- (1.) N. L. Ganguly, J. This writ petition is directed against the order, dated 12-2-1987, Annexure 4 to the writ petition, passed by the DIGS by which he has refused to approve the alleged appointment of t he petitioner in CT Grade and approval for appointment and orders for payment of salary claimed. The petitioner approached this court and stated that on account of the death of Sri Kunwarji Singh, teacher in Hindi and Sanskrit in CT Grade in Rajkiya later College, Distt. Mathura, there was a vacancy in CT Grade, Sri Kunwarji bad died on 17-10-1984. The petitioner stated that he had applied for appoint ment on ad hoc basis as Asstt. Teacher in Hindi and Sanskrit and was also given an appointment letter dated 11-8-1986. In the said appointment letter it was said that the petitioner was appointed in CT Grade, in accordance with the provisions of Section 18 of U. P. Secondary Education Service and Selec tion Board Act, 1982. The petitioner claimed to have joined w. e. f. 11-8-1986 and started taking classes and said that be has been taking classes continuously since then.
(2.) THE Committee of Management of the Institution informed the DIGS vide letter dated 11-8-1986 about the appointment of the petitioner and sought for approval. THE D1os declined to grant approval nor sanctioned his pay bills sent for payment of salary. THE impugned order dated 12-2-1987 by which the petitioner was declined payment and approval speaks that there is a substantive vacancy in the institution, in accordance with the judgment of the Hon'ble Supreme Court dated 24-7-1985 and the ordinance, dated 12th June, 1985, the vacancy in the Educational Institution of this type are to be fulfilled out of the reserve pool teachers. A request has been made by the Committee of Management for making appointment of an Asstt. Teacher out of reserve pool teachers. A person from the reserve pool teachers was nominat ed and sent to the petitioner's institution for appointment. THE Management Committee is said to have informed that person who was sent has not joined the institution. THE DIOS made it clear that the substantive vacancy in the institution is to be filled out of the reserve pool teachers list. It was, thus, said that the alleged appointment of the petitioner in CT Grade is wholly unwarranted and not in accordance with Section 18 of the Act and cannot be approved. Since the appointment given to the petitioner was in clear viola tion of the Supreme Court dated 24-7-1994 and ordinance dated 12th June, 1985 his payment of salary nor approval of the appointment was possible. The learned counsel for the petitioner submitted that the Commission for Selection of GT Grade never function and there was no occasion for selection and appointment through Commission. No regular selection through Commission could have been made. Sri S N. Srivastava further submitted that the institution was suffering immensely for want of teacher and the insti tution waited for about two years, since no appointment after communication was made out of the reserve pool teachers. The appointment was given to the petitioner No. 11-8-1986. He submitted that since there was no Commission for CT Grade, there was no option except to make appointment by taking aid of Section 18 of the Act. In the counter affidavit filed by the State that after pronouncement of the judgment of the Hon'ble Supreme Court dated 24-7-1984 the Committee of Management were deprived the appointment of teacher in substantive vacancy as the same were to be filed out of the reserve pool teachers and in case reserve pool teacher was not available, those vacancies were to be filled up after following the procedure by the DIOS himself. It has also been said in the counter affidavit that the petitioner's appointment was not approved by the DIOS on account of the reasons that the appointment was not in accordance with law and reasons that have been stated in the order impugn ed dated 12-2- 1987. It was not in accordance with Section 18 of the Act as ic does not apply to appointment of CI Grade Teachers. In the counter affidavit, it has been made clear that the Board for making selection of a teacher in CT Grade, since was not constituted and there does not arise any occasion recom mending the appointment of the petitioner to the Committee of Management, as such the appointment could only be made by the department alone or vacancy could be filled up out of the reserve pool teacher. The learned counsel for the petitioner Sri S. N. Srivastava placed the rejoinder affidavit and stated that the vacancy was duly intimated by the Management to the DIOS and requested to recommend the name of a teacher from a reserve pool teachers' list. After several letters and reminders, name of one reserve pool teacher was recommended by the DIOS in whose favour a letter for appointment was issued. He never turned up to the institution. Thereafter, the Management again requested the DIOS to recommend the name of another from the reserve pool teachers. On the basis of the DIOS, Mathura's recommendation of name of Sri Bishambhar Dayal Gupta, a letter of appointment was also sent to him through registered post by Committee of Management but the same was returned. The Management of the institution again informed the District Inspector of Schools, Mathura about the return of letter of appointment for Sri Bishambhar Dayal Gupta and again requested for another teacher from reserve pool teachers, for appointment but no other teacher was recommended. In spite of several letters and reminders which gave rise to a reasonable conclusion for managing committee of the institution that no other reserve pool teacher of Hindi/sanskrit was available and the list maintained of the Office of District Inspector of Schools was exhausted. The management after due information to the District Inspector of School appoint ed the petitioner under Section 18 of the U. P. Secondary Education Teacher Service Commission Act which is argued to be correct and valid since no other reserve pool teacher was available for a appointment. It is important to note that these facts are for the first time stated in the rejoinder affidavit. There is no whisper about it in the writ petition that letter of request and reminders were sent by the Committee of Management for sending another name of pool teacher or second or third teacher out of the reserve pool teachers. These facts have been stated for the first time in the rejoinder affidavit. I do not consider appropriate to encourage stating to some new facts for the first time in the rejoinder affidavit which could have been said at the earliest. This is nothing but taking the respondents by surprise which I do nut consider cannot be permitted. The learned counsel Sri Srivastava strenuously argued that it was apparent from the order impugned that there was no other teacher out of this reserve pool teacher otherwise it could have been said in the order itself that the names of such and such parsons out of the reserve pool teachers list, were sent and they were not given appointment. The arguments of the learned counsel list not acceptable. All possibility which may be imagined, cannot be mentioned in the order or the Dios. He was said what was relevant and necessary required under law. Had the petitioner stated these facts in the writ petition, these facts could have been easily controverted and replied, but the manner in which this argument has been raised in the rejoinder affidavit, cannot be permitted to be raised during the course of arguments.
(3.) THE learned counsel for the petitioner submitted that the matter needs further investigation and the matter be remanded or direction be given to the standing counsel to obtain instructions in this aspect whether there were other reserve pool teachers available in the District, I do not consider that such investigation and fishing after about 3 years of the filing of the writ peti tion is possible. The learned counsel for the petitioner placed Section 21-B (2) of U. P. Secondary Education Service and Selection Board Act, 1982 which reads as under : "every reserve pool teacher, who having been appointed to the post of a teacher in any institution in accordance with the provisions of the Uttar Pradesh High Schools and Intermediate Colleges (Reserve Pool Teachers) Ordinance, 1978 (U. P. Ordinance No. 10 of 1978) of the Uttar Pradesh High School and Intermediate Col leges (Reserve Pool Teachers (Second) Ordinance, 1978 (U. P. Ordi nance No. 22 of 1978), continues to be in service by reason of any order of any Court or by any other reason, shall be deemed to have been regularly appointed to such post and shall be entitled to be confirmed in such post with effect from the date on which he would have been confirmed in the normal course. ";