# Dr. Ali Ahmad v. State of U.P. and others

- **Citation:** (2010) 1 ILRA 333
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-04-14
- **Case number:** Civil Misc. Writ Petition No.14773 of 2010
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-ali-ahmad-v-state-of-u-p-and-others-41473
- **Pages:** 3

## Headnote

Sri R.C. Dwivedi
Sri R.N. Yadav
C.S.C.

Intermediate
Education
Act-1921,
Section 9-Sanction of two additional post
for class 4 and 5th primary sectionattached with Inter Section-instead of
competent authority the Joint Regional
Director-no authority to create new postin the circumstances the action of Joint
Director against the verdict of full Bench
decision of Gopal Dubey case-not properdirection issued to pay salary from his
own fund by the joint director-govt. to
take action against erring officer.

Held: Para 5

Since the Joint Director is insisting upon
payment of salary of such appointees
even in absence of sanctioned posts, the
Court directs that the salary of the
appointees i.e. respondents no. 8 and 9
shall be paid by Regional Director of
Education from his own salary. For this
purpose he shall transmit the necessary
amount through Bank Draft from his own
salary account, by 7th of each month for
payment to respondents no. 8 & 9.
Case law discussed:
[(1999) 1 UPLBEC.

## Text

1 All] Dr. Ali Ahmad V. State of U.P. and others
333
betterment charges and no rules, no
regulations and no bye-laws are framed to
that extent, obviously the claim in the
name of external development happens to
be external to the law and a claim to
enrich the authority unjustly, therefore,
such claim can not be held to be
sustainable. Hence, the notices/orders
impugned in this writ petition are liable to
be quashed and are quashed. Thus, the
writ petition is allowed, however, without
imposing any cost.

12. In any event, passing of this
order will not affect the right of the
respondent
authority
from
claiming
betterment charges if the area is really
improved to attract so and appropriate
rules and/or regulations and/or bye-laws
are framed in connection thereto.
---------
ORIGINAL JURISDCITION
CIVIL SIDE
DATED: ALLAHABAD 14.04.2010

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No.14773 of 2010

Dr. Ali Ahmad

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Kashif Zaidi
Sri S.M.A. Abdy

Counsel for the Respondents:
Sri R.C. Dwivedi
Sri R.N. Yadav
C.S.C.

Intermediate
Education
Act-1921,
Section 9-Sanction of two additional post
for class 4 and 5th primary sectionattached with Inter Section-instead of
competent authority the Joint Regional
Director-no authority to create new postin the circumstances the action of Joint
Director against the verdict of full Bench
decision of Gopal Dubey case-not properdirection issued to pay salary from his
own fund by the joint director-govt. to
take action against erring officer.

Held: Para 5

Since the Joint Director is insisting upon
payment of salary of such appointees
even in absence of sanctioned posts, the
Court directs that the salary of the
appointees i.e. respondents no. 8 and 9
shall be paid by Regional Director of
Education from his own salary. For this
purpose he shall transmit the necessary
amount through Bank Draft from his own
salary account, by 7th of each month for
payment to respondents no. 8 & 9.
Case law discussed:
[(1999) 1 UPLBEC.

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

1. On record it is an order of the
Regional Inspectorix of Girls School,
Varanasi Region, Varanasi dated 1.5.1989
sanctioning two additional sections for
classes 4 and 5 (primary section attached
to Sajida Girls Inter College). There is no
order
of
the
competent
authority
sanctioning any additional posts of
teachers
for
the
new
sections
so
permitted.

2. Counsel for the petitioner submits
that in view of the Full Bench of this
Court in the case of Gopal Dubey Vs.
District
Inspector
of
Schools,
Maharajganj and another reported in
[(1999) 1 UPLBEC and in absence of any
order of the competent authority i.e.
Director under the provisions of Section 9
of Act no. 24/1971 creating any new posts
after permission to start of new section
334 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
the payment of salary could not be made
to
appointees
working
against
non
sanctioned posts through State Exchequer.

3. The Regional Joint Director of
Education, Varanasi who is present in the
Court with the original records, contends
that with reference to a letter and the
Regional Inspectoress of Girls School
dated 1.5.1989, which records that in
view of the permission to start new
sections in classes 4 and 5, the total
number of primary sections in the
institution will increase to 15 read with
the Manak as provided under the
Government
Order
dated
21.5.1979
(which according to him provides that for
each Section, there shall be a separate
teacher) it has to be presumed that 15
posts were duly created for primary
teachers. Such ignorance on the part of
the Regional Director of Education to the
legal position as explained by full Bench
of this Court in the case of Gopal Dubey
(supra) speaks volumes about the manner
in which public money is being utilized.
The Full Bench of this Court in the case
of Gopal Dubey (supra) has held as
follows:

"In Section 9 of the Act it is
mandated that no institution shall create a
new post of teacher or other employee
except with the prior approval of the
Director or such other officer as may be
empowered
in
that
behalf
by
the
Director."

"The result is that for the purpose of
creating a new post of teacher or other
employee for/in connection with a new
subject, which it has been permitted to
open, the management has to obtain prior
approval of the Director as required
under Section 9 of the payment of salaries
Act. This statutory mandate cannot be
said to have been satisfied by raising a
presumption on the basis of recognition
granted for that subject."

4. This court has no hesitation to
record that the stand taken by the
Regional Director of Education, Varanasi
is nothing but an eye wash for illegal
payments/approval granted against non
sanctioned posts. No posts can be said to
be created for the institution merely
because additional sections are permitted
to open or merely because under the
Manak two additional posts of teachers
can be said to be permissible. Manak is
only a prescription of the minimum
required for teaching but the same cannot
tantamount to creation of posts. The full
Bench in the case of Gopal Dubey (supra)
has held that a separate order under
Section 9 has to be passed by the
competent authority creating the post
before payment can be released through
State Exchequer. It appears that the Joint
Director is unaware of the statutory
provisions and the law as explained by the
Full Bench or either he has deliberately
created a situation wherein unauthorised
payment is sought to be made to the
persons appointed against non-existing
posts.

5. Since the Joint Director is
insisting upon payment of salary of such
appointees even in absence of sanctioned
posts, the Court directs that the salary of
the appointees i.e. respondents no. 8 and 9
shall be paid by Regional Director of
Education from his own salary. For this
purpose he shall transmit the necessary
amount through Bank Draft from his own
salary account, by 7th of each month for
payment to respondents no. 8 & 9.
1 All] U.P.S.R.T.C. and others V. Mohd. Rais Khan
335
6. Parties are at liberty to exchange
further affidavits by the next date.

7. List on 10.5.2010.

8. Copy of this order be forwarded
to the Secretary, Secondary Education,
Govt. of U.P., Lucknow for necessary
action against the Joint Director of
Education, Varanasi.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.04.2010

BEFORE
THE HON'BLE R.K. AGRAWAL, J.

Special Appeal No.972 of 2007

U.P.S.R.T.C. and others
...Appellants
Versus
Mohd. Rais Khan

 ...Respondent

Counsel for the Petitioner:
Samir Sharma

Counsel for the Respondents:
Sri W.H. Khan,
Sri J.H. Khan

Payment of Gratuity Act, 1972- Delay in
Payment-Interest claimed on delayed
amount-objection that if not claimed-
earliest possible opportunity can not be
allowed-held amount of gratuity not
given immediate of retired- which forced
the petitioner to approach again and
again-direction
of
12%
interest
by
Single Judge Justified.

Held Para-3
Sri
Samir
Sharma,
learned
counsel
submitted that the claim of interest is hit
by
the
principles
of
constructive
resjudicata as in Writ Petition No. 55594
of 2000, the contesting respondents had
not claimed payment of interest which
should have been claimed in the earlier
writ petition. We find that even though
the contesting respondents had not
claimed payment of interest in the year
2000 in the writ petition filed in the year
2000 but, this court had not adjudicated
the claim regarding payment of gratuity
relating to the contesting respondent.
Moreover, it is not denied that the
contesting
respondent
retired
on
31.1.1999 and the amount of gratuity
was not paid immediately in accordance
with the scheme of Payment of Gratuity
Act, 1972, thus, forcing the contesting
respondent to approach this Court on a
number of occasions to get the retiral
dues

(Delivered by Hon'ble R.K. Agrawal, J.)

1. The present special appeal has
been filed against the judgment and order
dated 4.4.2007 passed by the learned
single Judge wherein, while allowing the
writ petition preferred by the contesting
respondent, a direction was issued to the
present appellants to pay 12% simple
interest to the respondent on the delayed
payment of gratuity from a date of one
month after his retirement till the amounts
were actually paid. Interest would be
payable on each of the three instalments
of gratuity paid.

2. We have heard Sri Samir Sharma,
learned counsel for the appellant and Sri
Gulrej
Khan
appearing
for
the
respondents
and
have
perused
the
impugned judgment and order dated
4.4.2007 passed by the learned single
Judge giving rise to the present appeal as
also the documents filed along with the
memo of appeal.

3. Sri Samir Sharma, learned
counsel submitted that the claim of
interest is hit by the principles of
constructive resjudicata as in Writ
Petition No. 55594 of 2000, the contesting