R.A. Sharma, J. - (1.) PETITIONERS No. 1 and 2 were selected for appointment as Lecturers in Sri Agrasen Manila Mahavidyalaya Azamgarh (hereinafter referred to as the 'College'), pursuance to which they joined the college on 4.3.1978 and 1.4.1978 respectively. Their appointments as Lecturers were, however, approved by the Vice -Chancellor on 17.7.1978 and 6.5.1978 respectively. As they have joined the college on dates prior to the dates of approval of their appointment, they were paid salary from the dates of joining the college. The Director of Education, U.P., Allahabad, however, on March 9,1990, passed an order holding that the petitioners are entitled to the payment of salary from the dates on which their appointments were approved and, therefore, the salary, which was paid to them for the period prior to the dates of approval, has got to be refunded by them. Being aggrieved by the said order, the petitioner have filed this writ petition. We have heard learned counsel for the parties.
(2.) ACCORDING to Section 31(11) of the Uttar Pradesh State University Act, 1973 no teacher, recommended by the Selection Committee, shall be appointed by the management of the college without prior approval of the Vice Chancellor. It is, thus, apparent that appointment of a selected teacher has to take place after the approval has been granted by Vice Chancellor. In the instant case the Committee of Management of the college was not, therefore, justified to appoint the petitioners with effect from the dates prior to the dates on which the approval was granted by the Vice Chancellor. Although the petitioners were not liable to be appointed in the college prior to the dates of approval of their appointment, but they, in fact, joined the college before their appointments could be approved and were also paid salary at that very time for the period during which they have worked after their joining the college. In paragraphs 23 and 24, of the writ petition it has been stated by the petitioners that they have neither played fraud nor have they made any misrepresentation for payment of salary for the period prior to the approval of their appointment, but the respondents themselves paid them salary voluntarily. This position has not been disputed by learned counsel for the respondents. A Division Bench of this Court in Keshav Tripathi v. State of U.P., 1996 (28) ALR 54 (Sum.) :, 1996 (2) LBESR 858 following the decisions of the Supreme Court and of this Court, has laid down that if an employee has been paid salary by the employer without there being any fraud or misrepresentation on the part of the employee, the same cannot be recovered from him subsequently even if it is found that he was not entitled to the same. The writ petition is, accordingly, allowed with costs. The impugned order dated 9th March, 1990 (Ahnexure -13 to the writ petition) is quashed.;