JUDGMENT R.B. Misra, J.
1. Heard Sri Anil Bhushan, learned Counsel for the petitioner and learned Standing Counsel for the State respondents.
2. In this petition prayer has been made to quash the order dated 18.11.1999 (Annexure-8 to the writ petition) whereby the petitioner's representation was considered in view of the direction of this Court dated 05.01.1999 passed in Civil Misc. Writ Petition No. 40345 of 1998 (Smt. Neerja Sharma v. Deputy Director, of Education (Madhyamik), Agra and Ors.), and the order dated 19.08.1997, whereby the Deputy Director of Education refused to give financial approval to the petitioner's appointment. Further prayer has been made for issuance of writ of mandamus directing the respondents to treat the petitioner as an Ad-hoc Assistant Teacher in L.T. Grade and for payment of her salary month to month w.e.f. 2nd August, 1997.
3. It appears that Shri Kedar Nath Seksaria Arya Kanya Inter College, Belan Ganj, Agra (hereinafter in short called as the 'College') is a non-government aided institution, where the provisions of U.P. Intermediate Education Act, 1921 and U.P. High Schools and Intermediate Colleges (Payment of Salary to Teachers and others Employees) Act, 1971 are applicable and consequent upon the retirement of one Smt. Indrawati Gupta, lecturer in Hindi, on 30th June, 1994 one Smt. Sheela Verma, the senior most L.T. Grade teacher, was promoted on 24.01.1995 on ad-hoc basis and the approval of the same was accorded by the Regional Deputy Director of Education. The Committee of Management of the said college decided to fill up the post of Assistant Teacher in short term vacancy, which arose on account of ad-hoc promotion of Smt. Sheela Verma, and for this purpose advertisement was issued on 09.07.1996 and 11.07.1996 in two newspapers, namely 'Desh Ratna' and 'Dainik Sainik'. The selection committee convened for the purpose considered the case of the candidates and selected the petitioner on 03.08.1996 on the basis of quality point marks and the appointment order dated 08.08.1996 was issued by the committee of management to the petitioner and the petitioner was allowed to join the said post in the college. However, for the reasons unexplained, the papers in respect of approval of the appointment and financial concurrence was sent on 26.07.1997 to the Regional Deputy Director of Education, but no communication was given by the said officer, therefore, according to the petitioner, the appointment and financial approval shall be deemed to have been accorded from 2nd August, 1997. However, the Regional Deputy Director of Education by its order dated 19.08.1997 refused to give approval to the petitioner's appointment, thereupon against the above order petitioner preferred a Writ Petition No. 40345 of 1998, which was dismissed on 5th January, 1999 by this Court on the ground of alternative remedy to approach the Deputy Director of Education for getting a decision on the representation. In the light of the order of this Court dated 05.01.1999 the above Deputy Director of Education by its order dated 18.11.1999, the impugned order in the present writ petition, rejected the representation of the petitioner mainly on the four grounds:
(a) At the relevant time there was a ban in making appointment by the Committee of Management;
(b) The vacancy for recruitment to the post of Assistant Teacher to the short term vacancy was not published properly in the widely circulated newspapers;
(c) The reservation policy applicable for appointment to the short term vacancy has not been followed; and
(d) The relevant papers for appointment and financial approval were submitted about one year latter.
4. The counter affidavit has been filed indicating that the appointment was made on 08.08.1996, however, the papers for approval were sent to, the Deputy Director of Education on 26.07.1997. According to the respondents the vacancy was not advertised in two State level newspapers having wide circulation and while making appointment the reservation policy of the State Government was not followed and the committee of management has no power to issue appointment letter unless a prior approval was granted by the competent authority. Since a ban was applicable in view of the direction of the superior authorities of the State Government in making appointment to the short term vacancy and the approval for appointment and finance was received after one year, therefore, the selection in question by the committee of management gives a suspicion that the entire selection was illegal and the committee of management acted beyond its authority and jurisdiction, whereas on behalf of the petitioner it has been contended that the petitioner's appointment was made against the short term vacancy under the provisions of Uttar Pradesh Secondary Education Service Commission (Removal of Difficulties) (Second ) Order, 1981 till the arrival of a regularly selected candidate as contemplated under the Uttar Pradesh Secondary Education Service Commission (Removal of Difficulties) (Third Order), 1982.
5. According to the petitioner, the ban in respect of appointment on ad-hoc basis to the short term vacancy was from 29th June, 1991 to 26th September, 1991 and there was no ban in respect of appointment on short term vacancy in view of the decision of this Court in 1996 (1) A.W.C. 556 (Mukesh Kumar v. State of U.P. and Ors.), where prior permission/approval of any of the authority was held not to be required for filling up such vacancies in non-substantive capacity, and the ban at the relevant time was not applicable in view of the judgment of this Court in 1995 HVD Vol.-I (95) (Ramesh Mohan Pandey and Ors. v. District Inspector of Schools and Ors.).
6. It has also been contended on behalf of the petitioner that the vacancy was properly advertised in two newspapers, namely, 'Dainik Sainik' and 'Desh Ratna', which had wide circulation in the district and according to the petitioner the appointment made in short term vacancy could not be said to be illegal in view of the law laid down by this Court in 1984 UPLBEC 484 (Smt. Rani Kumar v. The Chancellor, Meerut University, Lucknow and Ors.), where the vacancies advertised in two newspapers only against the provisions of advertising the same in three newspapers was not held to be illegal and also in view of the decision of the Supreme Court in AIR 1998 SC 331 (Arun Tewari and Ors. v. Zila Mansavi Shikshak Sangh and Ors.), where the appointment and the selection, even if, was made even without advertising the vacancies in the newspapers in the peculiar facts and circumstances was not held to be illegal. According to the petitioner in view of the judgment of this Court in (1999) 2 UPLBEC 1621 (Smt. Pratima Chauhan and Anr. v. Regional Deputy Director of Education (Madhyamik), Agra and Ors.) the vacancy advertised in only one newspaper for making appointment to the short term vacancy can not be said to be illegal as the same may be technical irregularity as the appointment in question was to continue till arrival of a regularly selected candidate from the Commission. In the light of the above submissions the petitioner has contended that the deemed approval shall be applicable in respect of the appointment and finance w.e.f. 2nd August, 1997 and the petitioner is entitled for salary with effect from 2nd August, 1997.
7. In respect of non-observance of reservation policy of the State Government in making appointment learned counsel for the petitioner has contended that the reservation policy of the State Government is not applicable in the short-term vacancy in view of the judgment of this Court in (1999) 2 UPLBEC 1621 (Smt. Pratima Chauhan and Anr. v. Regional Deputy Director of Education (Madhyamik), Agra and Ors.). In Smt. Pratima Chauhan (supra) in paragraph-8 it was specifically indicated that the question of reservation does not arise in the case of ad-hoc appointment against the short term vacancy.
8. It has further been contended on behalf of the petitioner that when appointment to the short term vacancy was made after adopting required procedure of law and the management did not submit the papers for a long time, the lapse of the management, which was beyond the control of the petitioner, could not be taken as a legal infirmity in respect of granting financial approval, where the competent authority had made lapse on its part and did not take any decision of financial approval when the papers were sent on 26.07.1997 itself and the refusal was communicated on 19.8.1997. According to the petitioner, this aspect was considered by this Court (D.B.) in (1998) 3 UPLBEC 1722 (Ashika Prasad Shukla v. District Inspector of Schools, Allahabad and Ors.) in paragraph-16, which reads as below: -
"16. Paragraph 2(3)(iv) of the Second Removal of Difficulties Order is not phrased in a prohibitory language as was the language used in Section 16-F(1) of the U.P. Intermediate Education Act, 1921. The words 'prior approval' have been used in Sub-clause (ii) of paragraph 2 (3) of the Second Removal of Difficulties Order and a conjoint reading of Sub-clauses (ii), (iii) and (iv) of Clause (3) of paragraph 2, no doubt, leads to an inescapable conclusion that the appointment would be issued under the signature of the Manager only on the approval having been communicated by the District Inspector of Schools within seven days of the receipt of the papers or where the approval is deemed to have been accorded as visualised by Sub-clause (iii) of Clause (3) of paragraph 2 of the Second Removal of Difficulties Order. However, appointment if made prior to approval or deemed approval, would become effective from the date of approval of deemed approval as held by the Division Bench of this Court in Lalit Mohan Misra. There is nothing on the record to connote that pre-requisite conditions attracting deemed approval were not satisfied in the instant case. The learned Single Judge has also not addressed himself to this facts of the matter and the judgment under appeal on this score too cannot be sustained."
9. I have heard learned counsels for the parties, I find that undisputedly the petitioner's appointment was made to the short term vacancy, for which proper advertisement was made in two newspapers, consequently at least 15 candidates were participated in the selection, where the petitioner on merits was given appointment by the Committee of Management and the papers for financial approval, even if, sent by the Management at belated stage, the lapse of management could not be taken adversely against the petitioner when the competent authority itself had made a lapse in not making a decision as required under the law and has refused to grant approval on 19.08.1997, i.e., much beyond the prescribed period, therefore, the decision of Deputy Director in refusing the financial approval along with appointment is not legally sustainable. I find force in the contentions of the petitioner, therefore, the writ petition is liable to be allowed. The impugned orders dated 18.11.1.999 and 19.08.1997 are set aside and the respondents are directed to consider the case of the petitioner for according approval to the appointment as well as granting financial sanction from the date of the appointment of petitioner and she is entitled to the salary if she is serving continuously and teaching in the college in question.
10. In view of the above observations, writ petition is allowed.