JUDGMENT R.R. Yadav, J.
1. By filing the instant writ petition under Article 226 of the Constitution, the petitioner is seeking relief in the nature of certiorari for quashing the order dated 19.9.1995 (Annexure-3 to the writ petition) passed by Assistant Account Officer, respondent No. 4, whereby financial sanction relating to payment of salary of the petitioner is refused on the basis of Government Order dated 31.8.1991. It is further prayed by the petitioner that the respondents may be directed to pay her salary from 31.7.1993 till date and continue to pay her future salary as and when it falls due.
2. The factual matrix of the case necessary for just decision is that in recognised aided Non-Government College known as Raja Ram Manila Inter College, Budaun (hereinafter referred to as College) one Smt. Sahida Begam Kazmi was working as L.T. Grade teacher. She was given ad hoc promotion on the post of Lecturer Grade on substantive vacancy under the provisions of Section 18 of U. P. Secondary Education Service Commission Act, 1982 (hereinafter referred as Act of 1982) and First Removal of Difficulties Order, 1981. Due to ad hoc promotion of Smt. Sahida Begam Kazmi in Lecturer Grade, the post of L.T. Grade had fallen vacant as short-term vacancy and the Committee of 'Management under the provisions of Second Removal of Difficulties Order. 1981 and after following due procedure appointed Km. Mani Pandey, the petitioner, on the post of L.T. Grade and appointment letter was issued on 31.7.1993. After issuing appointment letter to the petitioner, her papers were sent for approval to R.I.G.S.. who did not communicate decision within stipulated period, but on 19.9.1995 impugned order (Annexure-3 to the writ petition) was passed by respondent No. 4 denying financial sanction on the ground of Government Order dated 31.8.1991. It is averred in the writ petition that petitioner is working on the short-term vacancy from the date of her appointment on the post of L.T. Grade teacher, but no salary is being paid to her.
3. After service of notice, respondents filed counter-affidavit wherein it is averred that the Committee of Management has illegally appointed petitioner on short-term vacancy on L.T. Grade Teacher, which has fallen vacant after promotion of Smt. Sahida Begam Kazmi from L.T. Grade teacher to the post of Lecture against the Government Order dated 24.6.1993 and order dated 31.8.1991 of the Director of Education. The order impugned dated 19.5.1995 (Annexure-3 to the writ petition) passed by respondent No. 4 refusing grant of financial sanction was justified on the aforesaid ground by the respondents.
4. The aforesaid ground was demonstrated by the petitioner in her rejoinder-affidavit to be non est. When the respondents were confronted with the rejoinder-affidavit filed by the petitioner, they filed supplementary counter-affidavit taking additional ground that ad hoc appointment of the petitioner on the post of L.T. Grade teacher by Committee of Management is invalid in absence of approval of R.I.G.S. It is averred in the supplementary counter-affidavit that ad hoc appointment of the petitioner on short term vacancy is against ratio decidendi propounded by the learned Judges of this Court constituting Full Bench in case of Radha Raizada and Ors. v. Committee of Management, Vidyawati Darbari Girls Inter College and Ors., (1994) 3 UPLBEC 1551.
5. I have heard learned counsel for the petitioner Sri Siddhartha Srivastava as well as learned standing counsel at length and perused the materials available on record.
6. At the first instance, it is contended by the learned counsel for the petitioner that it is apparent on face of record from perusal of order impugned dated 19.9.1995 (Annexure-3 to the writ petition) that financial sanction was refused by respondent No. 4 on the sole ground that there is ban on appointments by Government Order dated 31.8.1991 whereas the above Government Order has already been withdrawn by the Government Order dated 21.7.1992 and petitioner was given appointment on 31.7.1993. It is submitted by learned counsel for the petitioner that by adding ground in the counter-affidavit which did not find place in the order impugned (Annexure-3 to the writ petition) passed by respondent No, 4, the respondents cannot be permitted to support the aforesaid Impugned order by carving out a new case or raise new plea for the first time before this Court by way of filing counter affidavit and supplementary counter-affidavits. In support of his aforesaid contention, he placed reliance on a decision rendered by Supreme Court in the case of Mohinder Singh Gill and Anr. v. Chief Election Commissioner, Delhi and Ors., AIR 1978 SC 851 and a recent decision rendered by learned Judges constituting Division Bench of this Court in case of District Inspector of Schools, Kanpur Nagar and Anr. v. Diwakar Lal and Ors., 2000 (3) AWC 2182.
7. I am of the view that there is substance in the aforesaid argument of the learned counsel for the petitioner and the present writ petition deserves to be allowed on the aforesaid argument alone. It is held that in writ jurisdiction, respondents cannot be permitted to support the order impugned (Annexure-3 to the writ petition) passed by respondent No. 4 refusing financial sanction to the post of petitioner by carving out new ground for the first time before this Court by filing counter and supplementary-counter-affidavits to make the order valid once it is established by the petitioner that the order impugned dated 19.9.1995 (Annexure-3 to the writ petition) passed by respondent No. 4 is based on non-existent ground. Learned Standing Counsel failed to show before this Court anything contrary to the aforesaid argument that respondent No. 4 has denied financial approval on the sole ground that there was a ban on appointments by Government Order dated 31.8.1991 but the above mentioned Government Order dated 31.8.1991 was already withdrawn by Government Order dated 21.7.1992. whereas petitioner was appointed on 31.7.1993.
8. It is urged by the learned Standing Counsel with emphasis that the ad hoc appointment of the petitioner on short-term vacancy on L.T. Grade teacher in the College is against the proposition of law propounded by Full Bench of this Court in case of Radha Raizada (supra). The aforesaid contention raised by learned Standing Counsel is not acceptable to me In view of decision rendered by this Court in case of Diwakar Lal (supra) wherein in similar circumstances, it is ruled that effect of decision rendered by Full Bench of this Court in case of Radha Raizada (supra) would not operate retrospectively. It is held in case of Diwakar Lal (supra) that the operation of the decision rendered by Full Bench in case of Radha Raizada (supra) is prospective and not retrospective. I respectfully concur with the view taken by learned Judges constituting Division Bench in case of Diwakar Lal (supra).
9. In the present case ad hoc appointment of the petitioner on short-term vacancy of L.T. Grade teacher was made on 31.7.1993 whereas the Full Bench decision in the case of Radha Raizada (supra) was rendered on 12.7.1994. therefore, ad hoc appointment of the petitioner on short-term vacancy cannot be permitted to be assailed relying on decision of Radha Raizada (supra). The aforesaid argument of the learned Standing Counsel is being raised merely to be rejected and it is hereby rejected.
10. Bottom line argument of the learned Standing Counsel before me is that ad hoc appointment of petitioner on short-term vacancy of L.T. Grade teacher is per se illegal as no prior permission/approval is obtained from the R.I.G.S. or any other authority for filling the vacancy in question. The aforesaid issue has already been decided by the Full Bench of this Court in the case of Radha Raizada (supra) wherein it is observed that the procedure of filling up short-term vacancy which are not in substantive capacity remains same as prior to the amendment which was in force with effect from 14.7.1992. In view of the aforesaid proposition of law propounded by Full Bench of this Court in case of Radha Raizada (supra), the Committee of Management has power to fill up the short-term vacancy and there is no requirement of prior approval of District Inspector of Schools/R.I.G.S. for filling up such vacancy in non-substantive capacity. The aforesaid contention raised by learned Standing Counsel is no more res-integra after Full Bench decision of this Court in case of Radha Raizada (supra).
11. Upshot of the aforesaid discussion is that the instant writ petition succeeds and it is allowed. The order impugned dated 19.9.1995 (Annexure-3 to the writ petition) passed by respondent No. 4 is hereby quashed. The respondents are mandated to pay salary of petitioner till duly selected candidate takes over. Arrears of salary be also paid to her from the date of her ad hoc appointment on short-term vacancy on the post of L.T. Grade teacher.