JUDGMENT Hon’ble V.K. Shukla, J.—Present writ petition has been filed questioning the validity of the order dated 28.8.1999 passed by Joint Director of Education, Deoria wherein claim of the petitioner has been rejected and further prayer has been made to issue writ of mandamus commanding the respondent to treat the petitioner as a clerk and pay his salary with arrears and other benefits. By means of amendment application, prayer has been made for quashing the order dated 8.2.1982 and further declaring the adjustment on the post of assistant clerk of Ram Ram Nayan singh as illegal. 2. Brief background of the case is that in the district of Deoria there has been recognised Junior High School. Petitioner claims that in the said Junior High School, he was appointed as “Daftri” Class IV employee by the Managing Committee of the institution on 1.7.1976 pursuant to letter dated 20.6.1976. Petitioner has claimed that permanent recognition was accorded to the said Junior High School in the year 1976 and thereafter said institution was upgraded to High School in the year 1981-82 and the provisions of U.P. Act No. 24 of 1971 were made applicable to the said institution. Petitioner has stated that after up-gradation of the institution in question, Deputy Director of Education, Deoria created various posts for High School, which was inclusive of five Class IV posts, including post of a Daftri, and a Sweeper and one post of assistant clerk. Petitioner has stated that Ram Nayan Singh, who was working as clerk in the Junior High School was not appointed as clerk in the High School and thereafter, District Inspector of Schools vide order dated 8.2.1982 has adjusted him on the post of clerk. Petitioner has come out with specific case that by resolution of the Managing Committee of the institution dated 25.10.1983 he was promoted as clerk in the High School and started working as clerk. Petitioner has stated that subsequent to the same, again on 7.11.1990 five class posts and one class III posts was created. It has been further stated that he was on medical leave from 5.9.1991 to 7.9.1991 and he moved an application for continuation of the sanctioned leave, but same was not accepted and order of dispensation of service was passed on 10.9.1991. Petitioner filed Civil Misc. Writ Petition No. 28735 of 1991. It has been further stated that he was on medical leave from 5.9.1991 to 7.9.1991 and he moved an application for continuation of the sanctioned leave, but same was not accepted and order of dispensation of service was passed on 10.9.1991. Petitioner filed Civil Misc. Writ Petition No. 28735 of 1991. Apart from this petitioner alongwith other member of teaching and non-teaching staff of the institution had filed Civil Misc. Writ Petition No. 16902 of 1992 for payment of their salary and further quashing of the order of Deputy Director of Education dated 10.9.1991 wherein claim for payment of salary has been rejected. Civil Misc. Writ Petition No. 28735 of 1991 was allowed vide judgment and order dated 11.12.1995. In the said judgment which was passed it was mentioned that order passed therein shall be subject to result of Civil Misc. Writ Petition No. 16902 of 1992. Against both the orders dated 7.12.1995 and 11.12.1995 Special Appeal Nos. 162 of 1996 and 172 of 1996 had been filed and thereafter vide judgment dated 16.10.1998 Deputy Director of Eduction, Deoria was asked to decide the claim of petitioner regarding appointment as ‘Daftri’ and his promotion as clerk. Petitioner filed representation and same was rejected by Joint Director of Education. Against the said order, passed by the Joint Director of Education, present writ petition has been filed and said writ petition was allowed on 2.7.2007. Against the same Ram Nayan Singh, respondent No. 3 clerk preferred Special Appeal No. 1265 of 2007 and said appeal had been allowed on 27.9.2007 and order passed in Civil Misc. Writ Petition No. 41371 of 1999 was set aside and matter was directed to be restored and re-heard and in this background present writ petition has been taken up for final hearing and disposal after pleadings inter-se parties have been exchanged. 3. Writ Petition No. 41371 of 1999 was set aside and matter was directed to be restored and re-heard and in this background present writ petition has been taken up for final hearing and disposal after pleadings inter-se parties have been exchanged. 3. Sri Rahul Jain, Advocate, learned counsel for the petitioner contended with vehemence that in the present case Deputy Director of Education, Deoria has clearly erred in law and misdirected itself by contending that petitioner’s appointment had not been made by the competent authority and there was no post of ‘Daftri’ and further promotion, which have been accorded at the said point of time, there was no post of assistant clerk, as Ram Nayan Singh, respondent No. 3 has already been absorbed against the said post and as such order passed by the Deputy Director of Education, Deoria is vitiated in law. Further submission has been made that under U.P. Act No. 2 of 1921 and U.P. Act No. 24 of 1971 there is no power of adjustment and as such adjustment made on 8.2.1982 is unsustainable, in this background writ petition deserves to be allowed. 4. Countering the said submission, learned Standing Counsel as well as learned counsel representing Ram Nayan Singh on the other hand contended that petitioner cannot be permitted to make collateral challenge of appointment of Ram Nayan Singh and further in the present case claim of the petitioner has been rightly non suited and as such writ petition as it has been framed and drawn is liable to be dismissed. 5. After respective arguments have been advanced, factual position, which is emerging in the present case is that petitioner claims that he was appointed as ‘Daftri’ Class IV employee by the Committee of Management on 1.7.1976 in the institution in question when it was Junior High School institution in pursuance to the appointment letter dated 20.6.1076. This much is admitted that at the point of time of appointment of petitioner, there were no service rules for non-teaching staff of recognised junior high school and service rules for the first time were introduced w.e.f. 13.6.1984 whereas petitioner has been appointed much prior to it when there was no authority prescribed to appoint. This much is admitted that at the point of time of appointment of petitioner, there were no service rules for non-teaching staff of recognised junior high school and service rules for the first time were introduced w.e.f. 13.6.1984 whereas petitioner has been appointed much prior to it when there was no authority prescribed to appoint. The observations, which have been made by the Deputy Director of Education, Deoria in his order is unsustainable observation, as at the relevant point of time when the appointment of petitioner had been made the provision of U.P. Act No. 6 of 1979 were not at all enforcible in the petitioner’s institution and no post of teaching and non-teaching staff was required to be created under Section 9 of U.P. Act No. 6 of 1979. Once there were no rules or regulations holding the field of selection and appointment, and petitioner claims to have been appointed, at the said point of time, then to non suit the claim of petitioner on the ground that there was no post of ‘Daftri’ and Managing Committee of the institution was not authorized, cannot be subscribed and said observation made by the Deputy Director of Education, Deoria is unsustainable on the face of it, and Deputy Director of Education was required to examine the matter, in the light of provisions, which existed on 20.6.1976 in respect of creation of post and selection/appointment etc. and not qua the provisions which were subsequently enforced. 6. This much is admitted that institution in question was upgraded as High School in 1981 and there initially five class IV posts, including post of ‘Daftri’, Sweeper and one post of assistant clerk was created. Thereafter by order dated 7.11.1990 Deputy Director of Education, Deoria created one more post of clerk and five posts of class IV employee. It is also undisputed position that against the post of assistant clerk, which was created after up-gradation of the institution, against the same Ram Nayan Singh had been adjusted and said adjustment was not isolated case of adjustment, rather alongwith him various teaching and non-teaching staff of the institution had been adjusted. Petitioner knew very well that Ram Nayan Singh had been adjusted against the post of assistant clerk and at no point of time said adjustment order, which have been made on 8.2.1982 had ever been questioned and said order has been permitted to attain finality. Petitioner knew very well that Ram Nayan Singh had been adjusted against the post of assistant clerk and at no point of time said adjustment order, which have been made on 8.2.1982 had ever been questioned and said order has been permitted to attain finality. Validity of said order has been sought to be questioned when said order has been made foundation and basis by the Deputy Director of Education, Deoria after seventeen years. Such belated challenge cannot be subscribed and it has to be accepted that petitioner acquiesced to the order dated 8.2.1982 even if some allegations been there, same has to be questioned within reasonable period, and same having not been done within reasonable period, it has to be accepted as final. Question which has emerged in the present case is that petitioner claims that he was promoted by the Managing Committee of the institution on 25.10.1983 and he had been performing and discharging his duty as clerk in the institution till provision of U.P. Act No. 24 of 1971 were made applicable w.e.f. 1.4.1991. Petitioner has stated that thereafter, he applied for leave, said leave was cancelled and then his services were terminated and dispensed with and said order has been set aside vide judgment and order dated 11.12.1985 by making said order subject to the decision of Civil Misc. Writ Petition No. 16902 of 1992. Petitioner has been agitating for his salary and while agitating for his salary, collateral challenge has been sought to be made by contending that adjustment of Ram Nayan Singh was illegal and post had been filled by way of promotion. 7. There is serious dispute, inasmuch as, once there was single post of assistant clerk in the institution in question, same had already been filled up by way of adjustment of Ram Narayan Singh and said order had never been questioned, then certainly promotion of petitioner had been made against non existent vacancy. Petitioner cannot as already mentioned above question collaterally validity of the appointment of Ram Nayan Singh, as alongwith other teaching and non teaching staff of the institution order of adjustment of Ram Nayan Singh as assistant clerk in the institution had been passed and same had never been questioned and it was only petitioner has claimed for payment of salary has been rejected, such claim has been sought to be made by him. Such claim already mentioned, cannot be entertained. 8. This much has also been sought to be brought on record that Ram Nayan Singh was not at all present in the institution when the institution in question has been upgraded, and in the list of teaching and non-teaching staff of the institution, his name has been sought to be inserted whereas fact of the matter is that he had never functioned. As to whether in institution in question has on the same being upgraded and included in grant-in-aid list of the State Government, and when petitioner had been appointed, Ram Nayan Singh had already left and tried to come back after it was taken in grant in-in-aid list, are essentially question of fact, and here in the fact of the present case, such question had not at all been examined. 9. Consequently, order dated 28.8.1999 passed by the Deputy Director of Education, Deoria is hereby quashed and set aside. Matter is remitted back to the Deputy Director of Education, Deoria to re-examine the matter as to whether when the institution in question was included in the grant-in-aid list of the State Government at the said point of time as to whether Ram Nayan Singh was actually functioning in the institution or not ?. In case it is found that he was not at all functioning in the institution and only after including the institution in question in grant-in-aid list, manipulation has been made in his favour, then claim of the petitioner be also considered qua the said post in question in accordance with law, preferably within period of three months from the date of production of certified copy of this order. Opportunity of hearing be afforded to all the concerned parties. 10. With these observations, writ petition is partly allowed. 11. No order as to cost. ————