Allahabad High Court
Dhirendra Kumar Tiwari vs State Of U.P. Thru Prin.Secy.Secondary ... on 31 January, 2017
Author: Devendra Kumar Arora
Bench: Devendra Kumar Arora
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No.19 Writ Petition No. 2210 of 2017 (S/S) Dhirendra Kumar Tiwari ......... Petitioner Versus State of U.P. and others .......... Opposite parties AND Writ Petition No. 2225 of 2017 (S/S) Rituraj Dubey ......... Petitioner Versus State of U.P. and others .......... Opposite parties AND Writ Petition No. 2253 of 2017 (S/S) Sachin Patel and another ......... Petitioners Versus State of U.P. and others .......... Opposite parties AND Writ Petition No. 2258 of 2017 (S/S) Ashutosh yadav ......... Petitioner Versus State of U.P. and others .......... Opposite parties ***** Hon'ble Dr. Devendra Kumar Arora, J.
Heard learned Counsel for the petitioners appearing in the afore-captioned writ petitions and Sri Badrul Hasan,learned Addl. Chief Standing Counsel for the State.
As in the aforesaid batch of writ petitions, common question of law and fact is involved, all the writ petitions were heard together and were dismissed on 30.1.2017 for the reasons to be recorded later on.
Here are the reasons for dismissing the aforesaid writ petitions at the admission stage itself.
In writ petition no.2210 (SS) of 2017 and Writ Petition No. 2225 (SS) of 2017 petitioners Dhirendra Kumar Tiwari and Rituraj Dubey has stated that in Sri Rananjai Inter College, Tengaha, Amethi, when class IV posts fell vacant, the Principal, as per regulation 100 of the Regulations framed under Intermediate Education Act, 1921 sought prior approval for filling up the said class IV post from the District Inspector of Schools, Amethi but as no action was taken by the DIOS, the Principal of the College got published an advertisement in the Newspaper on 19.2.2016. After due procedure, petitioners were declared successful by the selection committee and they were issued appointment letter on 24.3.2016 by the Principal of the Institution. It is said that on 25.4.2016, the Principal of the College sent the entire papers with respect to the appointment of the petitioner to the DIOS. According to the petitioners' Counsel, since the date of joining i.e. 29.3.2016, the petitioners are discharging their duties as Class IV post with due diligence and honesty but they are not being paid salary in absence of financial approval to be accorded by the DIOS concerned.
In Writ Petition No. 2253(SS) of 2017, petitioners Sachin Patel and Jai Prakash Verma have stated that when class IV posts fell vacant in Sardar Patel Smarak Inter College, Larpur, District Ambedkar Nagar, the Principal of the College sent a letter dated 17.11.2015 to the DIOS, Ambedkar Nagar for granting prior permission for making appointment on vacant Class IV posts. According to the petitioners, when for a long period neither permission was granted nor the same was rejected then as per the vacancies available in the institution, a publication was made in the Newspaper on 1.2.2016 inviting applications for the Class IV posts. After due process of selection, the petitioners were declared selected against the substantive posts and accordingly appointment letters were issued to them on 23.2.2016. Thereafter the petitioner joined on 26.2.2016 and since then, they are discharging their duties with utmost sincerity and honesty but they are not being paid salary in absence of financial approval to be accorded by the DIOS concerned.
According to the petitioner, namely, Ashutosh Yadav petitioner in Writ Petition No.2258 of 2017 (SS), one Ravindra Nath Singh, who was working as Clerk in Mahatma Govind Sahab Inter College, attained the age of superannuation on 31.12.2015 and as such the Principal of the College sent a letter for permission to the DIOS, Ambedkar Nagar for making appointment on 10.1.2016. According to the petitioners, when for a long period neither permission was granted nor the same was rejected then as per the vacancies available in the institution, a publication was made in the Newspaper on 9.7.2016 inviting applications for the Class III post. After due process of selection, the petitioner was declared selected against the substantive post and accordingly appointment letter was issued to him on 8.8.2016. Thereafter the petitioner joined on 11.8.2016 and since then they are discharging their duties with utmost sincerity and honesty. The Manager and Principal of the College sent all the papers to the DIOS relating to appointment on 12.8.2016 for granting financial approval but till date no action has been taken causing serious prejudice to the petitioner, who is being denied salary without any justifiable reason.
In reply, it has been vehemently argued by Sri Badrul Hasan, Addl. Chief Standing Counsel on behalf of contesting respondents that Regulation 101 provides that prior approval of District Inspector of Schools has to be obtained by the appointing authority before making any appointment on a non-teaching post of Class III and Class IV and as the same is mandatory in nature, the appointment of the petitioner was illegal and de hors the rules. In other words, without taking prior permission, in utter disregard of law, selection and appointment has been made and as such there is no occasion for the District Inspector of Schools to accord financial concurrence to such an illegal appointment.
To substantiate his arguments, he has relied upon number of decisions rendered by this Court, which are discussed in later part of the judgment.
Having considered the submissions made by the parties, first of all it would be apt to refer Regulations 101 to 107 for the proper adjudication of the matter. 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."
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.
The controversy as involved in the instant cases have been scrutinized in detail by a Division Bench of this Court in the case of Jagdish Singh Versus State of U.P. and others [2006(24) LCD 1712] and the Division Bench held as under:-
"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."
Similar principle has been reiterated in Sunil Kumar and another Vs State of U.P. and others [2013(3) ESC 1492 (All) and the Court held as under:-
"In the amended Regulation, for two different stages, two different words have been used "Prior approval" and "permission". In the context of situation same has to be clearly understood, that permission to fill up the vacancy has to be obtained from Director of Education before proceeding to undertake the process of selection, and once such a permission is accorded and selection process is over, then before issuance of appointment letter, the matter has to be scrutinized by District Inspector of Schools and only after approval is accorded then only appointment letter can be issued."
Clarifying the position, it may be added that amendment has a purpose i.e. before proceeding to undertake selection process, there should be clarity of requirement of staff and existence of vacancy, and in this direction it has been specifically provided that District Inspector of Schools should obtain permission from the Director of Education (Secondary) before exercise is to be undertaken to fill up the vacancy by according permission to appointing authority to fill up the vacancy, as the Director of Education is the competent authority under U.P. Act No. 24 of 1971 to accord sanction for the creation of post and accordingly Director of Eduction is to be informed of not only the vacancies, but even the justification for filling up the said vacancy based on students strength as by undertaking such an exercise, vacancy status and requirement stands clear. Even in the case of Jagdish Singh (Supra) it has been clarified that permission granted by the District Inspector of schools to start selection process is not akin to prior approval contemplated under Regulation101 and in order to meet such a situation and in order to keep check on appointment, such amendment has been introduced wherein two tier exercise has been entrusted upon the District Inspector of Schools. (i) at the first instance he will inform the Director of Education of entire existing vacancy based on strength of students and justification for filling up the vacancy and after permission from Director of Eduction will give permission to appointing authority to fill the vacancy and after selection process is over,(ii) then to scrutinize as to whether selection has been validly made or not, and after green signal is given then only appointment letter can be issued."
Following the aforesaid legal proposition, a learned Single Judge in the case of Lal Bahadur Versus Secretary Secondary Education and others [Writ Petition No.- 1544 of 2010 decided on 11.7.2013] held that "the Court has no hesitation to hold that Principal of the Institution concerned could not have issued any appointment letter on 17.05.2008 or even on any other subsequent date prior to the date of approval of the selection by the District Inspector of Schools i.e. prior to 23.03.2009."
Thus from the legal position as enumerated herein above, it is crystal clear that the amended Regulation 101 is to be adhered to in its word and spirit, and in the cases at hand, admittedly, complete good by has been given to the aforementioned provision, whereas as already mentioned above matter has to be examined by the Director of Education at the first instance and thereafter, by District inspector of Schools at the second instance after selection process was over. This Court is of the view that it should have been adhered to i.e. before proceeding to fill up the vacancy, permission should have been obtained and after requisite permission was accorded, then selection process should have been undertaken and paper should have been transmitted to the District Inspector of schools, who would have again considered the matter of approval and then only appointment letter could have been issued. Said provisions are of mandatory character and cannot be permitted to be by-passed, as law on the subject is that if statute prescribes for a act to be done in a particular manner then the requisite exercise is to be taken accordingly, and if action is so taken but same is not supported by statute then Court must exercise its jurisdiction to declare such an act to be illegal and in valid. Issuance of appointment letter and functioning of petitioners without prior approval is void as per the case of Jagdish Singh (supra).
In the result, the writ petition fails and is hereby dismissed. However, it will be open for the opposite parties to hold the selection afresh in accordance with law after appropriately advertising the vacancy in question in which the petitioners, if they so desires, may also participate.
Date :31/1/2017 Rahul