V.M.Sahai, J. - (1.) Kamla Balika Inter College, Basni, Varanasi, is a recognised and aided institution. On 14.12.1981 the Regional Inspectress of Girls School, Varanasi, passed an order, sanctioning three posts of Lecturers of Sanskrit, History and Sociology. The management sent requisition to the commission to fill the post of Lecturer Sociology on 25.2.1983 but the commission made no selection. The management notified the vacancy on 11.8.1990 on the notice board and invited applications for making ad hoc appointments on the post of Lecturer Sociology. The petitioner applied and she was selected. The management passed a resolution on 27.1.1991 for appointing her as Lecturer Sociology for short time on ad hoc basis and issued an appointment letter on 28.10.1991. She joined on 29.10.1991. The papers were forwarded to the Regional Inspectress of Girls School for granting financial approval to the appointment. It is claimed that no order was passed by the Regional Inspectress of Girls School. The post of Regional Inspectress of Girls School was re-designated as Deputy Director of Education (Secondary) and powers of the Regional Inspectress of Girls School were vested in District Inspector of Schools-II (in brief DIOS). Since she was not being paid her salary, she made representation before the DIOS. The last representation was made on 18.10.2000. She was informed by the DIOS on 2.11.2000 that the petitioner's ad hoc appointment has already been disapproved on 23.9.1996 by the Deputy Director of Education (Madhyamik), Vth Region, Varanasi. A copy of the order dated 23.9.1996 has been filed as Annexure-6 to this petition. The disapproval was granted because the management could not fill the ad hoc vacancy after ten years of its creation and the appointment of the petitioner was made without following the procedure of advertising it in the newspapers. The petitioner has challenged the order passed on 23.9.1996 by the Deputy Director of Education (Madhyamik), Vth Region, Varanasi and order passed on 2.11.2000 by the DIOS by means of this petition.
(2.) Sri Ashok Khare the learned senior counsel assisted by Sri Mukesh Kumar for the petitioner has vehemently urged that once a post is created, it would not lapse and it is the sweet will of the management to fill the post whenever it wants to fill it and appoint any person at any time. The learned counsel has placed reliance on two single Judge decisions of this Court in Vogendra Nath Singh v. DIOS, Jaunpur, 1991 UPLBEC (1) 484 and Markanday Singh v. State of U. P. and others, 1997 (1) AWC (NOC) 2.115. He also relied on a Division Bench decision of this Court in Mumtaz Ahmad v. Deputy Director of Education, Allahabad, 2000 (1) ESC 437. He urged that if the commission had not appointed any Lecturer in Sociology on the vacancy for which the requisition had been sent to the commission, the management could fill it by direct recruitment under U. P. Secondary Education Service Commission (Removal of Difficulties) Order, 1981 (in brief Removal of Difficulties Order, 1981).
(3.) On the other hand, Sri M. C. Chaturvedi the learned Additional Chief Standing Counsel has urged that provisions of Regulation 20 are still in force by virtue of Section 32 of U. P. Secondary Education Service Commission and Selection Board Act, 1982 (in brief U. P. Act No. 5 of 1982). It has to be given full effect where the management fails to advertise the vacancy or send a requisition to the commission within a period of three months from the date of occurrence of vacancy. In such a situation, the vacancy would be deemed to be surrendered under Regulation 20 of the Regulations and the management could not fill it unless it was created and sanctioned afresh by the Director. He further urged that the management could not make direct recruitment on substantive vacancy itself and ad hoc appointment could only be made by the DIGS after advertisement in two newspapers having wide circulation in the State and in accordance with the provisions of Removal of Difficulties Order. 1981. The appointment of the petitioner was contrary to the provisions of Removal of Difficulties Order. 1981, therefore, no right would accrue to the petitioner on the basis of appointment made by the management.;