- (1.) The present reference before the Full Bench has been occasioned by a referring order of a Division Bench dated 24 November 2014. The Division Bench noticed that there was a conflict between the decisions of the Division Benches in State of U P Vs Om Prakash Verma, 2003 1 ESC 263 and Rajesh Yadav Vs Director of Education (Madhyamik), U P, Allahabad, 2009 27 LCD 292. The Division Bench was of the view that the field was covered by a judgment of a Full Bench in Gopal Dubey Vs District Inspector of Schools, 1999 35 AllLR 191. However, the Division Bench thought it appropriate to refer the matter to the Full Bench since the judgment of the earlier Division Bench in Rajesh Yadav had considered both the earlier decisions in Om Prakash Verma as well as the judgment of the Full Bench in Gopal Dubey. Accordingly, the following questions of law have been referred for decision: (1) Whether in the absence of any sanctioned post, can a direction in the exercise of powers under Article 226 of the Constitution of India be given for payment of salary when admittedly no post has been sanctioned by the competent authority; (2) Which of the two decisions in the case of Rajesh Yadav and Om Prakash Verma keeping in view the Full Bench decision in the case of Gopal Dubey , lays down the law correctly; (3) Whether the State Government or its authorities, who are authorized to create posts, by virtue of their inaction can defy creation of posts in an institution keeping in view the larger interest of the society namely education which is specifically in the hands of the State Government; and (4) Whether the State Government under the garb of threat of contempt could proceed to issue a direction for payment of salary to a teacher who was never appointed in the institution as admitted in the present case.
(2.) At the hearing of these proceedings, it is common ground between the learned counsel that the first and the second questions would suffice for the disposal of the proceedings and that the third and fourth questions as formulated, do not arise on the basis of the pleadings or judgment in the special appeal. We, accordingly, proceed to formulate our answers to the reference, on the first two questions.
(3.) While dealing with the questions which have been framed for consideration by the Full Bench, it would, at the outset, be necessary to have due regard to the provisions contained in three statutes in the State of Uttar Pradesh. These are: (i) The Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971(Act of 1971); (ii) The Intermediate Education Act, 1921(Act of 1921); and (iii) The Uttar Pradesh Secondary Education Services Selection Board Act, 1982(Act of 1982). In addition to these provisions, the Regulations framed under the Act of 1921 would also have a bearing on the issue raised. Consequently, we proceed to elucidate the relevant provisions contained in the Statutes and the Regulations. Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971;