Mahesh Kumar Tiwari vs State Of U.P. And Others
2018 Latest Caselaw 1866 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 28              				A.F.R.	
 

 
Case :- WRIT - A No. - 9899 of 2006
 
Petitioner :- Mahesh Kumar Tiwari
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Arvind Srivastava,Tripurari Sharan Shukla
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ajay Bhanot,J.

1. The petitioner claims to have been appointed as Class IV employee in the Nehru Uchchatar Madhyamik Vidyalaya Pipiganj, District Gorakhpur. The claim of the petitioner for grant of wages under the U.P. High School and Intermediate Education Colleges (Payment of Salaries of Teaching and other Employees Act), 1971 has been refused by the order dated 21.3.2005 passed by the D.I.O.S., Gorakhpur.

2. The petitioner is aggrieved by the order dated 21.03.2005 declining to make the payment of salary to the petitioner from the State exchequer under the U.P. High School and Intermediate Education Colleges (Payment of Salaries of Teaching and other Employees Act), 1971 and has assailed the same in the instant writ petition.

3. Heard Sri Krishna Kumar Ojha, learned counsel, holding brief of Sri Arvind Srivastava, learned counsel for the petitioner and learned Standing Counsel for the State.

4. The claim of the petitioner for approval of his appointment and grant of salary under the U.P. High School and Intermediate Education Colleges (Payment of Salaries of Teaching and other Employees Act), 1971 has been invalidated primarily on two grounds on the date of his appointment on 3.8.1991. On the date of his appointment, there was no sanctioned post against which the petitioner could be appointed. The order impugned dated 21.3.2005, further asserts that there are seven sanctioned posts of Class IV employees in the aforesaid institutions. There was no vacancy on any of the aforesaid sanctioned posts. The appointees against the sanctioned posts are working and are being paid salary under the Act, 1971 from the State Exchequer. The appointment of the petitioner by order dated 3.8.1991 by the Principal of the said institution was not against a sanctioned post. In the absence of a sanctioned post the burden of salary of such individuals cannot be borne by the State Exchequer. The responsibility to pay such employees who are not working against the sanctioned posts does not rest with the State Govt.

5. The law has firmly sets its face against making appointments without duly sanctioned posts. Making appointments in the excess of sanctioned posts duly sanctioned by the competent authority is the pale of public administration in India. It is a drain on public exchequer. The Hon'ble Supreme Court while considering the issue of the illegality and the consequences of making appointments without the existence of sanctioned posts, in the case of Himachal Road Transport Corporation Vs. Dinesh Kumar and Ors. reported at 1996 (4) SCC 560 :: 1996(2) LLJ 760 SC held thus:-

8. We are of the view that the Himachal Pradesh Administrative Tribunal acted illegally and without jurisdiction in passing the orders dated 27.3.1995 and 6.3.1995 and in directing that the respondents be appointed in the regular clerical posts forthwith. In the absence of a vacancy it is not open to the Corporation to appoint a person to any post. It will be a gross abuse of the powers of a public authority to appoint persons when vacancies are not available. If persons are so appointed and paid salaries, it will be a mere misuse of public funds, which is totally unauthorised. Normally, even if the Tribunal finds that a person is qualified to be appointed to a post under the kith and kin policy, the Tribunal should only give a direction to the appropriate authority to consider the case of the particular applicant, in the light of the relevant rules and subject to the availability of the post. It is not open to the Tribunal either to direct the appointment of any person to a post or direct the concerned authorities to create a supernumerary post and then appoint a person to such a post. We are of the view that directions given by the Administrative Tribunal, in these two appeals, are totally unauthorised and illegal. We are, therefore, constrained to set aside the orders appealed against. We hereby do so and allow the appeals. There shall be no order as to costs.

9. Before concluding, we should record the factual position conceded by the counsel appearing for the Corporation. It is stated that Shri Dinesh Kumar is serial number 16 in the priority list for regular appointment as clerk and that Ms. Parveen Kumari is serial number 10 for appointment in the waiting panel for the post of clerk on contract basis. As and when vacancies arise for appointment to such posts, the Corporation shall conform to the priorities mentioned hereinabove in the matter of filling up the posts, subject to the fulfillment of necessary qualifications by the candidates concerned."

6. There is another infirmity which goes to the root of the appointment of the petitioner. The appointment of the petitioner was made without seeking prior approval of the D.I.O.S. as contemplated under Regulation 101 of chapter III of the Regulations framed under the Intermediate Education Act, 1921.

7. Prior approval of District Inspector of Schools under Regulation 101 before making any appointment is a pre-requisite condition for a valid appointment. The prior approval is mandatory. Failure to obtain a prior approval before making any appointment against a Class IV post, would render the appointments null and void. An authority in point, which reflects the settled position of law, was in the case of Jagdish Singh, Etc. Vs. State of U.P. and others, Etc. reported at 2006 (4) ADJ 162 (All)(DB). The relevant portions of the judgment are extracted hereunder:

"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] fujh{kd ds iwokZuqeksnu ds flok; fdlh ekU;rkizkIr] lgk;rkizkIr laLFkk ds f'k{k.ksRrj LVkQ dh fdlh fjfDr dks ugh Hkjsxk %

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 recognized aided institution whereas second part of the Regulation provides that permission for filling of post of sweeper (Jamadar) can be given by Inspector. Second part of the Regulation is in the nature of proviso. The main part of the Regulation contains word 'iwokZuqeksnu' i.e. Prior approval whereas second part of the Regulation uses word 'vuqefr' i.e. permission. Thus, the Statute uses both the word "prior approval" and 'permission'. The meaning of both the word cannot be the same. In view of this, the submission of the learned counsel for the appellant that Regulation 101 requires only permission to issue advertisement by appointing authority and if such permission is granted by Inspector, the appointing authority can fill up the post. Regulation 101 provides prior approval with regard to vacancy of non-teaching staff and permission is contemplated only for filling the post of sweeper. Regulation thus indicates that when the permission is given to the appointing authority to fill up post of sweeper. There is no further prior approval is required. This provision being in nature of proviso to the main Regulation shall operate as an inception to the first part of Regulation. Thus, the use of two words in Regulation 101 i.e. 'prior approval' and 'permission' itself negates construction of Regulation as contended by the counsel for the appellant.

19. When the prior approval of the Inspector is contemplated in Regulation 101, that prior approval embraces itself an examination of all aspects of the matter including existence of the vacancy, nature of the vacancy whether vacancy is to be filled up by management or it be filled by appointing the dependent of deceased employee who has claimed for appointment under the scheme of the Regulations 101 to 107.

20. Scheme of Regulations 101 to 107 makes it clear that after receiving an intimation of vacancy, the District Inspector of Schools is empowered to send the application of member of deceased employee, who is entitled for compassionate appointment to the institution, who has to issue appointment letter to such candidate. It is, however, implied in the scheme that in the event there is no candidate entitled for compassionate appointment to fill a particular vacancy, the intimation of which has been received by the District Inspector of Schools, the District Inspector of Schools can direct the appointing authority to fill up vacancy by direct recruitment but even in a case the selection is made by direct recruitment by the Principal/committee of management, prior approval is required of the District Inspector of Schools before issuing an appointment letter to the selected candidate. Without prior approval of the Inspector, the Principal or the committee of management cannot issue an appointment letter or permit joining of any candidate. The requirement of prior approval in Regulation 101 is a condition precedent before issuing an appointment letter and is mandatory. The observation of the learned single judge in the case of Dingur v. District Inspector of Schools, Mirzapur (supra) as quoted above, is also to the effect that approval has to be considered by the District Inspector of Schools after examining the proceeding relating to appointment and after examining as to whether prescribed procedure in a fair manner has been followed or not.

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."

8. The law laid down by this Court in the case of Jagdish Singh (supra) would guide the fate of this case as well. In this case no approval was obtained from the D.I.O.S., before the appointment letter was issued to the petitioner.

9. The counter affidavit has essentially reiterated the contents of the impugned order. Nothing has been pointed by the learned counsel for the petitioner from the pleadings or the record to disturb the findings in the order impugned.

10. In the light of the aforesaid discussion the appointment of the petitioner is vitiated from the root. The defects in the appointments of petitioner are not curable. There is no infirmity in the order assailed in the writ petition.

11. The writ petition is dismissed.

Order Date :- 7.8.2018

Pramod