- (1.) D. K. Seth, J. By an order dated 5-7-85 issued by the Additional Secretary, Department of Intermediate Education U. P. Allahabad had accorded sanction to the concerned Institution for recognising science subject mentioned in the said order which included Biology. A copy of the said order is Annexure-1 to the writ petition. In the said order certain conditions were im posed on the institution clause 2 therein provided that for the purpose of teaching the subjects sanctioned, teachers, having requisite qualifications prescribed by the Parishad. may be appointed in accordance with the rules. A copy of the said order was also sent to the Deputy Director of Educa tion as well as Regional Deputy Director of Education. Pursuant to the said sanction, the petitioner was given appointment on ad hoc basis under Section 18 of the U. P. Secondary Education Service Commission and Selection Board Act, 1982 (hereinafter called as the Act') after complying with relevant rules which fact has not been dis puted by the respondents. The papers relat ing to his appointment was forwarded for approval before the appropriate authority. Accordingly, the same was forwarded to the Deputy Director of Education of the con cerned region. But no reply thereto having been received, the school authority by an order dated 4-5-94 sought to dispense with the service of the petitioner. It has given rise to the petitioner's grievance on account of inaction on the part of the Deputy Director of Education in according approval.
(2.) LEARNED Counsel for the petitioner Shri Y. K. Saxena submits that the Deputy Director of Education cannot remain idle. He is bound either to approve or to disap prove the appointment of the petitioner, the petitioner cannot be made to suffer on account of the inaction on the part of the Deputy Director of Education. But im pugned order, as contained in Annexurc-9 to the writ petition, issued by the school authority on 4-5-94 was a consequence of the inaction on the part of the Deputy Director of Education. This gave rise to the grievance of the petitioner who had ac quired a right by virtue of his appointment under Section 18 of the Act since according to him his appointment has been made after complying the procedure prescribed par ticularly those contained in Section 18 thereof. Relying on the definition of "teacher" as contained in Section 2 (e) of the U. P. High School and Intermediate Col leges (Payment of Salaries to Teachers and other Employees) Act, 1971, includes a teacher employed in fulfilment of the condi tions of recognition of the institution in cluding the recognition in a new subject and as such it is contended that the petitioner is entitled by reasons of his appointment and recognition of a new subject to receive salary under the said Act as well as the disposal of the question of grant of approval by the Deputy Director of Education. Mr. Sabajit Yadav, learned Standing Counsel, on the other hand, contends that unless a post is created, there cannot be any appointment, therefore, the petitioner can not claim any right or benefit pursuant to his said appointment. The State cannot be bur dened with the responsibility of payment of salary to the petitioner. After having heard learned Counsel for the parties, it appears that the papers were forwarded to the Deputy Director of Education for creation of a post. But no reply has been given to the said question. It is incumbent on the part of the Deputy Director of Education to reply to the said question either to speak out whether a crea tion of the post is required or not or he may create a post or not. But as soon the sanction is accorded recognising a new subject with the condition that teacher with requisite qualification may be appointed and duly communicated to the Deputy Director of Education, it supposes that a post is being created and it may require formal approval. The said question came up for considera tion in the case of Committee of Manage ment Krishak Intermediate College Gaur Basti and another v. Director of Education, U. P. and others, being a Civil Misc. Writ Petition No. 7802 of 1989 wherein identical circumstances, this Court has held that the recognition of the new subject amounts to creation of post in the subject particularly when appointment was recommended. In case there is no infirmity in the appointment of the petitioner in that event there is no alternative but to accord sanction to the creation of the post in view of recognition granted by letter dated 5-7-85. A teacher having been defined under Section 2 (e) of the payment of Salaries Act to include a teacher employed in fulfilment of the condi tions of recognition of the institution in cluding the recognition in a new subject, there is no escape from the conclusion that the petitioner if appointed in terms of such recognition is a teacher within the meaning of Section 2 (e) of the said Act.
(3.) MR. Sabhajit Yadav, learned Stand ing Counsel refers to Chapter II, R. 19 of the Regulations framed under the U. P. Inter mediate Education Act, 1921 and contends that the Government shall decline to pay salary and other allowances if any, teacher is appointed in contravention of the provisions of-the Chapter or against any post other than a sanctioned post. MR. Yadav, does not contend that there Was any contravention of the provisions of Chapter II Regulation 19, whereas on the other hand he insists that the appointment was made in a post other than a sanctioned post. But the said contention does not cut any ice. Inas much as it was so held in the case of Com mittee of Management Krishak Inter mediate College Gaur, Basti (supra) that recognition of new subject amounts to crea tion of post in the subject. Unless the post is sanctioned the grant of recognition would be meaningless. The very grant of recognition along with recommendation to the institution to ap point teacher with information to the various authorities, in itself create a post of teacher in the subject so recognised by necessary implication, particularly in view of the definition contained in Section 2 (e) of the Payment of Salaries Act which also recognises a person appointed in fulfilment of the conditions of recognition of a new subject as teacher. Thus it does not appear that there is any substance in the contention of Mr. Yadav.;