D. S. Bajpai, J. - (1.) THE petitioner Chhedan Lal Rastogi has preferred this petition under Article 226 of the Constitution, inter alia, praying for issue of a writ of certiorari quashing the Government Order dated 13-12-1979 contained in Annexure-1 to the writ petition and further praying for a writ of mandamus commanding the opposite parties to treat the petitioner as legally and validly appointed Lecturer in Physics in Daya Nand Subhash National College, Unnao (hereinafter referred to as the College) in the vacancy that had fallen subsequent to the resignation of Sri Amar Sinha, who was holding permanent substantive post of Lecturer in Physics in the said College.
(2.) BRIEFLY, the facts stated by the petitioner are that opposite party no. 4 College is an affiliated College of Kanpur University, opposite party no. 3 and one Amar Sinha was a permanent teacher holding permanent sanctioned post in the Department of Physics of that college and on his going on two years' leave the petitioner was appointed in an ad hoc capacity to that post after the approval of the Vice Chancellor of Kanpur University. On Sri Amar Sinha submitting his resignation from the service of the College on June, 1977, the petitioner held that permanent post and his appointment was made on the recommendation of a Selection Committee duly constituted under U. P. State Universities Act, 1973 (hereinafter referred to as the Act) since July 1, 1977. A true copy of the letter has been filed as annexure-2 to the writ petition. Upto 30th June, 1977 the services of the petitioner were adhoc and he having been approved and duly selected for appointment to the permanent post of Lecturer, his appointment was made with effect from 1st July, 1977 on one year's probation vide annexure-3 to the writ petition. The post, it is averred, on which the petitioner was appointed and which was being held by Sri Amar Sinha was duly created by opposite party no. 3, Vice-Chancellor, Kanpur University and approved by the U. P. Government in the year 1973-74 on the basis of the work load in the department of Physics which was duly considered by opposite party no. 2, Director of Education (Higher Education), U. P. Allahabad. The petitioner has further stated that the Vic? Chancellor, opposite party no. 3, having approved the appointment of the petitioner on the permanent post and the petitioner having been legally appointed and discharging his duties uptodate was entitled to get his salary month by month. The State Government being liable for payment of salary to the petitioner could not, in the circumstances, when the post had been duly created and approved by the Director of Education, stop payment of his salary, more so, since he was duly selected and appointed candidate under the provisions of the Act. The petitioner goes on to say that when in January, 1978 his salary was not paid by the College, opposite party no. 4, he made a representation to the Principal of the College and the Vice Chancellor of the University, opposite party no. 3 whereupon it was revealed that the U. P. Government had questioned the propriety of the appointment of a third Lecturer in the Department of Physics looking to the work load in the college and it was for that reason that the payment of salary to the petitioner was stayed by opposite party no. 4. The representation of the petitioner to the Principal and Vice Chancellor has been brought on record as Annexure-6 to the writ petition. Thereafter the petitioner also made a representation to the State Government through Secretary, Education Department and this representation is contained in annexure-7. Even thereafter the representations were made by the petitioner and the Vice Chancellor himself wrote to the opposite party no. 2 drawing his attention to the previous letter dated 9-3-78 contained in annexure-9, but no action was taken. The petitioner whereupon filed the present writ petition before this Court. The writ petition was admitted by a Division Bench of this court on 11-7-80 and on application for interim relief (Civil Misc. Application No. 3866 (W/1980) the court passed the following order on 8-10-1980 : "No counter affidavit has been filed by the State. The evidence on record therefore must be accepted and it be prima facie held that the petitioner is serving in the institution. Section 60-E (1) of the U. P. State Universities Act makes the State Government liable for payment of salary to teachers. It is accordingly directed that with effect from October 1, 1980 the State Government will pay to the petitioner the salary." We have heard the learned counsel for the petitioner and the learned Standing Counsel appearing for opposite parties 1 and 2. In view of the provisions of section 60-E (1) of the Act the State Government is liable for payment of salary to teachers working in the government aided degree colleges and as stated herein above since the petitioner was already working and performing his duties with the approval of the Vice Chancellor after being duly selected and appointed by the Committee of Management and the post having been sanctioned by the State Government by Government Order contained in annexure-1, prima facie, the responsibility of the State Government to pay the salary to the petitioner was found by this court at the time when the interim order was granted. Learned Standing Counsel has made two fold contention before us. Firstly, he has submitted that in view of the fact that the post on which the petitioner was working was not a post approved by opposite party no. 2, the petitioner was not entitled to the payment of his salary and the second contention of the learned Standing Counsel is that in any case, since the work load did not justify the retention of the petitioner on the post of lecturer, he cannot be paid salary by the State Government. In so far as the first contention of the learned Standing Counsel is concerned, we have already seen that the petitioner was in fact appointed against the permanent substantive post which was earlier held by Sri Amar Sinha and it was when Sri Amar Sinha proceeded on leave for two years on 1-6-75 that the petitioner was appointed to that post. This post having been duly created on which Sri Amar Sinha was working, the petitioner could not be said to have been appointed on a post which was not properly created and/or approved by the authorities i.e. Vice Chancellor of the University or the Director, Higher Education, as the case may be. The question of approval of Director of Higher Education could arise only if the post, as per provisions of Section 60-A (vi), was created after March 31, 1975 when the permission of the Director of Education (Higher Education) was required. The petitioner continued to hold this post and consequent upon the resignation of Sri Amar Sinha in June, 1977, the petitioner was selected through a duly constituted Selection Committee under the Act for being permanently appointed to the said post and was placed on one year's probation, which fact is not disputed and as such there is no doubt that the petitioner is holding the post which Sri Amar Sinha was holding prior to March 31, 1975 and which had been duly approved and created with the permission of the Vice Chancellor of the University in terms of sub-clause (a) of clause (vi) of section 60-A of the Act. The submission of the learned counsel to the effect that the post was not properly created and the Director of Education (Higher Education) not having accorded his permission or approval to the appointment of the petitioner cannot be sustained and must be rejected- Coming to the second submission of the learned counsel that the retention of the petitioner was not justified in view of the reduced work load, we find that even though bald allegation to the said effect has been made in para 9 of the countet affidavit, there is no material to justify the same and in resorting to retrenchment on the ground of non justification of retention of a teacher the proper procedure would have to be adopted and the petitioner on this score could not be deprived of drawing his salary since he was working and performing his duties as a teacher. We are, therefore, of the opinion that this submission is equally devoid of force and must be rejected. In view of the findings recorded herein above, we quash the impugned order no. Dr. San. Arth/17254-57/1979 dated 13-12-79 contained in Annexure- 11 and letter no. Arth./24505/77-78 dated 5-1-78 referred to in Annexures 5 and 6. We further hereby issue a writ of mandamus commanding the opposite parties to pay and continue to pay salary of the petitioner hence forth month by month as already directed herein before by the interim order dated 8-10-80. The writ petition stands allowed with costs. Petition allowed.;