B.M. Lal, J. - (1.) THIS petition has been field by the Committee of Management, Shakuntala Kanya Girls Intermediate College, Chandpur, Bijnor, and Bahadur Singh, Petitioners No. 1 and 2 respectively. The grievance of the petitioners is that in utter violation of Section 10 of the U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (U.P. Act No. 24 of 1971), (hereinafter called 'the Act') the respondents have illegally withheld the payment of salary of Petitioner No. 2.
(2.) IN short the case of the petitioners is as under : One Sri Ram Sharma, an Assistant Clerk was working under the employment of petitioner No. 1. He was charge -sheeted for forgery and other criminal acts. Ultimately, however, he was acquitted of the charges levelled against him. Accordingly Petitioner No. 1 asked Sri Ram Singh Sharma to join his duties vide registered letter dated 17 -12 -1982 on his failure to join the duties another registered reminder was sent to Sri Ram Singh Sharma on 10 -1 -1983. All efforts of Petitioner No. 1 proved futile and Sri Sharma did not respond to join his duties. Ultimately in a meeting held on 30 -1 -1983 Petitioner No. 1 terminated the services of Sri Ram Singh Sharma of which also intimation was sent to him. The papers regarding the termination were also submitted to the Regional Inspectress of Girls Schools, Respondent No. 1. The petitioner No. 1 also sought permission of Respondent No. 1 to publish the vacancy caused by the termination of Sri Ram Singh Sharma in accordance with the provisions of the U.P. Intermediate Education Act and the rules framed thereunder and to fill up the vacancy so caused. However, no heed was paid to it by Respondent No. 1 though reminders dated 10 -7 -1983, 18 -8 -1983 and 23 -9 -1983 were also sent by petitioner No. 1. Since the work of the institution was suffering petitioner No. 1 made publication of the vacancy in Uttar Bharat Times dated 28 -10 -1983. The intimation regarding publication of the vacancy was again sent to respondent No. 1. After due formalities and interview petitioner No. 2 was selected for the post of Assistant Clerk. This selection too was intimated to Respondent No. 1 by petitioner No. 1 vide letter dated 27 -1 -1984. A letter of appointment was issued to petitioner No. 2 who joined the services of the institution on 2 -3 -1984. Intimation regarding this appointment of petitioner No. 2 was duly sent to Respondent No. 1. A bill for payment of salaries of all the staff of the institution for March 1984 was prepared in which the name of petitioner No. 2 was also included. This bill was submitted to the District Inspector of Schools for sanction. The respondents deleted the name of petitioner No. 2 from the bill and he was not paid his salary. This was protested by the petitioner No. 1 and a lot of correspondence seeking permission to make the payment of salary to petitioner No. 2 was made. Ultimately when the respondents did not respond the present petition was filed.
(3.) HEARD the learned counsel for the parties. Counsel for the petitioner submitted that there is no provision in the U.P. Intermediate Education Act or the rules and regulations made thereunder requiring the institution to obtain approval of the authorities for appointing an Assistant Clerk or for payment of his salary. It is submitted that in the circumstances narrated above the petitioner No. 1 has not committed breach of any statutory rule in making the appointment of petitioner No. 2 and as such salary of petitioner No. 2 has to be paid. In this regard reference may be made to Section 10 of the Act which reads as under: 10. Liability in respect of salary - -(1) The State Government shall be liable for payment of salaries of teachers and employees of every institution due in respect of any period after March 31, 1971. (2) The State Government may recover any amount in respect of which any liability is incurred by it under Sub -section (1) by attachment of the income from the property belonging to or vested in the institution as if that amount were an arrear of land revenue due from the institution. This being the legal position the submission made on behalf of the petitioner has force that the respondents have wrongly withheld the salary of petitioner No. 2 on the ground that petitioner No. 1 had created a new post in violation of Section 9 of the Act. Section 9 of the Act prohibits only the creation of new post of teachers or other employees. In the instant case the petitioner No. 1 has not created any new post. The post was already existing and as narrated above one Sri Ram Singh Sharma was working on that post. Subsequently on account of his ostentation from his duties and not turning up to join the same despite intimations a vacancy occurred on which petitioner No. 2 was appointed. In such a situation when the petitioner No. 2 was appointed against an existing vacancy no approval of the authorities was required to be obtained in terms of Section 9 of the Act. The Respondents were, therefore, wrong in reaching that conclusion and withholding the salary of Respondent No. 2. In view of the above discussions this petition succeeds and is hereby allowed with costs, counsel's fee Rs. 750 if certified. The respondents are. directed to pay the salary of petitioner No. 2 from the date he took over charge, that is, with effect from 23 -3 -1984.;