JUDGMENT N.K. Mehrotra, J.
1. This is a writ petition under Article 226 of the Constitution of India for issuing a writ in the nature of certiorari for quashing the order passed by the opposite party No. 1, the Dy. Director of Education, VIth Region, Lucknow as contained in Annexure No. 4 to this writ petition and for a direction to the opposite parties to pay salary of the petitioner regularly every month. The petitioner has further claimed the arrears of salary and for a writ in the nature of mandamus commanding the opposite party No. 6 not to make any selection for the post of Principal, Ganga Sagar Mishra Smarak Kanya Uchchatar Madhyamik Vidyalaya, Bhagwant Nagar, District Hardoi and not to interfere in the working of the petitioner as Principal of that institution.
2. The case of the petitioner is that Ganga Sagar Mishra Smarak Kanya Uchchatar Madhyamik Vidyalaya, Bhagwant Nagar, District Hardoi (hereinafter to be referred as "College") was at first a Junior High School and the petitioner had been appointed as its Head Mistress on 12.7.1969. In the year 1977, it was given recognition for starting High School classes with certain conditions as contained in Annexure No. 1 to this writ petition. These conditions were fulfilled and the regular classes for High School were started from 1979 on getting approval from the opposite party No. 2, the Regional Inspectress of Girls Schools, VIth Region, Lucknow vide order dated 28.5.1979 as contained in Annexure No. 1-A. According to the conditions imposed, it was necessary to appoint a Headmistress. The Managing Committee of the College in its meeting dated 29.9.1977 appointed the petitioner as Principal of the College with effect from 1.7.1979 vide order Annexure No. 2. On 4.10.1977, the management sent the appointment order of the petitioner to the opposite party No. 2 for her approval. The petitioner was regularly performing her duty as Principal of the College since the date of her appointment. On 25.1.1984, the opposite party No. 3, the District Inspector of Schools, Hardoi sanctioned the new pay scale to the petitioner and an entry to this effect was made in the service book of the petitioner. The Photostat copy of the Service Book is Annexure No. 3. According to this order, the pay of the petitioner was fixed in the pay scale of Rs. 770-1600 and she was to receive a basic pay of Rs. 810/- since 12.7.1979. This new pay had been given since February, 1984 but the arrears from 12.7.1979 to January, 1984 has not been paid as yet. On 22.7.1986, the opposite party No. 3 ordered to stop the payment of the salary to the petitioner with immediate effect for the month of July, 1986 and August, 1986 and it was directed that till further order the salary from the month of July, 1986 would not be paid to the petitioner The copy of the impugned order dated 22.7.1986 passed by the opposite party No. 3 is Annexure No. 4. The Manager of the institution was asked to explain as to why the demand for the post of Principal has not been made so far. The petitioner was also informed by the Manager that there were few complaints against her and in pursuance of these complains, the opposite party No. 1 has ordered to stop the salary of the petitioner. The opposite party No. 1 had never informed the petitioner about any complaints made against her and no opportunity had ever been afforded to the petitioner to explain about the complaints. On the directions of the opposite party No. 2, the Regional Inspectress of Girls Schools, VIth Region, Lucknow through her letter dated 10.7.1986 and the District Inspector of Schools vide letter dated 22.7.1986 directed the Manager to send a requisition for the post of Principal. On the direction by the District Inspector of Schools, the Manager of the College sent a requisition and the Secondary Education Service Commission advertised the post vide Advertisement No. 1 of 1986-87 while the post was already filled in the year 1987 before creation of the Secondary Services Selection Board.
3. The opposite party No. 5, the Manager of the College filed the counter-affidavit and admitted the appointment of the petitioner after issuing the advertisement, the approval of the District Inspector of Schools and sanction of the new pay scale to the petitioner. It is also admitted that the petitioner has been working satisfactory since the appointment. It has been stated by the opposite party No. 5 that the arrears of the salary could not be paid because the grand-in-aid payable to the institution has not been paid for the period from 1.7.1979 to February, 1982 in spite of repeated demands and from March, 1982 to January, 1984, the payment of arrears has not been sanctioned by the District Inspector of Schools. It is also stated that the Manager has also not been shown the complaints against the petitioner by the Regional Inspectress of Girls Schools, VIth Region, Lucknow and the payment of salary has been stopped on the basis of the letter of the District Inspector of Schools. It is on the direction of the Regional Inspectress of Girls Schools, VIth Region, Lucknow and the District Inspector of Schools that the requisition for the post of the Principal has been sent to avoid complications.
4. The opposite parties Nos. 1 to 4 have also filed a counter-affidavit of Shri Ram Adhar Mishra, a Clerk in the office of the District Inspector of Schools, Hardoi. It is admitted in this counter-affidavit that the recognition to the High School Classes in the College was given vide letter dated 16.8.1977 by Madhyamik Shiksha Parishad, Uttar Pradesh. The Regional Inspectress of Girls Schools, VIth Region, Lucknow vide order dated 28.5.1979 permitted to start classes for IXth Classes. The proposal for creation of the posts in this College was sent to the Director Education, Allahabad from the office of the District Inspector of Schools and the posts were sanctioned on 28.3.1984. The Committee of Management after getting the sanction of starting the classes presumed the creation of posts with effect from 28.5.1979 and appointed the Principal and two Teachers in the College against those posts. The salary was paid upto 30.6.1986. The fixation of pay in the revised pay scale was also made with effect from 12.7.1979 from the office of the District Inspector of Schools. It is also admitted that the petitioner was appointed on the post of the Principal by the Management on 29.9.1977. At the same time, it is contended that the appointment of the petitioner cannot be said to be regular for want of approval of the Departmental Officers of the post of Principal and for want of availability of the post from 29.9.1977. Since the post was not sanctioned by the Government, the payment of salary was stopped from 22.7.1986. The petitioner is getting the salary on the basis of the stay order dated 9.9.1986 given by this Court in Writ Petition No. 4733 (S/S) of 1986. Since the post of Principal was created in the year 1984, the appointment on the said post cannot be said to be regular appointment. It is admitted that permission to start High School classes was given since 1979. It is contended that fixation of salary in the scale of Rs. 770-1600 as noted in the Service Book on the basis of the order of District Inspector of Schools was incorrect. The salary of the petitioner was wrongly fixed by the District Inspector of Schools. It is also stated in the counter-affidavit that there is a provision in the U.P. Intermediate Education Act that whenever a High School is converted into Intermediate College then the Principal of the High School shall be permitted to be Principal of the Intermediate College subject to the condition that his conduct is satisfactory but this provision is not applicable to the Principal of Junior High Schools when it is converted into the High School.
5. U.P. Secondary Education Service Commission, the opposite party No. 6 has also filed a counter-affidavit. The case of the U.P. Secondary Education Service Commission is that the petitioner has no right to be permitted as Head Mistress of High School. There is no provision for automatic promotion of the Head Master of a Junior High School to the post of Principal of High School on the recognition of High School classes.
6. The petitioner has also filed a rejoinder-affidavit alleged therein that the Clerk of the District Inspector of Schools cannot say on affidavit that the District Inspector of Schools has committed mistake in fixing the pay of the petitioner in the revised pay scale. There is no proof on the record that the Clerk was authorised to say such things on the affidavit. It is contended that the College was given permission to start Classes IX and X in the College and there was a condition of appointment of Teachers and Principal alongwith other conditions before start of the classes. In order to fulfill these conditions, the Principal and Teachers were given appointment. After finding that the required conditions were fulfilled and the time was granted for fulfilling the condition of the land for playing-ground, the appointment of the petitioner on the post of Principal was approved vide order dated 28.5.1979. There is nothing on the record as to why the post was not created after giving approval to start the classes and after giving approval to the appointment and the approval for payment in the revised pay scale. The salary was also paid with the approval of the District Inspector of Schools since July, 1979. It is not denied that the salary of the petitioner as Principal was fixed from 12.7.1979 in the pay scale of Rs. 770-1600. The appointment of the petitioner had been made prior to the coming into force of U.P. Secondary Education Service Selection Board Act, 1982. The post of the Principal in the College had been created in pursuance of the order dated 16.8.1977 and the approval of the petitioner's appointment was granted vide order dated 28.5.1979 by the opposite party No. 2 and the salary was being paid from 12.7.1979 in the revised pay scale of the principal, therefore, it cannot be said that the selection on the post of Principal is required to be made by the Service Selection Board merely on the ground that the post was created in the year 1984 because of the laches on the part of the opposite parties. The opposite party No. 2 in its letter dated 17.8.1984 to the Dy. Director Education requested the opposite party No. 4 to grant sanction of the post from the date of appointment of the employees and Teachers as the delay in granting sanction was caused due to the correspondence between the opposite parties Nos. 2 and 4; though the College had completed all the formalities within the stipulated period prior to 28.5.1979 when the permission to start Class IX was granted. In this letter the opposite party No. 2 clearly indicated that at the time when the permission was granted to start Class IX, the power to sanction the post in Girls Schools vested with the Regional Inspectress of Girls Schools, VIth Region, Lucknow, the opposite party No. 2 and the sanction should have been granted by the then the Regional Inspectress of Girls Schools, VIth Region, Lucknow. A copy of this letter is Annexure No. 10 to this writ petition.
7. After hearing the learned Counsel for the petitioner and the learned Standing Counsel for the opposite parties Nos. 1 to 4, I find that in the instant case, the College was granted recognition of 16.8.1977 for starting High School classes subject to the condition mentioned in the said order. One of the conditions was the appointment on the post of Principal. I also find that the Committee of Management by issuing an advertisement appointed the petitioner on the post of Principal in accordance with the procedure which was prevailing at that time. The Committee of Management also removed the defects pointed out in the letter dated 16.8.1977 issued by the opposite parties. After removing the defects the Committee of Management informed the opposite party No. 2. The opposite party No. 2 after being satisfied that the defects have been removed, granted approval for starting Class IX in the College vide letter dated 28.5.1979 subject to the condition that the playing ground be registered in the name of the College within two months from the date of issuance of orders. The opposite party No. 2 took into account the fact at the time of issuing order dated 28.5.1979 that the petitioner had been appointed as principal of the College. I also find that the District Inspector of Schools permitted for payment of salary in the revised pay scale from 12.7.1979 and there was nothing wrong in the approval and in making the payment of salary as is clear from Annexure No. 10 that at that time the Regional Inspectress of Girls Schools, VIth Region, Lucknow was competent to approve the appointment on the post of the Principal in the Girls College and the District Inspector of Schools was competent to permit the payment of salary. No authorised person has come on behalf of the opposite parties Nos. 1 to 4 to state that the order of the Regional Inspectress of Girls Schools, VIth Region, Lucknow and District Inspector of Schools, Hardoi was in any way was incorrect. The Service Selection Board was created in the year 1982 when this post was already deemed to have been created on the approval to start Classes IX and X with the condition to appoint the Principal. Since the post was already filled up, there was no justification to create the post of Principal from July, 1984 and to give direction to fill up that post through Service Selection Board. The post was already filled up after taking approval of the Competent Authority and there was no justification to send requisition to the Service Selection Board which was created after the post was already filled up by the petitioner. Since the post was already filled up by the petitioner, since before the creation of the Service Selection Board in the year 1982 and since the appointment of the petitioner was duly approved and she was getting salary upto July, 1986, there was no justification to stop the payment of salary and withholding the arrears of salary and to send requisition to the Service Selection Board by creating the post with effect from July, 1984.
8. In Bansh Narain Pandey v. Secretary, Madhyamik Shiksha Parishad and Ors., 1999 (2) ESC 1217 (Allahabad), it has been held by this Court that grant of recognition implies the creation of post. When a Class, Section or Subject is recognised or sanctioned by the Parishad in exercise of its jurisdiction unless there are exceptional or extra-ordinary reasons, the part to be played by the Directorate is only ministerial subject to satisfaction of compliance of the required formalities and the requirement provided and regulated by the provisions contained in the legislation or the rules and regulations framed thereunder. With the aforesaid observations this Court had held that the respondents shall consider the question of grant of salary to the petitioner in that case. Further in Arjun Singh v. The State of U.P. and Ors., 1997 (3) ALR 484, it was held by this Court that when sanction is given for opening a new class or subject, it is implied that a post is created by reasons of recognition of new subject or new section. Even if a condition is imposed that the School has to bear the expenses, it does not include the salary of a Teacher. In view of the aforesaid two decision of this Court, I hold that in this case also the recognition to start Class IX and X in the College implies the approval of the post of the Principal in the College and since the appointment of the petitioner has been made after issuing advertisement and since the petitioner is working on the post of the Principal with the approval of the Regional Inspectress of Girls Schools, VIth Region, Lucknow and her salary has been fixed by the District Inspector of Schools, the writ petition is to be allowed.
9. In view of the above facts and circumstances of the case, the writ petition is allowed. The impugned order dated 22.7.1986 as contained in Annexure No. 1 issued by the District Inspector of Schools, Hardoi is quashed. The opposite party No. 3 is directed to make the payment of salary of the post of Principal to the petitioner from the date of her appointment from 1.7.1979 and to make the payment of arrears of salary expeditiously to say within a period of three months. It is further directed that no new selection shall be made by the Service Selection Board for the post of Principal in Ganga Sagar Mishra Smarak Kanya Uchchatar Madhyamik Vidyalaya, Bhagwant Nagar, District Hardoi till this post is occupied by the petitioner after being selected with the approval of the opposite parties.
10. Let the certified copy of this order be furnished to the learned Counsel for the petitioner within two days on payment of usual charges.