DIRECTOR OF EDUCATION AND ORS.versusGAJADHAR PRASAD VERMA

                 DIRECTOR OF EDUCATION AND ORS.                           A
                                  v.
             "      GAJADHAR PRASAD VERMA

                        NOVEMBER21, 1994

         [K. RAMASWAMY AND N. VENKATACHALA, JJ.]                          B .

    Service Law:

    U.P. High Schools and Intermediate Colleges (Payment of Salaries of
Teachers and Other Employees) Act, I 97 I:
                                                                          c
    Section 9-Clerk appointed in leave vacancy-Resolution of Managing
Committee to continue his service uninterruptedly even after vacancy
ceased to exists-Whether School could claim reimbursement of salary of
such Clerkfrom Government-Held: No.

    The respondent came to be appointed in a leave vacancy. By a D
resolution the Managing Committee resolved that the service of the
respondent would be continued uninterruptedly, even in the absence of
leave vacancy.

    The question involved in this appeal was whether the school of the
respondent could claim reimbursement of the salary of such clerk from E
the Government.

    Allowing the appeal, this Court

    HELD: 1.1 The U.P. High Schools and Intermediate Colleges
(Payment of Salaries of Teachers and Other Employees) Act regulates F
the payment of the salary by the Government. Section 9 provides that
no institution shall create a new post of teacher or other employee
except with the previous approval of the Director or such oftic'er as ·
may be empowered in that behalf by the Director. Admittedly, no such
steps have been taken by the Management. Such prior approval of the
Director or the empowered officer is a condition precedent and G
mandatory, and government had before it the relevant data of the posts
for which the grant of aid was sanctioned. To make the government
reimburse the salary of an additional teacher or an employee, the
government should have similar relevant material and data to have it
duly verified and decision taken to grant sanction of the additional
post. The inspecting and reporting officers are enjoined to make H
                                 617
    618                     SUPREME COURT REPORTS           [1994] SUPP. S S.C.R

A   personal inspection and submit the report of the existing correct facts.
    The dereliction of duty. or incorrect or false reports would be
    misconduct entailing them to disciplinary action for dismissal from the
    post held by them. Therefore, the failure to obtain· prior approval
    disentitles the Management to obtain reimbursement of the salary of
    such teacher or other employee. (619 A-E)
B
         1.2 The Management has to bear the expenditure from its resourc-
    es without claiming any reimbursement from the government. The
    High Court has committed grievous error of law in not adverting to
    this crucial question and allowing the writ petition directing the
    government to create the post and to make the payment of the salary
C   etc. (619 H, 620 A)

        CIVIL APPELLATE JURISDICTION                 Civil Appeal No. 9517 of
    1994.

       From the Judgment and Order dated 11.11.1992 of the Allahabad High
D   Court in C.M.W.P. No. 2669of1990.

          Ms. Rachna Gupta for R.B. Misra for the Appellants.

          Pramod Swarup for the Respondent.

          The following Order of the Court was delivered:
E
          Leave granted.

          We have heard learned counsel for the parties.

         This appeal by special leave arises from the order of the Allahabad
    High Court in CMWP No. 2669/90 dated 11.11.1992. The admitted facts
F
    are:that'one Hariram Yadav, while working as clerk, went on leave. In the
    leave vacancy, the respondent came to be appointed till Hariram Yadav
    joined the duty. By resolution dated 28.12.1986, the Managing Committee
    resolved that even after Hariram Yadav joins duty on 1.5.87, the service of
    the respondent would be continued uninterruptedly. It is stated in the
G   counter affidavit filed in this Court that the approval of the District
     Inspector of Schools was also obtained in that behalf. But no supporting
    material has been placed before us. The valid appointment of the non-
    teaching staff of a private aided institution to be valid, should be in
    accordance with the relevant rules. Since the.validity of the appointment of
    the additional clerk is not in issue, we need not deal with the matter in
H    depth.
                DIRECTOR OF EDUCATION v. G. P. VERMA                        619

     Be that as it may, the crucial question is whether the school of the          A
respondent can claim reimbursement of the salary of such clerk from the
Government? The U.P. High Schools and Intermediate Colleges (Payment
of Salaries of Teachers and other Employees) Act 24of1971 (for short 'the
Act'), regulates the payment of the salary by the Government. Section 9 is
relevant in that behalf. It provides that no institution shall create a new post
of teacher or other employee except with the previous approval of the              B
Director or such officer as may be empowered in that behalf by the
Director. Admittedly, no steps have been taken by the Management to have
obtained prior approval of the Director of any other authorized officer for
creation of the additional post of clerk. The prior approval of the Director
or the empowered officer is a condition precedent and mandatory, for
creation of an addition behind. Of is that the prior other an employed the         C
government had before it the relevant data of the posts for which the grant
of aid was sanctioned. To make the government to reimburse the salary of
an additional teacher or an employee, the government should have similar
relevant material and data to have it duly verified and decision taken to
grant sanction of the additional post. The inspecting and reporting officers
are enjoined to make personal inspection and submit the report of the              D
existing correct facts. The dereliction of duty or incorrect or false report
would be misconduct entailing them to disciplinary action for dismissal
from the post held by them. Therefore, the failure to obtain prior approval
disentitles the Management to obtain reimbursement of the salary of such
teacher or other employees.
                                                                                   E
     Shri Pramod Swarup, learned counsel for the respondent, placed before
us the direction issued by the State Government for creation of an
additional post when the strength of the students exceeds 1100. It is his
cqntention that since the strength of the students has been more than 1100,
the creation of additional clerk has become necessary and that, therefore, F
the management has resolved to appoint the respondent as an additional
clerk. We are concerned with the creation of the additional post, may be,
due to the increase in the strength of students. What is material is whether
prior approval of the Director or the empowered officer has been obtained
before creating that post. It is not the case of the respondent of the
management that such prior approval had been obtained or given by the G
competent officer. Therefore, so long as prior approval had not been given,
though the respondent might have been appointed by the management, the
government is not obliged to reimburse the salary paid to such clerk. The
management-has to bear the expenditure from its own resources without
claiming ·any reimbursement from the government. The High Court,
therefore, has committed grievous error of law in not adverting to this H
    620                     SUPREME COURT REPORTS             (1994) SUPP. 5 S.C.R

A   crucial question and allowing the writ petition directing the government to
    create the post and to make the payment of the salary etc. The directions are
    wholly illegal and legally unsustainable.

         It is stated and brought to our notice that a post has been created by the
    government pursuant to the impugned order passed by the High Court. But
B   the government have also stated therein that it was subject to the result in
    the appeal. In that view, the creation of the post would not be an
    advantageous factor that favours the respondent. If there is any increase in
    the strength and sanction of the post is needed, it is open to the management
    to take appropriate steps as per Jaw.

C         Accordingly, the order of the High Court is set aside. The civil appeal
    is allowed. The writ petition stands dismissed. No costs.

    G.N.                                                          Appeal allowed.




                                                                  I