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2009 DIGILAW 1563 (ALL)

ABHAY PAL SINGH v. STATE OF U. P.

2009-04-21

C.K.PRASAD, DILIP GUPTA

body2009
JUDGMENT By the Court.—This Special Appeal seeks the quashing of the judgment and order dated 4th March, 2005 of a learned Judge of this Court by which the writ petition that had been filed by the appellant for setting aside the order dated 1st July, 2002 passed by the District Inspector of Schools, Bulandshahr (hereinafter referred to as the ‘DIOS’) and for a direction upon the DIOS to accord approval to his appointment as an Assistant Teacher in the Sri Swami Poornanand Inter College, Chirodi, Bulandshahr (hereinafter referred to as the ‘College’), was dismissed. 2. It was the contention of the appellant in the writ petition that on the retirement of Karan Singh who was a Lecturer in the College, one Raghu Raj Singh who was working as an Assistant Teacher in the L.T. Grade in the College was promoted as ad-hoc Lecturer and as a result of his promotion, a short-term vacancy arose on the post of Assistant Teacher in the College. This short-term vacancy was required to be filled in by direct recruitment in accordance with the procedure prescribed under the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 (hereinafter referred to as the ‘Second Removal of Difficulties Order’). Information regarding this was sent to the DIOS on 6th May, 1995 and the vacancy was subsequently advertised in the newspapers on 14th August, 1996. The Selection Committee which met on 24th August, 1996 recommended the name of the appellant for appointment as an Assistant Teacher against this short-term vacancy. An appointment order dated 25th August, 1996 was thereafter issued in his favour and he joined the College on 27th August, 1996. The relevant papers regarding his appointment were then forwarded to the DIOS for granting approval but as no orders were passed, he filed Writ Petition No. 54728 of 1999 which was disposed of by this Court on 23rd December, 1999 with a direction to the DIOS to decide the representation. 3. The relevant papers regarding his appointment were then forwarded to the DIOS for granting approval but as no orders were passed, he filed Writ Petition No. 54728 of 1999 which was disposed of by this Court on 23rd December, 1999 with a direction to the DIOS to decide the representation. 3. In the meantime, the promotion of Raghu Raj Singh was challenged by another teacher Sukhbir Singh Raghav on the ground that he should have been promoted as a Lecturer in the College and ultimately when this issue was resolved in favour of Sukhbir Singh Raghav in the year 2000, the Committee of Management resolved on 27th March, 2000 to promote Sukhbir Singh Raghav on the post of Lecturer and also decided to absorb the petitioner who had since been working as Assistant Teacher against the post vacated by Sukhbir Singh Raghav and the papers were thereafter sent to the DIOS for grant of approval on 9th June, 2000. 4. The DIOS by his order dated 19th February, 2001 rejected the representation filed by the appellant pursuant to the directions given by this Court in Writ Petition No. 54728 of 1999, holding that it was on account of promotion of Sukhbir Singh Raghav as a Lecturer that a short-term vacancy on the post of Assistant Teacher arose in the College and the papers of appointment of the appellant were received in the office of DIOS on 9th June, 2000 but he had been appointed earlier on 25th August, 1996. It was also stated that the advertisement had not been issued in two national newspapers having wide circulation in the area. 5. This order was challenged by the appellant by filing Writ Petition No. 8321 of 2001 which was allowed by the judgment and order dated 10th May, 2002 and the order dated 19th February, 2000 passed by the DIOS was set aside. The matter was, however, remitted to the DIOS to take appropriate decision in the matter in accordance with law. This order was challenged by the appellant by filing Writ Petition No. 8321 of 2001 which was allowed by the judgment and order dated 10th May, 2002 and the order dated 19th February, 2000 passed by the DIOS was set aside. The matter was, however, remitted to the DIOS to take appropriate decision in the matter in accordance with law. The observations of the Court are as follows : “After hearing learned counsel from both sides, it appears that the District Inspector of Schools has stated in his order that papers relating to the petitioner’s appointment were sent in the year 2000 i.e. after about four years after the appointment and as the advertisement is not in the newspapers having wide circulation in the district the approval cannot be accorded. As has been stated in the writ petition, the appointment for the post in question was made after giving due intimation by the management and the papers were duly sent and it is just after final decision in respect to the entitlement for the promotion on the post of Lecturer, resolution regarding promotion was passed in March, 2000. On reading of reasons mentioned in the impugned order, it appears that the District Inspector of Schools has not properly addressed to the controversy in issue and in fact, the relevant considerations which should have been there. It was required on the part of the District Inspector of Schools to have considered this aspect as to whether, in view of the final acceptance of promotion of Sukhveer Singh which took place in the year 2000, whether vacancy on the post of Assistant Teacher in LT grade said to have come into existence in 1996 when the petitioner came to be appointed. There appears to be no dispute about the fact that the petitioner was selected in the vacancy which is said to have occasioned due to promotion of Raghuraj Singh and that was admittedly not approved and therefore, vacancy which came into existence on account of promotion of Sukhveer Singh in 2000 can be said to have validly fallen vacant in the year 1996, in the matter which is to be considered by District Inspector of Schools. So far as the advertisement is concerned, on own finding of the District Inspector of Schools, it has been published in the newspaper having wide circulation in the area and from the pleadings and material on record, it is clear that it has been published in two newspapers. It appears that the District Inspector of Schools has not properly addressed to the relevant consideration and on the grounds on which the disapproval has been given, is not being approved by this Court.” (emphasis supplied) 6. Pursuant to the aforesaid order of this Court, the DIOS examined the matter and by the order dated 1st July, 2002 rejected the representation filed by the appellant. In the said order, the DIOS noted that the vacancy of Lecturer which had occurred on 30th June, 1991 on retirement of Karan Singh was required to be filled up by 50% promotional quota and though the papers relating to the promotion of Raghu Raj Singh as a Lecturer had been forwarded to the Board but approval was not granted as Sukhbir Singh Raghav had raised objection. Raghu Raj Singh, therefore, filed a Writ Petition in which a direction was issued to the Joint Director of Education to pass an order in accordance with law. Ultimately the Joint Director of Education by the order dated 4th August, 1999 rejected the proposal of the Committee of Management to promote Raghu Raj Singh and thereafter on 26th March, 2000 the Committee of Management resolved to promote Shukhbir Singh Raghav on the post of Lecturer and his promotion was also approved by the Joint Director of Education on 20th September, 2000. This gave rise to the short-term vacancy on the post of Assistant Teacher. The first reason given by the DIOS for rejecting the representation is that though the short-term vacancy had occurred on the post of Assistant Teacher in the College on 20th September, 2000 but the appellant had been appointed earlier in 1996 when there did not exist any short-term vacancy on the said post. The DIOS also observed that the directions issued by the Full Bench of this Court in Radha Raizada v. Committee of Management and others, 1994 (3) ESC 345 (FB), had not been followed. The DIOS also observed that the directions issued by the Full Bench of this Court in Radha Raizada v. Committee of Management and others, 1994 (3) ESC 345 (FB), had not been followed. The vacancy had not been advertised in newspapers having wide circulation in the region and nor had the Committee of Management taken prior approval from the DIOS for making the appointment. The DIOS also observed that applications had not been invited through registered post and that the procedure as prescribed under the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981 (hereinafter referred to as the ‘First Removal of Difficulties Order) and the subsequent Removal of Difficulties Order had not been followed. 7. This order dated 1st July, 2002 was challenged by the petitioner in the writ petition out of which the present Special Appeal arises. The learned Judge noticed that what was to be decided was whether the short-term vacancy had occurred in the year 1996 when Raghu Raj Singh was promoted as Lecturer or whether the short-term vacancy had occurred in the year 2000 when Sukhbir Singh Raghav was promoted as Lecturer. The learned Judge came to the conclusion that the short-term vacancy on the post of Assistant Teacher occurred on 27th February, 2000 when the Committee of Management resolved to promote Sukhbir Singh Raghav as a Lecturer. On the basis of this finding, the learned Judge observed that the petitioner could not have been appointed in 1996. In the opinion of the learned Judge, the vacancy which had occurred on 27th February, 2000 was required to be filled up in accordance with the procedure prescribed under the Second Removal of Difficulties Order and the directions issued by this Court in Radha Raizada (supra) but since such procedure was not followed by the Committee of Management in the year 2000, the DIOS was justified in not granting approval to the appointment of the petitioner on the post of Assistant Teacher. The learned Judge also observed that no doubt the petitioner had been appointed in the year 1996 after observance of the requisite procedure contemplated under the Second Removal of Difficulties Order and the directions given in the Full Bench decision, but it was not possible for the Court to absorb or regularize his appointment on the short-term vacancy which came in existence subsequently in the year 2000 and this will not confer a right upon the petitioner or the Committee of Management to ask for salary under the Payment of Salaries Act from the State Government. The learned Judge, however, observed that in such circumstances when the Committee of Management had appointed the petitioner after following the procedure but on a non-existant vacancy, the responsibility of payment of salary would be that of the Committee of Management. The writ petition was, accordingly, dismissed but the petitioner was held entitled for payment of salary from the Committee of Management from its own resources. 8. We have heard Sri G.K. Singh learned counsel for the appellant-petitioner as also the learned Standing Counsel appearing for respondent Nos. 1 and 2 and Sri S.K. Mishra for respondent No. 3. 9. Learned counsel for the appellant submitted that the learned Judge as well as the DIOS fell in error in holding that the short-term vacancy had occurred on 27th February, 2000 when the Committee of Management resolved to promote Sukhbir Singh Raghav as a Lecturer because the short-term vacancy had infact occurred in 1996 when Raghu Raj Singh who was working as an Assistant Teacher in the College was promoted on ad-hoc basis to the post of Lecturer. He pointed out that the learned Judge has recorded a finding of fact that the appointment of the appellant in the year 1996 had been made after following the procedure contemplated under the Second Removal of Difficulties Order and the observations made by this Court in the Full Bench decision of Radha Raizada (supra) and the only ground on which the appointment of the petitioner has been disapproved is that the short-term vacancy did not exist in the year 1996 when the Committee of Management appointed the petitioner. He, therefore, submitted that if this Court comes to the conclusion that the short-term vacancy had actually occurred in 1996, the appellant would be entitled to the reliefs claimed in the writ petition. He, therefore, submitted that if this Court comes to the conclusion that the short-term vacancy had actually occurred in 1996, the appellant would be entitled to the reliefs claimed in the writ petition. Learned counsel for the appellant also submitted that the conclusions drawn by the DIOS in the order dated 1st July, 2002 are contrary to the observations made by this Court in the judgment and order dated 10th May, 2002. 10. Learned Standing Counsel appearing for the respondents, however, submitted that there is no infirmity in the order dated 1st July, 2002 passed by the DIOS or in the judgment and order of the learned Judge which is under challenge in this Special Appeal. 11. It is not in dispute that a post of Lecturer in the College fell vacant on 30th June, 1991 when Karan Singh retired. It is also not in dispute that the resultant vacancy on the post of Lecturer was required to be filled up by promotion from the Assistant Teachers working in the L.T. grade. It is also not in dispute that Raghu Raj Singh who was working as Assistant Teacher in the L.T. grade was promoted on ad-hoc basis to the post of Lecturer by the Committee of Management of the College and thereafter the resultant short-term vacancy on the post of Assistant Teacher in the L.T. grade was notified to the DIOS, Bulandshahr on 6th May, 1995 and the appellant was eventually, after advertisement and due selection, appointed as an Assistant Teacher against this short-term vacancy on 25th August, 1996. However, Sukhbir Singh Raghav who was also working as an Assistant Teacher in the L.T. grade in the College raised a dispute that he should have been promoted as Lecturer instead of Raghu Raj Singh. The Joint Director of Education examined this issue and came to the conclusion that Raghu Raj Singh was not entitled to be promoted as Lecturer. It is also not in dispute that subsequently the Committee of Management resolved to promote Sukhbir Singh Raghav on the post of Lecturer on 27th February, 2000. The Committee of Management was also conscious of the fact that the appellant had earlier been appointed as Assistant Teacher in the year 1996 and he was continuing as such and, therefore, it resolved to absorb the petitioner against the short-term vacancy caused by the promotion of Sukhbir Singh Raghav. The Committee of Management was also conscious of the fact that the appellant had earlier been appointed as Assistant Teacher in the year 1996 and he was continuing as such and, therefore, it resolved to absorb the petitioner against the short-term vacancy caused by the promotion of Sukhbir Singh Raghav. The papers were accordingly sent to the Educational Authorities for grant of approval. 12. In the earlier round of litigation when the appellant had challenged the earlier order passed by the DIOS on 19th February, 2001 refusing to accord approval to his appointment as Assistant Teacher, the Court had observed in its judgment and order dated 10th May, 2002 that the DIOS should have examined whether the short-term vacancy on the post of Assistant Teacher came into existence in 1996 or in the year 2000 and in this connection the Court also observed that there was no dispute about the fact that the appellant was selected against the vacancy which had arisen due to the promotion of Raghu Raj Singh and, therefore, the vacancy which came into existence in 2000 on account of promotion of Sukhbir Singh Raghav can be said to have validly fallen vacant in 1996. The Court also recorded a finding that the advertisement had been made in two newspapers having wide circulation in that area. 13. The DIOS, in the order impugned in the writ petition, came to the conclusion that the short-term vacancy on the post of Assistant Teacher had actually occurred in the year 2000 when Sukhbir Singh Raghav was promoted. This finding has been confirmed by the learned Judge and for coming to this conclusion the learned Judge has relied upon the definition of “vacancy” given under Rule 2 (hh) of the Uttar Pradesh Secondary Education Services Commission Rules, 1983 (hereinafter referred to as the ‘1983 Rules’) wherein vacancy has been defined to mean a vacancy arising out as a result of death, retirement, resignation, termination, dismissal, creation of new post, or appointment/promotion of the incumbent to any higher post in a substantive vacancy. The learned Judge observed that since the dispute as to who should have been promoted as a Lecturer was eventually decided by the order dated 6th October, 1999 and the Committee of Management resolved to promote Sukhbir Singh Raghav on 27th February, 2000 as Lecturer it was at this stage that the short-term vacancy arose which was required to be filled up in accordance with the procedure prescribed under the Second Removal of Difficulties Order. 14. Sri G.K. Singh learned counsel for the appellant submitted that the learned Judge committed an error in placing reliance upon the definition of “vacancy” under the 1983 Rules as the vacancy which had occurred in the year 1996 was a short-term vacancy of the nature contemplated under Paragraph 2 of the Second Removal of Difficulties Order. 15. The U.P. Secondary Education Service Commission Act, 1982 and the 1983 Rules deal with substantive vacancies. The First Removal of Difficulties Order deals with ad-hoc appointment in the case of a substantive vacancy caused by death, retirement, resignation or otherwise. The Second Removal of Difficulties Order, on the other hand, deals with short-term vacancy caused by grant of leave, suspension or otherwise. 16. Paragraph 2 of Second Removal of Difficulties Order is as follows : “2. Procedure for filling up short-term vacancies.—(1) If short-term vacancy in the post of a teacher, caused by grant of leave to him or on account of his suspension duly approved by the District Inspector of Schools or otherwise, shall be filled by the management of the institution, by promotion of the permanent seniormost teacher of the institution, in the next lower grade. The Management shall immediately inform the District Inspector of Schools of such promotion along with the particulars of the teacher so promoted. (2) Where any vacancy referred to in Clause (1) cannot be filled by promotion, due to non-availability of a teacher in the next lower grade in the institution, possessing the prescribed minimum qualifications, it shall be filled by direct recruitment in the manner laid down in Clause (3). (3) (i) The management shall intimate the vacancies to the District Inspector of Schools and shall also immediately notify the same on the notice board of the institution, requiring the candidates to apply to the Manager of the institution along with the particulars given in Appendix ‘B’ to this order. (3) (i) The management shall intimate the vacancies to the District Inspector of Schools and shall also immediately notify the same on the notice board of the institution, requiring the candidates to apply to the Manager of the institution along with the particulars given in Appendix ‘B’ to this order. The selection shall be made on the basis of quality point marks specified in the Appendix to the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, issued with Notification No. Ma-1993/XV-7-1 (79)-1981, dated July 31, 1981, hereinafter to be referred to as the First Removal of Difficulties Order, 1981. The compilation of quality point marks shall be done under the personal supervision of the head of institution. (ii) The names and particulars of the candidate selected and also of other candidates and the quality point marks allotted to them shall be forwarded by the Manager to the District Inspector of Schools for his prior approval. (iii) The District Inspector of Schools shall communicate his decision within seven days of the date of particulars by him failing which the Inspector will be deemed to have given his approval. (iv) On receipt of the approval of the District Inspector of Schools or as the case may be, on his failure, to communicate his decision within seven days of the receipt of papers by him from the Manager, the management shall appoint the selected candidate and an order of appointment shall be issued under the signature of the Manager. Explanation—For the purpose of this paragraph— (i)..................... (ii).................... (iii) short term vacancy which is not substantive and is of a limited duration.” 17. The Second Removal of Difficulties Order thus deals with the procedure for filling up short-term vacancies. Clause (1) of paragraph 2 of this Order provides that if a short-term vacancy on the post of a teacher caused by grant of leave to him or on account of his suspension duly approved by the District Inspector of Schools or otherwise, shall be filled by the management of the Institution, by promotion of the permanent senior most teacher of the Institution in the next lower grade. Paragraph 2 of this Order, however, provides that where any vacancy referred to in the aforesaid Clause (1) cannot be filled by promotion, then it shall be filled by direct recruitment in the manner laid down in clause (3). Paragraph 2 of this Order, however, provides that where any vacancy referred to in the aforesaid Clause (1) cannot be filled by promotion, then it shall be filled by direct recruitment in the manner laid down in clause (3). The ‘Explanation’ to Paragraph 2 provides that for the purposes of this paragraph, short-term vacancy is not substantive and is of a limited duration. 18. In such circumstances, the definition of “vacancy” as contained in 1983 Rules ought not to have been looked into as the Second Removal of Difficulties Order itself enumerates the circumstances under which the short-term vacancy arises. 19. In our opinion, the short-term vacancy on the post of Assistant Teacher had arisen in the College, the moment Raghu Raj Singh who was working as an Assistant Teacher in the College was granted ad-hoc promotion on the post of Lecturer in the College. It may be that his promotion was challenged by some other Assistant Teacher having a better claim and ultimately the claim of this other Assistant Teacher Sukhbir Singh Raghav was accepted and he was promoted on 27th February, 2000, but this cannot effect the appointment of the appellant earlier made. The situation would have been different if it was subsequently found that the post of Lecturer had actually not fallen vacant because in such a situation there would have been no occasion to promote any Assistant Teacher but this is not the situation here. The respondents do not dispute that the post of Lecturer had fallen vacant on 30th June, 1991. The only dispute is as to which Assistant Teacher should have been granted ad-hoc promotion. An Assistant Teacher appointed by direct recruitment against the resultant short-term vacancy cannot be made to suffer merely on account of a wrong decision taken by the Committee of Management to promote ‘A’ instead of ‘B’. The learned Judge has found as a fact that the procedure contemplated under the Second Removal of Difficulties Order had been followed by the Committee of Management while appointing the appellant as an Assistant Teacher against the short-term vacancy in the year 1996. The learned Judge has found as a fact that the procedure contemplated under the Second Removal of Difficulties Order had been followed by the Committee of Management while appointing the appellant as an Assistant Teacher against the short-term vacancy in the year 1996. Under paragraph-3 of the Second Removal of Difficulties Order, every appointment of a Teacher made under paragraph 2 of the Second Removal of Difficulties Order shall cease from the earliest of the following date namely; (a) when the teacher who was on leave or under suspension joins the post or (c) when the short-term vacancy otherwise ceases to exist. It needs to be mentioned that Clause (b) has since been deleted by paragraph-3 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties Order), (Third) 1982. 20. Though the learned Judge had recorded a categorical finding that the procedure contemplated under paragraph-2 of the Second Removal of Difficulties Order and the directions issued by the Full Bench of this Court in Radha Raizada (supra) had been followed by the Committee of Management while appointing the appellant as an Assistant Teacher. Learned Standing Counsel appearing for the respondents placed before the Court the order dated 1st July, 2002 wherein the DIOS had observed that the procedure contemplated under the Second Removal of Difficulties Order and the directions of this Court in Radha Raizada (supra) had not been followed inasmuch as the advertisement had not been issued in two newspapers having wide circulation in the region and nor had the Committee of Management taken prior approval of the DIOS before appointing the appellant and the applications had not been invited through registered post. 21. The observations made by the DIOS that advertisement had not been caused in two newspapers having wide circulation is contrary to the decision of this Court in Writ Petition No. 8321 of 2005 filed earlier by the appellant to assail the order dated 19th February, 2001 in which this was also one of the ground taken by the DIOS. This Court recorded a categorical finding of fact that the advertisement had been published in newspapers having wide circulation in the area. The DIOS, therefore, could not have examined this issue much less take a contrary view. 22. There is no provision in the Second Removal of Difficulties Order for inviting applications by Registered Post. This Court recorded a categorical finding of fact that the advertisement had been published in newspapers having wide circulation in the area. The DIOS, therefore, could not have examined this issue much less take a contrary view. 22. There is no provision in the Second Removal of Difficulties Order for inviting applications by Registered Post. The view to the contrary taken by the DIOS is, therefore, not correct. 23. It is true that paragraph 2 (3)(ii) of the Second Removal of Difficulties Order requires the Manager to forward the names and the particulars of the candidate selected to the DIOS for granting prior approval and the appointment can be granted to the selected candidate only after receipt of approval from the DIOS. In the present case the Committee of Management forwarded the papers to the DIOS after giving appointment to the appellant. In our opinion the appointment cannot be said to be illegal on this ground. The effect of this would be that the appointment will take effect from the date the DIOS grants approval or from the date it will be deemed to have been approved by the DIOS.This is what has been observed by a Division Bench of this Court in Ashika Prasad Shukla v. District Inspector of Schools, Allahabad and another, 1998 (3) ESC 2006 (All) : “The next question that falls for consideration is whether the appointment of the petitioner-appellant could still stand invalidated on the ground that it was made without prior approval of the District Inspector of Schools. Sri Yatindra Singh placed reliance on a Division Bench decision of this Court in A.K. Pathshala v. Smt. M.D. Agnihotri, 1971 All LJ 983, wherein it was held, on construction of Section 16-F(1) of the U.P. Intermediate Education Act, 1921, that appointment without prior approval by the Competent Authority would, in the eye of law, be no appointment. The ratio of the said decision as held by a subsequent Division Bench in Lalit Mohan Misra v. District Inspector of Schools, 1979 All LJ 1025, is that a “person gets the status of a teacher when requisite formality is completed". The ratio of the said decision as held by a subsequent Division Bench in Lalit Mohan Misra v. District Inspector of Schools, 1979 All LJ 1025, is that a “person gets the status of a teacher when requisite formality is completed". The relevant observations are as under : “Without approval the person does not get the status of a teacher even though the approval is to be followed by 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 is allowed to work before that the same has no recognition under the U.P. Intermediate Education Act.” Paragraph 2(3)(iv) of the Second Removal of Difficulties Order is not phrased in a prohibitory language as was the language used in Section 16-F(1) of the U.P. Intermediate Education Act, 1921. The words ‘prior approval’ have been used in sub-clause (ii) of paragraph 2(3) of the Second Removal of Difficulties Order and a conjoint reading of sub-clauses (ii), (iii) and (iv) of clause (3) of paragraph 2, no doubt, leads to an inescapable conclusion that the appointment would be issued under the signature of the Manager only on the approval having been communicated by the District Inspector of Schools within seven days of the receipt of the papers or where the approval is deemed to have been accorded as visualised by sub-clause (iii) of clause (3) of paragraph 2 of the Second Removal of Difficulties Order. However, appointment if made prior to approval or deemed approval, would become effective from the date of approval or deemed approval is held by the Division Bench of this Court in Lalit Mohan Misra. There is nothing on the record to connote that pre-requisite conditions attracting deemed approval were not satisfied in the instant case." (emphasis supplied) 24. However, appointment if made prior to approval or deemed approval, would become effective from the date of approval or deemed approval is held by the Division Bench of this Court in Lalit Mohan Misra. There is nothing on the record to connote that pre-requisite conditions attracting deemed approval were not satisfied in the instant case." (emphasis supplied) 24. It was the specific case of the petitioner-appellant before the DIOS that the short-term vacancy had been intimated to the DIOS on 22nd June, 1995 and after granting appointment to the appellant on 25th August, 1996 as an Assistant Teacher against the short-term vacancy, the names and the particulars of the candidate selected and other relevant information was sent by the Committee of Management to the DIOS for approval which communication was received in the office of the DIOS on 28th August, 1996. The impugned order does not mention that the aforesaid communication sent by the Committee of Management was not received in the office of the DIOS on 28th August, 1996. The petitioner-appellant has also categorically stated this fact in paragraph-7 of the writ petition and in reply to this paragraph all that has been stated by the DIOS is that approval could not be granted by the DIOS as short-term vacancy did not exist on the post of Assistant Teacher in the College when the appellant was appointed. 25. We have, therefore, to proceed on the footing that the relevant papers regarding selection and appointment of the appellant had been received in the office of the DIOS on 28th August, 1996. In accordance with paragraph 2(3)(iii) of the Second Removal of Difficulties Order, the DIOS shall be deemed to have given his approval since he did not communicate his decision within seven days of the receipt of the particulars. The inevitable conclusion that follows is that the appointment of the appellant as an Assistant Teacher in the College stood approved on 5th September, 1996 and in terms of the decision of this Court in Ashika Prasad Shukla (supra) he shall be entitled to his salary from the said date. 26. The inevitable conclusion that follows is that the appointment of the appellant as an Assistant Teacher in the College stood approved on 5th September, 1996 and in terms of the decision of this Court in Ashika Prasad Shukla (supra) he shall be entitled to his salary from the said date. 26. The learned Judge did not find any fault in the appointment of the petitioner-appellant as an Assistant Teacher in the College and the only reason why salary under the Payment of Salaries Act was denied to him is that the short-term vacancy did not exist at the time when he was appointed. It is for this reason that the learned Judge directed that salary should be paid by the Committee of Management. We have held that there did exist a short-term vacancy in 1996 when the petitioner-appellant was appointed as an Assistant Teacher. In such circumstances, a direction needs to be issued to the DIOS to pay the salary to the petitioner-appellant from 5th September, 1996. 27. The order dated 1st July, 2002 passed by the DIOS, therefore, cannot be sustained. It is, accordingly, set aside. The petitioner-appellant shall be treated as a validly appointed Assistant Teacher in the L.T. Grade in the College on 5th September, 1996. He will be paid salary under the Payment of Salaries Act, 1971 from the said date and shall be entitled to other consequential benefits. 28. The Special Appeal and the Writ Petition are, accordingly, allowed to the extent indicated above. ————