HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 36 A.F.R. Case :- SPECIAL APPEAL No. - 1497 of 2009 Appellant :- Mithilesh Kumar Srivastava Respondent :- Regional Inspectress Of Girls Schools Vth Region And Another Counsel for Appellant :- V.K. Singh,A.P.Tewari,Dr. Daya Shanker,G.K. Singh,M.M.Srivastava,Sanjay Srivastava Counsel for Respondent :- C.S.C.,Nishant Khare,Punit Khare,Vikas Budhwar Hon'ble Rajes Kumar,J.
Hon'ble Shamsher Bahadur Singh,J.
1. Heard Sri Sanjay Srivastava, learned counsel for the appellant, learned Standing Counsel appears on behalf of respondent no.1A and 3 and Sri Vikas Budhwar appears on behalf respondent no.2.
2. By means of present appeal, the appellant has challenged the order dated 25th May, 2004 passed by learned Single Judge in the Writ Petition No.36918 of 1993, whereby the writ petition filed by the petitioner has been dismissed.
3. It is the case of the petitioner that the Committee of Management, respondent no.2 appointed the petitioner on the post of clerk on 01.06.1992. The petitioner joined the post on 04.06.1992. Shri Saraswati Uchchtar Madhyamik Kanya Vidyalay, Neelkanth, Varanasi is a recognised institution and is Government aided. When salary has not been paid to the petitioner, he filed writ petition seeking mandamus to the respondent no.2 to make payment of salary to the petitioner which is due since 04.06.1992 and also salary from time to time whenever it falls due. The respondent no.1, Regional Inspectress of Girls Schools, Vth Region,Varanasi filed the counter affidavit. In paragraph 6 of the counter affidavit, it is stated that Education Act is mandatory provision and also specific Government Order issued by the State Government dated 23rd September, 1981 and the respondent office's letter dated 08.01.1988, it is clear that no fresh appointment on substantive vacancy can be made by the Committee of Management. The said provision clearly shows that on the said post only person who died during service period, his legal heir is entitled to be appointment on the said post under dying in harness rules. The appointment of the petitioner was made by the Committee of Management on the post of clerk is without consent of the respondent no.1 and is illegal and without jurisdiction.
4. In paragraph 7 of the counter affidavit, it is stated that appointment by the Committee of Management on the post of clerk was made without consent and without obtaining permission from respondent no.1. Neither any kind of information till today has been received by the respondent nor has been furnished by the Committee of Management regarding the appointment of the petitioner. It is pertinent to mention here that the vacancy was occurred due to retirement of one Sri Magan Dass Seth on 31.07.1988. In paragraph 8 of the counter affidavit, it is stated that for the appointment no permission and consent from the respondent was taken. The appointment of the petitioner is also against the provision of Section 100 of Intermediate Education Act and also against the G.O. dated 23.09.1981 and respondent office letter dated 08.01.1988.
5. Learned Single Judge has dismissed the writ petition on the ground that in the instant case appointment of the petitioner was made without obtaining consent from Regional Inspectress of Girls Schools. Petitioner has annexed a communication dated 13.08.1991 sent by the Manager to the Regional Inspectress of Girls Schools seeking permission for making appointment but no document has been filed to indicate that such permission was granted by the Regional Inspectress of Girls Schools.
6. Learned Single Judge has also referred the counter affidavit filed by the Regional Inspectress of Girls Schools, wherein it is stated that on the basis of Government Order dated 23.09.1981 and a communication dated 08.01.1988 were sent to the Management of all the Institutions clearly intimating them that against the posts falling vacant on account of death/resignation /termination of service, intimation should be sent to the Regional Inspectress of Girls Schools, but in any case appointments should not be made without obtaining approval and in case appointments were made, the sanction for payment of salary shall not be granted.
7. Learned counsel for the appellant submits that the Regulation 107 has been introduced with effect from 30.07.1992 which provides prior permission for making the appointment. This regulation does not apply in the present case as appointment has been made on 01.06.1992. He submitted that there is no provision provided either under the Act, Rules or Regulation or in the G.O. dated 23rd September, 1981 where the prior permission is required for making the appointment of Class III employee. He submitted that the Circular dated 08.01.1988 which has been issued by the District Regional Inspecress of Girls Schools which has been written to all the Managers and the Principals of the colleges provides for providing the information about the vacancy and further provides that no appointment be made without prior permission and in case, if such appointment is being made the approval for payment of service could not be granted. This direction is without jurisdiction, inasmuch as, the Government Order dated 23rd September, 1981 does not provide for such provision.
8. Learned Standing Counsel states that Government Order dated 23rd September, 1981 provides for the compassionate appointment. It provides compassionate appointment on the death of one of the employee. Appointment is only possible against the vacant post, and therefore, the information of the vacant post is necessary. In view of above, DIOS has asked the Principal or Management to provide details of the vacancies and further directed that no appointment be made without prior permission. In case, if such appointment be made the approval of the payment of salary would not be granted is wholly justified.
9. We have considered the rival submissions and perused the record.
10. To adjudicate the issue, it would be appropriate to refer the Government Order dated 23rd September, 1981 and circular dated 8th January,1988 issued by the Regional Inspectress of Girls Schools, Vth Region,Varanasi, which are as follow;
Lak[;k&[email protected]@15&7&1¼78½@1981 izs"kd] Jh jkeyky 'kekZ] mi lfpo] mRrj izns'k 'kkluA lsok esa] f'k{kk funs'kd] m0iz0] [email protected][kumA f'k{kk¼7½ vuqHkkx] y[kum] fnukWd 23 flrEcj] 1981 egksn;] eq>s ;g dgus dk vkns'k gqvk gS fd v'kkldh; lgk;rk izkIr ek/;fed fo|ky;ksa ds 'kSf{[email protected]'k{kk.ksrj deZpkfj;ksa dh lsok dky esa vlkef;d e`R;q dh n'kk esa ifjokj ds lnL;ksa dks lgk;rk igqWpkus ds n`f"Vdks.k ls ifjokj ds fdlh ,d lnL; ds lsok esa fu;ksftr fd;s tkus ds iz'u ij 'kklu }kjk fopkj fd;k x;k gS vkSj ;g fu.kZ; fy;k x;k gS fd ,sls ekeyksa esa] ftlesa fdlh ,sls {kSf{kd vFkok f'k{kk.ksrj deZpkjh dh fu/ku lsokjr n'kk esa vlkef;d :i ls gks x;k gks] tks vius in esa LFkk;[email protected];qfDr jgk gks] mlds ifjokj ds fdlh ,d lnL; dks] tks mDr fo|ky;ksa esa f'k{k.ksRrj inksa esa fu;qfDr gsrq fofgr vgZrk;s j[krk gks] ;Fkk 'kh?kz lsok esa fu;ksftr dj fy;k tk;A ;fn og ,slh fu;qfDr dk bPNqd gksA ,sls ekeyksa esa ;Fks"V gksxk fd mDr inksa ls fu;qfDRk gsrq fu/kkZfjr izfdz;kvksa ij fo'ks"k /;ku u fn;k tk;] ijUrq ;g vo'; ns[k fy;k tk; fd lEcfU/kr O;fDr f'k{k.ksrj in esa fu;qfDr gsrq vgZrk j[krk gSA tks fu"d"kZ @vkns'k ds vUrxZr bl iz;kstu gsrq fofgr dgh x;h gksA ;g Hkh vko';d gksxk fd fu;fer------------ okys vH;FkhZ fu;qfDRk ds le; 18 o"kZ dh vk;q iwjk dj pqdk gksA fu;qfDRk dk volj ;Fkk lEHko mlh fo|ky; esa fn;k tk;sxk tgkW fu/kuxr deZpkjh lsok esa jgk gksA ;fn ,sls fo|ky; esa f'k{kk.kasrj in esa fjfDr ds vHkko esa dfBukbZ iM+ jgh gks rks nwljs fdlh Hkh ek/;fed fo|ky; esa] tgkW bl izdkj dh fjfDr miyC/k gks] fu;qfDr dh tk ldrh gSA n`f"Vxr ;g gksxk fd e`r deZpkjh ds ifjokj ds fdlh ,d O;fDr dks] tks in esa fu;qfDr gsrq fofgr vgZrk;s j[krk gks] vfoyEc lsok ;ksftr fd;k tk ldsA 2& lsok ;ksftr fd;s tkus okys O;fDr e`r deZpkjh dh iRuh ;k mldk ifr] mldk iq= vFkok mldh ,slh iq=h] tks vfookfgr gks vFkok fo/kok gks ldrk gSA 3& ;g vkns'k fnukWd 1 tuojh] 1981 ;k mlds mijkUr e``r deZpkfj;ksa ds ekeyksa esa ykxw gksxkA 4& eq>s vuqjks/k djuk gS fd d`ik;k 'kklu ds mi;qZDr fu.kZ; ls vki foHkkx ds leLr vf/kuLr vf/kdkfj;ksa o ek/;fed fo|ky;ksa ds izcU/kkf/[email protected]/kkukpk;ksZ vkfn dks rRdky voxr djkus rFkk fy;s x;s fu.kZ; ds vuqikyu gsrq vko';d O;oLFkk djus dk d"V djsaA fu.kZ; dh i`"VHkwfe dks fofu;eksa ds la'kks/ku dh dk;Zokgh i`Fkd ls dh tk jgh gSA Hkonh;
[email protected] 'kekZ] mi lfpoA izekf.kr izfrfyfi
11. Circular dated 8th January,1988 issued by the Regional Inspectress of Girls Schools, Vth Region,Varanasi is as follows.
izsf"kdk] e.Myh; ckfydk fo|ky; fujhf{kdk iape e.My] okjk.klh A lsok esa] izcU/[email protected]/kkukpk;Z lgk;rk izkIr ckfydk mPprj ek/;fed fo|ky;
okjk.klh e.MyA [email protected][[email protected] 8612&70 @1987&89 fnukWd 8&1&88 fo"k;%& e`rd vkfJrksa dks lsok&;ksftr fd;s tkus ds lECkU/k esaA egksn;@egksn;k] mi;qDr fo"k; ds lECkU/k esa lwP; gS fd 'kkldh; izkIr ek/;fed fo|ky;ksa esa 'kSf{[email protected]'k{k.ksRrj deZpkfj;ksa dh lsokdky esa vlkef;d e`R;q gksus dh n'kk esa muds ifjokj ds lnL;ksa dh lgk;rk igqWpkus ds n`f"Vdks.k ls ifjokj ds fdlh ,d lnL; dh lsok esa ;ksftr fd;s tkus gsrq jktkKk la[;k [email protected]@15&7&1¼78½@1981] fnukad 23 flrEcj }kjk fu.kZ; fy;k x;k gSA ,sls ekeyksa esa ] ftlesa fdlh ,sls 'kSf{kd ;k f'k{k.ksRrj deZpkjh dk fu/ku lsokjr n'kk esa vlkef;d :i ls gks x;k gks] esa fu;qfDr gsrq fofgr vgZrk j[krk gks] ;Fkk 'kh?kz lsok ;ksftr fd;k tkuk gS ;fn og ,slh fu;qfDr dk bPNqd gksA mDr jktkKkuqlkj e`rd vkfJrksa dks fo|ky; esa fjDr f'k{k.ksRrj inks ij lsok ;ksftr djus gsrq d`i;k vius fo|ky; esa ekSfyd :i ls fjDr inks dh lwpuk fuEu izk:i ij rRdky bl dk;kZy; dks miyC/k djkuk lqfuf'pr djsa rkfd e`rd vkfJrksa dks lsok ;ksftr djus gsrq vko';d dk;Zokgh dh tk ldsA izi= fo|ky; dk uke-&&&&&&&&&&&&&& sdzekad inuke osrudze Ikn fjfDr dh frfFk Ikn fjDr gksus dk dkj.k iwo deZpkjh ds uke lfgr 1& fyfid 2& nQ~rjh 3&ifjpkjd &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& bl lEcU/k esa ;g Hkh lwP; gS fd fdlh Hkh f'k{k.ksRrj deZpkjh lsokfuo`[email protected]`R;q @R;kx i= @ lsok lekfIr ls gksus okys fjDr inksa dh lwpukFkZ ;Fkk'kh?kz bl dk;kZy; dks Hkstuk lqfuf'pr djsa rFkk ,sls lekIr fjDr inks aij dksbZ fu;qfDRk fcuk bl dk;kZy; ls vuqefr izkIr fd;s fdlh Hkh n'kk esa u fd;k tk; vU;Fkk ,slh fu;qfDRk;ksa ds osru Hkqxrku gsrq lgefr nsuk lEHko ugh gksxkA ftldh iw.kZ mRrjnkf;Ro vkidk gksxkA d`i;k Hkfo"; esa gksus okys fjfDr;ksa ds lEcU/k esa Hkh mijksDrkuqlkj dk;Zokgh djuk lqfuf'pr djsaA d`i;k i= dh izkfIr Lohdkj djsaA Hkonh;
g0 vLi"V
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e.Myh; ckfydk fo|ky; fujh{kdk
iape e.My] okjk.klhA
i`"Bkadu la[;[email protected][[email protected]&70 &[email protected] frfFk dks
izfrfyfi fuEufadar dks lwpukFkZ ,oa vfxze vko';d dk;Zokgh gsrq izsf"kr%&
1& ftyk ckfydk fo|ky; fujh{kd] okjk.klhA
2&mi f'k{kk funs'kd] iape e.My ckjk.klhA
g0 vLi"V
¼dqlqe prqosZnh½
e.Myh; ckfydk fo|ky; fujh{kdk
iape e.My] okjk.klhA
12. We have perused the Government Order dated 23rd September, 1981 and circular dated 8th January,1988 issued by the Regional Inspectress of Girls Schools, Vth Region, Varanasi. The said Government Order does not provide any prior permission for making the appointment by the Committee of Management. It also does not provide in case the appointment is made without taking the permission, the approval of payment of salary shall not be granted. Therefore, the direction in the Circular dated 8th January, 1988 stating that the appointment be made after getting the permission and further that no appointment be made without prior permission and in case it is made approval of payment of salary shall not be granted, is beyond the Government Order and therefore illegal and for non-compliance of the aforesaid direction, the appointment cannot be held to be invalid. There is no dispute that Committee of Management is appointing authority of class-III employee in an institution.
13. The learned Standing Counsel has not shown any other provision which provides prior permission for making the appointment, prior to the introduction of the Regulation 107 which has been introduced on 30.07.1992.
14. In view of above, we are of the view that for making the appointment of the petitioner on 01.06.1992 on the post of clerk no prior permission was required from the Regional Inspectress of Girls Schools.
15. In the circumstances, we direct the Regional Inspectress of Girls Schools, 5th Region, Varanasi to examine the correctness of the appointment of the petitioner by the Committee of Management and if appointment has been made following the procedure, the sanction for payment of salary be accorded within a period of one month from the date of presentation of a certified copy of this order in accordance to law.
16. The appeal stands allowed. The order dated 25th May, 2004 passed by learned Single Judge is set aside.
Order Date :- 21.7.2015 A.Kr.*