Jitendra Mohan Pandey vs State Of U.P. Through Secy.Basic ...
2015 Latest Caselaw 5689 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
Court No.24
 

 
Writ Petition No. 5584 (SS) of 2010
 

 
Jitendra Mohan Pandey			..........	Petitioner
 
Versus
 
State of U.P. and others 		.......... 	Opposite parties
 

 
along with
 
Writ Petition No. 6851 (SS) of 2010
 

 
Arvind Kumar Mishra 			..........	Petitioner
 
Versus
 
State of Uttar Pradesh and others 	..........	Opposite parties
 

 
*******
 
Hon'ble Dr. Devendra Kumar Arora, J.

Heard Mr. O.P.M. Tripathi, Mr. Shishir Chandra, learned counsel for the petitioners, Mr. Neeraj Chaurasiya, learned counsel for the District Basic Education Officer, Ambedkar Nagar (opposite party No.3) and Mr. Omkar Singh, learned counsel for the Committee of Management (opposite party No.4).

By means of the above-captioned writ petitions under Article 226 of the Constitution of India, petitioners have prayed for issuance of writ in the nature of Mandamus directing the opposite parties No. 2-Director, Basic Education, Uttar Pradesh and opposite party No.3-District Basic Education Officer, Ambedkar Nagar to create post of Assistant Teacher (Science) in Pandit Nehru Smarak, Purwa Madhyamik Vidyalaya Sarve Nikaspur, District Ambedkar Nagar, and make payment of salary in admissible grade of Assistant Teacher to the petitioners with all consequential benefits w.e.f. the date when they joined the aforesaid School on the post of Assistant Teacher (LT Grade) or in the alternative, to create posts of Assistant Teacher in the School to accommodate petitioners for the purpose of Payment of Salary.

A brief reference to the factual aspects leaving out the maize of unnecessary facts would suffice as under :

Pandit Nehru Purwa Madhyamik Vidyalaya Sarvenikaspur, District Ambedkar Nagar (hereinafter referred to as the "Institution"), a recognized institution by the State Government under the provisions of Uttar Pradesh Basic Education Act, 1972, is covered under grant-in-aid scheme of the State Government w.e.f. 7.4.1980. In order to impart proper education to the students of the institution, the Committee of Management wrote various letters to the District Basic Education Officer, Ambedkar Nagar to accord permission to make appointments of the teachers in the institution but no heed was paid by the District Basic Education Officer, Ambedkar Nagar. Accordingly, the Committee of Management, after intimating the necessities of the teachers to be appointed in the institution, advertised four posts of Assistant Teachers in daily newspapers, namely, "Mourya Samrat" and "Kabeer Times" dated 5.8.2008. Thereafter, the Manager of the Institution wrote a letter to the District Basic Education Officer, informing thereby that four posts of Assistant Teachers have been advertised on 5.8.2008 through daily newspapers, namely, "Mourya Samrat" and "Kabeer Times" and selection/interview on the aforesaid post is scheduled to be held on 24.8.2008 and, therefore, it was requested to send his representative for holding selection and interview on the post in question.

Pursuant to the advertisement so issued by the Committee of Management of the Institution, petitioners applied for selection and appointment on the post of Assistant Teacher along with other candidates. The Selection Committee so instituted by the Committee of Management had taken interview of the suitable candidate on 24.8.2008 and submitted its report to the Committee of Management. Thereafter, on the basis of the report of the Selection Committee, the Committee of Management issued appointment letters to the petitioners on the post of Assistant Teacher. In pursuance to the appointment letter, the petitioners joined their duties on 27.8.2008 and since then, they are discharging their duties. The Manager of the Committee of Management informed the Basic Education Officer, Ambedkar Nagar regarding filling up of four posts of Assistant Teachers in the institution as well as their joining, but no heed was paid by the opposite party No.3-District Basic Education Officer, Ambedkar Nagar, though various letters having been written by the Manager of the Institution. In these compelling circumstances, the petitioners made representation to the District Basic Education, praying therein for issue suitable direction for payment of salary to the petitioners but no heed was paid.

Feeling aggrieved by the inaction of the opposite parties, petitioners have filed the above-captioned writ petitions, with the prayer, as referred hereinabove.

Submission of the learned counsel for the petitioners is that the petitioners were appointed on the post in question after following the procedure of selection strictly on the basis of quality points obtained by them. In pursuance to the appointment order dated 26.8.2008, petitioners resumed their duties on 27.8.2008 and since then, they have been discharging their duties to the entire satisfaction of the authorities concerned. It has been submitted that under Section 9 of the Payment of Salaries Act, 1978 [hereinafter referred to as the "Act"], the Director is the competent authority to create the posts as the creation of the posts is in his sole domain and Section 10 of the Act imposes liability upon the State Government to ensure payment of salary to the teachers and other employees of every institution in respect of any period after the date of appointment. His submission is that in the institution in question, six sections are approved to be run and as per the prescribed norms, 9 teachers are required to be deputed to impart education at the rate of 11/2 teachers for one section. In the Institution in question, six posts are sanctioned, whereas as per the norms, nine posts ought to have been sanctioned by the competent authority.

Elaborating his submissions, counsel for the petitioners submitted that two posts of Assistant Teacher resulted on account of retirement of Sri R.D. Verma in the year 2008 and in 2009, on retirement of Sri Shyam Raj Mourya, whereas the third post of Assistant Teacher had become available on 30.6.2012 on account of retirement of Sri Upendra Mohan Tiwari. Thus, in the institution in question, total sanctioned posts of Assistant Teacher are five including one post of Head Master and out of five posts, three posts are lying vacant. Therefore, the opposite parties may be directed to accommodate the petitioners against the vacant posts and be paid salary accordingly.

It has been stated that once the institution is recognized and comes within the definition of Section (e) of Section 2 of the Uttar Pradesh Junior High School (Payment of Salary to the teachers and other employees) Act, 1972 and receives grant as defined under Section (f) of the Act, the State is liable to make payment of salary to the petitioner as they are imparting education in the institution in the subject Science w.e.f. 27.8.2008. Therefore, in denying salary to the petitioners is violative of Article 14 and 16 of the Constitution of India.

In support of his submissions, learned counsel for the petitioners have placed reliance upon the judgment of the Apex Court rendered in Chandigarh Administration and others Vs. Rajni Vali (Mrs.) and others (2000 (2) SCC 442) and this Court's judgment reported in 2004 (1) UPLBEC 746 : Committee of Managment Jaribandhan Higher Secondary School, Baij Nath Ganj, Goriganj, Allahabad and another Vs. State of U.P. and others and Committee of Management, Anand Singh Intermediate College, Pratapgarh Vs. State of U.P. and others (writ petition No. 2054 (SS) of 2000) read with writ petition No. 1406 (SS) of 2001 : Anand Prasad Tiwari and others Vs. State of U.P. and others, decided on 9.2.2004.

Per contra, Mr. Neeraj Chaurasiya, learned counsel for the opposite party No.3-District Basic Education Officer, Ambedkar Nagar, has submitted that the Basic Education Officer, Ambedkar Nagar had wrote letter dated 4.9.2015 and thereafter reminder dated 14.9.2015, seeking the information from the Additional Director Education (Basic) with regard to the letter dated 26.9.1992 written by the Assistant Director Education (Basic) addressed to the Additional Director Education (Basic), whereby recommendation of the the District Basic Education was forwarded for creation of three additional post of Assistant Teacher in the institution. In reply to the aforesaid letter, vide letter dated 16.9.2015, the District Basic Education Officer was informed by the Education Directorate, Allahabad that after examination of record, it was found that the matter has not been received in the Directorate and the Assistant Director Education (Basic) Faizabad has not sent any subsequent correspondence in this regard, therefore, the question of issuing the post creation order/permission does not arise at all.

Mr. Neeraj Chaurasiya has further contended that as per Government Order dated 2.7.1990, presently, only one post of Head Master, four Assistant Teacher, and one Clerk is permissible in the institution and at the time of appointment of petitioners in the institution in question, four teachers were already working in the institution.

Elaborating his submissions, Mr. Neeraj Chaurasiya has submitted that on 21.8.2015, the Block Education Officer, Jahangirgunj, Ambedkar Nagar has made the inspection of the institution in question and during inspection, in Class-VI, against the 23 students enrolled only 13 were found present, in Class-VII, against 37 students enrolled, only 11 were found present and in Class-VIII, against 42 students enrolled, only 19 were found present in the institution. In these backgrounds, Mr. Chaurasiya has submitted that since the appointments of the petitioners are de horse the Rules, therefore, the present writ petition deserves to be dismissed.

I have heard learned Counsel for the parties and perused the records.

In order to appreciate the submissions of the learned Counsel for the parties, it is apt to mention here that two Full Benches of this Court have held that creation of post under Section 9 of U.P. Act No. 24 of 1971, is a condition precedent before a writ of mandamus to pay salary to the teachers appointed from State Exchaquer can be issued. Reference may be made to the decisions rendered in Gopal Dubey vs. District Inspector of Schools :1999 (35) ALR 191 and State of U.P. through its Secretary, Secondary Education & Ors. Vs. C/M, Sri Sukhpal Intermediate College, Tirhut, Sultanpur & Ors. (Special Appeal Defective No.673 of 2014 decided on 12.5.2015).

In Gopal Dubey (supra), the issue which fell for consideration before the Full Bench of this Court was whether a presumption can be drawn that the post of a Lecturer stands sanctioned by the Director of Education merely because recognition has been granted by the Board in respect of a subject under the Act of 1921. The following issue was formulated:

"Whether 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 ( (U.P. Act No. II of 1921), it will 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?"

The Full Bench in that case rejected the submission that since the Director of Education is an ex officio Chairman of the Board under the Act of 1921 and the Board had accorded its recognition to the institution for a particular subject, it must be presumed that the Director had sanctioned the post of a Lecturer in the subject. Dealing with the submission, the Full Bench held as follows:

"...This contention does not commend acceptance. Section 9 of the Payment of Salaries Act expressly mandates 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. Since the statute requires the thing to be done in a particular manner, then it has to be done in that manner or not at all. It follows, therefore, that prior approval of the Director in writing must be obtained before the management creates a new post of teacher in the recognised Institution. The requirement of the statute cannot be presumed because the Director happens to be the authority or one of the authorities concerned in the matter of accord of recognition for opening a new subject in a College. It is relevant to note here that recognition for opening a subject in a College is accorded by the Director under the provisions of the Intermediate Education Act, which is a statute to establish a Board to regulate and supervise the system of High School and Intermediate Education in Uttar Pradesh, prescribe courses therefor and oversee related activities ; whereas the Payment of Salaries Act is enacted to regulate the payment of salaries to teachers and other employees of the High Schools and intermediate Colleges and to provide for matters connected therewith. The two statutes, in our considered view, operate in different fields. While dealing with matters like recognition and payment of salary of teachers and other employees relevant matters to be taken into consideration are different. Regarding recognition, the authority has to satisfy itself about necessary infrastructure, the facilities available in the Educational Institution, the benefit to the students of the locality in opening the new subject in the Institution, the potentiality of the Institution to cater to the needs of the students of the locality, etc. While dealing with the question of granting approval for creation of a post of a teacher or other employee in an Institution, the primary consideration is the preparedness of the State Government to bear the financial liability of the new post proposed to be created. It follows, therefore, that the contention that since the Director is associated with the matter regarding grant of permission/ recognition for opening new subject in the Institution, it is presumed that he has given his consent for creating new posts of teachers and other employees for that subject is not correct. This contention, if accepted, may lead to situation that the management creates posts of teachers and other employees in connection with the new subject and the State Government is compelled to bear the financial liability without any further involvement in the matter. Such a situation, as we read the provisions of the two enactments, is not contemplated. It also does not appeal to common logic. The result is that for the purpose of creating a new post of teacher or other employee for/in connection with a new subject, which it has been permitted to open, the management has to obtain prior approval of the Director as required, under Section 9 of the Payment of Salaries Act. This statutory mandate cannot be said to have been satisfied by raising a presumption on the basis of recognition granted for that subject."

In taking this view, the Full Bench placed reliance on the judgment of the Supreme Court in Director of Education Vs Gajadhar Prasad Verma :AIR 1995 SC 1121. The Supreme Court in that case has held that in view of Section 9 of the Payment of Salaries Act of 1971, no institution could create new posts of teachers or other employees except with the previous approval of the Director and the failure of the management to obtain prior approval dis-entitled it to obtain reimbursement of the salary of such a teacher or employee. The Supreme Court held as follows:

"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 and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 (24 of 197 1), 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 authorised 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 post of a teacher or other employee. The reason behind Section 9 is that prior to grant of aid 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 to 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."

(emphasis supplied)

In C/M Sri Sukhpal Intermediate College (supra), the Full Bench, in which I was also one of the Members, were formulated four questions, which reads as under :

(1) Whether in the absence of any sanctioned post, can a direction in the exercise of powers under Article 226 of the Constitution of India be given for payment of salary when admittedly no post has been sanctioned by the competent authority;

(2) Which of the two decisions in the case of Rajesh Yadav (supra) and Om Prakash Verma (supra) keeping in view the Full Bench decision in the case of Gopal Dubey (supra), lays down the law correctly;

(3) Whether the State Government or its authorities, who are authorized to create posts, by virtue of their inaction can defy creation of posts in an institution keeping in view the larger interest of the society namely education which is specifically in the hands of the State Government; and

(4) Whether the State Government under the garb of threat of contempt could proceed to issue a direction for payment of salary to a teacher who was never appointed in the institution as admitted in the present case."

The Full Bench, while dealing with the aforesaid questions, have taken note of the provisions contained in three statutes in the State of Uttar Pradesh, which are as under :

(i) The Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971;

(ii) The Intermediate Education Act, 1921; and

(iii) The Uttar Pradesh Secondary Education Services Selection Board Act, 1982.

On considering the relevant provisions of the aforesaid Act and also the decision of the Full Bench in Gopal Dubey (supra), Om Prakash Verma (supra) and Rajesh Yadav (supra), the Full Bench has come to the conclusion that in the absence of a sanctioned post, the High Court under Article 226 of the Constitution would not be justified in issuing a mandamus for the payment of salary, particularly since a mandamus cannot lie in the absence of a legal right, based on the existence of a statutory duty. The relevant portion of the judgment is reproduced as under :

"In our view, the field of dispute in the present case, is governed by the judgment of the Full Bench in Gopal Dubey (supra). The judgment in Gopal Dubey clearly holds that the Act of 1971 operates in a field which is distinct from the Act of 1921. The mere fact that recognition has been granted to an institution or, for that matter, for conducting a new course or subject or for an additional section, would not give rise to a presumption of a financial sanction having been granted to the creation of a post. A financial liability cannot be foisted on the State to reimburse the salary payable to the employee or the teacher on the basis of such a presumption. For the purpose of creating a new post of a teacher or other employee, the management has to obtain the prior approval of the Director as required under Section 9 of the Act 1971. Without the prior approval of the Director, a new post cannot be sanctioned or created. Section 9 is mandatory. This principle in Gopal Dubey's case follows specifically the judgment of the Supreme Court in Gajadhar Prasad Verma's case which was rendered while interpreting the provisions of Section 9 of the Act of 1971. The High Court cannot issue a direction contrary to the mandate of Section 9. Orders under Article 226 must conform to law and cannot be contrary to the mandate of law. No mandamus can issue - interim or final - for the payment of salary by the state in the absence of the prior approval of the Director."

In the present case also, the petitioners were appointed on the post of Assistant Teacher in the Institution in question by the Committee of Management on its own, without their being any valid order issued by the competent authority. It is also true that the petitioners were appointed above the sanctioned strength. In view of Section 9 of the Payment of Salary Act, the institution can make appointment only against the post which has been created by the order of Director of Education. Therefore, in view of the aforesaid Full Bench judgments of this Court, no mandamus for payment of salary as well as creation of post of Assistant Teacher in the Institution in question can be issued while exercising powers under Article 226 of the Constitution of India.

For the reasons aforesaid, this Court is of the view that the judgments, which have been relied by the learned Counsel for the petitioners, are not applicable in the facts and circumstances of the case and the writ petition is liable to be dismissed.

Accordingly, the writ petitions are dismissed. However, there is no order as to costs.

Order Date : 23.12.2015

Arvind/Ajit/-