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Judgment
Sanjay Misra, J.—Admit.
Sri Awadhesh Kumar Singh Advocate has accepted notice on behalf of Plaintiff-Respondent.
Issue notice to Respondent Nos. 2 and 3.
Steps be taken by the Appellant by both ways within two weeks.
The substantial questions of law that arises for decision in this second appeal are:
(1) Whether in absence of any sanction post, the Lower Appellate Court''s judgment directing payment of salary from State Exchequr can be sustained ?
(2) Whether Plaintiff-Respondent''s suit was maintainable ?
Sri Ashok Khare learned Senior Counsel, assisted by Sri J.P. Singh, learned Counsel for the Defendant-Appellant has submitted that the Defendant is a recognized Junior High School and Plaintiff-Respondent namely Smt. Ranjana Devi had filed a suit for declaration that she was validly appointed as assistant teacher and is entitled to be paid her salary. It is submitted that the institution is aided and salary is paid through agency of the departmental authorities. Apart from submitting that the Plaintiff-Respondent was not regularly or validly appointed as assistant teacher in the institution, it has also been stated that there is no sanctioned post of a teacher whereupon the Plaintiff could work or claim salary and hence such declaration granted by the courts below is illegal. He also states that the suit itself was not maintainable on a bare perusal of the plaint allegations.
Sri Awadhesh Kumar Singh, learned Counsel for the Plaintiff-Respondent has contested the submission to state that additional sections were admittedly sanctioned by the State authorities for which the Plaintiff was appointed as a teacher by the Management and under the provisions of the statute, her appointment is deemed to be approved after expiry of 30 days from seeking approval from the State authorities if it is not disapproved and no communication of approval is received. Hence the Plaintiff could not be denied the declaration sought for in the suit and it has been rightly granted.
Sri Khare learned Senior Counsel has placed reliance on paragraph 18 of a Division Bench decision in the case of Mahipal Singh Pawar and Ors. v. State of U.P. and Ors. 1992 (2) UPLBEC 1497 and on Full Bench decision in the case of Gopal Dubey Vs. District Inspector of Schools, Maharajgani and another, in support of his submission.
Sri Awadhesh Kumar Singh, learned Counsel for the Plaintiff-Respondent has relied upon a decision of Hon''ble Supreme Court in the case of Lal Bahadur Shastri S. Jr. High School and Another Vs. State of U.P. and Others, to submit that the Supreme Court had clearly held that when additional sections had been sanctioned by the departmental authority, the Director of Education should have obtained necessary financial sanction for the additional posts in context of the additional sections. He also relies upon the Government Order dated 20.1.1986 wherein it is contemplated that the authority which grants sanction for additional sections is also the authority competent to create posts.
Sri Awadhesh Kumar Singh, learned Counsel for the Plaintiff-Respondent has also placed reliance on a decision of the Single Judge in the case of Arjun Singh v. State of U.P. through Secretary Education Government of U.P. and Ors. 1997 (3) AWC 1475 and refers to paragraph 5, wherein it was held that when sanction is granted for opening a new class or subject it is implied that the post is created by reason of recognition of new subject or new section.
Having considered the submission of the learned Counsel for the parties, and perused the record, there is nothing on record or in the judgments of the courts below to indicate that after creation of new sections, the State has created new post even if the authority was empowered to create the new post. There is no order available on record of creation of new post even by the authority which sanctioned the new section or subject.
In view of the Full Bench decision and judgment of the Division Bench, prima facie, it can not be conclusively held that a post was created upon which the Petitioner is working. Since the authority has not created a post and no order for financial sanction is available on record the benefit of the judgment of the Supreme Court cannot be availed at this stage.
Sri Awadhesh Kumar Singh, learned Counsel for the Plaintiff-Respondent prays for and is granted three weeks'' time to file counter affidavit. Rejoinder affidavit may be filed within two weeks thereafter.
Let this appeal be listed immediately after expiry of the aforesaid period.
Until further orders of this Court, the effect and operation of the impugned judgment and decree dated 21.9.2010 and 28.9.2010 passed in Civil Appeal No. 394 of 2008 (Smt. Ranjna v. Zila Basic Shiksha Adhikari and Ors. Civil Appeal No. 394 of 2008) by the Additional District Judge, Court No. 2, Azamgarh, shall remain stayed.