Budhi Ram vs Dy.Director Of Education ...
2013 Latest Caselaw 6380 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved 									AFR
 

 
Case :- SERVICE SINGLE No. - 1285 of 1999
 

 
Petitioner :- Budhi Ram
 
Respondent :- Dy. Director Of Education Faizabad and others 
 
Counsel for Petitioner :- Sushil Kumar Singh
 
Counsel for Respondent :-A. C.S.C., Chaudhary Shatrughan, Sushil Kumar Pandey and L.P. Singh
 

 
Hon'ble Vishnu Chandra Gupta,J.

1. By means of this writ petition, the petitioner has challenged the impugned order dated 15.12.1998 (Annexure-1 to the petition) passed by opposite party no.1-Deputy Director of Education, 9th Region Faizabad, District Faizabad and the consequential order dated 16.12.1998 (Annexure-2 to the petition) passed by opposite party no.2-District Inspector of Schools, Sultanpur whereby the appointment of petitioner-Budhi Ram was found illegal and he was declined to pay the salary. Both these orders were sought to be quashed.

2. Heard Sri Sushil Kumar Singh, learned counsel for the petitioner, Sri L.P. Singh, learned counsel for the opposite party no.5, Chaudhary Shatrughan, learned Additional Chief Standing Counsel for the State-opposite parties no.1 and 2. Opposite party no.3-Principal and Opposite party no.4-Committee of Management of P.R. Inter College, Semari Bazar, Sultanpur (for short 'the Institution') have not put any contest though the Principal-opposite party no.3 filed Power of Sri Sushil Kumar Pandey, Advocate.

3. The brief facts for deciding this writ petition emerges from the material on records are that the opposite party no.5-Ram Kewal was appointed on the post of 'Ardali' as Class-IV post, on 16.06.1978 in the Institution, which was recognized from U.P. Board of High School and Intermediate Education, Allahabad. His appointment was approved by the District Inspector of Schools (for short 'the DIOS') by an order dated 20.12.1984. The opposite party no.5 was absented from duty in July, 1987. The Principal alleged to have sent notices to the opposite party no.5 on 08.09.1987, 25.12.1987, 25.03.1988 and 15.11.1988 to resume duty but when the opposite party no.5 did not resume duty, the services of opposite party no.5 were terminated by the Principal vide order dated 27.05.1989 (Annexure-2 to the petition). On account of termination of the services of the opposite party no.5, a vacancy is said to have occurred for the post of Ardali a Class-IV post in the Institution. It was alleged by the petitioner that the vacancy was published in the newspaper and the notice was pasted on the notice board of the Institution. In pursuance of the advertisement, several candidates were appeared in the interview in which the petitioner was declared to be selected. Thereafter, the DIOS approved the appointment of the petitioner along with three others persons by order dated 30.03.1991 (Annexure-3 to the petition) subject to three conditions i.e. (a) salary shall be payable to the persons named in the approval order from the sources of the Management, (b) if it is found that the approval has been sought on concealment of fact, the same shall be automatically become inoperative and (c) the approval shall be effected on taking charge by the employees after 24.12.1990. This approval was accorded on the basis of letter No.240/1990-91 dated 24.12.1990 sent by the Principal to the District Inspector of Schools.

4. On 31.03.1991, letter of appointment (Annexure-4 to the petition) was issued to the petitioner by the Principal. On 01.04.1991, the Institution was added in the list of grant-in-aid schools under the provisions of U.P. High School and Intermediate College (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as 'the 1971 Act').

5. Opposite party no.5-Ram Kewal preferred an appeal (Annexure-5 to the petition) against his termination under Regulation 31 of Chapter-III of the U.P. Intermediate Education Act, 1921 (hereinafter referred to as 'the Act'). The aforesaid appeal was entertained by the Management in view of the aforesaid Regulation and after hearing the same, allowed the appeal by an order dated 17.02.1992 (Annexure-6 to the petition). When salary was not paid to the opposite party no.5 inspite of the orders passed in appeal, a writ petition has been preferred by the opposite party no.5 being Writ Petition No.6142 of 1992 (SS) which was finally disposed of, vide order dated 19.09.1995, with direction to the respondent no.1 to pass appropriate orders in the matter within three weeks but the respondent no.1 did not comply the order.

6. On the other hand, the petitioner also filed Writ Petition No.4205 of 1994 (SS) for directing the authorities to pay salary in pursuance of the approval accorded for his appointment. In the said writ petition, this Court has passed order on 14.12.1996 directing the opposite parties to pay the salary to the petitioner or to show cause. The order of this Court was also not complied with by the authorities, therefore, a Contempt Petition No.791 of 1998 was filed before this Court. Thereafter, the opposite party no.1 proceeded to dispose of the matter of the petitioner as well as the opposite party no.5. The DIOS directed the Principal to produce the records of appointment, approval and termination of the opposite party no.5 and of the petitioner before the Deputy Director of Education on 15.12.1998 (the date fixed for hearing before the Deputy Director of Education) vide letter dated 09.12.1998 (Annexure-7 to the petition). In compliance of the letter dated 09.12.1998, the Principal produced the relevant documents and also filed a written reply (Annexure-8 to the petition) before the opposite party no.1. After hearing the parties, the Deputy Director of Education- opposite party no.1 passed the impugned order dated 15.12.1998 holding therein that approval accorded to the appointment of the petitioner was based on concealment of fact and the appointment of the petitioner was found illegal in view of the provisions of Regulations 31, 35 to 38 of Chapter-III under the Act and observed that the appointment of the petitioner made by the Principal on the alleged vacant post occurred on account of the termination of opposite party no.5 is quite irregular and illegal and that too has been made without following the prescribed procedure. The appointment of the petitioner was done by the Principal after concealing the fact and to provide undue advantage to the petitioner due to inclusion of the Institution in the list of grant-in-aid from 01.04.1991.

7. The Deputy Director of Education directed the DIOS to pass appropriate orders in this regard and in pursuance thereof, the DIOS passed the order dated 16.12.1998 declaring the appointment of the petitioner illegal and declining the payment of salary to the petitioner.

8. Counter affidavit has been filed by opposite party no.5 alleging therein that the Principal was not competent to terminate the services of the opposite party no.5 without prior approval of the DIOS in view of the judgment dated 06.11.1997 passed in Writ Petition No.2098 of 1989 [Daya Shankar Tewari Vs. Principal, R.D.B.M. Uchchatar Madhyamik Vidyalaya, Neogaon, Mirzapur and others reported in 1998 (1) ESC 403 (Alld) (Annexure-CA-1 to the counter affidavit of opposite party no.5]. It was further alleged in the counter affidavit that the services of the opposite party no.5 was terminated without initiating any departmental proceedings and without prior approval of the DIOS as required under Regulation 31 of Chapter-III of the Act. The provisions of Regulations 31, 35 to 38 were also not complied with. It is also alleged in the counter affidavit that the termination order was never communicated to the petitioner. This order of termination was oral and Principal did not allowed to sign the attendance register, thereafter opposite party no.5 preferred an appeal in the light of Regulation 31, Chapter-III of the Act which was allowed by the Management holding therein that no termination order in writing was ever given to the petitioner and oral termination without conducting any departmental inquiry is in utter violation of principles of natural justice. The Principal inspite of intimation given by the Management and asking for the comment in the light of the appeal preferred by the opposite party no.5 did not respond and consequently set aside the order of oral termination and permit the opposite party no.5 to continue in service.

9. It has been contended by learned counsel for the petitioner that the appointment of the petitioner was made in accordance with law on a vacancy occurred after termination of the services of the opposite party no.5. His appointment was approved by the DIOS and without setting aside the approval, the DIOS cannot deprive the petitioner from payment of salary. It was further submitted by learned counsel for the petitioner that the appeal was preferred by the petitioner after lapse of about three years and the Management was exceeded in its jurisdiction to entertain this time barred appeal as the limitation to preferred the appeal is of only 30 days. Hence, the order passed by the Management Committee would be illegal. It was further submitted that the impugned order passed by the Deputy Director of Education has contained wrong fact. The petitioner drawn the attention of this Court towards the impugned order and submits that the Deputy Director of Education has wrongly mentioned in his order that Budhi Ram has been appointed by the Principal in violation of the order of the Management passed in appeal on 17.02.1992 and the DIOS also approved the appointment prior to decision of the appeal and it seems that the appointment of Budhi Ram and approval thereof was done on the basis of concealment of facts under the planed conspiracy because the Institution was coming in the list of grant-in-aid from 01.04.1991.

10. On these scores, it has been submitted that the appointment of the petitioner, cannot be said to be illegal and unless his approval is continuing, the petitioner is entitled to salary.

11. After hearing the parties following questions arise for deciding this petition:

(I) Whether any vacancy has been occurred for recruitment of the petitioner as alleged in the petition?

(II) Whether the appointment of the petitioner was validly made and was duly approved by the DIOS?

(III) Whether the impugned order passed by the Deputy Director of Education ( opposite party no.1) was in accordance with law and the petitioner was actually held to be not entitled for the salary in pursuance of the aforesaid order?

POINT NO.1

12. According to the petitioner, the vacancy against which he was appointed was occurred on account of termination of the services of opposite party no.5-Ram Kewal. It is not in dispute that no departmental inquiry was initiated against the opposite party no.5 for the alleged misconduct of absence. Opposite party no.5 was asked to resume his duties as stated in the petition by letters dated 08.09.1987, 25.12.1987, 25.03.1988 and 15.11.1988. It was incumbent upon the Principal that when opposite party no.5 did not return and resume his duty, he should direct to conduct an inquiry in the matter to ascertain whether his absence was wilful or not.

13. The wilful absence amounts to misconduct but mere absence from duty under compelling circumstances would not fall within the word 'mischief' as defined under the U.P. Government Servant Conduct Rules. The similar view has been propounded by the Apex Court in Krushnakant B. Parmar v. Union of India and another, (2012) 3 SCC 178. The relevant portion i.e. paragraphs 16, 17 and 18 of the aforesaid judgment are reproduced hereinbelow:

"16. In the case of appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion of duty and his behaviour was unbecoming of a Government servant. The question whether `unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.

17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.

18. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct."

14. It is also alleged by the opposite party no.5 that he has not been served with the order of termination by the Principal and simply the Principal did not allow him to sign on the attendance register and when this was persisted, he moved to the Committee of Management under Regulation 31 of Chapter III of the Act.

15. Regulation 31 of Chapter III of the Act is reproduced hereinbelow for ready reference:

"31. deZpkfj;ksa dks izkIr n.M] ftlds fy, fujh{kd vFkok eaMyh; fujh{kd dh iwoZ Loh--fr vko';d gksxh] fuEufyf[kr esa ls fdlh ,d #i esa gks ldrh gS&

¼d½ fo;qfä

¼[k½ i`FkDdj.k vFkok izeqfDr

¼x½ Js.kh esa voufr

¼?k½ ifjyfC/k;ksa esa deh

prqFkZ Js.kh deZpkfj;ksa dks miksDr dksbZ n.M nsus gsrq iz/kkukpk;Z vFkok iz/kkuk/;kid l{ke gksxkA l{ke vf/kdkjh }kjk n.M fn;s tkus dh n'kk esa prqFkZ Js.kh deZpkfj;ks }kjk izCka/k lfefr dks vihy dh tk ldsxhA ;g vihy n.M lwfpr fd;s tkus dh frfFk ls ,d ekg ds vUnj izLrqr gks tkuh pkfg;s vkSj ml ij izCka/k lfefr }kjk fu.kZ; dj vihy dh izkfIr dh frfFk ls vf/kdre 6 lIrkg ds Hkhrj ns fn;k tk;sxkA leLr vko';d vfHkys[kksa ij fopkj djus ,oa deZpkjhsa dh] ;fn og izCka/k lfefr ds le{k Lo;a mifLFkr gksuk pkgs] lquokbZ ds i'pkr~ izcU/k lfefr vihy ij fu.kZ; nsxhA

prqFkZ Js.kh deZpkjh dks ;g Hkh vf/kdkj gksxk fd mldh vihy ij fd;s x;s izca/k lfefr ds fu.kZ; ds fo:) og ftyk fo|ky; fujh{[email protected]; ckfydk fo|ky; fujhf{kdk dks] fu.kZ; lwfpr fd;s tkus dh frfFk ls ,d ekg ds vUnj vH;kosnu dj ldsxkA

fdUrq izfrCkU/k ;g gksxk fd ;fn izCkU/k lfefr mi;qDr fu/kkZfjr N% lIrkg dh vof/k ds Hkhrj viuk fu.kZ; mijksDr vihy ij u ns rks lEcfU/kr deZpkjh viuk vH;kosnu lh/ks ftyk fo|ky; fujh{[email protected]; ckfydk fo|ky; fujh{kdk dks mijksDr N% lIrkg dh vof/k chr tkus ij ns ldrk gSA

ftyk fo|ky; fujh{[email protected]; ckfydk fo|ky; fujhf{kdk }kjk mijksDr vH;kosnu ij vH;kosnu dh izkfIr dh frfFk ls vf/kdre rhu ekg ds Hkhrj fu.kZ; ns fn;k tk;sxk vkSj ;g fu.kZ; vfUre gksxkA

vH;kosnu ds izLrqrhdj.k fopkj ,ao fu.kZ; ds lEcU/k esa vko';d ifjoZru ds lkFk bl v/;k; ds fofu;e 86 ls 98 ykxw gksaxsA"

16. Regulation 31 provides that punishment of termination, dismissal, reversion or reduction in emoluments of the employees could not be inflected unless DIOS or Regional Inspector has not granted prior approval to the punishment. It further provides that in case of Class-IV employee, the aforesaid punishments or any one of them would be inflicted by the Principal or the Head Master of the school and in case any punishment is awarded by the Principal against Class-IV employee, he would be entitled to prefer an appeal to the Management within one month from the date of his information of imposing penalty. It has been vehemently argued on behalf of the petitioner's counsel that in this case, the appeal had preferred after two years and ten months instead of 30 days without seeking any condonation of delay. Thus the question arises that whether the opposite party no.5 was ever communicated about the alleged termination order in writing or not?

17. It is interesting that the Principal did not file any counter affidavit. Whatever correspondence has been filed along with the writ petition is in between the Principal and the DIOS and the same has been brought on record by the petitioner himself. How he get the correspondence has not been disclosed in his affidavit. Along with writ petition a photostat copy of termination order dated 27.05.1989 (Annexure-2 to the writ petition) of opposite party no.5 has been filed which has been shown to be sent to the DIOS and the Manager of the institution on the same day, but nothing has been brought on record to show that this letter was ever served upon the opposite party no.5-Ram Kewal. The Principal though engaged a lawyer but did not participate in proceedings for the reasons best known to him. In counter affidavit filed on behalf of opposite party no.5, it has been categorically stated that no notice was ever served to him against termination and he was not permitted to sign on the attendance register by the Principal. No rejoinder affidavit has been filed by the petitioner controverting the aforesaid part and also of service of alleged termination order. Admittedly no approval has been sought against the termination of opposite party no.5 by the Principal.

18. It has been submitted by learned counsel for the petitioner that so far as Class-IV employee is concerned, there is no need to take prior approval of termination of services by the Principal from DIOS. On the contrary, learned counsel for the opposite party no.5 relying upon the judgment of this Court in the case of Daya Shankar Tewari (supra) submitted that Regulation 31 framed under Section 13-G (3) of the Act is equally applicable for Class-IV employees regarding termination from the services. The paragraphs 11 and 12 of the aforesaid judgment is quoted hereinbelow:

11. A perusal of Regulations 36 and 37 of the said Regulations indicate that they provide for procedure in respect of disciplinary proceeding. Proviso to Regulation 37 only excludes Class-IV employees to the extent the said Regulation 37 requires sending of the report and the recommendation to the District Inspector of Schools for approval making it clear that the said entire proceedings relating to Class-IV employees are to be performed by the appointing authority. This has been done as in respect of Class-IV employees the appointing authority is the Principal whereas in respect of teachers the appointing authority is committee of management and Regulation 37 provides for sending of report and recommendation of the Enquiry Officer to the committee of management which was to consider the same and take a decision and then to send the entire record to the Inspector for his approval. Therefore, proviso to Regulation 37 was required making it clear that for Class-IV employees ending of papers to the Inspector was to be made by the Principal, being the appointing authority and in this case papers were not to be sent by the committee of management which is not the appointing authority.

12. In view of the aforesaid law and when the respondents in their counter affidavit have admitted that no approval was obtained as not required as the petitioner was a Class-IV employee, the writ petition succeeds and the impugned order could not made effective in the absence of prior approval of the Inspector.

19. Regulation 37 of the Act is quoted hereinbelow for ready reference:

"37. takp&vf/kdkjh ls dk;Zokgh dh vk[;k rFkk laaLrqfr izkIr gksus ds ckn 'kh?kz gh deZpkjh dks uksfVl nsus ds ckn izcaU/k lfefr dh cSBd dk;Zokgh dh vk[;k rFkk laLrqfr ij fopkj djus ds fy, gksxh vkSj ml ekeys ij fu.kZ; ysxhA deZpkjh dks] ;fn og pkgrk gS lfefr ds le{k Lo;a mifLFkr gksus dh vkKk nh tk;sxh ftlls og viuk vfHk;ksx izLrqr dj lds vkSj cSBd esa mifLFkr fdlh lnL; }kjk iwNs x;s fdlh iz'u dk mRrj ns ldsA rc lfefr iw.kZ vk[;k] leLr lEcf/kr dkxt&i= lfgr fujh{kd vFkok e.Myh; fujhf{kdk dks mlds }kjk izLrkfor dk;Zokgh dks Lohd`r gsrq izsf"kr djsxhA

fdUrq] prqFkZ Js.kh ds deZpkfj;ksa ds lEcU/k esa fujh{kd&fujhf{kdk dks Lohd`fr gsrq dksbZ vk[;k ugh Hksth tk;sxhA buds lEcU/k esa mijksDr lkjh dk;Zokgh fu;qfDr izkf/kdkjh }kjk dh tk;sxhA"

20. It provides the procedure of inquiry and it also provides that the Enquiry Officer will submit his report along with his recommendation after giving notice to the employee before the Management Committee for consideration. In this process, if the employee wants for personal hearing before the Management Committee then he shall be allowed to appear before the Committee. Thereafter, after considering the recommendation of the Enquiry Officer, the Management Committee submit a report along with all related documents for approval but there is an exception to this Rule that in case of Class-IV employee no report will be submitted to Inspector and all the action will be taken by the appointing authority. The spirit of Regulation 37 is that it being the part of procedure of conducting departmental inquiry so the departmental inquiry must be conducted in accordance with Regulations contained in Chapter III of the Act. Here in this case admittedly no inquiry was conducted. The benefit of exception of Regulation 37 cannot be taken in a way that no departmental inquiry is needed for termination of services of Class-IV employee. This exception provides that recommendation of Enquiry Officer need not be placed before Management Committee but decision has to be taken by Principal alone. This further proves that in case of punishment, right to appeal has been given to employee to prefer it before Management Committee.

21. Moreover, in view of the judgment rendered in the case of Daya Shankar Tewari (supra), it is clear that before awarding the major penalty approval of the Inspector is mandatory as is evident from the conjoint reading of Regulations 31 and 37. If the Regulations are taken into consideration after reading the same together, I am of the view that prior approval before awarding the major penalty even in case of Class-IV employee would be mandatory though the procedure as required in Regulation 37 to process the report to an Inspector through the Management is not necessary. Hence in this case, there is no valid termination for want of prior approval of termination of the opposite party no.5. In similar circumstances in Shiv Chand Vs. State of U.P. And others, 2010 (1) ESMC 585, this Court held that order of removal deserves to be set aside.

22. Moreover, there is nothing on record that termination order was ever communicated to the opposite party no.5 hence it cannot be said that the appeal preferred by opposite party no.5 was time barred. Admittedly the appeal was allowed and termination order was set aside and now opposite party no.5 is occupying the post in pursuance of the order which has been approved by the Deputy Director of Education, hence it cannot be said that Management Committee has committed any error in allowing the appeal of opposite party no.5.

23. In the absence of prior approval of the termination of the opposite party no.5 and also in the absence of an inquiry before termination of services of the opposite party no.5, the net consequence would be that there shall be no vacancy subject to direct recruitment.

24. In this regard Regulations 103 to 106 are also very important. It provides that before making any direct recruitment on any post, it is necessary to ensure that no application of any dependant of an deceased employee, under Dying in harness Rules, is pending. That mandatory clause has also not been observed while advertising the vacancy by means of direct recruitment for the alleged post against which the petitioner was appointed as has been held in Rajesh Kumar Mishra vs. Stateof U.P. Others, 2013 (1) ADJ 401 (LB). The relevant paragraphs no.20 to 25 of aforesaid judgment are quoted hereinunder:

"(20) It was further submitted by the learned Standing Counsel that issuing the appointment letter and permitting the joining of the petitioner without approval is contrary to the provisions contained in regulation 101 as explained by the Division Bench of this court in Jagdish Singh's case (Supra). On these grounds the learned Standing Counsel submits that this petition has no merit and deserves to be dismissed with cost.

(21) After considering the submissions made at bar it is necessary to reproduced the relevant regulation of Chapter III framed under Section 16(6) of the Act which are in operation after the amendment of 1992. The Regulations 101, 102, 103 and 104 are reproduced hereinbelow :-

" 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 recognized, 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 than eighteen years in age, can be appointed on the post of teacher in trained 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 Ist 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."

(22) Words 'prior approval' used in regulation 101 has been explained in Jagdish Singh's case. The Division Bench while explaining the same in Para 20, 21 and 22 has observed that the prior approval by the District Inspector of School is required after completion of the process of selection and before issuance of the appointment letter to the selected candidate. Para 20, 21 and 22 of Judgment of Jagdish Singh's case (Supra) are reproduced herein below:-

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.

(23) Admittedly, the letter part of mandate of Jagdish Singh's case (Supra) has not been observed by the Principal of the School. He issued appointment letter and permitted to join the petitioner in the school without prior approval of the DIOS.

(24) So far as the earlier part of this exercise conducted by the Principal is concerned, in the opinion of this court the Principal was not competent to initiate the process of direct recruitment to fill up the vacancy occurred on account of retirement of Rameshwar Prasad in the cadre of Class IV unless all the matters relating to compassionate appointment are not disposed of. In such situation if there was some emergency or any compelling circumstances for making immediate appointment then the Principal or management of School was under statutory obligation to present a case before DIOS and to seek permission to fill up the vacancy by direct recruitment after suspending the process of making compassionate appointment on the vacant post, which admittedly has not been done by the Principal or the management of the School.

(25) From perusal of the regulations from 101 to 107 there is a scheme and there exists a legislative intent behind it. It leaves no room to doubt that until the applications of the persons waiting for compassionate appointment are finally disposed of , the appointing authority should not proceed to make direct recruitment on the vacant post. If it was necessary in the interest of the institution to make immediate appointment the appointing authority, i.e., Principal must place the reasons in writing before District Inspector of School and must seek prior permission to make direct recruitment on the vacant post."

25. Hence in view of the above, there is no hesitation in holding that there was no legal vacancy occurred or was available for appointment of the petitioner.

POINT NO.2

26. In this case, the alleged vacancy is stated to have been occurred on account of termination of opposite party no.5 and was filled up by direct recruitment though in the light of discussion made under point no.1, there was no legal vacancy available for appointment of the petitioner through direct recruitment. Even if, it is taken for the sake of argument that any vacancy occurred on account of termination of services of opposite party no.5, it was mandatory to observe that the Regulations 103 to 106 of Chapter III of the Act which requires that Principal has to ensure before making any appointment by direct recruitment, that no application of any heirs of deceased employee was pending for compassionate appointment. There is no such report on record. Moreover, how and when the vacancy was published and whether it was published in two newspapers as required under the Regulations is also not on record.

27. Regulation 101 requires prior approval for filling up the vacancy. Regulation 102 requires that seven days prior intimation shall be sent to the Inspector in case the vacancy occurred due to resignation or any other reason. Nothing has been brought on record that on which date, advertisement was made or on which date, examination or selection was held or on which date, the result was published.

28. Before parting with this case, it is necessary to mention here that in this case, the order of Management allowing the appeal of opposite party no.5 has not been assailed by the petitioner.

29. From the perusal of the records, it reveals that everything has conducted on 30.03.1991 and appointment letter was issued to the petitioner on 31.03.1991 a day before the inclusion of the Institution in the list of grant-in-aid.

POINT NO.3

30. In view of discussions made hereinabove under Point Nos.1 and 2, it cannot be said that this appointment was fair enough or was done by conducting all the necessary formalities required under the law and the finding arrived at by the DIOS in pursuance of an order passed by Deputy Director of Education cannot be said to be illegal or against the law.

31. It has been contended by learned counsel for the petitioner that the impugned order contains wrong fact. I have gone through the impugned order passed by the Deputy Director of Education, it appears that the appeal was preferred by the opposite party no.5 and the same was decided after issuance of the appointment letter to the petitioner. The Deputy Director of Education as said in his order that Principal must have await the decision of appeal, it might be some misdescription but I go through the entire order, it cannot be doubted that the impugned order does not suffer from any extraneous consideration. The manner in which the services of opposite party no.5 was said to have been terminated and the manner in which the appointment was made so hurriedly of the petitioner leaves no room to doubt that whole exercise has been done by the Principal in connivance with the petitioner to induct his name in the list of the employees of the Institution before inclusion of the name of the Institution in grant-in-aid list.

32. In view of above, I am of the view this this petition lacks merit and is accordingly dismissed.

Order Date :- 09.10.2013

akverma