JUDGMENT R.A. Sharma, J. - Against a vacancy on the post of lecturer of Geography in Chaudhari Jawahar Singh Intermediate College, Sutiyani, Etawah (hereinafter referred to as college), which arose on account of transfer of the permanent lecturer of Geography to another college. the Committee of Management of the college by resolution dated 25-7-1983 resolved to appoint Sri Brajesh Chandra Yadav (hereinafter referred to as petitioner) as temporary lecturer, subject to the approval of the District Inspector of Schools (hereinafter referred to as D.I.O.S.). The D.I.O.S. by its order fated 9.11.1983 granted approval to the appointment of the petitioner as temporary lecturer under Regulation 9 (31 of Chapter II of the Regulations framed under U.P. Intermediate Education Act. The manager or the college accordingly issued an appointment letter dated 10-11-1983 for a period of six months or till candidate selected by the Secondary Education Commission joins, whichever is earlier. After receiving the. appointment letter the petitioner joined the college as lecturer in, Geography. However, with effect from May, 1985 the petitioner was not paid his salary. He accordingly made a representation to the D.I.O.S., who directed the management for payment of salary to the petitioner. As order of the D.I.O.S. for payment of salary was not complied with the petitioner has filed a writ petition No. 10546 of 1986 for a writ of mandamus commanding the respondents to treat the petitioner as permanent lecturer in Geography by virtue of regularisation of his service tinder S. 33-A' of U.P. Secondary Education Service Commission and Selection Board Act 1982 (hereinafter referred to as Act) and for making regular payment of his monthly salary as well as arrears of pay. This Court passed interim orders dated 5-5-1987 and 19-11-1987, whereby directions have been issued to the management to pay salary to the petitioner regularly; it was however left open to the management of the college either to take or not to take any work from him. We have been informed that in pursuance of these interim orders the petitioner is getting salary regularly, although he is not working as lecturer in the college. 2. In the meantime on 27-10-1983 the Committee of Management of the college, through D.I.O.S. has notified vacancy of lecturer in Geography to the Secondary Education Commission. The Commission had accordingly invited applications and Sri Jitendra Singh, petitioner in writ petition No. 3046 of 1990. 2. In the meantime on 27-10-1983 the Committee of Management of the college, through D.I.O.S. has notified vacancy of lecturer in Geography to the Secondary Education Commission. The Commission had accordingly invited applications and Sri Jitendra Singh, petitioner in writ petition No. 3046 of 1990. has been selected by the Commission for aforesaid post and by notification dated 18-8-1981 the Commission communicated it to the Committee of Management. Initially the Committee of Management did not appoint Sri Jitendra Singh but in view of order dated 12-12-89 passed by the D.I.O.S. he was given the appointment letter by the management, and he joined the college as lecturer in Geography in the month of December, 1989. He has been paid his salary by the college for the month of December. 1989. Thereafter the U.I.O.S. issued order dated 2-1-1990 suspending his earlier order dated 12-12-1989, in pursuance whereof he had joined the college. Against this order of D.I.O.S. dated 2-1-1990 Sri Jitendra Singh had filed writ petition No. 3046 of 1990. Sri Brajesh Chandra Yadav has filed another writ petition No. 18660 of 1989 before this Court, against the selection of Sri Jitendra Singh by Secondary Education Commission. 3. All the three writ petitions have been consolidated together and we have heard learned counsel for parties. 4. Controversy centres round the question as to whether services of Sri Brajesh Chandra Yadav stood regularised under S. 33-A of the Act. If the benefit of the aforesaid provision is not given to Sri Brajesh Chandra Yadav, Sri Jitendra Singh, the petitioner in writ petition No. 3046 of 1990, having been selected by Secondary Education Commission should join the post of lecturer of Geography and service of Brajesh Chandra Yadav shall stand terminated subsegeunt to the appointment of Sri Jitendra Singh. Section 33-A of the Act is quoted below : "33-A. (1) Every teacher directly appointed before the commencement of Uttar Pradesh Secondary Education Service Commission and Selection Boards (Amendment) Ordinance, 1985, on ad hoc basis against a substantive vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Service Commission (Removal of Difficulties) Order, 1981, as amended from time to time who possesses the qualifications prescribed under. or is exempted from such qualifications in accordance with, the provisions of the Intermediate Education Act, 1921, shall, with the provisions of the Intermediate Education Act, 1921, shall, with effect from the date of such commencement, be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such appointment up to the date of such commencement. (2) Every teacher deemed to have been appointed in a substantive capacity under sub-section (1). shall be deemed to be on probation from the date of such commencement. (3) Nothing in this section shall be construed to entitle any teacher to substantive appointment (a) if on the date of such commencement, such post had already been filled or selection for such post had already been made in accordance with this Act, or (b) if such teacher was related to any member of the Committee of Management or the Principal, or Head Master of the institution concerted Explanation - For the purpose of this sub- section a person shall be deemed to be related to another if : (i) they are members of a Hindu Undivided family, or (ii) they are husband and wife; or (iii) the one is related to the other in the manner indicated in the Second Schedule to the Intermediate Education Act, 1921." 5. Under S. 33-A of the Act only the services of a teacher, who has been appointed directly on ad hoc basis against a substantive vacancy in accordance with U.P. Secondary Education Service Commission (Removal of Difficulties) Order, 1981, as amended from time to time, can be regularised. Paras 2 and 5 of the Removal of Difficulties Order. 1981 are quoted below : "2. Paras 2 and 5 of the Removal of Difficulties Order. 1981 are quoted below : "2. Vacancies in which ad hoc appointment can be made - The management of an institution may appoint by promotion or by direct recruitment a teacher on purely ad hoc basis in accordance with the provisions of this Order in the following cases, namely : (a) in the case of a substantive vacancy existing on the date of commencement of this- Order caused by death, retirement, resignation or otherwise; (b) in the case of a leave vacancy, where the whole or unexpired portion of the leave is for a period exceeding two months on the date of such commencement; (c) where a vacancy of the nature specified in clause (a) or clause (b) comes into existence within a period of two months subsequent to the date of such commencement. 5. Ad hoc appointment by direct recruitment : (1) Where any vacancy cannot be filled by promotion under Paragraph 4, the same may be filled by direct recruitment in accordance with clauses (2) to (5). (2) The management shall as soon as may be, inform the District lnspector of Schools about the details of the vacancy and such Inspector shall invite applications from the local Employment Exchange and also through public advertisement in at least two newspapers having adequate circulation in Uttar Pradesh. (3) Every application referred to in clause (2) shall he addressed to the District Inspector of Schools and shall be accompanied : (a) by a crossed postal order worth ten rupees payable to such Inspector; (b) by a self addressed envelope bearing postal stamp for purposes of registration. (4) The District Inspector of Schools shall cause the best candidates selected on the basis of quality points specified in Appendix. The compilation of quality points may be done on remunerative basis by the retired Gazetted Government servants under the personal supervision of such Inspector. (5) If more than one teacher of the same subject or category is to be recruited for more than one institution, the names of the selected teachers and names of the institutions shall be arranged in Hindi alphabetical order. The candidate whose name appears on the top of the list shall be allotted to the institution the name whereof appears on the top of the list of the institution. This process shall be repeated till both the lists are exhausted. The candidate whose name appears on the top of the list shall be allotted to the institution the name whereof appears on the top of the list of the institution. This process shall be repeated till both the lists are exhausted. Explanation : - In relation to an institution imparting instruction to women the expression "District Inspector of Schools" shall mean the "Regional Inspectress of Girls' Schools". Under Removal of Difficulties Orders, 19M1, selection by direct recruitment of a teacher for ad hoc appointment against a vacancy referred to in paragraph 2 is to be made by the D.I.O.S. under paragraph 5 on the basis of quality points specified in Appendix. Candidate so selected by the D.I.O.S. can be appointed by the management in accordance with paragraph 5 against a vacancy specified in paragraph 2 of the Removal of Difficulties Order. From a perusal of the order dated 10-11-1983 of the D.I.O.S. (Annexure-3 to the writ petition) it is clear that by resolution passed on 25-7-1983 the Committee of Management proposed to appoint Sri Brajesh Chandra Yadav as temporary lecturer in Geography, subject to the approval of the D.I.O.S. The D.I.O.S. vide order dated 10-11-1983 approved his temporary appointment under Regulation 9(3) of Chapter 11 of the Regulations framed under The Intermediate Education Act. The petitioner was not appointed on ad hoc basis and on the other hand his appointment was temporary under Regulation 9(3). That apart, even his selection as temporary lecturer was made by the Committee of Management and not by the D.I.O.S. The petitioner's appointment was not in accordance with the provisions of Removal of Difficulties Order, 1981. The petitioner not having been appointed on ad hoc basis under Removal of Difficulties Order, 1981, as amended from time to time, his services cannot be regularised and he cannot be deemed to have been appointed in a substantive capacity under S. 33-A of the Act. 6. Learned counsel for the petitioner has submitted that it has been wrongly mentioned in the order of the D.I.O. S. dated 10-11-1983 that the Committee of Management proposed to appoint the petitioner on 25-7-1983 as a temporary lecturer, subject to approval of the D.I.O.S. Resolution of the Committee of Management dated 25-7-1983 has not been filed before this Court. 6. Learned counsel for the petitioner has submitted that it has been wrongly mentioned in the order of the D.I.O. S. dated 10-11-1983 that the Committee of Management proposed to appoint the petitioner on 25-7-1983 as a temporary lecturer, subject to approval of the D.I.O.S. Resolution of the Committee of Management dated 25-7-1983 has not been filed before this Court. From a perusal of the order of D.I.O.S. dated 10-11-1983 it is clear that the petitioner's name for the appointment the appointment as temporary lecturer was proposed by the Committee of Management on 25-7-1983, which was a proved for payment of salary by the D..O.S. under Regulation 9(3). In case any' citation or averment in the order of D. I.O.S. was wrong the petitioner should have specifically pleaded it in his writ petition. We have gone through whole of the writ petition filed by the petitioner And there is no averment to the effect that the observations in the order dated 10-11-1983 of the D.I.O.S. are Wrong. In the absence of any averment to the contrary in the writ petition it has to be presumed that contents of the order dated 10-111-1983 of the D.I.O.S. are correct. 7. It is further argued by the learned counsel for the petitioner that D.I.O.S. had invited applications for the post of lecturer in Geography vide advertisement published in Dainik Jagaran, a Hindi newspaper, on 27-8-1983, and the petitioner had submitted his application in pursuance thereof. In the counter-affidavit of Sri Karam Singh these allegations of the petitioner have been denied, and it has been asserted that there was no publication in Dainik Jagaran of Kanpur on 27-8-1983 and rather the publication was in Dainik Jagaran published from Gorakhpur, which has no circulation in district Etawah. It is not necessary to go into this controversy raised by the parties because Committee of Management had already selected the petitioner on 25-7-1983 whereas advertisement. was issued on 27-8-1983. There was no averment in the writ petition that the ' petitioner's selection was made b the D.I.O.S. in accordance with para 5 of Removal of Difficulties Order. The petitioner already having been selected by the Committee of Management on 25-7-1983, the question of his selection by D.I.O.S. does not arise. D.I.O.S. thereafter merely granted approval for temporary appointment under Regulation 9(3). The petitioner already having been selected by the Committee of Management on 25-7-1983, the question of his selection by D.I.O.S. does not arise. D.I.O.S. thereafter merely granted approval for temporary appointment under Regulation 9(3). It appears that as Committee of Management itself has selected Sri Brajesh Chandra Yadav on 25-7-1983 pro steps for selection by the D.I.O.S., after advertisement, were taken. 8. As services of the petitioner cannot be treated to have been regularised and petitioner cannot he deemed to have been appointed in substantive capacity under Section 33-A of the Act, the writ petition No. 10546 of 1986, Sri Brajesh Chandra Yadav v. D.I.O.S. is liable to be dismissed. 9. In Writ petition No. 18660 of 1989, Brajesh Chandra Yadav v. U.P. Secondary Education Service Commission the selection of Sri Jitendra Singh, by Secondary Education Commission, has been challenged on the ground that services of the petitioner stood automatically regularised under S. 33-A of the Act and as such there is no vacancy against which selection could have been made by Secondary Education Commission. We have already held that services of Sri Brajesh Chandra Yadav cannot be said to have been regularised under Section 33-A of the Act and as such Secondary Education Commission was fully justified in making selection of Sri Jitendra Singh. This writ petition, accordingly is also liable to be dismissed. However, writ petition No. 3046 of 1990, Jitendra Singh v. District Inspector of Schools is liable be allowed, because Jitendra Singh has been selected by the Commission for the vacancy of lecturer of Geography of the college and order of D.I.O.S. dated 2-1-1990, staying the appointment of Jitendra Singh is without jurisdiction, and is liable to be set aside. 10. On behalf of Committee of Management it has however been argued that post of lecturer in Geography has lapsed in 1980 and as such no appointment can be made against this post. It is further submitted that there are no sufficient number of students who have opted for Geography in the college, hence this post is not liable,to continue. It was Committee of Management which appointed Sri Brajesh Chandra Yadav in 1983. Again it was Committee of Management which sent requisition to the Secondary Education Commission through the D.I.O.S. for selection of permanent lecturer in Geography. It was on the request of the Committee of Management that Sri Jitendra Singh was selected by the Commission. It was Committee of Management which appointed Sri Brajesh Chandra Yadav in 1983. Again it was Committee of Management which sent requisition to the Secondary Education Commission through the D.I.O.S. for selection of permanent lecturer in Geography. It was on the request of the Committee of Management that Sri Jitendra Singh was selected by the Commission. It was Committee of Management who issued the appointment letter to Sri Jitendra Singh. Even the appointment has been made on the request of the Committee of Management. As such it is not open to it to argue that the 'appointments for the aforesaid reasons, are invalid. The question as to whether the post has lapsed or not is a question of fact. It cannot be allowed to be raised for the first time before this court, by the management who is one of the respondents in these writ petitions. The other plea of the management is also not liable to be sustained. The management had earlier terminated the services of Sri Brajesh Chandra Yadav on the ground of inadequate number of students in Geography. This order of the management was set aside by the D.I.O.S. vide order dated 21-12-1984. Sri Brajesh Chandra Yadav, thereafter, rejoined the college in 1984. This order of the D.I.O.S. has not been challenged by the management and has become final. Such a plea cannot now be permitted to be raised before this court by means of counter- affidavit. 11. Writ Petitions Nos. 10546 of 1986 and 18660 of 1989 are dismissed. Writ Petition No. 3046 of 1990 is allowed and order of D.I.O.S. dated 2-1-1990 is quashed. In view of the facts and circumstances the parties shall are their own costs.