Allahabad High Court
Dhruv Kumar Pandey And Another vs The State Of U.P. Through Secretary, ... on 24 April, 2020
Equivalent citations: AIRONLINE 2020 ALL 963
Author: Biswanath Somadder
Bench: Biswanath Somadder, Yogendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved In Chamber Case :- SPECIAL APPEAL No. - 187 of 2020 Appellant :- Dhruv Kumar Pandey s/o Sri Bihari Pandey, r/o Village Barhar Khurd, Post Office Haraiya, District Basti and another Respondent :- The State Of U.P. Through Secretary, Department Of Secondary Education And 3 Others Counsel for Appellant :- Radha Kant Ojha Senior Advocate assisted by Shivendu Ojha Counsel for Respondent Nos 1, 2 and 3 :- Ankit Gaur Hon'ble Biswanath Somadder,J.
Hon'ble Dr. Yogendra Kumar Srivastava,J.
(Per : Dr. Yogendra Kumar Srivastava,J.)
1. The present intra court appeal has been filed against the judgment and order dated 29.11.2019 passed in Writ A No. 59653 of 2015 (Dhruv Kumar Pandey and another Vs. State of U.P. and others), in terms of which the writ petition has been dismissed.
2. The writ petitioners are the appellants before us.
3. The records of the case reflect that the writ petition had been filed primarily seeking to challenge an order dated 15.7.2015 passed by the District Inspector of Schools1, Basti, whereunder the approval to the appointments of the appellants/writ petitioners had been declined. A further prayer was made for issuance of a mandamus commanding the DIOS to consider the grant of approval afresh to the appointments of the petitioners on Class IV posts made by the Committee of Management of the Janta Inter College Nagar Bazar, Basti2.
4. Learned Senior Counsel appearing for the appellants has sought to assail the judgment of the learned Single Judge by contending that the writ petition has been dismissed upon noticing the fact that the order impugned therein being the order dated 15.7.2015 passed by the DIOS had recorded that no prior permission had been obtained and the procedure prescribed under law had not been followed before making the appointments, whereas there is no requirement under the relevant regulations with regard to the obtaining any prior permission. He has submitted that the judgment of the writ court having been passed on an erroneous legal premise, the same cannot be sustained.
5. Per contra, learned Standing Counsel appearing for the State respondents has supported the judgment of the learned Single Judge and has submitted that the appointments of the appellants/petitioners had been made without following the procedure as prescribed under the relevant regulations and as such the same could not have been approved, and accordingly the DIOS had rightly refused to accord the approval to their appointments.
6. In order to appreciate the rival contentions, it would be necessary to advert to the relevant statutory provisions.
7. The Institution in question is governed by the provisions of the Intermediate Education Act, 19213 and it receives grants-in-aid under the provisions of the Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1974 .
8. The Intermediate Education Act, 1921 was enacted to establish the Board of High School and Intermediate Education for the purposes of regulating and supervising the system of High School and Intermediate Education in the State of Uttar Pradesh, and to prescribe courses therefor.
9. The conditions of service of heads of institutions, teachers and other employees in an institution recognised under the Act, 1921 are provided for under Chapter III of the Regulations made thereunder, which are referable to powers under Section 16-G of the said Act.
10. The provisions with regard to appointment of Class III and Class IV employees in institutions recognised under the Act, 1921 were brought into force with effect from 30th July, 1992 with the insertion of Regulations 101 to 107 under Chapter III of the Regulations framed under the Act, 1921.
11. For ease of reference, Regulations 100 to 107 (as they stood at the relevant point of time) are being extracted below:-
"100. fyfid] ftlesa iqLrdky;k/;{k Hkh lfEefyr gS] ds lEcU/k esa izcU/k lfefr rFkk prqFkZ Js.kh deZpkjh ds lEcU/k esa vkpk;Z@iz/kkuk/;kid fu;qfDr izf/kdkjh gksxkA fyfidksa] ftlesa iqLrdky;k/;{k Hkh lfEefyr gSa] rFkk prqFkZ Js.kh deZpkfj;ksa dh fu;qfDr ifjoh{kk ¼ftldh vof/k ,d o"kZ gksxh½ LFkk;hdj.k ,oa lsok fu;e vkfn ds lEcU/k esa vko';d ifjorZuksa lfgr Åij ds fofu;e 1] 4 ls 8] 10] 11] 15] 24 ls 26] 30] 32 ls 34] 36 ls 38] 40 ls 43] 45 ls 52] 54] 66] 67] 70 ls 73 rFkk 76 ls 82 ykxw gksaxs] fdUrq prqFkZ Js.kh deZpkfj;ksa ds lEcU/k esa fofu;e 77 ls 82 ds izkfo/kku rHkh ykxw gksaxs tc bl lEcU/k esa jkT; ljdkj }kjk vko';d funsZ'k fuxZr fd;s tk;saxsA bu deZpkfj;ksa ds lEcU/k esa fofu;e 9] 12] 13] 14] 16 ls 20] 27] 28] 54] 55 ls 65 rFkk 97 ds izkfo/kku ykxw ugha gksaxsA
101. fu;qfDr izkf/kdkjh] fujh{kd ds iwokZuqeksnu ds flok; fdlh ekU;rkizkIr] lgk;rkizkIr laLFkk ds f'k{k.ksRrj LVkQ esa fdlh fjfDr dks ugha Hkjsxk % izfrca/k ;g gS fd teknkj ds in dh fjfDr dks fujh{kd }kjk Hkjus dh vuqefr nh tk ldrh gSA
102. fdlh ekU;rkizkIr] lgk;rkizkIr laLFkk esa f'k{k.ksrj in /kkj.k djus okys fdlh deZpkjh dh lsokfuo`fr ds QyLo:i gksus okyh fjfDr dh lwpuk mldh lsokfuo`fr ds fnuakd ls rhu ekl iwoZ nh tk,xh vkSj e`R;q] in R;kx ds dkj.k ;k fdUgha vU; dkj.kksa ls gqbZ fdlh fjfDr dh lwpuk mlds gksus ds fnuakd ls lkr fnu ds Hkhrj fu;qfDr izkf/kdkjh }kjk fujh{kd dks nh tk,xhA
103. bl fu;ekoyh esa nh xbZ fdlh ckr ds gksrs gq, Hkh tgka fdlh ekU;rkizkIr lgk;rkizkIr laLFkk dk v/;kid ;k f'k{k.ksrj deZpkjh oxZ ds fdlh deZpkjh dh] tks fofgr izfdz;k ds vuqlkj fu;qDr fd;k x;k gks] lsok dky esa e`R;q gks tk;s] rks mlds dqVqEc ds ,d lnL; dks]tks 18 o"kZ ls de vk;q dk u gks] izf'kf{kr Lukrd dh Js.kh esa v/;kid ds in :i esa ;k fdlh f'k{k.ksrj in ij] ;fn og in ds fy;s fofgr visf{kr 'kSf{kd izf'k{k.k vgZrk,a] ;fn dksbZ gksa] j[krk gks vkSj fu;qfDr ds fy;s vU;Fkk mi;qDr gks] fu;qDr fd;k tk ldrk gS % Li"Vhdj.k& bl fofu;e ds iz;kstukFkZ ^^dqVqEc dk lnL;** dk rkRi;Z e`rd dh fo/kok@fo/kqj] iq=] vfookfgr ;k fo/kok iq=h ls gksxkA fVIi.kh& ;g fofu;e vkSj fofu;e 104 ls 107 mu e`r deZpkfj;ksa ds laca/k esa Hkh ykxw gksxk ftudh e`R;q 1 tuojh] 1981 dks ;k mlds i'pkr~ gqbZ gksA
104. fdlh ekU;rkizkIr] lgk;rkizkIr laLFkk dk izc/ak ra= ;k ;FkkfLFkfr] iz/kkukpk;Z ;k iz/kku v/;kid e`R;q gksus dh n'kk esa e`R;q gksus ds lkr fnu ds Hkhrj fujh{kd dks ,d fjiksVZ izLrqr djsxk ftlesa e`r deZpkjh dk uke] /k`r in] osrueku] fu;qfDr dk fnukad] e`R;q dk fnukad mlds fu;kstd laLFkk dk uke vkSj mlds dqVqEc ds lnL;ksa dk uke] mudh 'kSf{kd vgZrk,a vkSj vk;q vkfn fn;k tk,xkA fujh{kd vius }kjk j[ks tkus okys jftLVj esa e`rd dh fof'kf"V;ka ntZ djsxkA
105. fofu;e 103 esa fofufnZ"V e`r deZpkjh ds dqVqEc dk dksbZ lnL; lEcfU/kr fujh{kd dks ;FkkfLFkfr izf'kf{kr Lukrd Js.kh esa v/;kid ;k f'k{k.ksrj laoxZ ds fdlh in ij fu;qfDr ds fy, vkosnu djsxkA vkosnu&i= izLrqr ij lfefr }kjk fopkj fd;k tk;sxk vkSj ;fn lfefr mudh fu;qfDr dh laLrqfr djs] rks fujh{kd ekU;rkizkIr lgk;rkizkIr ml laLFkk ds] ftlesa vkosnu dks fu;qfDr fd;k tkuk gS] izac/kra= dks vkosnu&i= fofu;e 106 vkSj 107 ds vuqlkj fu;qfDr vkns'k tkjh djus ds fy;s HkstsxkA lfefr esa fuEufyf[kr gksaxs % 1- fujh{kd & v/;{k 2- ftyk fo|ky; fujh{kd ds dk;kZy; esa ys[kkf/kdkjh &lnL;
3- ftyk csfld f'k{kk vf/kdkjh
&lnL;
106. e`r deZpkjh ds dqVqEc ds lnL; dh fu;qfDr mldh 'kSf{kd vgZrkvksa ds vuqlkj izf'kf{kr Lukrd Js.kh esa ;k fdlh f'k{k.ksrj in ij ;FkklEHko mlh laLFkk esa dh tk;sxh tgka e`r deZpkjh viuh e`R;q ds le; lsokjr FkkA ;fn ,slh laLFkk esa izf'kf{kr Lukrd Js.kh esa fdlh v/;kid ;k f'k{k.ksrj laoxZ esa dksbZ in fjDr u gks rks mldh fu;qfDr ftys dh fdlh vU; ekU;rkizkIr] lgk;rkizkIr laLFkk tgka ,slh fjfDr gks] dh tk;sxhA izfrca/k ;g gS fd ;fn ftys ds fdlh ekU;rkizkIr] lgk;rkizkIr laLFkk esa dksbZ fjfDr rRle; fo|eku u gks rks ml laLFkk esa tgka e`rd viuh e`R;q ds le; lsokjr Fkk] fu;qfDr izf'kf{kr Lukrd Js.kh ds v/;kid ds ;k prqFkZ Js.kh ds f'k{k.ksrj in ds izfr fdlh vf/kla[; in ds izfr rqjar dh tk;sxhA ,sls vf/kla[; in dks bl iz;kstu ds fy;s l`ftr fd;k x;k le>k tk;sxk vkSj mls rc rd tkjh रखा tk;sxk tc rd dksbZ fjfDr ml laLFkk esa ;k ftys dh fdlh vU; ekU;rk izkIr] lgk;rkizkIr laLFkk esa miyC/k u gks tk, vkSj ,slh fLFkfr esa vf/kla[; in ds in/kkjh }kjk dh xbZ lsok dh x.kuk osru fu/kkZj.k vkSj lsokfuo`fr ykHkksa ds fy, dh tk,xhA
107. ml ekU;rkizkIr] lgk;rkizkIr] laLFkk ds izca/kra= }kjk] ftldk fofu;e 105 ds v/khu fujh{kd }kjk vkosnu&i= Hkstk x;k ;k vkosnu i= dh izkfIr ds fnuakd ls ,d ekg dh vof/k ds Hkhrj fujh{kd dks lwpuk nsrs gq, fu;qfDr&i= tkjh fd;k tk;sxkA"
(English Translation) "100. The appointing authority in respect of clerks, including librarian, would be the Committee of Management and in respect of Class IV employees the appointing authority would be the Principal/Head Master.The regulations mentioned above, with necessary amendments, 1, 4 to 8, 10, 11, 15, 24 to 26, 30, 32 to 34, 36 to 38, 40 to 43, 45 to 52, 54, 66, 67, 70 to 73 and 76 to 82 shall be applicable in respect to appointment, probation (the duration of which will be one year), confirmation and service rules etc. of clerks including librarian and the fourth class employees; however in relation to the fourth class employees, the provisions of regulations 77 to 82 shall be applicable only when the necessary directions are issued in this regard by the State Government. Provisions of regulations 9, 12, 13, 14, 16 to 20, 27, 28, 54, 55 to 65 & 97 shall not be applicable in respect to those employees.
101. The appointing authority, except with the prior approval of the Inspector, shall not fill up any vacancy in a non-teaching staff of a recognized aided institution.
Provided that permission for filling up the vacancy against the post of Jamadar may be granted by the Inspector.
102. A vacancy falling vacant on account of retirement of an employee holding non-teaching post in a recognized aided institution shall be intimated three months before from the date of his retirement and any vacancy falling vacant due to death, resignation or for any other reasons, shall be intimated within seven days from the date of its occurrence to the Inspector by the appointing authority.
103. Notwithstanding anything contained in this regulation, where teacher of any recognized aided institution or an employee of the non-teaching staff who, as per the prescribed procedure, dies during service period, then one member of his family, who is not less than 18 years, may be appointed on the post of a teacher in the category of trained graduate teacher or on any non-teaching post, if he possesses requisite educational training eligibility prescribed for the post, if any, and is otherwise suitable for appointment.
Explanation:- For the purposes of this regulation 'member of family' shall mean widow/widower, son, unmarried or widow daughter of the deceased.
Comment:- This Regulation and Regulation 104 to 107 shall be applicable in respect of those deceased employees also who died on 1st January, 1981 or thereafter.
104. The Management or the Principal or the Head Master, as the case may be, of any recognized aided institution shall submit a report to the Inspector within seven days in case of death, which shall include the name of deceased employee, designation of the post he held, pay-scale, the date of appointment, the date of his death, the name of employing institution, names of his family members, his educational qualifications, age etc. The Inspector shall mention specification of the deceased person in the register he maintains.
105. Any member of the family of the deceased employee specified in the regulation-103 shall apply to be Inspector for teaching cadre in the trained graduate category, or for non-teaching cadre, as the case may be. The Committee shall decide on the application submitted and if the Committee makes a recommendation for his appointment, the Inspector under the regulations of 106 and 107, shall send the application for issuance of appointment order to the Management of the Institution where the appointment is to be made. The following shall be the members of the committee.
1- Inspector-Chairman 2- Account Officer in the Office of District Inspector of Schools-Member 3- District Basic Education Officer-Member
106. The appointment of any member of the deceased employee shall be made in the trained graduate category, or in the non-teaching staff of the institution where the employee was in service at the time of his death. If no post in the teaching or non-teaching staff is vacant in such institution, then his appointment shall be made against the similar vacancy in any other recognized aided institution of the district.
Provided that if such vacancy does not exist for the time being in any recognized aided institution of the district, the appointment on the supernumerary post against the post of teacher or the non-teaching staff of class four in the institution where the employee was in service shall be deemed to have been made with immediate effect. The supernumerary post for such purpose shall be taken to be created and shall continue till the availability of the vacancy in the same institution or any other recognized aided institution of the district, and the services of such post holder shall be taken into account while considering pay-fixation and retirement benefits.
107. The appointment letter shall be issued by the Management, in relation to those recognized aided institution whose application, under regulation 105, has been sent by the Inspector within one month from the date of receipt of application by intimating to the inspector."
12. Regulations 101 to 107, referred to above, provide for a scheme for filling up the vacancies of non-teaching posts i.e. (Class III and Class IV posts) in any institution recognised under the Act, 1921.
13. Regulation 102 which may be seen as a first step in the process provides that intimation regarding vacancy as a result of retirement of any employee holding a non-teaching post in any recognised and aided institution shall be given three months before the date of retirement and information about any vacancy falling due to death, resignation or for any other reasons shall be intimated to the Inspector by the appointing authority within seven days of the date of such occurrence.
14. The language under Regulation 102 is couched in a mandatory form and it enjoins upon the appointing authority, which as per Regulation 100 is the Committee of Management for the clerical posts and the Principal/Head Master for Class IV posts, to intimate the Inspector regarding occurrence of vacancy arising out of retirement of an employee holding a non-teaching post three months prior to the date of his retirement, and in case of a vacancy arising due to death, resignation or for any other reasons, within seven days of such occurrence.
15. Regulations 103 creates a provision for appointment on compassionate grounds to be granted to the dependents of a teaching/non-teaching employee in a recognised and aided institution. In terms of Regulation 104 the Committee of Management or the Principal/Head Master, as the case may be, is required to submit a report furnishing necessary particulars to the Inspector within seven days from the death of the employee concerned. As per Regulation 105, an application is to be submitted by the dependent of the deceased employee before the Inspector, which is to be placed for consideration before a Committee constituted for the purpose, and upon recommendation made by the Committee the same is to be forwarded by the Inspector to the institution concerned whereupon appointment order is to be issued as per Regulations 106 and 107.
16. Regulation 106 provides that the appointment of any member of the family of a deceased employee shall be made in the trained graduate category, or against a non-teaching post in the institution where the employee was in service at the time of his death, and if no post in the teaching or non-teaching cadre is vacant in such institution, then the appointment shall be made against a similar vacancy in any other recognized and aided institution in the district. In terms of the proviso to Regulation 106, if such vacancy does not exist for the time being in any recognized and aided institution in the district, the appointment would be made immediately on a supernumerary post in the institution where the employee was in service. The supernumerary post shall be deemed to be created for the purpose and shall continue till the availability of a vacancy in the institution in question or in any other recognized and aided institution of the district.
17. The requirement under Regulation 101 of obtaining a 'prior approval' for appointments of a non-teaching post was considered in the case of Dingur Vs. District Inspector of Schools, Mirzapur and others5, and after noticing the statutory scheme under the Act, 1921 and the U.P. Act No. 24 of 1971, it was stated as follows :-
"17. Taking into consideration the provisions contained in the U. P. Act No. 24 of 1971, there is no escape from the conclusion that a statutory duty stands cast upon the competent authority envisaged therein to ensure that there is no wasteful expenditure of the public money and in that view of the matter, it has to be ensured taking into consideration the norms fixed by the State Government for continuance of a post, as to whether the filling up of the vacancy is infact necessary. It has further to be ensured as to whether the appointment has been made taking into consideration the provisions contained in the U. P. Intermediate Education Act and the Regulations framed thereunder regulating the procedure for the appointment and the manner in which the appointment has to be made and further whether the person appointed satisfies the minimum eligibility criteria and his appointment is in accordance with law. In such a circumstance in order to discharge the statutory duty, it is incumbent upon the authority functioning under the U. P. Act No. 24 of 1971 to grant financial approval to the appointment reported to it after examining all the aspects as indicated above. In the absence of such a financial approval, the State Government cannot be saddled with any liability in regard to the payment of salary etc. to the appointee of the management as against the vacancy in a post sanctioned for the High School or any intermediate college. In fact the provisions contained in Regulation 101 of the Regulations which have now come into force ensure that no financial liability is cast upon the State in respect of any appointment made by the appointing authority unless the appointment is made after obtaining the prior approval from the District Inspector of Schools.
xxx
21. With the insertion of Regulation 101, the position stands further clarified that any appointment as against non-teaching post cannot be made by the management without obtaining prior approval of the District Inspector of Schools with the consequential result that if the management acts in contravention of the provisions of this provision, it would be liable to be vitiated with the penalty of de-recognition or of any other action and further the District Inspector of Schools or any other competent authority stands authorised to withhold payment of salary to such an appointee refusing to recognise his appointment which is sought to be made the basis for such an entitlement. This provision is in effect a check to prevent an appointment becoming effective in the sense of saddling the State with the responsibility of payment of salary etc. in case it is against the cannons of financial propriety or suffers from any procedural defect or is otherwise vitiated in law. The District Inspector of Schools by virtue of this provisions stands vested with ample jurisdiction to examine above aspects and on being satisfied that the appointment has infact been made in accordance with the provisions contained in the Act and the Regulations framed therein, he may grant the approval whereupon the appointment becomes effective so as to saddle the State with the liability in regard to the payment of salary etc. to the appointee and extending to him the benefits envisaged under the U. P. Intermediate Education Act and the Regulations framed thereunder ensuring the security of tenure of service etc. xxx
23. Further, the prior approval which has been referred to in the Regulation 101 in question has to be granted or refused by the competent authority not in an arbitrary manner but after examining the proceedings relating to the appointment and finding out as to whether the appointment was really necessary taking into consideration the norms fixed by the State Government justifying the continuance of the post and after satisfying as to whether the appointment was made after following the prescribed procedure in a fair manner and is in accordance with the provisions regulating the procedure which is prescribed for making such an appointment. It is only after the competent authority is satisfied that there is no defect in the procedure followed for making the appointment and such an appointment is infact necessary and further all the requisite conditions including the eligibility criteria etc. stand complied with and further the selection proceedings have been conducted in a fair manner that the District Inspector of Schools has to accord the prior approval which on the requisite conditions being satisfied cannot be withheld keeping in view the public interest involved as the State having undertaken to take the liability for payment of salary etc. of the teaching as well as non-teaching staff employed in a recognized Intermediate College or High School is bound to ensure that its smooth functioning is not hampered on account of refusal to grant approval to an appointment made by the Committee of Management in the interest of the institution."
18. The provision with regard to 'prior approval' of the DIOS contemplated under Regulation 101 again came up for consideration in the case of Jagdish Singh Vs. The State of U.P. and others6, and after taking note of the provisions contained under Regulations 101 to 104, it was observed as follows:-
"10. Regulations 103 and 104, as quoted above, provide that the Appointing Authority shall intimate vacancy falling on account of retirement before three months of the date of retirement. In other cases vacancy was required to be communicated within 7 days from occurrence. Regulation further provides for appointment on compassionate ground to dependent of teaching or non-teaching employee in a recognized aided institution. The management was also enjoined to inform about the death of employee, dependents of the employees and the District Inspector of Schools was to put up the application, received from the member of the deceased employee for appointment, to a Committee as contemplated under Regulation 105 to consider the case and thereafter the application was to be sent to the Management for issuing appointment letter. Regulations 101 to 107 have to be read in a manner to give effect/and meaning to the provisions incorporated with effect from 30th July, 1992. The entire provisions requires harmonious construction, so all the regulations become workable and every part of it is given meaning.
11. Regulation 101, which is to be interpreted, uses a word "Inspector shall not fill up any vacancy". The word 'fill up', for the purpose of appointment, embraces in itself a procedure, which initiates from intimation of vacancy till selection of a candidate...
xxx
18. Regulation 101, as quoted above, uses two words, namely, ^iwokZuqeksnu* and ^vuqefr*. The first part of the Regulation provides that appointing authority except with prior approval of Inspector shall not fill up any vacancy of non-teaching post of any recognized aided institution whereas second part of the Regulation provides that permission for filling of post of sweeper (Jamadar) can be given by Inspector. Second part of the Regulation is in the nature of proviso. The main part of the Regulation contains word ^iwokZuqeksnu* i.e. prior approval whereas second part of the Regulation uses word ^vuqefr*] i.e. permission. Thus, the Statute uses both the word 'prior approval' and 'permission'. The meaning of both the word cannot be the same. In view of this, the submission of the learned Counsel for the appellant that Regulation 101 requires only permission to issue advertisement by Appointing Authority and if such permission is granted by Inspector, the Appointing Authority can fill up the post. Regulation 101 provides prior approval with regard to vacancy of non-teaching staff and permission is contemplated only for filling the post of sweeper. Regulation thus indicates that when the permission is given to the Appointing Authority to fill up post of sweeper. There is no further prior approval is required. This provision being in nature of proviso to the main Regulation shall operate as an inception to the first part of Regulation. Thus, the use of two words in Regulation 101 i.e. 'prior approval' and 'permission' itself negates construction of Regulation as contended by the counsel for the appellant."
19. When the prior approval of the Inspector is contemplated in Regulation 101, that prior approval embraces itself an examination of all aspects of the matter including existence of the vacancy, nature of the vacancy whether vacancy is to be filled up by management or it be filled by appointing the dependent of deceased employee who has claimed for appointment under the scheme of the Regulations 101 to 107.
20. Scheme of Regulations 101 to 107 makes it clear that after receiving an intimation of vacancy, the District Inspector of Schools is empowered to send the application of member of deceased employee, who is entitled for compassionate appointment to the institution, who has to issue appointment letter to such candidate. It is, however, implied in the scheme that in the event there is no candidate entitled for compassionate appointment to fill a particular vacancy, the intimation of which has been received by the District Inspector of Schools, the District Inspector of Schools can direct the Appointing Authority to fill up vacancy by direct recruitment but even in a case the selection is made by direct recruitment by the Principal/Committee of Management, prior approval is required of the District Inspector of Schools before issuing an appointment letter to the selected candidate. Without prior approval of the Inspector, the Principal or the Committee of Management cannot issue an appointment letter or permit joining of any candidate. The requirement of prior approval in Regulation 101 is a condition precedent before issuing an appointment letter and is mandatory. The observation of the learned single Judge in the case of Dingur v. District Inspector of Schools, Mirzapur (supra) as quoted above, is also to the effect that approval has to be considered by the District Inspector of Schools after examining the proceeding relating to appointment and after examining as to whether prescribed procedure in a fair manner has been followed or not."
19. Taking into consideration the scheme under Regulations 101 to 107 it was held in the case of Jagdish Singh that an intimation of the vacancy is required to be sent to the DIOS whereafter the Inspector is empowered to send the application, if any, for compassionate appointment which may have been submitted by a member of the family of a deceased employee, upon due recommendation of the Committee constituted for the purpose, for issuance of an order of appointment, and in the event there is no candidate entitled for compassionate appointment, the Inspector can direct the appointing authority to fill up vacancy by direct recruitment, but even in such a case, prior approval of the Inspector is required before issuance of an order of appointment to the selected candidate. The requirement of prior approval under Regulation 101 was held to be mandatory and a condition precedent before issuance of an appointment order. Although, an observation was made that there is no requirement for taking previous approval under Regulation 101 before issuance of advertisement and that prior approval of the Inspector is required after completion of the process of the selection but it was made clear that there was no prohibition for the Principal or the Management to seek permission of the Inspector for filling up the vacancy by direct recruitment and such permission may or may not be granted by the Inspector. The observations made in the judgment, in this regard, are as follows :-
"21. The observation of the learned single Judge in Ram Dhani's case (supra) that previous approval under Regulation 101 is required to be taken before issuing advertisement for filling up vacancy does not lay down correct law. We, however, make it clear that although prior approval is required from the District Inspector of Schools after completion of process of selection but there is no prohibition in the Principal/Management to seek permission of the District Inspector of Schools for filling up vacancy by direct recruitment. The permission may or may not be granted by the District Inspector of Schools but even if such permission to start the selection process or to issue advertisement is granted that is not akin to prior approval as contemplated under Regulation 101.
22. In view of the aforesaid, we are of the considered opinion that prior approval contemplated under Regulation 101 is prior approval by the District Inspector of Schools after completion of process of selection and before issuance of appointment letter to the selected candidate."
20. We may take note of the fact that the earlier judgment rendered by a Single Judge of this Court in the case of Dingur was duly noticed and approved by the subsequent Division Bench in the decision in Jagdish Singh and referring to para 23 of the judgment in the case of Dingur the Division Bench held that the prior approval, which has been referred to in Regulation 101, has to be granted by the DIOS after examining as to whether the prescribed procedure had been followed in a fair manner and also finding out as to whether the appointment was really necessary.
21. In the case at hand, in terms of the order dated 15.07.2015 which was under challenge in the writ petition the DIOS had declined to grant approval to the appointments said to have been made by the Selection Committee at a meeting held on 20.06.2010 by assigning the reason that no permission had been taken from the department and that the papers which had been submitted did not contain the signatures of the Principal of the Institution. It was also stated that approval could not be granted almost after five years of holding of selection proceedings.
22. The provisions under the Regulations 101 to 107 though do not require any permission to be taken before issuance of the advertisement but the language under Regulation 102 is couched in a mandatory form and it is specifically enjoined upon the appointing authority, which as per Regulation 100 is the Committee of Management for the clerical posts and the Principal/Head Master for Class IV posts, to intimate the Inspector regarding occurrence of vacancy arising out of retirement of an employee holding a non-teaching post three months prior to the date of his retirement, and in case of a vacancy arising due to death, resignation or for any other reasons, within seven days of such occurrence.
23. The material on record does not reflect that any intimation as mandated in terms of Regulation 102 with regard to occurrence of the vacancies, was sent by the management or the Principal of the Institution to the Inspector.
24. The scheme under the Regulations 101 to 107 contemplates intimation of vacancy occurring due to retirement or due to death or resignation or for any other reason within a stipulated time. This would be for the reason that the regulations provide for appointment on compassionate grounds to a dependent of a teaching/ non-teaching employee of a recognised institution and for the said purpose the management or the Principal of the Institution is enjoined to intimate the Inspector regarding the death of the employee and the particulars of the dependents of the deceased employee so that the application submitted by the dependent of the deceased employee may be considered and upon a recommendation being made by the Committee set up for the purpose the application may be forwarded by the Inspector to the management or the Principal of the Institution concerned for issuance of an appointment order. It is only in the event that there is no claim of any candidate seeking appointment on compassionate grounds for filling up of a particular vacancy that the DIOS can direct the appointing authority to fill up vacancy by direct recruitment, and even in such a case where selection is made by direct recruitment by the Principal or the Committee of Management, prior approval of the DIOS would be mandatory and would be a condition precedent before issuance of an appointment order to the selected candidate.
25. The provisions do not contemplate that the Principal or the Committee of Management, upon occurrence of a vacancy against non-teaching post, would straight away proceed to initiate the selection process for direct recruitment without any intimation to the DIOS. Such action, if permitted, would frustrate the very scheme as provided for under Regulations 101 to 107.
26. The claim of any candidate seeking compassionate appointment and the discretion to be exercised by the DIOS in that regard, in such circumstances where the management proceeds to straight away initiate the selection process without any intimation to the Inspector, would stand defeated.
27. As we have already noticed, Regulation 106 provides that the appointment of any member of the family of a deceased employee shall be made in the trained graduate category, or in the non-teaching category of the institution where the employee was in service at the time of his death, and if no post in the teaching or non-teaching cadre is vacant in such institution, then the appointment shall be made against a similar vacancy in any other recognized and aided institution in the district. In terms of the proviso to Rule 106, if such vacancy does not exist for the time being in any recognized and aided institution in the district, the appointment would be made immediately on a supernumerary post in the institution where the employee was in service. The supernumerary post shall be deemed to be created for the purpose and shall continue till the availability of a vacancy in the institution in question or in any other recognized and aided institution of the district.
28. It is therefore seen that under the scheme provided for in terms of Regulations 101 to 107, the DIOS, before proceeding to direct the appointing authority i.e. the management or the Principal of the institution, to fill up any vacancy by direct recruitment, would be required to consider not only the claims of the dependents of the deceased employee of the institution concerned but also the claims of the dependents of the deceased employees of all recognized and aided institutions in the district. This object, as envisaged under the regulations, is for providing immediate succour to claims for appointment on compassionate grounds and the same would stand totally frustrated in case the institution is permitted to proceed with the selection process without any intimation of the occurrence of the vacancy to the Inspector.
29. We may also observe that in terms of the statutory scheme governing the appointments to posts in recognized and aided institutions, as per the terms of the Act 1921 and payment of salaries against the said posts in terms of the U.P. Act No. 24 of 1971, a statutory duty is cast upon the educational authorities to ensure that the appointments are made taking into consideration the provisions under the Act, 1921 and the regulations framed thereunder governing the procedure for appointments and also to ensure that the filling up of the vacancy is in fact necessary taking into consideration the norms fixed by the State Government. The financial approval required under the U.P. Act No. 24 of 1971 for the purposes of ensuring payment of salaries is to be granted after examining all the aforementioned aspects.
30. The 'prior approval' which is contemplated under Regulation 101 before issuance of an order of appointment is therefore required to be granted by the DIOS after examining the proceedings relating to the appointment and verifying as to whether the appointment was required as per the norms fixed by the State Government and being satisfied that the same had been made after following the prescribed procedure in a fair manner. It is only thereafter that the Inspector is to accord prior approval whereafter the order of appointment is to be issued by the appointing authority i.e. the Committee of Management or the Principal of the institution as the case may be.
31. In taking this view we are fortified by the observations made by the earlier Division Bench in the case of Jagdish Singh where in para 11 of the judgment it was stated as follows:-
"11. Regulation 101, which is to be interpreted, uses a word "Inspector shall not fill up any vacancy". The word 'fill up', for the purpose of appointment, embraces in itself a procedure, which initiates from intimation of vacancy till selection of a candidate..."
32. Further, in para 19 of the aforesaid judgment, the observations made are as follows:-
"19. When the prior approval of the Inspector is contemplated in Regulation 101, that prior approval embraces itself an examination of all aspects of the matter including existence of the vacancy, nature of the vacancy whether vacancy is to be filled up by management or it be filled by appointing the dependent of deceased employee who has claimed for appointment under the scheme of the Regulations 101 to 107."
33. It is beyond question the duty of courts in construing a statutory provision to give effect to the intent of the rule making authority and to seek for that intent in every way. The object of interpretation of a set of statutory rules/regulations is to ascertain the intent of the rule making authority and to ensure that the provisions are interpreted so as to subserve the intent. There is a general presumption that the statutory provisions have to be given a purposive construction that best gives effect to the purpose for which the provision had been made.
34. Reference may be had to the judgment in R (on the application of Quintavalle) Vs. Secretary of State for Health7, for the proposition that in construing an enactment effort should be made to give effect to the purpose of the enactment. The observations made by Lord Bingham in the aforesaid judgment are as follows:-
''8. The basic task of the Court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. ... Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. The Court's task, within the permissible bounds of interpretation, is to give effect to Parliament's purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.''
35. Similar observations were made by Lewison LJ in Pollen Estate Trustee Company Ltd. Vs. Revenue and Customs Commissioners8. It was stated thus :-
''24. The modern approach to statutory construction is to have regard to the purpose of a particular provision and interpret its language, so far as possible, in a way which best gives effect to that purpose..."
36. In the instant case, in addition to there being no material to show that any intimation was sent by the Committee of Management or Principal of the Institution to the DIOS with regard to occurrence of the vacancy, the other reason which has been assigned by the DIOS while declining to grant approval is that the relevant papers seeking approval had been received after almost five years from the date of the alleged selection. This casts a further doubt on the selection process undertaken by the management of the Institution.
37. For the aforementioned reasons, we do not find any reason to interfere with the judgment of the learned Single Judge in terms of which the writ petition has been dismissed.
38. That apart and in any event, in an Intra-Court Special Appeal, no interference is usually warranted unless palpable infirmities or perversities are noticed on a plain reading of the impugned judgment and order. In the facts and circumstances of the instant case, as stated hereinbefore, on a plain reading of the impugned judgment and order, we do not notice any such palpable infirmity or perversity. For reasons stated above, we are not inclined to interfere with the impugned judgment and order dated 29.11.2019.
39. The Special Appeal is liable to be dismissed and stands, accordingly, dismissed.
Order Date :- 24.04.2020 Pratima (Biswanath Somadder,J.) (Dr.Y.K.Srivastava,J.)