Sabhajeet Yadav, J. - (1.) Feeling aggrieved against the order dated 23.1.1996 passed by Deputy Director of Education (Madhyamik) Azamgarh Region Azamgarh/the respondent No. l contained in Annexure 5 to the writ petition, the petitioner has filed the above noted writ petition. A further relief in the nature of mandamus was sought for directing the Committee of Management to proceed to fill up the post of lecturer in English in the institution in question afresh.
(2.) The relief sought in the writ petition rests on the allegations that the institution in question namely D.A.V.Inter College Maunath Bhanjan District Mau hereinafter referred to as the Institution is recognised under the provisions of U.P. Intermediate Education Act, 1921, hereinafter referred to as the Act, 1921. The institution is also receiving grants in-aid out of state fund, and is recognised under the provisions of U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other employees) Act, 1971, hereinafter referred to as Payment of salaries Act, 1971. The provisions of U.P. Secondary Education Services Selection Board Act, 1982 hereinafter referred to as U.P. Act No. 5 of 1982, and various Removal of Difficulties Orders issued thereunder from time to time are also applicable in connection of appointment, promotion and disciplinary control of the teachers of the institution. The petitioner was appointed as Assistant Teacher in C.T. Grade on 19.1.1978 in the institution and similarly the respondent 4 Amar Nath Misra was also appointed as Assistant Teacher C.T.Grade in the same institution on 19.1.1978 itself. The petitioner was senior in age therefore he was senior to the respondent 4 as per Regulation 2 of Chapter 2 of the Regulations framed under the 1921 Act. It is also alleged that the petitioner has passed his M.A. Examination in English and was also trained while he was appointed on the aforesaid post. So far as the respondent 4 is concerned it is stated that he passed his M.A. Examination in English in the year 1981 after his appointment as C.T. Grade teacher in the institution. One post of lecturer in English fell vacant on 30.6.1985 on account of retirement of one Sri Bhagwat Lal Srivastava. There was no English teacher available in the L.T. Grade in the institution who could be promoted on the aforesaid vacant post of lecturer in English in the institution, consequently the Committee of Management had filled up the aforesaid vacancy by way of direct recruitment. It is alleged that the Committee of Management of the institution was interested in appointing the respondent 4 as lecturer in English on adhoc basis consequently the Committee of Management without intimating the vacancy to the U.P. Secondary Education Services Commission/Selection Board hereinafter referred to as the Commission/Selection Board as required under Section 18 of the U.P. Act No. 5 of 1982 and without following the procedure prescribed under Section 18 of the U.P. Act No. 5 of 1982 and First Removal of Difficulties Order, 1981 proceeded to appoint the respondent 4 on adhoc basis by way of direct recruitment. It is further alleged that as per the case set up by the respondent 4 himself before the Deputy Director of Education (Madhyamik), the vacancy in question was allegedly notified to the Commission by the Managing Committee on 25.6.1985. The Committee of Management thereafter passed a resolution on 20.8.1985 whereby a sub-Committee of three persons namely Brij Bihari Tandon the Manager, Raj Narain and Sri Narain Misra the Principal was constituted for selecting the candidates for appointment on the post in question in accordance with the provisions of U.P. Act No. 5 of 1982. The Committee of Management in its resolution dated 20.8.1985 also resolved that candidature of the respondent 4 for appointment on the post in question shall also be considered keeping in view the fact that he was teaching English in Intermediate Classes. The aforesaid sub-committee which was constituted by Managing Committee met on 1.9.1985 and had passed a resolution in favour of the respondent 4 selecting him for appointment on the post of lecturer in English. In pursuance of the aforesaid decision taken by the sub-committee the Manager of the institution issued an order of appointment in favour of the respondent No. 4 appointing him as lecturer in English on adhoc basis on 4.9.1985. After his appointment as lecturer in English the respondent No. 4 was not paid the salary.
(3.) Being aggrieved he filed a writ petition before this Court which was numbered as writ petition No. 2215 of 1986 Amar Nath Mishra v. District Inspector of Schools and Ors.. Initially as interim measure on 10.3.1986 a direction to pay salary to the respondent No. 4 on the post of ad hoc lecturer or show cause was issued to the respondents of the aforesaid writ petition, later on vide interim order dated 21.1.1987 the aforesaid interim mandamus was made absolute and in compliance of which the respondent No. 4 (petitioner of aforesaid writ petition) was paid his salary on the post of Lecturer. In the aforesaid writ petition counter affidavit was filed on behalf of the District Inspector of Schools, in which it was categorically stated that the appointment of the respondent No. 4 i.e. the petitioner in that case was never approved by the District Inspector of Schools, and alleged order of approval was not available on records in the office of District Inspector of Schools, therefore was doubtful. On the original order of approval dated 22.9.1995 no dispatch number was mentioned and it appears that the said order was procured by the respondent No. 4 from the outgoing District Inspector of Schools. In the aforesaid writ petition an impleadment application was filed by the petitioner of instant writ petition along with detailed counter affidavit. After hearing the counsel for the parties this Court dismissed the writ petition vide order dated 16.8.1995 (Annexure-3 of the writ petition) with the direction that the Deputy Director of Education (Madhyamik) shall examine the rival contention of aforesaid petitioner (respondent No. 4 herein) and present petitioner on merits after affording opportunity to them and further the this Court was pleased to direct that the respondent No. 4 should be paid salary in L.T. Grade keeping in view the fact that he had completed more than 10 years of service in the scale of C.T. Grade but the respondent No. 4 is not entitled to receive salary on the post of lecturer in English. Being aggrieved by the order passed by the learned Single Judge the, respondent No. 4 filed Special Appeal before the Division Bench of this Court, which was dismissed on 25.9.1995. As per the direction given by this Court the Deputy Director of Education (Madhyamik) Azamgarh after hearing the parties concerned has ultimately decided the matter vide impugned order dated 23.1.1996 (Annexure 5 to the writ petition) whereby the respondent 1 has allowed the claim set up by the respondent No. 4 and he has further held that the respondent No. 4 is entitled to be regularised on the post of lecturer in English under Section 33-A of U.P. Act No. 5 of 1982 hence this petition.;