ARUN TANDON,J. - (1.) ON record it is an order of the Regional Inspectorix of Girls School, Varanasi Region, Varanasi dated 1.5.1989 sanctioning two additional sections for classes 4 and 5 (primary section attached to Sajida Girls Inter College). There is no order of the competent authority sanctioning any additional posts of teachers for the new sections so permitted.
(2.) COUNSEL for the petitioner submits that in view of the Full Bench of this Court in the case of Gopal Dubey Vs. District Inspector of Schools, Maharajganj and another reported in [(1999) 1 UPLBEC and in absence of any order of the competent authority i.e. Director under the provisions of Section 9 of Act no. 24/1971 creating any new posts after permission to start of new section the payment of salary could not be made to appointees working against non sanctioned posts through State Exchequer. The Regional Joint Director of Education, Varanasi who is present in the Court with the original records, contends that with reference to a letter and the Regional Inspectoress of Girls School dated 1.5.1989, which records that in view of the permission to start new sections in classes 4 and 5, the total number of primary sections in the institution will increase to 15 read with the Manak as provided under the Government Order dated 21.5.1979 (which according to him provides that for each Section, there shall be a separate teacher) it has to be presumed that 15 posts were duly created for primary teachers. Such ignorance on the part of the Regional Director of Education to the legal position as explained by full Bench of this Court in the case of Gopal Dubey (supra) speaks volumes about the manner in which public money is being utilized. The Full Bench of this Court in the case of Gopal Dubey (supra) has held as follows: "In Section 9 of the Act it is mandated that no institution shall create a new post of teacher or other employee except with the prior approval of the Director or such other officer as may be empowered in that behalf by the Director." "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."
(3.) THIS court has no hesitation to record that the stand taken by the Regional Director of Education, Varanasi is nothing but an eye wash for illegal payments/approval granted against non sanctioned posts. No posts can be said to be created for the institution merely because additional sections are permitted to open or merely because under the Manak two additional posts of teachers can be said to be permissible. Manak is only a prescription of the minimum required for teaching but the same cannot tantamount to creation of posts. The full Bench in the case of Gopal Dubey (supra) has held that a separate order under Section 9 has to be passed by the competent authority creating the post before payment can be released through State Exchequer. It appears that the Joint Director is unaware of the statutory provisions and the law as explained by the Full Bench or either he has deliberately created a situation wherein unauthorised payment is sought to be made to the persons appointed against non-existing posts.;