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2018 DIGILAW 495 (ALL)

SUBASH CHANDRA PATEL v. STATE OF Uttar Pradesh

2018-02-23

BALA KRISHNA NARAYANA, IRSHAD ALI

body2018
JUDGMENT Hon’ble Irshad Ali, J.—Heard learned counsel for the appellant Sri Arvind Srivastava and learned Standing Counsel for the State. Notice upon the respondent No. 4 has been served through registered post but no one appears on behalf of the committee of management. 2. The instant appeal is directed against the judgment and order dated 19.11.2017 passed by the learned Single Judge in Writ Petition No. 56113 of 2007 Subhash Chandra Patel and others v. State of Uttar Pradesh and others, whereby the writ petition was dismissed rejecting the claim of the appellants-petitioners on the ground that their appointments have not been made against the sanctioned post, thus no interference can be called for under Article 226 of the Constitution of India. 3. For deciding the controversy, brief facts are that there is an institution in the name of Shri Shivajpat Singh Janta Inter College, Bhitauli Bazar, District Maharajganj (hereinafter referred to as the ‘Institution’). The provisions of the Uttar Pradesh Intermediate Education Act, 1921, the provisions of Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 as well as the provisions of the Uttar Pradesh Secondary Education Services Selection Board Act, 1982 are applicable to the said institution. The institution has one attached primary school in the same campus. The case of the appellants-petitioners is that an order was passed by the District Inspector of Schools on 6.5.1994, whereby 10 additional sections were sanctioned in the institution for running the additional classes. Earlier to that there were 35 sections in the aforesaid attached primary school. On the basis of grant of permission to run 10 additional section, applications were invited for selection and appointment on the post of Assistant Teachers in the aforesaid attached primary school, and without disclosing the material on record it has been alleged that vide order dated 15.12.1998 the petitioners were granted appointment as Assistant Teacher in the primary section. In pursuance to the order of appointment the appellants-petitioners joined their duties on 26.12.1998 and since then they are discharging their duties on the post of Assistant Teacher. 4. Papers in regard to the selection and appointments of the petitioners were submitted by the committee of management to the District Inspector of Schools, Maharajganj to accord approval and the District Inspector of Schools accorded approval to the appointments vide order dated 26.2.1999. 4. Papers in regard to the selection and appointments of the petitioners were submitted by the committee of management to the District Inspector of Schools, Maharajganj to accord approval and the District Inspector of Schools accorded approval to the appointments vide order dated 26.2.1999. It is the case of the appellants-petitioners that the approval order takes notice of the fact that as soon as the State Government will grant sanction, the payment of salary shall be disbursed under the State Exchequer. The grievance of the petitioner is that in spite of approval granted by the District Inspector of Schools, no payment of salary whatsoever was disbursed in their favour. 5. The petitioners feeling aggrieved due to non-payment of salary and due to passing of the order by the District Inspector of Schools, rejecting the claim of the petitioners for disbursement of the salary, filed Writ Petition No. 4219 of 2004 before this Court, which was finally disposed of vide judgment and order dated 17.8.2006 with a direction upon the Director of Education (Secondary) to look into the matter and decide the same, after calling upon the concerned parties to appear before him, including the petitioner, the District Inspector of Schools as well as committee of management, by means of a reasoned speaking order within a period of 3 months from the date a certified copy of this order is produced before him. 6. After hearing the parties, the Director of Education (Secondary) passed an order on 24.3.2007, whereby the claim set up by the appellants-petitioners has been rejected. The order passed by the Director of Education (Secondary) was subject-matter of challenge in Writ Petition No. 56113 of 2007 (Subhash Chandra Patel and others v. State of Uttar Pradesh and others), which has been dismissed vide judgment and order dated 19.11.2007. It is against this order the present special appeal has been filed. 7. Counsel for the appellants-petitioners submitted that in view of the grant of permission to run the additional section, the posts were deemed to be sanctioned in the attached primary section of the Intermediate College. Thus, the teachers, who were granted appointment, are entitled to get salary from the State Exchequer. 7. Counsel for the appellants-petitioners submitted that in view of the grant of permission to run the additional section, the posts were deemed to be sanctioned in the attached primary section of the Intermediate College. Thus, the teachers, who were granted appointment, are entitled to get salary from the State Exchequer. In support of his case he relied upon the Division Bench judgment of this Court in Special Appeal No. 205 of 2001 (State of Uttar Pradesh v. Kamlakar Pandey and others), decided on 9.7.2003, and on the basis of grant of permission of additional sections he tried to substantiate his argument that the posts have been created. He further placed reliance upon another judgment of the learned Single Judge in the case of Committee of Management, V.K. Higher Secondary School and another v. State of Uttar Pradesh and others, 2004(3) UPLBEC 2892, wherein, on the basis of permission granted for two additional sections in attached primary school of the higher secondary school, teachers were appointed and the appointment was accorded approval by the District Inspector of Schools. The competent authority refused to ensure payment of salary to the teachers so appointed. The order passed by the competent authority was subject-matter of challenge. The writ petition was allowed with the direction to ensure payment of salary to the teachers concerned. 8. The learned Standing Counsel on the other hand placed reliance upon the Full Bench judgment of this Court in the case of Gopal Dubey v. District Inspector of Schools, Mahrajganj and others, 1999(1) ESC 168 (All)(FB) and in the case of State of Uttar Pradesh Through Secretary, Secondary Education and others v. C/M, Sri Sukhpal Intermediate College, Tirhut, Sultanpur and others, 2015(5) ADJ 1 (LB)(FB) and submitted that the controversy in regard to the creation of post and grant of permission to run additional section has been considered by the Full Benches of this Court in elaborate and the Full Benches, on consideration of the relevant provisions of the law, have set rest the controversy by holding that without creation of post by the competent authority, the teacher appointed is not entitled to get salary from the State Exchequer or under Payment of Salaries Act, 1971. 9. 9. Learned Standing Counsel also submitted that the primary section of the aforesaid intermediate college is part and parcel of the college and the provisions of the of the Uttar Pradesh Intermediate Education Act, 1921 are applicable to the primary sections and in case the argument advanced by the counsel for the appellants (although not admitted) is accepted that substantive vacancy on the basis of the order of the District Inspector of Schools dated 6.5.1994 came into existence in the institution against which the appellants-petitioners have been granted appointment, even then the appointment of the appellants-petitioners is not acceptable in view of the amendment made in Section 18 of the Uttar Pradesh Secondary Education Services Selection Board Act, 1982, wherein power to make selection and appointment on ad hoc basis was taken away from the committee of management. It is admitted case of the appellants-petitioners that they have been granted appointment on 25.12.1998 by the committee of management. The appointment being made by an incompetent authority is not sustainable in the eyes of law. The argument advanced by the learned Standing Counsel has some substance as after the amendment on 14.7.1992 the committee of management ceased to have power to make appointment on the post of teachers against the substantive vacancy in the institution. 10. In view of the respective arguments advanced by the parties and on perusal of material on record, the appointment of the appellants-petitioners are contrary to law, and we have no hesitation to hold that the same have no legal sanctity in the eyes of law on two grounds; (a) the committee of management was not competent to make selection and appointment against the substantive vacancy, and (b) the posts, against which the appellants-petitioners claimed appointment were not duly sanctioned by the competent authority. Therefore, the appellants-petitioners cannot be held entitled to get salary from the State Exchequer. 11. Moreover, the claim of the appellants-petitioners is on the basis of grant of order to run the additional sections by the District Inspector of Schools, which cannot be termed as the posts duly created by the competent authority. In the year 1994 the competent authority to pass an order of creation of post was the Director of Education (Secondary), who has not passed any order for creation/sanction of post in attached primary section of the aforesaid institution. 12. In the year 1994 the competent authority to pass an order of creation of post was the Director of Education (Secondary), who has not passed any order for creation/sanction of post in attached primary section of the aforesaid institution. 12. Under the Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971, Section 2(b) defines the expression ‘institution’ as follows: “(b) ‘institution’ means a recognised institution for the time being receiving maintenance grant from the State Government.” Section 2 (e) defines the expression ‘teacher’ thus: “(e) ‘teacher’ of an institution means a Principal, Headmaster or other teacher in respect of whose employment maintenance grant is paid by the State Government to the institution and includes any other teacher employed in fulfillment of the conditions of recognition of the institution or its recognition in a new subject or for a higher class or as a result of the opening with the approval of the Inspector of a new section in an existing class.” 13. Section 9 provides that 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. Section 10(1) provides that the State Government shall be liable for payment of salaries of teachers and other employees of every institution due in respect of any period after March 31, 1971. The expression ‘teacher’, as we have noted, means the Principal,, Headmaster or other teacher in respect of whose employment the maintenance grant is paid by the State Government to the institution. The expression also includes any other teacher who is employed in fulfillment of the conditions of recognition of the institution or its recognition in a new subject or for a higher class or as a result of the opening of a new section in an existing class. 14. Under Uttar Pradesh Intermediate Education Act, 1921, Section 7-A empowers the Board to recognize an institution in any new subject or group of subjects or for a higher class with the prior approval of the State Government. 14. Under Uttar Pradesh Intermediate Education Act, 1921, Section 7-A empowers the Board to recognize an institution in any new subject or group of subjects or for a higher class with the prior approval of the State Government. Section 7-AA provides that the management of an institution may, notwithstanding anything contained in the Act, employ from its own resources, 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. Similarly, part time instructors are contemplated. While the management is, in the circumstances, empowered to appoint part-time teachers or instructors as specified in sub-section (1) of Section 7-AA, this is clearly from the resources of the management. Section 7-AB provides that nothing contained in the Act of 1971 or the Act of 1982 shall apply in relation to part-time teachers and part-time instructors employed under Section 7-AA. Under Section 16-E (11), there is a provision under which appointments in the case of a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding six months or by death, termination or otherwise of an incumbent occurring during an educational session, may be made by direct recruitment or promotion without reference to the Selection Committee in such manner and subject to such conditions as may be prescribed. However, no such appointment can continue beyond the end of the educational session during which such appointment was made. 15. Under the Uttar Pradesh Secondary Education Services Selection Board Act, 1982, Section 16(1) stipulates that notwithstanding anything to the contrary contained in the Act of 1921 or in the Regulations made thereunder but subject to the provisions of Sections 12, 18, 21-B to 21-F, 33, 33-A to 33-D and 33F, every appointment of a teacher shall, upon the commencement of the Uttar Pradesh Secondary Education Services Selection Board (Amendment) Act, 2001, be made by the management only on the recommendation of the Board. Sub-section (2) of Section 16 stipulates that any appointment made in contravention of the provisions of sub-section (1) shall be void. 16. Sub-section (2) of Section 16 stipulates that any appointment made in contravention of the provisions of sub-section (1) shall be void. 16. Prior to the aforesaid amendment in the Act No. 5 of 1982, the existing provision was that against the substantive vacancy power to make appointment was with the Regional Level Committee and not with the Committee of Management of the college. 17. In deciding the controversy we are referring Regulation 17(2) of the Regulations framed under Chapter II of the Uttar Pradesh Intermediate Education Act, 1921, which provides that no new post shall be advertised unless sanction of the appropriate authority for the creation thereof has been received by the management. Regulation 19 contains a clear prohibition to the effect that where a person has been appointed as a head of an institution or teacher or where any such person has been appointed in contravention of the provisions of Chapter II or against a post which is not sanctioned, the payment of salary and other allowances shall be declined even though the institution is covered by the provisions of the Act of 1971. 18. We have gone through the judgments relied upon by the learned Standing Counsel in the case of Gopal Dubey (supra) and in the case of C/M, Sri Sukhpal Intermediate College (supra) and perused the material on record. 19. On bare perusal of the provisions referred herein above and the provisions considered under the judgment of the aforesaid two Full Benches it is clear that without creation/sanction of post, any teacher appointed is not entitled to get salary from the State Exchequer. The aforesaid two Full Benches have also taken notice of the relevant provisions of law, which covers the field in regard to the payment of salary to the teachers and other employees of the recognized intermediate colleges or attached primary section to a Higher Secondary or Intermediate College. The Full Bench after considering the entire aspect of the matter has decided the issue that without sanction and creation of post by the competent authority, the teacher is not entitled to get salary. The Full Bench after considering the entire aspect of the matter has decided the issue that without sanction and creation of post by the competent authority, the teacher is not entitled to get salary. The issue of grant of permission to run additional section whether entitles to an appointed teacher to get salary from the State Exchequer has also been taken into consideration and it was held that without creation and sanction of post the State Government is not liable to pay salary to a teacher appointed in the institution. 20. In view of the settled proposition of law in the aforesaid two Full Benches, the judgment relied upon by the learned counsel for the appellants-petitioners has no legal sanctity in the eyes of law. Permission to run additional section to the attached primary sections of an intermediate college does not entitle to the appellant-teachers to get salary from the State Exchequer. The appellants/petitioners can very well claim salary from the committee of management. 21. In view of the above, we are in disagreement with the judgment relied upon by the counsel for the appellants. Therefore, we are of the considered opinion that there is no illegality or infirmity in the judgment of the learned Single Judge dated 19.11.2007 passed in Writ Petition No. 56113 of 2007. 22. Accordingly, the special appeal lacks merit and is hereby dismissed.