By the Court.—This special appeal has been filed by the appellant (respondent No. 5 in the writ petition) against the order dated 23.10.2008 passed by learned Single Judge in the writ petition No. 54500 of 2008, Committee of Management, Ashok Inter College, Jaunpur v. Director of Education Allahabad and others.

2. By the order dated 23.10.2008 learned Single Judge has stayed the operation of the orders dated 28.8.2008 and 28.9.2008. Vide order dated 28.8.2008 the District Inspector of Schools, Jaunpur has directed the petitioner to submit the bill of the arrears of salary and the papers relating to the post retiral benefit of appellant (respondent No. 5 in the writ petition). However, vide order dated 28.9.2008 the District Inspector of Schools has passed an order of single operation while exercising his power under Section 5 of the U.P. High School Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as Act 1971). The aforesaid order has been challenged on number of grounds by the appellant, however, the main ground which appealed us has although not been taken in the memo of appeal, but that appears to be most relevant ground for deciding the appeal.

3. Counsel for the appellant has orally submitted that the writ petition itself was not maintainable as the matter relates to the payment of salary and post retiral benefit of a teacher working in the recognized intermediate college and condition of service and payment of salaries of teachers of aforesaid college is governed under the U.P. Intermediate Education Act, 1921 and the Act of 1971. According to the appellant under Section 10 of the Act, 1971 it is the liability of the State Government to pay the salary of a teacher working in the recognized institution and here in the present case the State of U.P. was not impleaded as necessary party, therefore, the writ petition itself was not maintainable.

4. We have heard Sri Rakesh Srivastava, learned counsel for the appellant and Sri P.R. Maurya, learned counsel for respondent No. 1 and learned Standing Counsel for the remaining respondents.

5. By the consent of the parties counsel, the appeal is taken up for final disposal.

6. Article 300 of the Constitution of India provides that the Government of a State may sue or be sued in the name of State; Section 79 of the Code of Civil Procedure, 1908 directs that the State shall be the authority to be named as plaintiff or defendant in a suit by or against the Government and Section 80 thereof directs notice to the Secretary to the State or the Collector of the district before the institution of the suit; and Rule 1 of Order 27 lays down as to who should sign the pleadings. No individual officer of the Government under the scheme of the Constitution or the Code of Civil Procedure can file a suit or initiate any proceeding in the name of the post he is holding, which is not a juristic person.

7. To appreciate the points involved it will be necessary to refer the relevant provisions of Constitution of India and the Code of Civil Procedure, 1908. Article 300 deals with property, contract, rights, liabilities, obligations and suits which reads as follows :

“300. Suits and proceedings.—(1) The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by an Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.

(2) If at the commencement of this Constitution—

(a) any legal proceedings are pending to which the Dominion of India is a party, the Union of India shall be deemed to be substituted for t