- (1.) S. N. Srivastava, J. By means of the present petition, the petitioner has canvassed the validity of the order-dated 12-4-1988 passed by the District Inspector of Schools Jaunpur respondent No. 1 as a consequence of which the salary of the petitioner was withheld.
(2.) THE facts forming background to the present controversy as set out in the writ petition by the petitioner are that one Sri Nath Yadav, Asstt. Clerk in Intermediate College Machchlishahr District Jaunpur demitted the office as a consequence of which applications were invited. In the ultimate analysis, the petitioner claims to have been selected and appointed by means of letter dated 18th July, 1986 and in response thereto, he reported for duty and joined on 20th July, 1986. It is further claimed that the appointment of the petitioner received approval on 30th June, 1987. Subsequently, Addl. Director of Secondary Education enjoined District Inspector of Schools by means of letter dated 31-12- 1987 to enquire into the imputations of irregularities indulged in by Rama Shanker Pandey, the then District Inspector of Schools and Vijay Shanker Srivastava, then Lekha Adhikari in the office of District Inspector of Schools Jaunpur between the period 1-7-1983 and 31-12-1987 in the matter of appointments of teachers and non-teaching staff in the aided institutions attended with further direction not to levy implementation to approval accorded by the aforestated two authorities during their tenure to the promotions and appointments in relation to teacher or non-teaching staff in various aided institutions in Jaunpur. In obedience to the aforestated directives, the District Inspector of Schools called upon all the Principals/managers of the added institutions under the Intermediate Education Act to unfold details of such appointments on prescribed format by 15th April, 1988 at the same time, intimating all concerned that the approval accorded to the appointment and promotions by his predecessor had been invalidated and therefore, it was expressed that it was not possible to order payment on the basis of the approval accorded by his predecessor. The learned Counsel for the petitioner assailed the impugned order on the counts that the petitioner was duly appointed by the Committee of Management in the substantive post vacated by Sri Nath Yadav and the appointment was validly accorded approval by the District Inspector of Schools Jaunpur and as a sequel thereto, payment of salary was released and made to the petitioner. It was further canvassed that the impugned order putting hold on payment of salary to the petitioner was made without affording any opportunity of hearing and further that the order stopping salary was made by the Addl. Director of Secondary Education who in law was not clothed with the power to pass the order. Lastly, it was submitted by the learned Counsel that the District Inspector of Schools did not apply his mind and had a blinkered approach in passing the impugned order inasmuch as without enquiry into the merit of the imputations, he meekly followed the directives of his superior and acted to it by stopping salary of the petitioner followed by submission that the District Inspector of Schools was not authorized to review decision of his predecessor. In opposition, learned Standing Counsel contended that the petition is liable to be dismissed and the petitioner was not entitled to salary and in vindication of his stand, referred to the averments made in paragraph 2 of the writ petition. The precise contention of the learned Counsel is that though the petitioner claimed that he was appointed on substantive vacancy consequent upon demission of the office by the incumbent Sri Nath Yadav, Asstt. Clerk but at the same time, he did not indicate the date of creation of post, date of appointment of Sri Nath Yadav and the date of his demission. The learned Counsel further pointed out that even the date of advertisement of post in pursuance of which the petitioner claims to have applied and selected has not been unfolded. Referring to the averments in para 4 of the counter-affidavit, learned Standing Counsel quipped that the incumbent of the post namely, Sri Nath Yadav was in fact never appointed against any sanctioned posts and that there were only three sanctioned posts of non-teaching staff which were occupied by Sri Abdul Hakim as Head Clerk, Sri Pyare Lal Maurya as Asstt. Clerk and Sri Bramhdeo Tiwari as Librarian-cum- clerk. He minced no words to submit that besides the above three posts, no other post was ever created or sanctioned for the Institution and by this reckoning, the appointment of the petitioner was invalid ab initio. Before delving into the merits of the respective contentions of the learned Counsel, I feel called to refer to the provisions bearing on the controversy involved in the instant petition. Section 2 (f) of the U. P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 defines an employee as under: " (f) "employee" of an institution means a non-teaching employee in respect of whose employment maintenance grant is paid by the State Government to the institution. " Likewise Section 9 of the Act envisages as under - "9. Approval for post.- No institution shall create a new post of teacher or other employee except with the previous approval of the Director, or such other office as may be empowered in that behalf by the Director. " It crystallises from the perusal of the above provisions that the post has to be created and sanctioned by the State Government and the Institution is not empowered to obtain approval for the post which has not been created or sanctioned by the State Government. The contention of the learned Standing Counsel bears scrutiny that the petitioner has not enumerated any details in relation to date of creation of post or the date on which advertisement was publicized either in the writ petition particularly paragraph 2 thereof or the rejoinder affidavit in reply to para 4 of the counter-affidavit and by this reckoning, the bald averments do not bear out that the petitioner was appointed in substantive post vacated by Sri Nath Yadav and consequently, it lends colour to the suspicion that the approval accorded to the appointment of the petitioner was valid approval. I have been taken through para 2 of the writ petition and again para 4 of the rejoinder affidavit and the averments therein lack requisite details and I am not convinced that the claims of the petitioner deserves to be nodded in acceptance for want of requisite details. If the petitioner has claimed to have been appointed validly he must disclose requisite details. In Bharat Singh and Ors. v. State of Haryana and others, AIR 1988 SC 2181, the apex Court observed that when a point is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. It was further observed that if the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, the Court will not entertain the point. The apex Court also observed that there is a distinction between a pleading under the CPC and a writ petition or a counter-affidavit and while in a pleading that is, a plaint or a written statement the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. In the instant case, the petitioner in vindication of validity of his appointment has relied upon his appointment letter (Annexure 1 to the petition) and the information communicated by the Management to the District Inspector of Schools (Annexure 2) and the approval of the District Inspector of Schools (Annexure 3 ). The aforestated documents do not embody any of the requisite details to prove the point bearing on validity of the appointment. Here in the instant petition, it has not been shown as to on what date the post claimed to be substantive post, was sanctioned and as to on what date advertisement was publicized. The argument of the learned Standing Counsel carries substance that the post held by the petitioner was not sanctioned by the State Government as envisaged in Section 9 of the Act and State did not pay any maintenance grant for the Institution. Besides, the petitioner could not prove validity of his appointment by requisite details that he was appointed on substantive post sanctioned by the Government. In the circumstances, mere bald statement that the post was advertised and the petitioner responded to the advertisement by applying and consequently, he was appointed in the substantive capacity in the post vacated by Sri Nath Yadav without unfolding precise dates can at best be termed as generalized and vague averments without any indica of authenticity and in the circumstances, the conclusions is irresistible that the Committee of Management induced approval from the then District Inspector of Schools against a non-existent post and the petitioner was not appointed in accordance with law on any sanctioned post as contemplated under Section 9 of the U. P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 and in consequence, he cannot be held entitled to payment of salary from the State Exchequer. It transpires from the above conspectus that approval accorded to the appointment by the District Inspector Schools operated in vacuum inasmuch as there was no sanctioned post and resultantly, the action of the respondents in rescinding approval and stopping salary of the petitioner cannot be held to be vitiated. I would not forbear from expressing that the onus lay on the petitioner to prove the validity of his appointment and petitioner having failed to do, the bald averments do not commend to me for acceptance.
(3.) AS a result foregoing discussion, the petition fails and is dismissed. Interim order which was granted and operated is hereby vacated and it would be open to the respondents to initiate appropriate action for recovery of the amount already paid as salary from the State Exchequer against invalid approval to the appointment of the petitioner. Before parting it may be observed that if the petitioner feels aggrieved that he has performed duties consequent upon his appointment, he may claim his salary from the Management of the College in question. Petition dismissed. .;