D. K. SETH, J. ( 1 ) ORIGINAL Suit No. 691 of 1976 was filed before the learned Additional Civil Judge, Junior division, 7th Court, Deorla. by the plaintiff Shesh Nath Tripathi for declaration to the effect that the plaintiff is entitled to receive all the benefits as lecturer in accordance with statutes of the gorakhpur University. In the alternative, he had prayed that the defendants be restrained from interfering with the working and not to create any obstruction in receiving all benefits and amenities admissible to him. ( 2 ) IN the plaint, it was pleaded by the plaintiff that the plaintiff was duly appointed as lecturer of swami Daya Nand Degree College pursuant to an advertisement in July, 1971, after having been selected by the selection committee who had placed the plaintiff at serial No. 2. The plaintiff represented against the placing of the defendant No. 3 at serial No. 1. He had also represented to the Vice-Chancellor of the University against the principal resulting Into an ill-feeling towards the plaintiff. It was aggravated by reason of filing of Writ Petition No. 164 of 1973 before this court by the plaintiff against the principal and the management which had since been compromised outside Court on the terms that the plaintiff would be permitted to function as lecturer and receive salary, resulting into dismissal of the writ petition as not pressed on 20th january. 1975. After which plaintiff was allowed to take classes since October, 1975, but the amenities attached to the post was denied to him. despite several representations. Hence the suit. ( 3 ) IN the written statement, it was contended that the plaintiff was called for interview in June 1971 but he was unsuccessful. One Sri Bachcha Prasad Pandey and Sri Anand Kumar Shukla were selected In accordance with merit. Sri Bachcha Prasad Joined on 27. 8. 1971 and had resigned on 3. 9. 1971, whereafter Sri Anand Kumar Shukla was appointed who subsequently became permanent. The plaintiff was never recommended by the selection committee nor he was ever appointed as lecturer neither he was teaching In the college since October 1971. The plaintiff suppressed the fact that he had applied for appointment In the college in the year 1975 and 1976 as well. 1971, whereafter Sri Anand Kumar Shukla was appointed who subsequently became permanent. The plaintiff was never recommended by the selection committee nor he was ever appointed as lecturer neither he was teaching In the college since October 1971. The plaintiff suppressed the fact that he had applied for appointment In the college in the year 1975 and 1976 as well. According to the defendants, if the plaintiff had been appointed in that event, there would have been no occasion for him to apply for appointment in 1975-76. It was also contended that since the plaintiff had filed the suit without exhausting the departmental remedy provided in the State Universities Act, the suit is not maintainable. It is further denied that any assurance was given to the plaintiff before withdrawal of the writ petition. It was also pointed out that the Committee of Management not being a statutory authority a suit was not maintainable. The suit is barred under Sections 14, 34 and 41 of the Specific Relief Act as well as by limitations. The suit is bad for non-joinder or misjoinder of parties. ( 4 ) THE plaintiff had filed replication denying the statement made in the written statement and contended that Sri Bachcha Prasad Pandey was placed at serial No. 1 and the plaintiff was placed at serial No. 2 in the panel of selection held on 24th August, 1971. Sri Anand Kumar Shukla was not an applicant In the selection held In the year 1971. Therefore, he could not be at serial No. 2. Sri Anand Kumar Shukla was appointed In the college in September 1971 on administrative basis. He had given details of certain appointments and contended that there are vacancies and that the candidates selected in 1975 having not Joined or having left, the vacancy is still there. A supplementary replication to written statement was also filed detailing some more facts. ( 5 ) INITIALLY the defendant No. 1 had filed a written statement. Subsequently, defendant No. 2 had also filed written statement on 16th August, 1977. The defendant No. 3 having not filed any written statement, the suit proceeded as against defendant No. 3 ex parte. Several issues were framed. The trial court had decreed the suit by a judgment and decree dated 15th September, 1995. Civil Appeal No. 97 of 1995 was preferred by the defendant Nos. 1 and 2. The defendant No. 3 having not filed any written statement, the suit proceeded as against defendant No. 3 ex parte. Several issues were framed. The trial court had decreed the suit by a judgment and decree dated 15th September, 1995. Civil Appeal No. 97 of 1995 was preferred by the defendant Nos. 1 and 2. The appeal was allowed setting aside the Judgment and decree dated 3rd December, 1997 of the trial court and dismissed the suit. The plaintiff had also filed cross-objection which was also dismissed. Being aggrieved and dissatisfied with the said decree, the present appeal has since been filed. ( 6 ) MR. R. N. Singh learned counsel for the appellant assisted by Mr. Rajeev Mishra contended that in view of Section 28 (4) of the Gorakhpur University Act, 1956, no approval was necessary with regard to appointment of lecturer. Only an intimation, is to be sent. The provision of U. P. State Universities Act, 1973, does not apply, since the appointment was made prior to the enactment of the 1973 Act. In respect of the appointment made on or after 4th September, 1971. the provision of State Universities Act can only be attracted. According to him. since the plaintiff was appointed as lecturer, he is entitled to all the benefits for the post. He had further pointed out that Section 69 of State Universities Act does not apply at all in the present facts and circumstances of the case. He again contended that the teacher has since been defined in Section 60a (ui) of the State Universities Act. Since the petitioner was appointed under Section 28 (4) of the Gorakhpur Universities Act. the provision of State Universities Act cannot apply. The State government had never refused or disputed the appointment, therefore, there is no necessity of impleading the State Government. With regard to the question of the appointment of the plaintiff, it was contended by him that the school was receiving grant-in-aid but the manager did not produce the relevant records and the principal was not examined and as such adverse presumption in favour of plaintiff is to be drawn. Mr. With regard to the question of the appointment of the plaintiff, it was contended by him that the school was receiving grant-in-aid but the manager did not produce the relevant records and the principal was not examined and as such adverse presumption in favour of plaintiff is to be drawn. Mr. Singh had supported the judgment passed by the trial court and had contended that the judgment of the appeal court is perverse and that it had misconstrued the provision of law giving rise to a substantial question of law to the extent as to whether the plaintiff could be denied the relief. ( 7 ) MR. Dilip Gupta appearing on behalf of the respondent-University contended that the plaintiff was never selected by the selection committee in 1971 and that no intimation of his appointment was ever sent. He had relied on various exhibits to prove the said fact. That no letter of appointment was ever issued to the plaintiff. That reliance placed by the learned trial court on an affidavit affirmed in the dismissed writ petition affirmed by the Manager, after the Committee of management, is misplaced on the face of the denial of the appointment in the written statement. He further contended that if he was appointed in 1971, there could have been no occasion for the plaintiff to apply for appointment in 1975 and 1976. He also pointed out that there was nothing on record to show that the plaintiff was ever appointed. He also contended that the suit is impliedly barred under Sections 68 and 69 of the State Universities Act. since the relief claimed against the Vice-Chancellor of the University could not be claimed. He also contended that the non-joinder of parties is fatal. Inasmuch as Section 60e provides that State Government shall be liable for payment of salary to teachers after 30th March, 1975 and as such the State Government was a necessary party and no relief could have been granted to the plaintiff in absence of the state Government. ( 8 ) IN reply Mr. R. N. Singh had contended that earlier a writ petition was filed on the same cause of action, which was disposed of by this Court holding that the writ petition was not maintainable since it Involved disputed question of facts, and the same should be decided in a suit. While dismissing the Civil Misc. ( 8 ) IN reply Mr. R. N. Singh had contended that earlier a writ petition was filed on the same cause of action, which was disposed of by this Court holding that the writ petition was not maintainable since it Involved disputed question of facts, and the same should be decided in a suit. While dismissing the Civil Misc. Writ Petition No. 2931 of 1978, this Court had observed that the suit is maintainable. In such circumstances it is not open to the respondents to contend that the suit is not maintainable that the same is barred under Sections 68 and 69 of the State universities Act. ( 9 ) BOTH the learned counsels had taken me through the Judgment of both the Courts below as well as various exhibits. The evidence on record is mostly documentary evidence. It is not disputed on behalf of the respective parties. ( 10 ) IN the present case after having heard the learned counsel of both the parties at length, it appears the question is dependent on a finding of fact as to whether the plaintiff was appointed on being selected by the selection committee in 1971 as contended by him. If it is found that he was selected and was duly appointed in that event the question of approval becomes relevant. If it is found that he was never selected or appointed in that event the question of approval becomes irrelevant. Admittedly the State Universities Act came into force in 1973. Therefore, the question of approval would be Immaterial if it is found that the plaintiff was appointed in 1971. Inasmuch as under Section 28 (4) of the Gorakhpur University Act, there was no necessity of approval of any appointment. What Section 28 sub-section (4) of the Gorakhpur University Act requires is that of sending an intimation with regard to the appointment and nothing more. If it is found that such Intimation has been sent in that event the plaintiff would become successful. ( 11 ) IT is the case of the defendant that the plaintiff was never appointed. The questions have been made difficult since the plaintiff has not been able to produce any appointment letter, neither he has been able to produce any records nor sought for production of any such records in order to show that he was duly selected and had been appointed. The questions have been made difficult since the plaintiff has not been able to produce any appointment letter, neither he has been able to produce any records nor sought for production of any such records in order to show that he was duly selected and had been appointed. On the other hand, from the records it appears that the plaintiff had applied for appointment even in 1975 and 1976. Exhibits A-6 (paper No. 75a) is a list of candidates appeared before the selection committee on 24th August, 1971. It appears from the said exhibit that for post No. 1 Sri Bachcha Prasad Pandey and Sri anand Kumar Shukla were recommended for appointment in order of preference, while Sri ashthabhuja Prasad Srivastava and Sri Harishchandra Ram were recommended for post No. 2 In order of preference. Exhibit A-9 contains the recommendations of the selection committee signed by each of the members of the selection committee which also shows that Sri Bachcha prasad Pandey and Sri Anand Kumar Shukla were recommended for post No. 1 and Sri ashthabhuja Prasad Srivastava and Sri Harishchandra Ram were recommended for post No. 2. None of these papers show the name of the plaintiff though his name appears as one of the candidates Interviewed in the selection both in exhibit A-6 and A-9. Exhibit A-8 is the application made by the plaintiff for selection for the appointment as lecturer in Chemistry in 1975-76. Thus, on the basis of these exhibits, it appears that the plaintiff was never selected and that he had applied for appointment in 1975-76. Thus it Is very difficult to say that the finding of the learned appeal court is not based on materials or biased or Is perverse. At the same time, exhibit A-4 Is the original appointment letter of Sri Anand Kumar Shukla issued on 18th december, 1971 in respect of his temporary appointment on the basis of the approval of the vice-chancellor till 30th June. 1972. ( 12 ) NOW capital was sought to be made on the basis of an admission allegedly made by the manager Sri Chandra Shekar Giri on 26th November, 1977 in Writ Petition No. 2931 of 1978 which is exhibit 4. The Committee of Management in its written statement had denied that the plaintiff was ever appointed. Whereas this affidavit is contradictory to the statement made in the written statement. Mr. The Committee of Management in its written statement had denied that the plaintiff was ever appointed. Whereas this affidavit is contradictory to the statement made in the written statement. Mr. R. N. Singh had contended that the situation having been admitted In the affidavit, it is not permissible for the defendants to deny the same. On the other hand, the Court should rely on the said affidavit as an admission. In other words, according to him because of this contradiction, the defence case ought to have been disbelieved. ( 13 ) BUT the fact remains that when the affidavit was affirmed on 26th November, 1978. the committee of Management stood superseded. Then the school was being managed by Prabandh sanchalak. Then again the Manager Chandra Shekar Giri having died, he could not be examined. The defendants had disputed the genuineness of the affidavit affirmed on behalf of the said chandra Shekar Giri. An affidavit cannot be a piece of evidence unless the deponent is examined or cross-examined. However, the affidavit may be used as a piece of collateral evidence, when there are other documents to show or evidence to prove that the statements made in the affidavit are true. Then again the affidavit appears to have been affirmed by a person claiming to be the manager of a committee which had since been superseded long before the date when the affidavit was affirmed. It is. therefore, very difficult to rely on the affidavit. It has not been proved to be an affidavit affirmed by Sri Chandra Shekar Girl. in such a situation, the Court is free to look into the materials on record and the other evidence available. The documents that have been produced by the parties do not go to show that the plaintiff was ever recommended or was given appointment. If there was no recommendation of the selection committee nor there was any appointment, in that event, there cannot be any intimation within the meaning of Section 28 (4) of the Gorakhpur University Act. ( 14 ) NOW with regard to the maintainability of the suit, Mr. R. N. Singh had heavily relied on the decision in Writ Petition No. 2931 of 1978. But the said decision does not help Mr. R. N. Singh in his contention that the suit is maintainable In the facts and circumstances of the case. Inasmuch as in the said decision. R. N. Singh had heavily relied on the decision in Writ Petition No. 2931 of 1978. But the said decision does not help Mr. R. N. Singh in his contention that the suit is maintainable In the facts and circumstances of the case. Inasmuch as in the said decision. It was found that if a person comes within the definition of a teacher contained in Section 60a (vi) of the State Universities Act, he is entitled to be paid his salary under Section 16e and if the salary is not paid, it cannot be said that anything has been done or purported or intimated to be done in pursuance of the Act or Rules or Statutes or the ordinance made thereunder within the meaning of Section 69 of the State Universities Act. Therefore, the Court was of the opinion that filing of a suit by the petitioner (plaintiff) for arrears of salary if he is a teacher within the meaning of the Act as aforesaid is not barred either by section 60g or 69 of the Act. Thus, this decision has confined the question within the limitation expressed in the said order. The Court had confined the situation first that the plaintiff is a teacher within the meaning of Section 60a (vi) of the State Universities Act and therefore, entitled to salary under Section 60e. Thus, withholding of non-payment of salary in no way would bar a suit under Section 60g or 69 of the Act. It has also observed that if a suit is filed by the plaintiff for arrears of salary, in that event it cannot be said it was against an order or direction passed or given either by the State Government or by the Director of Education as contemplated in 16g which cannot be called in question in a suit. ( 15 ) TEACHER has defined in Section 60a (vi) in relation to a college meaning a teacher In respect of whose employment maintenance grant was being paid by the Slate Government during the financial year 1974-75 or who is employed with the approval of the Vice-Chancellor of the university concerned to a post created before April 1. 1975 with the permission of the vice-Chancellor to a post created after March 31. 1975 with the permission of the Director of education (Higher Education ). 1975 with the permission of the vice-Chancellor to a post created after March 31. 1975 with the permission of the Director of education (Higher Education ). In the present case there is nothing to show that in respect of the plaintiffs appointment, maintenance grant was being paid by the State Government to the college during the year 1974-75. Even If we accept the proposition that In view of Section 20 (4) of the gorakhpur University Act. the query of sending of opinion about the appointment eclipsing the question of approval of Vice-Chancellor as contained in sub-clause (a) of clause (vi) of Section 60a. Still then, unless it is shown that maintenance grant was being paid for the financial year 1974-75 in respect of the employment of the plaintiff, he cannot come within the definition of teacher. Thus, on being appointed, if maintenance grant is not paid in respect of the plaintiff, in that event, it is surely not an act done or purported to have been done by the State Government in not paying the maintenance grant which is the responsibility of the State Government under section 60e of the Act. The liability does not accrue on the State Government until and unless the person Is a teacher. If the plaintiff was successful in proving that he was a teacher then he would have been able to maintain the suit in terms of the order passed In Writ Petition No. 2931 of 1978. Since the plaintiff has not been able to prove himself to be a teacher, therefore, the action on the State Government in not releasing grant-in-aid in respect of alleged employment of the plaintiff cannot be called in question in any Court in view of Section 60g. ( 16 ) IF Shri Anand Kumar Shukla was appointed as lecturer on being second in preference after sri Bachcha Prasad Pandey had left and his appointment appears, to have been approved on 2nd may, 1973 by the Vice-Chancellor (exhibit-35), in that event, it is very difficult to accept the proposition advanced by the plaintiff that he was appointed in the said post. On the other hand, from exhibit-A-8 it appears that the plaintiff had applied for appointment in terms of the advertisement dated 25th November, 1975. The plaintiff had, however, sought to rely upon exhibit 19a alleged to be an appointment letter dated 4th September. On the other hand, from exhibit-A-8 it appears that the plaintiff had applied for appointment in terms of the advertisement dated 25th November, 1975. The plaintiff had, however, sought to rely upon exhibit 19a alleged to be an appointment letter dated 4th September. 1971 but it was never pleaded in the plaint that any appointment letter was issued to him and as such, the same cannot be relied upon. On the other hand, it is clear from the materials that no such appointment letter was ever issued to the plaintiff. Inasmuch as a lecturer can be appointed on the basis of the recommendation of a duly constituted selection committee which in subsection (4) provides that every decision to make a substantive appointment shall be reported by the management to the vice-Chancellor within 15 days with all the applications and connected papers. If the vice-Chancellor after obtaining of concurrence of the selection committee disapproves an appointment, it shall be terminated by the management. In the present case, the selection committee never recommended the plaintiff against any of the two posts and, therefore, the vice-Chancellor cannot have any occasion to approve. On the other hand, exhibit A4 vouches for the appointment of Sri Anand Kumar Shukla on 18th December, 1971. A fresh advertisement was issued on 1972. Then again from exhibit A3, being the Writ Petition No. 2931 of 1978, it is apparent that the petitioner had claimed arrears of salary from 1st April. 1975. In the said petition, it was not mentioned that any appointment letter issued to him on 4th September, 1971. ( 17 ) SO far the question of nonjoinder of necessary parties is concerned, it appears that the principal relief that has been claimed by the plaintiff was for a declaration that he was entitled to the benefits of a lecturer in accordance with the rules of Gorakhpur University and for Injunction restraining the defendants from interfering with his working and the right to get the benefits available to him as lecturer. Thus, the University and State Government become necessary parties. Since the appellant was unable to prove that he is a teacher within the meaning of section 60a (a) (iv), it is not necessary to deal with the other questions raised by the counsel for the respective parties. Thus, the University and State Government become necessary parties. Since the appellant was unable to prove that he is a teacher within the meaning of section 60a (a) (iv), it is not necessary to deal with the other questions raised by the counsel for the respective parties. ( 18 ) IN view of the discussions made above, it appears that there is nothing on record to enable this Court to interfere with the Judgment and decree passed by the lower appellate court in the facts and circumstances of the case. The appeal is, therefore, dismissed. However, there will be no order as to costs. .