PETITIONER: DIRECTOR OF EDUCATION Vs. RESPONDENT: GAJEDHAR PRASAD VERMA DATE OF JUDGMENT21/11/1994 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. VENKATACHALA N. (J) CITATION: 1995 AIR 1121 1995 SCC (1) 465 1994 SCALE (5)338 ACT: HEADNOTE: JUDGMENT:
ORDER
1. Leave granted.
2. We have heard learned counsel for the parties.
3. This appeal by special leave arises from the order of
the Allahabad High Court in CMWP No. 2669 of 1990 dated 11 –
11- 1992. The admitted facts are that one Hariram Yadav,
while working as clerk, went on leave. In the leave
vacancy, the respondent came to be appointed till Hariram
Yadav joined the duty. By resolution dated 28-12-1986, the
Managing Committee resolved that even after Hariram Yadav
joins duty on 1-5-1987, the service of the respondent would
be continued uninterruptedly. It is stated in the counter-
affidavit filed in this Court that the approval of the
District Inspector of Schools was also obtained in that
behalf. But no supporting material has been placed before
us. The valid appointment of the non-teaching staff of a
private aided institution to be valid, should be in
accordance with the relevant rules. Since the validity of
the appointment of the additional clerk is not in issue, we
need deal with the matter in depth.
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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) (for
short ‘the Act’), 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.
5. Shri Pramod Swarup, learned counsel for the respondent,
placed before us the direction issued by the State
Government for creation of an additional post when the
strength of the students exceeds 1100. It is his contention
that since the strength of the students has been more than
1100, the creation of additional clerk has become necessary
and that, therefore, the Management has resolved to appoint
the respondent as an additional clerk. We are concerned
with the creation of the additional post, may be, due to the
increase in the strength of students. What is material is
whether prior approval of the Director or the empowered
officer has been obtained before creating that post. It is
not the case of the respondent or the Management that such
prior approval had been obtained or given by the competent
officer. Therefore, so long as prior approval had not been
given, though the respondent might have been appointed by
the Management, the Government is not obliged to reimburse
the salary paid to such clerk. The Management has to bear
the expenditure from its own resources without claiming any
reimbursement from the Government. The High Court,
therefore, has committed grievous error of law in not
adverting to this crucial question and allowing the writ
petition directing the Government to create the post and to
make the payment of the salary etc. The directions are
wholly illegal and legally unsustainable.
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6.it is stated and brought to our notice that a post has
been created by the Government pursuant to the impugned
order passed by the High Court. But the Government have
also stated therein that it was subject to the result in the
appeal. In that view, the creation of the post would not be
an advantageous feature that favours the respondent. If
there is any increase in the strength and sanction of the
post is needed, it is open to the Management to take
appropriate steps as per law.
7. Accordingly, the order of the High Court is set aside.
The civil appeal is allowed. The writ petition stands
dismissed. No costs.
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