R.A. Sharma, J. - (1.) DUE to retirement of a L.T. grade teacher in National Inter College, Pindra, Varanasi (hereinafter referred to as the College) on 30 -6 -1990, there came into existence a vacancy in the College in L.T. grade. The management of the college informed District Inspector of Schools, Varanasi (hereinafter referred to as the D.I.O.S.) about it by its letter dated 2 -7 -1990, alongwith which requisition for selection for regular appointment against the aforesaid vacancy by the U.P. Secondary Education Services Commission (hereinafter referred to as the Commission) was also sent. The management thereafter, by advertisement dated 30 -7 -1990, invited applications for ad hoc appointment against the said vacancy and selected the petitioner and appointed him as L.T. grade teacher on 15 -9 -1990. Thereafter the D.I.O.S. was requested to grant approval for the petitioners appointment. The D.I.O.S. did not grant the approval for petitioner's appointment and, on the other hand, returned the papers on 18 -9 -1990 to the management for removing the deficiency in the requisition form. The management accordingly removed the deficiency and again submitted papers to the D.I.O.S. on 1 -10 -1990 for forwarding them to the Commission, for selection of L.T. grade teacher. As the D.I.O.S. did not grant approval to the petitioner's appointment and no salary was paid to him, he filed this writ petition for a writ of mandamus directing the respondent No. 1 to pay him the salary as and when falls due alongwith arrears with effect from 17 -9 -1990. A counter -affidavit has been filed by the D.I.O.S. and the petitioner has filed rejoinder -affidavit in reply thereto. I have heard the learned counsel for the parties. Learned counsel for the petitioner has made three submissions; namely (i) As the petitioner was appointed by the management under Section 18 of the U.P. Secondary Education Services Commission and Selection Board Act, 1982 (hereinafter referred to as the Act), he is liable to be paid the salary; (ii) even if the appointment of the petitioner is not treated as valid appointment under Section 18 of the Act, his appointment can be justified under Removal of Difficulties Order, 1981; and (iii) in any case the petitioner has been working as L.T. grade teacher in the college from 17 -9 -1990. and as such he is entitled for the payment of salary. Learned Standing Counsel has however, disputed the aforesaid submissions.
(2.) THE first submission of the learned counsel for the petitioner, cannot be accepted. Section 18(1) of the Act which provides for ad hoc appointment of a teacher during the pendency of selection by the Commission, is as follows: 18 (1). Ad hoc teachers. - -Where the management has notified a vacancy to the Commission in accordance with the provisions of this Act, and - - (a) The Commission has failed to recommend the name of any suitable candidate for being appointed as a teacher specified in the Schedule within one year from the date of such notification; or (b) The post of such teacher has actually remained vacant for more than two months, then, the management may appoint, by direct recruitment or promotion, a teacher on purely ad hoc basis from amongst the persons possessing qualifications prescribed under the Intermediate Education Act, 1921, or the regularisations made thereunder. The management has got power of making ad hoc appointment under Section 18 only when the vacancy has been notified to the Commission in accordance with the provisions of the Act and the Commission has failed to recommend the name of any suitable candidate within one year from the date of such notification or the post of such teacher has actually remained vacant for more than two months. In the instant case the management has sent the requisition/notification alongwith its letter dated 2 -7 -1990 to the D.I.O.S. for forwarding it to the Commission for selection of a regular L.T. grade teacher. This was received in the office of the D.I.O.S. on 15 -7 -1990. The D.I.O.S. by letter dated 18 -9 -1990 returned the papers to the management as the requisite information's and particulars have not been given alongwith the requisition by the management on account of which the same could not have been transmitted to the Commission for selection of a teacher. The management thereafter removed the deficiency by letter dated 1 -10 -1990. As mentioned above, Section 18 of the Act applies only "where the management had notified the vacancy to the Commission in accordance with the provisions of this Act". Rule 4 of the U.P. Secondary Education Services Commission Rules, 1983 (hereinafter referred to as the Rule) requires intimation to be given to the Commission in the proforma given in appendix -A. The necessary particulars given in Rule 4 and appendix -A are required to be supplied by the management and unless the material particulars are given, it cannot be said that the vacancy has been notified to the Commission in accordance with the provisions of the Act. The first notice dated 2 -7 -1990 cannot be said to be valid notice, notifying the vacancy to the Commission, due to lack of proper material and information. Under law the management shall be treated to have notified the vacancy to the D.I.O.S. only on 1 -10 -1990 i. e. the date on which the notification was sent by the management to the D.I.O.S. after removing the deficiency. The appointment of the petitioner was made on 15 -9 -1990 i.e. before notifying the vacancy on 1 -10 -1990. The petitioner's appointment as such cannot be justified under Section 18.
(3.) THE second submission of the learned counsel also deserves rejection. Under Removal of Difficulties Order, 1981 the applications have to be invited by the D.I.O.S. and selection has to be made under the personal supervision of the D.I.O.S., in accordance with the provisions laid down in para 5 of the said Order. In the instant case, the applications were invited by the management and the selection was made by the management and as such the appointment of the petitioner cannot be said to be an appointment made in accordance with para 5 of the Removal of Difficulties Order, 1981.;