- (1.) This Special Appeal is directed against the judgment and order dated 27 August 2012 of a learned Judge of this Court by which Writ Petition No.10251 of 1993 that was filed by the appellant to assail the order dated 17 February 1993 of the District Inspector of Schools was dismissed. It transpires from the records that Raja Ram Yadav, who was working as a Lecturer in Economics in Shri Purshottam Singh Inter College, Rajendra Nagar, Farrukhabad, -the College10.8.2015 retired on 30 June 1991. This substantive vacancy was sought to be filled up on ad- hoc basis by the Committee of Management of the College by promoting Bireshwar Singh, who was working as an Assistant Teacher in the College. Thereafter, the Committee of Management claims to have filled up the resultant short term vacancy on the post of Assistant Teacher by granting ad-hoc appointment to the writ petitioner on 26 August 1991. The District Inspector of Schools, however, denied payment of salary to the writ petitioner as a result of which a writ petition was filed which was disposed of on 20 October 1992 by directing the District Inspector of Schools to decide the representation submitted by the writ petitioner. This representation was rejected by the District Inspector of Schools by order dated 17 February 1993. The District Inspector of Schools after recording that approval was granted to the ad-hoc promotion of Bireshwar Singh on the post of Lecturer only on 4 January 1992, concluded that a short term vacancy on the post of Assistant Teacher on which Bireshwar Singh was working at the time of his promotion could not have arisen prior to that date and, therefore, the appointment of the writ petitioner on 26 August 1991 prior to that date was illegal. The District Inspector of Schools also noted in the order that a ban had been imposed on appointments during the period the petitioner was granted ad-hoc appointment.
(2.) Learned Judge dismissed the writ petition for the reason that the Committee of Management could not have resolved on 30 June 1991 to grant ad-hoc promotion to Bireshwar Singh as the substantive vacancy was notified to the Uttar Pradesh Secondary Education Services Selection Board by the Committee of Management only on 20 August 1991 and for the reason that a short term vacancy could not have arisen on the post of Assistant Teacher prior to 4 January 1992 as the ad-hoc appointment of Bireshwar Singh on the post of Lecturer was approved by the District Inspector of Schools on that date. Thus, it was held that the writ petitioner, who claims to have been appointed against that short term vacancy, could not have been appointed on 26 August 1991 and that too without compliance of the conditions stipulated in paragraph 5 (2) of the The Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, -the First Order. Learned counsel for the appellant has submitted that the view taken by the learned Judge that a short term vacancy could have arisen only after 4 January 1992 when approval was granted to the promotion of Bireshwar Singh on the post of Lecturer on account of the retirement of Raja Ram Yadav on 30 June 1991 is not correct in view of the decision of the Full Bench of this Court in the case of Radha Raizada and others vs. Committee of Management, Vidyawati Darbari Girl s Inter College and others, 1994 3 UPLBEC 1551 . It is also his submission that a ban on making appointment was imposed on 30 August 1991 but the writ petitioner had been appointed as an Assistant Teacher on 26 August 1991 prior to that date. The submission, therefore, is that the writ petitioner was entitled to payment of salary as he had been duly appointed in accordance with the procedure prescribed and, accordingly, the impugned order dated 17 February 1993 passed by the District Inspector of Schools to reject the representation filed by the petitioner for payment of salary deserved to have been set aside by the learned Judge.
(3.) Learned Standing Counsel appearing for the respondents has, however, pointed out from the averments made in the counter affidavit and the documents annexed thereto that Bireshwar Singh was actually granted ad hoc promotion on the post of Lecturer by the Committee of Management only on 8 September 1991 and this resolution was submitted to the District Inspector of Schools with a letter dated 19 November 1991. It is, therefore, the submission of the learned Standing Counsel that a short term vacancy on the post of Assistant Teacher could not have arisen prior to 8 September 1991 and, as such the writ petitioner could not have been appointed against that short term vacancy on 26 August 1991. It is also the submission of the learned Standing Counsel that the procedure as contemplated under the provisions of The Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981, the Second Order particularly that contained in paragraph 2 was not followed and, therefore, the appointment of the writ petitioner was void. We have considered the submissions advanced by learned counsel for the parties.;