JUDGMENT Tarun Agarwala, J.
1. In an educational institution known as Swami Purnanand Inter College, Chirodi, Bulandshahr, one Karan Singh, a Lecturer retired on 30.6.1991 and after his retirement one Raghuraj was promoted on an adhoc basis on the post of a Lecturer. Consequently, the post of an Assistant Teacher fell vacant and this vacancy, being a short term vacancy, could not be filled up by way of promotion. The said vacancy was duly notified to the District Inspector of Schools, Bulandshahr on 6.5.1995. It further transpires that on 24.8.1996 an advertisement was also made in the newspapers, which had a wide circulation and a selection committee met on 34.8.1996 in which the petitioner's name was recommended and subsequently, the committee of management issued a letter of appointment dated 25.8.1996. On this basis, the petitioner joined on 27.8.1996. The Committee of Management, the respondent No. 3 forwarded the papers to the District Inspector of Schools, Bulandshahr for approval.
2. The promotion of Raghuraj Singh on the post of Lecturer on adhoc basis was objected and challenged by one Sukhbir and eventually on 6.10.1999 it was held that Sukhbir Singh was entitled to be promoted to the post of Lecturer on the vacancy caused by the retirement of Sri Karan Singh. The controversy came to a rest finally and the committee of management by a resolution dated 27.2.2000 promoted Sri Sukhbir Singh as a Lecturer.
3. According to the District Inspector of Schools, the papers relating to the appointment of the petitioner was forwarded on 9.6.2000 after the dispute between Raghuraj Singh and Sukhbir Singh came to an end. On the other hand, according to the petitioner, the papers relating to his appointment for approval were sent much earlier and when no orders was being passed by the District Inspector of Schools, the petitioner filed Civil Misc. Writ Petition No. 54722 of 1999, which was disposed of with a direction to the District Inspector of Schools to decide the matter with regard to his appointment. Based the direction of the court, the District Inspector of Schools by an order dated 19.2.2001 rejected the representation of the petitioner and refused to grant approval to the appointment of the petitioner on the ground that though the appointment of the petitioner was made on 15.8.1996, but the papers relating to the grant of approval was sent only on 19.6.2000 and that the advertisement was only made in one newspaper, which did not have a wide circulation and that it only had a circulation upto the district level.
4. The petitioner being aggrieved by the order of the District Inspector of Schools, filed Civil Misc. Writ Petition No. 8321 of 2001, which was allowed by a judgment dated 10.5.2002 and the order of the District Inspector of Schools dated 19.2.2001 was quashed. This Court held, that admittedly the petitioner was appointed in the year 1996 on the basis of an alleged vacancy on account of the promotion of Sri Raghuraj Singh. This Court, in its earlier judgment, held, that the procedure with regard to the appointment was followed, namely, that the vacancy was advertised in two newspapers having a wide circulation. The Court further held that since the promotion of Raghuraj Singh was not approved and thereafter Sri Sukhbir Singh was promoted in the year 2000, the question that was required to be considered was as to when the vacancy actually came into existence, i.e., whether the vacancy came into existence in the year 1996 when Raghuraj Singh was promoted or whether the vacancy came into existence when Sukhbir Singh was promoted in the year 2000. This Court remitted the matter to the District Inspector of Schools, Bulandshahr to decide this question.
5. The District Inspector of Schools again considered the matter and by the impugned order dated 1.7.2002 again refused to grant the approval of the appointment of the petitioner on the post of an Assistant Teacher. The District Inspector of Schools held that the promotion of Sri Raghuraj Singh was disapproved and thereafter, Sukhbir Singh was promoted by the committee of management by its resolution dated 27.2.2000, therefore, no vacancy arose in the year 1996 and that a vacancy arose only in the year 2000, when Sri Sukhbir Singh was promoted. The District inspector of Schools further held that the salary on the post of Assistant Teacher was paid to Sri Sukhbir Singh till September 2000 and that no occasion arose to pay the salary of an Assistant Teacher to the petitioner. The District Inspector of Schools further held that the procedure relating to the appointment of an Assistant Teacher on a short term vacancy under the U.P. Secondary Education Services Commission [Removal of Difficulties] [Second] Order, 1981 and the directions given in the Full Bench decision in Radha Raizada's case was not followed and, therefore, the appointment of the petitioner could not be approved. The petitioner has now again filed the present writ petition.
6. Heard Sri G.K. Singh and Sri V.K. Singh, the learned counsels for the petitioner, the learned standing counsel appearing for respondent No 1 and 2 and Sri S.K. Mishra, the learned counsel appearing for respondent No. 3.
7. From the narration of the facts, it is clear, that on account of the promotion of Sri Raghuraj Singh, the petitioner was appointed on a short term vacancy on an adhoc basis as an assistant teacher in the year 1996. It has also come on record, that the alleged promotion of Sri Raghuraj Singh was challenged by Sri Sukhbir Singh and eventually by an order dated 6.10.1999 it was held that Sukhbir Singh being the senior most teacher was entitled to be promoted on the basis of which, the Committee of Management passed a resolution on 27.2.2000 promoting Sri Sukhbir Singh as a Lecturer.
8. The question which now arises for consideration is, when did the vacancy occur ? Whether the vacancy occurred in the year 1996 when Raghuraj Singh was promoted or whether the vacancy occurred when Sukhbir Singh was promoted in the year 2000. The word "vacancy" has not been defined either under the Intermediate Education Act or under U.P. Secondary Education Services Commission [Removal of Difficulties] [Second] Order, 1981. The word "vacancy" has, however, been defined in Rule 2[hh] of the U.P. Secondary Education Service Commission Rules 1983, which reads as follows :
"2.[hh] 'Vacancy' means a Vacancy arising out as a result of death, retirement, resignation, termination, dismissal, creation of new post or appointment/promotion of the incumbent to any higher post in a substantive vacancy."
9. From the aforesaid, it is clear that a vacancy arises when one of the aforesaid conditions occur, namely, death, retirement, etc., etc. or where a promotion is made to a higher post in a substantive capacity. In the present case, the alleged promotion of Sri Raghuraj Singh was disputed and, eventually the dispute was decided by an order dated 6.10.1999 in which it was held that Sukhbir Singh was entitled for the promotion. Based on this decision, the Committee of Management passed a resolution dated 27.2.2000 promoting Sri Sukhbir Singh as a Lecturer. It was at this stage that a vacancy arose on the post of assistant teacher, which was required to be filled up in the procedure prescribed under the U.P. Secondary Education Services Commission [Removal of Difficulties] [Second] Order, 1981.
10. The petitioner was appointed in the year 1996. In my opinion, no vacancy occurred in the year 1996 and, therefore, the petitioner could not have been appointed on a short term vacancy in the year 1996. The vacancy, if any, occurred only when Sukhbir Singh was promoted on 27.2.2000, on the basis of which a short term vacancy arose on the post of assistant teacher. Since the vacancy arose only in the year 2000, the procedure contemplated under U.P. Secondary Education Services Commission [Removal of Difficulties] [Second ] Order, 1981 and the directions contained by the Full Bench decision in the case of Radha Raizada reported in 1994 Vol. 3 UPLBEC-1551 was required to be followed by the committee of management.
11. Paragraph-2 of the U.P. Secondary Education Services Commission [Removal of Difficulties] [Second ] Order, 1981 reads as follows :
"2. Procedure for filling up short term vacancies--
[1] If short term vacancy in the post of a teacher, caused by grant of leave to him or on account of his suspension duly approved by the District Inspector of Schools or otherwise, shall be filled by the management of the institution, by promotion of the permanent senior most teacher of the institution, in the next lower grade. The Management shall immediately inform the District Inspector of Schools of such promotion alongwith the particulars of the teacher so promoted.
[2] Where any vacancy referred to in clause [1] cannot be filled by promotion, due to non-availability of a teacher in the next lower grade in the institution, possessing the prescribed minimum qualifications, it shall be filled by direct recruitment in the manner laid down in clause [3].
[3] [i] The management shall intimate the vacancies to the District Inspector of Schools and shall also immediately notify the same on the notice board of the institution, requiring the candidates to apply to the Manager of the institution alongwith the particulars given in Appendix 'B' to this order. The selection shall be made on the basis of quality point marks specified in the Appendix to the Uttar Pradesh Secondary Education Services Commission [Removal of Difficulties] Order, 1981, issued with Notification No. Ma-1993/XV-7-1 [79]-1981, dated July 31 1981, hereinafter to be referred to as the first Removal Difficulties Order, 1981. The compilation of quality point marks shall be done under the personal supervision of the head of institution.
[ii] The names and particulars of the candidate selected and also of other candidates and the quality point marks allotted to them shall be forwarded by the Manager to the District Inspector of Schools for his prior approval.
[iii] The District Inspector of Schools shall communicate his decision within seven days of the date of particulars by him failing which the Inspector will be deemed to have given his approval. [iv] On receipt of the approval of the District Inspector of Schools or as the case may be, on his failure, to communicate his decision within seven days of the receipt of papers by him from the Manager, the management shall appoint the selected candidate and an order of appointment shall be issued under the signature of the Manager.
Explanation-- For the purpose of this paragraph--
[i] the expression 'senior-most teacher' means the teacher having longest continues service in the institution in the Lecturer's grade or the Trained graduate [L.T.] grade, or Trained Undergraduate [C.T.] grade or J.T.C. or B.T.C. grade, as the case may be.
[ii] in relation to institution imparting instructions, to women, the expression 'District Inspector of Schools' shall mean the Regional Inspector of Girls Schools.';
[iii] short term vacancy which is not substantive and is of a limited duration.
12. Paragraph-2 of the aforesaid order provides that a short term vacancy can be filled by direct recruitment in the manner laid down in Sub paragraph [3] of paragraph-2 of the order if the said vacancy cannot be filled up by way of promotion. Sub paragraph [3] of Paragraph 2 also provides that the management shall intimate the vacancy to the District Inspector of Schools and shall also immediately notify the same on the notice board of the institution. As per the Full Bench decision in Radha Raizada's case [supra], the committee of management after intimating the vacancy to the District Inspector of Schools was required to make an advertisement in at least two newspapers having an adequate circulation in U.P. in addition to notifying the said vacancy on the notice board of the institution and further the applications were also required to be called from the local employment exchange and, thereafter, the procedure contemplated in sub paragraph [3] [i],[ii],[iii] and [iv] of Paragraph-2 of the U.P. Secondary Education [Removal of Difficulties) [Second] Order 1981 was required to be followed.
13. Admittedly, in the present case, no such procedure was followed nor any intimation of the vacancy was given by the committee of management to the District Inspector of Schools, Bulandshahr after promoting Sukhbir Singh in the year 2000. Consequently, the District Inspector of Schools was justified in not approving the appointment of the petitioner on the post of an Assistant Teacher.
14. The Full Bench decision in Radha Raizada's case [supra] has categorically held that if the appointment was not valid and had not been made in accordance with law, the District. Inspector of Schools, was empowered not to make the payment of the salary under the U.P. High School and Intermediate Colleges [Payment of Salaries of Teachers and other Employees ] Act 1971 to the person so appointed.
15. The learned counsel for the petitioner submitted that since the appointment of the petitioner was made after complying with the procedure contemplated under the U.P. Secondary Education [Removal of Difficulties) [Second] Order 1981, and the directions given in Radha Raizada's case [supra] was also forwarded, therefore, the appointment of the petitioner may be considered for approval on the vacancy caused by the promotion of Sri Sukhbir Singh in the year 2000. In my view, since the petitioner was not appointed on a vacancy and no intimation was sent by the committee of management to the District Inspector of Schools when the said vacancy was created in the year 2000, it is not possible for this Court to absorb or regularise the appointment of the petitioner on a vacancy which came into existence in the year 2000. No doubt, the petitioner has been appointed after observance of the requisite procedure contemplated under U.P. Secondary Education [Removal of Difficulties] [Second] Order 1981 and the directections given in the Full Bench decision, but it does not give a right to the petitioner or for the committee of management to ask for the salary under the Payment of Salaries Act 1971 from the State Government. The District Inspector of Schools, Bulandshahr, has an implied power under the Payment of Salaries Act, to examine as to whether the appointment of the petitioner whose salary is called upon to pay, had been made in accordance with law and that the appointment was valid. In the event, the District Inspector of Schools, Bulandshahr, finds that the appointment was not made fairly, he can refuse to grant the payment of the salary. In Radhey Shyam Dubey v. The District Inspector of Schools, 1987 UPLBEC-553, a Division Bench of this Court held that if the appointment of a person was not made in accordance with law, in that event, the District Inspector of Schools was justified in refusing to grant the financial approval and was justified in stopping the payment of the salary to the teachers under the Payment of Salary Act 1971. The said decision is fully applicable to the present case.
16. The committee of management of an educational institution has a right to engage a teacher in excess of the sanctioned strength. In the present case, the committee of management appointed the petitioner on a short term vacancy in the year 1996, when infact, no such vacancy existed at that time. In such a situation, when the management appointed the petitioner after following the procedure on a non-existent vacancy, the responsibility of payment of salary to the petitioner was wholly upon the committee of management, respondent No. 3. In Committee of Management, Kanhaiya Lal Inter College, v. the Presiding Officer, Labour Court and Ors., 2004 AWC Vol.-2070 it was held that where an employee was engaged in excess of the sanctioned staff, in such a situation, the liability to make the payment of the salary was upon the committee of management from its own resources. In the present case, the petitioner is not at fault. The fault lies with the committee of management, and therefore, the committee of management has to pay the salary to the petitioner from its own resources.
17. In view of the aforesaid, I do not find any infirmity in the impugned order dated 1.7.2002 passed by the District Inspector of Schools, Bulandshahr. The District Inspector of Schools, Bulandshahr was justified in not granting the financial approval of the appointment of the petitioner in the short term vacancy on the post of an assistant teacher. Consequently, the writ petition fails and is dismissed. However, in the circumstances of the case, the petitioner is entitled for the payment of the salary from the committee of management, respondent No. 3, who shall pay the same through its own resources. In the circumstances of the case, there shall be no order as to cost.