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2002 DIGILAW 1456 (ALL)

STATE OF U. P. v. OM PRAKASH VERMA

2002-10-08

R.K.AGRAWAL, S.K.SEN

body2002
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. ( 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 DIGS 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. 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". 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 DIGS 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 DIGS 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 DIGS 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. " ( 7 ) HE also referred to para 4 of the decision of the Honble Supreme Court in the case of Director of Education vs. Gajadhar Prasad Verma wherein the honble 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. ( 8 ) 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 dubeys 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 /-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 /-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 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 sci 122, 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 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. Therefore, the failure to obtain prior approval disentitles the Management to obtain reimbursement of the salary of such teacher or other employees. " ( 9 ) 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 DIGS. He relied upon a recent decision of the honble Supreme Court in the case of Lai bahadur Shastris. 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 DIGS. He relied upon a recent decision of the honble Supreme Court in the case of Lai bahadur Shastris. Junior High School and another versus State of U. P. and others reported in JT 2002 (5) SC 37 wherein the honble Supreme Court has given such a direction. Relevant portion of para 7 of the judgment of the Honble 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. " ( 10 ) THE principles laid down by this court in the of Mahipal Singh Pawar (supra) and Gopal Dubey (supra) and of the Honble 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. ( 11 ) 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 Honble Supreme Court in the case of Lal Bahadur Shastris Junior high School (supra) is also issued in the present cases. ( 11 ) 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 Honble Supreme Court in the case of Lal Bahadur Shastris Junior high School (supra) is also issued in the present cases. ( 12 ) 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. ( 13 ) 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. .