State of U.P. Vs. Har Govind Singh Shakya and ors. - Court Judgment

Excerpt:

.....terms. section 168 uses the word just compensation which, in our opinion, should be assigned a broad meaning. it cannot be lost sight of the fact that the private sector companies in place of introducing a pension scheme takes recourse to payment of contributory provident fund, gratuity and other perks to attract the people who are efficient and hard working. different offers made to an officer by the employer, same may be either for the benefit of the employee himself or for the benefit of the entire family if some facilities are being provided whereby the entire family stands to benefit, the same, must be held to be relevant for the purpose of computation of total income on the basis whereof the amount of compensation payable for the death of the kith and kin of the applicants is required to be determined. the amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. from the said amount of income, the statutory amount 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.....

Judgment:

ORDER

C.K. Prasad, C.J. and A.P. Sahi, J.

1. 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.

3. On the aforesaid premise, the learned single Judge held the order dated 4.5.1994 to the 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.

4. 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 Anr. : (1999) 1 UPLBEC 1 : 1999 (2) AWC 962 (FB), and our attention has been drawn to paragraph No. 22 of the judgment, which reads 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 7A 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.

5. Mr. Y.K. Saxena, appearing on behalf of the respondents, points out that the judgment rendered by the learned single Judge is prior to the decision of the Full Bench in the case of Gopal Dubey (supra). However, in fairness to him, he submits that in view of the authoritative pronouncement by the Full Bench, the view taken by the learned single Judge that recognition for a new subject amounts to creation of post, is not acceptable.

6. We find substance in the submission of Mr. Pipersenia. As observed earlier, the impugned judgment of the learned single Judge is based on the premise that recognition of a new subject amounts to creation of the post. This view in the light of the Full Bench judgment of this Court in the case of Gopal Dubey (supra), cannot be sustained. In view of the decision in the case of Gopal Dubey (supra), it is obvious that recognition of a subject in an institution itself does not sanction the post.

7. In that view of the matter, the order passed by the learned single Judge cannot be sustained.

8. In the result, the appeal is allowed. The impugned order of the learned single Judge is set aside. However, there shall be no order as to costs.