JUDGMENT By the Court.—Heard learned counsel for the parties and perused the record. 2. This special appeal has been filed by the appellants challenging the validity and correctness of the judgment and order dated 28.2.2007 passed by Hon’ble learned Single Judge in Civil Misc. Writ Petition No. 11165 of 2007, Manisha Tripathi and others v. State of U.P. and others, whereby the learned Single Judge dismissed the aforesaid writ petition. The appellants have also prayed for setting aside the judgment and order dated 28.2.2007 aforesaid by allowing the special appeal with costs. 3. Brief facts giving rise to the instant special appeal are that the eleven appellants in number claim to have been appointed as Assistant Teachers in Raja Ratansen Smarak Inter College, Nichlaul, District Mahrajganj, which is a recognized and aided Institution governed under the provisions of U.P. Intermediate Education Act, 1921. The Institution imparts education from class I to class XII. Originally, there were 15 Sections in classes I to V and for meeting out the requirement of teaching 15 Assistant Teachers in BTC Grade of pay scale in the Primary Section have been working in the Institution who were being paid salary from the government grant through the agency of the District Inspector of Schools, Maharajganj but with the passage of time, the strength of the students has increased in the Institution which compelled the Management, by letter/communication dated 7.8.1998, to apply for sanction of a total number of 28 Sections including 15 already existing Sections in the Primary Section of the Institution. The District Inspector of Schools, Mahrajganj appears to have sanctioned 11 additional Sections for the Primary Section of the Institution by increasing three additional Sections each for classes II to V by order dated 23.11.1998. As a consequence, eleven Assistant Teachers were required for additional Sections. Thereafter, the Management proceeded for making appointment of eleven Assistant Teachers in the Institution for which the appellants had also applied. It is claimed by the appellants that they were selected and granted appointment by appointment letters dated 10.12.1998, which have been collectively appended as Annexure-3 to the writ petition. They are in the same language, hence one of them is reproduced below. It is claimed by the appellants that they were selected and granted appointment by appointment letters dated 10.12.1998, which have been collectively appended as Annexure-3 to the writ petition. They are in the same language, hence one of them is reproduced below. ^^jktk jrulsu Lekjd b0 dk0 fupykSy] tuin&egkjktxatA la[;k& izcU/kd@98&99@ fnukad 10-12-1998 fo"k;%& v/;kid in dh fu;qfDrA lsok esa] Jh lfpu dqekj ik.Ms; iq= Jh vkse izdk’k ik.Ms; irk%&ik.Ms okMZ uxj iapk;r fupykSy egkjktxat ¼mRrj izns’k½ egksn;] vkidks lg"kZ lwfpr fd;k tkrk gS fd vki }kjk v/;kid in ds fy;s fn;s x;s vkosnu i= ds fopkjksijkUr jktk jrulsu b.Vj dkyst] fupykSy] egjktxat ls lEc) izkbejh ikB’kkyk esa vkidks lgk;d v/;kid in ij 'kklu }kjk fu/kkZfjr osru rFkk fu;ekoyh ds v/khu ;Fkk vuqeU; eagxkbZ HkRrs ij fu;qDr dj fy;k x;k gSA vkidks bl i= dh izkfIr ds fnukad ls 10 fnu ds Hkhrj laLFkk ds iz/kku@izca/kd ds le{k mifLFkr gksus rFkk dk;ZHkkj xzg.k djus dh vis{kk dh tkrh gSA Hkonh; g0 v0 izcU/kd jktk rjulsu Lekjd b.Vj dkyst] fupykSy] tuin&egkjktxatA^^ The appellants claim to have joined as Assistant Teachers in the Primary Section of the Institution in the month of December,1998 pursuant to appointment letters aforesaid, all the papers pertaining to the selection and appointment of the appellants were sent to the District Inspector of Schools, Mahrajganj on 12.12.1998 for according financial sanction. The financial approval was accorded vide order dated 26.2.1999 by the District Inspector of Schools and by means of letter dated 24.3.1999 all the papers for allocation of additional grant for disbursement of salary to the appellants were forwarded by the DIOS. 4. It is also claimed by the appellants that their salary was not being paid despite selection and appointment for which there was no rational justification. In these circumstances, the appellants compelled to file Civil Misc. Writ Petition No. 42631 of 2004, Manisha Tripathi and others v. State of U.P. and others for issuing a writ of mandamus commanding the respondents not to interfere in the working of the appellants as Assistant Teachers in Primary Section of the Institution and for payment of their regular salary on the said post month to month as and when it falls due including the arrears of salary from December, 1998 till date. The aforesaid writ petition was disposed vide judgment and order dated 8.10.2004 which is as under : “Grievance of the petitioners is that they have been appointed as Assistant Teachers in Attached Primary Section after taking approval from District Inspector of Schools on 26.2.1999. Entire paper in respect of payment of salary has already been transmitted by District Inspector of Schools to Director of Education on 24.3.1999 but till date Director of Education has not taken decision on the same. More than five years have elapsed, it is expected that Director of Education ought to have taken decision on the reference made by District Inspector of Schools. In this view of the matter, liberty is given to the petitioners to make fresh comprehensive representation within three weeks from today before Director of Education (Secondary), U.P. In the event any such representation is moved alongwith certified copy of this order then Director of Education (Secondary) U.P. is directed to decide representation moved on behalf of petitioners by reasoned speaking order within three months from the date of presentation of certified of this order. Whatever decision is taken on the same, same be communicated to the petitioners. With these observations, present writ petition is disposed of.” 5. The appellants then pursued the matter before the Director of Education (Secondary) for payment of their salary in compliance of judgment and order dated 8.10.2004 aforesaid. It appears that the inspection of the Institution was made by the Joint Director of Education, Gorakhpur on 4.7.2006 and by order dated 11.1.2007 the Director of Education (Secondary) U.P. rejected the representation of the petitioners-appellants on the ground that it is not proved from the record regarding the status of the appellants as Assistant Teachers in the Institution and the position of their payment of salary. The authority has also recorded a finding that names of two Assistant Teachers were found in the Attendance Register of the Institution and they were not found working in the institution. In so far as the appointments of the appellants is concerned, in the inspection it has already been found that the Institution has failed to prove that the appellants had been validly appointed against vacant and available posts in the Institution and that the letters dated 24.3.1999 and 26.2.1999 were manufactured letters which do not establish with clearity of number of vacancies. The relevant portion of the finding recorded by the Joint Director of Education (Madhyamik), U.P. is as under : ^^bl izdkj mi;qZDr rF;ksa ls ;g fLFkfr ik;h x;h fd ek0 U;k;ky; ds vkns’k esa bafxr i= fnukad 24-3-1999 fuxZr ugha gS] D;ksafd lEcfU/kr vfHkys[kksa@iaftdk ls ;g iqf"V ugha gqvk gSA vc tgka rd ;kph v/;kidksa ds fu;qfDr ,oa osru Hkqxrku dh fLFkfr gSA bl lEcU/k esa ftyk fo|ky; fujh{kd us ;g vk[;k miyC/k djk;h gS fd fujh{kd ds le; laLFkk ds izca/kd ,oa iz/kkukpk;Z mifLFkr FksA muds }kjk laLFkk ds mifLFkr v/;kid iaftdk dk voyksdu fd;k x;k ftlesa lEc) izkbejh vuqHkkx ds 15 f’k{kdksa dk uke ntZ gSA ftyk fo|ky; fujh{kd us vk[;k esa ;g Li"V fd;k gS fd iz’uxr ;kfpdk ls lEcfU/kr fdlh Hkh ;kph f’k{kd dk uke mDr mifLFkr iaftdk esa ntZ ugha gSA ftlls Li"V gS fd ;kph f’k{kd laLFkk esa dk;Zjr ugha gSA ftyk fo|ky; fujh{kd us ;g Hkh mfYyf[kr fd;k fd laLFkk esa izca?kd ,oa iz/kkukpk;Z }kjk ;kph f’k{kd ds fu;qfDr ls lEcfU/kr dksbZ vfHkys[k@i=tkr ;Fkkin l`tu fu;qfDri= ,oa vuqeksnu vkfn miyC/k ugha djk;k x;k ftlls budh fu;qfDr ds lEca/k esa fLFkfr Li"V ugha gSA blds vfrfjDr izdj.k ds lEcU/k esa ftyk fo|ky; fujh{kd }kjk iznRr vuqeksnu fnukad 26-2-1999 dks mYys[k ik;k x;k mlds vuqlkj fjDr in dh fLFfr Li"V ugha gS rFkk mlesa fu/kZkfjr vgZrk ds vUrxZr ek= ,d vH;FkhZ Jh lquhy dqekj f=ikBh dks NksM+dj lHkh ds lEeq[k vizf’kf{kr vafdr gSA bl fLFkfr esa fcuk in ds fu;qfDr ,oa vuqeksnu dh dk;Zokgh izFke n`"V;k vfu;fer gS lkFk gh fu/kkZfjr vgZrk ds vHkko esa ;g ekU; ugha gSA vr% bl izR;kosnu esa dksbZ cy ugha gS vkSj mls Lohdkj djus dk dksbZ vk/kkj ugha curk gSA bl lEcU/k esa izLrqr rF; fujk/kkj ,oa rF;ksa ls ijs gksus ds dkj.k xkzg~; ;ksX; ugha gSA fu.kZ; mi;qZDr rF;ksa ,oa fu"d"kksZa ds vk/kkj ij ;kphx.k ds izLrqr izR;kosnu dks vLohdkj djrs gq, rnuqlkj ek0 mPp U;k;ky; ds vkns’kuq’kklu esa izdj.k fuLrkfjr fd;k tkrk gSA ¼lat; eksgu½ f’k{kk funs’kd ¼ek0½ mRrj izns’kA^^ 6. The validity and correctness of the aforesaid order dated 11.1.2007 was challenged by the appellants in Civil Misc. Writ Petition No. 11165 of 2007, Manisha Tripathi and others v. State of U.P. and others. The aforesaid writ petition was dismissed vide judgment and order dated 28.2.2007 by the learned Single Judge which has given cause for filing the instant special appeal. 7. Writ Petition No. 11165 of 2007, Manisha Tripathi and others v. State of U.P. and others. The aforesaid writ petition was dismissed vide judgment and order dated 28.2.2007 by the learned Single Judge which has given cause for filing the instant special appeal. 7. The judgment and order dated 28.2.2007 impugned in the present special appeal has been challenged on the ground that while deciding the writ petition, learned Single Judge has totally lost sight of the fact that the letter of the District Inspector of Schools dated 24.3.1999, which is claimed to be a forged letter, is in no manner the basis for the appointment or the entitlement of the appellants and this fact assumes further importance in view of the fact that there does not exist any dispute with regard to the issuance of letters dated 23.11.1998 and 26.2.1999 passed by the District Inspector of Schools, Mahrajganj as also with regard to the Inspection report dated 24.2.1999 submitted by him. 8. It is submitted by the learned counsel for the appellants that the letter dated 24.3.1999 on the fact of it is an another departmental communication between the District Inspector of Schools and the Directorate of Education and neither the appointment of the appellants nor their entitlement for receiving salary is based on the said letter. 9. It is further submitted that both the Director of Education as well as the learned Single Judge have been swayed by irrelevant factors in passing the order against the appellants; that the inspection report noticed in the order of the Director of Education, as also in the judgment of learned Single Judge, merely recites that the names of appellants do not exist in the Attendance Register in which the names of 15 other employees of the Institution find place all of whom are receiving salary from Government grant. 10. It is vehemently argued that the learned Single Judge in the writ petition has wrongly recited that in the Inspection report the District Inspector of Schools has found that the petitioners appellants were not functioning in the Institution and his findings are not supported by any documentary evidence. 10. It is vehemently argued that the learned Single Judge in the writ petition has wrongly recited that in the Inspection report the District Inspector of Schools has found that the petitioners appellants were not functioning in the Institution and his findings are not supported by any documentary evidence. It is stated that the direction of learned Single for lodging of an First Information Report is a direction wholly uncalled for in the absence of any positive finding recorded by the learned Single Judge himself with reference to the document and their claim that there exist a separate Attendance Register with regards to them is also inspected and countersigned by the District Inspector of Schools on 24.2.1999 at the time of conducting an inspection on the basis of which the inspection report dated 24.2.1999 had been submitted. 11. It is lastly submitted that inspection report has taken into account the functioning of a total number of 26 Assistant Teachers in the Primary Section of the Institution as also noticed the factum of a demand for release of grant for payment of their salary. 12. From perusal of the judgment and order dated 28.2.2007 of the learned Single Judge it is apparent that the appellants have raised the same averments in this appeal which they have raised in the writ petition that they were validly appointed on the post of Assistant Teacher in the Institution which was approved by the District Inspector of Schools, Maharajganj as such they are entitled to the salary for the post of Assistant Teachers and that the view taken by the learned Single Judge is incorrect. We find that the conclusion drawn in the impugned judgment and order dated 28.2.2007 by the learned Single Judge cannot be said to be perverse or illegal. It appears from the record that there is no whisper as to how and in what manner the appellants had been given appointment as Assistant Teachers without there being any sanctioned post. Mere grant of permission to open a new Section would not ipso-facto amount to sanction or creation of post on which the petitioners appellants claim to have been appointed. We are supported in our view by the judgment rendered by the Full Bench in Gopal Dubey v. District Inspector of Schools, Mahrajganj, 1999 UPLBEC 1 wherein in paragraphs 22 and 23 of the judgment the Court held that : “22. We are supported in our view by the judgment rendered by the Full Bench in Gopal Dubey v. District Inspector of Schools, Mahrajganj, 1999 UPLBEC 1 wherein in paragraphs 22 and 23 of the judgment the Court held that : “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 7a 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. 23. In the case in hand indisputably, no prior approval of the Director was obtained before appointment of the petitioner as Lecturer in Sociology. Therefore, his claim for payment of salary by the State Government is unsustainable. The management of the Institution also is not entitled to reimbursement of the salary paid to the petitioner from the State Government in the absence of approval of the post. However, it will be open to the management to send a proposal to the Director for the grant of approval to the post held by the petitioner and if such proposal has already been received by the Director, he will consider the same in accordance with the provisions of the Act, the Rules and the law and pass appropriate orders expeditiously within three months.” 13. Further letter dated 24.3.1999 has been found to be forged one. It is evident from the record that neither the names of the appellants were found in the Attendance Register nor they were found working in the institution. The District Inspector of Schools has only referred the matter to the Director of Education (Secondary) in respect of eleven appellants seeking clarification for payment of salary. However, concurrent finding of fact has been recorded that the letter dated 24.3.1999 has been found to be forged and fictitious which is the whole basis of the claim of appellants. Since the letter dated 24.3. However, concurrent finding of fact has been recorded that the letter dated 24.3.1999 has been found to be forged and fictitious which is the whole basis of the claim of appellants. Since the letter dated 24.3. 1999 was the sole basis of the claim of the appellants and they have failed to prove that their appointments are valid and legal for which the selection has been made, mere obtaining of appointment letters issued by the Institution would not give them a legal right for payment of salary from the said Institution under the U.P. High School and Intermediate Colleges (Payment of Salaries to Teachers and Other Employees) Act, 1971. 14. We are in respectful agreement with the view taken by the learned Single Judge in the impugned judgment and order dated 28.2.2007 as the appellants have failed to make out a case in their favour so far it relates to payment of salary and their continuance as teachers. However, from the record it appears that indication of manipulating the letter dated 24.3.1999 is not made, therefore, the observation of the learned Single Judge to the extent of lodging First Information Report against the appellants is set aside. 15. For the reasons stated above, the appeal is partly allowed. No order as to costs. —————