Dilip Kumar Seth, J. - (1.) THE petitioner claims to have been appointed part one of the permanent posts mentioned in the Government Order dated 19th July, 1982 revising the pay scale (Annexure 4). By Resolution dated 19th June, 1989 the Executive Council of the University appointed the petitioner as permanent Medical Officer on the third vacancy by issuing appointment letter dated 1st July 1989 (Annexure 2) in anticipation of the approval by the Government. The petitioner took charge on 5th July, 1989. The Executive Council resolved on 7th October, 1989 (Annexure 5) to pay salary to the petitioner as Medical Officer. The Registrar by letter dated 23rd October, 1989 (Annexure 6) asked the Finance Officer to pay full salary of the petitioner. Despite request by the Vice -Chancellor through his letter dated 27th June, 1990 (Annexure 9), the Government did not correct the mistake appearing in the Government Order dated 5th December, 1989 (Annexure 8) wherein two permanent posts of Medical Officer had been shown. Despite sanction of the Budget for the years 1988 -89 and 1990 -91 showing provision for payment of full salary of the petitioner by name against the 3rd post of permanent Medical Officer (Annexure 10), no salary was paid to the petitioner. Subsequent request by the Vice -Chancellor made to the Government on 8th September, 1991 (Annexure PA -2) and despite approval of the Budget for the year 1990 -91 and 1991 -92 (Annexures RA -3 and RA -4), the petitioner's salary has not been paid. Therefore, by means of this petition, the petitioner has prayed for the payment of salary to him. In the counter affidavit, the respondents have taken the stand that by mistake three permanent posts of Medical Officer were shown in Annexure '4'. However, the said Annexure '4' contained a Code that the number of the post mentioned should not be taken to be granted. Unless the post is sanctioned and created with prior approval of the Government even if Budget is sanctioned, no payment could be made subject to the approval of the Government. In the absence of any post, the Government could not approve the said appointment. Therefore, the petitioner can not lay his claim. On the other hand, referring to Para. 35 of the counter affidavit, the learned counsel for the respondents has pointed out that the petitioner had been carrying on private practice. The said statement has been dealt with in the rejoinder affidavit in Para. 26 wherein the petitioner did not dispute that he was carrying on private practice.
(2.) AFTER having heard the learned counsel for the petitioner and the respondents, it appears from the order of appointment which is Annexure '2' to the writ petition, the scale would be determined and payment would be made according to the approval of the Government. The fact remains that the said appointment was made without the prior approval of the Government. Section 60 -A of the State Universities Act, 1973 defines 'employee' as follows; (iii) 'Employee' in relation to college, means a non -teaching employee of such college; (a) in respect of whose employment maintenance grant was being paid by the State Government during the financial year 1974 -75; or (b) who was appointed to a post with the permission of the Director of Education (Higher Education).
(3.) IN the present case, the appointment having been made after the financial year 1974 -75 falls within the purview of Clause (b) of the above definition. Admittedly in the present case, there is nothing to show that the appointment was made with the permission of the Director of Education (Higher Education). Now in order to come within the definition of 'employee', two conditions are to be satisfied. If the appointment is made after the financial year 1974 -75, the first condition is that the appointment is to be made to a post. The second condition is that such appointment is to be made with the permission of the Director of Education (Higher Education).;