# The State of U.P. and others v. Om Prakash Verma

- **Citation:** (2002) 3 ILRA 761
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002
- **Case number:** Special Appeal No. 308 of 1998
- **Bench:** S.K. Sen, C.J. R.K. Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-state-of-u-p-and-others-v-om-prakash-verma-39979
- **Pages:** 6

## Headnote

762 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
Sri Anil Bhushan

U.P.
High
School
and
Intermediate
College (Payment of salaries of teachers
and other employees) Act 1971- Section
9 Salary- appointment of L.T. grade
teacher
on
newly
sanctioned
post-
during pendency of approval before
State Government- whether the State is
liable to pay the salary?

Held- No

## Text

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3 All] The State of U.P. and others V. Om Prakash Verma
761
Until further orders of this court, the
operation of the order dated 18.9.80
passed
by
the
Joint
Director
of
Consolidation, Basti shall remain stayed."

11. In the appeal filed by the
petitioner against the order passed by the
Consolidation Officer on the preliminary
issue, i.e., the question of jurisdiction, the
settlement officer consolidation after
hearing the parties recorded clear and
categorical finding to the effect that fraud
was committed by the respondent no. 3
upon the court, allowed the appeal and
remanded the case to the consolidation
officer for decision afresh, by his order
dated
19.11.1981.
Challenging
the
validity of the said order, the respondent
no. 3 filed a revision before the Deputy
Director of Consolidation, which was
allowed on 8.7.1982, hence the petitioner
filed writ petition no. 8683 of 1982.

12. It is evident from the facts stated
above that the proceedings under Rule
109-A started after denotification of the
village and that the compromise was
entered into between the parties before the
village was denotified, therefore, in view
of the provisions of section 52 of the Act
and Rule 109 A, referred to above, the
authorities mentioned in Rule 109-A will
have the jurisdiction to decide all
questions
which
arose
in
those
proceedings. The view taken to the
contrary by the Deputy Director of
Consolidation is manifestly erroneous and
illegal. It is contrary to the provisions of
Rule 109-A. Further, the fraud and
forgery committed was not only against
the petitioner but also upon the court. The
court, therefore, had the jurisdiction to
deal with the matter and decide the same.
The scope of Rule 109 A is quite wide.
For the cases covered by the said rule, the
denotification under section 52 of the Act
is of no consequence as by the order
passed in the said proceedings, the
consolidation authorities if they are
present in the district, shall be giving
effect to the orders passed by the
competent consolidation authorities and
for
that
purpose
the
consolidation
operations shall be deemed not to have
been closed as provided under sub section
2 of section 52 of the Act. In view of the
aforesaid discussion, both these petitions
deserve to be allowed.

13. The abovenoted writ petitions
succeed and are allowed. The orders dated
31.7.1979, 18.9.1980 and 8.7.1982 are
quashed. The case is remanded to the
Deputy Director of Consolidation for
decision afresh in the light of the
observations made above.

14. A copy of this order may be
placed on the record of connected writ
petition.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 8.10.2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE R.K. AGARWAL, J.

Special Appeal No. 308 of 1998

The State of U.P. and others ...Appellants
Versus
Om Prakash Verma
 ...Respondent

Counsel for the Appellants:
Sri Sabhajit Yadav

Counsel for the Respondents:
Sri R.N. Singh
Sri A.P. Sahi
Sri G.K. Malviya
http://www.allahabadhighcourt.nic.in
762 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
Sri Anil Bhushan

U.P.
High
School
and
Intermediate
College (Payment of salaries of teachers
and other employees) Act 1971- Section
9 Salary- appointment of L.T. grade
teacher
on
newly
sanctioned
post-
during pendency of approval before
State Government- whether the State is
liable to pay the salary?

Held- No

(Delivered by Hon'ble S.K. Sen, C.J.)

1. All the six special appeals are
taken up and decided together as they
arise out of common judgment. D.B. Sant
Singh Khalasa Inter College, Partabpura,
Agra is minority institution. Certain new
sections were opened in this institution in
certain classes with the approval of the
District Inspector of Schools. Thereafter
appointment of different writ petitioners
in all these writ petitions which had been
decided by the learned Single Judge, were
made as teachers in L.T. Grade according
to law. Proposals were sent to the Director
of Education (Secondary) UP for creation
of these posts. Nothing has been done at
the level of the Director till date. These
facts are not disputed.

2. The grievances of the writ
petitioners, who are respondents in these
special appeals, are that they had not been
paid salary for the respective posts. The
plea for non-payment as taken in the
counter affidavit, is that the posts, against
which they had been appointed, were not
sanctioned by the Director of Education
(Secondary). The learned Single Judge
took into account Section sic of the U.P.
High Schools and Intermediate Colleges
(Payment of salaries of teachers and other
employees)
Act,
1971,
(hereinafter
referred to as the Act) particularly, the
definition of teacher as per section 2 (e) of
the Act, which includes any other teacher
employed in fulfilment of the conditions
of recognition of the institution of its
recognition in a new subject or a higher
class or as a result of opening with the
approval of the Inspector of a new section
in an existing class, the learned Single
Judge has held that since new sections
have been opened in certain classes in the
institution in question with the approval
of the Inspector and the writ petitioners
have been appointed as teachers in
consequence to the opening of these new
sections
hence
the
writ
petitions-
respondents herein, will be covered by
the definition of the term teacher as given
under section 2 (e) of the Act and as such
the State can not escape the liability of
paying their salaries under section 10 of
the Act. The learned Single Judge
accordingly allowed the writ petitions and
directed the D.I.O.S. Agra, to make
payment of salary to these writ petitioners
from their dates of appointment and also
the arrears may be cleared within a period
of six months.

3. Feeling aggrieved thereby, the
State Government has preferred these
Special Appeals and as there was long
delay of 299 days, the State Government
was directed to pay costs of Rs. 500/- to
each of the writ petitioners which has
been paid by the State Government. Thus,
the delay has been condoned.

4. Heard Sri Sabhajit Yadav learned
Standing Counsel for the appellants and
Sri R.N. Singh, learned Senior Counsel
assisted by Sri A.P. Sahi, and Sri G.K.
Malviya and Sri Anil Bhushan learned
counsel
for
the
writ
petitioners-
respondents.
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3 All] The State of U.P. and others V. Om Prakash Verma
763
5. Sri Sabhajit Yadav learned
Standing Counsel submitted the new posts
in an institution is sanctioned by the
Director of Education (secondary) and till
such time the posts have not been
sanctioned by the appropriate authority,
the State Government cannot be fastened
with the liability for payment of salary to
those teachers who are working on
unsanctioned posts. According to him
creation/approval of additional sections in
a particular class in an institution does not
ipso facto means that the additional post
of teachers to teach in the new sections
have also been sanctioned. He relied upon
the following decisions:-

1.
Mahipal Singh Pawar and others Vs.
State of U.P. and Ors. Reported in 1992
(2) UPLBEC 1497.
2.
Director of Education and others Vs.
Gajadhar Prasad Verma reported in AIR
1995 Supreme Court 1121.
3.
Gopal Dubey Vs. District Inspector
of Schools, Maharajganj and another
reported in 1999 (1) UPLBEC 1(FB)

6. He also referred to paragraph 7
and 14 of the judgment in the case of
Mahipal Singh Pawar and others (supra)
where a specific question was framed by
this court as to whether DIOS who
sanctioned running of an additional
section or permitting teaching of a new
subject in the institution itself amounts to
creation of a post for a teacher in that
subject, and the Court answered in the
negative. Paragraph 14 of judgment is
reproduced below:

"14. The provision of section 9 of the
High School and Intermediate Colleges
(Payment of salaries) Act, 1971, is
reproduced as under :
"9. Approval for posts- No institution
shall create a new post of teacher or other
employee except with the previous
approval of the Director, or such other
officer as may be empowered in that
behalf by the director".

7. The perusal of the aforesaid
provision clearly go to show that the fact
that the institution is approved and
recognized by the Board for the first time
or any new subject or Board group or for
a higher class or addition of selection to a
existing class shall have no effect unless it
is approved by the State Government. It is
also made clear that the permission to
start teaching of a new subject or opening
a class or section by DIOS shall be of no
consequence unless approved by the State
Government e.g. Director of Education.
The number of posts for teacher and other
employee of an institution is required to
be treated and sanctioned by the Director
of Education according to the prescribed
norms and standard laid by the Education
Department. It is the sole domain of the
Director of Education to sanction and
create posts of teachers and other staff. If
the management committee or the DIOS
considers and decides the number of posts
needed for the institution according to the
strength
of
students,
it
is
of
no
consequences. The power of creation and
sanctioning
posts
for
institution
is
specified. It cannot be said that the DIOS
approved and permitted opening of a
section or a class or approved teaching of
a new subject, itself would amount to
creation of a post, fastening legal and
obligation of paying salary to such staff
under the Act No. 24 of 1971."

8. He also referred to para 4 of the
decision of the Hon'ble Supreme Court in
the case of Director of Education vs.
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764 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
Gajadhar Prasad Verma wherein the
Hon'ble Supreme Court has held that so
long as prior approval had not been given
though the respondent might have been
appointed
by
the
management,
the
government is not obliged to reimburse
the salary paid to such person.

9. He further referred to the case of
Gopal Dubey (supra) wherein a Full
Bench of this Court in para 21 of the
judgment has approved the Division
Bench decision in the case of Mahipal
Singh Pawar. Para 21 of the judgment
rendered by the Full Bench in Gopal
Dubey's case is reproduced below:

"21. On the other hand, the decision
of this court in the case of Mahipal Singh
Pawar and others vs. State of UP and
others, (1992 )2 UPLBEC 1497, has our
approval. In that case it was held, inter
alia, that a perusal of section 7-A of the
UP Intermediate Education Act, 1921 and
section 9 of the UP Act 24 of 1971 would
clearly go to show ' that the fact that the
Institution is approved and recognized by
the Board for the first time or any new
subject or group or for a higher class or
addition of selection (section) to a
existing class shall have no effect unless it
is approved by the State Government, that
is, Director of Education. It was further
observed in that decision that section 2 of
the payment of salaries Act, provides that
the committee of Management is also
equally responsible for payment of salary
to the teachers employees in their
institutions. It is relevant to point out in
this connection that section 7-AA of the
Intermediate Education Act, enables the
management to engage teachers for
imparting institutions in any subject or
group or subjects for a higher class for
which recognition is given or any section
of an existing class for which permission
is
granted
under
section
7A
notwithstanding anything contained in
that Act and also in the payment of
salaries Act (see Section 7AB). We must
not be understood to say that a teacher or
other
employee
appointed
by
the
management for teaching a new class or
section
or
new
subject
for
which
recognition has been granted is not
entitled to receive salary. What we have
held is that before saddling the statement
government with financial liability in
respect of such posts the approval of the
Director has to be obtained. In the
absence of such approval, the state
government cannot be said to be under
any obligation to pay salary to such staff.
The view taken by us gains support from
the decision of the supreme court. In the
case of Director of Education and others
v. Gajadhar Prasad Verma, AIR 1995
SC1122, in which the Apex Court,
interpreting the provisions of the Payment
of Salaries Act, ruled that prior approval
of competent officer, for creation of post
is a condition precedent for getting
reimbursement
of
the
salary
of
teacher/employee of High School. The
relevant observation in paragraph 4 of the
judgment is quoted hereunder:

"Be that as it may, the crucial
question is whether the school of the
respondent can claim reimbursement of
the salary of such clerk from the
Government? The U.P. High Schools and
Intermediate
Colleges
(Payment
of
salaries of teachers and other employees)
Act of 1971 (for short 'the Act') regulates
the payment of the salary by the
Government. Section 9 is relevant in that
behalf. It provides that no institution shall
create a new post of teacher or other
employee except with the previous
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3 All] The State of U.P. and others V. Om Prakash Verma
765
approval of the Director or such officer as
may be empowered in that behalf by the
Director. Admittedly, no steps have been
taken by the Management to have
obtained prior approval of the Director or
any other authorized officer for creation
of the Director or the empowered officer
is a condition precedent and mandatory
for creation of an additional post (sic) the
Government had before it relevant date of
the posts for which the grant of aid was
sanction.

10. Therefore, the failure to obtain
prior approval disentitles the Management
to obtain reimbursement of the salary of
such teacher or other employees."

11. Sri R.N. Singh learned Senior
Counsel very fairly did not dispute the
principles
laid
down
in
the
aforementioned cases, which are fully
applicable to the facts of the present case.
He however, submitted that the Director
of Education (Secondary) be directed to
consider the matter of creation of posts
viz. a viz. additional sections/subjects
which have been approved by the DIOS.
He relied upon a recent decision of the
Hon'ble Supreme Court in the case of Lal
Bahadur Shastris. Junior High School and
another versus State of U.P. and others
reported in JT 2002 (5) SC 37 wherein the
Hon'ble Supreme Court has given such a
direction. Relevant portion of para 7 of
the judgment of the Hon'ble Supreme
Court is reproduced below :-

"7........The Director will consider
the request of the appellants' school for
sanction of additional posts of teachers for
the
extra
sections
sanctioned,
in
accordance with the norms set out in the
government
orders
and
executive
instructions which were prevailing when
the request of the management of the
school was received in his office and pass
a reasoned order within three months
from the date of receipt of the intimation
of this order. The Director will give
opportunity of hearing to the management
of the school or its representative before
passing the order."

12. The principles laid down by this
court in the of Mahipal Singh Pawar
(supra) and Gopal Dubey (supra) and of
the Hon'ble Supreme Court in the case of
Director of Education vs. Gajadhar Prasad
Verma (supra) are fully applicable to the
facts of the present case. Thus, we are of
the view that the respondent- writ
petitioners are not entitled for payment of
salary from the state exchequer as the
posts on which they are working has not
been sanctioned/approved by the Director
of Education (secondary) as required
under the Act.

13. However since there is no
dispute
that
the
respondent
writ
petitioners are working in the institution
since long, the interest of justice shall be
best served if similar direction as that
issued by the Hon'ble Supreme Court in
the case of Lal Bahadur Shastris Junior
High School (supra) is also issued in the
present cases.

14. We are, therefore, of the view
that since the new sections have been
created and teachers are required, the
Director of Education (secondary) UP
shall consider the question of sanctioning
the posts according to the norms and
guidelines of the State Government,
particularly taking into account the
students teachers ratio.
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766 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
15. In this view of the matter, we
modify the order passed by the learned
Single Judge and direct the Director of
Education (secondary) to consider the
creation and sanction the posts according
to the norms and guide lines issued by the
State Government in the manner indicated
in our judgment. The special appeals are
allowed in part to the extent indicated. If
the posts are sanctioned, the writ
petitioners who are working for long
period shall be absorbed. The impugned
order directing the appellant to pay salary
to the teachers, however, is set aside. In
the event these posts are sanctioned, the
respondent- writ petitioners shall be paid
salary from the date of sanctioning of the
posts.
The
Director
of
Education
(secondary) shall take a decision within
two
months
from
the
date
of
communication of a certified copy of this
order.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.10.2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 2699 of 2002

Smt. Geeta Devi

...Petitioner
Versus
State of UP and others ...Resopondents

Counsel for the Petitioner:
Sri O.P. Lohia
Sri S.K. Misra

Counsel for the Respondents:
Sri S.P. Kesarwani
S.C.

Transfer of Property Act, 1882- Section
55(1) (a)- If the buyer has not taken
ordinary care, he is not entitled to seek
protection- The principle that buyer has
to exercise ordinary care and has to be
vigilant while purchasing property is well
established.

Held in para 8

We are satisfied that no illegality has
been committed by trade tax authority in
attaching the property and issuing the
sale proclamtion. The trade tax dues
were admittedly against Smt. Gayatri
Devi who was owner of the house for
realization of which house has been
attached. The counsel for the petitioner
could not show any provision of law to
justify interference by us in this writ
petition.
Case Law referred:
AIR 1928 Bombay 427
AIR 1962 144

(Delivered by Hon'ble S.K. Sen, C.J.)

1. Heard Sri Om Prakash Lohia,
learned counsel for the petitioner and Sri
S.P.
Kesharwani,
learned
standing
counsel.

2. By this writ petition, the
petitioner has prayed for a mandamus
against the respondents that they shall not
attach and auction the property house no.
987, ward no. 13, Katra, Gursain district
Jhansi in pursuant to recovery of arrears
of Sales Tax/Trade Tax in the name of
M/s Gayatri Traders.

3. The facts of the case as given in
the writ petition are: petitioner claims to
be sole owner of property house no. 987,
ward no. 12, Katra Gursain, district Jhansi
and has filed extract of the house
assessment dated 7th September, 2002 for
the period 1st April, 1996 to 31st March,
2001. It is stated that earlier Smt. Gayatri
Devi, who is proprietor of M/s Gayatri