Arun Tandon, J. - (1.) THIS Court on 04.01.2011 passed a detailed order recording therein the manner in which unauthorized payment of salary through the State exchequer has been made to teachers of C/M Ganga Prasad Intern College Adarsh Vidyapith, in excess of the posts actually sanctioned for the institution, the order is being quoted herein below: Heard counsel for the Petitioner and the Standing Counsel. Nobody is present on behalf of the Committee of Management. From the affidavit filed by the Joint Director of Education today, this Court finds that it has been stated that salary of 3 teachers in C.T. Grade and 6 teachers in L.T. Grade is being paid from the State Exchequer as teachers of Ganga Prasad Ram Prasad Inter College Adarash Vidyapith, Ruhipur, Ghazipur in excess of sanctioned posts. In respect of 6 L.T. Grade teachers it has been stated that the salary is being paid in terms of the judgment of the Writ Court passed in Writ Petition No. 33823/1998 decided on 17.9.2002 and Writ Petition No. 45460/1999 decided on 28.7.2004. Against the said Judgments Special Appeal No. 113/2004 and Special Appeal No. 81/2005 have been filed which are pending before Division Bench of this Court. However, regular salary is being released and arrears have also been paid running into lakhs of rupees despite pendency of the special appeal. It has further been recorded that no records/orders creating such posts are available in the office of the Respondent authorities. This Court finds that after up -gradation of the institution as High School and on the date the institution was taken on grant -in -aid list, there were only 12 persons actually employed in the institution namely 01 Headmaster, 10 Assistant Teacher and 01 Clerk. They were being paid salary through the State Exchequer. However, an order dated 17.01.1990 has been brought on record issued by the Deputy Director of Education, Varanasi Region, Varanasi which records that there were in all 17 posts sanctioned in the institution namely one Headmaster, 12 Assistant Teachers C.T. Grade, 01 Clerk and 03 Class IV employee. On what basis such facts have been stated in the order is not known. Even otherwise once the institution has been up -graded as High School, any post 230 which remained unfilled at Junior High School level will not be carried forward inasmuch as under the provisions of the Intermediate Education Act, 1921 only such number of teachers actually working in the institution on the date it is upgraded, becomes entitled to be treated as teachers of High School. This Court further finds that up to the month of August, 1998 salary was paid to only 12 Assistant Teachers in C.T. Grade. In September, 1998 the payment was made to 15 teachers in C.T. Grade. On what basis the number of post in C.T. Grade stood enhanced from 12 to 15 has to be explained. This Court also finds that from the facts disclosed by the Joint Director of Education that at best there can be 26 post available in the institution for which salary could be paid. However, w.e.f. August 2004 salary to 29 persons has been paid regularly which figure, after some variations stands at 26 in August, 2010. The Joint Director of Education could not disclose as to how payment in excess of the sanctioned post as per his own case could be released. No salary can be paid in absence of a sanctioned post through the State exchequer as has been laid down by the Full Bench of this Court in the case of Gopal Dubey v. District Inspector of Schools, Maharajganj, 1999 (1) UPLBEC 01. It has been held that the liability of the State for payment of salary from the State Exchequer is in respect of teachers and employees of a recognised institution working against post which are duly created under Section 9 of the said Act and not otherwise. Therefore there cannot be any release of public money for payment of salary to teachers appointed by the Management/Institution in excess of the sanctioned post. If teachers have been appointed in excess of sanctioned post and salary is to be paid because of the orders of the court, the liability would squarely fall upon the Management itself. Public money cannot be utilised for payment of salary to the appointees in excess of the sanctioned post. The Regional Director of Education is therefore directed to ensure compliance of the Judgments of the High Court referred to above which are subject matter of challenge in special appeal by taking action for recovery of the money which is being paid to teachers as salary appointed excess of post, from the funds of the Management only and for the purpose to take all necessary action, as may be warranted under law against the Committee of Management and against persons who are responsible for making the appointment in excess of the sanction post The action so taken may be reported to the Court within two weeks from today. List on 18.1.2011.
(2.) IT appears that this order was subjected to challenge by the Committee of Management of the institution by way of special appeal No. 153 of 2011, wherein an interim order has been granted to the following effect: Learned Single Judge by the order impugned dated 4.1.2011 has directed the Regional Director of Education to recover the amount from the Committee of Management paid in excess in connection with the salary of the teachers who were appointed not in the sanctioned post. Considering the seriousness of the matter that now the Committee of Management will have to pay an amount of more than Rs. 2 Crores, we are of the view that let the affidavits be exchanged amongst the parties. Therefore, counter affidavit will be filed within three weeks. Rejoinder, if any, will be filed within one week thereafter. Matter will appear four weeks hence. However, no effect or further effect of recovery on account of payment of salary to the teachers will be given till further order or orders to be passed by this Court. The teachers who were getting unauthorized payment of salary filed their independent writ petition Nos. 5709 of 2011, 5710 of 2011 and 5712 of 2011 and on the strength of the interim order granted by the Division Bench quoted herein above have obtained following interim orders: Learned Standing Counsel has accepted notice on behalf of Respondents. He prays for and is granted six weeks time to file counter affidavit. Rejoinder Affidavit may be filed within three weeks thereafter. The impugned order is consequential order to the order dated 4.1.2011 passed by this Hon'ble Court but the said order dated 4.1.2011 has been stayed by this Hon'ble Court in Special Appeal No. 153 of 2011 vide order dated 31.1.2011. Accordingly, the operation of the order dated 6.1.2011 (Annexure -5 to the writ petition) shall remain stayed till the next date. List in the week commencing 11.4.2011. Learned Standing Counsel has accepted notice on behalf of Respondents. He prays for and is granted six weeks time to file counter affidavit. Rejoinder Affidavit may be filed within three weeks thereafter. The impugned order is consequential order to the order dated 4.1.2011 passed by this Hon'ble Court but the said order dated 4.1.2011 has been stayed by this Hon'ble Court in Special Appeal No. 153 of 2011 vide order dated 31.1.2011. Accordingly, the operation of the order dated 6.1.2011 (Annexure -5 to the writ petition) shall remain stayed till the next date. List in the week commencing 11.4.2011.
(3.) PRIMA facie it appears that the effect of the order is that unauthorized payment of salary to teachers in excess of the post available would result and would be contrary to the full Bench judgment of this Court in the case of Gopal Dubey v. State of U.P. : 1999 .1 UPLBEC(1).;