A.P.Sahi, J. - (1.) THIS intra-Court appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 arises out of the judgment and order dated 22.10.1997 passed in Civil Misc. Writ Petition No.11778 of 1994, whereby the learned Single Judge has dismissed the writ petition of the appellant on the ground that he was not entitled to the reliefs claimed for, as he was not appointed against a sanctioned post.
(2.) SHORT facts giving rise to the present appeal are that the appellant claims that he was appointed as an Assistant Teacher in the L.T. Grade in Shri Moti Lal Inter College, Saiyan, District Agra (hereinafter referred to as the 'Institution'), which is an Institution recognised under the provisions of the Uttar Pradesh Intermediate Education Act, 1921 and the Regulations framed thereunder read with the provisions of the U.P. Secondary Education Services Selection Boards Act, 1982 and the Rules framed thereunder. The Institution is on the grant-in-aid list and the disbursement of salary of teachers and other staff is made under the provisions of the U.P. Act No. 24 of 1971. The appellant was appointed against a resultant short-term vacancy on account of the ad hoc promotion of Shri Kishan Chandra Sharma, who was a permanent teacher in the L.T. Grade. Shri K.C. Sharma was promoted as a Lecturer and in the consequential vacancy, the appellant claims that he was appointed after following the due process as prescribed under the Rules on 1st September, 1992. The papers relating to the selection and appointment of the appellant were sent to the District Inspector of Schools, Agra, the authority competent to grant approval to his appointment and for payment of salary. The appellant did not receive salary, as such, he represented before the District Inspector of Schools and having failed to get any response, filed the writ petition, which has given rise to this special appeal, praying for a writ of mandamus directing the District Inspector of Schools to ensure payment of salary to the appellant in the L.T. Grade. A counter affidavit was filed in the writ petition sworn by Shri V.N. Srivastava, Accounts Officer in the office of the District Inspector of Schools, Agra and in paragraph 3 of the said counter affidavit, it was categorically stated that there are only 13 posts, in all, in the Institution including the L.T. Grade, C.T. Grade, a miscellaneous post for Science/Maths Teacher and another post for a Physical Training Instructor. The said posts, according to the State, were sanctioned by the Director of Education vide sanction letter dated 31st March, 1991. It was further averred in the counter affidavit that since the total number of posts is 13, therefore, the appellant, who was over and above the sanctioned strength, could not be paid salary and that is why no approval was granted to the appellant's appointment. The learned Judge relying on the said averments contained in the counter affidavit, without considering any material dismissed the writ petition on 22nd October 1997, which has been assailed in the present appeal. While dismissing the writ petition, the learned Judge has observed as follows:- "In view of the fact that the petitioner was not appointed on the sanctioned post, as such, his appointment was illegal. In that view of the matter, the writ petition fails and is dismissed. There will be no order as to costs."
(3.) REVIEW application filed against the aforesaid order was also rejected vide order dated 15.12.1997. During the pendency of the appeal, affidavits have been exchanged between the parties and the State has filed a counter affidavit to which a reply has also been filed through a rejoinder filed on behalf of the appellant.;