JUDGMENT Hon’ble Rakesh Tiwari, J.—Heard counsel for the parties and perused the record. 2. The petitioner was appointed as Clerk in Junior High School Lokmanpur, District Allahabad on 1st July, 1977. The said institution is run by a Society which had initially started the Junior High School in village Lokmanpur, District Allahabad. It was granted permanent recognition with effect from July, 1974 by letter dated 10th July, 1976 of the Deputy Director of Education, Vth Region, Allahabad. The Committee of Management of the aforesaid Junior High School sought approval of the Basic Shiksha Adhikari for appointment of the petitioner which was approved from the date of his appointment i.e. 1st July, 1977. The aforesaid Junior High School was upgraded to the level of High School which was then recognized by the Board of High School and Intermediate Education under the provisions of Section 7-A of the U.P Intermediate Education Act, 1921. The post of Clerk was also sanctioned by the Directorate of Education, Allahabad vide his order dated 22nd September, 1990. The institution was taken in grants-in-aid list and as such the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 became applicable w.e.f. 1st April, 1991. 2. It is claimed that as a consequence the petitioner who was a permanent clerk working in the Junior High School since 1st July, 1977 automatically became permanent clerk w.e.f. 23rd December, 1981 of Sarvodaya Shiksha Sadan Uchchatar Madhyamik Vidyalaya, Lokmanpur, District Allahabad, according to Regulation 4 read with Regulation 100 of Chapter II of the U.P. Intermediate Education Act as the petitioner possessed the necessary qualification for appointment as clerk in the Intermediate College, he was regularly paid his salary by the Committee of Management from the date of his appointment dated 1st July, 1977 till 31st March, 1991. 3. The grievance of the petitioner is that the Committee of Management has submitted his salary bill to the DIOS, Allahabad from 1st April, 1991 regularly but his salary was not paid, rather a notice was sent by the DIOS on 11th June, 1992 to the Committee of Management to show cause as to why the appointment of the petitioner as Clerk in the Junior High School may not be treated as invalid on the ground that he happened to be the nephew of the Manager of the institution. This letter was sent under the Basic Shiksha Sanhita in which there was restraint on the appointment of the relative of the Manager of the institution. Copy of the notice etc. was not served upon the petitioner. However, the Committee of Management sent a reply of the aforesaid letter of the DIOS on 20th October, 1992, which has been appended as Annexure-VIII to the writ petition. 4. The petitioner also moved a representation to the respondents on 27th October, 1992 for payment of salary w.e.f. 1st April, 1991 which remained unactioned. 5. In the above backdrop the petitioner has sought a writ of mandamus directing the opposite parties to pay his salary as Clerk from 23rd December, 1991 and also to decide his representation. 6. In the counter affidavit filed by the respondents the Standing Counsel has placed reliance upon paragraphs 5 and 6 in which it has been averred that after the Junior High School was upgraded a complaint was received by the DIOS, Allahabad that the petitioner is real cousin of the Manager of the institution and on enquiry it was found to be correct as such approval for appointment of his salary was not accorded w.e.f. 1st April, 1991 in view of the provisions contained in Section 12(1)(2) of the U.P. Basic Shiksha Act, 1972. In the circumstances, the liability for payment of salary to the petitioner was denied by the DIOS on the ground that the petitioner could not have been appointed under the U.P. Intermediate Education Act on its upgradation. 7. In the rejoinder affidavit the averments made in the counter affidavit have been denied as incorrect and further that the provisions relating to U.P. Intermediate Education Act relied upon by the learned counsel for the respondents are not applicable. 8. It appears that the High Court vide its ad interim order dated 9.1.1998 after hearing counsel for the parties directed that until further orders, the petitioner shall be paid salary of clerk in the institution in question. The aforesaid order was later on confirmed by the High Court vide order dated 20.8.99. Aggrieved by the aforesaid order dated 20.8.99 the respondents filed Special Appeal No. 154 of 2000 before the Division Bench of this Court, which was dismissed vide order dated 4.4.2000. The aforesaid order was later on confirmed by the High Court vide order dated 20.8.99. Aggrieved by the aforesaid order dated 20.8.99 the respondents filed Special Appeal No. 154 of 2000 before the Division Bench of this Court, which was dismissed vide order dated 4.4.2000. Then the respondents approached the Apex Court against the order dated 4.4.2000 by filing Special Leave to Appeal (Civil) No.14097/2000, State of U.P. and others v. Jokhu Lal and another, which too was dismissed vide order dated 19.2.2001. 9. After hearing learned counsel for the parties and on perusal of the record it emerges that it is not in dispute that the petitioner was working as permanent Clerk in Junior High School, Lekmanpur since 1st July, 1977 and became a permanent clerk w.e.f. 23rd December, 1981 of Sarvodaya Shiksha Sadan Uchchatar Madhyamik Vidyalaya, Lokmanpur on its upgradation according to Regulation 4 read with Regulation 100 of Chapter II of the U.P. Intermediate Education Act but it has not been stated by the respondents that the petitioner did not possess requisite qualification for appointment as clerk. Since no rules were framed by the State Government at the relevant time in regard to the appointment of the petitioner by which the appointment of the relative of the Manager of the institution was barred, hence it cannot be said that the petitioner was not qualified either educationally or otherwise for being appointed as Clerk in the Junior High School on its upgradation in Sarvodaya Shiksha Sadan Uchchatar Madhyamik Vidyalaya, Lokmanpur. It may be noted that service rules dealing with the service condition of the clerk in Junior High School was framed in the year 1984. Rule 12 contains the list of relations of the Manager who cannot be appointed if they are relatives of the Manager. In the said list nephew is also mentioned in the category of person who cannot be appointed in the institution in question as relative of the Manager. Since the petitioner was appointed in 1977 and the aforesaid rules came in the year 1984 as such they are not applicable to the case of the petitioner. In the said list nephew is also mentioned in the category of person who cannot be appointed in the institution in question as relative of the Manager. Since the petitioner was appointed in 1977 and the aforesaid rules came in the year 1984 as such they are not applicable to the case of the petitioner. Regard may also be had to the fact that the petitioner was not appointed afresh on upgradation of the Junior High School, rather he became permanent clerk in the institution by operation of law, therefore, it cannot be said that the Manager had appointed the petitioner as clerk in the Intermediate college afresh on its upgradation. The provisions of Intermediate Education Act, therefore, have no relevance in case of appointment of the petitioner, especially when there was no specific bar in the appointment of the clerk in 1977 in the institution. Learned counsel for the petitioner has taken to the Court to the averments made in the rejoinder affidavit wherein it has been stated that complaint against the petitioner was only due to enmity and Basic Shiksha Adhikari has rightly approved the appointment of the petitioner. In the facts and circumstances of the case, the initial appointment of the petitioner was valid and as such he is entitled to get his salary in view of the provisions of U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971. 10. No rule or position of law could be shown by the learned Standing Counsel which prohibits the appointment of the petitioner as clerk in the Junior High School at the relevant time in 1977. The DIOS in his letter/notice dated 11th June, 1992 had made a reference at page 186 of the Basic Shiksha Sanhita, appended as Annexure-7 to the writ petition, which does not apply to the facts of the case. No opportunity of hearing appears to have been given to the petitioner by the DIOS before passing the impugned order and he has also not received any notice from the Committee of Management to show cause as to why his service may not be terminated as such giving of any reply to the show cause by the petitioner does not arise. It has not been denied in the counter affidavit that the petitioner had in fact raised this point before the DIOS by his representation dated 27th October, 1992, appended as Annexure-9 to the writ petition though it was received by the DIOS. A teacher is not expected to keep record of the office of the DIOS and if the same is not on the record, the office of the DIOS is responsible as the representation of the petitioner had been sent to the DIOS under registered post AD. 11. In the circumstances, the appointment of the petitioner is held to be legal and valid as the approval to the appointment of the petitioner was granted by the Basic Shiksha Adhikari and the order of approval passed by the Basic Shiksha Adhikari has not been either challenged in this writ petition or controverted anywhere. At the time of appointment of the petitioner as Clerk in Junior High School in 1977 the provisions of U.P. Intermediate Education Act were not applicable, hence they have no relevance to the appointment of the petitioner. 12. For all the reasons stated above, the impugned order is quashed and the writ petition is allowed. Since the petitioner has already been paid his salary w.e.f. 9.1.98 vide order dated 10.4.2003. The only direction remains regarding payment of salary to the petitioner of clerk in Intermediate College from 23rd December, 1991 on which it has been stopped. The DIOS, Allahabad is accordingly, directed to pay arrears of salary of the petitioner w.e.f. 23rd December, 1991 till 8.1.98 i.e. the date from which he is being paid his salary with interest at the rate of 6% per annum along with all consequential benefits. 13. No order as to costs. ————