2015 (5) TMI 1266 - HC - Indian Laws

Payment of Salary Without a Sanctioned Post - Whether a direction can be issued for payment of salary under Article 226 of the Constitution of India in the absence of a sanctioned post? - HELD THAT - 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. In the absence of a sanctioned post a direction cannot be issued to the state in the exercise of powers under Article 226 of the Constitution for the payment of salary - 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 reference to the Full Bench stands answered accordingly. The special appeal shall now be placed before the Division Bench for disposal in the light of this judgment.

Summary

1. **ISSUES PRESENTED and CONSIDERED**

The Full Bench was tasked with resolving the following core legal questions:

(1) Whether a direction can be issued for payment of salary under Article 226 of the Constitution of India in the absence of a sanctioned post.

(2) Which of the two decisions, Rajesh Yadav or Om Prakash Verma, correctly interprets the law in light of the Full Bench decision in Gopal Dubey.

2. **ISSUE-WISE DETAILED ANALYSIS**

**Issue 1: Payment of Salary Without a Sanctioned Post**

- **Relevant Legal Framework and Precedents:** The judgment primarily relied on the Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971, which mandates that no institution shall create a new post of teacher or other employee without prior approval from the Director. The Full Bench also referred to the Supreme Court's decision in Director of Education v. Gajadhar Prasad Verma, which emphasized that prior approval is a condition precedent for creating new posts.

- **Court's Interpretation and Reasoning:** The Court reiterated that the absence of a sanctioned post precludes the issuance of a direction for salary payment. The Court emphasized that Section 9 of the Act of 1971 is mandatory, and the High Court cannot issue a direction contrary to this statutory mandate.

- **Key Evidence and Findings:** The Court found that the mere recognition of an institution or subject does not imply financial sanction for creating posts. The management must obtain prior approval from the Director for any new posts, as stipulated by Section 9 of the Act of 1971.

- **Application of Law to Facts:** The Court applied the principles from Gopal Dubey and Gajadhar Prasad Verma, concluding that without a sanctioned post, no legal right exists for salary payment, and therefore, no mandamus can be issued under Article 226.

- **Treatment of Competing Arguments:** The Court dismissed the argument that recognition of a subject or institution implies post sanctioning, emphasizing that financial liability cannot be presumed without explicit approval.

- **Conclusions:** The Court concluded that a direction for salary payment without a sanctioned post is not permissible under Article 226.

**Issue 2: Correct Interpretation of Law Between Rajesh Yadav and Om Prakash Verma**

- **Relevant Legal Framework and Precedents:** The Court examined the decisions in Rajesh Yadav and Om Prakash Verma in the context of the Full Bench decision in Gopal Dubey, which clearly delineates the requirements for post sanctioning under the Act of 1971.

- **Court's Interpretation and Reasoning:** The Court found that the decision in Om Prakash Verma aligns with the principles established in Gopal Dubey, as it correctly refrained from directing salary payment without sanctioned posts.

- **Key Evidence and Findings:** The Court noted that in Om Prakash Verma, the Division Bench set aside the direction for salary payment and only directed the Director of Education to consider the creation of posts. In contrast, Rajesh Yadav directed payment until a final decision was made, which was inconsistent with the statutory requirements.

- **Application of Law to Facts:** The Court applied the statutory requirements and the precedent set by Gopal Dubey, concluding that Om Prakash Verma correctly interpreted the law.

- **Treatment of Competing Arguments:** The Court reconciled the conflicting decisions by emphasizing the mandatory nature of Section 9 and the need for explicit approval for creating posts.

- **Conclusions:** The Court concluded that Om Prakash Verma correctly interpreted the law in accordance with the Full Bench decision in Gopal Dubey.

3. **SIGNIFICANT HOLDINGS**

- **Verbatim Quotes of Crucial Legal Reasoning:** "In the absence of a sanctioned post, a direction cannot be issued to the state in the exercise of powers under Article 226 of the Constitution for the payment of salary."

- **Core Principles Established:** The Court reaffirmed that prior approval from the Director is mandatory for creating new posts, and financial liabilities cannot be presumed based on recognition alone. The High Court cannot issue directions contrary to statutory mandates.

- **Final Determinations on Each Issue:** The Court determined that without a sanctioned post, no direction for salary payment can be issued, and Om Prakash Verma correctly interpreted the law in line with the Full Bench decision in Gopal Dubey.