Sunil Ambwani, J.
1. This writ petition has been filed for a writ of mandamus directing the opposite parties to promote petitioner on the post of Lecturer (Civics) in Raja Ratan Sen Intermediate College, Nichlaul, Maharajganj.
2. 1 have heard Dr. R. G. Padia senior advocate, assisted by Sri Prakash Padia for the petitioner, and Sri Ashok Khare, senior advocate, assisted by Sri V.K. Singh for the respondents.
3. The permanent principal of the college died on 7,1.1992, Sri Vlshnudeo Upadhyaya, a permanent Lecturer in the college was appointed in his place on officiating basis. The appointment was approved by the District Inspector of Schools on 16.9.1992. For filling up the short-term vacancy caused by ad hoc promotion of Sri Upadhyay. the management invited applications. Sri Arun Kumar Jaiswal, respondent No. 3. responded to the advertisement and applied for the post. He was selected. The papers relating to his selection were sent to District Inspector of Schools on 19.1.1993. Since no orders were passed by the District Inspector of Schools within seven days, the management issued an appointment order on 27.1.1993, in pursuance thereof, he Joined on the same day. He, however, did not get salary, on which a writ petition was filed by him which was dismissed by this Court on 2.4.1993. Aggrieved, he filed Special Appeal No. 218 of 1993. In the meantime, Pateshwari Pandey, the petitioner, made a representation to the District Inspector of Schools dated 2.3.1993 for his promotion, which was allowed and the appointment of Arun Kumar Jaiswal was disapproved by the District Inspector of Schools on 26.3.1993. The petitioner, thereafter made a representation for his promotion on the post of Lecturer. The special appeal came to be decided on 6.10.1993, holding that the vacancy caused on the promotion of Sri Upadhyay is a short-term vacancy, and that the District Inspector of Schools shall redecide the controversy treating the vacancy as such in accordance with the procedure prescribed in para 2 of the U. P. Secondary Education Services Commission (Removal of Difficulties) (Second Amendment). Order, 1982.The District Inspector of Schools thereafter passed the impugned order dated 11.3.1984. He found that petitioner has filed a writ petition, which is pending, and that Sri Arun Kumar Jaiswal, the respondent No. 3 Lecturer (Civics) is continuing in pursuance of the order of the High Court dated 6.10.1993, and thus until the decision of the High Court, the payment of salary to Arun Kumar Jaiswal, the respondent No. 3 was approved.
4. Dr. R. G. Padla submits that according to judgment in special appeal and the Full Bench decision in Charu Chandra Tiwari v. District Inspector of Schools, 1990 (1) AWC 310 : 1990 VPLBEC 16O, short-term vacancy could be filled only by promotion and that since the petitioner was eligible to be promoted, the vacancy should have been filled by his promotion and not by the appointment of Sri Arun Kumar Jaiswal. He also challenged the validity of the appointment of respondent No. 3 on the ground that there was no advertisement and the procedure prescribed was not followed. Sri Ashok Khare. on the other hand, relies upon a Division Bench decision in Suresh Chandra Misra v. District Inspector of Schools, 2000 (2) AWC 1148 : (2000) 1 UPLBEC 699, in which in similar facts after noticing Full Bench decision in Roetfia Raizada v. Committee of Management. (1994) 3 UPLBEC 1551, in which Charu Chandra Tiwari case was considered, it was held as follows :
'9. The Full Bench was itself relying on an earlier decision of the Court in Charu Chandra Tiwart v. District Inspector of Schools. What is relevant is on what the Full Bench has noticed towards the end of the paragraph. The Full Bench has laid down that a vacancy, in the circumstances as the present one, has to be filled up first by promotion from amongst the senior-most teachers in the next lower grade. The emphasis is on an exercise of filling a vacancy initially from amongst the candidates available at theInstitution Itself by promotion. The Full Bench adopts the reasoning (in the case referred to) that an ad hoc appointment by direct recruitment is permissible only if any eligible teacher at the Institution is not available. In that case, recourse can be resorted to by making an appointment through direct recruitment. Suffice it to say either way the appointments, as may be made, given the exigencies of the situation, would have the status of being ad hoc. Consequently, there is no rigidity that a vacancy, in context, will be filled with promotion of an in house candidate. This position has been clarified by the Full Bench by laying down that first the Committee of Management will assess on the eligible candidates being available within the Institution so as to maintain standards of teaching, thus, the reference to eligible candidates. If eligible candidates are available, then, an appointment will be made on an ad hoc capacity from within the institution until a duly selected candidate is returned from the Commission.
10. But if there be no eligible candidate within the Institution and this will need to be placed on record, then, nothing stands in the way of the Committee of Management to take recourse to make a direct recruitment as an alternate, on an ad hoc basis.
11. To that extent, there is an error in the judgment of the learned Judge.
12. In the present case, it would be appropriate that the record be remitted to the Committee of Management for Its decision to come to a conclusion whether an eligible candidate within the institution was available or not available, at the relevant time. If the Committee of Management comes to the conclusion that there were no eligible candidates available for promotion within the institution, then, the appointment so made shall be retained.'
5. Sri Ashok Khare submits that Arun Kumar Jaiswal the respondent No. 3 is teaching and getting his salary since 1993, and has drawn the attention of the Court to the supplementary-affidavit of Arun Kumar Jaiswal annexing therewith an order of regularisation passed by Joint 'Director of Education-VII Region, Gorakhpur, dated 29.9.2001, regularising Arun Kumar Jaiswal on the post of Lecturer in Raja Ratan Sen Intermediate College, Nichlaul, Maharajganj with effect from the date of his appointment in pursuance of provisions of Section 33B of the U. P. Secondary Education Selection Board (Amendment) Act. 1998.
6. I have considered the respective contentions. On the date when the vacancy arose, it was a short-term vacancy, and that in Special Appeal No. 218 of 1993, the Division Bench directed the District Inspector of Schools to re-decide the case treating the vacancy as short-term vacancy. In the circumstances, the procedure provided in the Removal of Difficulties (Second) Order, for considering permanent senior-most teacher in the next higher grade to be promoted to fill the vacancy only the regular incumbent returns to the post or the vacancy become substantive, was required to be followed. The provision, however, has been Interpreted by Division Bench of this Court in Suresh Chandra Misra (supra). Applying the ratio of the Judgment in Suresh Chandra Misra's (supra) case to the facts and circumstances in the present case, in which the services of the respondent No. 3 have been regularised under Section 33B of the Act, 1982, the appointment of Arun Kumar Jaiswal, the respondent No. 3 cannot be held to be invalid. It is for the Committee of Management at the relevant time to decide whether the permanent senior-most teacher in the institution is eligible to man the post which has fallen vacant on short-term basis. In case the management finds as it would not be in the interest of the students to promote the senior-most teacher, it can resort to filling up short-terms vacancy by direct recruitment.
7. In the present case due to long period of time after which the writ petition has come up for hearing, the services of respondent No. 3 have also been regularised. He is serving the institution since 1993 and is getting salary. The regularisation has cured the initial defect, if any. In his appointment. In any case, after the vacancy become substantive, it had to be filled by direct recruitment.
8. In the aforesaid circumstances, I do not find any justificationto Interfere into the appointment ofrespondent No. 3 ; both on theground raised in the writ petition aswell as on equity and as such the writpetition is dismissed.