R.A.Sharma, J. - (1.) PETITIONER was appointed on 15 -9 -1975 as temporary C.T. Grade teacher in Nehru Smarak Uchachtar Madhyamik Vidyalaya, Nahora District Jaunpur (hereinafter referred to as the school). The school was upgraded to High School on 10 -12 -1975 and started receiving grant -in -aid from the Government from January, 1981. The Districts Inspector of Schools, Jaunpur (hereinafter referred to as D.I.O.S.) has however, granted financial sanction for only five teachers other than the petitioner, with the result that petitioner was not paid his salary after 1980. Grievance of the petitioner is that although he is qualified and after up -gradation of the school he is entitled to remain as a teacher in the High School, by virtue of his appointment in Junior High School, but he has not been paid salary after 1980. The petitioner, as such, made representation to the committee of Management, D.I.O.S. and various other authorities, but without any result. The petitioner thereafter filed a writ petition before this court which was decided on 12 -8 -1981 requiring the D.I.O.S. to call upon the school management to include the name of the petitioner in the list of teachers if he is entitled for the same and if the Committee of Management does not take any action, the D.I.O.S. must proceed in accordance with law and take action against the management. Relevant extract of the judgment of this court is quoted below: From the facts stated in the writ petition, it is clear that the Committee of Management sitting tied over the matter and is not responding the letter Written by the D.I.O.S. on 8th May, 1981. The District Inspector of Schools may once again call upon the Committee of Management to include the name of the petitioner amongst the teachers if is lawfully entitled for the same. Even then if the Committee of Management does not take action, the D.I.O.S. must proceed in accordance with law and take proceedings against the Committee. After the aforesaid decision of this court the petitioner again made representations to the D.I.O.S. The D.I.O.S. by his letter dated 20 -11 -1981 asked the Manager and Principal of the school to supply him the requisite information's in connection with the petitioner. By another letter dated 18 -12 -1981 the Manager of the school was again reminded for sending the necessary information and was also informed that if information sought for is not given decision will be taken ex -parte. The management, it appears, was adamant not to supply any information to the D.I.O.S. and the petitioner was helpless and had no alternative but to keep on making representations. The Teachers' Association, known as Madhyamik Shikshak Sangh also submitted a memorandum to the D.I.O.S. for favourable orders to the petitioner. The Principal and Manager of the school were not moved by all these representations and letters written by the D.I.O.S. The D.I.O.S. ultimately by his order dated 24 -4 -1982, directed the Manager of the school to pay the salary of the petitioner including the arrears from their own sources. No payment having been made by the management inspite of the aforesaid order of the D.I.O.S. the petitioner appears to have made further representation to the Deputy Director, Varanasi, who passed order dated 10 -8 -1982 requiring the D.I.O.S. to take appropriate action in the matter. D.I.O.S. again passed order dated 27 -8 -1982 asking the management to make the payment to the petitioner. All these orders yielded no result. The petitioner accordingly filed this writ petition for a writ of mandamus, directing the respondents to pay him salary since 1 -1 -1981 including the arrears and to include his name in the list of teachers and send salary bills regularly. The D.I.O.S. and the Committee of Management have filed their counter -affidavit and the petitioner has filed rejoinder affidavit in reply thereto. I have heard the learned counsel for the parties.
(2.) LEARNED counsel for the petitioner has argued that (i) after the upgradation of the school to High School the petitioner has become teacher of the High School and is entitled to salary, and (ii) the petitioner's name is liable to be included in the list of approved teachers, maintained for the purposes of grant -in -aid. Learned counsel for the respondents, have, however, disputed the claim of the petitioner and pressed for dismissal of the writ petition. In the counter -affidavit filed by the D.I.O.S. it has been stated that the petitioner was appointed illegally as there was neither any vacancy in C.T. Grade nor was petitioner's appointment approved by the Basic Shiksha Adhikari. It has further been averred that the petitioners' name was not shown in the list of C.T. Grade teachers of the school, when it was raised to High School. Identical stand has been taken in the counter affidavit filed by the Manager of the school. Petitioner has, however, in the rejoinder affidavit, asserted that there was a vacancy in the C.T. Grade in the school when the petitioner was appointed and there was no necessity for approval of his appointment in C.T. Grade by the Basic Shiksha Adhikari.
(3.) REGULATION 4 of Chapter II framed under the Intermediate Education Act, which deals with the situation' when a Junior High School is raised to High School, is quoted below; 4. Where any Junior High School is recognised as a High School under Section 7, the permanent or temporary teacher of such school, possessing the minimum qualifications under Regulation 1, shall be deemed to be permanent or temporary teacher, as the case may be, of such High School, provided that the services of the temporary teacher who is not selected for appointment in accordance with the provisions of the Act and the Regulations shall be dispensed with after giving him one month's notice in that behalf or one month's pay in lieu of such notice. Explanation. - -None of these regulation shall be construed to mean that High School includes Classes I to V. This regulation provides that when a Junior High School is recognised as a High School, permanent or temporary teacher of such school possessing minimum qualifications shall be deemed to be permanent or temporary teacher, as the case may be, of such High School. It is further provided that services of temporary teacher who was not selected in accordance with provisions of the Act and regulations framed thereunder, shall be terminated after giving him one month's notice or pay in lieu thereof. Regulation 4 requires continuance of the teachers of Junior High School possessing requisite qualification as High School teachers after the upgradation of Junior High School to the status of High School, unless their services are terminated in accordance with law. Those teachers, who do not possess the prescribed minimum qualifications are also to continue in Junior High School Sections. It is not disputed that the petitioner possesses the prescribed minimum qualifications. There is also no order terminating services of the petitioner. The petitioner as such was entitled to continue as temporary teacher in C.T. Grade in the High School and was also liable to be paid his salary. There is no justification for the management of the school in not including the name of the petitioner in the list of teachers of the High School. The D.I.O.S. was also not justified in excluding the name of the petitioner from such a list. Recognition of Junior High School as High School should not and cannot be used as an excuse for creating un -employment by not including the names of the existing teachers in the list of approved teachers.;