# The State Of U.P v. Sri Gokaran P Tiwari

- **Citation:** (2021) 7 ILRA 425
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-05
- **Case number:** Special Appeal No. 423 of 2005
- **Bench:** Ritu Raj Awasthi, Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-state-of-u-p-v-sri-gokaran-p-tiwari-47190
- **Pages:** 15

## Headnote

A. UP Intermediate Education Act, 1921 -
Section 9 - Ch. II Reg. 19, Ch. III, Reg.
101 - Post of Laboratory Assistant and
Clerk - Claim of appointment, though
there is no sanctioned post - No prior
approval of DIOS - Validity - Held, the
respondents-petitioners had no legal right
for appointment or consideration for
appointment
on
nonexistent
posts
-
Learned Single Judge has grossly erred in
issuing a writ of Mandamus, directing the
authorities to create posts, on which the
respondent-petitioners were appointed.
(Para 8 and 11)
B. Constitution of India,1950 - Article 226
- Writ - Mandamus - Scope and ambit - A
writ
of
Mandamus
lies
to
secure
performance of public duty imposed by
law. If there is no statutory duty of the
authority, writ of Mandamus cannot be
issued - The writ of Mandamus is issued
to command; and not to inquire and
adjudicate - In a petition for writ of
Mandamus, the petitioner does not
have to establish a legal right but it is for
enforcement of the existing legal right - It
is issued only where public duty is clear,
unqualified and specific. [Para 10 (vii)]
Special Appeal allowed. (E-1)
Cases relied on :-

## Text

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7 All. The State of U.P. Vs. Sri Gokaran P Tiwari
425
(2021)07ILR A425
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.07.2021

BEFORE

THE HON'BLE RITU RAJ AWASTHI, J.
THE HON'BLE DINESH KUMAR SINGH, J.

Special Appeal No. 423 of 2005
And
Special Appeal No. 408 of 2005
And
Special Appeal No. 52 of 2008

The State Of U.P. ...Petitioner
Versus
Sri Gokaran P Tiwari ...Respondent

Counsel for the Petitioner:
C.S.C., Bilendra Singh

Counsel for the Respondent:
Y.K. Misra

A. UP Intermediate Education Act, 1921 -
Section 9 - Ch. II Reg. 19, Ch. III, Reg.
101 - Post of Laboratory Assistant and
Clerk - Claim of appointment, though
there is no sanctioned post - No prior
approval of DIOS - Validity - Held, the
respondents-petitioners had no legal right
for appointment or consideration for
appointment
on
nonexistent
posts
-
Learned Single Judge has grossly erred in
issuing a writ of Mandamus, directing the
authorities to create posts, on which the
respondent-petitioners were appointed.
(Para 8 and 11)
B. Constitution of India,1950 - Article 226
- Writ - Mandamus - Scope and ambit - A
writ
of
Mandamus
lies
to
secure
performance of public duty imposed by
law. If there is no statutory duty of the
authority, writ of Mandamus cannot be
issued - The writ of Mandamus is issued
to command; and not to inquire and
adjudicate - In a petition for writ of
Mandamus, the petitioner does not
have to establish a legal right but it is for
enforcement of the existing legal right - It
is issued only where public duty is clear,
unqualified and specific. [Para 10 (vii)]
Special Appeal allowed. (E-1)
Cases relied on :-
1. St. of Bihar & ors. Vs Devendra Sharma;
(2020) 15 SCC 466
2. St. of Karn. Vs Umadevi (3); (2006) 4 SCC
page-1
3. Rita Mishra & ors. Vs Director, Primary
Education, Bihar & ors.; 1987 SCC Online Pat
159
4. R. Vishwanatha Pillai Vs St. of Kerala & ors;
(2004) 2 SCC 105
5. Ashwani Kumar Vs St. of Bihar; (1997) 2 SCC
1
6. Director of Education & ors.. Vs Gajadhar
Prasad Verma (1995) 1 SCC 465

(Delivered by Hon'ble Ritu Raj Awasthi, J.
&
Hon'ble Dinesh Kumar Singh, J.)

1. The cases are taken up through
Video Conferencing.

2. Since the common questions of law
and facts are involved in these three special
appeals, they are being heard and decided
by a common judgment.

3. Learned Single Judge has allowed
the writ petitions filed by the respondentspetitioners and has directed for payment of
salary as well as creation of posts, on which
they were appointed, de hors the statutory
Rules.

4. Facts:-
426 INDIAN LAW REPORTS ALLAHABAD SERIES

The facts of each of three cases
are stated herein-under:-

(I). Special Appeal No.423 of
2005

i). Shanti Ashram Intermediate
College, Saya, District Ambedkar Nagar,
Faizabad (Now Ayodhya) (hereinafter
referred to as 'the Institution') is a
recognized Government aided Institution. It
is governed under the provisions of the U.
P. Intermediate Education Act, 1921, the
Uttar
Pradesh
Secondary
Education
(Services Selection Board) Act, 1982 and
Rules
and
the
Regulations
framed
thereunder. Payment of salaries etc. of
employees and Teachers of the Institution
are governed under the provisions of Uttar
Pradesh High School and Intermediate
Colleges (Payment of Salaries of Teachers
and other Employees) Act, 1971.

ii). It was the case of the
respondent-petitioner in the writ petition
that Committee of Management of the
Institution
advertised
one
post
of
Laboratory Assistant and he applied for the
said post in pursuance of the advertisement.
He had further stated that he was selected
vide resolution dated 22.8.1993, and the
Committee
of
Management
of
the
Institution directed the Principal of the
Institution to appoint him on the post of
Laboratory
Assistant.
Respondentpetitioner was issued appointment letter
dated 16.9.1993 by the Principal. It was
further said that when the appointment of
the respondent-petitioner was made, post of
Laboratory Assistant was not sanctioned
and the Principal of the Institution
submitted necessary papers for sanction of
the post of Laboratory Assistant in the
office of the District Inspector of Schools.
Respondent-petitioner had been performing
the duties to the utmost satisfaction of the
authorities.
The
post
of
Laboratory
Assistant is a must for imparting education
to the students in science group and, the
authorities were under obligation to create
the said post. It was submitted that the
respondent-petitioner
was
entitled
for
payment of salary.

iii). The respondent-petitioner stated
that since the Committee of Management
approved his appointment on 22nd August,
1999, he had been continuously working as
Laboratory Assistant, but no salary was being
paid to him. The respondent-petitioner
thereafter filed a writ petition before this
Court, praying for the following reliefs:-

(i) to issue a writ, order or direction
in the nature of mandamus commanding the
respondents to pay salary to the petitioner for
the post of Laboratory Assistant with effect
from 16.9.1993, the date of his joining the said
post;

(ii) to issue a writ, order or
direction in the nature of mandamus
commanding the respondents to provide all
the consequential benefits arising out of the
appointment and functioning as Laboratory
Assistant as admissible for the post of Class IV
employee;

(iii) to issue a writ, order of
direction in the nature of mandamus
commanding the respondents to alternatively
adjust the petitioner against the vacancy likely
to occur on 1-2-2002 in the event of there
being any technical hurdle in granting
requisite approval to his present appointment
on the post of Laboratory Assistant;

(iv) to issue such other writ,
order or direction as the Hon'ble Court
........ circumstances of the case; and
7 All. The State of U.P. Vs. Sri Gokaran P Tiwari
427

(v) to allow this writ.......... to the
petitioner."

iv). The learned Single Judge
vide impugned judgment and order dated
13th October, 2004 held that denial of
payment of salary to the respondentpetitioner and not creating the post of
Laboratory Assistant were not sustainable
in the eyes of law. A Mandamus was
issued, commanding the authorities to
create
necessary
post
of
Laboratory
Assistant within 90 days from the date of
production of certified copy of the
impugned judgment and order and, the
District Inspector of Schools was directed
to make the payment of salary and arrears
of salary to the respondent-petitioner with
effect from his actual appointment on the
post of Laboratory Assistant.

v). Regulations 101 to 107 of
Chapter-III, framed under the provisions of
the U.P. Intermediate Education Act, 1921
( hereinafter referred to as 'The Act, 1921")
provide for appointment on Class-IV
employees in the educational institutions.
Regulation 101 of Chapter-III of The Act,
1921 stipulates that without prior approval
of the District Inspector of Schools, no post
of a non-teaching staff should be filled in.
The said Regulation 101 is extracted herein
below:-

101णन;qfDr
izkf/kdkjh]
fujh{kd
ds
iwokZuqeksnu ds flok; fdlh ekU;rk] lgk;rk izkIr
laLFkk ds f'k{k.ksRRkj in dh fdlh fjfDr dks ugh
Hkjsxk izfrcU/k ;g gS fd teknkj ds in dh fjfDr dks
fujh{kd }kjk Hkjus dh vuqefr nh tk ldrh gSA

vi).
In
the
present
case
admittedly, no prior approval of the District
Inspector of Schools was obtained for
making appointment on nonexistent post of
Laboratory Assistant. Further, the said
post was not sanctioned by the competent
Authority i.e. the Director and, there was
no post of Laboratory Assistant existing in
the
institution
when
the
alleged
advertisement
was
issued
and,
the
respondent-petitioner
was
allegedly
selected for appointment and, thereafter
appointment was given to him.

vii). Section 9 of the U.P. High
School
and
Intermediate
Colleges
(Payment of Salaries of Teacher and other
Employees) Act, 1971 (hereinafter referred
to as "The Act, 1971") puts a complete bar
for creation of new post of teacher or other
employees
in
an
institution
without
previous approval of the Director or such
other officer as may be empowered in that
behalf by the Director. Section 9 of The
Act, 1971 is extracted herein below:-

"9. Approval for post. - 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."

viii). In view of the express bar
regarding creation of a post of teacher or
other employee, the management of the
institution was not authorized to create a
post of Laboratory Assistant and appoint
the respondent-petitioner on the said post.
Admittedly, the post was not created by the
Director and the post on which the
respondent-petitioner was appointed by the
Committee
of
Management
was
a
nonexistent post. Regulation 19 of ChapterII of Regulations framed under The Act,
1921 provides that if a teacher or employee
is appointed in contravention of the
provisions of the Regulations against any
428 INDIAN LAW REPORTS ALLAHABAD SERIES
post other than a sanctioned post, the
District Inspector of Schools shall decline
to make payment of salary and other
allowance to such a person, if the
institution concerned is covered by the
provisions of The Act, 1971. Regulation 19
of the aforesaid Regulations is extracted
herein below:-

"19. Prohibition on creation of
post by the institution. - (1) No institution
shall create any post of a teacher or of any
employee without the prior approval of the
Director not shall it revive a post which
has been held in abeyance or ordered to be
kept unfilled.

(2) Admissibility of salary against
posts indicated from time to time as
sanctioned shall be determined by a
Committee, which shall consist of the
following :

(i) The District Inspector of
Schools, who will be the President of the
Committee.

(ii) The Account Officer in the
office of the Inspector, and

(iii) The District Basic Education
Officer.

(3) Any person aggrieved by an
order under sub-rule (2) may, within fifteen
days of communication of such order,
prefer an appeal to the Deputy of
Education of the region and the order of
the Deputy Director shall be final."

ix). It appears that during the
pendency of this appeal, the respondentpetitioner filed contempt petition bearing
Criminal Misc. Case No.992 (C) of 2010 in
which the notice was issued to the District
Inspector of Schools and the District
Inspector of Schools was directed to remain
present before the Court. Under the pain of
contempt, the District Inspector of Schools
passed the order dated 11th June, 2010 for
the
respondent-petitioner's
adjustment
against vacant post of peon which became
available on retirement of peon, Mr.
Ayodhya Prasad Tiwari on attaining age of
superannuation. It was said that the said
adjustment and the payment of salary to the
respondent-petitioner for the said post
would be subject to final outcome of the
present appeal.

(II). Special Appeal No.408 of
2005

i).
Sri
Lallanji
Brahmachari
Intermediate
College,
Bharatpur,
Ambedkarnagar (Ayodhya) as well as
Acharya
Narendra
Dev
Intermediate
College, Gosaiganj, Faizabad (Ayodhya)
(hereinafter referred to "Institutions") are
recognized government aided institutions
and, are governed under the provisions of
The Act, 1921 as well as the The U.P.
Secondary Education Services Selection
Board Act, 1982 (hereinafter referred to as
"The Act, 1982") and the rules and
regulations framed thereunder for the
purposes of payment of salary of the
employees and teachers of the Institutions.
The provisions of The Act, 1971 are also
applicable.

ii). Respondent-petitioner, Shiv
Prasad Shukla filed Writ Petition No.4089
(S/S) of 1997 before this Court, alleging
that he was duly appointed on the post of
Clerk by the Manager of the Institution
after following the prescribed procedure
and, therefore, he was entitled to the salary
of the post on which he was appointed and,
had been working. He prayed for issuance
7 All. The State of U.P. Vs. Sri Gokaran P Tiwari
429
of a writ of Mandamus to accord financial
approval to his appointment and direction for
payment of salary to him regularly, including
the arrears since the date of his appointment.
It was stated in the writ petition that the
Committee of Management of the Institution
had been demanding for one more post of
Clerk since 1992 on increase of strength of
more than 900 students, but the District
Inspector of Schools did not pay any heed
and did not accord requisite sanction for
appointment of a Clerk. Therefore, his
appointment was fully covered under the
provisions of Government Order dated 20th
November, 1977 and the authorities were
under a legal obligation to pay salary to him.
The Committee of Management, therefore,
resolved vide resolution dated 28th October,
1993 to appoint one Clerk in the Institution
by direct recruitment through selection. The
Manager of the Institution notified one
vacancy of Clerk and invited applications to
fill up the said post. Respondent-petitioner,
Shiv Prasad Shukla applied in pursuance of
the said advertisement and after due
selection, he was issued appointment letter
dated 3rd December, 1993. The respondentpetitioner assumed duties in the Institution on
the post of Clerk with effect from 22nd
February, 1994. The Principal had submitted
necessary papers relating to sanctioning of a
post of Routine-Grade-Clerk in the office of
the District Inspector of Schools. When
payment of salary was not made, he filed the
aforementioned writ petition with the prayers,
as mentioned above.

iii). In the present case also, the
post on which the respondent-petitioner,
Shiv Prasad Shukla was appointed was not
a sanctioned posted.

iv). Respondent-petitioner, Udai
Bhan Singh, who was appointed similarly
on the post of Junior Clerk filed Writ
Petition No.5119 (S/S) of 1997, praying for
issuance
of
a
writ
of
Mandamus
commanding the authorities to give salary
with creation of post of Junior Clerk and
pay the arrears of salary. He was appointed
allegedly on 29th June, 1996 and, since
then he had been working continuously but
without payment in Acharya Narendra Dev
Inter College.

v). During the pendency of the
appeal, respondent-petitioner filed Criminal
Misc. Case No. 1462 (C) of 2005. The
District Inspector of Schools, under the
pain of contempt proceedings drawn
against him, transferred one post of
Assistant Clerk vacant in Manoharlal
Motilal Inter College to Acharya Narendra
Dev Inter College, Gosaiganj and, ordered
the payment of salary to respondentpetitioner, Uday Bhan Singh vide order
dated 21st January, 2006. Thereafter, one
post of Assistant Clerk fell vacant in
Acharya Narendra Dev Inter College and,
therefore, the District Inspector of Schools
modified his earlier order dated 21st
January, 2006 and, directed vide order
dated 22nd April, 2006 that the respondentpetitioner, Udai Bhan Singh would be
adjusted against the post of Assistant Clerk
falling vacant on 31st August, 2006 in
Acharya Narendra Dev Inter College and
the post of Assistant Clerk, transferred
from Manoharlal Motilal Inter College
would go back to the same college.
However, this modified/amended order
dated 22nd April, 2006 passed by the
District Inspector of Schools was not
complied with by the Manager of Acharya
Narendra Dev Inter College and, one
Daftari was promoted to the post of
Assistant Clerk. In view thereof, the
respondent-petitioner has been paid salary
430 INDIAN LAW REPORTS ALLAHABAD SERIES
of the Assistant Clerk to avoid contempt
proceedings, subject to final outcome of the
special appeal.

vi. Respondent-petitioner, Shiv
Prasad Shukla filed contempt petition
bearing Criminal Misc. Case No. 713 (C)
of 2005 during the pendency of the said
special appeal against the impugned
judgment and order dated 13th October,
2004 passed by the learned Singe Judge.
The District Inspector of Schools, in order
to avoid the contempt proceedings, passed
the order dated 31st October, 2005,
creating a temporary post of Assistant
Clerk and ordered for payment of salary to
the respondent-petitioner.

(III) Special Appeal No.52 of
2008

i). Adarsh Krishak Inter College,
Khokhotara, Ambedkar Nagar (hereinafter
referred to as "Institution") is an aided nongovernmental educational institution upto
intermediate and is governed by the
provisions
of
The
Act,
1921,
and
regulations framed under the Act, 1971.

ii). The institution was taken
under grant-in-aid in the year 1978. Two
posts of Clerk, including Head Clerk, were
sanctioned in the Institution. Since strength
of
the
students
got
increased,
the
Committee of Management requested the
authorities for creation of one more post of
Clerk. However, no heed was paid to such
a request. In view thereof, the Committee
of Management, in its meeting held on 27th
July, 2005, resolved to constitute a
'selection committee' for appointment on
the post of Clerk in the Institution as per
standard laid down in the Government
Order dated 20th November, 1977, as three
Clerks were required in the Institution, but
only two posts of Clerk were sanctioned.
The Advertisement dated 2nd August, 2005
was published, inviting applications for
appointment on a post of Clerk in the
Institution.

iii).
The
respondent-petitioner
applied
in
pursuance
of
the
said
advertisement and after selection, he was
issued appointment letter for the post of
Clerk. In pursuance of the said appointment
letter, the respondent-petitioner assumed
the charge of the Assistant Clerk. The
Committee
of
Management
of
the
Institution sent requisite papers to the
District Inspector of Schools on 28th June,
2005 for grant of financial approval for the
post of Assistant Clerk in the Institution,
but no heed was paid. The respondentpetitioner had been working since the date
of his appointment but without salary.

iv).
The
respondent-petitioner
thereafter filed Writ Petition No.7586 (S/S)
of 2005 before this Court, praying for the
following reliefs:-

(i) to issue a writ, order or
direction in the nature of mandamus
commanding the respondents to pay salary
to the petitioner and also accord financial
approval to the appointment of the
petitioner;

(ii) to issue a writ, order or
direction in the nature of mandamus
commanding the respondents to pay
arrears of salary to the petitioner also with
effect
from
the
date of his
initial
appointment;

(iii) to issue a writ, order of
direction in the nature of mandamus
commanding the respondents to create one
post of Clerk in the institution against
7 All. The State of U.P. Vs. Sri Gokaran P Tiwari
431
which the petitioner is already working in
accordance with the provisions of the Act
and Rules;

(iv) to issue such other..........just
and proper; and

(v) to allow this writ petition with
substantial costs to the petitioner."

v). The learned Single Judge,
vide impugned judgment and order 22nd
May, 2007 had allowed the writ petition
and
issued
a
writ
of
Mandamus
commanding the authorities to create a post
of Routine Grade Clerk in the Institution in
question and make payment of salary and
arrears of salary to the respondentpetitioner with effect from his actual
appointment.

vi). During the pendency of this
special appeal, the Government passed an
order on 14th May, 2013, creating a
temporary post of Routine-Grade-Clerk in
the Institution and, ordered for payment of
salary, however, the same was made
subject to final outcome of the special
appeal.

5. Heard Mr. Anil Kumar Singh
Visen,
learned
Standing
Counsel,
representing
appellant-State,
and
Mr.
Birendra Singh, Mr. Y.K. Misra and Mr.
Sanjay Misra for respondent-petitioners.

6 . Contention on behalf of the
appellants

It is submitted on behalf of the
appellant that there were no sanctioned
post(s) available in any of the four
Institutions where respondent-petitioners
were allegedly appointed; the Committees
of Management of the Institutions did
not have power to create a post or make
appointment without prior approval of the
District Inspector of Schools; in none of
cases of the respondent-petitioners, prior
approval of the District Inspector of
Schools was obtained. It is further
submitted that power to create a post is
vested with the Director as per Section 9 of
the Act, 1971 and in view of specific
Regulation 19 of Chapter-II of Regulations
framed under The Act, 1921, the District
Inspector of Schools does not have
mandate to make payment of salary to the
respondent-petitioners, who were allegedly
appointed
by
the
Committees
of
Management in contravention of the law. It
is further submitted that the Committees of
Management never came before the High
Court for creation of post, but it is the
respondent-petitioners, who filed the writ
petitions, after their appointments, for
creation of the posts in the Institutions
where
they
were
appointed
by
the
Committees of Management; the writ
petitions, for creation of post at the instance
of the respondent-petitioners, were not
maintainable. It is further submitted that the
learned Single Judge has fallen in gross
error of law in issuing writ of Mandamus
for creation of the post and payment of
salary for the respondent-petitioners, who
were appointed de hors the statutory
prescription. It is, therefore, submitted that
the appeals may be allowed.

7. Contention on behalf of the
respondent-petitioners

On the other hand, on behalf of
the respondent-petitioners, it is submitted
that due to increase in strength of the
students in the Institutions, there was
requirement of the additional posts on
432 INDIAN LAW REPORTS ALLAHABAD SERIES
which the respondent-petitioners were
appointed,
however,
despite
several
requests made by the Committees of
Management,
the
posts
were
not
sanctioned. It is further submitted that in
view of the Government Order 20th
November, 1977, the Director ought to
have created the posts in question in the
four Institutions, but since he did not create
the posts and the students were suffering,
the Committees of Management had
decided to fill up the posts and send the
necessary papers for approval of the
District Inspector of Schools. It is further
submitted that since the
respondentpetitioners have been working for such a
long time and the posts are available, on
which they could be adjusted, it would be
against the equity to dispense with their
services at this distant point of time. It is,
therefore, submitted that this Court may not
interfere with the impugned judgment and
orders passed by the learned Single Judge.

8. Undisputed facts

A. In all the four Institutions, the
posts, on which the respondents-petitioners
were
allegedly
appointed,
were
not
sanctioned one; the posts in question did
not exist when the appointments were
made.

B. No prior approval of the
competent Authority was taken before
initiation of process of appointing the
respondent-petitioners in the Institutions.

C.
As
per
the
statutory
prescription prescribed in Regulation-101
of Chapter-II of The Act, 1921, no post of
non-teaching staff can be filled in without
prior approval of the District Inspector of
Schools.

D. As per Section 9 of The Act,
1971, no post of teacher or other employee
in an Institution can be created except by
the Director. The Director never sanctioned
the posts on which the respondentpetitioners were allegedly appointed.

E.
Under
Regulation-19
of
Chapter-II of regulations framed under
The Act, 1921, the District Inspector of
Schools is mandated to decline payment
of salary and other allowances to a
person
who
is
appointed
by
the
Committee
of
Management
in
contravention of the provisions of the
Regulations against any post other than
the sanctioned post.

9. Questions for consideration

The following questions are for
consideration in the three appeals.

i). Whether the learned Single
Judge was right in issuing a writ of
Mandamus, directing the authorities to
create posts on which the respondentpetitioners were appointed de hors the
statutory prescription?

ii). Whether a writ of Mandamus
could be issued on a petition filed by the
respondent-petitioners for creation of posts
after
they
were
appointed
by
the
Committees
of
Management
of
the
Institutions
de
hors
the
statutory
prescription?

iii). When the appointments of
the respondent-petitioners were not in
accordance with the statutory prescription
and against nonexistent posts, should the
High Court direct for payment of salary to
such appointees?
7 All. The State of U.P. Vs. Sri Gokaran P Tiwari
433

iv). Whether the appointees have
any accrued right for continuance on the
posts on which they were appointed by the
Committees of Management de hors the
statutory
prescription
in
absence
of
sanctioned posts?

10. Analysis.

i). In the case of State of Bihar
and others v. Devendra Sharma (2020) 15
SCC 466 in which the question of
termination of large number of candidates,
appointed on Class-III or Class-IV posts in
the Health Department, Government of
Bihar till 1990, came into consideration and
the Supreme Court, relying on the case of
State of Karnataka v. Umadevi (3), (2006)
4 SCC page-1, has held that since these
appointments were made without sanction
of any post, these appointments had been
made by adopting wholly illegal process.
Paragraph-44 of State of Bihar Vs.
Devendra
Sharma's
case
(supra)
is
extracted herein below:-

"44. In view of the aforesaid
judgments, it cannot be said that the
appointment of the employees in the
present set of appeals were irregular
appointments.
Such
appointments
are
illegal appointment in terms of the ratio of
the Supreme Court judgment in Umadevi
(3) [State of Karnataka v. Umadevi (3),
(2006) 4 SCC 1 : 2006 SCC (L&S) 753] .
As such appointments were made without
any
sanctioned
post,
without
any
advertisement giving opportunity to all
eligible candidates to apply and seek public
employment and without any method of
recruitment. Such appointments were back
door entries, an act of nepotism and
favouritism and thus from any judicial
standards cannot be said to be irregular
appointments
but
are
illegal
appointments in wholly arbitrary process."

ii). As has been stated herein
above, the appointments of the respondentpetitioners were against the statutory rules,
arbitrary, capricious and null & void. The
right to salary is a legal right of a person,
who validly holds the post for which salary
is claimed. If the appointment is made on
nonexistent post de-hors the statutory rules,
no right subsists for claiming salary for
such an appointment. The right to salary
and other service benefits are statutory
rights which spring from legal appointment
to the post. If the appointment is illegal and
non-est, there cannot be any statutory
entitlement for salary and other service
benefits. The Patna High Court in the
case of Rita Mishra & Ors. v. Director,
Primary Education, Bihar and Ors, 1987
SCC Online Pat 159 in paragraphs 24 and
25 has observed as under:-

24. To sum up on this aspect, I
am inclined to the view that where the very
letter of appointment is flagrantly violative
of the statutory procedures prescribed for
selection and appointment, the same would
be illegal and there being no valid
appointment in the eye of law, no
consequential right to salary stricto sensu
would arise. In any case, no writ of
mandamus can possibly be claimed in such
a situation.

25. Having dealt above with the
aspect of the substantive right to salary
stricto sensu in the aforesaid situation, one
may now embark upon its procedural
aspect in detail which appears to me of not
only equal but even of greater importance.
The writ petitioners herein, irrespective of
the invalidity or illegality of the letter of
434 INDIAN LAW REPORTS ALLAHABAD SERIES
appointment and equally of the termination
of their services or otherwise, claimed a
writ
of
mandamus
commanding
the
respondents to pay the salary for the
alleged work period in the following
terms:--

"It is, therefore, prayed that your
Lordships may be graciously pleased to
issue rule nisi calling upon the respondents
to show cause as to why a writ in the nature
of writ of mandamus or any other
appropriate writ, order or direction be not
issued directing them to pay the salaries of
the petitioners and also arrear of salaries
due to them.........."

Now the claim for the aforesaid
relief goes to the root and scope of a
mandamus in the writ jurisdiction. Even at
the risk of some prolixity, it becomes
necessary to reiterate the same because of
the vehement claim raised on behalf of the
petitioners and some precedent to the
contrary within the Court.'

iii). The Supreme Court in the
case of R. Vishwanatha Pillai v. State of
Kerala & Ors (2004) 2 SCC, page 105,
approving the judgment of the Patna High
Court in the case of Rita Mishra & Ors. v.
Director, Primary Education, Bihar and Ors
(supra) in paragraphs 17 and 18 has held as
under:-

"17.
The
point
was
again
examined by a Full Bench of the Patna
High Court in Rita Mishra v. Director,
Primary Education, Bihar [AIR 1988 Pat
26 : 1988 Lab IC 907 : 1987 BBCJ 701
(FB)] . The question posed before the Full
Bench was whether a public servant was
entitled to payment of salary to him for the
work done despite the fact that his letter of
appointment was forged, fraudulent or
illegal. The Full Bench held: (AIR p. 32,
para 13)

"13. It is manifest from the above
that the rights to salary, pension and other
service benefits are entirely statutory in
nature in public service. Therefore, these
rights, including the right to salary, spring
from a valid and legal appointment to the
post. Once it is found that the very
appointment is illegal and is non est in the
eye of the law, no statutory entitlement for
salary or consequential rights of pension
and other monetary benefits can arise. In
particular, if the very appointment is rested
on forgery, no statutory right can flow from
it."

18. We agree with the view taken
by the Patna High Court in the aforesaid
cases."

iv).
The
Committees
of
Management are not competent to create
post. The authority for creation of post is
vested with the Director. In the present case,
the Committees of Management of the
Institutions, suo motu, without there being
any post and prior approval of the District
Inspector of Schools, invited applications to
make appointments on the nonexistent posts.
These back-door entries of the respondentspetitioners made by the Committees of
Management of the Institutions is an act of
nepotism and favoritism inasmuch as one of
the respondent-petitioners was near relative
of Manager of the Institution and, therefore,
these appointments cannot be said to be
regular appointments from any judicial
standards. We have no hesitation to hold that
these appointments are not only irregular but
illegal and wholly arbitrary.

v). The Supreme Court in the
case of Ashwani Kumar v. State of Bihar
7 All. The State of U.P. Vs. Sri Gokaran P Tiwari
435
(1997) 2 SCC 1 has held that if the initial
entry itself is unauthorized and that the
payment of salart is against the nonsanctioned
post,
the
question
of
regularizing services of such an employee
does not arise for consideration. Paragraphs
13 and 14 of Ashwani Kumar v. State of
Bihar (supra), which are relevant, are
extracted herein below:-

13. So far as the question of
confirmation of these employees whose entry
itself was illegal and void, is concerned, it is
to be noted that question of confirmation or
regularisation of an irregularly appointed
candidate would arise if the candidate
concerned is appointed in an irregular
manner or on ad hoc basis against an
available
vacancy
which
is
already
sanctioned. But if the initial entry itself is
unauthorised and is not against any
sanctioned vacancy, question of regularising
the incumbent on such a non-existing
vacancy
would
never
survive
for
consideration and even if such purported
regularisation or confirmation is given it
would be an exercise in futility. It would
amount to decorating a still-born baby.
Under these circumstances there was no
occasion to regularise them or to give them
valid confirmation. The so-called exercise of
confirming
these
employees,
therefore,
remained a nullity. The learned counsel for
the appellants invited our attention to the
chart showing the details of appointments of
the appellants concerned as found at
Annexure XXII at pp. 243 to 255 of the
Paper-Book and also as a specimen a
subsequent order of confirmation as found at
p. 256 in the case of Ashwani Kumar. It was
submitted that such confirmation orders were
also given to number of employees who were
initially appointed as daily-wagers/T.B.
Assistants by Dr Mallick. Our attention was
also invited to the letter of Joint Secretary
Shri
Anant
Shukla
written
to
the
Superintendent, T.B. Hospital, Koelwar,
Bhojpur on 17-10-1984 which is found as
Annexure X at p. 127 of the Paper-Book to
show that steps were taken for ratification of
the orders of appointment of the daily-wage
employees as per the direction of Deputy
Director, T.B./Health Services, Bihar. As we
have
seen
earlier
when
the
initial
appointments by Dr Mallick so far as these
daily-wagers were concerned, were illegal
there was no question of regularising such
employees and no right accrued to them as
they were not confirmed on available clear
vacancies under the Scheme. It passes one's
comprehension as to how against 2500
sanctioned vacancies confirmation could
have been given to 6000 employees. The
whole exercise remained in the realm of an
unauthorised adventure. Nothing could come
out of nothing. Ex nihilo nihil fit. Zero
multiplied
by
zero
remains
zero.
Consequently no sustenance can be drawn by
the appellants from these confirmation orders
issued to them by Dr Mallick on the basis of
the directions issued by the authorities
concerned at the relevant time. It would
amount to regularisation of back-door entries
which were vitiated from the very inception.
It is not possible to agree with the contention
of the learned counsel for appellants that the
vacancies on the Scheme had nothing to do
with regular posts. Whether they are posts or
vacancies they must be backed up by
budgetary provisions so as to be included
within the permissible infrastructure of the
Scheme. Any posting which is dehors the
budgetary grant and on a non-existing
vacancy would be outside the sanctioned
scheme
and
would
remain
totally
unauthorised. No right would accrue to the
incumbent of such an imaginary or shadow
vacancy.
436 INDIAN LAW REPORTS ALLAHABAD SERIES

14. In this connection it is
pertinent
to
note
that
question
of
regularisation in any service including any
government service may arise in two
contingencies. Firstly, if on any available
clear vacancies which are of a long
duration appointments are made on ad hoc
basis or daily-wage basis by a competent
authority and are continued from time to
time and if it is found that the incumbents
concerned have continued to be employed
for a long period of time with or without
any artificial breaks, and their services are
otherwise required by the institution which
employs them, a time may come in the
service career of such employees who are
continued on ad hoc basis for a given
substantial length of time to regularise
them so that the employees concerned can
give their best by being assured security of
tenure. But this would require one
precondition that the initial entry of such
an employee must be made against an
available sanctioned vacancy by following
the rules and regulations governing such
entry. The second type of situation in which
the question of regularisation may arise
would be when the initial entry of the
employee against an available vacancy is
found to have suffered from some flaw in
the procedural exercise though the person
appointing is competent to effect such
initial recruitment and has otherwise
followed
due
procedure
for
such
recruitment. A need may then arise in the
light of the exigency of administrative
requirement for waiving such irregularity
in the initial appointment by a competent
authority
and
the
irregular
initial
appointment may be regularised and
security of tenure may be made available to
the incumbent concerned. But even in such
a case the initial entry must not be found to
be totally illegal or in blatant disregard of
all the established rules and regulations
governing such recruitment. In any case
back-door entries for filling up such
vacancies have got to be strictly avoided.
However, there would never arise any
occasion for regularising the appointment
of an employee whose initial entry itself is
tainted and is in total breach of the
requisite procedure of recruitment and
especially when there is no vacancy on
which such an initial entry of the candidate
could ever be effected. Such an entry of an
employee would remain tainted from the
very
beginning
and
no
question
of
regularising such an illegal entrant would
ever survive for consideration, however
competent the recruiting agency may be.
The appellants fall in this latter class of
cases. They had no case for regularisation
and whatever purported regularisation was
effected in their favour remained an
exercise in futility. The learned counsel for
the
appellants,
therefore,
could
not
justifiably fall back upon the orders of
regularisation passed in their favour by Dr
Mallick. Even otherwise for regularising
such employees well-established procedure
had to be followed. In the present case it
was totally bypassed. In this connection we
may profitably refer to Government Order
dated 31-12-1986 to which our attention
was invited by the learned counsel for the
appellants. The said Government Order is
found
in
the
additional
documents
submitted in CAs Nos. 10758-59 of 1995 at
Annexure IV. Secretary to Government of
Bihar,
Health
Department,
by
communication dated 31-12-1986 had
informed all Regional Deputy Directors,
Health
Services;
Tuberculosis
Civil
Surgeon-cum-Chief Medical Officer; and
other authorities concerned in connection
with the compliance and implementation of
the orders passed and instructions issued
by Deputy Director (Tuberculosis) Bihar,
Patna under the Tuberculosis Control
7 All. The State of U.P. Vs. Sri Gokaran P Tiwari
437
Programme covered under the 20-Point
Programme. It was stated in the said
communication that steps will be taken to
fill up sanctioned Third and Fourth Grade
posts as soon as possible according to the
prescribed procedure and all possible
efforts should be made to achieve the fixed
targets in a planned and phased manner.
Even this letter clearly indicates that the
posts had to be filled up by following the
prescribed procedure. Despite all these
communications
neither
the
initial
appointments nor the confirmations were
done
by
following
the
prescribed
procedure. On the contrary all efforts were
made to bypass the recruitment procedure
known to law which resulted in clear
violation of Articles 14 and 16(1) of the
Constitution of India both at the initial
stage as well as at the stage of
confirmation of these illegal entrants. The
so-called regularisations and confirmations
could not be relied on as shields to cover
up initial illegal and void actions or to
perpetuate the corrupt methods by which
these 6000 initial entrants were drafted in
the Scheme by Dr Mallick.