- (1.) SABHAJEET Yadav, J. By this petition, petitioner has sought relief of mandamus directing the respondents to pay henceforth the salary of the petitioner month to month and arrears of salary alongwith other benefits permissible under law since the initial date of his appointment on the post of lecturer in Civics in the institution in question.
(2.) THE brief facts leading to the case are that one post of lecturer in Civics in Kisan Inter College, Babhnan District Basti fell vacant on account of retirement of one Sri B. P. Srivastava lecturer in Civics, who retired on 30-6-1990. It is not in dispute that the institution is recognised Intermediate College under the provisions of U. P. Intermediate Education Act, 1921 and receiving grants-in-aid out of State fund, thus the liability for payment of salary of teachers and other employees of the institution is upon the State Government under the provisions of U. P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971. According to the petitioner's case the Committee of Management of the institution vide its resolution dated 1-7-1990 resolved to send the requisition to the U. P. Secondary Education Services Selection Commission/board hereinafter referred to as Commission/board in pursuant thereto on 2-7-1990 requisition was sent to the Commission/board for holding selection to fill up the said vacancy but Commission/board has failed to recommend any name within time prescribed for the same. Thus finding no alternative, the Committee of Management of the institution after advertising the vacancy in one newspaper has held the selection for the said vacancy and selected the petitioner on the post of lecturer in Civics as the petitioner was fully eligible and qualified for the post and thereafter appointed the petitioner on ad hoc basis on the post of lecturer in Civics vide order dated 8-1-1991 in pursuance of which the petitioner has joined his post on 24-1-1991, immediately thereafter the papers were sent for approval to the District Inspector of Schools, Basti on 25-1- 1991. THE District Inspector of Schools, Basti did not approve the appointment of petitioner on the post of lecturer in Civics for considerably long time, despite several representations and reminders sent to him. Finding no alternative the petitioner submitted a representation to the Principal Secretary, Secondary Education, Government of Uttar Pradesh who directed on 1-1-1996 to Director of Education for taking necessary action in the matter, thereupon Director Education on 25-1-1996 directed the District Inspector of Schools, Basti for taking necessary action regarding the payment of salary of the petitioner. It is further stated that the District Inspector of Schools after hearing the petitioner and parties concerned has ultimately decided the dispute, whereby the petitioner's representation was allowed and petitioner's appointment on ad hoc basis on the post of lecturer in Civics was approved vide detailed order dated 8-8-1997. A copy of the order dated 8-8-1997 is on record as Annexure-5 of the writ petition. It was also indicated in the order of approval that one Sri Kamala Prasad Singh who was L. T. Grade teacher in the institution and sought promotion on the post of lecturer in place of petitioner and objected the appointment of petitioner, has withdrawn his writ petition on 25-3-1996 as he has also been promoted as lecturer in History. It is further stated that despite approval granted by District Inspector of Schools on 8-8-1997, the salary of petitioner was not paid, then petitioner has again represented the matter before Education Minister, thereupon who has directed the Joint Director Education on 16-7-1998 for making payment to the petitioner. It is further stated that the Special Secretary to Government also wrote a letter to the Director Secondary Education on 27-1- 1999 directing the District Inspector of Schools for making payment of salary to the petitioner in pursuance thereof on 22-3- 1999 the respondent No. 1 passed an order directing for payment of salary to the petitioner from the date of order itself. The copy of letter dated 21/22-3-1999 passed by District Inspector of Schools is on record as Annexure-10 of the writ petition. It is further stated that despite aforesaid direction the salary of petitioner was not paid. Ultimately the petitioner again represented to the respondent No. 1 on 15-9-1999, thereupon the respondent No. 1 has summoned the record from the respondent No. 3 but of no avail. Thereafter the petitioner has again moved various representations to the authorities concerned and ultimately finding no favour with them filed above noted writ petition before this Court. A detail counter-affidavit has been filed on behalf of respondents in the writ petition, wherein the allegations contained in various paragraphs of writ petition have been refuted and denied inasmuch as in paras 3 and 13 of the counter- affidavit, it has been specifically stated that original record in respect of alleged order of approval of petitioner dated 8-8- 1997 (Annexure-5 of writ petition) and order dated 21/22-3-1999 passed by respondent No. 1 in respect of payment of salary to the petitioner with immediate effect (Annexure-10 of the writ petition) are not available in the office, therefore, genuineness of aforesaid orders cannot be verified and no finality can be attached thereon. Besides this, the petitioner's appointment was made not in accordance with the provisions of law, inasmuch as the vacancy was also not advertised in two daily newspapers having adequate circulation in Uttar Pradesh, rather advertised in one local newspaper alone. Due to the aforesaid reasons, the payment of salary to the petitioner could not be made.
(3.) HEARD Sri B. S. Pandey, learned Counsel for the petitioner and learned Standing Counsel for the respondents. I have given thoughtful consideration to the submissions of learned Counsel for the parties and also perused the record. The first question involved in this case is that as to whether the petitioner has been validly appointed on the post of lecturer in question or not? Unless petitioner's appointment on the post in question is held to be valid in accordance with the provisions of law, no direction for payment of salary from State exchequer can be given in his favour. In this connection it is pointed out that the undisputed facts of this case itself reveal that the petitioner's appointment on the post of lecturer on ad hoc basis in Civics was made against a substantive vacancy on 8-1- 1991 caused on account of retirement of earlier lecturer in Civics on 30-6-1990. According to the petitioner's own case the Committee of Management had advertised the aforesaid vacancy in only one newspaper and selection of petitioner was made by the Committee of Management of the institution. At the relevant point in time the appointment of teachers and head of institution, recognised under the provisions of U. P. Intermediate Education Act, 1921 was governed by the provisions of U. P. Secondary Education Service Commission and Selection Board Act, 1982 hereinafter referred to as Act 1982, and under the provisions of Section 18 of the said Act although the Committee of Management of the institution was entitled to make appointment against substantive vacancy of teachers on ad hoc basis by direct recruitment or by promotion but power of selection for direct recruitment was with the District Inspector of Schools under the provisions of U. P Secondary Education and Services Commission Removal of Difficulties Order, 1981 i. e. (Removal of Difficulties) First Order, 1981 wherein the District Inspector of Schools was empowered to hold selection of teachers in L. T. Grade or as lecturer and recommend the name of selected candidate to the Committee of Management for making such appointment in the manner provided under para 5 of First Removal of Difficulties Order, 1981. The Committee of Management was not empowered to hold selection for direct recruitment to fill up the post of teachers i. e. L. T. Grade or lecturers against substantive vacancies caused on account of death, retirement or resignation of such teachers working in the institution. The Committee of Management was no doubt empowered to make ad hoc appointment but against short term vacancy caused on account of grant of leave or suspension etc. duly approved of District Inspector of Schools. Since the vacancy in question was admittedly of substantive in nature, therefore, the Committee of Management of the institution had no authority under law to hold selection for making appointment of the petitioner against substantive vacancy on ad hoc basis through direct recruitment.;