# Udai Pratap Singh v. State of U.P. and others

- **Citation:** (2005) 1 ILRA 279
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-03-21
- **Case number:** Civil Misc. Writ Petition No. 7425 of 2002
- **Bench:** Sabhajee Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/udai-pratap-singh-v-state-of-u-p-and-others-40441
- **Pages:** 37

## Headnote

U.P. Intermediate Education Act 1921- S7AA-Part time teacher- engaged by
management whether entitled for salary
from public exchequer? Held-'No"-the
post neither sanctioned nor approved by
Director of Education-No question of
payment
of
salary
from
public
exchequer.

Held- Para 16

Thus in view of the aforesaid discussion
and law laid down by Hon'ble Apex Court
and this court from time to time as
indicated in foregoing paragraphs, it is
clear that being a part time teacher the
petitioner is not entitled for payment of
salary from the state exchequer as the
post on which he is working has not
been sanctioned/approved by Director of
Education (Secondary) as required under
law.
Case law discussed:
AIR 1998 SC -295
JT 2000 (i) SC- 159
JT 2003 (5) SC -448
AIR 1982-SC-879
AIR 1993 SC-286
AIR 1988 SC 1291

(B) U.P. Intermediate Education Act
1921 Section-7 AA(6) equal pay for equal
work-part time teacher-Regular teacherdifference between the two-mode and
procedure of selection, quality of work
and
duty-vast
difference-a
regular
teacher can be a part time teacher in the
same institution or other but part time
teacher is for limited purpose-held-both
can not be comparable-principle of equal
pay for equal work not applicable.

Held- Para 26

Thus an intensive analysis and close
scrutiny of the aforesaid provisions of
law go to show that there is vast
difference in the manner, mode and
procedure of selection of part time
teacher and regular teachers appointed
in
substantive
vacancies
in
the
Secondary institutions recognized by the
Board of High School and Intermediate
Education. On this count both the
teachers cannot be comparable to each
other in standard of recruitment and
accordingly the qualities of work and
duties discharged by them can also not
be comparable. Besides this it is also
280 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
relevant to mention here that even a
regular teacher already working in any
institution can be appointed as part time
teacher in the same institution or in any
other institution as provided under Subsection 6 of Section 7-AA of U.P. Act No.
2 of 1921.
Case law discussed:
AIR 1998 SC -295
JT 2003 (5) SC-544
AIR 1992 SC-2130
2002(2)UPLBEC-1595
AIR 2001 SC-706
1994(2) SCC-Suppl. 316
AIR 1986 SC-584
AIR 1986 (1) SCC-637
AIR 1987 SC-2342
AIR 1988 SC-517
AIR 1990 SC-371
AIR 1996 SC-2898
AIR 1998 (9) SCC-595

(C) Constitution of India, Article 226-
Regularization
part
time
lecturer-in
absence of enactment-neither can be
considered for regular aborption- nor can
be treated to be a regular lecturer- court
can not mandate the legislature for
enactment.

Held- Para 36

As indicated herein before since this
Court cannot mandate the legislature to
enact law regarding regularization of
part time teachers working in the
institutions recognized by the Board.
Therefore,
in
absence
of
legislative
enactment, the petitioner's case can
neither be considered for re

## Text

_Characters 0–39,727 of 127,082. This is a partial read: ask again with offset=39727 for what follows._

1 All] Udai Pratap Singh V. State of U.P. and others
279
petitioner has attained the age of 60 years
on 7.2.2005, had been issued in the year
1975 and was on the record of the Nagar
Palika Parishad. After 30 years, they
cannot be permitted to unilaterally change
the date of birth of the petitioner when,
admittedly his date of birth had been,
since his inception in service, recorded to
be 21.1.1948. The impugned order dated
29.11.2004 whereby the date of birth of
the petitioner has been changed, thus,
deserves to be set aside and is hereby
quashed. The petitioner shall be permitted
to continue in service on the basis of his
date of birth as entered in the service book
i.e. 21.1.1948. The petitioner shall be
entitled to all consequential benefits.

4. Consequently, this writ petition
stands allowed. No order as to cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.03.2005

BEFORE
THE HON'BLE SABHAJEE YADAV, J.

Civil Misc. Writ Petition No. 7425 of 2002

Udai Pratap Singh

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

Counsel for the Petitioner:
Sri Yogesh Agarwal

Counsel for the Respondents:
Sri Jai Bahadur Singh
S.C.

U.P. Intermediate Education Act 1921- S7AA-Part time teacher- engaged by
management whether entitled for salary
from public exchequer? Held-'No"-the
post neither sanctioned nor approved by
Director of Education-No question of
payment
of
salary
from
public
exchequer.

Held- Para 16

Thus in view of the aforesaid discussion
and law laid down by Hon'ble Apex Court
and this court from time to time as
indicated in foregoing paragraphs, it is
clear that being a part time teacher the
petitioner is not entitled for payment of
salary from the state exchequer as the
post on which he is working has not
been sanctioned/approved by Director of
Education (Secondary) as required under
law.
Case law discussed:
AIR 1998 SC -295
JT 2000 (i) SC- 159
JT 2003 (5) SC -448
AIR 1982-SC-879
AIR 1993 SC-286
AIR 1988 SC 1291

(B) U.P. Intermediate Education Act
1921 Section-7 AA(6) equal pay for equal
work-part time teacher-Regular teacherdifference between the two-mode and
procedure of selection, quality of work
and
duty-vast
difference-a
regular
teacher can be a part time teacher in the
same institution or other but part time
teacher is for limited purpose-held-both
can not be comparable-principle of equal
pay for equal work not applicable.

Held- Para 26

Thus an intensive analysis and close
scrutiny of the aforesaid provisions of
law go to show that there is vast
difference in the manner, mode and
procedure of selection of part time
teacher and regular teachers appointed
in
substantive
vacancies
in
the
Secondary institutions recognized by the
Board of High School and Intermediate
Education. On this count both the
teachers cannot be comparable to each
other in standard of recruitment and
accordingly the qualities of work and
duties discharged by them can also not
be comparable. Besides this it is also
280 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
relevant to mention here that even a
regular teacher already working in any
institution can be appointed as part time
teacher in the same institution or in any
other institution as provided under Subsection 6 of Section 7-AA of U.P. Act No.
2 of 1921.
Case law discussed:
AIR 1998 SC -295
JT 2003 (5) SC-544
AIR 1992 SC-2130
2002(2)UPLBEC-1595
AIR 2001 SC-706
1994(2) SCC-Suppl. 316
AIR 1986 SC-584
AIR 1986 (1) SCC-637
AIR 1987 SC-2342
AIR 1988 SC-517
AIR 1990 SC-371
AIR 1996 SC-2898
AIR 1998 (9) SCC-595

(C) Constitution of India, Article 226-
Regularization
part
time
lecturer-in
absence of enactment-neither can be
considered for regular aborption- nor can
be treated to be a regular lecturer- court
can not mandate the legislature for
enactment.

Held- Para 36

As indicated herein before since this
Court cannot mandate the legislature to
enact law regarding regularization of
part time teachers working in the
institutions recognized by the Board.
Therefore,
in
absence
of
legislative
enactment, the petitioner's case can
neither be considered for regularisation
nor absorption on the post of lecturer
nor he can be treated to be regular
lecturer in the institution in question.
Thus,
in
view
of
the
aforesaid
discussions,
the
above
question
formulated
by
me
is
answered
accordingly.
Case law discussed:
AIR 1989 SC -1899
AIR 1990 SC-1251
AIR1992 SC 435
AIR 1992 SC-2130
AIR 1990 SC-883
AIR 1990 SC-2228
AIR 1994 SC 1808
A (1992) SCC-331
AIR 1992 SC 2130

(D) U.P. Intermediate Education Act
1921 S-7 AA- (5)-Honorarium-as fixed by
G.O. dated 10.8,.01- Para 6 use of word
skilled workman held-illegal- teacher can
not treated skilled or semi skilled-as the
teacher are not within the meaning of
workman-Power to fixed honorariumcan
not
be
delegated
to
the
management-provisions for delegation
of power-held-ultra virus-hence-struck
down.

Held- Para 40

Thus in view of the aforesaid discussion
and the law laid down by the Apex Court
in the aforesaid cases and I am of
considered view that the submissions of
learned
counsel
of
petitioner
have
substance and deserves to be accepted.
Since the teachers cannot be treated as
"skilled", "semi-skilled" and "unskilled"
employees of various enactments under
labour laws, therefore, while issuing the
Government order dated 10th August,
2001 it was not within the competence
of State Government to prescribe any
honorarium to be paid to the part time
teachers
of
educational
institution
prescribing
a
wage
not
less
than
minimum
wage
fixed
under
the
provisions of Minimum Wages Act and
this
power
too
cannot
be
further
delegated
to
any
other
body
like
committee
of
management
of
the
institutions in absence of such power of
delegation under statute. Therefore, the
provisions
of
paragraph
6
of
the
aforesaid Government order is beyond
the competence of State Government
and held to be null and void as ultra virus
to the aforesaid provisions of Act on both
the
counts
on
the
ground
of
incompetence
inasmuch
as
on
the
ground of abdication of powers to other
bodies.
Accordingly,
the
aforesaid
provisions are liable to be struck down
by this Court, as such hereby quashed.
1 All] Udai Pratap Singh V. State of U.P. and others
281
Thus the question formulated in this
regard is answered accordingly.
Case law discussed:
1996 (4) SCC -225
2004 (100) FLR-601
1988 (4) SCC 42

(Delivered Hon'ble Sabhajeet Yadav, J.)

By this writ petition the petitioner
who is a part time Lecturer in the
institution in question has moved to this
Court seeking relief in the nature of writ
of certiorari quashing the term and
conditions of his appointment letter which
provides that he will be paid honorarium
at a rate of Rs.10/- per period and further
writ in the nature of mandamus directing
the respondent to pay him regular and
equal remuneration/salary as being paid to
a lecturer teaching in the intermediate
classes in the subjects in question in the
institution which is on grant-in-aid list of
the
State
Government
and
further
direction of payment of arrears of salary
and interest at the rate of 10% thereon has
also been sought for. By amendment
application moved in the writ petition
further relief has been sought in the nature
of mandamus directing the respondent to
treat the petitioner as a regular teacher
and quash the provisions of para 6 of the
Government order dated 10.8.2001.
2. The facts of the case in brief are
that Baba Gaya Das Technical Inter
College, Barhaj, Deoria is privately
managed recognized institution under the
provisions
of
U.P.
Intermediate
Education Act, 1921 (hereinafter referred
to as ''U.P. Act No. 2 of 1921'. Vide
order/letter dated 12.8.1993 contained in
Annexure-1 of the writ petition, the
Secretary, U.P. Secondary Education
Board (hereinafter referred to as ''Board')
 communicated to the Manager of the
institution that under the provisions of
Section 7-A of the ''U.P. Act No. 2 of
1921' the ''Board' with previous approval
of the State Government recognized the
institution for imparting the instruction in
the intermediate classes in Physics,
Chemistry, Biology and Mathematics
subjects with conditions indicated in the
letter.
In
pursuance
there-of
the
committee
of
management
of
the
institution has appointed the petitioner for
teaching intermediate classes in the
subject of Biology as a part time teacher
on a honorarium payment of Rs.10/- per
period vide letter of appointment issued
by manager of the institution dated
26.8.1993
(Annexure-2
of
the
writ
petition).
In
pursuance
thereto
the
petitioner has immediately joined the
institution on the aforesaid post as a part
time teacher in Biology by submitting his
joining report on 27.8.1993 (Annexure-3
of the writ petition). According to the
petitioner, that prior to his appointment as
such he was fully eligible and qualified
for the post and duly selected by the
selection committee constituted for the
purpose
by
the
Committee
of
Management of the institution. Since the
aforesaid date of joining on 27.8.1993 he
is continuously teaching the students of
Intermediate and High School classes in
Biology subject but being paid very
meagre remuneration at a rate of Rs.10/-
per period although he is teaching the
classes like other regularly appointed
Lecturers in the institution in question
who are getting remuneration at a rate of
Rs.12,000/- per month, whereas the
petitioner is being paid for the same and
similar work a sum of rupees not more
than 500/- per month. According to the
petitioner that although he has been
appointed as a part time lecturer for
teaching
Biology
subject
in
the
intermediate classes but besides the
282 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
intermediate classes he is also teaching
the students of High School in the
aforesaid subject and is performing duties
and responsibilities like a regular lecturer
as a invigilator as well as valuar of answer
books in the examinations conducted by
the ''Board'. In this regard he has also filed
several certificates issued by the relevant
authorities from time to time along with
paper book of the writ petition. It is
further stated that for redressal of his
grievances several representations have
been moved by the petitioner to the
authorities concerned as contained in
Annexure nos. 15, 16, 17 and 18 of the
writ petition but since no heed has been
paid over the same, therefore, he has been
compelled to file above noted writ
petition.
By
way
of
amendment
application the petitioner has also filed a
Government order dated 10th August,
2001 which has been issued prescribing
eligibility, procedure for recruitment and
other term and conditions of services of
part time teacher including the provisions
regarding
their
remunerations,
disciplinary action and termination of
services. The petitioner has challenged the
provisions
of
para
6
of
aforesaid
Government order on various grounds
mentioned in the amendment application
wherein it is stated that under the
provisions of Sub-section 5 of Section 7AA the power has been conferred upon
the State Government to fix honorarium
to be paid to the part-time teacher by a
general or special order issued in this
behalf. The power in this regard cannot be
delegated to the management of the
institution so far as fixation amount of
payment of salary as honorarium is
concerned. In substance the petitioner has
alleged that since he is discharging duties
and responsibilities at par with regular
lecturer in the institution in question and
also eligible and qualified for the post and
has been duly selected by the committee
of
management
of
the
institution,
therefore,
the
respondents
cannot
discriminate the petitioner in the matter of
payment of salary which is being paid to
the regular lecturer teaching the aforesaid
subject. The action of respondents is
violative of Article 14 and Article 39 (d)
of the Constitution of India. It is also
alleged that the services of petitioner are
not comparable from the services of
"skilled
workman"
and
term
and
conditions of the services fixed by the
Government in the aforesaid Government
order is highly unreasonable and arbitrary
inasmuch as runs contrary to the several
decisions of Apex Court mentioned in the
amended pleadings of the writ petition. It
is further alleged that despite request
made to
the
Director through the
representations
made
to
him
and
fulfillment of conditions under relevant
Government
orders
including
the
Government order 20th November, 1977,
the Director of the Secondary Education
who is competent authority to create and
sanction the post for the purpose of
payment
of salary
from
the
State
Exchequer did not create such post by
now
although
the
petitioner
is
continuously working on the aforesaid
post
since
very
inception
of
his
appointment till the date.

3. On behalf of respondents of the
writ
petition
three
detailed
counter
affidavits have been filed, one by
Associate District Inspector of Schools,
Deoria, another by Joint Secretary,
Secondary Education, Government of
Uttar Pradesh and the third by the
management of the institution in question.
In the counter affidavit filed on behalf of
District Inspector of Schools, Deoria,
1 All] Udai Pratap Singh V. State of U.P. and others
283
respondent no. 3 it is stated that under the
provisions of Section 7-A of U.P.
Intermediate Education Act, the ''Board'
with previous approval of the State
Government has recognized the institution
in some new subjects or group of subjects
for intermediate classes on 12.8.1993 and
while granting such recognition the
''Board' has directed the committee of
management of the institution to make
payment of salary of teachers to be
employed on account of such recognition
from its own resources. The recognition
so granted was without sanction of
finance (Vittavihin). It is further stated
that since the petitioner was appointed for
imparting instruction in the subject which
was recognized by the ''Board' without
financial sanction to it and without
creating any post for such appointment by
competent authority, as such the liability
of payment of salary to the petitioner
cannot be fastened upon the State
Exchequer. In para 11 of the counter
affidavit it has been stated that except to
the teachers appointed for teaching
Science subjects in intermediate classes,
other teachers already working in the
institution against duly sanctioned posts
are
being
paid
salary
from
State
Exchequer under the provisions of Uttar
Pradesh High School and Intermediate
Colleges
(Payment
of
Salaries
of
Teachers and other Employees) Act,
1971, herein after referred to as U.P. Act
No. 24 of 1971. Since the petitioner's
appointment was not made against duly
sanctioned post of a teacher, therefore, the
relief for payment of salary to the
petitioner from State Exchequer is liable
to be rejected and the petition is liable to
be dismissed. Another counter affidavit
has been filed on behalf of respondents
no.1, 2 and 3 of the writ petition sworn by
one Sri Shiv Prakash Gupta, Joint
Secretary,
Secondary
Education,
Government of Uttar Pradesh, Lucknow
also reiterates the averments made in the
counter
affidavit
filed
by
District
Inspector of Schools, Deoria, but on
account of direction of this Court dated
19.3.2004 the same has been filed to place
Government order dated 10th August,
2001 which has been issued in purported
exercise of power of State Government
under Section 7-AA (4) and (5) of the
U.P. Act No. 2 of 1921. One more counter
affidavit has also been filed on behalf of
respondent No. 4 i.e. committee of
management of the institution wherein in
para 7 of the counter affidavit it has been
stated that the petitioner has been
appointed on the post of Biology lecturer
in pursuance of appointment order dated
26.8.1993 and joined the service on
27.8.1993. From the bare perusal of
which, it seems that the committee of
management
of
the
institution
has
virtually admitted the averments made in
the writ petition.

4. I have heard learned counsel for
the petitioner Sri Yogesh Agrawal,
Advocate and learned Standing counsel
on behalf of respondents no. 1,2 and 3 as
well as Sri Jai Bahadur Singh counsel for
the respondent no. 4 of the writ petition
and also perused the record.

5.
Having
gone
through
rival
contentions and submissions made by the
counsel of parties and on perusal of
records following questions arise for
consideration of this Court:

(1) As to whether part time teachers
appointed under Section 7-AA of the
U.P. Act No. 2 of 1921 are entitled
for payment of salary under U.P. Act
No. 24 of 1971?
284 INDIAN LAW REPORTS ALLAHABAD SERIES [2005

(2) As to whether the liability of payment
of salary to the petitioner as part time
lecturer in the institution in question
can be fastened upon the State
Exchequer in absence of sanction and
creation of post by the competent
authority?

(3) As to whether the petitioner is entitled
for payment of salary at par with the
salary payable to regular lecturer of
recognized institution receiving grantin-aid from State Exchequer on a
principle of equal pay for equal work?

(4) As to whether in given facts and
circumstances
of
the
case
any
direction for treating the petitioner as
regular lecturer and/or direction to
regularise him and/or direction to
frame rule of regularisation can be
given?

(5) As to whether the paragraph 6 of the
Government order dated 10th August,
2001 is ultra virus to the provisions of
Section 7-AA (5) of the U. P. Act No.
2 of 1921 ?

(6) As
to
whether
the
terms
and
conditions
of
employment
of
petitioner in respect of payment of
honorarium to him at a rate of Rs.10/-
per
period
for
teaching
the
Intermediate classes is violative of
provisions of Section 23 of the
Contract Act and provisions of
Articles 14 and 23 of the Constitution
of India?

6. Now the question arises for
consideration is that (i) As to whether a
part-time teacher appointed under Section
7-AA of U.P. Act No. 2 of 1921 is
entitled for payment of salary under U.P.
Act No. 24 of 1971; (ii) As to whether
liability of payment of salary to the
petitioner can be fastened upon the State
Exchequer in absence of creation of
necessary post by competent authority.
The aforesaid questions are intermixed
and related to each other, therefore, it is
necessary to deal with them together. In
this regard the submission of learned
counsel for petitioner is that in view of
decision of the Hon'ble Apex Court
rendered in J.P. Unnikrishnan's case
(A.I.R. 1993 S.C. 2178) the right of
education has been recognized as one of
the facet of fundamental right guaranteed
under Article 21 of the Constitution of
India. The aforesaid guarantee cannot be
ensured unless the teacher like petitioner
is paid their full remuneration by the
respondents i.e. by the state authorities.

7. Before I proceed to deal with the
aforesaid submission of the petitioner in
the light of law laid down by the Apex
Court it is necessary to examine relevant
provisions of statute having material
bearing with the issue in question. For
ready reference the provisions of Section
7-A, 7-AA and 7-AB of U.P. Act No. 2 of
1921 are being reproduced as under:-

"7-A. Recognition of an institution
in any new subject or for a higher class.-
Notwithstanding anything contained in
Clause (4) of Section 7-
(a) the Board may, with the prior
approval of the State Government,
recognize an institution in any new
subject or group of subjects or for a
higher class;
(b) the
Inspector
may
permit
an
Institution to open a new section in an
existing class".
1 All] Udai Pratap Singh V. State of U.P. and others
285
"7-AA. Employment of part-time
teachers or part-time instructors.- (1)
Notwithstanding anything contained in
this Act, the management of an institution
may, from its own resources, employ-

(i) as an interim measure part-time
teachers for imparting instructions in
any subject or group of subjects or for
a higher class for which recognition
is given or in any Section of an
existing class for which permission is
granted under Section 7-A;

(ii) part-time
instructors
to
impart
instructions in moral education or
any trade or craft under socially
useful productive work or vocational
course.

(2) No recognition shall be given
and no permission shall be granted under
Section 7-A, unless the Committee of
Management furnishes such security in
cash or by way of Bank guarantee to the
Inspector as may be specified by the State
Government from time to time.

(3) No part-time teacher shall be
employed in an institution unless such
conditions may be specified by the State
Government by order in this behalf are
complied with.

(4) No part-time teacher or parttime instructor shall be employed unless
he possesses such minimum qualifications
as may be prescribed.

(5) A part-time teacher or a parttime instructor shall be paid such
honorarium as may be fixed by the State
Government by general or special order
in this behalf.

(6) Nothing in this Act shall
preclude a person already serving as a
teacher in an institution from being
employed as a part-time teacher or a
part-time instructor under Section 7-AA".

"7-AB. Exemption.- Nothing in the
Uttar
Pradesh
High
School
and
Intermediate
Colleges
(Payment
of
Salaries
of
Teachers
and
Other
Employees) Act, 1971 (U.P. Act No. 24 of
1971), or the Uttar Pradesh Secondary
Education Services Selection Boards Act,
1982 (U.P. Act No. 5 of 1982), shall apply
in relation to part-time teachers and parttime instructors employed in an institution
under Section 7-AA."

8. From a bare reading of the
aforesaid provisions of law it is clear that
the ''Board' with prior approval of the
State Government is empowered to
recognize an institution in any new
subject or group of subjects or for a
higher class and inspector may permit an
institution to open a new section in an
existing class. In order to cater the need of
the institution the provisions of Section 7AA have been enacted by the legislature
of
State
which
provides
that
notwithstanding anything contained in
this
Act,
the
management
of
the
institution
as
interim
measure
may
employ, part time teachers from its
resources for imparting instructions in any
subject or group of subjects for which
recognition is given or in any section of
an existing class for which permission is
granted under Section 7-A of U.P. Act
No. 2 of 1921. Sub-section (2) deals with
prior condition, which is required to be
complied with by the committee of
management of the institution before such
recognition under Section 7-A is given to
the institution. Sub-section (3) provides
286 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
that no part time teacher shall be
employed in an institution unless such
conditions as may be specified by the
State Government by order in this behalf
are complied with. Sub-section (4) further
provides that no part time teacher or part
time instructor shall be employed unless
he possess such minimum qualifications,
as may be prescribed. Sub-section (5)
provides for payment of honorarium to
the part time teacher or part time
instructor, as may be fixed by the State
Government by general and special order
in this behalf.

9. Thus a joint reading of the
aforesaid provisions leads to a conclusion
that a part time teacher employed under
Section 7-A cannot invoke the provisions
of U.P. Act No. 24 of 1971, which
contains provisions for payment of salary
to the teachers and other employees of
recognized institution, which are grant-inaid of the State Government for payment
of salary from the State Exchequer for
simple reason that under Section 7-A.B.
of U.P. Act No. 2 of 1921 the
applicability of the provisions of U.P. Act
No. 24 of 1971 have been exempted. The
provisions of statute contained therein are
only existing law casting an obligation to
pay salary to the teachers and other
employees of the institution recognized
under the aforesaid U.P. Act No. 24 of
1971.
Admittedly
the
petitioner's
appointment has been made under the
provisions of Section 7-AA of the Act as
a part time teacher/lecturer in the
institution, therefore, he cannot claim
payment of salary under the provisions of
U.P. Act No. 24 of 1971 as the provisions
of the aforesaid Act are exempted from
applicability in respect of part time
teacher employed under Section 7-AA of
U.P. Act No. 2 of 1921.
10. At this juncture it is also
necessary to point out that in Regulation
19 under Chapter II of the Regulations
framed under U.P. Act No. 2 of 1921 it is
laid down that where any person is
appointed or any promotion is made on
any post of the head of the institution or
teacher in contravention of the provisions
of this Chapter or against any post other
than a sanctioned post, the Inspector shall
decline
to
pay
salary
and
other
allowances, if any to such person where
the institution is covered by the provisions
of U.P. Act No. 24 of 1971 and in other
case shall decline to give grant for salary
and allowances in respect of such person.
For ready reference the provisions are
reproduced as under:

"19.
Where
any
person
is
appointed as, or any promotion is made
on any post of head of institution or
teacher
in
contravention
of
the
provisions of this Chapter or against
any post other than a sanctioned post of
the Inspector shall decline to pay salary
and other allowances, if any to such
person where the institution is covered
by the provisions of the U.P. High
Schools and Intermediate Colleges
(Payment of Salaries of Teachers and
Other Employees) Act, 1971, and in
other cases shall decline to give any
grant for the salary and allowances in
respect of such person";

11. From bare reading of the
aforesaid provisions of the regulation it is
emphatically clear that Inspector is not
obliged
to
pay
salary
and
other
allowances to the teachers and other
employees of the institution receiving
grant-in-aid out of state fund and
recognized under U.P. Act No. 24 of
1971, who are not appointed against
1 All] Udai Pratap Singh V. State of U.P. and others
287
sanctioned
posts.
Admittedly
the
petitioner is appointed as part-time
teacher not against any sanction post,
therefore, the Inspector cannot pay him
salary and other allowances from the State
Exchequer.

12. In this connection it is also
necessary to point out that a Division
Bench of this court in case of Mahipal
Singh Pawar and others versus State of
U.P. and others reported in 1992 (2)
UPLBEC 1497, in para 13 and 14 of the
judgment, a specific question had framed
as to whether on account of grant of
recognition u/s 7-A of U.P. Act No. 2 of
1921 by the Board with prior approval of
the State Government in any new subject
or group of subject or for a higher class,
and on permission given by Inspector to
open a new section in an existing class in
an institution itself amount to creation of
a post for a teacher in that subject ? The
Division Bench of this court has answered
the aforesaid question in negative. For
ready reference the observation made by
Division Bench of this court is reproduced
as under:-

"13. In deciding the above question,
it would be necessary to examine the
provisions
of
Section
7-A
of
the
Intermediate Education Act, read with
Section 9 of the U.P. Act of 1971. These
provisions
are
already
quoted
in
preceding paragraphs."

"14. The provision of Section 9 of the
High School and Intermediate Colleges
(Payment of Salaries) Act, 1971 is
reproduces 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."

The
perusal
of
the
aforesaid
provisions 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 of subjects 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
D.I.O.S. 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 created
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 teacher and other staff. If
the
management
committee
on
the
D.I.O.S.
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 D.I.O.S. 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 duty and obligation of
paying salary to such staff under the Act
No. 24 of 1971."

13. A similar controversy has also
been decided by the Hon'ble Apex Court
in case of Director of Education and
288 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
others Vs. Gajadhar Prasad Verma,
A.I.R. 1995 S.C. 1121 in which while
considering the provisions of Section 9 of
U.P. Act No.24 of 1971 in respect of
creation and sanction of post for grant of
salary to the employees of the institution
recognized under U.P. Act No. 24 of
1971, the Hon'ble Apex Court held that
prior approval of Director or any other
authorized officer for creation of post is
necessary
condition
precedent
for
reimbursement of salary payable to such
teachers by management of the institution.
For ready reference para 4 of the decision
is being quoted as under: -

"4. 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 &
Intermediate
Colleges
(Payment
of
Salaries of Teachers & other Employees)
Act 24 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
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 additional post of Clerk. The prior
approval
of
the
Director
or
the
empowered
officer
is
a
condition
precedent and mandatory, for creation of
an additional posts (sic) the government
had before it the relevant data of the posts
for which the grant of aid was sanctioned.
To make the government to reimburse the
salary of an additional teacher or an
employee, the government should have
similar relevant material and data to have
it duly verified and decision taken to
grant sanction of the additional post. The
inspecting and reporting officers are
enjoined to make personal inspection and
submit the report of the existing correct
facts. The dereliction of duty or incorrect
or false reports would be misconduct
entailing them in disciplinary action for
dismissal from the posts held by them.
Therefore, the failure to obtain prior
approval disentitles the Management to
obtain reimbursement of the salary of
such teacher or other employee."

14. In case of Gopal Dubey versus
DIOS Maharajganj and others reported
in (1999) 1 UPLBEC-1 a Full Bench of
this court after examining the provisions
of Section 7-A and Section 7-AA and
Section 7-A.B. of U.P. Act No. 2 of 1921,
Regulation 19 of Chapter II of Regulation
framed under the aforesaid Act and
provisions of Section 9 and 10 of U.P. Act
No. 24 of 1971 has held that Sanction of
the post by a competent authority i.e. a
Director, Secondary Education or person
authorized
by
him
is
a
condition
precedent for payment of salary to a
teacher or an employee of the Institution
from the state exchequer. In this case
while approving the decision rendered by
a Division Bench of this court in Mahipal
Singh's case (Supra) and relying upon the
decision of Hon. apex Court rendered in
Gajadhar Prasad Verma's case (supra) and
after analyzing the situation in detail in
para 21 and 22 of the decision, it has been
held that on recognition being granted by
the Board in respect of the subject in an
institution u/s 7-A of U.P. Act No. 2 of
1921, it will not be presumed that the post
of
lecturer
in
such
subject
stand
sanctioned by Director of Education u/s 9
of the Payment of the Salary Act. For
1 All] Udai Pratap Singh V. State of U.P. and others
289
ready reference para 21 and 22 of the
decision
of
Full
Bench
is
being
reproduced as under:-

"21. On the other hand, the decision
of this Court in the case of Mahipal Singh
Pawar and others Vs. State of U.P. 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
U.P. Intermediate Education Act, 1921
and Section 9 of the U.P. 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 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 3 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
instructions in any subject or group of
subjects for a higher class for which
recognition is given or any section of an
existing class for which permission is
granted
under
Section
7-A
notwithstanding anything contained in
that Act and also in the Payment of
Salaries Act (See Section 7-AB). We must
to be understood to say that a teacher or
other
employee
appointed
by
the
management for teaching a new class or
section or a new subject for which
recognition has been granted is not
entitled to receive salary. What we have
held is that before saddling the State
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
Vs. Gajadhar Prasad Verma, AIR 1995
SC 1121, 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...."

"22. In view of the above discussion
the answer to the question formulated by
us is that on recognition being granted by
the Board in respect of a subject in an
Institution under Section 7-A of the U.P.
Intermediate Education Act, 1921 it will
not be presumed that the post of lecturer
in such subject stands sanctioned by the
Director of Education under Section 9 of
the Payment of Salaries Act."

15. In J.P. Unni Krishnan's case
(supra) the Hon'ble Apex Court has held
that right to education is implicit in and
flows from the right to life guaranteed by
Article 21 of the Constitution of India and
right
to
receive
the
education
is
fundamental right flowing from right to
life. While dealing with the contents and
parameter of the right under Articles
21,41,45 and 46 of the Constitution of
India in para 180 of the judgment at page
2253 (AIR 1993), it has been held that the
citizens
of
this
country
have
a
fundamental right to education. The said
right flows from Article 21. This right is
however, not an absolute right. Its content
290 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
and parameters have to be determined in
the light of Article 45 and 41. In other
words every child/citizen of this country
has a right to free education until he
completes the age of fourteen years.
Thereafter his right to education is subject
to the limits of economic capacity and
development of the State. The obligation
created by Article 41, 45 and 46 of the
Constitution can be discharged by the
State either by establishing institution of
its own or by aiding recognising and or
granting affiliation to private educational
 institutions. Where aid is not granted to
the private educational institutions and
merely
recognition
or
affiliation
is
granted it may not be insisted that the
private education institution shall charge
only that fee as is charged for similar
courses in governmental institutions. The
private educational institutions have to
and are entitled to charge a higher fee, not
exceeding the ceiling fixed in that behalf.
In this case the question of admission of
the students and the charging of fee in
government schools, government aided
private
schools
and
government
recognized private schools were under
consideration. The Hon'ble Apex Court
did not hold that all the teachers
appointed in privately managed institution
or even in directly entitled to receive
salary from Government fund if they are
teaching the students up to the age of 14
years. It is also necessary to point out that
it is well settled that a decision is an
authority only on the question decided in
it. Thus, the decision of apex court
rendered in J.P. Unni Krishnan case
should be understood in the context of the
issue involved in the case in which it had
been rendered. The issue involved in the
case
in
hand
altogether
different,
therefore, the aforesaid decision can be of
no assistance to the case of the petitioner.
16. Thus in view of the aforesaid
discussion and law laid down by Hon'ble
Apex Court and this court from time to
time as indicated in foregoing paragraphs,
it is clear that being a part time teacher
the petitioner is not entitled for payment
of salary from the state exchequer as the
post on which he is working has not been
sanctioned/approved
by
Director
of
Education (Secondary) as required under
law.

17. The next question arises for
consideration is as to whether the
petitioner is entitled for payment of salary
at par with the salary payable to regular
lecturer of recognised institution receiving
grant-in-aid from State Exchequer on a
principle of equal pay for equal work. In
this regard the submission of petitioner is
that although he was appointed as part
time teacher for interim measure but he is
working in the institution since very
inception of his appointment till the date
and teaching intermediate and High
School classes regularly in Biology
subject and discharging all other duties
and responsibilities attached to the post of
regular teacher/lecturer working in the
institution. He has also been required by
Board to work as invigilator and valuar of
answer books of the examinees in the
examinations conducted by the Board. In
support of his submission he has placed
reliance upon the documents filed in the
writ petition referred earlier.