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TMI Blog2015 (5) TMI 1266X X X X Extracts X X X X X X X X Extracts X X X X ..... er Division Bench in Rajesh Yadav (supra) had considered both the earlier decisions in Om Prakash Verma as well as the judgment of the Full Bench in Gopal Dubey. Accordingly, the following questions of law have been referred for decision: "(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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. Intermediate Education Act, 1921 7. Section 7 (4) elucidates the powers of the Board of High School and Intermediate Education Board which is constituted under Section 3. Among those powers, sub-section (4) of Section 7 deals with the recognition of institutions for the purposes of its examinations. Section 7-A empowers the Board to recognise 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pay salary and other allowances, if any, to such person where the institution is covered by the provisions of the U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971, and in other cases shall decline to give any grant for the salary and allowances in respect of such person." 10. 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. 11. 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution, 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xisting 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) 12. In Om Prakash Verma's case, a special appeal was filed by the State against an order of the learned Single Judge allowing a batch of writ petitions by directing the District Inspector of Schools to pay the salary to the petitioners who had moved the Court. The petitioners were appointed as teachers in LT Grade. Proposals were sent to the Director of Education for creation of posts but no posts had been created. The learned Single Judge had held that since new sections had been opened in certain classes with the approval of the Inspector and the teachers were appointed in consequence to the opening of those sections, the State could not escape its liability under Section 10 of the Act of 1971. The Division Bench, while allowing the special appeals filed by the State, relied upon the decision of the Full Bench in Gopal Dubey's ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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