Tue. Sep 22nd, 2020

No directions under Article 226 of the Constitution can be given for the payment of salaries in the absence of any sanctioned post

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Allahabad
High Court: In pursuance of relevant precedents, the three judge Bench of
D.Y. Chandrachud CJ, Narayan Shukla and D.K. Arora, JJ., deliberated upon the
issue of giving directions under Article 226 of the Constitution in absence of
any post sanctioned by a competent authority, the Court relying on Gopal Dubey v. District Inspector of
Schools, 1998 SCC OnLine All 804, held that no
directions under Article 226 of the Constitution can be given for the payment
of salaries of government teachers, in the absence of any sanctioned post.

The present case came before the Court as a
reference for a past Order by the Division Bench of this Court dated 24.11.2014,
whereby a conflict with regard to the abovementioned issue was noticed in State of U P  v. Om Prakash Verma, 2002 (49) ALR 719 and Rajesh Yadav v. Director of Education (Madhyamik), 2008 SCC OnLine All 32. In the former case, directions were given to
consider the creation and sanctioning of a post, and payment of salaries was
set aside, and in the latter case, the Director of Education was directed to
pass final orders on the request for sanctioning the post and to pay the
teacher until a final order is passed. The present case was represented by
counsels Vivek Kumar Shukla for the appellant and Ramesh Pandey, for the
respondent.

On perusal of the issue in question, the Court observed that
Section 9 of Intermediate Colleges (Payment of Salaries of Teachers and Other
Employees) Act, 1971, 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. Thus in
the view of the Court the conflict in the above-mentioned decisions is clearly
covered by Gopal Dubey Case, where the Full Bench of this Court observed
that Section 9 of Intermediate Colleges (Payment of Salaries of Teachers and
Other Employees) Act, 1971, is mandatory and that no new post can be created
without the prior approval of the Director. The mere fact that recognition has
been granted to an institution would not give rise to a presumption of a
financial sanction having been granted to the creation of a post thus a
financial liability cannot be imposed on the State to reimburse the salary
payable to the employee or the teacher. [State of U P v. Sri Sukhpal
Intermediate College, 2015 SCC OnLine All 1301 decided on 12.5.2015]
Source: Legal news India

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