S.U.KHAN, J. - (1.) HEARD learned counsel for the petitioner.
(2.) ACCORDING to the petitioner, a post of Lecturer fell vacant in National Inter College, Bhogaon, Mainpuri which is privately managed but government aided college and is governed by the provisions of U.P. Intermediate Education Act, 1921, Payment of Salaries Act, 1971 (U.P. Act No. 24 of 1971)and U.P. Secondary Education Service Selection Boards Act, 1982. It has further been stated that the post of Lecturer fell vacant due to retirement of Virendra Narain Saxena on 30.6.1995. Sri Naresh Kumar Saxena who at that time was working as teacher in L.T. Grade was promoted to the post of Lecturer which had fallen vacant due to retirement of Virendra Narain Saxena. According to the petitioner due to promotion of Naresh Kumar Saxena, a short time vacancy in L.T. Grade came into existence. Management advertised the said vacancy in a newspaper known by the name of Dainik Jantantra dated 13.8.1996. Petitioner claims that he was interviewed on 21.9.1996 and was selected and appointment letter was given on 29.11.1996 (Annexure-V). Documents seeking financial approval were sent to District Inspector of Schools (D.I.O.S.) through letter dated 5.12.1996. D.I.O.S. rejected the proposal through letter dated 16.12.1996 on the ground that there was a ban on appointment. Said order was set aside in writ petition No. 6994 of 1997 and D.I.O.S. was directed to decide the matter again. D.I.O.S. through order dated 8.8.1997 again rejected the representation of the petitioner. The said order has been challenged through this writ petition. In the impugned order it is mentioned that Shri Naresh Kumar Saxena had not been promoted and he was getting salary of L.T. grade as papers regarding his promotion to the post of Lecturer were pending with Regional Deputy Director of Education. Second reason given is that there was a ban imposed by the Government. Third reason given is that the appointment of the petitioner, was over and above the sanctioned strength. In that regard it has been mentioned that there are only 29 sanctioned posts of teachers in L.T. grade while in-fact 33 teachers are working i.e. 4 more than the sanctioned strength. The fourth reason is that Joint Director of Education sent the papers regarding promotion of Shri Virendra Narain Saxena to the post of Lecturer to the Selection Board and simultaneously wrote a letter dated 8.11.1996 to the management directing the management not to appoint any person at his place as number of students had fallen down. Fifth reason was that there was no scheduled caste teacher in L.T. grade in the college in question.
(3.) IN supplementary affidavit filed by the petitioner in August 2007 it has been stated that sanctioned strength of teachers in L.T. Grade in the college in question is 29 and only 27 teachers are working. In this regard some letters issued by Principal in 2002 and 2007 have been mentioned. The fact mentioned in the impugned order that in 1997 there were 33 L.T. grade teachers has not been denied. In the Supplementary counter affidavit filed in September, 2007 by the respondents 1 and 2 it has been stated that Selection Board through order dated 13.8.1997 approved the promotion of Shri Naresh Kumar Saxena to the post of Lecturer from the actual date of joining the post. In para-6 of the main counter affidavit it has been stated that before making appointment of the petitioner no approval of D.I.O.S. was sought which was necessary under Second Removal of Difficulties Order, 1981 issued under U.P. Secondary Education Services Selection Board Act. In this regard learned counsel for the petitioner has argued that prior approval was not necessary. Under para 2(3)(i) of the said order it is provided that management shall intimate the vacancy to the D.I.O.S. Under para 2(3)(ii) prior approval for selection is not necessary but it is a must before appointment.;