Anjani Kumar - (1.) -This writ petition was dismissed by me vide my order dated 14th August, 2002, for the reasons to be recorded later on. Now here are the reasons for dismissing the aforesaid writ petition.
(2.) BY means of the present writ petition under Article 226 of the Constitution of India, petitioner has prayed for the following reliefs : "(1) to issue a writ, order or direction in the nature of certiorari, calling for record of the case and quashing the impugned order of respondent District Inspector of Schools dated 1/3.7.1995 (Annexure-8) including proceedings preceding the same and consequent thereto. (2) to issue a writ, order or direction in the nature of mandamus, commanding the respondents and in particular respondent District Inspector of Schools to accord its financial approval to the appointment of the petitioner on the post of Assistant Teacher L.T. grade in the college in question with effect from the date of appointment of the petitioner viz. 1.2.1995. (3) to issue ad interim mandamus, staying operation of the order of respondent No. 2 District Inspector of Schools, Aligarh dated 1/3.7.1995, with further direction to regularly pay salary to the petitioner on the post of Assistant Teacher Mahatma Gandhi Guru Dutta Smarak Inter College, Vijaygarh, district Aligarh including arrears with effect from the date of his appointment viz. 1.2.1995, and further not to interfere with the functioning of the petitioner on the said post till filling up of the regular vacancy by U. P. Secondary Education Services Commission and Selection Board, Allahabad, and joining of the candidate so selected by it. (4) to issue any other suitable writ, order or direction, as this Hon'ble Court may deem fit and proper in the circumstances of the case to meet the ends of justice. (5) to award the costs of the petition to the petitioner." The petitioner's case is that the institution, which is a recognised institution under the provisions of U. P. Intermediate Education Act, 1921 and is governed with the provision of the aforesaid Act, the U. P. Act No. 5 of 1982 and the Payment of Salaries Act, 1971, will apply. The brief facts of the case are that in pursuance to an advertisement issued in "Dainik Jagran" dated 11.1.1995 in its Aligarh edition that applications are invited from trained graduate candidates for teaching in the institution concerned and candidates were directed to apply within a week. Pursuant to this advertisement, the petitioner applied and was selected by the selection committee in its meeting dated 1.2.1995 and the manager concerned vide its letter dated 1.2.1995 has informed the petitioner that he has been selected as Assistant Teacher in L.T. grade as ad hoc. This appointment was for a period till the regularly selected candidates recommended by U. P. Secondary Education Commission joined the post. Petitioner was directed to give his consent and join the post. Pursuant to the aforesaid letter of appointment, petitioner joined his duty on 6.2.1995. The manager of the institution concerned vide its letter dated 5.4.1995 sent the information of the ad hoc appointment of the petitioner to District Inspector of Schools for approval of the petitioner's ad hoc appointment. The manager again submitted a reminder on 23.5.1995, but according to the case set up by the petitioner neither approval, nor disapproval has been granted by the District Inspector of Schools within a period six weeks from the date when the proposal of the management was received by the District Inspector of Schools. The District Inspector of Schools vide its order dated 1/3.7.1995, Annexure-8 to the writ petition, refused to grant approval of the petitioner's appointment forwarded by the management on ad hoc basis on the ground that no financial approval can be granted to the ad hoc appointment of the petitioner because the vacancy against which the petitioner was appointed is caused due to the death of Suresh Chandra Sharma a permanent teacher on 10.7.1991 and therefore with effect from 11.7.1991 there was a substantive vacancy. Against this substantive vacancy, the district committee appointed one Nirvikar Singh as provided under law, but the management did not allow said Nirvikar Singh to join and against this substantive vacancy again appointed the petitioner Raj Kumar showing that he has been appointed on 1.2.1995. The District Inspector of Schools further gives the reasons that after the promulgation of U. P. Act No. 24 of 1992 and U. P. Act No. 1 of 1993, the management ceased to have the right to make any ad hoc appointment against the substantive vacancy. The aforesaid amendment purported to amend the provision of U. P. Act No. 5 of 1982 and Removal of Difficulties Order issued therein. The fact that there was a substantive vacancy has not been denied by the petitioner. The only case set up by the petitioner is that the District Inspector of Schools cannot refuse relief for the fault or mistake, if any, committed by the management. The petitioner cannot be blamed if he has applied pursuant to the aforesaid advertisement referred to in the writ petition and subsequent proceedings were perfectly in accordance with the provisions of law. However, learned counsel for the petitioner did not dispute the legal position that no ad hoc appointment can be made against a substantive vacancy.
(3.) LEARNED counsel appearing on behalf of the petitioner Sri B. B. Paul submitted that under the provision of U. P. Intermediate Education Act, 1921, the management has been vested with the power to make an ad hoc appointment and this issue has not been taken away with the enforcement of the U. P. Act No. 5 of 1982. This argument cannot be accepted, as there is categorical provision under the U. P. Act No. 5 of 1982 that after coming into force of U. P. Act No. 5 of 1982, no appointment shall be made in a recognised institution except of a person selected and recommended by the Commission constituted under the provision of U. P. Act No. 5 of 1982. Therefore, the argument advanced by Sri Paul is bound to be rejected and is hereby rejected. In view of what has been stated above since the management has no right to make any appointment against the substantive vacancy, the appointment of the petitioner was ab initio void and there is no error, much less error apparent on the face of record in the order passed by the District Inspector of Schools, which is impugned in the present writ petition. The writ petition, therefore, devoid of any merits and is accordingly dismissed. The interim order/orders, if any, stands vacated. However, the parties shall bear their own costs.;