Shishir Kumar, J. - (1.) The present writ petition has been filed for issuing in the nature of certiorah quashing the order dated 22.2.2002 (Annexure 4 to the writ petition) passed by the District Inspector of Schools and issuing a writ in the nature of mandamus directing the respondents to pay the arrears of the petitioner's salary with effect from 22.4.1991 and future salary as and when it falls due.
(2.) The facts arising out of the present writ petition are that the G.N.K. Inter College, Kanpur Nagar is a recognized institution under the U.P. Intermediate Education Act and receives grant-in-aid from the State Government for the purposes of payment of salary to the teachers and employees of the institution. There are 23 sanctioned posts of L.T. grade teachers and eight posts of C.T. grade teachers in the institution. One Sri Shanker Dayal Pandey, who was a teacher in L.T. grade in the institution was given ad hoc promotion in the lecturer grade with effect from 17.2.1986. Sri Shyam Bihari Singh, who was working as Assistant teacher in C.T. grade in the institution with effect from 22.1.1977 was given ad hoc promotion in L.T. grade due to the vacancy caused by the promotion of Sri Shanker Dayal Pandey in the Lecturer grade. Sri Shyam Bihari Singh after completing 10 years of service in C.T. grade automatically became L.T. grade teacher and he was absorbed in L.T. grade teacher with effect from 22.1.1987. The C.T. grade in which he was appointed substantially became a dying cadre on completion of his 10 years of service. As a result of the absorption of Sri Shyam Bihari Singh in L.T. grade the post which had fallen vacant in L.T. grade on account of ad hoc promotion of Sri Shanker Dayal Pandey in Lecturer grade fell vacant again. Sri Shanker Dayal Pandey was working as ad hoc Lecturer when the service of Sri Shyam Bihari Singh was absorbed in L.T. grade with effect from 22.1.1987. The vacancy of ad- hoc teacher in L.T. grade was advertised on the notice board as provided in U.P. Secondary Education Service Commission (Removal and Difficulties) Order (II), 1981. The Selection Committee was constituted by the management of the institution and the name of the petitioner was recommended for appointment. The papers of selection were forwarded to the District Inspector of Schools on 6.5.1991 which were received in the office of the respondent No. 1 on the same, day. The District Inspector of Schools has not taken any decision in the matter within seven days from the date of receipt of the papers, therefore, treating that as the approval in view of the provision contained in Sub-clause (iii) of Paragraph 2 of the IInd Removal of Difficulties Order appointed the petitioner on 13.5.1991 and on the same day, the appointment letter was issued to the petitioner. The petitioner joined his duties and since then the petitioner is continuously working in the said institution. In view of the provision contained in Section 33 of the U.P. Secondary Education Service Selection Board Act, the services of the petitioner are liable to be regularized. The principal of the institution forwarded the salary bills of the petitioner but the same were not passed on the ground that the District Inspector of Schools had not granted financial approval to the petitioner's appointment. Left with no option petitioner filed a writ petition before this Court which was numbered as Writ Petition No. 30622 of 1991 for payment of salary which was finally disposed of vide its order dated 7.4.1998 directing the District Inspector of Schools to take decision in the matter within a period of three months. The petitioner and the manager of the institution were called upon by the District Inspector of Schools for hearing into the matter on 2.1.2002, on which date the petitioner submitted his written submission. The respondent No. 1, District Inspector of Schools, Kanpur Nagar by its order dated 22.1.2001 has refused to grant financial approval to the petitioner's appointment. A copy of the same has been filed as Annexure 4 to the writ petition.
(3.) It has been contended on behalf of the petitioner that at the time of petitioner's appointment, 26 teachers were working in L.T. and C.T. grade, 18 teachers were working in L.T. grade and 8 teachers in C.T. grade of against 23 Sanctioned post in L.T. grad and 8 sanctioned post of C.T. grade. The District Inspector of Schools has clearly ignored the sanctioned post of teachers of L.T. and C.T. grades and determining the permissible strength of teachers in two grades according to the standard prescribed on the basis of strength of students of the institution in the year 2001-2002 and came to the conclusion that the teachers already working were surplus and in excess and therefore, there was no vacant post. The District Inspector of Schools had to determine the vacancy on the basis of sanctioned post and the number of teachers working in the institution. Since the number of sanctioned post of L.T. grade was 23 and number of teachers already working in L.T. grade was only 18 at the time of vacancy arose in the year 1991 when the petitioner was appointed, therefore, there were five vacant post in L.T. grade. The contrary view of the District inspector of Schools is misconceived. The view taken by the District Inspector of Schools that Sri Shyam Bihari Singh was promoted in L.T. grade in the vacancy caused by promotion of Sri Shanker Dayal Pandey in the Lecturer grade on ad-hoc basis and therefore, the appointment of the petitioner could not be made against the said post is incorrect. Sri Shyam Behari Singh was no doubt given ad-hoc promotion in L.T. grade in vacancy caused by ad-hoc promotion of Shanker Dayal Pandey in lecturer grade. But the substantive appointment of Sri Shyam Behari Singh in C.T. grade continued and after completing 10 years of substantive service in C.T., grade automatically became an L.T. grade teacher. The post hold by him in C.T. grade stood upgraded in L.T. grade with effect from 22.1.1987 on his completion of 10 years substantive service in C.T. grade.;