JUDGMENT D.P. Singh, J.
1. Heard counsel for the parties.
2. This petition is directed against an order dated 19.4.2002 rejecting the claim of the petitioner for grant of financial approval to his appointment as Assistant Teacher.
3. Guru Narain Khatri Inter College, Kanpur Nagar, Kanpur is a duly recognized and aided intermediate college (here-in-after referred to as institution). One Ram Asrey Awasthi permanent Lecturer in Hindi retired causing substantial vacancy which was filled up by adhoc promotion of Ram Kripal Mishra, a Assistant Teacher in the LT Grade. The aforesaid adhoc promotion of Ram Kripal Mishra was approved by the District Inspector of Schools on 1.2.1996, thus, creating a short term vacancy in the L.T. Grade on the post of Assistant Teacher. The Management advertised the said adhoc vacancy in 'Amar Ujala' on 26.12.1996 and 'Pioneer' on 27.12.1996. Several persons, including the petitioner, who holds Master of Art Degree in Hindi and is Bachelor of Education, also applied and he was selected on the basis of quality point whereafter the entire papers relating to his selection were submitted to the District Inspector of Schools for his financial approval through the management's letter dated 21.1.1997. However, no orders were passed by the District Inspector of Schools, thus, an appointment letter dated 3.2.1997 was issued to the petitioner in pursuance of which he joined on 4.2.1997 and started teaching. As the District Inspector of Schools did not pass any order and salary was not being paid to the petitioner, he preferred writ petition No. 39636 of 1997 which was finally disposed off vide order dated 18.11.1997 with a direction to the District Inspector of Schools to decide the claim of the petitioner in accordance to. law by a speaking order. In pursuance thereof, the present impugned order has been passed.
4. The District Inspector of Schools has refused grant of financial approval on sixr grounds and each would be dealt with in the subsequent paragraphs.
5. The first ground in the impugned order is that the appointment was made without prior approval. From'the facts as noted hereinabove, the approval of adhoc promotion of Ram Kripal Mishra to the Lecturer's grade necessarily created a short term vacancy in the L.T. Grade. After due advertisement, the petitioner was selected and the papers were served through a covering letter of the Management dated 21.1.1997. This allegation in paragraph No. 12 of the writ petition has not been denied in the counter affidavit. It is apparent that in spite of receiving the papers for grant of approval, the District Inspector of Schools did not pass any order. Clause 2(3), (iii) of the U.P. Secondary Education Service Commission (Removal ' of Difficulties) (Second) Order, 1981 provides as under:-
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.
6. A bare perusal of the said provision would show that a mandate has been issued to the District Inspector of Schools to pass orders either approving of disapproving the proposed appointment and in case the order is not passed within seven days of the receipt of the proposal, a legal fiction has been created by which the said proposal would be deemed approved. This ratio has been accepted in several cases including by a Division Bench of this Court in the case of Ashika Prasad Shukla v. District Inspector of Schools and Anr. (1998) 3 U.P.L.B.E.C. 1722 and subsequently followed in several cases. Thus, the first ground given in the impugned order cannot be sustained as it was a case of deemed approval.
7. The second ground on which the claim has been rejected is that without prior permission the advertisement inviting application for short-term appointment could not be issued. Neither in the impugned order or in the counter affidavit nor during arguments reference to any provision of law where such a requirement is mandatory has been disclosed. The appointment to short term vacancies, at the relevant time, was governed by Second Removal of Difficulties Order as explained by the Full Bench decision of this Court in the case of Radha Raizada and Ors. v. Committee of Management (1994) 3 U.P.L.B.E.C. 1551 The only requirement in law was for advertising the short-term vacancies in at least two newspapers having wide circulation. As already noted above, the short-term vacancy was advertised in two widely circulated newspapers on 26.12.1996 and 27.12.1996. Thus, the second ground also cannot be sustained.
8. The third ground given in the impugned order is that before filling the vacancy, the Management ought to have obtained financial approval of the post. It is not the case of the respondents that-Ram Kripal Mishra, the incumbent who was working as Assistant Teacher in the L.T. Grade, was not drawing his salary after financial approval. It is also not the case of the respondents that at any time financial approval to that post was withdrawn by the respondents either before or after the adhoc promotion of Sri Mishra. Once the financial approval had been granted for a post, there is no requirement of law to obtain further approval while making short-term appointment on that post except when the post had been abolished, but that is not the case here. Learned Standing Counsel has failed to point out any provision of law by which such a requirement has been placed upon the Management. Therefore, the third ground also cannot be sustained.
9. The next ground on which the impugned order has been passed is that in accordance to the actual strength of the students only 10 sections were being operated and thus, according to the applicable ratio, 13 teachers were necessary though 27 teachers were working and thus there was no vacancy to be filled up. The case set up by the Management before the District Inspector of Schools was that there were 21 sanctioned sections in the institution and this fact has not been denied either in the counter affidavit or during argument. Further, even number of students has not been disclosed in the impugned order which goaded the Inspector to hold that only 10 sections were being operated. Even in the counter affidavit the strength of student has not been disclosed and the case set up in the writ petition especially in paragraph nos. 27 and 28 that in fact 21 sections were functioning in the institution at the relevant time has not been specifically denied in the counter affidavit. Further, Para 293 (1) of the U.P. Education Code prohibits the Management to add or close down any existing sanctioned section in the institution without previous approval of the Inspector. Assuming, for the sake of argument, that at the relevant time there were lesser number of students and thus there may not be any necessity to fill up any vacancy, but that cannot be a ground to hold that there was, in fact, no vacancy. Thus, this ground also cannot be sustained.
10. The fifth ground taken in the impugned order is that in view of circular dated 9.6.1995, no appointment could be made by the Management and appointment could only have been made by the Board. A copy of the circular dated 9.6.1995 is annexed alongwith the writ petition. The said circular issued by the Directorate of Education stipulates that no appointment should be made on any vacancy by the Management as the Board has been set up for selecting candidates and recommending appointment. This circular appears to relate only to substantial vacancies. As already observed hereinabove, the appointments to short-term vacancies are governed by Second Removal of Difficulties Order. This view is supported by a Single Judge decision of this Court in the case of Mukesh Kumar v. State of U.P. 1996 A.W.C. 556 In any event, a circular cannot over ride the provisions of the Second Removal of Difficulties Order. Therefore, this ground also cannot be sustained.
11. The last pillar on which the impugned order stands is only to be stated to be rejected. The District Inspector of Schools has held that since Section 18 of the Commission Act and the Second Removal of Difficulties Order having been repealed by notification dated 25.1.1999, no financial approval could be granted. As already observed while noting the facts, the short-term vacancies arose on 1.2.1996 and the Management served the entire papers for obtaining financial approval on 21.1.1997 and as such the subsequent repeal would be irrelevant as by then the rights of the petitioner stood crystallized and appointment stood approved in view of the deeming clause of the Second Removal of Difficulties Order.
12. For the reasons given above, this petition succeeds and is allowed and the impugned order 19.4.2002 is hereby quashed. The petitioner shall be entitled to his salary alongwith arrears payable to him within two months from the date of submission of a certified copy of this order. No order as to costs.