duty upon them to do so. So far the present special appeal is concerned, the same deserves to be allowed on the ground that in the absence of any post of Assistant Teacher in the subject concerned being sanctioned, the payment of salary cannot be directed to be made as has been done. On the plea of the respondent that the matter regarding sanction of the post is lying with the State Government and, therefore, a direction be issued for taking a decision in the matter, we, without entering into the claim of either party in this regard, do provide that in case any such proposal has been sent and is pending, the concerned authority shall take an appropriate decision, expeditiously in accordance with law, say within a maximum period of two months from the date of receipt of a certified copy of this order. Learned counsel for the respondent, however, submits that the respondent is not getting the salary in pursuance of the impugned order, but under a different head and independent of the order passed by the learned Single Judge, we do not intend to enter into this plea, as it is not in issue. Accordingly, the special appeal is allowed. No order as to costs.