JUDGMENT Hon’ble Sudhir Agarwal, J.—The petitioner is aggrieved by the order dated 21st September, 2006 (Annexure 10 to the writ petition) passed by the respondent No. 2 i.e District Inspect of Schools, Varanasi (hereinafter referred to as “DIOS”) rejecting his representation regarding approval of his appointment on the post of Assistant Teacher in the Primary Section of the College and has sought a writ of mandamus directing respondents for payment of salary. 2. The facts in brief, as borne out from the writ petition, are that Saraswati Inter College, Suriya, Varanasi (hereinafter referred to as “the College”) is an intermediate College recognised by the Board of High School and Intermediate, U.P. Allahabad under the provisions of U.P. Intermediate Education Act, 1921 (in short “1921 Act”) and in the matter of payment of salary, the provision of the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 (hereinafter referred to as “Act of 1971”) are applicable. 3. It is said that post of Assistant Teacher in the Primary Section of the College fell vacant on 30th June, 1992 due to retirement of one Shri Paramhansh Misra. Anticipating the said vacancy, Manager of the Committee of Management of the College got an advertisement published in the daily newspaper “Gandiv” on 4th May, 1992 advertising 5 vacancies pursuant whereto 13 applications were received. However, in interview, only 11 candidates appeared, whereof the Selection Committee selected 5 candidates in the following order : 1. Jh vtZqu izlkn ik.Ms; 2. Jh /kuat; dqekj 3. Jherh m"kk ;knOk 4. Jherh lq/kk jOkUuk 5. Jherh lq/kk kekZ 4. It is said that on 5th July, 1992, an appointment letter was issued to the petitioner appointing him as Assistant Teacher (Trained Grade) and thereafter the papers pertaining to his selection and appointment sent to DIOS on 18th July, 1992. It appears that without passing any order with respect to the financial approval, the then DIOS Sri Awadh Naresh Sharma issued a letter dated 16th December, 1993 directing the Accounts Officer in his office to take steps for payment of salary to the petitioner. It also appears that one Sri Dhananjay Kumar, who also claimed appointment alongwith the petitioner, when was not paid salary, approached this Court by way of filing Writ Petition No. 19272 of 1993, which was disposed of directing the DIOS to consider his representation and pass appropriate order. It also appears that one Sri Dhananjay Kumar, who also claimed appointment alongwith the petitioner, when was not paid salary, approached this Court by way of filing Writ Petition No. 19272 of 1993, which was disposed of directing the DIOS to consider his representation and pass appropriate order. Pursuant to the aforesaid order The then DIOS Sri Awadh Naresh Sharma passed an order on 28th April, 1994 observing that in the select list Arjun Prasad Pandey was placed at serial No. 1 and there is nothing on record to show that Sri Dhananjai Kumar was working in the College hence question of approval of appointment of Dhananjay Kumar does not arise. He also mention the factum of appointment of the petitioner Arjun Prasad Pandey on 5th July, 1992 by the Manager of the College pursuant whereto the petitioner joined on 6th July,1992. However, he did not say anything about the approval and appointment of petitioner on the post of Assistant Teacher in the College. 5. Thereafter another order was passed by the then DIOS, Dr. Abha Mathur, on 3rd May, 1995, observing that there does not appear to be any order passed at the level of the DIOS for withholding salary of the petitioner and therefore, the Account Officer must ensure compliance of the order dated 28th April, 1994 of DIOS. It is in these circumstances, the Finance and Accounts Officer issued order on 17th May, 1994 directing the Principal of the College to take steps for ensuring payment of salary to the petitioner on the post of Assistant Teacher. 6. It appears that in collusion with the then DIOS, as shown above, and the Manager, the payment of salary was made to the petitioner for about 3 years but when a new Principal came to the office, he found that there was no order of approval of appointment of the petitioner and therefore, sent a detailed letter dated 14th October, 1998 addressed to the Joint Director of Education, Varanasi enquiring as to whether the appointment of the petitioner stood approved automatically or whether it would require any appropriate order from the DIOS. Thereafter it appears that the matter was re-examined and noticing that the petitioner’s order for payment of salary was wrongly passed, the same was stopped. Thereafter, the petitioner filed writ petition No. 35555 of 1999 before this Court. Thereafter it appears that the matter was re-examined and noticing that the petitioner’s order for payment of salary was wrongly passed, the same was stopped. Thereafter, the petitioner filed writ petition No. 35555 of 1999 before this Court. The above writ petition was disposed of vide judgment and order dated 02.12.2002 directing the DIOS to pass an appropriate order in the matter of approval of his appointment after giving opportunity to all concerned parties. 7. It is said that when no order was passed by DIOS pursuant to the judgment dated 02.12.2002, the petitioner filed another writ petition No. 9713 of 2006 seeking following relief : (a) To issue a writ, order or direction in the nature of mandamus directing the respondents to pay arrears of salary as well as current salary in accordance with law. (b) To issue a writ, order or direction as this Hon’ble Court may deem fit and proper under the circumstances of the case. (c) To award cost of the petition to the petitioner. 8. In the above writ petition, in para 17, the petitioner mentions about the filing of the writ petition No. 35555 of 1999 and its disposal on 2.12.2002 but in para 1 of the writ petition, he made a declaration that the same was the first writ petition filed by him seeking relief of mandamus directing respondent No. 2 to decide his representation dated 29.12.2002 and to pay arrears of salary and also current salary. 9. It is worthy to notice that the representation dated 27.12.2002 was submitted by the petitioner pursuant to the directions contained in the judgment dated 2.12.2002 in earlier writ petition No. 35555/1999 and in the prayer there was no relief sought by him with respect to decision of the representation but the prayer was confined only for mandamus for payment of salary. It appears that this Court, at the time of admission, without noticing that there was already an order passed by this Court, disposed of the writ petition at the admission stage itself on 16th February, 2006 with the following order : “Heard learned counsel for the petitioner as well as learned Standing Counsel appearing for the State-respondents. It appears that this Court, at the time of admission, without noticing that there was already an order passed by this Court, disposed of the writ petition at the admission stage itself on 16th February, 2006 with the following order : “Heard learned counsel for the petitioner as well as learned Standing Counsel appearing for the State-respondents. The case of the petitioner is that he was appointed in the year 1992 and his name was also recommended vide order dated 28.4.1994 for appointment as Assistant Teacher but the District Inspector of Schools has neither approved nor disapproved such selection of the petitioner because of which the petitioner is not getting his salary. Learned counsel for the petitioner submits that the petitioner has filed several representations in this regard to the respondent-authorities, which have yet not been decided. Having heard learned counsel for the parties and considering the facts and circumstances of this case, this writ petition is finally disposed of with a direction that in case if, with regard to his grievances made in this writ petition, the petitioner files a fresh comprehensive representation before respondent No. 2, the District Inspector of Schools, Varanasi alongwith a certified copy of this order, the same shall be considered and decided by the said respondent in accordance with law, expeditiously, preferably with a period of three months from the date of filing of the same. With the aforesaid observations/directions, this writ petition is finally disposed of. No order as to costs.” 10. From the judgment and order of this Court it is evident that the earlier judgment of this Court was not brought to the notice of the Hon’ble Single Judge. It is pursuant to this judgment dated 16th February, 2006, the impugned order has been passed by DIOS. 11. At the time of admission, this Court found that the appointment of the petitioner was made neither following the procedure prescribed for appointment of teachers in Primary Schools nor according to the procedure prescribed for the Secondary Institutions. It is pursuant to this judgment dated 16th February, 2006, the impugned order has been passed by DIOS. 11. At the time of admission, this Court found that the appointment of the petitioner was made neither following the procedure prescribed for appointment of teachers in Primary Schools nor according to the procedure prescribed for the Secondary Institutions. It appears that at the time of admission, the counsel for the petitioner argued that since the petitioner was appointed in Primary Section, the provisions of 1921 Act as well as U.P. Secondary Education Services Selection Board Act, 1982 (hereafter referred to as “Act of 1982”) would not apply as the same are applicable to Secondary Colleges but when confronted with the situation as to what procedure was followed in his case and finding it difficult to justify his appointment in accordance with the procedure prescribed for appointment in Primary Section, which is also governed by statutes, the learned Counsel for the petitioner in a vague manner stated that due procedure was followed but could not explain to the Court the said procedure. This Court considered entire material at the time of admission and found that prima facie petitioner’s appointment was absolutely illegal and payment of salary to him between March, 1995 to September 1997 was also unauthorized and illegal. Hence it directed vide its order dated 12th February, 2007 for recovery of the amount of salary paid to the petitioner from the concerned DIOS. Thereafter this matter came up before another Hon’ble Single Judge on 17th February, 2009 when it was found that there was laxity on the part of Director of Education concerned in taking appropriate steps for compliance of Court’s order dated 12th February, 2007. Hence the Court directed the respondents -State of U.P., Director & Finance Controller to file appropriate affidavit stating as to whether the directions with regard to recovery have been complied with or not. 12. A compliance affidavit has been filed sworn by Deputy Director (Service-I), Directorate of Education, U.P. Allahabad annexing a copy of the order dated 9th March, 2009 whereby recovery of Rs. 76,452/- has been ordered from Dr. Smt. Abha Mathur, who was the then DIOS at Varanasi. 13. A counter affidavit has also been filed on behalf of respondent Nos. 12. A compliance affidavit has been filed sworn by Deputy Director (Service-I), Directorate of Education, U.P. Allahabad annexing a copy of the order dated 9th March, 2009 whereby recovery of Rs. 76,452/- has been ordered from Dr. Smt. Abha Mathur, who was the then DIOS at Varanasi. 13. A counter affidavit has also been filed on behalf of respondent Nos. 2 and 3 wherein it has been said that the appointment of the petitioner was made contrary to the rules and therefore, the impugned order has rightly been passed by DIOS. 14. In the rejoinder affidavit, the petitioner has simply reiterated that his appointment was made validly and in accordance with law. 15. Before me also Sri H.N.Tripathi, Advocate initially made submission that since the petitioner was appointed as Assistant Teacher in Primary Section of the College, the appointment was not required to be made through Secondary Education Service Selection Board under the provisions of Act of 1982 since it was not applicable. However, when this Court enquired as to whether the provisions pertaining to recruitment meant for Junior Primary Schools and Junior High School i.e. Senior Primary Schools contained in respective statutory rules famed under U.P. Basic Education Act, 1972 were followed, and, whether the petitioner possess the requisite qualification and training meant for Primary Educational Institutions as prescribed under the rules, he admitted that neither the procedure laid down therein was followed nor the petitioner possess the educational qualification prescribed therein i.e. The U.P. Recognized Basic Schools (Recruitment and Conditions of Service of Teachers and other Conditions) Rules, 1975 (in short 1975 Rules) and The U.P. Recognized Basic Schools (Junior High School) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (in short 1978 Rules). 16. In fact thereafter he gave up his above argument and submitted that applying the Act of 1982 and the procedure laid down therein, he possess the requisite qualification prescribed therein but when asked whether the procedure prescribed in the said Act was followed or not, he could not show that the same was followed at all. He, however, admits that under the Act of 1982, regular appointment could have been made only after selection made by the Commission/Board. 17. He, however, admits that under the Act of 1982, regular appointment could have been made only after selection made by the Commission/Board. 17. However, he submits that the appointment was ad hoc and therefore, the management was competent to make the same but then found in his way a strong obstruction in the form of Section 18 of the Act of 1982 read with The U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981 (hereinafter referred to as “First Order”). Para 5 of the First Order provides the procedure for making ad hoc appointment, which reads as under: “5. Ad hoc appointment by direct recruitment.—(1) Where any vacancy cannot be filled by promotion under Paragraph 4, the same may be filled by direct recruitment in accordance with clauses (2) to (5).” (2) The Management shall as soon as may be, inform the District Inspector of Schools about the details of the vancancy and such Inspector shall invite applications from the local Employment Exchange and also through public advertisement in at least two newspapers having adequate circulation in Uttar Pradesh. (3) Every application referred to in clause (2) shall, be address to the District Inspector of Schools and shall be accompanied; (a) by a crossed postal order worth ten rupees payable to such Inspector ; (b) by a self-addressed envelope bearing postal stamp for purposes of registration. (4) The District Inspector of Schools shall cause the best candidates selected on the basis of quality point specified in Appendix. The compilation of quality points may be done on remunerative basis by the retired Gazetted Government servants under the personal supervision of such Inspector. (5) If more than one teacher of the same subject or category is to be recruited for more than one institution, the names of the selected teachers and names of the institutions shall be arranged in Hindi alphabetical order. The candidate whose name appears on the top of the list shall be allotted to the institution the name whereof appears on the top of the list of the institution. This process shall be repeated till both the lists are exhausted. Explanation.—In relation to an institution imparting instruction to women the expression “District Inspector of Schools” shall mean the “Regional Inspectress of Girl’s Schools”. 18. Admittedly, the said procedure has not been followed. This process shall be repeated till both the lists are exhausted. Explanation.—In relation to an institution imparting instruction to women the expression “District Inspector of Schools” shall mean the “Regional Inspectress of Girl’s Schools”. 18. Admittedly, the said procedure has not been followed. An appointment not made in accordance with the procedure prescribed in the statute is void ab initio and illegal. It does not confer any right either to hold the post or to claim salary. In Prabhat Kumar Sharma and others v. State of U.P. and others, AIR 1996 SC 2638 the Apex Court held that the procedure for ad-hoc appointment under the Removal of Difficulties Order is mandatory and if the said procedure is not followed strictly, the appointment, if any, shall be void ab initio. It would not confer any right upon the incumbent either to hold the post or to claim salary. This decision has been reiterated and followed in Shesh Mani Shukla v. D.I.O.S., Deoria and others, JT 2009(10) SC 309. 19. In the circumstances, this Court is satisfied that the alleged appointment of the petitioner is void ab initio and confer no right upon him to claim salary from the State Exchequer. It is really unfortunate that the educational authorities, who are responsible to ensure rule of law, not only miserably failed to see its compliance but on the contrary cause serious loss to the public exchequer by making payment of salary to the petitioner for certain period. The possibility of collusion of the then DIOS cannot be ruled out. 20. The learned Standing Counsel also could not defend the aforesaid action of the then DIOS. This Court is satisfied and reiterate that payment of salary to the petitioner during 1995 to 1997 from the public exchequer was wholly illegal and is liable to be recovered from the officer holding the office of DIOS at the relevant time under whose order it was paid. Though it appears that orders in this regard have been issued by the Director of Education (Secondary) but in case the amount is not actually recovered till date, the same shall be ensured and this Court shall be informed by filing appropriate affidavit within two months from the date of this judgment. 21. In view of the above discussion, I find no merit in the writ petition warranting interference with the order impugned in the writ petition. 21. In view of the above discussion, I find no merit in the writ petition warranting interference with the order impugned in the writ petition. Dismissed subject to the direction as above. The petitioner shall also be liable to pay cost which is quantified to Rs. 15,000/-. ————