- (1.) D. K. Seth, J. In Writ Petition No. 13591 of 1988, the petitioner, who was a lecturer in Parvati Rastriya Inter College, Sidhpur, Etah, was appointed in the post of Principal on ad hoc basis, in the post whereof a substantive vacancy was created due to retirement of erstwhile Principal on 31-6-1985. The said vacancy was notified to the Commission. However, the Com mission did not appoint any principal on the said post within the stipulated period. Therefore, the committee of management had appointed the petitioner as Principal on ad hoc basis and sought for approval of his appointment from the D. I. O. S. , who having initially accorded approval on 13th August, 1987, ultimately had cancelled the said approval by a letter dated 17- 6-1988 contained in Annexure -5 on the ground that despite several reminders the com mittee of management had not forwarded the names of two seniormost teachers. This order has since been challenged in this writ petition.
(2.) MR. Pradeep Kumar Saxena, learned Counsel for the contends that non-sending of names of two seniormost teachers cannot be a ground for cancella tion of the approval. Therefore, the order dated 17-6-1988 is liable to be quashed. He further, contends that no one else senior to the petitioner had ever led any claim to the said post. If the petitioner's appoint ment on the said post is unopposed, it is incumbent upon the D. I. O. S. to grant ap proval and he cannot cancel such approval on the alleged ground of non-furnishing of names of seniormost teachers. His third contention was that the question of seniority between three seniormost teachers being involved in Writ Petition No. 9242 of 1980 wherein an interim order was issued and neither respondent No. 3 and 4 nor the petitioner was to be granted selection grade in the meantime, there fore, by virtue of this dispute of seniority between those three persons, the petitioner was to be treated as seniormost teacher and, therefore there was no dis pute that he was the senior most in the lecturer's grade for being appointed on the post of ad hoc Principal. Though no counter-affidavit has been filed, but Mr. V. K. Rai, Brief Holder for the State, points out from the writ petition itself that from the statement made in paragraph 8 thereof, it appears that the petitioner was not the seniormost teacher and that the dispute involved in Writ Petition No. 9242 of 1980 appears to be a dispute inter se between the said three seniormost teachers on the point as to who is entitled to get selection grade of pay. The interim order was not with regard to the seniority. However, by virtue of the said interim order the said three persons, who appear to be senior to petitioner, can not be relegated to a position junior to the petitioner. He further contends that it is incumbent upon the management of the institution in view of paragraph 5 of the Removal of Difficulties Order to send the names of two senior most teachers and ad hoc appointment on the post of Principal can only be made from amongst the senior most teachers unless they are unwilling or for some other reason were found unfit. If the management does not forward the names of two senior most teachers, in that event, it will be an infraction of the proce dure prescribe in the Removal of Difficul ties Order 1991 and as such it was within the jurisdiction of D. I. O. S. to recall his approval which was granted without fol lowing the proper procedure. Therefore, according to him, the writ petition should fail. In Writ Petition No. 23829 of 1995 the petitioner claims that since by virtue of an interim order passed in Writ Petition No. 13591 of 1988 to the extent that the order dated 17-6-1988 impugned in the said writ petition having been stayed, the petitioner is entitled to revised scale of pay on the post of Principal, therefore, he has prayed in the second writ petition for payment of revised scale of pay in the post of Principal. According to Mr. Saxena, learned Counsel for the petitioner, since the order dated 17- 6-1988 has been stayed, therefore, by fiction the petitioner had continued on the post of Principal and as such he is eligible and entitled to the said benefit of revised scale of pay of principal and the same cannot be denied to him. In the meantime, the petitioner having retired, he will be entitled for payment in the scale of pay payable to the Principal for the period during which he was appointed as ad hoc Principal namely 22-6-1986.
(3.) ON the other hand, Mr. Rai sub mits that even if the operation of the order dated 17-6-1988 has been stayed, but the same was subject to the result of the writ petition. The petitioner can claim the scale of Principal provided he is successful in Writ Petition No. 13591 of 1988. Ac cording to him, the grant of scale of pay of Principal to the petitioner is dependent on the result of the first petition. I have heard Mr. Saxena and Mr. Rai both at length. From paragraph 8 of the first writ petition, it appears that writ petition No. 9242 of 1980 was filed before this Court in which dispute between three teachers was involved relating to grant of selection grade of pay. In his writ petition, the petitioner has nowhere claimed that he is the seniormost teacher in the lecturer's grade. Mr. Saxena however, dis putes the said proposition.;