R.M.Sahai, J. - (1.) Facts giving rise to this writ petition for Mandamus or direction to opposite parties to treat the petitioner in service of the institution and to pay his salary regularly from 18th March, 1976 appear more or less to be undisputed. One R. N. Sahi was lecturer in Hindi in Sewa Samiti, Banwari Lal Inter College. He applied for leave on 1st June, 1975 as he had been appointed Principal in another institution. In vacancy thus caused petitioner after regular selection was appointed on 1st Oct., 1975. On 19th March, 1976 petitioner received a letter from the Principal that his services were being terminated with effect from 17th March as his appointment was ad hoc only. The petitioner made a representation on the very next day to the manager and claimed that his appointment having been made against leave vacancy he was entitled to continue under Removal of Difficulties Order issued by the Government tip 30th June, 1976. On this manager of the institution passed an order that as petitioner was appointed in leave vacancy his case needed re-examination. He further permitted him to continue till 20th May, 1976. A resolution was also passed on 26th May, 1976 by the Committee of Management extending the services of the petitioner. All this controversy arose because it is alleged that the Principal and the District Inspector of Schools were interested in promotion of one Surendra Singh who was working in C. T. Grade. Correspondence went on between the Inspector of Schools and the Manager. The former insisting for promotion of Surendra Singh and approval of petitioner in L. T. Grade whereas latter resisting it as Surendra Singh was not qualified. In counter-affidavit filed on behalf of Inspector of Schools it is not denied that Surendra Singh was not qualified for being promoted as L. T. grade teacher in Hindi but he wanted him to be promoted as Sanskrit lecturer for which he probably was qualified and the petitioner appointed in his place. Due to unreasonable insistence of the Inspector of Schools the Manager of the institution sent copies of his letter expressing inability to promote Surendra Singh to the Deputy Director of Education and Minister of Education as well. This appears to have resulted in an order by the Deputy Director of Education for payment of salary of the petitioner which had not been paid since the date of his appointment. The District Inspector of Schools passed an order on 25th March, 1976 that although vacancy of Hindi teacher was to be filled by senior-most teacher of the institution but as the petitioner had been appointed and has worked till 17th March, 1976 it was appropriate to accord approval to his appointment for the period and pay his salary as well. Although appointment was approved and salary was paid but the Inspector wrote a letter to the Manager on 12th April, 1976 that due to legal difficulties the appointment of the petitioner could not be approved. But as he was being continued by the college the responsibility of paying his salary shall also be theirs. From herein begins another set of representations by the petitioner to Committee of Management and the Inspector of Schools. The former accepting it and latter rejecting it. Final order was passed on 24th Sept, 1976 by the Inspector of Schools refusing to accept recommendation of the Committee of Management and holding that the petitioners appointment was illegal. It is against the order and the refusal of the Inspector of Schools to pay the petitioner his salary that he has approached this Court.
(2.) From what has been narrated above it is apparent that the petitioner was appointed in leave vacancy on 1st Oct., 1975. The Inspector of Schools granted approval to petitioners appointment from 1st Oct., 1975 to 17th March, 1976. His services were continued by the Committee of Management by resolutions passed from time to time. A letter was sent on 3rd May, 1976 intimating the Inspector of Schools that the petitioner has been permitted to continue till 30th Sept., 1976. By letter dated 12th Sept., 1976 petitioner was informed that he has been appointed oh probation for one year that is 1st Oct., 1976 to 1st Oct., 1977. Therefore the petitioner has been in continuous service as lecturer in L. T. Grade from 1st Oct., 1975. The right of the petitioner to get any direction by this Court depends on (whether) by his continuing in service from Oct., 1975 he acquired any right to the post and whether the Inspector of Schools in refusing to recognise him as teacher of L. T. grade committed any error and in refusing to pay his salary he violated some law and failed to perform his duty as required by the Intermediate Education Act and Regulations framed thereunder.
(3.) In academic year 1974-75 Government had prohibited any college or school from appointing any lecturer. On August 18, 1975 Removal of Difficulties Order was issued permitting Committee of Management to fill a substantive or leave vacancy on ad hoc basis for a period of six months. By Second Removal of Difficulties Order dated 17th Feb., 1976 this period was extended till 30th June, 1976. This was again extended till 30th Sept., 1976 and finally 15th Nov., 1976 by Third and Fourth Removal of Difficulties Order issued on 28th June and 26th Sept. 1976 respectively. And then came fifth Removal of Difficulties Order on 27th Nov 1976. Sub-clause (3) of the Order provided that where any person was appointed by the Committee of Management as a teacher on or before June 30, 1975 for any period as a temporary measure with the approval or permission of the Inspector and such person has worked thereafter up to Nov. 15, 1976 he shall be deemed to have been appointed in substantive capacity in circumstances mentioned in the order. As this order safeguarded interest of only those teachers who had been appointed prior to June, 1975 the Government issued sixth Removal of Difficulties Order on 22nd June, 1977 protecting the interest of teachers appointed under first or second Removal of Difficulties Order and permitting them to continue till 20th May, 1977, provided they held the post on 31st Dec., 1976 and no appointment had been made after the said date. All this finally culminated in addition of S. 16-GG to the Intermediate Education Act by U.P. Act No. 5 of 1977 with effect from 21st April, 1977. Sub-sec. (1) of which is extracted below:- "16-GG. Regulation of appointment of ad hoc teachers.- (1) Notwithstanding anything contained in Sections 16-E. 16-F and 16-FF, every teacher of an institution appointed between Aug. 18, 1975 and Sept. 30, 1976 (both dates inclusive) on ad hoc basis against a clear vacancy and possessing prescribed qualifications or having been exempted from such qualifications in accordance with the provisions of this Act shall with effect from the date of commencement of this section, be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of his appointment up to the commencement of this section. Explanation.- For the purposes of this sub-section, the period during which any break is service of teacher has occurred between the date of his ad hoc appointment and the date of commencement of this section for any reason not arising out of his misconduct or his own violation shall be disregarded: Provided that nothing in this section shall be construed as entitling such teacher to any pay or allowance for any such period of break in his service. (2) and (3) ...................";