S.U.KHAN, J. - (1.) ACCORDING to the petitioner he was appointed as L.T. Grade Teacher to teach Biology in Kisan Uchchtar Madhyamik Vidyalaya, Pipra Bazar, Deoria which is a recognised and aided Intermediate College and is governed by the provisions of UP Intermediate Education Act, 1921, U.P. Payment of Salaries Act, 1971 (UP Act No. 24 of 1971) and UP Secondary Education Service Selection Board Act, 1982. The further case of the petitioner is that the post on which petitioner was appointed was newly sanctioned by Director of Education through order dated 31.3.1991 and the Management of the College through letter dated 26.4.1991 intimated/notified the said vacancy to D.l.O.S. Copy of the alleged intimation is Annexure 2 to the writ petition. The petitioner further alleges that after expiry of two months from the communication dated 26.4.1991, Management appointed the petitioner through resolution dated 11.8.1991 under Section 18 of U.P. Act of 1982 (supra) after inviting the applications and after interviewing the candidates and after finding the petitioner to be most suitable on the basis of quality point marks (para 4 of the writ petition). It has further been alleged that appointment letter was issued to the petitioner on 11.8.1991 and petitioner joined on 12.8.1991 and the information of petitioner's appointment was sent to the D.l.O.S. by the Management on 22.8.1991.
(2.) THE prayer made in this writ petition is to the effect that respondents be directed to pay salary to the petitioner w.e.f. 12.8.1991. An interim order was passed in this writ petition on 20.2.1991 directing that petitioner shall be permitted to continue to work as an ad hoc Teacher in LT Grade till regular selection is made by the Commission and he shall be paid his salary. This writ petition was dismissed as infructuous on 8.9.1999. However, petitioner continued to receive salary. In the counter-affidavit it has been stated that D.I.O.S., Deoria on 18.1.2008 wrote a letter to all the Managers/Principals requiring details of all those teachers who were getting salary under interim orders of the High Court and information regarding decision/pendency of the said writ petition. Thereafter petitioner filed restoration application in this writ petition on 27.1.2008 alongwith delay condonation application which was supported by affidavit of petitioner sworn on 27.1.2008 (Restoration application was dismissed in default on 23.4.2008. Thereafter another restoration application was filed ultimately both the applications were allowed on 3.11.2008). After filing of the restoration application petitioner gave a letter to D.I.O.S. through Manager on 2.2.2008 i.e. after about 5 days of filing of the restoration application. In the said letter he did not mention that his writ petition had been dismissed in default. Copy of the said letter has been annexed as Annexure- CA-2 to the counter-affidavit. On the basis of the said letter petitioner continued to receive salary till October/November, 2008. Thereafter on 17.11.2008 D.I.O.S. wrote a letter to the Manager for recovery of the salary paid to the petitioner.
(3.) IN the counter-affidavit it has been stated that vacancy was not advertised in two newspapers and quality point marks were not determined as required by First Removal of Difficulties Order issued under the Act of 1982. Names of other applicants and marks obtained by them have not been given. There is no allegation either in the writ petition or in the rejoinder affidavit that any such thing was done On the contrary it has been stated in rejoinder affidavit that there was no need to do the same. A very strange assertion has been made in para 5 of the writ petition which is quoted below : - "It is further stated that admittedly the appointment and payment of salary are two different things." ;