- (1.) BY The Court-BY means of this writ petition the petitioner has prayed for a writ of mandamus calling upon the respondents to treat the petitioner in service till the incumbent or the person selected by the Commission joins the post. He has also prayed for making payment of salary to him. The further reliefs are not necessary for the purpose of this case.
(2.) THE petitioner was appointed through Annexure 'l' attached with the writ petition in the leave vacancy of Sri Ashok: Kumar Shukla. In the writ petition and in the subsequent affidavit filed on behalf of the petitioner, it has been stated that the aforesaid Sri Ashok Kumar Shukla has not come back and has not joined the post. In paragraph 9 of the writ petition, it has been asserted that the petitioner is continuing on the post in leave vacancy and he has not been paid salary from 21-5-1987 onwards. In paragraph 5 of the counter affidavit of Sri H. S. Dubey, posted as Assistant Supervisor in the office of the District Inspector of Schools, Allahabad, it has been stated that the allegation made in paragraph 9 of the writ petition did not call for any reply. In other words, it has been admitted by the deponent of the counter affidavit. It appears that the ground for not paying salary to the petitioner is that the continuance of his service did not receive the approval and, therefore, according to the deponent of the counter affidavit, the petitioner has not been paid salary. Learned counsel for the petitioner contends that there is no justification for not treating the petitioner in service and in not paying salary to him. Learned Standing Counsel has not been able to refute the contention raised on behalf of the petitioner. Our attention has been drawn to the ruling reported in Umesh Chandra v. District Inspector of Schools, Jaunpur, 1987 Education Cases 57. In paragraph 15 of the aforesaid ruling, it has been observed as below : "Under the Removal of Difficulties Orders, thus the management is empowered to appoint by promotion or by direct recruitment, a teacher on ad hoc basis in the case of a substantive vacancy caused by death, retirement, resignation or otherwise and such appointment may continue till a candidate recommended by the Commission or the Board, as the case may be, joins the post............ The material fact is the existence of power ; a recital of the source thereof even if erroneous has to be ignored. In our considered opinion, the management was competent in these cases where though the requisites of section 18 were not fulfilled, to appoint the concerned petitioners under the Removal of Difficulties Order and such appointment of ad hoc teachers shall cease to have effect when a candidate recommended by the Commission or the Board, as the case may be, joins the post".
(3.) SUBSEQUENT Division Benches have also taken the view that services of the ad hoc appointee would come to an end only when the person in whose leave vacancy the appointee was appointed comes and joins the post or the candidate recommended by the Commission or the Board who is ready to join the post. The Standing Counsel has not disputed the allegation made on behalf of the petitioner that the petitioner continues in the post. It has also not been brought to our notice that the person in whose vacancy, the petitioner was appointed has come back or is ready to join the post or some one else has been recommended by the Commission to join the post in which the petitioner continues. In such a circumstance, the respondents are incorrect in law in not treating the petitioner to continue in service and in not paying the salary to the petitioner.;