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Shitala Prasad Misra v. D.I.O.S & Another - WRIT - A No. 39599 of 1992  RD-AH 7949 (27 April 2007)
Court No. 26
Civil Misc. Writ Petition No. 39599 of 1992
Shitala Prasad Mishra
District Inspector of Schools & another
Hon'ble Rakesh Tiwari, J.
Heard learned counsel for the parties and perused the record.
The case of the petitioner is that he was appointed as an Assistant Teacher in C.T. Grade in Inter College, Babu Sarai, Varanasi in the year 1982, but he has not been paid his salary since April 1991. The relief claimed by him is for issuance of a writ of mandamus commanding the respondents to pay his salary w.e.f. April 1991 till date and continue to pay his regular monthly salary as and when the same falls due.
In the counter affidavit filed by the Committee of Management of the aforesaid Inter College it has been stated that no post of Assistant Teacher as alleged to be held by the petitioner was sanctioned and as such his salary cannot be paid as no financial approval has been granted by the District Inspector of Schools. Reference in this regard may be made of paragraph 15 of the counter-affidavit as under: -
"15. That in reply to the contents of paragraph 13 of the writ petition it may be submitted that the petitioner has always been told by the manager of the institution that his appointment has not been made against any sanctioned post and as such he cannot claim for the payment of salary under the provisions of Payment of Salaries Act, 1971. The management is paying salary to the petitioner from its own resources. From the petitioner work is being taken only with effect from 1.12.1986. Rest of the averments has been suitably replied in the preceding paragraphs of the present counter affidavit."
It is true that the petitioner cannot be paid any salary from the State exchequer as his appointment has not been approved in the absence of sanction of the post. However, since the Committee of Management has taken work from the petitioner the Committee of Management is liable to pay the salary of the petitioner from its own funds.
The petitioner will make a fresh representation in this regard to the District Inspector of Schools within two weeks which shall be decided by him by a reasoned and speaking order within two months from the date of production of a certified copy of of this order along with the representation also taking into consideration the averments made in paragraph 15 of the counter-affidavit. In case the the District Inspector of Schools finds that the petitioner has been appointed by the Committee of Management and he had worked in the Institution he will pass appropriate order for payment of salary of the petitioner and will also ensure its compliance.
The petition is accordingly disposed of. No order as to costs.
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