R.B.MISRA, J. - (1.) HEARD Sri Ashok Khare learned counsel for the petitioner as well as learned standing counsel.
(2.) IN this petition the prayer has been made quashing the order dated 23.3.1993, passed by the District Inspector of Schools, Gorakhpur (Annexure -6 to the writ petition) whereby the D.I.O.S. has refused the payment of salary by saying that the teachers of primary school could never be validly promoted to the vacant post of teachers in High School and Intermediate College. According to the petitioner, he was appointed as assistant teacher in primary section on 8th July, 1970 in Neena Thapa Inter College, Gorakhpur, a recognised and aided educational institution governed by the provisions of U, P. Intermediate Education Act, 1921 (in short called 'Act 1921') and U. P. Secondary Education Service Commission and Selection Act (Act No. 5 of 1982) and U. P. High School and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971, i.e., (U. P. Act No. 24 of 1971). The education in the aforesaid institution is imparted from classes I to XII, classes I to V are known as primary section of the college. The appointment of the petitioner in the primary section was made in the BTC grade and was placed at serial No. 2 in the order of seniority. The person at seniority No. 1 has only educational qualification of Intermediate, Whereas the education qualification of the petitioner is M.A. (Political Science) and B.Ed. and as such the petitioner has better claim of appointment as assistant teacher in L.T. grade in the said college. One Sri Markandey Singh was granted ad hoc promotion and was approved to the post of lecturer from L.T. grade temporarily and as such the short term vacancy of assistant teacher in L.T. grade came into existence, whereupon, by a resolution dated 7.6.1992 of the Management of the said college, the petitioner was appointed in the said grade. The resolution also authorised the Principal/Manager for placing the petitioner against a substantive vacancy of the L.T. grade, in case the petitioner's performance was satisfactory. The C.T. grade was declared dying cadre w.e.f. 11.8.1989 and the teachers in C.T. grade were upgraded in L.T. grade teachers and were getting their salary in the L.T. grade. On 12.11.1992, a substantive vacancy of L. T. grade came into existence in the said college by virtue of death of Sri Ram Nakshettra Rai, a permanent assistant teacher in L.T. grade. In such circumstances, the Principal of college requested to the Manager on 16.11.1992 that the petitioner be permitted to teach against the aforesaid vacancy and an order dated 17.11.1992 to that effect was passed. The Manager granted such promotion and in consequence thereto the petitioner has been continuously teaching 'Hindi' to High School Classes in the said college.
(3.) ALL papers pertaining to the appointment of the petitioner was forwarded to the District Inspector of Schools who refused to accord approval and returned the papers by the impugned order dated 23.3.1993 (Annexure -6 to the writ petition). The said refusal order referred two grounds, namely (i) there did not exist any resolution dated 7.6.1992 and (ii) no promotion is permissible from the primary section to L.T. grade pay scale.;