Allahabad High Court
Satish Narain Treivedi vs State Of U.P. Thorugh Deputy Director ... on 10 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 720
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 21 Case :- SERVICE SINGLE No. - 5748 of 1999 Petitioner :- Satish Narain Treivedi Respondent :- State Of U.P. Thorugh Deputy Director Education Counsel for Petitioner :- Anil Kumar,Anurag Srivastava Counsel for Respondent :- C.S.C. Hon'ble Saurabh Lavania,J.
Heard Sri Anurag Srivastava, learned counsel for the petitioner and Sri Gyanendra Srivastava, learned State Counsel.
By means of the present writ petition, a challenge has been made to the order dated 07.09.1999 (Annexure No. 9 to the writ petition), whereby the financial approval to the appointment of the petitioner on the post of Peon, in the Class-IV category, in the College known as Janta Girls Inter College, Alambagh, Lucknow (in short "College") has been rejected by the DIOS (District Inspector of School-II, Lucknow)/respondent No. 2.
It is stated that the petitioner was appointed by the competent authority i.e. Principal of the College/respondent No. 5 vide order dated 10.08.1997 and the required documents were sent to the DIOS for approval of appointment of the petitioner on the post of Peon, but no heed was paid by the DIOS thereupon.
Being aggrieved by the inaction of the DIOS, the petitioner approached this Court by means of the Writ Petition No. 4520 (S/S) of 1998, whereby this Court after considering the facts of the case passed the final order on 08.10.1998, which reads as under:-
"Heard learned counsel for the petitioner learned standing counsel and also perused the record.
By means of this petition under Article 226 of the Constitution of India, petitioner prays for issuance of a writ order or direction in the nature of mandamus commanding the District Inspector of Schools, Lucknow to accord approval to the appointment of the petitioner on Class IV post in Janta Girls Inter College, Alambagh, Lucknow.
It has been stated that after following the procedure prescribed under law, the petitioner was appointed as Class-IV employee in the aforesaid Institution by the Principal of the college, but till date District Inspector of Schools, did not accord financial approval. Consequently, petition is not being paid his salary. It has been urged that the petitioner has filed several applications/ representations for ventilation of his grievances before the District Inspector of Schools, and the Account Officer of the District Inspector of Schools, but of no avail, he had not option but to approach this Court and file the present petition.
Since the matter is pending disposal before the District Inspector of Schools, this petition is finally disposed of with the direction to District Inspector of Schools, Lucknow to look into the matter and decide the representations filed by the petitioner for according financial approval of his appointment by means of speaking order, within one month from the date a certified copy of this order is produced before him."
In compliance of the order passed by this Court dated 08.10.1998, the DIOS considered the case of the petitioner for approval of appointment on the post of Peon in the College in issue. The DIOS after considering the material available on record and by recording the following reasons rejected the claim of approval of appointment of the petitioner vide order dated 07.09.1999, which has been challenged in the present writ petition.
"fu"d"kZ i=koyh ds voyksdu ls fuEu fLFkfr Li"V gksrh g%Sa& 1& ;kph }kjk fn, x;s i=ksa dh izfr;ka bl dk;kZy; esa izkIr gqbZ ugha izrhr gksrh gSaA ;kph rFkk iz/kkukpk;kZ }kjk laYkXu i=ksa dks bl dk;kZy; esa izkIr djkus dk lk{; izLrqr ugha fd;k tk ldkA 2&fjDr in ij fu;qfDr gsrq p;u ds fy, dksbZ izfdz;k ugha viukbZ xbZA 3&fjDr in ij fu;qfDr gsrq p;u ds fy, dksbZ izfdz;k ugha viukbZ xbZA 4&fo|ky; esa vuqlwfpr tkfr gsrq vkjf{kr dksVk iw.kZ ugha gSA fjDr in vuqlwfpr tkfr ds vH;FkhZ }kjk Hkjk tkuk gSA 5&m0iz0 ek/;fed f'k{kk vf/kfu;e ds vUrxZr fufeZr fofu;ekoyh ds v/;k; 3 fofu;e 101 ds izkfo/kkukuqlkj ;kph dh fu;qfDr djus ls iwoZ fujh{kd ls iwokZuqeksnu ugha izkIr fd;kA"
Assailing the order dated 07.09.1999, learned counsel for the petitioner submitted that the procedure as required under the law was followed by the appointing authority i.e. Principal of the College and thereafter, the petitioner was appointed on the post in question i.e. Peon against the post under unreserved category and the DIOS while passing the impugned order failed to consider the entire facts in its true spirit and accordingly, denial of salary from the State Exchequer is unjustified.
Per contra, learned State Counsel submitted that the appointment of the petitioner was made after insertion of Regulations 101 to 104 in Chapter-3 of the U.P. Intermediate Education Act, 1921 (in short "Act, 1921") vide Notification No. 4001/15-7-2-(1)(90) dated 03.07.1992 subsequently amended vide Notification No. 300/15-7(1)(90) dated 02.02.1995. The Regulations 101 to 104 provides that prior approval of DIOS for appointment on the post in issue i.e. Peon, on which the petitioner was appointed vide order dated 10.08.1997, is necessary. In the instant case, the petitioner was appointed without taking prior approval of the DIOS, as such the appointment of the petitioner is illegal and arbitrary and being so, the petitioner is not entitled to salary from the State Exchequer. In this regard, reliance has been placed on the judgment passed in the case of Jagdish Singh v. State of U.P. and others reported in [(2006) 3 UPLBEC 2765]. The relevant portion of the same on reproduction reads as under:-
"9. First issue, which has arisen in these appeals, is interpretation of 'prior approval' as used in Regulation 101 of Chapter III. Prior to Insertion of Regulations 101 to 107 in U. P. Intermediate Education Act with effect from 30th July, 1992, there was no express provision under the U. P. Intermediate Education Act, 1921 and the Regulations framed thereunder requiring approval of appointment of Class III and Class IV employees, although the provisions were there in the U. P. Intermediate Education Act, 1921 regarding approval of appointment of teachers. A Division Bench of this Court in 1982 UPLBEC - 232 Om Prakash v. District Inspector of Schools. Budaun and Ors., while considering the appointment of Class IV employee took the view that there is no provision for approval of appointment of Class IV employees. Regulations 101 to 107 were added providing for prior approval before filling up the vacancy of non-teaching post and providing for the appointment of dependent of deceased employee and a procedure thereof. Regulations 101 to 104 of the Regulations, which are relevant for the present case, are extracted below:
101. Appointing Authority except with prior approval of Inspector shall not fill up any vacancy of non-teaching post of any recognised aided institution.
Provided that filling of the vacancy on the post of Jamadar may be granted by the Inspector.
"102. Information regarding vacancy as a result of retirement of any employee holding a non-teaching post in any recognised, aided institution shall be given before three months of his 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.
103. Notwithstanding anything contained in these regulations, where any teacher or employee of ministerial grade of any recognised, aided institution, who is appointed accordingly with prescribed procedure, dies during service period, then one member of his family, who is not less that eighteen years in age, can be appointed on the post of teacher in train graduate grade or on any ministerial post, if he possesses prescribed requisite academic qualifications, training eligibilities, if any, and he is otherwise fit for appointment.
Provided that anything contained in this regulation would not apply to any recognised aided institution establish and administered by any minority class.
Explanation.- For the purpose of this regulation "member of the family" means widow or widower, son, unmarried or widowed daughter of the deceased employee.
Note.- This regulation and Regulations 104 to 107 would apply in relation to those employees who have died on or after 1 January, 1981.
104. Management of any recognised, aided institution within seven days of the date of death shall present a report to the Inspector about the members of the family of deceased employee, in which particulars of name of the deceased employee, post held, pay scale, date of appointment, date of death, name of the appointing institution and names of his family members, their academic and training eligibilities, if any, and age shall also be given. Inspector shall make entries of particulars of the deceased in the register maintained by himself.
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. The submission, which has been placed by the learned Counsel for the appellant, is that Regulation 101 means that before starting to fill up any vacancy, prior approval of the Inspector is required. He contended that thus permission is required from Inspector by the appointing authority to start with process of selection and once the permission is granted by the Inspector, the appointing authority is free to proceed with selection and make appointment. They contended that the permission to start selection is one which is contemplated in Regulation 101.
12. As noted above, there was no provision prior to 30th July, 1992 requiring prior approval with regard to Class III and Class IV posts. It is although true that no procedure for filling up the Class III and Class IV posts is contained in the regulation, except the requirement of the qualification which has been mentioned in Chapter III Regulation 2(1) of the U. P. Intermediate Education Act. The word 'approval' as rightly contended by the learned standing counsel, is approval of certain action which has already been taken. Had the Legislature intended that no selection process for Class III and Class IV posts shall begin without permission of the District Inspector of Schools, the word 'approval' would not have been used and the word used would have been that without prior approval or permission of the District Inspector of Schools, the appointing authority shall not commence selection process. The word approval has been defined in Webster's Third New International Dictionary as 'the act of approving, approbation, sanction, certification as to acceptability.
13. A learned single Judge of this Court had considered Regulations 101 in 1997 (2) UPLBEC 102 Dingur v. District Inspector of Schools. Mirzapur and Ors. In paragraph 23 of the judgment it has been observed that prior approval, which has been referred to in Regulation 101, has to be granted after examining the proceeding relating to the appointment and finding out as to whether the appointment was really necessary and as to whether it was made after following the procedure in a fair manner in accordance with the provisions. Paragraph 23 of the judgment is quoted below:
"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 concluded 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."
14. Another learned single Judge had occasion to consider Regulation 101 in Writ Petition No. 36628 of 2002 Ram Dhani v. State of U.P. and Ors. and Writ Petition No. 36630 of 2002 Kailash Prasad v. State of U.P. and Ors. Vide its judgment dated 19th October, 2005, the learned single Judge, after considering the Regulation 102, took view that previous approval under Regulation 101 is required to be taken before issuing advertisement for filling up vacancy. Following was observed by the learned single Judge:
"In the present case, from the record, it transpires that no previous approval was sought from the District Inspector of Schools before making an advertisement. In my opinion, previous approval under Regulation 101 is required to be taken before issuing an advertisement for filling up the vacancy. Previous approval is required at this stage and not at the stage when a candidate is selected after the advertisement. In the present case, no permission was sought from the District Inspector of Schools, Gorakhpur, prior to the issuance of the advertisement. The Committee of Management has also filed a counter affidavit and has no where stated that previous permission was taken from the District Inspector of Schools, Gorakhpur or that they had applied for permission before issuing the advertisement. Consequently, the appointment of the petitioner was ex-facie in violation of Regulation 101 of the Regulations. Consequently, no financial approval could be accorded by the District Inspector of Schools, Gorakhpur."
15. Against the above judgment of the learned single Judge dated 19th October, 2005, special appeal was filed, which was decided by our Division Bench vide judgment dated 22nd February, 2006 in special appeal. Only two submissions, raised before us, were dealt with by us i.e. firstly if the District Inspector of Schools fails to communicate its decision within reasonable time, the appointment shall be deemed to have been made and secondly, Regulation 101 gives uncanalised and unguided power to the District Inspector of Schools to grant or refuse approval, which itself is violative of Article 14 of the Constitution. Both the above contentions were repelled by us in our judgment dated 22nd February, 2006. While considering the concept of approval, we made the following observation in the said judgment:
"The concept of the approval of an appointment is a well known concept under the U. P. Intermediate Education Act, 1921 with regard to the appointment by the Selection Committee for direct recruitment as well as in the case of promotion. For appointment the procedure is prescribed in the various Regulations. The qualification for appointment is also provided in Chapter-Ill and other provisions of the Act and the Regulations framed. While considering the question of approval of appointment of a candidate, the District Inspector of Schools has to act in accordance with the other express provisions provided for qualification, eligibility and procedure prescribed for selection. It cannot be said that the power of approval as contemplated under Regulation 101 is not hedged by any guidance or qualification. It is not in the discretion of the District Inspector of Schools to pass an order for approval or disapproval at his sweet will. He has to pass an order taking into consideration the other provisions and Regulations of the Act. Thus the submission of the learned Counsel for the appellant that the said power is uncanalised and the provision itself is arbitrary, cannot be accepted."
16. The submission, which is now being raised before us in these appeals, was neither considered by us nor was pressed before us in the special appeal decided on 22nd February, 2006, although we have approved the judgment of the learned single Judge dismissing the writ petition but the question as to whether the prior approval is required to be taken before issuing an advertisement for filling up vacancy was neither canvassed before us nor felt for our consideration.
17. Original Notification by which Regulation 101 to 107 was inserted in Chapter III is in Hindi. It is useful to reproduce the original Regulation 101 which is as follows:
"101-fu;qfDr izkf/kdkjh] fufj{kd ds iwokZuqeksnu ds flokp fdlh ekU;rkizkIr] lgk;rkizkIr laLFkk ds f'k{k.ksRrj LVkQ dh fdlh fjfDr dks ugha Hkjksxk% izfrcU/k ;g gS fd teknkj ds in dh fjfDr dks fujh{kd }kjk Hkjus dh vuqefr nh tk ldrh gSA"
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 recognised 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.
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."
It is further submitted that the petitioner was appointed by the Principal of the College but prior to issuing of the order of appointment dated 10.08.1997, the approval, as required under the Regulations 101 was not taken by the appointing authority from the competent authority i.e. DIOS/opposite party No. 2. Thus, the impugned order being just and proper is not liable to be interfered with by this Court.
Keeping in view the provisions as envisaged under Regulation 101 in the Chapter III of the Act, 1921, the DIOS denied the approval of appointment of the petitioner, as such there is no illegality and infirmity in the impugned order.
Sri Srivastava, learned State Counsel, further submitted that a perusal of the averments made in the writ petition and the documents annexed thereto would show that prior to appointment, the post in issue was not advertised in two daily newspapers having vide circulation. Thus, the settled procedure required for recruitment was not followed and being so, the appointment of the petitioner is vitiated under the law and the petitioner is not entitled to the relief of payment of salary from the State Exchequer.
It is further stated that on the post for reserved category candidate, the petitioner was appointed. Thus also the appointment of the petitioner is not legal.
In view of the above, the prayer is to dismiss the writ petition.
In rebuttal, learned counsel for the petitioner submitted that while entertaining the present writ petition, this Court on 04.11.1999 passed an interim order, which is quoted below, and on the strength of the interim order, the petitioner is still continuing in service in the pay band of Rs. 5200-20200/- with grade pay of Rs. 1800/- and is getting the salary from the State Exchequer and in view of the same, the petitioner may be allowed to continue in service and the writ petition for the reliefs sought may be allowed.
"Notice on behalf of opp. parties 1 to 3 has been accepted by the learned Chief Standing Counsel.
Issue notice to opp. parties 4 and 5.
Learned counsel for the opp. parties prays for and is granted four weeks time to file counter affidavit. List thereafter.
In the meantime it is provided that in case the petitioner's appointment has been made against a sanctioned post after selection and the petitioner is actually working on that post, he shall be paid salary regularly till further order of this Court. The operation of impugned order dated 7-9-99 as contained in Annexure-9 to the writ petition shall remain stayed till further orders of this Court."
In response to the arguments raised by the learned counsel for the petitioner in regard to continuance of the petitioner in service and payment of salary from State Exchequer on the strength of interim order, learned State Counsel submitted that the petitioner cannot get any benefit from the interim order, as the appointment of the petitioner is not valid.
Heard learned counsel for the parties and perused the record.
In regard to submissions made by the learned State Counsel that the vacancy was not published in newspaper, which process is mandatory, this Court considered the pleadings and documents on record and it appears therefrom, particularly para 16 of the writ petition, that the vacancy in issue i.e. the vacancy of the post of Peon was notified on the "Notice Board" of the Institution and it was not advertised in two daily newspapers having vide circulation.
In National Fertilizers Ltd. [(2006) 5 SCC 493 : 2006 SCC (L&S) 1152] this Court referred to the decision in Union Public Service Commission v. Girish Jayanti Lal Vaghela [(2006) 2 SCC 482 : 2006 SCC (L&S) 339] wherein the Court had observed as under: (SCC p. 490, para 12) "The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution."
It is true that, at relevant time, the provisions of Chapter III of the U. P. Intermediate Education Act, 1921, did not provide any procedure for selection on the post of the Peon. In the absence of any prescribed procedure under the rules, it is open to the management to adopt a procedure which conforms the provisions of Articles 14 and 16 of the Constitution of India. The committee of management was free to issue advertisement in the news paper and to call names from the Employment Exchange for making selection.
In the aided Institution, the salary to the teachers and the staff is paid by the State Government. Since the salary is paid by the State Government, for all purposes the employment to the post of clerk is public employment. For a public employment, the minimum requirement which is needed is to advertise the post to enable all the eligible candidates to apply for the post. The committee of management cannot claim to select any person on its own choice without advertising the post in any news paper.
In view of the above, the petitioner's appointment made by the management, without advertisement of the vacancy and without inviting applications from the candidates from open market to participate in the selection process, is void appointment.
It appears from the pleadings on record that the specific stand taken by the State, based on Regulation 101 in the Chapter III of the Act, 1921, that the appointment of the petitioner was not made after seeking prior approval of competent authority i.e. DIOS/opposite party No. 2, is undisputed. The specific plea, based on the Regulation 101, taken in the counter affidavit has not been denied by the petitioner.
The Division Bench of this Court in the case of Jagdish Singh (supra) held that the appointment should be made after taking the approval from the competent authority, as provided under Regulation 101 in the Chapter III of the Act, 1921. At the cost of repetition, the relevant portion of the judgment passed by the Division Bench of this Court in the case of Jagdish Singh (supra) is quoted below for ready reference:-
"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.
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."
In view of the above also, the appointment of the petitioner, without prior approval of the DIOS, is void and being so he is not entitled to any benefit or relief.
With regard to payment of salary and continuation on the post on the strength of the interim order dated 04.11.1999 and the arguments based on the same for seeking the reliefs sought, this Court is of the view that the interim order would not give any benefit or right to the petitioner to get the reliefs sought in the present writ petition.
The aforesaid view of this Court is in view of the observations made by the Constitution Bench of the Apex Court in Umadevi (3) case [(2006) 4 SCC 1 : 2006 SCC (L&S) 753], wherein it has been observed as under:-
"43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as ''litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates."
The Constitution Bench has observed that merely because an employee had continued under cover of an order of the court, which the court described as "litigious employment", he would not be entitled to any right to be absorbed or made permanent in the service.
Further, the Apex Court in re: Shesh Mani Shukla vs District Inspector of Schools, Deoria and others reported in (2009) 15 Supreme Court Cases 436 vide para 19 has held as under:-
"It is true that the appellant has worked for a long time. His appointment, however, being in contravention of the statutory provision was illegal, and, thus, void ab initio. If his appointment has not been granted approval by the statutory authority, no exception can be taken only because the appellant had worked for a long time. The same by itself, in our opinion, cannot form the basis for obtaining a writ of or in the nature of mandamus; as it is well known that for the said purpose, the writ petitioner must establish a legal right in himself and a corresponding legal duty in the State. (See Food Corpn. of India vs. Ashis Kumar Ganguly.) Sympathy or sentiments alone, it is well settled, cannot form the basis for issuing a writ or or in the nature of mandamus. (See State of M.P. vs. Sanjay Kumar Pathak.)"
The Apex Court in the case of Raghvendra Rao etc. v. State of Karnataka and others, JT 2009 (20) SC 520 has observed as under:-
"It is now a well-settled principle of law that merely because an employee had continued under cover of an order of Court, he would not be entitled to any right to be absorbed or made permanent in the service................."
For the foregoing reasons, the writ petition lacks merit. Hence dismissed with no order as to costs.
Order Date :- 10.2.2020 Arun/-