A. N. Varma, J. - - (1.) THIS petition was filed on December 5, 1984 for a direction that the respondents be asked to pay the petitioner's salary for the post of Assistant Clerk in the concerned institution (for the period beginning August 6, 1984) on which, it was alleged, the petitioner had been appointed to the said post. A further relief restraining the respondents from making any selection or appointment to the post of Assistant Clerk in pursuance of an advertisement published on November 30, 1986 was also claimed.
(2.) IN the petition the Managing Committee of the institution was arrayed as, respondent no. 2. The said respondent did not file any counter affidavit. A counter affidavit was, however, filed by the District INspector of Schools, Deoria. After hearing learned counsel for the parties the petition was dismissed by a judgment and order dated February 11, 1986. Against this order the petitioner appealed to the Supreme Court which, by its order dated September 16, 1986, set aside the order of the High Court and remitted the matter back to the High Court with a direction to permit respondent no. 2 (Management) to file its affidavit in reply to the petition with leave, to the petitioner to file rejoinder affidavit in reply thereto. Lallan Singh arrayed as respondent no. 4 in the petition as well as in the appeal before the Supreme Court was also permitted by the Supreme Court to file a further affidavit. Lallan Singh was claiming to be entitled to be appointed substantively on the said post by virtue of the fact that he was already working on the same and, therefore, entitled to be absorbed therein under certain Government orders. After the remand of the case the respondent no. 2 (the Management) put in appearance and filed an affidavit of the present manager, namely, Jugul Kishore Singh, in reply to the averments made in the petition. The petitioner on his part filed a rejoinder affidavit in reply thereto. Lallan Singh and Sri Abhai Nandan Singh, the erstwhile manager, also filed counter affidavits after the remand of the case. Sri Abhai Nandan Singh has supported the case of the petitioner, while Lallan Singh is contesting the same. Before we set out the pleadings of the parties certain facts which are not in dispute may be mentioned. The controversy is about the petitioner's alleged appointment to the post of an Assistant Clerk in Sunari Intermediate College which is a recognised institution, and having been brought in the list of institutions receiving grant from the Government with effect from January 1984, the payment of salaries to its teachers and employees is governed by the provisions of U. P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971.
(3.) SHORTLY, the petitioner's case is that in pursuance of a notice pasted on the notice board of the college inviting applications for the post of an Assistant Clerk candidates were called for interview on August 5, 1984 at which he was selected and on the same date a resolution was passed by the Committee of Management whereupon a letter of appointment was issued to him the same day and he joined the College the next day, that is, August 6, 1984. By means of a letter dated August 12, 1984 the manager of the institution forwarded the papers relating to the petitioner's selection and appointment to the District Inspector of Schools seeking the necessary financial approval. Though he received the papers on August 25, 1984, the District Inspector of Schools neither approved nor disapproved the appointment of the petitioner and the matter was kept in abeyance. Thereupon Sri A. N. Singh, the manager of the institution, issued a fresh advertisement which was published in two newspapers on October 25, 1984 inviting applications for appointment to two posts of Assistant Clerks fixing November 11, 1984 for interviews. The advertisement states that those already working on the said post may also be present on that date along with the original certificates for interview. At this selection again the petitioner was selected and necessary papers seeking financial approval of the District Inspector of Schools were forwarded to him but no action was taken thereon. The petitioner himself made a representation to the District Inspector of Schools claiming his salary for the period beginning August 5, 1984 but there was no response. Hence this petition. It may be mentioned that the petitioner's claim for the salary was founded entirely on his alleged appointment letter dated August 5, 1984. The main contention was that though validly appointed on August 5, 1984, the District Inspector of Schools was neither approving the proposal nor disapproving it and was wrongly declining to pay his salary. However, by means of a supplementary affidavit filed on February 4, 1985 the petitioner brought on record two orders passed by the District Inspector of Schools dated November 12, 1984 and November 27, 1984 alleging that these orders were issued after the filing of the petition. By the order dated November 12, 1984 the District Inspector of Schools refused to approve the alleged proposal sent by the manager of the institution on the ground that there were two posts of Assistant Clerks and that till the employees already working on the post were absorbed, the question of direct recruitment did not arise. By the second order dated November 27, 1984 the District Inspector of Schools simply informed Sri A. N. Singh that since a new Committee of Management had been elected that action would be taken only on communications received under the signatures of the new manager. In the supplementary affidavit though these orders were generally criticized the petitioner did not seek amendment of the petition specifically bringing under these orders or claiming a further relief by quashing the same. However, learned counsel did challenge these orders in his oral submission, on which we shall make our comments later, inspite of vehement objection of the counsel for the respondents on the ground that without amending the petition, the petitioner ought not to be permitted to challenge these orders. As, however, the parties appear to have been fully aware of this challenge as disclosed by their affidavits, we permitted the petitioner to address us on the validity of the said orders.;