- (1.) BY the Court.- This intra Court Appeal, at the instance of the State of U.P., arises out of an order dated 3.7.1997 passed by the learned single Judge in Civil Misc. Writ Petition No. 21513 of 1994.
(2.) SHORT facts giving rise to the present appeal are that the State Government by order dated 5.7.1985 granted sanction for teaching certain new subjects, including Biology, for Sri Rasal Singh Higher Secondary School, Mahaoi, Nauli, in the district of Farrukhabad. Pursuant to the aforesaid sanction, writ petitioner-respondent was appointed on ad hoc basis under Section 18 of the U. P. Secondary Education Service Commission and Selection Board Act, 1982. The papers relating to the appointment were forwarded for approval before the appropriate authority. However, before any reply could be received, the Committee of Management of the School by order dated 5.4.1994 dispensed with his service. Aggrieved by the same, writ petitioner preferred the writ petition inter alia contending that when the recognition of a new subject is given, the same would tantamount to creation of a post for the concerned subject, hence his appointment is legal and valid. The aforesaid submission found favour with the learned single Judge and it observed that the recognition of the new subject amounts to creation of post. Relevant portion of the judgment of the learned single Judge reads as follows : ".........Civil Misc. Writ Petition No. 7802 of 1989 where in 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 5.7.1985." On the aforesaid premise, the learned single Judge held the order dated 4.5.1994 to be redundant and, accordingly, quashed the same. It further observed that the writ petitioner shall be allowed to join the school and the payment of salary shall be prospective from the date he is permitted to join the school.
(3.) MR . Pipersenia, Addl. Chief Standing Counsel appearing on behalf of the appellant, raises a very short point. He submits that the view taken by the learned single Judge that recognition of the new subject shall amount to creation of post runs counter to the decision of a Full Bench of this Court in the case of Gopal Dubey v. District Inspector of Schools, Maharajganj and another, 1999(1) ESC 168 (All)(FB), and our attention has been drawn to paragraph 22 of the judgment, which Yeads as follows: "22. In view of the above discussion the answer to the question formulated by us is that on recognition being granted by the Board in respect of a subject in an Institution under Section 7-A of the U.P. Intermediate Education Act, 1921 it will not be presumed that the post of lecturer in such subject stands sanctioned by the Director of Education under Section 9 of the Payment of Salaries Act." ;