JUDDGMENT By the Court.—These two appeals arise out of a dispute, the genesis whereof lies in the order passed by the District Inspector of Schools Farukhabad dated 9th December, 1991. By this order the District Inspector of Schools treated the claim of Anil Kumar to be valid and found him entitled to continue against the Short Term Vacancy of an L.T. Grade teachers post in the Institution namely Janta Adarsh Intermediate College, Babna, District Farukhabad recognized under the U.P. Intermediate Education Act, 1921 and governed by the provisions of the U.P. Secondary Education Services Selection Board Act, 1982. It is undisputed that the post is a sanctioned post and is under the purview of the payment of salaries Act (U.P. Act No. 24 of 1971) as such the payment of salary upon approval by the District Inspector of Schools is admissible through State funds. 2. Anil Kumar who is the appellant in one of the appeals is stated to have been appointed on ad-hoc basis on an L.T. grade post in the Institution that fell vacant on account of the leave taken by the permanent incumbent of the post namely Gyan Singh Kushwaha. This appointment was made on 6th August, 1988 and was approved by the District Inspector of Schools on 5th October, 1988. There is no dispute about the appointment of Anil Kumar and his approval as ad-hoc teacher against a short term vacancy in the manner aforesaid. 3. A post of lecturer which is in the higher grade fell vacant in the year 1989 and against the said post a permanent teacher of the Institution in the L.T. Grade namely Sri Raj Bahadur Singh was promoted on ad-hoc basis as lecturer. The said appointment led to a short term vacancy of L.T. Grade which was the post held by him on substantive basis. This short term vacancy was filled up by the appointment of Jitendra Singh, the appellant in Special Appeal No. 1082 of 2010. It is alleged that Raj Bahadur Singh had joined the post of lecturer on 6th January, 1989 pursuant to the resolution dated 1st January, 1989 and Jitendra Singh joined on the consequential vacancy on 15th January, 1989. The approval order in relation to Raj Bahadur Singh was issued on 1st August, 1989. The approval order clearly recited that the appointment was being approved w.e.f. 6th January, 1989. The approval order in relation to Raj Bahadur Singh was issued on 1st August, 1989. The approval order clearly recited that the appointment was being approved w.e.f. 6th January, 1989. Further it was indicated therein that on account of the said ad-hoc promotion of Raj Bahadur Singh the proceedings undertaken by the Committee to fill up the post by appointing the appellant Jitendra Singh would stand approved only after the date of approval of Raj Bahadur Singh. Thus the said document which is on record recites that the appointment of Jitendra Singh would stand validated and approved after 1.8.1989. 4. Consequently Anil Kumar was approved against the post of Gyan Singh Kushwala whereas the Jitendra Singh came to be appointed and approved against the post of Raj Bahadur Singh. The existence of the order dated 16.8.1989 in relation to the approval of Raj Bahadur Singh and Jitendra Singh has not been disputed. 5. It appears that Gyan Singh Kushwaha continued on leave. Anil Kumar set up a claim that Jitendra Singh had not been appointed against the post of Raj Bahadur Singh on ad-hoc basis in L.T. Grade and that selections were held on 12.12.1989 in which Anil Kumar came to be appointed on ad-hoc basis against the post of short term vacancy of Raj Bahadur Singh. The District Inspector of Schools vide order dated 27th January, 1990 communicated to the Manager of the Institution that there is a likelihood of Mr. Gyan Singh Kushwaha rejoining his post and, therefore, in place of Jitendra Singh, Anil Kumar should be accommodated and he should be allowed to continue against the post of Raj Bahadur Singh. The letter further recites that the committee should pass a resolution for annulling the appointment of Jitendra Singh. The said document which has been brought on record further recites that Anil Kumar happened to be the son of the real brother-in-law of the Principal of the Institution and that Gajraj Singh who is the Manager of the Institution is the real maternal uncle of the principal of the institution. Thus, Anil Kumar started claiming his lien on the post against which Jitendra Singh had been appointed. 6. The District Inspector of Schools on 25th November, 1991 passed an order that on account of the repatriation of Sri Gyan Singh Kushwaha the services of Anil Kumar be seized. Thus, Anil Kumar started claiming his lien on the post against which Jitendra Singh had been appointed. 6. The District Inspector of Schools on 25th November, 1991 passed an order that on account of the repatriation of Sri Gyan Singh Kushwaha the services of Anil Kumar be seized. This order was in consonance with law inasmuch as Anil Kumar had been appointed against the vacancy of Gyan Singh Kushwaha. However, on account of the claim of Anil Kumar, as noted hereinabove the District Inspector of Schools on 9th December, 1991 passed an order modifying the earlier order dated 25.11.1991 to the effect that the services of Jitendra Singh shall be treated to be terminated and Sri Anil Kumar shall be allowed to continue in service against the short term vacancy that had fallen vacant due to the ad-hoc promotion of Raj Bahadur Singh. 7. Consequently Jitendra Singh whose salary was stopped filed writ petition No. 10615 of 1992 for payment of salary and also sought annulment of order dated 27.1.1990 and 9.12.1991. The learned Single Judge vide order dated 7th April, 1992 stayed the operation of the aforesaid two orders. Jitendra Singh was, however, not paid salary and the matter inspite of the interim order kept on engaging the attention of the Educational Authorities and ultimately the Director of Education on 30th May, 2005 issued directions for payment of salary to Jitendra Singh which was released w.e.f. 21.6.2005. 8. Anil Kumar filed Writ Petition No. 15006 of 1992 challenging the order of the Manager dated 20th April, 1992 whereby his services had been terminated. The Court passed an interim order on 29th April, 1992. The result was that these two petitioners claimed continuance on the same post of L.T. Grade which was held earlier by Raj Bahadur Singh. It is to be noted that at this stage that Sri Gyan Singh Kushwaha came back as his leave came to an end and he rejoined the Institution on 16.12.1991. 9. The learned Single Judge dismissed the writ petition of Jitendra Singh and while dismissing the same further held that the appointment and continuance of Jitendra Singh and Anil Kumar are both invalid in law and further issued directions to the Director to conduct an inquiry into the matter. 9. The learned Single Judge dismissed the writ petition of Jitendra Singh and while dismissing the same further held that the appointment and continuance of Jitendra Singh and Anil Kumar are both invalid in law and further issued directions to the Director to conduct an inquiry into the matter. In the opinion of the learned Single Judge both the appointments were invalid and the learned Judge also suspected collusion of the Educational Authorities and the two appellants herein above for their alleged continuance on the post of L.T. Grade teacher and payment of salary. 10. Another fact has been brought to our notice that Jitendra Singh filed another Writ Petition No. 3984 of 1998 for payment of salary but the same was dismissed in default on 19th July, 2007. 11. We have heard Sri P.N. Saxena learned counsel for the appellant Jitendra Singh in Special Appeal No. 1082 of 2010, Sri Ashok Khare learned Senior Counsel for the appellant Anil Kumar in the connected appeal and Sri Pipersenia learned Standing Counsel for the State. 12. As noticed above the dispute is in relation to the post of an L.T. Grade Teacher which is a short term vacancy on account of the ad-hoc promotion of Raj Bahadur Singh. It is evident from the record that it was Jitendra Singh who had been selected and appointed against the said post and which stands corroborated by the order of the District Inspector of Schools dated 16.8.1989. At that point of time Anil Kumar was working as an ad-hoc teacher in the L.T. Grade against the leave vacancy of Gyan Singh Kushwaha and not against the vacancy of Raj Bahadur Singh. 13. The case set up by Sri Anil Kumar that he was selected and appointed as an ad-hoc teacher in the L.T. Grade on 12.12.1989 on the post claimed by Jitendra Singh, does not appeal to reason inasmuch as firstly the post stood occupied by Jitendra Singh and secondly no such document has been filed on record in relation to the selection proceedings dated 12.12.1989. On an pointed query on this issue Sri Khare learned Senior Counsel for Anil Kumar could not point out any such document on record to indicate any resolution in favour of the Anil Kumar or any valid selection proceedings pertaining thereto. On an pointed query on this issue Sri Khare learned Senior Counsel for Anil Kumar could not point out any such document on record to indicate any resolution in favour of the Anil Kumar or any valid selection proceedings pertaining thereto. Sri Khare on the strength of the order dated 27th January, 1990 contends that the same would amount to an approval of the appointment of Anil Kumar against the post. We are afraid that we cannot accept the said contention as the document discussed herein above does not in any way indicate approval of any valid resolution dated 12.12.1989 which is not even on record. Even otherwise this would amount to substituting the appointment of Jitendra Singh by allowing the committee to insert Anil Kumar on the post which already stood occupied by Jitendra Singh. The post in our opinion was held by Jitendra Singh and, therefore, such adjustment on the strength of the document dated 27th January, 1990 was not permissible in law. The DIOS had no jurisdiction or authority to terminate the service of Jitendra Singh as it did not suffer from any legal defect. 14. It is to be noted that the post against which Jitendra Singh had been appointed had fallen vacant on account of the ad-hoc promotion of Raj Bahadur Singh. There is no material on record to indicate that the post of Raj Bahadur Singh had fallen vacant on substantive basis. Sri Ashok Khare learned counsel for the Anil Kumar conceded to this position and in view of the aforesaid fact the finding of the learned Single Judge to the effect that the vacancy of Raj Bahadur Singh was a substantive one cannot hold water. As a natural corollary to the aforesaid admitted position on fact, we are of the opinion that the provisions invoked by the learned Single Judge to non-suit the candidate was founded on an erroneous assumption of law and fact. 15. Examining the contentions raised by Sri P.N. Saxena learned Senior Counsel for Jitendra Singh we find substance in the argument inasmuch as the post against which Anil Kumar had been initially engaged was the post of short term vacancy that fell vacant due to the leave of Gyan Singh Kushwaha, Anil Kumar had not been appointed against the post of Raj Bahadur Singh. 16. 16. As noted above the said post was filled up by the appointment of the appellant Jitendra Singh and hence the District Inspector of Schools committed a manifest error by passing the order dated 9th December, 1991 whereby he sought to adjust Anil Kumar on the ground that he had been earlier appointed in 1988. 17. It is further to be noted that there is no question of consideration of Inter-se senority between Anil Kumar and Jitendra Singh inasmuch as both of them were appointed against two different posts on ad-hoc basis against short term vacancies. Their status was not that of a permanent employee and hence, the District Inspector of Schools was not justified in proceeding to pass the order dated 9.12.1991 on such an erroneous assumption of law. The order of the District Inspector of Schools dated 9th December, 1991 is, therefore, unsustainable. There is no provision for the DIOS to assume a power of determining seniority for adjusting ad-hoc appointment in a dispute of the present nature. 18. The learned Single Judge on the basis of the facts that were brought by the parties through their respective pleadings concluded that all the parties have acted in collusion with each other and in defiance of the statutory provisions to extend benefit of employment to both the appellants. Suffice it to say that in the instant case the District Inspector of Schools vide order dated 9.12.1991 proceeded to create the entire confusion inspite of the protest made by the appellant Jitendra Singh. The assumption of any collusion existing between the parties was, therefore, unfounded and had no factual basis. As a matter of fact Jitendra Singh filed a writ petition questioning the correctness of the order dated 9.12.1991 and there was no occasion for him to have been in hand in gloves either with the District Inspector of Schools or the Management. On the contrary what appears to be is that Anil Kumar who was bound to loose his lien after the return of Gyan Singh Kushwaha, was sought to be accommodated on the strength of an erroneous assumption of his seniority vis-a-vis Jitendra Singh. The learned Single Judge, therefore in our opinion misdirected himself on the issues raised and on the facts pleaded. 19. The learned Single Judge, therefore in our opinion misdirected himself on the issues raised and on the facts pleaded. 19. Sri Ashok Khare learned Senior Counsel for Anil Kumar contends that Jitendra Singh has filed Writ Petition No. 3984 of 1998 seeking payment of salary which has been dismissed on 19th July, 2007 and, therefore, the said dismissal should operate against Jitendra Singh in respect of his claim of salary. He further submits that Jitendra Singh has been paid salary only from 2005 onwards and not prior to that. The contention of Sri Khare is misplaced inasmuch as the dismissal of a writ petition in default with regard to payment of salary is of no consequence as it was a writ petition filed later on in the year 1998. We have perused the order in the said writ petition and it does not adjudicate any controversy hence, the contention so raised deserves to be rejected. 20. The question now therefore arise as to the continuance or otherwise of Sri Jitendra Singh and his payment of salary. It is indicated in the judgment of the learned Single Judge that Anil Kumar continued on the post and was also paid salary. In this regard suffice it to say that the lien of Anil Kumar stood terminated with the return of Gyan Singh Kushwaha, he may have continued to receive salary on the strength of the interim order dated 29th April, 1992. This by itself does not confer any right on Sri Anil Kumar to continue to receive salary and would not deprive Jitendra Singh of his legitimate claim for payment of salary. This Court, however, has to balance this issue keeping in view the fact that two claimants cannot be paid salary for the same post. In such a situation we observe that the salary which has been paid to Anil Kumar need not be recovered. The District Inspector of Schools shall proceed on the premise that the appointment of Jitendra Singh will be deemed to be a valid appointment as against the post which had fallen vacant on account of the ad-hoc promotion of Raj Bahadur Singh and in such view of the matter Jitendra Singh would be entitled to the consequential benefits against the said post. 21. 21. Sri Khare submitted that as a consequence of the continuance of Anil Kumar on the post in question and the interim order passed is in his favour, it was he who was entitled for regularization on the post in question and that Jitendra Singh would not acquire any such right. We may hasten to add that both these appeals arise out of a judgment in relation to the ad-hoc engagement claimed by both the appellants and is nowhere concerned with the subject matter of regularization as urged by Sri Khare. Accordingly we do not propose to deal with the aforesaid contention. 22. For the reasons aforesaid the judgment of the learned Single Judge dated 14.9.2009 in Writ Petition No. 10615 of 1992 is set aside consequently the writ petition No. 15006 of 1992 giving rise to Special Appeal Defective No. 635 of 2010 stands dismissed. The appeal filed by Sri Anil Kumar also stands dismissed. The order of the DIOS dated 9.12.1991 is quashed. 23. Resultantly Special Appeal No. 1082 of 2010 is allowed and the District Inspector of Schools Farukhabad is directed to comply with this judgment within three weeks of the date of presentation of the certified copy of this order before him. —————