Pradeep Kant and Vedpal, J.;- This special appeal by Basic Shiksha Adhikari, Ambedkar Nagar, assails the order passed by the learned Single Judge dated 1.9.2010, by means of which the order passed by the Basic Shiksha Adhikari rejecting approval to the appointment of the respondent Paras Nath Gupta on the post of Head Master has been stayed and a direction has been issued for payment of current salary regularly. The order further clarifies that passing of the said order will not confer any right to the respondent to be appointed on the post and that the Court has not adjudicated upon the legality of the upgradation and continuance of the post. 2. In short, the facts of the case are that Jai Ram Janta Junior High School, Ram Nagar, District Ambedkar Nagar (hereinafter referred to as the institution) is a recognised institution, which was upto Junior High School but was upgraded in the year 2002 upto High School and came to be known as Jai Ram Janta Uchchattar Madhyamik Vidyalaya, Ram Nagar, District Ambedkar Nagar. 3. The dispute is regarding appointment of respondent on the post of Head Master of the Uchchattar Madhyamik Vidyalaya. It is said that the post of Head Master fell vacant in the institution on superannuation of the erstwhile incumbent Ram Prakash Yadav on 30.6.09. The Committee of Management of the institution decided to fill up the vacant post of Head Master of the institution in the interest of the students. The Committee of Management of the school duly informed and communicated the vacancy to the Basic Shiksha Adhikari, District Ambedkar Nagar and sought permission for appointment, who in turn, sent a letter dated 2.9.09 to the Director (Basic), who returned the file to the Basic Shiksha Adhikari to take a decision as per rules vide letter dated 6.10.09. The Basic Shiksha Adhikari accorded permission to fill up the post of Head Master vide letter dated 11.12.09. A nominee was also appointed by the Basic Shiksha Adhikari and a Selection Committee was duly constituted for making the selection. In this selection, the respondent was selected and was recommended for being appointed as Head Master. The manager of the institution sent the necessary papers to the Basic Shiksha Adhikari for approval on 11.1.2010, which was duly received in the office of the Basic Shiksha Adhikari on 4.2.2010. 4. In this selection, the respondent was selected and was recommended for being appointed as Head Master. The manager of the institution sent the necessary papers to the Basic Shiksha Adhikari for approval on 11.1.2010, which was duly received in the office of the Basic Shiksha Adhikari on 4.2.2010. 4. On 5.3.2010, order of appointment was issued by the Manager of the institution on the basis of deemed approval (as is the case of the respondent) and on 8.3.2010 the respondent joined as the Head Master of the school. 5. Since the approval to the appointment was rejected by the Basic Shiksha Adhikari on 15.5.2010 and the respondent was not being paid salary, therefore, he preferred the present writ petition. 6. The case of the respondent, as stated above, is that he was duly selected by the Committee of Management, not only after due permission of Basic Shiksha Adhikari but also after facing the Selection Committee, which consisted of a nominee of Basic Shiksha Adhikari. The recommendations for appointment were also duly forwarded with all the papers within time and within the statutory period, since there was no rejection, therefore, it was a case of deemed approval under Rule 10(3) of the Uttar Pradesh Manyata Prapt Basic Schools (Junior High Schools) Adhyapakon ki Bharti Evam Sewa Ki Shartein Niyamavali, 1978, which provided for approval within one month. 7. Accepting the aforesaid plea for the purpose of interim relief, the learned Single Judge has stayed the order of rejection of approval of appointment and directed for payment of current salary. 8. Sri Jyotinjay Verma, learned counsel for the appellant, submitted that it is a case of appointment of Head Master in a upgraded institution, which is no more a Junior High School but is of High School standard and is governed by the provisions of Uttar Pradesh Intermediate Education Act, 1921 and other Acts and Regulations applicable to High School and Intermediate Colleges, therefore, Basic Shiksha Adhikari was not having any competence either to grant permission to make selection or to constitute the Selection Committee. 9. He further submitted that the Basic Shiksha Adhikari on receipt of the recommendations/proposal for appointment on 4.2.2010, raised certain objections on 18.2.2010 for which a report was asked for but the institution did not respond to the said queries. 9. He further submitted that the Basic Shiksha Adhikari on receipt of the recommendations/proposal for appointment on 4.2.2010, raised certain objections on 18.2.2010 for which a report was asked for but the institution did not respond to the said queries. This fact is evident from the order of rejection of approval dated 15.5.2010, wherein it has been specifically stated that report on certain points was asked for on 18.2.2010 in the matter of approval but no response was tendered within time, whereas in view of government order dated 15.10.09 and 3.11.09, it has been ordered that the post of Head Master in the Junior High School on being upgraded to High School, cannot be filled in, as a Head Master of the Junior High School but it has to be filled in, in the manner as provided under the Intermediate Education Act and Selection Board Act, 1982 and, therefore, approval is rejected. 10. Submission is that since the Act of 1978 itself is not applicable and is not attracted in the matter of appointment of Head Master of upgraded Junior High School to the standard of High School and such a post of Head Master is to be filled in under the provisions of U.P. Intermediate Education Act and Selection Board Act, 1982, the proceedings regarding appointment of the respondent were wholly without jurisdiction and ab initio void which would not confer any right upon the respondent to seek salary under the Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978 or Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971. 11. Dr. L.P. Misra, in response, submitted that it is an anomalous situation, that if Head Master of a Junior High School is upgraded to the post of Head Master of High School, then he would be paid salary but directly appointed Head Master would not be paid salary. 12. His further submission is that the institution cannot run without a Head Master and in the absence of any action being taken by the Selection Board for appointing the Head Master, the institution cannot be left without Head Master in the interest of the institution and also for maintaining discipline in the institution. 12. His further submission is that the institution cannot run without a Head Master and in the absence of any action being taken by the Selection Board for appointing the Head Master, the institution cannot be left without Head Master in the interest of the institution and also for maintaining discipline in the institution. Besides this, many other pleas which he raised, may require consideration by the learned Single Judge, including the plea regarding the nature of the recognition granted under Section 7-A and 7-AA of the Intermediate Education Act, the effect of such recognition and the manner in which such an appointment is to be made for running the institution etc. 13. For the purpose of the present special appeal, suffice would be to mention that in view of the own observation of the learned Single Judge that the interim order passed by him will not confer any legal right upon the respondent to be appointed on the post and that the Court has not adjudicated upon the legality of the upgradation and continuance of the post, it can be safely observed that right of the respondent to hold the post has not yet been considered even, prima facie. Unless the Court comes to the conclusion may be, prima facie that the incumbent who is claiming for payment of salary, has been lawfully appointed and has a legal right to continue and consequently to get salary, interim orders for payment of salary in such matters can rarely be passed. 14. There has to be a, prima facie, case in favour of the petitioner for granting interim relief, which in a case where the final relief itself is for payment of salary, would mean, to record a finding, whether the petitioner is, prima facie, legally appointed and has a right to continue on the post. If prima facie, case is made out in favour of the petitioner then balance of convenience and irreparable loss is to be considered. 15. Salary can be paid from the public fund only to those persons who have been legally appointed, may be officiating, temporary or regular, and not to a person whose appointment itself is in dispute. If prima facie, case is made out in favour of the petitioner then balance of convenience and irreparable loss is to be considered. 15. Salary can be paid from the public fund only to those persons who have been legally appointed, may be officiating, temporary or regular, and not to a person whose appointment itself is in dispute. Interim order in such matters not only increases burden on State exchequer but in case the petition fails, it would be difficult to recover the amount already paid, though interim direction can be issued in appropriate cases, where the Court is satisfied about the appointment being made in accordance with rules and the action of withholding the salary is per se illegal and arbitrary. 16. Apart from this, the very basis of the order that it was a case of payment of salary under the provisions of the Rules of 1978 requires consideration, for the reason that it was a case where appointment on the post of Head Master was to be considered in view of the plea of the appellant that after upgradation of the Junior High School to Junior High School, appointment on the post of Head Master could only be made under the provisions of U.P. Intermediate Education Act and Selection Board Act and not under Basic Shiksha Adhiniyam. 17. We find that there is no consideration of the aforesaid plea and no finding has been recorded even, prima facie. 18. The case of Smt. Shail Kumar Singh vs. State of U.P. and others, 2008 (1) E.S.C. 365 (All.) which has been mentioned in the rejection order passed by the Basic Shiksha Adhikari, also does not find consideration in the order. 19. It is a different question that existing staff of the Junior High School including the Head Master will continue to get salary on upgradation of the school but the question, whether Head Master can be appointed directly under the Rules of 1978 did require consideration. 20. 19. It is a different question that existing staff of the Junior High School including the Head Master will continue to get salary on upgradation of the school but the question, whether Head Master can be appointed directly under the Rules of 1978 did require consideration. 20. The learned Single Judge, in fact, based his order only on the plea that a person who has been selected with prior permission of the BSA through selection Committee in which a nominee of the BSA was present and approval to the recommendations for his appointment having not been rejected within one month, stands appointed under legal fiction of deemed approval though he himself observed, that the Court has not adjudicated upon the legality of the appointment nor the interim order would confer any right upon the respondent to be appointed on the post. 21. Learned counsel for the appellant, in this regard, has submitted that in the order of rejection of approval, it was clearly mentioned that on receipt of the recommendation/proposal, certain objections were raised and a report was called for, within one month i.e. vide letter dated 18.2.2010 but no response was made by the Committee of Management, therefore, it cannot be said that the BSA did not respond to the proposal for appointment within a period of one month and, thus, it would not be a case of even deemed approval of the appellant. 22. We do not intend to delve upon the aforesaid issues, in detail in the present special appeal for the reason that all these questions relate to the merits of the claim of the parties, which need adjudication by the learned Single Judge, at the first instance. 23. However, in view of the fact that in the absence of consideration of the plea of the appellant regarding objection being raised to the proposal of appointment on 18.2.2010 and its effect and also the plea that on upgradation of the Junior High School to High School, the provisions of 1978 Rules would not be applicable in the matter of appointment of Head Master, to a direct recruit and that such appointment would be governed by the provisions of the U.P. Intermediate Education Act and Selection Board Act, 1982 and the Regulations framed thereunder, we are of the considered opinion that unless such pleas were considered, direction for payment of salary could not have been made. 24. 24. Since in the instant case, the learned Single Judge has himself observed that the order passed by him would not give any right to the respondent to be appointed and that he has not adjudicated upon any controversy, the interim order granted by him cannot be sustained. The order impugned in the appeal dated 1.9.2010 passed by the learned Single Judge is set aside. 25. The special appeal is allowed. 26. Let the hearing of the writ petition be expedited. 27. List the petition in the next month before the learned Single Judge having jurisdiction. In the meantime, the parties may exchange affidavits.