O. P. Garg, J.@mdashBy means of this writ petition, it is prayed that the order dated 1.3.1994, which is contained in Annexure 5 to the writ
petition, passed by District Inspector of Schools (for short ''D.I.O.S.'') Ghazipur--respondent No. 1 be quashed and the respondent No. 1 be
commanded to release salary of the petitioner w.e.f. 31.12.1993 onwards.
2. Counter and rejoinder-affidavits have been filed. Dr. R. G. Padia, learned counsel for the petitioner, as well as, learned standing counsel for the
respondent No. 1 were heard at a considerable length.
3. There is an institution Navli Inter College, Navli, district Ghazipur, which is duly recognised Intermediate College and is on the grants-in-aid list
of the State Government. One Salig Ram Gupta who was working as permanent Lecturer in English retired on 30.6.1992 and in his place one Shiv
Murat Singh was promoted from the post of Assistant Teacher in L.T. grade to the post of Lecturer in English. The appointment of Shiv Murat
Singh was approved by D.I.O.S. on 20.7.1993. In the vacancy, which occurred on account of promotion of Shiv Murat Singh, as Lecturer in
English, the petitioner was appointed as Assistant Teacher in L.T. grade, .after complying with the necessary formalities. A letter along with all the
relevant documents was sent to the D.I.O.S. for according approval to the appointment of the petitioner, which was made to fill up the short term
vacancy under the provisions of Removal of Difficulties Order (Second). 1981. The D.I.O.S., by the impugned order dated 1.3.1994, refused to
grant the approval primarily on the ground that the process for filling in the vacancy caused on account of promotion of Shiv Murat Singh could not
be commenced prior to 20.7.1993 on which date approval was granted to the appointment of Shiv Murat Singh. The impugned order has been
challenged on the ground that the Management had full power to initiate the procedure for making appointment regarding a short term vacancy and
that this can be done even before the actual vacancy arises, and that the vacancy would not occur on the date on which approval to the
appointment of the teacher who was promoted as a Lecturer was accorded, but on the date the promoter incumbent actually joined.
4. At the outset, it may be mentioned that the validity or otherwise of the appointment of the petitioner under the Second Removal of Difficulties
Order. 1981 is not challenged by the respondents. Even otherwise, the appointment of the petitioner was made after complying with the provisions
contained in paragraph 2 of the Removal of Difficulties Order. 1981. The post was advertised on 21.1.1993 inviting the applications from the
eligible candidates and the aspirants for the post were interviewed on 14.3.1993. The petitioner obtained highest quality point marks and was
recommended by the Select Committee for appointment. The relevant papers were sent to the D.I.O.S. on 18.3.1993 and when no reply was
received within the mandatory period of 7 days, as contemplated in para 2 (3) (iv) of the Removal of Difficulties Order, 1981, an order of
appointment dated 31.12.1993 was issued to the petitioner, who joined the institution on the same day.
5. The only point for consideration in the present writ petition is that whether the Management could initiate process for filling up short term
vacancy even before granting of approval by the D.I.O.S. to the appointment on promotion of the seniormost teacher in the L.T. grade to the post
of Lecturer. In the instant case, approval to the appointment of Sri Shiv Murat Singh was accorded on 20.7.1993. By the impugned order dated
1.3.1994, the D.I.O.S.--respondent No. 1 has taken the view that since the vacancy in the L.T. grade arose on the date on which approval was
accorded to the appointment of Sri Shiv Murat Singh on 20.7.1993, the advertisement. interview and selection to the post of Assistant Teacher in
the L.T. Grade could not take place. The ground taken by the D.I.O.S. in the impugned order to disapprove the appointment of the petitioner is
wholly untenable and wide off the mark. There is no prohibition in any Education Law that the process of filling up the vacancy cannot be initiated
in anticipation of vacancy, muchless, a short term vacancy. In the instant case, the vacancy has, in fact, arisen in the L.T. grade on the date on
which Shiv Murat Singh was appointed on promotion as Lecturer in English. The fact that his appointment on promotion was approved
subsequently by the D.I.O.S. on 20.7.1993, would not deprive the incumbent, namely, Sri Shiv Murat Singh, of his legitimate claims and benefits
on the post of Lecturer from the date on which he actually joined. The approval, which is accorded by the D.I.O.S. subsequent to appointment
would relate back to the date of actual joining. Natural corollary of this finding is that the vacancy in L.T. grade had occurred on the date on which
Shiv Murat Singh vacated the post.
6. Even if, for the sake of argument. It may be taken that the vacancy had, in fact, arisen on 20.7.1993, on which date, the approval was accorded
to the appointment of Sri Shiv Murat Singh, the petitioner was appointed on 31.12.1993 on which date admittedly the vacancy was in existence
even according to the stand taken by the D.I.O.S. Learned counsel for the petitioner made a reference to Prabhu Dayal and others v. District
Inspector of Schools, Firozabad and others 1995 AWC 71, in which it was held that Management is not debarred from taking steps in advance by
advertising the post, inviting the applications and holding the interview, etc., to fill up a vacancy, which is likely to arise subsequently. The analogy
of the aforesaid cage is applicable on all fours to the facts of the present case also.
7. In the light of above discussion, the impugned order dated 1.3.1994, which is based on an entirely illegal premise has to be set aside and in view
of the provisions of paragraph 2 (31 (iv) of the Second Removal of Difficulties Order, 1981, the petitioner shall be deemed to have been duly
approved for appointment in the short term vacancy on account of promotion of Sri Shtv Murat Singh.
8. In the result, the writ petition is allowed and ignoring the order dated 1.3.1994, the petitioner shall be deemed to have been validly appointed as
Assistant Teacher in L.T. grade, in the short term vacancy, w.e.f.. 31.12.1993. It is directed that the respondent No. 1 shall release and pay salary
to the petitioner for the period 31.12.1993 onwards till such period the petitioner continues to work on the said post.