JUDGMENT Arun Tandon, J.
1. Heard Sri J.P. Singh, Advocate on behalf of the petitioners, Sri V. K. Singh, Advocate on behalf of newly added respondent No. 3 and learned Standing Counsel on behalf of the respondent No. 2.
2. The parties have already exchanged their affidavits and are agree that the present writ petition may be disposed of finally.
3. The petitioners, seven in number have filed this writ petition for a writ of mandamus commanding the the State authorities to release the salary in their favour appointed in Fazal-ur Rahman Islamia Inter College, Bareilly, which is a recognized minority institution and is on the grant-in-aid list of the State Government, in accordance with the provisions of U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971.
4. In the said writ petition it has been stated that the Committee of Management of the institutions was in effective control regularly. One post of Assistant Teacher in L.T. Grade in the institution fell substantively vacant because of the promotion of Mr. Zaheed Ali Khan as lecturer on 28th July, 2001, one post of L.T. Grade teacher fell vacant because of retirement of Mohd. Sayeed Khan on 30th June, 2001, another post of LT. Grade teacher fell vacant because of promotion of Sri Khan Shaj Baz Iftekhar as lecturer on 27.06.2001, one post of L.T. Grade teacher became substantively vacant because of the promotion of Sri Anwar Ali Rizvi as lecturer on 28.07.2001 and another post of L.T. Grade teacher fell vacant because of the promotion of Mohd. Shakir Khan as lecturer on 28.07.2001. As such two posts of lecturers, one in Hindi and another in Physics became available due to retirement of incumbents. Against these 7 vacancies petitioners claim appointment by direct recruitment.
5. The grievance of the petitioners is that such appointments have been made strictly in accordance with the prescribed procedure under Section 16-FF of the U.P. Intermediate Education Act, 1921. The petitioners have been selected on their respective posts. The relevant papers in that regard were also transmitted to the office of the District Inspector of Schools, Bareilly for necessary approval. Since the District Inspector of Schools neither approved or disapproved the appointment as recommended by the Committee of Management, under deeming provisions, a resolution was passed by the Committee of Management to offer appointment to selected teachers (petitioners). The salary of the aforesaid teachers (petitioners) Is not being released by the District Inspector of Schools.
6. The petitioners being left with no option have approached this Court under Article 226 of the Constitution of India.
8. Sri V.K. Singh, learned counsel for the private respondents submits that there were no vacancies in the institutions and therefore, the exercise taken by the Committee of Management for making appointments on the post of L.T. Grade was based on misconception of facts and is a mere paper of transaction. Petitioners as such are not entitled to any relief.
9. I have heard learned counsel for the parties and have gone through the records.
10. So far as the grounds raised on behalf of the District Inspector of Schools as well as other state authorities for refusing salary to the selected Teachers are concerned; suffice it to point out that the said grounds so raised are unsustainable in the eyes of law.
11. From the records of the present writ petition specifically paragraph-4 of the Rejoinder affidavit it is apparently clear that under various orders of this Court, the Committee of Management, which has made the selection and appointment, was ineffective control of the institution on the relevant dates. It is also apparent that the salary of the teachers of the institution was being distributed by the authorities under joint signatures of the nominees of the said management. Mere pendency of series of writ petitions before this Court cannot be a ground to object to the lawful exercise of powers by the Committee of Management in control, therefore, the said ground cannot be the basis for refusing the salary to the selected Teachers.
12. So far as the ban imposed under the Government Order is concerned, the same has no application, inasmuch as the ban order was issued subsequent to the appointment of the petitioners and being prospective in nature cannot adversely affect the appointments already made.
13. The last objection qua approval having not being obtained before making appointment runs contrary to regulations 17 (92)(g) of Chapter II of the Regulations framed under the U.P. Intermediate Education Act, 1921, which reads as follows:
"Kishi pad key liye samasht avyarthiyon ka sakshatkar kar liye janey key paschat chayan samiti ka sabhapati kiye gaye chayan ko karyavahiyon par do pratiyon meyn ek tippani taiyar karayega jishmeyn chuney gal avarthi kaa naam tatha pratiksha such! key do any a avarthiyon key naam ullikhit kiye jayengey, ish prakar taiyar k! gai tippani par chayan samiti key sabhapati tatha anya sadashya hastakshar karengey aur apana-apana purn naam, pad naam aur pata tatha dinank ullikhit karengey, sabhapati ish tippani ki ek prati tatha viniyam 10 key khand (cha) meyn nirdit vivaran ki ek prati dhara 16-Cha cha key adhin yatha upekchhit anumodan key liye, yathaisthathi, sambhagiye up-shiksha nideshak ya nirikshak ko turant agrasarit kareyga, sambandhit abhilekhon key prapt honey key dinand key ek maah key bhitar sambhagiye Up shiksha nideshak ya nirikshak , un par apana nirnay de dengey aur aishey na karney par anumodan pradan kar diya gaya samjha jayega."
14. The facts with regards to relevant papers having been transmitted to District Inspector of Schools for approval and that no orders were passed ether approving or disapproving the recommendations within time have not been disputed by the respondents. Hence the management was justified in relying upon the deeming provisions and in making appointments accordingly.
15. Thus non of the grounds as stated in the counter affidavit are sufficient to deny salary to the petitioners under the provisions of U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971. However, this Court cannot loose sight of the fact that on behalf of the private respondent it has been stated that there were no vacancies available in the institution against, which any appointment could be made. The petitioners have, however, disputed the correctness of the said allegations with reference to various paragraphs of the writ petition.
16. In the opinion of the Court such issues of fact must necessarily be attended to at the first instance by the District Inspector of Schools itself, and therefore, it would be appropriate in the facts of the present case that the District Inspector of Schools may be directed to consider the claim of the teachers (petitioners) appointed by the Committee of Management for payment of salary with reference to the issue as to whether there were existing vacancies against which the petitioners could have been appointed and whether the proscribed procedure has been followed or not. However, the grounds stated in the counter affidavit on behalf of the District Inspector of Schools shall not be the basis for refusing such appointments and salary, while the mater is being reconsidered by the District Inspector of Schools under order of this Court.
17. The writ petition is accordingly disposed of with a direction that the petitioners may make a fresh detailed representations before the District Inspector of Schools supported by such documents as they may be advised for establishing that there were existing vacancies against duly created posts in the institution available for the appointment of seven teachers (petitioners) and that the prescribed procedure has been followed, within ten days from today along with a certified copy of this order. On such a representation being made by the petitioners the District Inspector of Schools shall call for records and shall afford opportunity of hearing to the parties including the Principal of the institution to have his say in the matter. The District Inspector of Schools shall record categorical finding as to whether the appointments of the seven teachers (petitioners) have been made against the existing duly created vacancies after following the prescribed procedure or not. If the District Inspector of Schools comes to the conclusions that the appointments of the petitioners have been made against existing vacancies in accordance with procedure prescribed under Intermediate Education Act, 1921, he shall pass appropriate orders for release of salary to the teachers (petitioners). The aforesaid exercise may be completed within six weeks from the date a certified copy of this. order Is produced before the District Inspector of Schools. In the meantime the seven Teachers appointed by the Committee of Management may continue In the employments of the institution. However, the payment of salary to the said Teachers shall be subject to the orders to be passed by the District Inspector of Schools as aforesaid.
18. With the aforesaid directions the writ petition is disposed of finally. 26.7.2005 Sushil/-