# Sri Shri Pal v. The State of U.P. and others

- **Citation:** (2001) 1 ILRA 292
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000-12-23
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-shri-pal-v-the-state-of-u-p-and-others-39715
- **Pages:** 4

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2001
292
Respondents
to
restrain
such
Chief
Medical Officers of this State, who do not
possess the qualifications aforementioned
to act as Licencing and Controlling
Authority under the Rules, besides to
cancel the licences issued after 12th April,
1989 to those persons who are not
qualified under the Rules. Let a writ of
mandamus issued accordingly.

8. As award for costs to the
petitioner was not pressed by Sri U.N.
Sharma, we do not grant it.

9. The office is directed to hand over
a copy of this order to Sri Sabhajeet
Yadav, learned Standing Counsel, by 23rd
December, 2000 for its intimation to and
follow up action at once by the State by
the appropriate authority.

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By the Court

1. Sri Raghuvar Singh Samta
Vidyalay, Auraiya is a recognised and
aided
institution
under
the
U.P.
Recognised Basic School (Junior High
School Recruitment and Conditions of
Service of Teachers) Rules, 1978 (in brief
Rules 1978). The institution is managed
by a private committee of management
and is not maintained by the Board.
Therefore, the provisions of U.P. Junior
High School (Payment of Salaries of
Teachers and other Employees) Act, 1978
(in brief Salaries Act) is applicable. The
service condition of teachers working in
the institution are governed by Rules
1978.

2. The institution was granted
permission on 30.7.1988 to open a new
section. But no posts were created or
sanctioned by the Director, as provided by
1All] Sri Shri Pal V. The State of U.P. and others
293
Section 7 of the Salaries Act. A post
of assistant teacher was vacant in the
institution. The management advertised
the vacancy and the petitioner was
selected. And appointment letter was
issued to him on 28.6.1992. He joined on
1.7.1992. Approval to his appointment
was granted on 20.12.1997 by the District
Basic Education Officer, Etawah (in brief
BSA). Salary was not paid to him even
after approval by the BSA. He filed civil
misc. writ petition no. 19781 of 1999.
This
petition
was
disposed
of
on
13.5.1999
that
post
on
which the
petitioner was working had been created
and sanctioned or not as the petitioner
was claiming salary from the date of his
appointment as assistant teacher. And
whether in absence of creation of post,
salary could be paid. A communication
was sent from the office of the Director
that if the post has been created and the
petitioner has been validly appointed, then
the petitioner may be entitled for salary.
The BSA was directed to take a decision
at his end and to send details of posts
which had been created in the institution.
The BSA on 10.3.2000 informed the
Director that there was nine sections in
the institution and 12 teachers including
the Head Master were being paid salary
from the grant-in-aid received from the
government. Thirteenth teacher in the
institution the petitioner was not being
paid salary as post of assistant teacher had
not been created, though as per the
standard fixed, there should be 13.5
teachers in the institution. The B.S.A.
sought a clear direction from the Director
sending the details that approval had been
granted
to the appointment of the
petitioner on 20.12.1997, as to whether
salary should be paid to the petitioner. By
letter on 6.6.2000 issued from the office
of the Director by Deputy Director of
Education (Finance), the BSA had been
directed to comply with the order dated
13.5.1999 passed by this Court and pay
salary to the petitioner. But no salary has
been paid to the petitioner, therefore, he
has filed this writ petition for a direction
to the respondents to pay salary to him
w.e.f. 28.6.1992.

3. Learned counsel for the petitioner
Sri
Yogesh
Kumar
Saxena
has
vehemently urged that as per the section
standard fixed 13.5 teachers were required
in the institution and permission to open
new
section
was
granted
by
the
respondents in 1988. Therefore, it would
be deemed that post of assistant teacher
had been created in the institution and the
petitioner is entitled for salary from the
date of his appointment. He relied on a
decision of this Court in Arjun Singh Vs.
State of U.P. through Secretary 1997 (3)
AWC 1475. Learned counsel for the
petitioner lastly urged that office of the
Director has issued a direction to the BSA
after
perusing
the
records
and
in
compliance of the order dated 13.5.1999
passed in civil misc. writ petition no.
19781 of 1999 for payment of salary to
the petitioner, therefore, his salary should
be paid. On the other hand, Smt. Champa
Singh, learned Standing counsel has urged
that Arjun Singh (supra) was of no help to
the petitioner in view of full bench
decision of this Court in Gopal Dubey vs.
District Inspector of Schools 1999 (1)
UPLBEC 1. The learned standing counsel
vehemently
urged
that
since
the
institution
was
received
grant-in-aid
therefore, in absence of creation of post
under Section 7 of the Salaries aid
therefore, in absence of creation of post
under Section 7 of the Salaries Act, no
salary could be paid to the petitioner from
the government fund. Learned standing
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
294
counsel further urged that approval to the
appointment of the petitioner was granted
by the BSA with a condition that if any
fact was found to have been concealed,
while granting approval, the approval
would automatically come to an end. She
urged
that
since
management
had
concealed the fact that the post was not
sanctioned, the petitioner is not entitled
for any salary. The learned standing
counsel
has
lastly
urged
that
the
impugned order issued by the Deputy
Director of Education (Finance) from the
office of the Director, did not amount to a
direction for payment of salary to the
petitioner. She pointed out that a perusal
of
order
dated
6.6.2000
clearly
demonstrates that the order for payment
of salary to the petitioner was made under
misapprehension of the order passed on
13.5.1999 by this Court in civil misc. writ
petition no. 19781 of 1999. It is urged that
order dated 13.5.1999 has been filed as
Annexure 4 to the writ petition and only
direction issued was for deciding the
representation by the concerned authority
and no direction was issued for payment
of salary to the petitioner. Therefore, in
absence of any direction from this Court
for payment of salary, the BSA rightly did
not pay salary to the petitioner as the post
on which he was working was neither
created nor sanctioned by the director.

4. The question that arises for
consideration is whether the petitioner is
entitled for payment of salary on the post
of assistant teacher when on the admitted
facts of this case, it is clear that the post
of assistant teacher was not created under
Section 7 of the Salaries Act by the
Director, Section 7 of the Salaries Act
mandates that no college shall create a
new post of a teacher or employee except
with the previous approval of the Director
of Education or such other officer
empowered in that behalf by the Director.
The post of assistant teacher had not been
created in the institution under Section 7
of the Salaries Act. In absence of any
creation of post, the petitioner could not
be paid any salary from the grant in aid
received by the institution. Even though
permission to open a new section was
granted in 1988 but that by itself was not
sufficient. It was incumbent on the
management to have applied to the
Director for creation of post. In the
absence of any creation of post, it could
not be deemed that a post of assistant
teacher has been created in the institution.
A similar controversy arose on the
appointment of assistant teacher under the
U.P. Intermediate Education Act and
Regulations framed there under and
Section 9 of the U.P. High School and
Intermediate
Colleges
(Payment
of
Salaries of Teacher and other Employees)
Act, 1971. This controversy has been
resolved by a full bench of this Court in
Gopal Dubey (supra) and it has been held
by the full bench of this Court that in
absence of creation of post, merely
because permission has been granted to
teach some Article 226 subjects in the
institution, it would not amount to
creation of post, therefore, unless the post
is created under section 9 of the Salaries
Act, 1971, no salary could be paid to the
assistant teacher. The decision in Gopal
Dubey (supra) can be gainfully applied to
the facts of this case.

5. It was next urged that in view of
recent decision of the apex court in
Chandigarh Administration and others vs.
Rajni Vali (Mrs.) and other (2000) 2 SCC
42, non payment of salary to the petitioner
is
discriminatory
as
other
teachers
working in the institution are being paid
1All] Brahma Dutta Sharma V. The State of U.P. and others
295
salary from the grant in aid received
from the government. This question has
been considered by the court in civil misc.
writ petition no. 29097 of 1998 Mohd.
Fuzail Ansari vs. State of U.P. and others
decided on 30.11.2000, therefore, for the
same reasons, I do not find any merit in
the submission of the learned counsel for
the petitioner.

6. The other argument of the learned
counsel for the petitioner that approval to
his appointment has been granted by the
BSA, therefore, he is entitled for salary is
also devoid of any merit. It appears that
BSA
had
granted
approval to the
appointment
of
the
petitioner
on
20.12.1997 under a mistake as the post
was not created and the management
appears to have concealed this fact from
the BSA. Even the subsequent letter of
BSA by which he informed the Director
that approval was granted in 1997 on a
post, which was not created itself
demonstrate
that
a
mistake
was
committed by the BSA, while granting
approval on 20.12.1997, therefore, such
approval automatically came to an end as
per the clear terms of the other of
approval. And no right could accrue on
the post to the petitioner on the basis of
approval dated 20.12.97.

7. The last argument of the learned
counsel for the petitioner is that since the
direction has been issued by the office of
the Director to the BSA for payment of
his salary, therefore, he is entitled for
salary is also devoid of merit. The order
clearly states that in view of the directions
of this Court in civil misc. writ petition
no. 19781 of 1999 decided on 13.5.99,
salary be paid to the petitioner. I have
gone through the order passed by this
Court which has been filed as Annexure 4
to the writ petition. There is no direction
for payment of salary to the petitioner and
only direction issued by this Court was
for deciding the representation of the
petitioner by the concerned authority. The
order dated 16.6.2000 that has been issued
by the office of the Director had been
issued under a mistake that this Court
directed the respondents for payment of
salary to the petitioner. If salary of the
petitioner has not been paid by the BSA,
he has not committed any illegality as the
post of assistant teacher was not created,
therefore, no salary could be paid to him.

8. However, it is always open to the
management to apply to the Director for
the creation of the post of assistant
teacher.

9. For the aforesaid reasons, I do not
find any merit in this writ petition.

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