JUDGMENT By the Court.—This intra-Court appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 arises out of the judgment and order dated 22.10.1997 passed in Civil Misc. Writ Petition No. 11778 of 1994, whereby the learned Single Judge has dismissed the writ petition of the appellant on the ground that he was not entitled to the reliefs claimed for, as he was not appointed against a sanctioned post. 2. Short facts giving rise to the present appeal are that the appellant claims that he was appointed as an Assistant Teacher in the L.T. Grade in Shri Moti Lal Inter College, Saiyan, District Agra (hereinafter referred to as the ‘Institution’), which is an Institution recognised under the provisions of the Uttar Pradesh Intermediate Education Act, 1921 and the Regulations framed thereunder read with the provisions of the U.P. Secondary Education Services Selection Boards Act, 1982 and the Rules framed thereunder. The Institution is on the grant-in-aid list and the disbursement of salary of teachers and other staff is made under the provisions of the U.P. Act No. 24 of 1971. 3. The appellant was appointed against a resultant short-term vacancy on account of the ad hoc promotion of Shri Kishan Chandra Sharma, who was a permanent teacher in the L.T. Grade. Shri K.C. Sharma was promoted as a Lecturer and in the consequential vacancy, the appellant claims that he was appointed after following the due process as prescribed under the Rules on 1st September, 1992. The papers relating to the selection and appointment of the appellant were sent to the District Inspector of Schools, Agra, the authority competent to grant approval to his appointment and for payment of salary. The appellant did not receive salary, as such, he represented before the District Inspector of Schools and having failed to get any response, filed the writ petition, which has given rise to this special appeal, praying for a writ of mandamus directing the District Inspector of Schools to ensure payment of salary to the appellant in the L.T. Grade. 4. The appellant did not receive salary, as such, he represented before the District Inspector of Schools and having failed to get any response, filed the writ petition, which has given rise to this special appeal, praying for a writ of mandamus directing the District Inspector of Schools to ensure payment of salary to the appellant in the L.T. Grade. 4. A counter affidavit was filed in the writ petition sworn by Shri V.N. Srivastava, Accounts Officer in the office of the District Inspector of Schools, Agra and in paragraph 3 of the said counter affidavit, it was categorically stated that there are only 13 posts, in all, in the Institution including the L.T. Grade, C.T. Grade, a miscellaneous post for Science/Maths Teacher and another post for a Physical Training Instructor. The said posts, according to the State, were sanctioned by the Director of Education vide sanction letter dated 31st March, 1991. It was further averred in the counter affidavit that since the total number of posts is 13, therefore, the appellant, who was over and above the sanctioned strength, could not be paid salary and that is why no approval was granted to the appellant’s appointment. The learned Judge relying on the said averments contained in the counter affidavit, without considering any material dismissed the writ petition on 22nd October, 1997, which has been assailed in the present appeal. While dismissing the writ petition, the learned Judge has observed as follows : "In view of the fact that the petitioner was not appointed on the sanctioned post, as such, his appointment was illegal. In that view of the matter, the writ petition fails and is dismissed. There will be no order as to costs." 5. Review application filed against the aforesaid order was also rejected vide order dated 15.12.1997. 6. During the pendency of the appeal, affidavits have been exchanged between the parties and the State has filed a counter affidavit to which a reply has also been filed through a rejoinder filed on behalf of the appellant. 7. Another fact, which is relevant and borne out from the records, deserves to be stated at this stage, that an order for payment of salary to the appellant was passed on 7th March, 1995 during the pendency of the writ petition, which fact does not appear to be noticed in the judgment of the learned Judge. 7. Another fact, which is relevant and borne out from the records, deserves to be stated at this stage, that an order for payment of salary to the appellant was passed on 7th March, 1995 during the pendency of the writ petition, which fact does not appear to be noticed in the judgment of the learned Judge. However, the said fact has been stated in the counter affidavit filed on behalf of the State in the present special appeal. In rejoinder, the appellant’s counsel has stated that after the dismissal of the writ petition on 22.10.1997, the payment of salary was stopped. 8. We have perused the aforesaid order dated 7th March, 1995 and the same appears to have been passed taking cover of the interim order dated 12.4.1994, which was only a direction to pay the salary to the appellant or show cause. According to the order itself, the cause had been shown and, as such, the District Inspector of Schools ought to have awaited the decision in the writ petition instead of straightaway passing the order for payment of salary to the appellant. 9. A short counter affidavit has also been filed on behalf of the State through Shri Manoj Kumar Giri, the District Inspector of Schools, Agra and in the said short counter affidavit, it has been stated that there were only 13 sanctioned posts and since the appointment of the appellant fell over and above the total sanctioned strength of 13 posts, therefore, in order to maintain the payment of salary to 13 teachers, the appellant was denied his claim. It has further been stated therein that the order dated 7th March, 1995 passed by the then District Inspector of Schools/Accounts Officer, to pay the salary to the appellant, overlooked the facts stated in the counter affidavit that had been filed in the writ petition. It has been averred that the appointment of the appellant over and above the sanctioned strength was illegal and, therefore, no post was available and as such no approval could have been granted to the appointment of the appellant. 10. We have heard Shri Amit Saxena, learned counsel for the appellant and Shri M.S. Pipersenia, learned Additional Chief Standing Counsel for respondents 1 and 2. No one has appeared on behalf of the respondent Committee of Management. 11. 10. We have heard Shri Amit Saxena, learned counsel for the appellant and Shri M.S. Pipersenia, learned Additional Chief Standing Counsel for respondents 1 and 2. No one has appeared on behalf of the respondent Committee of Management. 11. The facts as emerge and are undisputed before us, are that there are five sanctioned posts in the L.T. Grade apart from one post of Science and Maths teacher and one post for Physical Training Instructor. The sanctioned strength of C.T. Grade teachers is six. Shri Amit Saxena conceded to this position and urged that the appellant does not dispute the aforesaid position of sanctioned strength even though pleadings to the contrary have been raised in the rejoinder affidavit filed before this Court where it has been stated that there are 14 posts. However, in view of the consistent stand of Shri Saxena that there are only 13 posts, as indicated herein above, we are proceeding to examine the claim of the appellant on the said sanctioned strength, which is corroborated by the letter of the Director of Education dated 31st March, 1991. 12. We have perused the salary bill furnished by the Institution to the District Inspector of Schools, Agra indicating payment to the teachers, who were there in the month of August, 1992 immediately prior to the appointment of the appellant on 1.9.1992. The salary bill of August 1992 indicates that there were five teachers working in the L.T. Grade including Shri Kishan Chandra Sharma. The appellant was appointed against the post, which fell vacant on account of ad hoc promotion of Shri Sharma. There is no dispute that the appellant’s appointment was against the said resultant vacancy in the L.T. Grade and not against any other post. It appears that there were seven teachers in the C.T. Grade, who were being paid salary and whose names find reference at serial Nos. 11 to 17 of the said salary bill. Learned counsel for the appellant appears to be right in contending that in view of the admitted position that the sanctioned strength in the C.T. Grade was six, there were seven teachers functioning and were being paid salary. Thus, it was in the C.T. Grade that a teacher was working in excess of the sanctioned strength. Learned counsel for the appellant appears to be right in contending that in view of the admitted position that the sanctioned strength in the C.T. Grade was six, there were seven teachers functioning and were being paid salary. Thus, it was in the C.T. Grade that a teacher was working in excess of the sanctioned strength. The aforesaid fact could not be successfully disputed by the learned Additional Chief Standing Counsel nor is there any averment justifying the continuance of seven teachers against six posts sanctioned in the C.T. Grade. The excess appointment of a teacher in the C.T. Grade beyond the sanctioned strength in the said cadre, therefore, could not have been accommodated or adjusted by absorption against a L.T. Grade post, as suggested in the counter affidavit filed on behalf of the State particularly when appellant was already appointed as teacher in L.T. Grade. No provision has been brought to our notice, which would entitle the adjustment or accommodation of a C.T. Grade teacher in the L.T. Grade except by way of a valid appointment under the Rules and further if he possesses the essential qualifications. The District Inspector of Schools has nowhere stated in his counter affidavit as to how such an adjustment was being pleaded or could have been made without following the procedure prescribed in law. In the absence of any such indication, either in the counter affidavit or in the submissions of the learned Additional Chief Standing Counsel, there is no option but to accept the plea raised on behalf of the appellant that the stand taken by the respondent State is absolutely unjustified and unsupported in law. 13. The conclusion drawn by the learned Judge that the appellant was appointed over and above the sanctioned strength fails to take notice of the cadre-wise sanctioned strength of posts, namely, that there were five posts in the L.T. Grade and six posts in the C.T. Grade, and an excess appointment appears to have been made in the C.T. Grade and not in the cadre strength of the L.T. Grade. It is not the case of the respondents that the appointment of the appellant was in excess of five teachers as per the sanctioned strength in the cadre of L.T. Grade teachers. It is not the case of the respondents that the appointment of the appellant was in excess of five teachers as per the sanctioned strength in the cadre of L.T. Grade teachers. It is, therefore, obvious that it was in order to accommodate the excess appointment in the C.T. Grade that the claim of the appellant has been resisted and he has been denied approval and payment of salary. In case there was an excess appointment in the C.T. Grade, then, in our considered opinion, the appellant could not have been eliminated and it was for the authorities to have taken steps for eliminating the excess appointment made in the C.T. Grade. 14. Learned Additional Chief Standing Counsel urged that the teacher, who can be said to have been appointed in excess of the sanctioned strength in the C.T. Grade, has not been made party in the present proceedings and, therefore, the appellant cannot be granted the relief as prayed for. 15. We are not impressed by this argument. The claim of the appellant is not against any C.T. Grade post but against the vacancy in the L.T. Grade for which there is no other claimant. In order to provide undue benefit to a teacher in the C.T. Grade, an unjust stand has been taken before us and we cannot be persuaded to accept any such plea of the learned Additional Chief Standing Counsel. The learned Judge, in our opinion, without taking note of the aforesaid facts, erred in dismissing the writ petition. 16. Accordingly, we are of the opinion that the judgment and order dated 22.10.1997 passed in Civil Misc. Writ Petition No. 11778 of 1994 deserves to be set aside and is set aside accordingly. 17. The writ petition and the special appeal are allowed with a direction to the District Inspector of Schools, Agra to consider the claim of the appellant in the light of the observations made herein above and pass an appropriate order with regard to the claim of the appellant for approval and for release of his salary, as expeditiously as possible, preferably within a period of three months from the date of production of a certified copy of this order before him. 18. 18. It is made clear that we have not examined the validity of the procedure adopted by the Committee of Management to secure the appointment of the appellant, which shall also be looked into. The District Inspector of Schools shall pass the order without being influenced by the earlier order dated 7.3.1995. ———