2015 (5) TMI 1266 - HC - Indian Laws

Courts cannot direct salary payment without sanctioned post under Section 9 of Act 1971

State of U.P. and Ors. Versus Sri Sukhpal Intermediate College and Ors.

State of U.P. and Ors. Versus Sri Sukhpal Intermediate College and Ors. - TMI ISSUES PRESENTED AND CONSIDERED 1. Whether, in the absence of any sanctioned post, a direction under Article 226 of the Constitution can be issued for payment of salary where no post has been sanctioned by the competent authority, having regard to the statutory scheme regulating recognition, creation of posts and payment of salaries. 2. Which of the conflicting decisions-one directing interim payment pending administrative determination and the other denying such relief-correctly states the law in light of the Full Bench principle that sanction for posts and recognition operate in distinct statutory fields. ISSUE-WISE DETAILED ANALYSIS Issue 1: Legality of directing payment of salary in absence of a sanctioned post Legal framework: The statutory scheme comprises (a) the Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 (Act of 1971) - notably Section 9 (prior approval for creation of new posts) and Section 10(1) (State liability for payment of salaries after 31-3-1971); (b) the Intermediate Education Act, 1921 (Act of 1921) - provisions on recognition (Sections 7, 7-A, 7-AA, 7-AB, and temporary appointments under 16-E(11)); (c) the Uttar Pradesh Secondary Education Services Selection Board Act, 1982 - Section 16(1)-(2) regarding Board recommendations and voidness of appointments in contravention; and (d) Regulations under the Act of 1921 - particularly Regulation 17(2) (no advertisement of new post without sanction) and Regulation 19 (decline payment/grant where appointment is against unsanctioned post or in contravention). Precedent treatment: The Full Bench in a prior authoritative decision held that recognition under the Act of 1921 does not give rise to a presumption that a post stands sanctioned under Section 9 of the Act of 1971; the Supreme Court earlier held failure to obtain prior approval under Section 9 disentitles the management to reimbursement. Regulation 19 expressly contemplates denial of salary/grant where appointment is against an unsanctioned post. Interpretation and reasoning: The Court emphasized that the Act of 1971 and the Act of 1921 operate in different fields - recognition focuses on academic/infrastructural suitability, whereas sanction under Section 9 focuses on the State's preparedness to bear financial liability. Section 9 imposes a mandatory, written prior-approval requirement for creation of new posts. Given that statutory requirement, a court exercising powers under Article 226 cannot command the executive to incur financial liability (pay salaries) where the statutory precondition (sanctioned post) is absent. Orders in mandamus must conform to law; a mandamus cannot be issued in the absence of a legal right founded on a statutory duty to pay. Ratio vs. Obiter: Ratio - Section 9 is mandatory; absence of prior sanction precludes a right to salary reimbursement and precludes judicial issuance of mandamus directing payment by the State. Obiter - observations on the practical differences in considerations between recognition and sanction (though used in reasoning, the central holding is statutory mandatoriness). Conclusion: In the absence of a sanctioned post, the High Court cannot, in exercise of Article 226, issue a direction to the State for payment of salary. No mandamus for payment may be issued where the statutory condition precedent (prior approval under Section 9) is not satisfied; Regulation 19 and the statutory scheme support refusal of payment where appointments are against unsanctioned posts. Issue 2: Which judicial approach correctly states the law - interim payment directions versus refusal pending administrative sanction Legal framework: Same statutory provisions as above, with additional attention to Regulation 19 (declining payment for appointments contrary to chapter or against unsanctioned posts) and Section 16 of the 1982 Act (appointments void if made contrary to Board recommendations) that affect validity and entitlement. Precedent treatment: The Full Bench decision that recognition does not imply sanction (see above) was followed; the Supreme Court authority interpreting Section 9 was relied upon. Two lines of earlier Division Bench authority existed: one that set aside court-ordered payment and directed administrative consideration (no interim salary direction), and another that directed payment of salary until the administrative final order. Interpretation and reasoning: The Court concluded that the Full Bench principle (no presumption of financial sanction from recognition) must control. A direction for interim payment effectively compels the State to bear financial liability absent the statutory precondition and thereby conflicts with Section 9 and Regulation 19. While administrative authorities may be directed to consider and decide requests for sanction promptly and in accordance with norms, judicial compulsion to make payment before statutory sanction cannot be sustained. Thus, the Division Bench decision that merely required administrative consideration (without sustaining interim payment) is consistent with the Full Bench; the judgment directing interim payment until final administrative decision stands in tension with the mandatory statutory regime. Ratio vs. Obiter: Ratio - Judicial orders that compel interim payment of salaries where no sanctioned post exists are not supportable in law; administrative consideration and decision-making processes remain the appropriate route. Obiter - procedural suggestions on prompt administrative consideration and the desirability of interim relief in exceptional factual matrices (e.g., temporary appointments under express statutory provision) are informative but subordinate to the mandatory statutory requirement. Conclusion: The correct legal position is as laid down by the Full Bench: recognition does not result in a presumption of financial sanction; the Division Bench decision that denied judicially-ordered payment and required administrative sanction to be considered is consistent with that principle. Orders directing interim payment in the absence of sanctioned posts cannot be sustained to the extent they conflict with Section 9 and the statutory scheme; however, courts may direct administrative authorities to consider sanction applications expeditiously in accordance with prescribed norms. Cross-reference: Issue 1 and Issue 2 are interlinked - the mandatory nature of Section 9 (Issue 1) determines the validity of interim judicial payments criticized in Issue 2; Regulation 19 and the statutory separation between recognition and financial sanction are central to both analyses.