Hon’ble P.K.S. Baghel, J.—The petitioners are Class IV employees in an Intermediate College, they are aggrieved by the orders passed by the District Magistrate Auraiya dated 12.2.1999 and 26.2.1999 whereby the District Magistrate had issued a direction to the District Inspector of Schools to stop their salaries on the ground that their appointments are illegal.

2. The basic facts pertinent to issue in question may be stated as follows :

3. Sri Janta Inter College, Ajeetmal is an Intermediate College recognised by the Board of High School and Intermediate Education. It receives aid out of State Fund. The provisions of the U.P. Intermediate Education Act, 1921, the regulations framed thereunder and the U.P. High Schools and Intermediate College (Payment of Salaries of the Teachers and other Employees) Act, 1971 are applicable to the institution.

4. It is stated that in the institution there are 31 sanctioned posts of Class IV employees. The committee of management after obtaining the permission of the District Inspector of Schools, issued an advertisement on 1.3.1998 in local daily ‘Dainik Etawah Mail’ inviting applications for appointment against those vacant posts. The petitioners in response to the said advertisement applied for the said post. It is stated that the selection committee was constituted and petitioners were were found suitable for appointment as a Class IV employee. The District Inspector of Schools accorded the approval for the appointment of the petitioners by order dated 8th December, 1998 (copy of which is Annexure-4 to the writ petition). The petitioners started working in the said institution and they were being paid their salaries.

5. In the meantime one of the member of the committee of management made a complaint to the District Magistrate that in the aforesaid College 12 illegal appointments have been made by the committee of management in collusion with the office of the District Inspector of Schools against the non existent posts. The District Magistrate took cognisance of the said complaint and he issued a direction to the District Inspector of Schools, Auraiya by means of impugned order dated 12.2.1999 to stop the salaries of the petitioners and make inquiry with regard to the allegations of illegal appointment of the petitioners. Aggrieved by the said order the petitioners preferred this writ petition.

6. At the time of moving of this writ petition on 26.4.1999, this Court granted interim protection to the petitioners for their continuance and for their payment of salaries. It is stated at the Bar that in compliance thereof the petitioners are still working and they are receiving their salaries regularly.

7. A counter-affidavit has been filed by the respondents. The stand taken in the said affidavit is that according to survey 1987-88 there are only 22 sanctioned post in the institution and appointment of the petitioners were made in illegal manner without their being any sanctioned post for their appointment and the petitioner on the basis of concealment of material facts obtained interim order dated 26.4.1999 from this Court. Communication of the Direction of Education dated 20.9.2003 has been brought on the record by means of counter-affidavit wherein it is stated that it appears that there are 22 post of Class IV as such the petitioners appointment have been made against non existent post therefore they are not entitled for salary and a direction was issued to the District Inspector of Schools to file a counter-affidavit in the pending writ petition.

8. I have heard Sri Devendra Kumar learned counsel for the petitioner and learned Standing Counsel.

Learned counsel for the petitioners submits that District Magistrate has no power under Intermediate Act to pass the order to stop the salaries of the petitioners. It was sought to be argued that under the Payment of Salaries Act (Act No. 5 of 1971) the District Inspector of Schools alone is empowered to exercise his power to withhold the sa