S.S. Chauhan, J. - (1.) THE disapproval order in regard to the petitioner's appointment dated 20.9.1984 is under challenge in this writ petition.
(2.) SHRI Nehru Smarak Uchchatar Madhyamik Vidyalaya, Rupaidiha, Bahraich (for short "the School") was a Junior High School and in the year 1977 -78, it was recognized up to High School under Section 7 of the U.P. Intermediate Education Act, 1921 (for short "the Act"). The recognition was duly approved under Section 7 -A of the Act. After recognition, the students were admitted in classes -IX and X in the year 1977 -78. After clearance of the first batch of High School in the year 1978 -79, the School was continuously run and the strength of the students increased from year to year. In the year 1981, 547 students studied in the School in classes -IX and X and in the year 1981 -82 about 1022 students studied in classes -IX and X. It is stated that there has been increase of students in the subsequent years as well i.e. 1982 -83, 1983 -84. The petitioner was appointed as Assistant Teacher in the School on 23.9.1980 in C.T. Grade and it is alleged that the said appointment was duly approved by the District Basic Education Officer. The petitioner continued to work in accordance with the increased strength of the student -teacher ratio. The petitioner was asked to teach the High School classes and it is alleged that the salary of the petitioner was also fixed accordingly by the DIOS. The School was brought under the grant -in -aid w.e.f. 1.3.1984 and the salary was to be paid under the Payment of Salary Act, 1978 to the teachers and staff of the School. After the School came under the grant -in -aid, a list of teachers and employees was forwarded to the DIOS. The DIOS recognized only six teachers vide order dated 20.9.1984 including the Principal, one Clerk and three class -IV employees for the purposes of payment of salary and as a result thereof, the services of the petitioner were terminated. Hence this writ petition. Submission of learned Counsel for the petitioner is that identical issue was raised in another writ petition in respect of the same School in Writ Petition No. 4925 (MS) of 1984 and the said writ petition was allowed and the said judgment has attained finality. It is also submitted that in pursuance to the interim order of this Court dated 20.8.1985, the petitioner is continuously receiving salary and after such long span of time it would be too harsh to turn out the petitioner from service when he is at the verge of retirement. Learned Counsel has also submitted that additional Sections were opened in accordance with the permission of the DIOS and the post of the petitioner is covered within the student -teacher ratio as there were six Sections in class -IX and six Sections in class -X. It cannot be said that the petitioner is not entitled for continuance of the post in question and it was incumbent upon the DIOS to have referred the matter for creation of the post to the Director instead of sitting quiet after granting approval to the opening of the new Sections.
(3.) LEARNED Standing Counsel, on the other hand, by filing counter affidavit has submitted that the Committee of Management has acted illegally and proceeded to appoint the petitioner without authority of law and in absence of any sanctioned post, the appointment of the petitioner will not confer any right and neither the petitioner can claim any salary.;