# Digvijai Singh and another v. Director of Education

- **Citation:** (2010) 1 ILRA 268
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-03-10
- **Case number:** Civil Misc. Writ Petition No. 12789 of 1992
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/digvijai-singh-and-another-v-director-of-education-41589
- **Pages:** 3

## Headnote

Sri A.B. Singh
Sri Swaraj Prakash
S.C.
1 All] Digvijay Singh and another V. Director of Education (Secondary) and others

269
U.P. High Schools and Intermediate
Colleges
(Payment
of
Salaries
of
Teachers & other Employees Act, 1971Section-9-Payment of Salary-petitioner
imparting education to High School
students-post of L.T. Grade Science
Teacher never created-held-not entitled
for
salary
from
public
exchequerpetitioner
can
put
claim
against
Management.

Held: Para 6

A teacher is entitled for payment of
salary from the State Exchequer only if
he has been appointed against a duly
sanctioned post with reference to the
provisions of Section 9 of the Act of

## Text

268 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

U.P. and another, 2009 (3) U.P. Crl.
Rulings 427.

4. Certified copy of the impugned
order of taking cognizance is paper No.
45, which shows that the said order has
been passed on the printed proforma by
filing up the blanks. The blanks on the
printed proforma appear to have been
filled by court employee and the learned
magistrate thereafter put his initial, which
shows non-application of judicial mind in
passing the said order. It is very
unfortunate that judicial order of taking
cognizance has been passed by the
learned magistrate by filling up blanks on
printed proforma. This type of order has
been held illegal by this Court in Ankit
case (supra). Hence the impugned order is
liable to be quashed on this ground alone.

5. The learned AGA has submitted
that in view of the law laid down in Ankit
case (supra), after setting aside the
impugned order, direction be issued to the
magistrate concerned to pass fresh order
on the charge sheet. I find force in this
submission.

6. Consequently, the application
under section 482 Cr.P. C. is allowed. The
order dated 02.12.2009 passed by ACJM,
Court No. 3, Ghaziabad, in Case No. 3860
of 2009 (State vs. Saurabh Dewana),
arising out of Case Crime No. 1144 of
2009, under sections 420, 467, 468, 471
IPC,
P.S.
Singhani
Gate,
District
Ghaziabad, is hereby quashed.

7. The learned magistrate is directed
to pass fresh order on the charge-sheet in
aforesaid case after applying its judicial
mind.

8. Let a copy of this order be sent to
the lower court concerned for compliance.

9. The Registrar General is directed
to send a copy of this order to the District
Judge
Ghaziabad,
who
may
issue
administrative instruction to all the
presiding officers restraining them from
using printed proforma in passing judicial
order.
The
blank
printed
proforma
available in the offices of all courts in
Ghaziabad judgeship be got destroyed by
the District Judge.

10. If approved by the Hon'ble
Administrative Committee, let a circular
letter be issued by the Registrar General
restraining the judicial officers in Uttar
Pradesh from using printed/ cyclostyled
proforma for passing any type of judicial
order.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.03.2010

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 12789 of 1992

Digvijai Singh and another ...Petitioners
Versus
Director
of
Education
(Secondary),
Allahabad and others ...Respondents

Counsel for the Petitioners:
Sri A.K. Misra
Sri A.K. Srivastava
Sri Tarun Verma
Sri Yogendra Kumar Srivastava

Counsel for the Respondents:
Sri A.B. Singh
Sri Swaraj Prakash
S.C.
1 All] Digvijay Singh and another V. Director of Education (Secondary) and others

269
U.P. High Schools and Intermediate
Colleges
(Payment
of
Salaries
of
Teachers & other Employees Act, 1971Section-9-Payment of Salary-petitioner
imparting education to High School
students-post of L.T. Grade Science
Teacher never created-held-not entitled
for
salary
from
public
exchequerpetitioner
can
put
claim
against
Management.

Held: Para 6

A teacher is entitled for payment of
salary from the State Exchequer only if
he has been appointed against a duly
sanctioned post with reference to the
provisions of Section 9 of the Act of
1971. No teacher can be appointed in
absence of a duly created post. After the
post is created it has to be filled in
accordance with the statutory provisions
applicable then. No earlier appointee can
be
adjusted
against
such
a
post.
Therefore, the relief prayed for by the
petitioners for payment of salary after
conversion of the post has necessarily to
be rejected.

(Delivered by Hon'ble Arun Tandon, J.)

1. This writ petition has been filed
for the following relief:

"issue a writ, order or direction in
the nature of mandamus directing the
respondents
to
pay
salary
to
the
petitioners and to create and sanction
two posts in Science, one in Biology and
the other in Maths from the date of
opening of Science Classes in the
institution."

2. According to the petitioners the
institution
in
question
was
granted
recognition as an High School in Science
subject and students were also admitted in
the said subject. Having regard to the
need of teacher for imparting education in
the Science subjects at High School level,
the petitioners were offered appointment
by the Management of the institution.
Copy of the letters offering appointment
to the petitioners have been enclosed as
Annexures-3 and 4 to the writ petition.

3. Admittedly no post of Science
teacher at High School level was created
in the institution with reference to Section
9 of Uttar Pradesh High Schools and
Intermediate Colleges (Payment of
Salaries
of
Teachers
and
other
Employees)
Act,
1971
(hereinafter
referred to as Act, 1971), the question of
payment of salary to the petitioners from
the State Exchequer did not arrive.

A supplementary affidavit has been
filed today on behalf of the petitioner. It
has been stated that the Committee of
Management had also filed a writ petition
in for the relief of creation of new post of
Science teachers at High School level
being Civil Misc. Writ Petition No. 15557
of 2003. The writ petition was disposed of
on 10.04.2003 requiring the Director of
Education to consider the claim of the
institution for creation of new post of
Science teacher within the time specified.
In compliance to the order of the Court
referred to above, the Director of
Education by means of letter dated
29.08.2007 has refused to create any new
post in the institution. This order is not
under challenge before this Court. The
order records that there are 11 sanctioned
posts of teachers in the institution in Arts
subject including that of Head Master.
Having regard to the strength of students
admitted in various subjects of Arts, only
07 teachers are required and, therefore, it
has been observed that two posts of Arts
teachers lying vacant in the institution
may be converted into that of Science
270 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

subject's post for which on an application
being made, appropriate orders shall be
passed.

4. Counsel for the petitioner with
reference to the said order submits that
since the Director of Education himself
has recorded that the petitioners are
teaching in the institution, the Director
should have directed payment of salary to
the
petitioners
after
permitting
the
conversion of the existing two posts..

5. Having heard learned counsel for
the parties and having gone through the
records of the present writ petition, I am
of the considered opinion that the
contention raised on behalf of the writ
petitioners is totally misplaced.

6. A teacher is entitled for payment
of salary from the State Exchequer only if
he has been appointed against a duly
sanctioned post with reference to the
provisions of Section 9 of the Act of
1971. No teacher can be appointed in
absence of a duly created post. After the
post is created it has to be filled in
accordance with the statutory provisions
applicable then. No earlier appointee can
be adjusted against such a post. Therefore,
the relief prayed for by the petitioners for
payment of salary after conversion of the
post has necessarily to be rejected.

7. It goes without saying that if the
Management of the institution makes an
application for conversion of the post of
L.T. Grade Teacher (Arts) to that of L.T.
Grade Teacher (Science), the matter shall
be considered by the competent authority.
Fresh recruitment shall thereafter be made
in accordance with the provision of
Intermediate
Education
Act/U.P.
Secondary Education Services Selection
Board Act, 1982 and the petitioners will
be at liberty to apply.

8. For the period during which the
petitioners may have worked in the
institution in absence of a duly sanctioned
post of Science Teacher, the responsibility
of making payment of salary is upon the
Management of the institution alone. If
the petitioners are so advised, they may
initiate such suit proceedings against the
Management as they may be advised.

9. Writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.03.2010

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 11825 of 2010

Uma Shanker Rai and others...Petitioners
Versus
Deputy Dirctor, Consolidation, Azamgarh
and others

 ...Respondents

Counsel for the Petitioners:
Sri Sankatha Rai
Sri J.P. Singh

Counsel for the Respondents:
Sri Mahesh Narain Singh
Sri Priya Ranjan Rai
C.S.C.

U.P. Consolidation of Holding Act Section
48
(3)-Power
of
Dy.
Director
of
Consolidation-against
present
consolidation
scheme
on
serious
complaint regarding allotment of Gaon
Sabha land to Private chak holders-the
D.D.C. deputed settlement officer of
consolidation-who visited in village in
question recorded statement of the
chairman
and
the
member
of