JUDGMENT M.L. Bhat 1. The petitioner was appointed on ad-hoc basis as lecturer in Hindi in leave vacancy on 30-1-87 which is evident by Annexure-1 to the writ petition. Financial concurrence was given to the appointment on 2-2-87. That the person in whose leave vacancy the petitioner was appointed is said to have resigned his post with effect from 18-8-89. He was a confirmed lecturer. 2. On 14-5-90, it is stated that the Manager of the institution informed the Principal of the College that a substantive vacancy had arisen due to the acceptance of resignation of Sri Barmeshwar Nath Rai with effect from 15-1-90, Regularisation order of the petitioner had not been received, therefore, his salary shall not be paid. ON the letter of the Manager the Principal is said to have directed the College authority not to prepare the salary bill of the petitioner of May, 1990. The petitioner was informed that short term vacancy was converted into substantive vacancy so he will be treated to be not in service and his services would be deemed to have been terminated. The petitioner's case is that till the vacancy is filled up by the Commission he is entitled to hold the post and his services cannot be dispensed with. ON the basis of these facts he claims the salary of the post and prays for a writ of mandamus directing the respondents not to treat the petitioner's services as dispensed with. In the counter affidavit, respondent No. 2 has stated that the petitioner was appointed for a fixed term on ad hoc basis against a leave vacancy. The petitioner's short term ad hoc appointment was approved on the condition that he had to work for a fixed term and on the expiry of the approval granted by the District Inspector of Schools he will cease to hold the post. No further extension was given to the petitioner. The petitioner was granted salary thereafter, to which objection was raised by the District Inspector of Schools. Since the petitioner's fixed term appointment on ad hoc basis had ceased, therefore, there was direction by respondent No. 1 to realise the salary which was paid to the petitioner after the post became subsequently vacant and after his appointment came to an end. The Committee of Management is said to have notified the vacancy of the petitioner to the Commission. The Committee of Management is said to have notified the vacancy of the petitioner to the Commission. The vacancy which was caused by the resignation of a Hindi lecturer is to be filled up by promotion first from the candidates available in the institution on ad hoc basis. The vacancy became available on 15-1-90 when the resignation of a lecturer holding the post on substantive basis was accepted. As such the post had to be filled up by promotion from the teachers available in the Institution. The petitioner, therefore, cannot hold the post. It is stated that there are senior teachers available in the College and they are eligible for being promoted against the vacancy as lecturer. The petitioner cannot be, therefore, paid salary because he has no right to continue on the post. The committee of management is said to have passed a resolution appointing Sri Dinesh Rai on the post of lecturer in Hindi on ad hoc basis in accordance with Removal of Difficulties Orders. This appointment order is marked as Annexure-C.A.-7 to the counter affidavit. 3. The petitioner has filed rejoinder-affidavit also. It is stated that the order of the District Inspector of Schools, whereby he had asked the Management to realise the salary paid to the petitioner is violative of the Court's order. No such order can be passed because the petitioner has discharged his duties. It is stated that the petitioner has been working on ad hoc basis and the vacancy has not been filled by the Commission, therefore, he is entitled to hold the post till the vacancy is filled up under the Commission Act. The eligibility of the person in whose favour resolution of appointment was made is also challenged. It is stated that there is no person eligible in the Institution who can hold the post and the eligibility is to be determined on the date as the vacancy had arisen. 4. The petitioner has filed supplementary rejoinder-affidavit also and lie has reiterated the same plea which he has urged in the rejoinder-affidavit. One Mr. Ram Autar Rai has filed an affidavit on behalf of the respondents stating that the certificate filed by the petitioner with the rejoinder- affidavit issued by the Principal of the Institution regarding continuance of the work of the petitioner is false. One Mr. Ram Autar Rai has filed an affidavit on behalf of the respondents stating that the certificate filed by the petitioner with the rejoinder- affidavit issued by the Principal of the Institution regarding continuance of the work of the petitioner is false. It is stated that the petitioner has not been assigned any work nor was he in service of the College. To this also reply has been filed by the petitioner. It is stated that Ram Autar Rai cannot say any thing about the status of the petitioner. He is only an employee. The petitioner is serving in the institution. 5. Learned counsel for the parties were heard. It is contended by the petitioner that he was appointed in leave vacancy on ad hoc basis initially and the person in whose vacancy the petitioner was appointed did not join the duties. The post was referred to the Commission. The Commission did not fill up the post, therefore, he has a right to remain in service till a regular selection was made for the post. He relied on an authority of this Court i.e. Virendra Kumar Singh v. The District Inspector of Schools, 1990 (Vol.-1) AWC 215, in support of his contention. 6. Learned counsel for the respondents stated that the petitioner was appointed for a short term period and after the short term came to an end, the vacancy became substantive because the original incumbent of the post tendered resignation and that resignation was accepted with effect from 15-1-90 and from that date the substantive vacancy had arisen. Therefore, that vacancy had to be filled up by promotion from amongst the senior most teachers of the same institution, qualified for such appointment. Direct recruitment is not permissible. Direct recruitment can only be permissible in case no such qualified teacher is available from the institution. Reliance is placed on Charu Chandra Tiwari v. The District Inspectors of Schools Deoria, 1991 UP LB EC 160. There are two rival contentions which are to be considered. The petitioner wants to be be in service on ad hoc basis till the post is regularily filled by the Commission. The respondents' contention is that the petitioner has ceased to be an employee of their institution because his appointment was for a short term and after expiry of that term he ceased to be their employee. The post has substantially fallen vacant. The respondents' contention is that the petitioner has ceased to be an employee of their institution because his appointment was for a short term and after expiry of that term he ceased to be their employee. The post has substantially fallen vacant. Therefore, if any ad noc appointment is made for the post that appointment is to be made by promotion from the senior most teachers of the College and by a resolution one person has already been appointed who is senior most in the subject. The two authorities which are cited by learned counsel for the parties in support of their respective contentions lay down law which would apply in two different situations. In case of ad hoc appointment for the post which has been referred to the Commission and the commission has not made an appointment on regular basis, the ad hoc appointee has a right to continue till the commission makes a regular appointment. While making the ad hoc appointment in respect of the vacancy which was substantive, the vacancy is to be filled up by promotion and a senior most eligible candidate from the institution, has to be considered for appointment on ad hoc basis first. If such a person is not available then a man from outside the institution having qualification for the post may be appointed. 7. In the present case admittedly the petitioner was appointed for short term period and his appointment order was also for a fixed term. He was appointed on leave vacancy because he had applied for that vacancy which was caused because the original incumbent of the post had proceeded on leave. With the expiry of the term for which the petitioner was appointed his appointment ceased to be effective but he seems to have been continued under some misconception. However, the vacancy became available substantively and at that point of time a senior most man from the College was entitled to be considered for appointment on ad hoc basis till a regular selection was made. The petitioner being out sider to the institution could not claim appointment on ad hoc basis against the post which has substantively fallen vacant after his short term appointment in leave vacancy had ceased to be operative. When the vacancy became substantive a benior person from the College having qualification to hold the post is to be appointed. The petitioner being out sider to the institution could not claim appointment on ad hoc basis against the post which has substantively fallen vacant after his short term appointment in leave vacancy had ceased to be operative. When the vacancy became substantive a benior person from the College having qualification to hold the post is to be appointed. Learned counsel for the petitioner tried to argue that there was no person in the College who was eligible for being appointed, therefore, the petitioner could continue on the post and his services have not been terminated as yet. This assertion is refuted successfully by the other side because the resolution of the college in favour of the person who is said to be senior and qualified is already there. There is presumption of correctness attached to that resolution. That resolution has not been challenged, therefore, it cannot be said that no person is available from the College for being appointed on ad hoc basis as lecturer against the substantive vacancy which had occurred with effect from 15-1-90 when resignation of the original holder of post was accepted. The petitioner's services have been terminated. He cannot claim continuance on the post. It is not correct for the petitioner to say that he continues to hold the post on ad hoc basis. He may have continued there for some period for which he is entitled to draw the salary if he has worked in the College. He cannot claim the same after passing of the resolution by the college and after his services were terminated. He can not force himself on the college on the ground that he was initially appointed for a short term. That arrangement has ceased to be effective. With the development of new situation with effect from 15-1-90 the college has attained right to make appointment against the substantive post from amongst one of its senior most teachers if available in the College. That is what has been done in the present case. That arrangement has ceased to be effective. With the development of new situation with effect from 15-1-90 the college has attained right to make appointment against the substantive post from amongst one of its senior most teachers if available in the College. That is what has been done in the present case. Therefore relying on Charu Chandra Tiwari v. The District Inspector of Schools Deoria, 1991 UP LB EC 160, 1 hold that the appointment on ad hoc basis as envisaged by law has to be made by promotion from amongst the senior most teachers of the college who is qualified to hold the post and appointment by direct recruitment on ad hoc basis can be made only if a man from the institution is not available. In the present case a man from the institution has already been appointed because the same was available, therefore, the petitioner cannot assert his right to hold the post till a selection is made on regular basis. 8. The case, however, does not rest here. The petitioner is being asked to refund the salary which he drew during his continuance as lecturer on ad hoc basis. If any salary was paid to the petitioner even after the fixed term for which he was appointed that could not be ordered to be refunded for the simple reason that the petitioner had rendered work even after his fixed term had expired. Till the date he rendered his work he has drawn his salary. He cannot be asked to refund his salary and any order in this regard issued by the District Inspector of Schools is against law. Therefore, the order for refund of salary drawn by the petitioner while serving in the institution even after the expiry of his fixed term is bad and would amount to asking the petitioner to render the services gratis which is not recognized by our law. The result is that the prayer of the petitioner so far as he seeks a mandamus against the respondents directing them not to treat his services as dispensed with and treat his services on ad hoc basis is rejected and the writ petition fails so far the petitioner's claim to the post is concerned. The result is that the prayer of the petitioner so far as he seeks a mandamus against the respondents directing them not to treat his services as dispensed with and treat his services on ad hoc basis is rejected and the writ petition fails so far the petitioner's claim to the post is concerned. However, it is directed that no recovery shall be made from the petitioner for any amount which he has drawn from the College on account of salary for the period beyond the fixed term for which he has rendered the work in the College. 9. There will be no order as to costs.