Honble H.L. Gokhale, CJ.—Heard Sri V.K. Singh, in support of this appeal and Mr. G.C. Upadhyay, learned Standing Counsel appearing for the Respondents.

2. The appeal seeks to challenge the order passed by the learned Single Judge on 27.11.2007 dismissing the writ petition filed by the appellants.

3. Since the controversy in this matter can be dealt with at the admission stage itself, we admit the appeal. We have heard the learned Counsel for both the parties and with their consent, this appeal is being disposed of at this stage. The short facts leading to this appeal are as follows :

4. The second appellant-Committee of Management is running an Intermediate College at Mharpur in district Azamgarh. One of the subjects, which is being taught in this College is Education. The College was granted recognition to teach this subject in 1969 when it was upgraded to Intermediate College. The then Principal of the Institution himself was taking this subject. Hence when the Committee of Management applied for one post for this subject respondent No. 3-District Inspector of Schools wrote to the Institution on 5.3.1970 recording that since the Principal himself was taking this subject, hence when he will retire, the matter of appointment of another teacher and clearance of such a post will be considered.

5. It so happened that the Principal retired on 30.6.1991 and before retirement of the Principal, a request was made on 20.5.1991 for clearance of this post. It is the admitted case of the parties that recognition to teach ‘Education’ as a subject in the Institution continued to be retained. However, since despite reminders, the authorities did not grant permission to the Committee of Management to fill up the post of Lecturer in Education, the Committee of Management decided to fill up the vacancy and notified the same. In response, applications were received. After considering the merit of the appellant No. l, who was also fully qualified, being M.A. (Education) and B.Ed., the Committee of Management appointed the appellant No. 1 on such post on 8.12.1992. In response, the appellant No. 1 joined and continued to work as Lecturer in Education. The papers were thereafter forwarded by the Committee of Management to the District Inspector of Schools for approval. The District Inspector of Schools rejected the request for grant of financial sanction by his order dated 27.8.1993. In that order, he recorded that since ten posts were sanctioned earlier and the Principal was taking one of those subjects, there was no question of sanctioning any more post. This order dated 27.8.1993 was challenged by the appellants herein by filing a writ petition. When the matter came up for admission before the learned Single Judge, an interim order was passed directing the opposite parties to pay the salary to the appellant No. 1, as ad-hoc Lecturer in Education each month.

6. When the writ petition reached for final hearing, the learned Single Judge referred to the judgment of Km. Radha Raizada v. District Inspector of Schools, 1994 (2) ESC 345 (All) (FB), that since the appointment was made without advertisement etc., it could not be cleared and, therefore, he dismissed the writ petition.

7. Now what is to be noted in this matter is that undoubtedly this subject of Education was approved, though the approval was given by the Board of High School and Intermediate Education. The District Inspector of Schools was aware of it and in 1970, when an additional post was sought for this subject, he said that that will be considered after retirement of the Principal, who was at that time teaching the said subject. When the Principal retired and when the Management sought the necessary post, the request was rejected in the year 1993 by taking a stand that only ten posts were sanctioned and no more post can be sanctioned. Now what is material to notice is that in view of the stay granted by the learned Single Judge, the appellant has continued to teach all throughout.

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