JUDGMENT Vikram Nath, J.
1. List revised. None responded on behalf of the respondents even in the revised call although names of Dr. R.G. Padia, Sri Prakash Padia and Sri Indra Dev Mishra are shown in the cause list as counsel for the respondents. However, Sri Amitabh Singh, Advocate, holding brief of Sri Prakash Padia, learned counsel for the respondents informs that he has no instruction in the matter from the respondents and in fact Sri Indra Dev Mishra, Advocate has now been instructed to appear, who has also filed counter affidavit. Name of Sri Indra Dev Mishra, learned counsel is shown in the cause list despite that he is not present. We have, therefore, taken up the matter.
2. It appears that Sri Radha Krishan Inter College, Talpurwa, Siddharthnagar is a recognized institution under the U.P. Intermediate Education Act, 1921 and governed by the provisions of the U.P. High School and Intermediate College (Payment of Salaries of Teachers and Ors. Employees) Act, 1971. The institution is being managed by a Committee of Management. It further appears that the committee of management, without there being any vacant sanctioned posts, appointed the petitioner-respondents vide letter of appointment dated 31.1.1991 and when they were not paid salary either by the management or by the State Government, they made a representation before the Manager on 20.3.1991 for the payment of their salary. Thereafter they filed writ petition No. 10966 of 1992 with the prayer, inter alia, that the respondents to the writ petition may be commanded by issuing a writ of mandamus to make regular payment of salary to all the petitioners/respondents along with the arrears of salary w.e.f. 1.2.1991 till the regularly selected candidates from the commission are not appointed. The writ petition was thereafter allowed by the learned Single Judge vide order dated 24.5.1996 directing the State Government to make the payment of salary to all the petitioners/respondents and also to grant approval to their appointment within a period of three months from the date of the order of the Court i.e. 24.5.1996 without further consideration of the fact that the post against which they have been appointed so far have not been created. It is this order of the learned Single Judge, which is impugned in this appeal.
3. Sri Haider Zaidi, learned Standing Counsel appearing for the State-appellants submitted that the sole controversy involved in this special appeal is as to whether the State Government is liable to pay salary even if the post is not sanctioned by it. It is submitted that this question was considered by a Full Bench of this Court in the case of Gopal Dubey v. District Inspector of Schools, Maharajganj and Anr., 1999 (1) UPLBEC 1 wherein it was held that merely on auomt of recognition by the board in respect of the subject in the institution Under Section 7-A of the U.P. Intermediate Education Act, 1921 the State Government cannot be saddled with the liability to pay the salary of a teacher unless the post is sanctioned and prior approval is taken by the State Government. He further drew our attention to Section 9 of the Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act 24 of 1971 (hereinafter referred to as 'the Act') and argued that no institution can create new post of teacher or other employees except with the previous approval of the Director, or such officer as may be empowered in that behalf by the Director but the learned Single Jude without considering all these aspects and ignoring Section 9 of the Act, by the impugned order, has directed the appellants to make the payment of salary to the respondents and grant approval of their appointment within a period of three months. It is submitted that in view of the aforesaid judgment and also in view of the provisions contained in Section 9 of the Act, the State Government is not liable to pay salary to the teachers, who are appointed without taking prior approval of the Director, as is required Under Section 9 of the Act and thus, the order of the learned Single Judge cannot br sustained.
4. We are afraid such a direction in the absence of sanctioned post and in the absence of prior approval of the Director, as is required Under Section 9 of the Act, could not have been given under the writ jurisdiction of this Court. The payment of salary to the teacher of a recognized Intermediate Colleges and High School in the State of Uttar Pradesh by the State Government is made under the Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act 24 of 1971. It regulates the payment of salary to the teachers and other employees of High School and Intermediate Colleges receiving aid from the State funds. The procedure for the payment of salary is provided Under Section 5 of the Act. It reads as under: -
"5. Procedure for payment of salary in the case of certain institution.- (1) The management of every institution shall for the purposes of disbursement of salaries to its teachers and employees open [in a Scheduled bank or a co-operative bank] a separate account to be operated jointly by a representative of the management and by the Inspector or such other officer as may be authorized by the Inspector in that behalf:
Provided that after the account is opened the inspector may, if he is, subject to any rules made under this Act, satisfied that it is expedient in the public interest so to do, instruct the bank that the account shall be operated by the representative as the management alone, and may at any time revoke such institution :
Provided further that in the case referred to in the proviso to Sub-section (2), or where a difficulty arises in the disbursement of salaries due to any default of the management the Inspector may instruct the Bank that the account shall be operated only by himself or by such other officer as may be authorized by him in that behalf and may be any time revoke such institution.
(2) The management shall deposit in the said amount by such date as may be specified by general or special orders by the Inspector, eighty per cent or where the State Government or an officer authorized by the State Government having regard to the money required to be disbursed, directs a higher percentage, then such higher percentage as it or he may direct of the amount received from students as fees which in accordance with the general or special orders of the State Government in that behalf [and for so long as such orders are not made in accordance with the directions of the Inspector] from part of the maintenance fund :
Provided that where the said percentage of fees is not deposited as aforesaid the Inspector may by order prohibit the management from making any realization of fees from the students thereupon the inspector may recover the fees (either through the teachers of the institution or in such other manner as he thinks fit) directly from the students and shall deposit the fees so recovered in the said account.
(3) The entire amount of the maintenance grant and the amount of eighty per cent or such higher percentage as the State Government or an officer authorized by the State Government may be general or special order in that behalf determine, of the grants for reimbursement of freeships and other similar concession shall also be paid by the State Government into the said account.
(4) No money credited to the said account shall be applied for any purpose except the following, namely: -
(a) payment of the said salaries falling due for any period after March 31, 1971;
(b) credit of the institution's contribution, if any, to the provident fund accounts of the teachers and employees;
and such portion of the balance in the account at the end of the month of July each year exceeds the aggregate of one month's salary of the teachers and employees of the institution after meeting the liability for payment of their salaries for the period for which fees have been realized from the students shall be made over to the management for expenditure on the institution.
[(c) such other expenditure for the purposes of the institution as may be directed by the State Government in that behalf.] (5) The salary of a teacher or employee shall be paid by transfer of the amount from the said account to his account, if any, in the same bank, or if he has no account in that bank, then by cheque.
(6) In respect of a place where there is no [Scheduled bank or a co-operative bank] the provision of this section shall apply with such modifications as the State Government may by notification in the Gazatte specify, and the references in this section to bank shall in that case be construed as references to a post office saving bank."
5. Section 9 of the Act provides as under: -
"9. Approval for post.- No institution shall create a new post of teacher or other employee except with the previous approval of the Director, or such other officer as may be empowered in that behalf by the Director."
6. The above previous expressly mandate that no institution shall create a new post of teaching and non-teaching employees except with the previous approval of the Director or such other officer as may be empowered in that behalf by the Director.
7. It is settled legal proposition that if a statute requires a thing to be done in a particular manner, then it has to be done in that manner or not at all. The Hon'ble Apex Court in the case of Director of Education and Ors. v. Gajadhar Prasad Verma, while considering the appointment against non-sanctioned post under the provisions of the U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 held that the failure to obtain prior approval disentitles the management to obtain reimbursement of the salary of the teachers and other employees. Their Lordships further held in para-4 of the judgment as under: -
"Be that as it may, the crucial question is whether the school of the respondent can claim reimbursement of the salary of such Clerk from the Government? The U.P.High School & Intermediate Colleges (Payment of Salaries of Teachers & other Employees) Act 24 of 1971 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 Director of 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 or 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 additional posts (sic) the 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 existing correct facts. The dereliction of duty or incorrect or false reports would be misconduct entailing them in disciplinary action for dismissal from the posts 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."
8. In the case of Gopa Dubey v. District Inspector of Schools, Maharajganj and Anr. (supra) a Full Bench of this Court while considering the conflicting views of the learned Single Judge of this Court in respect of the payment of salaries of the teachers and non-teaching employees of the aided recognised institution formulated the following question: -
"Whether 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 (U.P. Act No.II of 1921) (hereinafter referred to as the Intermediate Education Act) it will 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? "
9. The Full Bench having noticed the provision and the Act and also the judgment of the Hon'ble Apex Court in the case of Director of Education and Ors. v. Gajadhar Prasad Verma (supra) observed that recognition for opening a subject in a college is accorded by thei Board under the provisions of the Intermediate Education Act, which is a statute to establish a board to regulate and supervise the system of High School and Intermediate Education in Uttar Pradesh, prescribe courses therefore and oversee related activities, whereas the Payment of Salaries Act is enacted to regulate the payment of salaries to the teachers and other employees of the High School and Intermediate Colleges and to provide for matters connected therewith. The Full Bench, therefore, answered the question formulated in para 22 of the judgment as under: -
"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."
10. In the case in hand, admittedly the post was not sanctioned nor prior approval was obtained while making the appointment of the petitioners respondents as teachers of the Institution in question and, therefore, we are of the view that the controversy involved is fully covered by the Full Bench judgment of this Court in the case of Gopal Dubey v. District Inspector of Schools, Maharajganj and Anr. (Supra). We are further of the view that the direction of the learned Single Judge for the payment of salary in the absence of prior approval also cannot be sustained.
11. In the result, the special appeal succeeds and is hereby allowed. The judgment of the learned Single Judge dated 24.5.1996 is hereby set aside and the writ petition is, accordingly, dismissed. However, there shall be no order as to costs.