# Administration and others v. Rajni Vali

- **Citation:** (2001) 1 ILRA 268
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/administration-and-others-v-rajni-vali-39611
- **Pages:** 4

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2001
268
With the above observation, both the
revisions stand dismissed.
Revision Dismissed.

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By the Court

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 of 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
judgement 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
1All] Mohammad Fuzail Ansari V. State of U.P. and others
269
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 has 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 authority since long but he
has failed to produce any document to
show that sanction for creation of post
was granted.

4. The argument of the learned
counsel for the petitioner is that the
decision of the apex court in Chandigarh
Administration (supra) squarely applies to
the petitioner's case. Since permission to
run Urdu classes in intermediate was
granted by the competent authority and he
is the only teacher appointed in the
institution who is not being paid salary
and
his
other
counterparts
in
the
institution are being paid salary from the
grant-in-aid
received from the state
government, therefore, on the ratio of this
decision non-payment of salary to him is
discriminatory.

5. It is necessary to examine the
decision of apex court in this case
permission to open class XI and XII was
granted on Chandigarh Administration
(supra) the condition that no grant-in-aid
would be provided for additional staff or
teaching the new subjects Humanities and
Commerce. New teachers were appointed
for teaching Humanities and Commerce
by the institution but they were not being
paid salaries from the grant-in-aid. They
filed writ petition before the High court of
Punjab and Haryana and claimed equal
pay for equal work. They claimed that
same salary and allowances be paid to
them which were paid to other teachers to
the institution who were teaching class X
and were paid salary in the sanctioned pay
scale from the grant-in-aid. It was also
claimed that non-payment of salary
amounted to discrimination. The High
Court accepted their claim and directed
that same salary be paid to the new
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
270
teaches which was being paid to other
teachers of the institution and held the
non-payment
of
same
salary
was
discriminatory. The apex court observed,
that classes in Humanities and Commerce
was started with the permission of the
competent authorities for class XI and
XII. Other teachers in the institution were
being paid salaries by the government as
it was an aided institution. In the same
institution two class of teachers were
working one who were paid salary from
grant-in-aid and the other for whom no
grant-in-aid was available for payment of
salary. The apex court held, that there was
no justification for denying parity of pay
scale to additional teachers who were
appointed for teaching Humanities and
Commerce for whom grant-in-aid was not
available as it would be discriminatory. It
was
the
responsibility
of
state
administration to find out the ways and
means of securing funds for the purpose.
The apex court did not examine the effect
of appointment against a non-sanctioned
post. The only dispute was whether the
management was justified in paying
different pay scales to teachers doing the
same duty. And the court held that
payment of two different scales to
teachers of same class was discriminatory.

6. But in the instant petition it is not
disputed that the post of Lecturer Urdu
was not created or sanctioned in the
institution. The question arises as to
whether salary could be paid to a teacher
who was not working on a sanctioned
post. This question has been considered
by a Full Bench o this court in Gopal
Dubey (supra) and it has been held that
section 9 of the Salaries Act expressly
mandates that no new post of teacher or
employees shall be created by the
institution
except with the previous
approval o the Director in writing. No
doubt the Director under the Act 1921
grant recognition for opening a subject in
the college. But it cannot be presumed
that permission to run classes under Act
1921 amounts to deemed consent of the
Director under the Salaries Act. Since
there was no written permission of the
Director for creating the post of Lecturer
Urdu under section 9 of the Salaries Act,
petitioner cannot be paid any salary. The
Full Bench considered section 7-A of Act
1921 which permits the Board to permit
an institution to give education in a
subject. But it held after examining this
section and section 9 of the Salaries Act
that in absence of sanction no salary could
be paid to a teacher teaching a recognised
subject. The learned counsel for the
petitioner has urged that the decision of
the apex court is binding on me and if I do
nor agree with it then the matter should be
referred to larger bench. The decision of
the
apex
court
in
Chandigarh
Administration (supra) for the reasons
stated earlier is not applicable to the facts
of this case. On the other hand the
specific question before the Full Bench
was whether permission to teach a subject
amounted to creation of a post. It was not
accepted by the Full Bench. The reason is
other than those for which sanction has
been given, on the existing staff. For
instance Sri Abdul Ali who was principal
taught
Urdu
till
1993.
Granting
recognition
for
teaching
would
not
amount to sanction or creation of post that
could be done as provided in law. There is
no scope of deemed sanction. The Full
Bench is binding on me. I do not find any
reason to disagree with it.

7. Learned counsel for the petitioner
has lastly urged that the Director of
Education be directed to decide the matter
1All] M/s Buland Motor and Land Finance P. Ltd. V. A. C., Income Tax & others
271
of creation of post of Lecturer Urdu.
There is not material on record that the
management had applied to the Director
for creation of the post. The petitioner is a
teacher and he has no locus-standi to seek
a direction from this court for creation of
the post of Lecturer Urdu by the Director.
If the management makes an application
for creation of the post the Director may
consider it. It is open to the petitioner to
claim salary from the management for the
period he has worked from the funds
other than government.

8. Subject to the observations made
above this writ petition dismissed.

9. Parties shall bear their own costs.
Petition Dismissed.

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By the Court

1. This writ petition has been filed
praying for quashing of the order dated
7.9.98 (Annexure -7 to the petition) and
the
demand
notice
dated
30.3.95
(Annexure-4 to the petition) in respect of
interest under section 234-A and 234-B of
the Income Tax Act, and for a mandamus
restraining the respondents from realising
interest under those Sections. It has
further been prayed that the petitioners
Appeal No. Nil of 1995 be disposed of
within a reasonable time.

2. Heard Sri V.B. Upadhyaya and
Sri R.N. Singh learned counsels for the
petitioners, as well as learned counsel for
the Department.

3. The petitioner is a Company
registered under the Indian Companies
Act.
It
is
a
non-Banking
Finance
Company controlled by Reserve Bank of
India. Its business is akin to that of a
Commercial Bank and it accepts deposits,
and interests the funds in hire purchase
business. For the Assessment Year 1989-