JUDGMENT Hon’ble S.U. Khan, J.—This writ petition was dismissed as infructuous on 5.12.2008. Thereafter restoration application was filed which was allowed on 11.9.2008 and on the same date arguments of learned counsel for both the parties on the merit of the writ petition were heard. 2. Petitioners who are five in number claim to have been appointed as ad-hoc assistant teachers in L.T. Grade in Intermediate College Machlishahar, Jaunpur which is a privately managed, but recognized and aided institution. Petitioners claimed that they were appointed on 8.7.1991 under Section 18 of U.P. Secondary Education Service Selection Boards Act 1982 as it stood at that time. It has been alleged in para-3 of the writ petition that the Manager through letter dated 12.4.1991 intimated the District Inspector of Schools about five existing vacancies of teachers in L.T. Grade in the College in question and that on 15.6.1991 a reminder was also sent (para-4) and that on 12.4.1991 vacancies were intimated to the Selection Board/Commission also under certificate of posting (U.P.C.). It has further been alleged in para-6 that as Selection Commission did not send the names of selected candidates hence vacancies were advertised on 26.6.1991. Annexure-4 is alleged copy of advertisement according to which advertisement was affixed on the notice board of the college and of Tehsil Cantt Machlishahar. In the said advertisement it was mentioned that nine temporary posts of L.T. Grade teachers were vacant. Thereafter it is mentioned that petitioners appeared before the Selection Committee and were duly selected and appointed. It is further alleged that Committee of Management passed resolution for appointment on 7.7.1991 and on the same date appointment letters were issued to the petitioners and on the next date i.e. 8.7.1991 they joined the posts. Thereafter it is mentioned that on 19.8.1991 the Manager sent the requisite papers for financial approval regarding petitioners appointment to the D.I.O.S. The D.I.O.S. through letter dated 31.8.1991 refused to grant approval. Said order is Annexure-9 to the writ petition. 3. Earlier also petitioners had filed writ petition against order of D.I.O.S. dated 31.8.1991 which was disposed of by directing the D.I.O.S. to decide the representation. Thereafter it is stated that associate D.I.O.S., Jaunpur submitted a favourable report, copy of which is Annexure-11 to the writ petition still salary was not paid to the petitioners. 3. Earlier also petitioners had filed writ petition against order of D.I.O.S. dated 31.8.1991 which was disposed of by directing the D.I.O.S. to decide the representation. Thereafter it is stated that associate D.I.O.S., Jaunpur submitted a favourable report, copy of which is Annexure-11 to the writ petition still salary was not paid to the petitioners. In the report it was mentioned that appointment of four out of five petitioners could be considered and in respect of 5th petitioner management could be directed to pay salary. Thereafter another writ petition was filed by the petitioners which was again disposed of on 21.1.1992 through Annexure-12 directing the D.I.O.S. to decide the matter. 4. Thereafter it is mentioned that matter had already been decided by the D.I.O.S. on 10.12.1991, copy of the said order is Annexure-14 which has been challenged through this writ petition. In Annexure-14 it is mentioned that no requisition for being sent to the Board was received in the office of D.I.O.S. Even in the earlier report of associate D.I.O.S. Annexure-11 no requisition was found to have been sent by the management to the D.I.O.S. In the report of associate D.I.O.S. it was mentioned that on the basis of students’ strength management could appoint four additional teachers. In the report it was mentioned that in the year 1972 there were 40 teachers. However, before enforcement of the Act of 1982 it was essential to appoint the teacher within three months from occurrence of vacancy otherwise post was to be treated as dead. 5. During hearing of restoration application in this writ petition, learned Standing Counsel was directed to seek instruction regarding sanctioned strength and position of payment to the teachers of the college in question including the petitioners. Learned Standing Counsel placed on record order dated 27.8.1999 passed by Joint Secretary directing payment of salary to the five petitioners/teachers. The copy has also been annexed alongwith recall application No. 231380 of 2009 dated 24.8.2009 filed in restoration application in this writ petition as Annexure-2. Thereafter D.I.O.S. on 30.9.1999 directed payment of salary to the five petitioners with effect from 27.8.1992. In the counter-affidavit dated 27.8.1992 it was categorically stated that there was no vacancy. It was also pointed out in para-3 thereof that Manager of the institution in question was in the habit of making illegal appointment without any post or vacancy. Thereafter D.I.O.S. on 30.9.1999 directed payment of salary to the five petitioners with effect from 27.8.1992. In the counter-affidavit dated 27.8.1992 it was categorically stated that there was no vacancy. It was also pointed out in para-3 thereof that Manager of the institution in question was in the habit of making illegal appointment without any post or vacancy. It has also been mentioned that in the year 1987-88 State Government got a survey of the Institution conducted and according to the survey total 20 posts of Principal, Lecturers and teachers were required, however, five lecturers, seven L.T. grade teachers and one C.T. grade teachers were getting salary over and above the sanctioned strength on the basis of interim orders passed in different writ petitions by the High Court. Rejoinder affidavit has been filed on 5.9.2009. In para-5 of the rejoinder affidavit it has been stated that petitioner No. 1 was appointed at the place of Akhilesh Narain Bhargava in the Sanskrit subject and Akhilesh Narain Bhargava had been appointed in the year 1974; petitioner No. 2-Kamla Shankar Maurya was appointed at the place of Mohd. Unus in Sociology subject and the name of Mohd. Unus appeared at Sl. No. 20 in the salary bill of 1974. Similar allegations have been made in respect of other three petitioners. In case of each petitioner it has been mentioned that he was appointed against a post occupied by a teacher in 1974. 6. Since 1974 till 1991, 17 years had passed. Absolutely nothing has been stated regarding the position during this intervening period. Even under Section -18 of the Act of 1982 as it stood at the relevant time it was essential to first send the requisition to the Selection Commission through D.I.O.S. In the instant case it was not so done. Accordingly management had absolutely no authority to make appointment. In the writ petition it has not been stated that how the vacancy occurred. In the alleged advertisement fixed on the notice Board (Annexure-4 to the writ petition) posts were shown to be temporary. Accordingly, even according to the said advertisement posts were not substantive. It has no where been stated that how temporary posts came into existence. Accordingly, petitioners are not entitled to any relief and writ petition deserves to be dismissed. 7. In the alleged advertisement fixed on the notice Board (Annexure-4 to the writ petition) posts were shown to be temporary. Accordingly, even according to the said advertisement posts were not substantive. It has no where been stated that how temporary posts came into existence. Accordingly, petitioners are not entitled to any relief and writ petition deserves to be dismissed. 7. Petitioners are being paid salary under order of Joint Secretary dated 27.8.1999, copy of which has been supplied by learned Standing Counsel. The said order was passed by Shri Deo Narain, Joint Secretary. According to the said order, as petitioners in the writ petition No. 20028 of 1993, Shri Rajesh Kumar Dubey and others v. D.I.O.S., Jaunpur, were being paid salary under interim order passed in the said writ petition to the effect that either pay salary or show cause, hence, salary shall also be paid to the petitioners of the instant writ petition. In the instant writ petition on 24.7.1992 an order was passed for payment of salary or to show cause by filing counter-affidavit within six weeks. Counter affidavit was filed within the aforesaid time i.e. on 27.8.1992. Firstly if an order of payment of salary or showing cause by filing counter-affidavit, is passed, counter-affidavit shall positively be filed and if instead of filing counter-affidavit salary is being paid under said interim order, the Officer who is responsible for filing counter-affidavit is directly responsible for payment of salary in default of filing of counter-affidavit. Secondly in the instant writ petition counter-affidavit had in-fact been filed within time hence there was absolutely no reason or occasion to pay any salary to the petitioners. In fact, no interim order for payment of salary came into existence in this writ petition. It is shocking as to how Shri Deo Narain passed the order on 27.8.1999 for payment of salary. It is not only virtual but actual loot of the government money for which Shri Deo Narain the then Joint Secretary is directly responsible and liable. The note appended at the end of the letter dated 27.8.1999 is much more alarming. According to the said note D.I.O.S. was directed to comply with the order within a week otherwise he would be personally liable for contempt. 8. Writ petition is accordingly dismissed and it is further directed that whatever salary has been paid to the petitioners Nos. The note appended at the end of the letter dated 27.8.1999 is much more alarming. According to the said note D.I.O.S. was directed to comply with the order within a week otherwise he would be personally liable for contempt. 8. Writ petition is accordingly dismissed and it is further directed that whatever salary has been paid to the petitioners Nos. 1 to 5 (petitioner No. 5 is stated to have left the service), 50% of the same shall be recovered from the petitioners and 50% from Sri Deo Narain the Secretary concerned and if he has retired from his personal assets and retiral dues, like arrears of land revenue and compliance report shall be sent to this Court within three months. 9. List for perusal of compliance report immediately after three months. 10. Office is directed to supply a copy of this order free of cost to learned Chief Standing Counsel within a week. ————