Har Govind Singh Shakya vs Committee of Management, Sri Rasal Singh Higher Secondary School and Others

D.K. Seth, J.—By an order dated 5.7.1985, issued by the Additional Secretary, Department or Intermediate Education, U.P., Allahabad, had accorded sanction to the concerned institution for recognising science subjects mentioned in the said order which included Biology. A copy of the said order is Annexure 1 to the writ petition. In the said order certain conditions were imposed on the institution Clause 2 therein provided that for the purpose of teaching the subjects sanctioned, teachers, having requisite qualifications prescribed by the Parishad, may be appointed in accordance with the rules. A copy of the said order was also sent to the Deputy Director of Education as well as Regional Deputy Director of Education. Pursuant to the said sanction, the Petitioner was given appointment on ad hoc basis u/s 18 of the U.P. Secondary Education Service Commission and Selection Board Act, 1982 (hereinafter called as the ''Act'') after complying with relevant rides; which facts has not been disputed by the Respondents. The papers relating to his appointment was forwarded for approval before the appropriate authority. Accordingly, the same was forwarded to the Deputy Director of Education of the concerned region. But no reply thereto having been received, the school authority by an order dated 4.5.1994 sought to dispense with the service of the Petitioner. It has given rise to the Petitioner''s grievance on account of inaction on the part of the Deputy Director of Education in according approval.

Learned Counsel for the Petitioner Shri Y. K. Saxena submits that the Deputy Director of Education cannot remain idle. He is bound either to approve or to disapprove the appointment of the Petitioner. The Petitioner cannot be made to suffer on account of the inaction on the part of the Deputy Director of Education. But impugned order, as contained in Annexure 9 to the writ petition, issued by the school authority on 4.5.1994 was a consequence of the inaction on the part of the Deputy Director of Education. This gave rise to the grievance of the Petitioner who had acquired a right by virtue of his appointment u/s 18 of the Act since according to him his appointment has been made after complying the procedure prescribed particularly those contained in Section 18 thereof. Relying on the definition of "Teacher" as contained in Section 2(e) of the U.P. High School and Intermediate Colleges (Payment of Salaries to Teachers and other Employees) Act, 1971, includes a teacher employed in fulfilment of the conditions of recognition of the institution including the recognition in a new subject and as such it is contended that the Petitioner is entitled by reason of his appointment and recognition of a new subject to receive salary under the said Act as well as the disposal or the question of grant of approval by the Deputy Director of Education.

Mr. Sabajit Yadav, learned standing counsel, on the other hand, contends that unless a post is created, there cannot be any appointment, therefore, the Petitioner cannot claim any right or benefit pursuant to his said appointment. The State cannot be burdened with the responsibility of payment of salary to the Petitioner.

After having heard learned Counsel for the parties, it appears that the papers were forwarded to the Deputy Director of Education for creation or a post. But no reply has been given to the said question. It is incumbent on the part of the Deputy Director of Education to reply to the said question either to speak out whether a creation of the post is required or not or he may create a post or not. But as soon the sanction is accorded recognising a new subject with the condition that teacher with requisite qualification may be appointed and duly communicated to the Deputy Director of Education, it supposes that a post is being created and it may require formal approval. The said question came up for consideration in the case of Committee of Management Krishak Intermediate College, Gaur, Basti and Anr. v. Director of Education, U.P. and Ors. being a Civil Misc. Writ Petition No. 7802 of 1989, wherein identical circumstances, this Court has held that the recognition of the new subject amounts to creation of post in the subject particularly when appointment was recommended. In case there is no infirmity in the appointment of the Petitioner in that event there is no alternative but to accord sanction to the creation of the post in view of recognition granted by letter dated 5.7.1985. A teacher having been defined u/s 2(e) of the Payment of Salaries Act to include a teacher employed in fulfilment of the conditions of recognition of the institution including the recognition in a new subject, there is no escape from the conclusion that the Petitioner if appointed in terms of such recognition is a teacher within the meaning of Section 2(e) of the said Act.

Mr. Sabajit Yadav, learned standing counsel refers to Chapter II, Rule 19 of the Regulations framed under the U.P. Intermediate Education Act, 1921 and contends that the Government shall decline to pay salary and other allowances in any teacher is appointed in contravention of the provisions of the Chapter or against any post other than a sanctioned post. Mr. Yadav, does not contend that there was any contravention of the provision of Chapter II, Regulation 19. Whereas on the other hand he insists that the appointment was made in a post other than a sanctioned post. But the said contention does not cut any ice. Inasmuch as it was so held in the case of Committee of Management Krishak Intermediate College Gaur, Basti, (supra) that recognition of new subject amounts to creation of post in the subject.

Unless the post is sanctioned the grant of recognition would be meaningless. The very grant of recognition along with recommendation to the institution to appoint teacher with information to the various authorities, in itself creats a post of teacher in the subject so recognised by necessary implication, particularly in view of the definition contained in Section 2(e) of the Payment of Salaries Act which also recognises a person appointed in fulfilment of the conditions of recognition of a new subject as a teacher. Thus it does not appear that there is any substance in the contention of Mr. Yadav.

In that view of the matter, the writ petition succeeds and is accordingly allowed. The Respondents shall take steps for according the approval to the appointment of the Petitioner, provided he was appointed in compliance with the provision of Section 18 of the Act and there has been no contravention with regard thereto, within a period of 8 weeks from the date a copy of this order is produced before the concerned Respondent and the Inspector shall consider the question of payment of salary under the Payment of Salaries Act after verifying facts relating to the appointment of the Petitioner. The question of payment of salary shall be prospective from the date when the Petitioner is permitted to join the school. In view of the above observation, the order dated 4.5.1994 (Annexure 9 to the writ petition) passed by the school authority become redundant and is accordingly stand quashed. A writ of certiorari do accordingly issue. The school authority shall allow the Petitioner to resume duty within a period of two months from the date a copy of this order is produced before the school authority. A writ of mandamus do issue accordingly.

The writ petition is thus disposed of. There will however be no order as to costs.

Certified copy may be furnished to the Petitioner on usual charges within 7 days.