JUDGMENT Arun Tandon, J.
1. Heard counsel for the parties.
2. Petitioner had approached this Court earlier by means of the Writ Petition No. 16255 of 2004 alleging therein that he has been offered appointment against a short-term vacancy caused due to suspension of a teacher in the institution namely Sri Roop Narain Singh. It was claimed that such ad hoc appointment was offered on 17.8.1995. Papers for grant of financial approval had been transmitted to the District Inspector of Schools but he has not taken any decision. The writ petition was disposed of vide judgment and order dated 22.4.2004 with a direction upon the District Inspector of Schools to consider the claim of the petitioner for financial approval in accordance with the Full Bench Judgment in the case of Radha Raizada. The District Inspector of Schools by means of the impugned order dated 9.11.2004 has held that the appointment claimed by the petitioner is illegal and therefore petitioner has no right to claim financial approval/payment of salary. This order of the District Inspector of Schools is under challenge in the present writ petition.
3. It is not necessary for the Court to enter into the necessity of the contention raised on behalf of the petitioner. Suffice is to refer to bare essential facts which may decide the fate of the present writ petition.
4. It is admitted to the petitioner that one Sri Roop Narain Singh, who was working as L.T. Grade Teacher in the institution was placed under suspension pending enquiry on 25.7.1992. The vacancy, according to the petitioner, so caused was a short-term vacancy and therefore the petitioner was appointed as Assistant Teacher after following the procedure prescribed on 20.9.1992. It has further been stated that Sri Roop Narain Singh was transferred on 30.5.1995 and therefore a substantive vacancy has now become available against which the petitioner has become entitled for regularization.
5. A counter affidavit has been Filed on behalf of the District Inspector of Schools and in paragraph 6 of the counter affidavit it has been stated that the suspension of Sri Roop Narain Singh was never approved by the District Inspector of Schools and therefore there was no short term vacancy available in the institution against which the petitioner could have been appointed.
6. Standing Counsel further clarifies that in case Sri Roop Narain Singh had been transferred on 30.5.1995, a substantive vacancy can be said to have been caused in the institution substantively on 30.5.1995 itself and said substantive vacancy is required to be filled in accordance with the procedure then applicable for ad hoc appointment against substantive vacancy, which has not been done.
7. I have heard counsel for the parties and have gone through the records of the writ petition.
8. Appointment as claimed by the petitioner against a short term vacancy said to have been caused due to suspension of Sri Roop Narain Singh is necessarily referable to the provision of The Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981. Rule 2 of the aforesaid order provides for the short term vacancy, which can be filled by ad hoc appointment. For ready reference Rule 2 read as follows:
2. Procedure for filling up short-term vacancies.-(1) A 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 along with the particulars of the teacher so promoted.
9. From the aforesaid rules it is apparent that a short term vacancy against suspension of teacher can be filled under the aforesaid Removal of Difficulties Oder only if the suspension has been duly approved by the District Inspector of Schools.
10. On record is a statement made on behalf of the District Inspector of Schools (paragraph 6 of the counter affidavit) categorically stating that the alleged suspension of Sri Roop Narain Singh was never approved. Consequently, this Court may record that there was no short term vacancy available in the institution against which petitioner could be appointed under the Second Removal of Difficulties Order. The appointment claim by the petitioner is, therefore, illegal and not contemplated by the Removal of Difficulties Order. Section 16 of the U.P. Secondary Education Services Selection Board Act, 1982 declares such appointment as void. Consequently the order passed by the District Inspector of Schools does not warrant any interference.
11. It is clarified that in case Sri Roop Narain Singh has been transferred on 30th May, 1995, a substantive vacancy would be caused in the institution and such vacancy can be filled only in accordance with the procedure prescribed at the relevant time for making ad hoc appointment against a substantive vacancy.
12. Writ petition is misconceived and is accordingly dismissed.
13. However, it is provided that in case the petitioner has been appointed by the Committee of Management of the institution and work has been taken from the petitioner, it shall be open to the petitioner to recover the salary for the actual period of working from the assets of the management.