SPECIAL APPEAL DEFECTIVE No 673 of 2014
State of U P through Secretary, Secondary Education & Ors
C/M, Sri Sukhpal Intermediate College, Tirhut, Sultanpur & Ors
For appellants : Shri Vivek Kumar Shukla, Additional CSC
Shri Prafulla Yadav, Standing Counsel
For respondents : Shri Ramesh Pandey, Advocate
Shri Ajay Pratap Singh, Advocate
Hon'ble Dr Dhananjaya Yeshwant Chandrachud, Chief Justice
Hon'ble Shri Narayan Shukla, J
Hon'ble Dr D K Arora, J
(Per Dr D Y Chandrachud, CJ)
The present reference before the Full Bench has been occasioned by a referring order of a Division Bench dated 24 November 2014. The Division Bench noticed that there was a conflict between the decisions of the Division Benches in State of U P Vs Om Prakash Verma1 and Rajesh Yadav Vs Director of Education (Madhyamik), U P, Allahabad2. The Division Bench was of the view that the field was covered by a judgment of a Full Bench in Gopal Dubey Vs District Inspector of Schools3. However, the Division Bench thought it appropriate to refer the matter to the Full Bench since the judgment of the earlier 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.
At the hearing of these proceedings, it is common ground between the learned counsel that the first and the second questions would suffice for the disposal of the proceedings and that the third and fourth questions as formulated, do not arise on the basis of the pleadings or judgment in the special appeal. We, accordingly, proceed to formulate our answers to the reference, on the first two questions.
While dealing with the questions which have been framed for consideration by the Full Bench, it would, at the outset, be necessary to have due regard to the provisions contained in three statutes in the State of Uttar Pradesh. These are:
(i) The Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 19714;
(ii) The Intermediate Education Act, 19215; and
(iii) The Uttar Pradesh Secondary Education Services Selection Board Act, 19826. In addition to these provisions, the Regulations framed under the Act of 1921 would also have a bearing on the issue raised. Consequently, we proceed to elucidate the relevant provisions contained in the Statutes and the Regulations.
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."
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.
Intermediate Education Act, 1921
Section 7 (4) elucidates the powers of the Board of High School and Intermediate Education7 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 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.
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.
Regulation 17(2) of the Regulations which have been framed under Chapter II of the Act of 1921, 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 the following provision:
"19. Where any person is appointed as, or any promotion is made on any post of head of institution or teacher in contravention of the provisions of this chapter or against any post other than a sanctioned post the Inspector shall decline to 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."
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.
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 Division 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 Verma8. 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 disentitled 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 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 case. The Division Bench, however, directed that since new sections had been created and the teachers were required, the Director of Education would consider the request for sanction of additional posts in accordance with the norms and guidelines of the State. The direction for the payment of salary to teachers was, however, set aside. In the subsequent judgment of the Division Bench in Rajesh Yadav, an intermediate college was granted recognition to teach the subject of Education. The Principal of the institution was himself taking the subject. Upon the retirement of the Principal, the Committee of Management filled up the vacancy. The papers were forwarded by the Committee of Management to the District Inspector of Schools for approval. The District Inspector of Schools rejected the request for the grant of financial sanction on the ground that ten posts had been sanctioned earlier and since the Principal was taking one of those subjects, there was no question of sanctioning any more post. When the writ petition was filed, a learned Single Judge by an interim order directed the payment of salary to the teacher appointed as an ad hoc Lecturer in Education each month. In this background, the Division Bench directed the District Inspector of Schools to consider the matter and to determine whether the post was required. Upon the receipt of a report of the District Inspector of Schools, the Director of Education was to pass an order within a stipulated period. The Division Bench directed that the teacher would be paid his salary until the final order was passed by the Director of Education. The distinction between the the operative directions of the Division Bench in Om Prakash Verma and in Rajesh Yadav was that in the former case, the Director of Education was only directed to consider the creation and sanctioning of a post, and the order passed by the Single Judge for the payment of salary was set aside. On the other hand, in Rajesh Yadav's case, while directing the Director of Education to pass final orders on the request for sanctioning the post, the Division Bench directed that the teacher would be paid salary until a final order is passed.
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.
For these reasons, we answer the questions which have been framed for reference to the Full Bench in the following terms:
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. The position in law, with which we respectfully concur, is as laid down in the judgment of the Full Bench in Gopal Dubey's case. The judgment in Om Prakash Verma is consistent with the law laid down in Gopal Dubey's case. 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.
Order Date :- 12.5.2015
(Dr D Y Chandrachud, CJ)
(S N Shukla, J)
(Dr D K Arora, J)