- (1.) Heard Sri Sanjay Srivastava, learned counsel for the appellant, learned Standing Counsel appears on behalf of respondent no.1A and 3 and Sri Vikas Budhwar appears on behalf respondent no.2.
(2.) By means of present appeal, the appellant has challenged the order dated 25th May, 2004 passed by learned Single Judge in the Writ Petition No.36918 of 1993, whereby the writ petition filed by the petitioner has been dismissed.
(3.) It is the case of the petitioner that the Committee of Management, respondent no.2 appointed the petitioner on the post of clerk on 01.06.1992. The petitioner joined the post on 04.06.1992. Shri Saraswati Uchchtar Madhyamik Kanya Vidyalay, Neelkanth, Varanasi is a recognised institution and is Government aided. When salary has not been paid to the petitioner, he filed writ petition seeking mandamus to the respondent no.2 to make payment of salary to the petitioner which is due since 04.06.1992 and also salary from time to time whenever it falls due. The respondent no.1, Regional Inspectress of Girls Schools, Vth Region,Varanasi filed the counter affidavit. In paragraph 6 of the counter affidavit, it is stated that Education Act is mandatory provision and also specific Government Order issued by the State Government dated 23rd September, 1981 and the respondent office's letter dated 08.01.1988, it is clear that no fresh appointment on substantive vacancy can be made by the Committee of Management. The said provision clearly shows that on the said post only person who died during service period, his legal heir is entitled to be appointment on the said post under dying in harness rules. The appointment of the petitioner was made by the Committee of Management on the post of clerk is without consent of the respondent no.1 and is illegal and without jurisdiction.;