R. K. AGRAWAL, J. ( 1 ) THE petitioner. Rama Shanker Mishra, has filed the present writ petition seeking a writ, order or direction, in the nature of certiorari calling for the record of the case and quashing the order dated 27. 4. 2000 passed by the Joint Director of Education. Varanasi Region, Varanasi, respondent No. 1, contained in Annexure-20 to the writ petition. He further seeks a writ order or direction in the nature of mandamus restraining the respondents from interfering in the peaceful functioning of the petitioner, as ad hoc/officiating Principal of Jai Hind Inter College, Tezi Bazar district Jaunpur. ( 2 ) BRIEFLY stated facts giving rise to the present petition are that in the district of Jaunpur, there is a recognized institution known as Jai Hind Inter College (hereinafter referred to as the college), which is situated in Tezi Bazar, district Jaunpur, The college is duly recognized under the provisions of U. P. Intermediate Education Act. 1921 (hereinafter referred to as the Act ). It is under the grant-in-aid list of the State Government and the provisions of U. P. High Schools and intermediate College (Payment of Salaries to the Teachers and other Employees) Act, 1971. (hereinafter referred to as the 1971 Act), is applicable. ( 3 ) ACCORDING to the petitioner. Biology subject in the college was recognized for Intermediate classes by the Secretary, Board of High School and Intermediate Education, U. P. , Allahabad vide communication letter dated 20. 9. 1969. The Committee of Management of the college, proceeded to fill the vacancy on the post of lecturer in Biology, after advertising the post. The selection Committee considered all the candidates who had applied for appointment on the post in question, and recommended the petitioner to be appointed as lecturer in Biology in the college. The Committee of Management issued the appointment letter on 31. 7. 1970. The petitioner joined on 1. 8. 1971, as lecturer in Biology in the college. ( 4 ) IT appears that the petitioner had gone on leave from 1. 9. 1972 to 30. 6. 1973. The extraordinary leave applied by the petitioner in that behalf was duly sanctioned by the "committee of management. The reason for going on extraordinary leave was that he had joined another institution, namely. Balrampur Degree College. ( 4 ) IT appears that the petitioner had gone on leave from 1. 9. 1972 to 30. 6. 1973. The extraordinary leave applied by the petitioner in that behalf was duly sanctioned by the "committee of management. The reason for going on extraordinary leave was that he had joined another institution, namely. Balrampur Degree College. Gonda, but before he could be confirmed there, the petitioner came back and Joined the college on 1. 7. 1973. It appears that the District Inspector of Schools, Jaunpur, had passed an order on 4. 6. 1971 whereby, he did not grant approval to the appointment of the petitioner on the post of lecturer in Biology, on the ground that no such post was available in the college. ( 5 ) ACCORDING to the petitioner, on the representation made by the Committee of Management, before the Deputy Director of Education, Varanasi Region, Varanasi, the District Inspector of schools was directed to make payment of salary to the petitioner w. e. f. 1. 4. 1971. The said order appears to have been passed some times in the months of August/september, 1971. Neither the order of the Deputy Director of Education, nor the exact date, on which the said order was passed, is available on record. But, the petitioner has brought on record that he had been paid salary for the period 1. 4. 1971 to 31. 8. 1971 vide salary bill dated 25. 9. 1971 and the subsequent salary bills which contained an endorsement that all the employees of the college, were duly approved including the name of the petitioner. It further appears that the respondent No. 5, namely. Uma Nath Singh, was appointed as L. T. Grade teacher in the college on 24. 7. 1964. He was promoted as lecturer in Logic on 1. 7. 1972. The petitioner was also accorded five special increments w. e. f. 1. 8. 1970 in accordance with the relevant G. O. inasmuch as he had passed m. Sc. in 1st Division. He was also given selection grade w. e. f. 1. 11. 1986. ( 6 ) ACCORDING to the petitioner, in the list of approved teacher of the college, prepared by the committee of Management, for the year 1983-84, the name of the petitioner, was Shown at SI. No. 8, whereas, the name of the respondent No. 5 was shown at SI. 11. 1986. ( 6 ) ACCORDING to the petitioner, in the list of approved teacher of the college, prepared by the committee of Management, for the year 1983-84, the name of the petitioner, was Shown at SI. No. 8, whereas, the name of the respondent No. 5 was shown at SI. No. 9 and the respondent No. 5 was accorded selection grade on 1. 7. 1988. ( 7 ) AGAIN on 11. 3. 1999, the Committee of Management, prepared a list of approved teachers of the college, which was forwarded to the District Inspector of Schools and, in the said list, the name of the petitioner was shown at SI. No. 3 whereas the respondent No. 5 was placed at SI. No. 5. The Principal of the college had retired on 30. 6. 1999. He handed over the charge to the respondent No, 5. Being aggrieved thereby, the petitioner represented the matter before the Joint director of Education, who directed the District Inspector of Schools to verify the factum of seniority and to see that only seniormost teacher of the college should be permitted to function as ad hoc/officiating Principal of the college. The District Inspector of Schools, in his turn, vide order dated 1. 12. 1999, directed the petitioner to discharge the function of the Principal and issued necessary instruction to the college authorities to permit the petitioner to function as ad hoc /officiating Principal of the college. The order dated 1. 12. 1999 passed by the District inspector of Schools, was challenged by the respondent No. 5 by filing Civil Misc. Writ Petition no. 5433 of 1999 which was disposed of finally by this Court vide judgment and order dated 28. 1. 2000 with the following directions : ". . . . . In view of the fact that the District Inspector of Schools had sought clarification from the joint Director of Education regarding the seniority of the petitioner and the respondent No. 4 vide letter dated 11. 10. 1999, it would be appropriate that the Joint Director of Education, Vth region. Varanasi, should be asked to decide the matter himself. The Joint Director of Education shall fix a date and shall give an opportunity of hearing to the petitioner, the respondent No. 3 as also the Prabhand Sanchalak. Jai Hind Inter College, Tejibazar, Jaunpur, before passing the order. 1999, it would be appropriate that the Joint Director of Education, Vth region. Varanasi, should be asked to decide the matter himself. The Joint Director of Education shall fix a date and shall give an opportunity of hearing to the petitioner, the respondent No. 3 as also the Prabhand Sanchalak. Jai Hind Inter College, Tejibazar, Jaunpur, before passing the order. The Joint Director shall decide the matter within two months from the date of filing of the certified copy of this order along with a copy of the representation before him. Till the decision of the matter by the Joint Director, the parties shall maintain status quo. " Pursuant to the direction given vide judgment and order dated 28. 1,2000, the Joint Director of education had considered the matter and vide order dated 27. 4. 2000 had held the respondent No. 5 to be senior to the petitioner. He had held that the respondent No. 5 had been appointed substantively on the post of lecturer on 1. 7. 1972 whereas the date of substantive appointment of the petitioner as lecturer in the college is to be treated as 1. 7. 1973 and consequently, the respondent No. 5 was entitled for being promoted on ad hoc basis on the post of Principal of the college. The order dated 27. 4. 2000 is under challenge in the present petition. ( 8 ) I have heard Shri V. K. Shukla learned counsel for the petitioner, the learned standing counsel for the respondent Nos. 1. 2 and 3 and Shri R. K. Jain learned senior counsel for the respondent no. 59. Vide order dated 23. 2. 2001. , the petitioner was directed to serve notice on the respondent No. 4 personally, outside the Court, and file an affidavit of service pursuant to which the ( 9 ) PETITIONER has filed an affidavit of service wherein it has been stated that the summons and the notices have been served on the authorized controller on 7. 3. 2001. Despite service of notice, the respondent no. 4 has not put in appearance before the Court cither personally or through any counsel. Thus, the service is deemed to be sufficient on the respondent No. 4 in accordance with the Rules of the Court. ( 10 ) THE counter and rejoinder-affidavits have been exchanged between the contesting parties. 3. 2001. Despite service of notice, the respondent no. 4 has not put in appearance before the Court cither personally or through any counsel. Thus, the service is deemed to be sufficient on the respondent No. 4 in accordance with the Rules of the Court. ( 10 ) THE counter and rejoinder-affidavits have been exchanged between the contesting parties. It may be mentioned here that against the interim order dated 5. 9. 2000 passed by this Court, whereby this Court had stayed the operation of the impugned order dated 27. 4. 2000 during the pendency of the writ petition, the respondent No. 5 had filed a Special Appeal No. 606 of 2000 which was disposed of vide judgment and order dated 16. 10. 2000 and direction was issued that the petition shall be listed for final hearing on 15. 11. 2000 before the learned single Judge. Therefore, the writ petition is decided finally at this stage. ( 11 ) SHRI V. K. Shukla, learned counsel for the petitioner submitted that the college had surrendered the Agriculture subject taught in Intermediate classes and in its place had sought approval for teaching Biology subject which was granted by the District Inspector of Schools. Thus, he submitted that the post of lecturer was also there in the college. Further the petitioner was appointed on the post of Lecturer in Biology on 31,7. 1970 prior to coming into force of the provision of U. P. High School and Intermediate College (Payment of Salaries to the Teachers and Other Employees] Act. 1971. There was no provision either under the U. P. intermediate education Act or the Rules and Regulations framed thereunder, to obtain sanction of any post. The only provision was that before making any appointment of teacher, approval was required to be taken from the District Inspector of Schools. He submitted that the 1971 Act came into force on 1. 4. 1971 and since the petitioner had been appointed on 31. 7. 1970, there was no question of seeking sanction of the post. The petitioners name was duly included in the Managers Return which was submitted to the District Inspector of Schools on coming into force of the 1971 Act and thus, his appointment on the post of lecturer cannot be questioned. In any event, he submitted that pursuant to the orders passed by the Deputy Director of Education. Varanasi region. The petitioners name was duly included in the Managers Return which was submitted to the District Inspector of Schools on coming into force of the 1971 Act and thus, his appointment on the post of lecturer cannot be questioned. In any event, he submitted that pursuant to the orders passed by the Deputy Director of Education. Varanasi region. Varanasi, the petitioner had been paid his salary as lecturer (Biology) w. e. f. 1. 4. 1971. i. e. . the date from which 1971. Act came into force and became applicable to the college. ( 12 ) SHRI Shukla submitted under the Regulation 3 of Chapter II of the Regulations framed under the Act, the criteria for determining the seniority has been prescribed. The Regulation 3 of chapter II framed under the Act reads as under : "3. (1) The Committee of Management of every institution shall cause a seniority list of teacher to be prepared in accordance with the following provisions : (a) the seniority list shall he prepared separately for each grade of teachers whether permanent or temporary, on any substantive post ; (b) Seniority of teachers in a grade shall be determined on the basis of their substantive appointment in that grade. If two or more teachers were so appointed on the same date, seniority shall be determined on the basis of age : (bb) Where two or more teachers working in a grade are promoted to the next higher grade on the same date, their seniority inter se shall be determined on the basis of the length of their service to be reckoned from the date of their substantive appointment in the grade from which they are promoted : provided that if such length of service is equal, seniority shall be determined on the basis of age. (c) A teacher in a higher grade shall be deemed to be senior to a teacher in the lower grade irrespective of the length of service ; (d) If a teacher who is placed under suspension is reinstated on his original post, his original seniority in the grade shall not be affected ; (e) Every dispute about the seniority of the teacher shall be referred to the Committee of management, which shall decide the same giving reasons for the decision. (2) The seniority list shall be revised every year and the provisions of clause (1) shall mutatis mutandis apply to such revision. " ( 13 ) ACCORDING to him, Rule 3 (b) provides for determining seniority of teachers in a particular grade on the basis of their substantive appointment in that grade. The petitioner having been appointed in the lecturers grade on 31. 7. 1970, the petitioner is senior to the respondent No. 5, who admittedly was appointed as lecturer on 1. 7. 1972. He further submitted that while determining the question of seniority, the validity of the appointment of the petitioner cannot be gone into. In support of this plea, he relied upon the decision rendered by this Court in the case of Vijai Narain Sharma v. District Inspector of Schools, Etawah and others. 1986 UPLBEC 44, wherein this Court has held that the relevant factors for determining the validity of the seniority list in a grade in which a teacher is working are as to whether he is appointed on the substantive post or not, whether the appointment is a permanent or temporary, the date of appointment or promotion and age of the teachers and it is no where contemplated for a teacher of the said college to challenge the appointment or promotion of any other teacher in the same college. He further submitted that the petitioner had been getting salary of lecturers grade Since 1. 4. 1971 under the provisions of 1971 Act. He had further been granted five increments w. e. f. 1. 8. 1970 and also had been granted selection grade on 1. 11. 1986. It is now too late in the day for the authorities to say that the petitioner was not appointed on the substantive post of lecturer in the college inasmuch as the post was not sanctioned by the authorities. In support of this pica, he relied upon the Division Bench decision of this Court in the case of Smt. Rani Srivastava v. State of U. P. and others. 1990 (1) UPLBEC 425, the Full Bench decision rendered in the case of Dr. Asha Saxena v. Smt. S. K. Chaudhary and others, 1991 (2) UPLBEC 1202, and a Division Bench decision of this Court rendered in the case of Smt. Zaitoon Fatima v. Director of Education, U. P. Shiksha Nideshalaya. Allahabad and others, 1999 12) ESC 1271. 1990 (1) UPLBEC 425, the Full Bench decision rendered in the case of Dr. Asha Saxena v. Smt. S. K. Chaudhary and others, 1991 (2) UPLBEC 1202, and a Division Bench decision of this Court rendered in the case of Smt. Zaitoon Fatima v. Director of Education, U. P. Shiksha Nideshalaya. Allahabad and others, 1999 12) ESC 1271. He further submitted that the petitioners absence from the college from 1. 8. 1972 to 30. 6. 1973 cannot be treated as break in service inasmuch as the Committee of Management had sanctioned the extraordinary leave without pay to the petitioner. According to him, since the petitioner had been appointed as lecturer on 31. 7. 1970 whereas the respondent No. 5 had been promoted on the post of lecturer on 1. 7. 1972, the petitioner being senior most teacher in the college, ought to be given promotion on ad hoc basis and the respondent No. 5 cannot challenge the question of seniority after 17 years. ( 14 ) SHRI R. K. Jain learned Senior counsel for the respondent No. 5 submitted that the Committee of Management for the reasons best known to it, had not prepared the seniority list as required under Regulation 3 of Chapter II of the Act and question for determining of seniority had arisen when the Principal of the college retired on 30. 6. 1999 and prior to it, the seniority had not been determined by any authorities. Thus, the respondent No. 5 was Justified in raising the question of seniority of the petitioner. He further submitted that the District Inspector of Schools had vide order dated 4. 6. 1971 declined to grant approval to the appointment of the petitioner on the ground that the post of lecturer in Biology was not sanctioned and, therefore, the appointment of the petitioner on the aforesaid post was of no consequence. In support of the aforesaid plea, he relied upon a decision of the Division Bench of this Court rendered in the case of Lalit Mohan misra and another u. District Inspector of Schools and others, 1979 All LJ 1025. He further submitted that mere fact that the payment of salary was being made to the petitioner would not make his appointment legal on the post of lecturer in the absence of sanction of the post. He further submitted that mere fact that the payment of salary was being made to the petitioner would not make his appointment legal on the post of lecturer in the absence of sanction of the post. He relied upon the decision of the Full Bench of this Court rendered in the case of Gopal Dubey v. District Inspector of Schools, Maharajganj and another. 1999 (1) VPLBEC 1. He further submitted that admittedly, the petitioner had joined Balrampur Degree College, Gonda on 1. 8. 1972 and worked there till 30. 6. 1973, thus, he had lost all lien on the post in question in the college and he cannot become senior to the respondent No. 5 who had been promoted on the post of lecturer on 1. 7. 1972. In support of this plea, he relied upon a decision of this Court in the case of Chandra Bhal Misra v. District Inspector of Schools, Jaunpur and another, 1993 (1) AWC 327. ( 15 ) IN the case of Vijai Narain Sharma (supra), this Court has held in paras 23 to 27 of the judgment, as under : "23. It is, therefore, clear that even in the case of a promotion of a teacher to the lecturers grade or to the L. T. grade, a teacher aggrieved by the decision of the Committee of Management has got a remedy to challenge the said decision before the District Inspector of Schools. From the above provision, therefore, the Scheme of the Act is that at the time when the appointment is made or when the promotion is made, the said appointment or promotion made by the Managing committee can be challenged to the higher authority prescribed under the Act and the regulations framed thereunder. 24. Regulation 3 of Chapter II lays down the principles on which the seniority list has to be prepared. I have already quoted Regulation 3 of Chapter II, which lays down the manner in which the seniority is to be determined. The relevant factors for determining the validity of the seniority list are the grade in which the teacher is working, whether he is appointed on the substantive post or not, whether the appointment is permanent or temporary, the date of the appointment or promotion and the age of the teachers. 25. The relevant factors for determining the validity of the seniority list are the grade in which the teacher is working, whether he is appointed on the substantive post or not, whether the appointment is permanent or temporary, the date of the appointment or promotion and the age of the teachers. 25. On a reading of Regulation 3 of Chapter II, it is clear that it no where contemplated that the teacher who challenges the seniority list can again challenge the validity if the appointment or promotion of a teacher in the college. He can only be aggrieved by the factors, if wrongly decided, as mentioned in Regulation 3. The dispute can be taken in appeal under clause (f) of regulation 3, quoted above. In my opinion, it is clear that while disputing the validity of the seniority list, it is not open to a teacher to challenge the appointment and promotion which had already been done. The challenge to the appointment and promotion has been specifically provided. If no challenge is made at that state then the appointment and promotion becomes final. If the Legislature intended that the appointment and promotion can be challenged at the time of determining seniority, the Legislature would have specifically provided in the regulations. This has not been done. 26. There is another aspect of the matter that once the appointment or promotion becomes final, a vested right is created in favour of a teacher. A colleague of his in the institution having acquiesced to the appointment and promotion cannot be, subsequently, permitted to raise the dispute. 27. In this view of the matter, I am of the opinion that the contention raised by the learned counsel for the respondent is well founded. In proceedings for determining the validity of the seniority list prepared by the college, it is not open to a teacher of the said college to challenge the appointment or promotion of any other teacher in the same college. " ( 16 ) IN the case of Smt. Rani Srivastava (supra), this Court in para 5 of the judgment held as under : "5. Principal infirmity in appointment of petitioner, that could be pointed out, was that it was made without issuing any advertisement and recommendation by Selection Committee. " ( 16 ) IN the case of Smt. Rani Srivastava (supra), this Court in para 5 of the judgment held as under : "5. Principal infirmity in appointment of petitioner, that could be pointed out, was that it was made without issuing any advertisement and recommendation by Selection Committee. May be but could the management which appointed petitioner in 1984 and the Basic Shiksha Adhikari who did not raise any objection to payment of salary for five years raise this objection in 1989. The appointing authority under rules is the Committee of Management. And the approving authority is the Basic Shiksha Adhikari, who under U. P. Act No. 6 of 1979 is also to supervise the payment of salary and is empowered to inspect and check. For five years no objection was raised by him. And then suddenly when one of the members desired that a male principal, should be appointed, he also raised an objection. The petitioner had raised objection as far back as 1985 against her being treated as temporary employee. No action was taken on it. Nor any decision was given. For procedural irregularity the petitioner should not be made to suffer. Normally it is to be presumed that Management must have sent papers for appointment of petitioner to Basic shiksha Adhikari who must have granted approval unless it is rebutted either by placing any communication by Management from record of Basic Shiksha Adhikari to show that things did not proceed as they are provided in the Act. In absence of any material there is no reason to doubt that Committee of Management would have appointed without intimating Basic Shiksha adhikari and would have even issued letter appointing petitioner permanently and Basic Shiksha adhikari would not have raised any objection in respect of payment of salary etc. from 1984 to 1989. Change of Secretary or Basic Shiksha Adhikari should not be permitted to create any difference otherwise it shall result in creating arbitrariness and expose teachers of being thrown out of employment on one or the other pretext and shall never have security which is necessary for efficient discharge of duty. Equity stands in her favour and prevents both the appointing and approving authority from taking recourse to their own mistakes, for causing prejudice to petitioner. Estoppel, the principle of equity, is the shield for such unjust and unfair actions. Equity stands in her favour and prevents both the appointing and approving authority from taking recourse to their own mistakes, for causing prejudice to petitioner. Estoppel, the principle of equity, is the shield for such unjust and unfair actions. " ( 17 ) IN the case of Dr. Asha Saxena (supra) in relevant portion of para 16 of the judgment, this court has held as under : "16. . . . . . . . In any view of the matter, the appointments which were existing for the last 17 years could not be set aside after a lapse of such a long period. Even the earlier Full Bench had quashed the order of the Regional Inspectress of Girls Schools referring the matter under Section 16e (1) of the Act and we are also of the opinion that the aforesaid order is liable to be quashed. It is true that there is power under Section 16e (10) of the Act to cancel the appointments but the power has to be exercised within a reasonable time. The appointment had been made in the year 1973 and by no stretch of imagination it can be said that the exercise of that power after the lapse of 17 years by the Director of Education under Section 16e (1), on the facts and circumstances of the case can be said to be exercise of a power within a reasonable lime. " ( 18 ) IN the case of Smt. Zaitoon Fatima (supra) in paras 4 and 5 of the judgment, this Court has held as under: "4. The next question that begs consideration is whether the Regional Inspectress of Girls schools was justified in making reference under Section 16e (1) of the Act to the Director of education for cancellation of the initial appointment of the appellant by promotion to C. T. grade and later, to L. T. grade after a lapse of about 23 years. The counsel for the appellant / propounded with the vehemence that it would be unjust to allow the appointment to be cancelled after a lapse of nearly 23 years of the appointment of the appellant to L. T. grade. The submission made by the learned counsel is laded with substance. In Smt. S. K. Chaudhary v. Manager. Committee of Management Vidyawati Darbari Girls Inter College, Lookerganj, Allahabad and others. The submission made by the learned counsel is laded with substance. In Smt. S. K. Chaudhary v. Manager. Committee of Management Vidyawati Darbari Girls Inter College, Lookerganj, Allahabad and others. (1991) 1 UPLBEC 250, the validity of appointment of a teacher was sought to be challenged after lapse of 17 years. The Full Bench held as under : "one fails to understand that after a lapse of nearly 17 years the Regional Inspectress of Girls schools referred the matter to the Director of Education for adjudicating the question as to whether the appointments were valid or not. The exercise of power by the Regional Inspectress of Girls Schools on the facts and circumstances of the case is wholly arbitrary as that poses, could not be exercised after lapse of 17 years. . . . . In any view of the matter the appointments which were existing for the last 17 years could not be set-aside after lapse of such a longer period. It is true that there is power under Section 16e (1) of the Act to cancel the appointment but that power has to be exercised within a reasonable time. The appointments had been made in the year 1973 and by no stretch of imagination it can be said that the exercise of that power after the lapse of 17 years by the Director of Education under Section 16e (1), on the facts and circumstances of the case, can be said to be exercise of a power within a reasonable time. " 5. The Court is no doubt conscious of the maxim "quad Ab initio Non Valet in Tractu Temporis non Convalescit," which implies that which was originally void, does not by lapse of time become valid but rule contained in the said maxim is subject to certain exceptions and one such exception is illustrated by the maxim, quod fieri non debet factum valet which means the fact cannot be altered though it should not have been done. R. V. Lord Neborough, 5 Q. B. 585 will illustrate the doctrine of factum valet. There, the question as to the payment of salary to certain special constables whose appoint- ments had not been made in accordance with the requirements of the Special Constable Act, 1831, nor was there any valid order for payment of their salaries. Relying upon the doctrine of quod fieri non debzt factum valet. Lush, J. . There, the question as to the payment of salary to certain special constables whose appoint- ments had not been made in accordance with the requirements of the Special Constable Act, 1831, nor was there any valid order for payment of their salaries. Relying upon the doctrine of quod fieri non debzt factum valet. Lush, J. . who decided that, as the order for payment had been acted upon, the account allowed, and the money paid, the proceedings should not be reopened. The appointment of the appellant herein to C. T. grade and later, to L. T. grade by promotion having been in fact acted upon, it would not be just and proper to reopen the question of validity of her appointment by promotion to C. T. grade and later, to grade after a lapse of about 23 years. In our opinion, the order of the Regional Inspectress of girls Schools referring the matter to the Director Education under Section 16e (1) is thus liable to be quashed. " ( 19 ) THUS, the consistent view of this Court is that the appointment cannot be challenged while determining the seniority and if the appointment has been made and is continued for a long period, it should not be disturbed or set aside on some technicalities or procedural irregularities. ( 20 ) IN the case of Lalit Mohan Misra (supra) in para 11 of the judgment, this Court has held as under : "the provisions of the U. P. Intermediate Education Act make it clear that no person can be appointed as Principal or teacher of the institution unless he is approved by the District Inspector of Schools, or the Deputy Director of Education, as the case may be. Without approval the person does not get the status of a teacher, even though the approval is to be followed by a formal letter, but in the absence of formal letter the person gets the status of a teacher after approval to the appointment is given by the District Inspector of Schools. The appointment of a person as a teacher becomes effective only from the date approval is given and even if a person as allowed to work before that the same has no recognition under the U. P. Intermediate education Act. The appointment of a person as a teacher becomes effective only from the date approval is given and even if a person as allowed to work before that the same has no recognition under the U. P. Intermediate education Act. " ( 21 ) IN the case of Gopal Dube (supra), in relevant portion of para 19 of the judgment it has been held as follows : "19. . . . . . It is relevant to note here that recognition for opening a subject in a college is accorded by the Director under the provisions of the Intermediate Education Act, which is a statute to establish a Board to regulate and supervise the system of High School and Intermediate education in Uttar Pradesh, prescribe courses therefor, and oversee related activities, whereas the Payment of Salaries Act is enacted to regulate the payment of salaries to teachers and other employees of the High Schools and Intermediate Colleges and to provide for matter connected therewith. The two statutes, in our considered view operate in different fields. While dealing with the matters like recognition and payment of salary of teachers and other employee relevant matters to be taken into consideration are different. Regarding recognition, the authority has to satisfy itself about necessary infrastructure, the facilities available in the educational institution, the benefit to the students of the locality in opening the new subject in the institution, the potentiality of the institution to cater to the needs of the students of the locality etc. while dealing with the question of granting approval for creation of post of a teacher or other employee in an institution, the primary consideration is the preparedness of the State Government to bear the financial liability of the new post proposed to be created. It follows, therefore, that the contention that since the Director is associated with the matter regarding grant of permission/recognition for opening new subject in the institution, it is presumed that he has given his consent for creating new posts of teachers and other employees for that subject is not correct. This contention, if accepted, may lead to situation that the management creates posts of teachers and other employees in connection with the new subject and the State Government is compelled to bear the financial liability without any further involvement in the matter. Such a situation, as we read the provisions of the two enactment. This contention, if accepted, may lead to situation that the management creates posts of teachers and other employees in connection with the new subject and the State Government is compelled to bear the financial liability without any further involvement in the matter. Such a situation, as we read the provisions of the two enactment. is not contemplated. II also does not appeal to common logic. The result is that for the purpose of creating a new post of teacher of other employee for/in connection with a new subject, which it has been permitted to open, the management has to obtain prior approval of the Director as required under Section 9 of the Payment of Salaries Act. This statutory mandate cannot be said to have been satisfied by raising a presumption on the basis of recognition granted for that subject. " ( 22 ) IN the case of Chandra Bhal Misra (supra) in relevant portion of para 7 of the judgment it has been held as under : "7. . . . . . Firstly, the petitioner Chandra Bhal Mishra had taken leave from the institution to join a municipal Higher Secondary School a chance of serving another institution sought voluntarily. Secondly, while working for two years at the Higher Secondary School between the period 1st october, 1963 to 5th August, 1965, Chandra Bhal Mishra settled himself on a substantive post and an available substantive vacancy implying that he was waiving his lien at the institution from where he came. Thirdly, the Committee of Management had not been consistent in accepting Chandra Bhal Mishra as the seniormost lecturer and that on this point the committee had several times waivered in its decision by holding at times that Chandra Bhal Mishra is the senior and at times recording that Adya Prasad Singh is the seniormost lecturer at Balbhadra intermediate College, Jaunpur. Fourthly, according to the District Inspector of Schools, the decision of the Committee of Management in its inconsistent decision on the matter of seniority did not inspire confidence. Lastly, giving recognition to the fact that Adya Prasad Singh had been continuously serving at the institution without a break, which Chandra Bhal Mishra admittedly had not been, the District Inspector of Schools logically considered the former as the seniormost lecturer at the college. Lastly, giving recognition to the fact that Adya Prasad Singh had been continuously serving at the institution without a break, which Chandra Bhal Mishra admittedly had not been, the District Inspector of Schools logically considered the former as the seniormost lecturer at the college. " the provision regarding extraordinary leave which is applicable in the case of teachers, is as follows : "ashadharan Avkash yah Bina Vetan Hota Hai. Sthai Adhyapako Ko Pure Warsh Ka Ashadharan Awakash Bhi Mil sakta Hai. Aasthai Adhyapako Ko Yah Awaksh Teen Mah Se Adhik Ke Samai Me Deiy Na hoga. Teen Varsh Ke Lagatar Aasthai Seva Kar Chuke Adhyapako Ko Adhyayan Karne Ke udyeshya Se Ak Samai Me 24 Mah Seema Tak Yah Awakash Sweekrit Kiya Ja Sakta Hai. " ( 23 ) THUS, from aforesaid decision, it is seen that the approval of the District Inspector of Schools is necessary or condition precedent for appointing a teacher in the college and after under 1971 act, the sanction for creating of the post is condition precedent for making payment of salary. ( 24 ) HAVING heard the learned counsel for the parties. 1 find that the petitioner was appointed on the post of lecturer (Biology) in the college on 31. 7. 1970 on which post he joined on 1. 8. 1970. At that time, there was no requirement under law for getting sanction of the post. It is also not in dispute that the subject Agriculture which was being taught in the college was surrendered and in its place permission to teach Biology subject in Intermediate classes was sought which was granted by the District Inspector of Schools vide order dated 20. 9. 1969. The 1971 Act came into force w. e. f. 1. 4. 1971. Section 9 of the said Act provided for prior approval for creating of post, which reads as follows : "no institution shall create a new post of teacher or other employee except with the previous approval of the Director, or such other officer as may be empowered in that behalf by the director. " ( 25 ) THUS, when the petitioner was appointed, there was no provision for seeking approval for the creation of the post. " ( 25 ) THUS, when the petitioner was appointed, there was no provision for seeking approval for the creation of the post. The only requirement was that no person shall be appointed as teacher in a recognized institution unless he possesses the requisite qualification and has been recommended by the selection committee constituted for the said post and approved by the Inspector as provided in Section 16f of the Act as it stood at the relevant time. The District Inspector of schools had declined to grant approval only on the ground that the post was not sanctioned. The said order appears to have been set aside by Deputy Director of Education under Section 16f (3)of the Act on the representation made by the Committee of Management otherwise there was no reason as to why the payment of salary was made to the petitioner w. e. f, 1. 4. 1971 under the 1971 act. The irresistible inference is that the appointment of the petitioner was approved by the authorities and there was no dispute regarding his date of appointment. Even otherwise, as held by this Court in the case of Vijai Narain Sharma (supra), the question of validity of the appointment cannot be gone into in any proceedings for determination of seniority. Further after about 30 years, the validity of appointment of the petitioner on the post of lecturer cannot be questioned, as held by this Court in the case of Dr. Asha Saxena. Smt. Rani Srivastava and Smt. Zaitoon Fatima (supra ). The submission of the learned counsel for the respondent No. 5 that in the absence of approval given by the District Inspector of Schools, the appointment of the petitioner on the post of lecturer is of no consequence in the fact of the present case is not correct. No doubt. Section 16f as stood during the relevant time which provides that no appointment on the post of teacher in a recognized institution can be made without approval of the District Inspector of Schools, yet in the present case, I find that after the District Inspector of schools had declined to grant approval to the appointment of the petitioner, the Committee of management had made representation to the Deputy Director of Education, Varanasi Region. Varanasi, who had directed for payment of salary to the petitioner w. e. f. 1. 4. 1971 under the 1971 apt. Varanasi, who had directed for payment of salary to the petitioner w. e. f. 1. 4. 1971 under the 1971 apt. The averment in this behalf has been made in para 10 of the writ petition. In the counter-affidavit, it has been stated that the Deputy Director of Education never created any post of lecturer or accorded approval to the alleged appointment of the petitioner on the post of lecturer. ( 26 ) AS held hereinabove that approval for creation of the post was not required prior to coming into force of the 1971 Act and only approval to the appointment was required under Section 16f of the Act. The order passed by the Deputy Director of Education for payment of salary to the petitioner in the circumstances of the case would be deemed to be an order granting approval to the appointment of the petitioner. So far as the question that the period during which the petitioner had worked in Balrampur Degree College, Gonda, will amount to break in service is concerned, I find that the petitioner had applied for extraordinary leave, which was sanctioned by the Committee of Management. The provision for granting extraordinary leave does not provide that the person shall lose his lien on the post if the extraordinary leave is sanctioned. It has to be seen as to whether the person who has applied for extraordinary leave and has joined another college or institution has joined in what capacity inasmuch as whether the appointment was substantive or not. If the appointment was not substantive in nature, then there is no question of losing lien on the post already held by such person. The sanctioning of extraordinary leave was well within the powers of the Committee of Management and thus, the petitioner did not lose his lien on the post of lecturer in the college. The decision of this Court in the case of Chandra Bhal misra (supra) relied by the learned counsel for the respondent No. 5 would not be applicable to the facts of the present case inasmuch as in the case of Chandra Bhal Misra the petitioner had gone on substantive post of lecturer in another institution and after lapse of two years his re-transfer was permitted. In the present case, the petitioner had not left the institution after selection in another institution on substantive post. In the present case, the petitioner had not left the institution after selection in another institution on substantive post. The nature of appointment in Balrampur degree College, Gonda, in respect of the petitioner, is not on record. The extraordinary leave had been sanctioned by the college and, thus, there was no question of any break in service. ( 27 ) IN view of foregoing discussions, the irresistible conclusion is that the petitioner was appointed on the post of lecturer (Biology) on 31. 7. 1970 and there has been no break in his service and on other hand, the respondent No. 5 had been promoted on the post of lecturer (Logic) only on 1. 7. 1972. Thus, the petitioner is senior to the respondent No. 5. Therefore, the impugned order dated 27. 4. 2000 passed by the Joint Director of Education, cannot be sustained and is hereby set aside. In the result, the writ petition succeeds and is allowed. .