- (1.) R. H. Zaidi, J. The petitioner filed this petition under Article 226 of the Constitution of India for issuance of a writ, order or direction in the nature of mandamus commanding respondent not to permit the petitioner to continue as Assistant Teacher, to pay his salary and to consider him for regular appointment on the said post,
(2.) IN brief, it was pleaded that in the educational institution known Mewa Lai Gupta Poorv Madhyamik Vidyalaya Gorakhnath, District Gorakhpur (hereinafter referred to as the school) two pasts of Assistant teachers fell vacant in the year 1988. One post out of the two was reserved for the candidates belonging to the scheduled caste. The post were adver tised on 8-5-1988. IN the advertisement it was mentioned that one of the said posts was reserved for scheduled caste candidate. Petitioner belongs to scheduled caste and possessed requisite qualifications, applied for his ap pointment. The petitioner was called upon to appear before the selection committee which was constituted in accordance with law under the super vision of A. D. I. , Gorakhpur, he appeared on 25-9-1988. The result of the said selection was not declared, however, the petitioner was appointed as teacher on ad hoc basis and joined his duties w. e. f. 6-12-1989. However, no letter of appointment was issued by the committee of management in his favour. The respondent instead of issuing the letter of appointment in favour of the petitioner have been threatening to appoint other persons of their choice, consequently, the petitioner approach this Court and filed the present writ petition and prayed for the reliefs noted above. This Court vide order dated 11-10-1991 permitted the petitioner to appear provisionally before the selection committee in the interview for the appointment of Assistant teachers in the college. The petitioner also filed an application dated 8-11-1994 for amendment of the writ petition, by means of which he wanted to bring on record of the present petition the subsequent events which took place after filing of the writ petition to add the grounds and also to amend the prayer clause. The amendment application was also heard along with the writ petition. In the affidavit filed in support of the amendment application it was stated that the petitioner possessed the degrees of B. A. , and B. Ed, he was fully qualified for the post in question. Vide order dated 14-5-1991 the Basic Shiksha Adhikari approved the appointment of the petitioner only for six months i. e. from 17-11-1992 to 15-5-1993 and simultaneously directed the management to re-advertise the post but the same was not re-advertised and the petitioner was working on the said post, but no salary was paid to him in spite of his representation made to the committee of management and to the Basic Shiksha Adhikari. Management is also alleged to have written letter to the District Basic Shiksha Adhikari dated 18-7-1994 but Basic Shikbha Adhikari shown his inability to grant permission to make appoint ment saying that since the institution was already upgraded as High school he had no authority to grant the permission. The school was stated to be upgraded since 1993-94 but the recognition was granted without financial support (Vitti Vihin) on account of which no post at High School level could be created. It was also stated by the petitioner that the appointment of Subash Chandra Tiwari was also approved by the Basic Shiksha Adhikari under the similar circumstances by his order dated 14-5-1991 and he has also filed the writ petition No. 20910 of 1992. On the application made by Shri Subhas Chandra Tiwari this Court vide order dated 18-6-1992 permitted him to continue to work on the post in question even after 30-6-1992 and directed the respondents not to make appointment of any one on his post. The said writ petition was finally decided by this Court on 31-8-1995. It was held that the post, which fall vacant on account of Shri Akhilesh Kumar's joining Railways, was liable to be re-advertised and appointment on the same be made in accordance with law. The petitioner claims that he was the only scheduled caste candi date, therefore, he was fully qualified to be appointed on the said post. Therefore, he also prayed for the following relief :- "to issue a writ of mandamus order or direction in the nature to mandamus commanding the respondent to continue the peti tioner as Assistant Teacher and pay his salary regularly and to pay his arrears of salary till regular selection on the post is held. "
(3.) IN the present case counter-affidavits has been filed only on behalf of the committee of management. IN the said counter-affidavit it has been stated that the INstitution was Junior High School and the provisions of U. P. Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978 were applicable to it. IN the year 1993-94 INstitution was upgraded as High School and the High School Classes were permitted to be opened by the District INspector of Schools for literary subjects only, on the conditions that expenditure in respect thereof will be borne by the management. Now the provisions of U. P. INtermediate Education Act, 1921, were applicable to it and not that of Basic Education Act. The other facts stated in the writ petition were also controverted and in brief it was stated that the appointment of the petitioner in Junior High School was on ad hoc basis and the same was approved only for six months and it was further stated that the Committee of Management was willing to make appointment in accordance with rules but it was unable to do so on account of change of status of the Institution.;