Sri Krishna vs Joint Director Of Education And 4 ...
2019 Latest Caselaw 532 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

											A.F.R.
 

 

 
Court No. - 29
 

 
Case :- SPECIAL APPEAL No. - 159 of 2019
 

 
Appellant :- Sri Krishna
 
Respondent :- Joint Director Of Education And 4 Others
 
Counsel for Appellant :- Rahul Jain
 
Counsel for Respondent :- C.S.C.,Prashant Kumar Singh
 

 
Hon'ble Pankaj Mithal,J.

Hon'ble Saumitra Dayal Singh,J.

Heard Sri Rahul Jain, learned counsel for the petitioner-appellant, learned Standing Counsel for the respondents No. 1, 2 & 5 and Sri Achal Vats, holding brief of Sri Prashant Kumar Singh, learned counsel for the respondents No. 3 and 4.

The appeal has been preferred by the petitioner-appellant against the dismissal of his writ petition for direction to pay his salary as a Class-IV employee of the Institution Ram Prasad Sarvajanik Inter College, Rura Kanpur Dehat (hereinafter referred to as "College").

The aforesaid College is recognised and is governed by the provisions of the U.P. Intermediate Education Act, 1921 (hereinafter referred to as an Act) It receives grant-in-aid from the State Government for payment of salary to its teachers and staff in accordance with the provisions of U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 (hereinafter referred to as Payment of Salaries Act).

Two posts of Class-IV employees at the College fell vacant on 30.07.1997 and 07.07.1999 respectively. The Principal after seeking permission to fill up the said post issued notice on 05.02.2001 inviting applications. The selection was held on 25.02.2001 and on its basis the petitioner-appellant was appointed vide order dated 26.02.2001 with the clear stipulation that his selection is subject to the approval of the District Inspector of Schools (hereinafter referred to as "DIOS") and that he would be paid salary from the date of approval. In pursuance thereof the petitioner-appellant joined on 01.03.2001. The DIOS accorded approval to his appointment vide order dated 27.03.2001.

The Joint Director of Education vide order dated 31.05.2001 directed the DIOS not to pay the salary of the petitioner-appellant unless a decision with regard to his appointment is taken by the Regional Level Committee in view of the Government Order dated 19.12.2000. Thus, the DIOS vide order dated 11.06.2001 stopped the payment of the salary of the petitioner-appellant.

It is on the aforesaid facts and circumstances that the petitioner-appellant invoked the writ jurisdiction of this court for the payment of his salary as a Class-IV employee w.e.f. 01.06.2001 and for the quashing of the orders of the DIOS dated 11.06.2001 and that of Joint Direction of Education dated 31.05.2001.

The learned Single Judge ignoring orders of the DIOS and the Joint Director of Education by the impugned order held that as the appointment of the petitioner-appellant was in clear violation of the statutory provisions, it is a nullity and as such he is not entitled to any salary.

The orders of the DIOS and the Regional Level Committee in the above legal position were held to be of no consequence. The appointment was held to be a nullity as it was made without the prior approval of the DIOS as contemplated vide Regulation 101 of the Regulations framed under the Act.

Sri Rahul Jain, learned counsel for the petitioner-appellant submits that as the selection/appointment of the petitioner-appellant was subsequently approved by the DIOS, he would acquire the status of a Class-IV employee from the date of the approval.

The decisions relied upon by the learned Single Judge in holding the appointment to be nullity do not apply as in those cases the appointments were made without the approval and there was no approval to the selection/appointment even subsequently whereas in the case of the petitioner-appellant approval has been granted subsequently by the DIOS meaning thereby that there was no defect in the procedure of selection/appointment of the petitioner-appellant

The respondents on the other hand contend that Regulation 101 of Chapter III of the Regulations mandates for the prior approval of the DIOS before the appointment of a Class-IV employee at the Institution and any infringement therein would vitiate the appointment. Since the appointment of the petitioner-appellant was made before the approval, it is a nullity and the petitioner-appellant is not entitled to any salary. The illegality in appointment cannot be cured by the subsequent approval.

The appointments of the non-teaching staff of a recognised college receiving grant-in-aid are governed by the Regulations framed under the Act.

Regulation 101 of Chapter-III of the said Regulations as it stood at the relevant time or prior to the amendment on 13.12.2009 was as under:-

Þ101 fu;qfDr izkf/kdkjh] fujh{kd ds iwokZuqeksnu ds flok; fdlh ekU;rkizkIr] lgk;rk izkIr laLFkk ds f'k{k.ksRrj LVkQ esa fdlh fjfDr dks ugha Hkjsxka

izfrcU/k ;g gS fd teknkj ds in dh fjfDr dks fujh{kd -kjk Hkjus dh vuqefr nh tk ldrh gSAß

The English translation of the above Regulation is as under:-

"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."

A bare reading of the aforesaid Regulation makes it as clear as crystal that no appointment of a Class-IV employee at the College can be made by the appointing authority before the prior approval of the DIOS. The aforesaid Regulation does not give rise to any ambiguity and is couched in a language which is of mandatory nature.

It is pertinent to mention that even after the amendment of the aforesaid Regulation in the year 2009 the condition of the prior approval of the DIOS in making the appointment on a Class-IV post continues to remain as it existed earlier. The amended Regulation 101 is also reproduced hereinbelow:-

Þ101 fu;qfDr izkf/kdkjh] fujh{kd ds iwokZuqeksnu ds flok; fdlh ekU;rkizkIr] lgk;rk izkIr laLFkk ds f'k{k.ksRrj in dh fjfDr dks ugha HkjsxkA izfrcU/k ;g gS fd ftyk fo|ky; fujh{kd leLr fjfDr;ksa dh la[;k f'k{kk funs'kd] ek/;fed dks miyC/k djk;sxk rFkk laLFkk esa Nk= la[;k n'kkZrs gq;s inksa dks Hkjs tkus ds vkSfpR; dks Hkh Li"V djsaxsA f'k{kk funs'kd ek/;fed ls vkns'k izkIr gksus ij ftyk fo|ky; fujh{kd mDr fjfDr;ksa dks Hkjus gsrq fu;qfDr izkf/kdkjh dks vuqefr iznku djsxk vkSj vuqefr iznku djrs le; 'kklu -kjk fu/kkZfjr vkj{k.k fu;eksa ,oa inksa ds vkSfpR; ds fy;s fu/kkZfjr ekudksa dk ikyu djk;sxkAß

izfrcU/k ;g gS fd teknkj ds in dh fjfDr dks fujh{kd -kjk Hkjus dh vuqefr nh tk ldrh gSAß

In the case at hand the selection for the purposes of appointment on Class-IV post at the College was made on 25.02.2001 and the petitioner-appellant was appointed on 26.02.2001 without obtaining the approval of the DIOS. The approval to his selection was granted only on 27.03.2001 by the DIOS.

It is well settled principle of law that a thing which is required to be done in a particular manner by the Statute has to be done in the said manner and in no other way. Therefore, as the Regulation herein provides for the appointment of Class-IV employee only after the prior approval of the DIOS, the Principal/Manager of the Committee of Management could not have appointed the petitioner-appellant without taking the prior approval of the DIOS.

The aforesaid Regulation 101 was the subject matter of consideration by a Division Bench of this court in Jagdish Dildar Singh1.

The Division Bench on consideration of the meaning of the word " iwokZuqeksnuß i.e. prior approval used in Regulation 101 opined that requirement of prior approval of the DIOS as contemplated in Regulation 101 is a condition precedent before issuing an appointment letter and is mandatory in nature. It further observed that such approval by the DIOS is to be granted after the completion of the process of selection but before the issuance of the appointment letter to the selected candidate.

In other words there can be no valid appointment unless on the completion of selection process approval is granted by the DIOS.

In Arya Kanya Pathshala2 the court was dealing with the matter of appointment of a teacher of a College in reference to Section 16-F(1) of the Act which also provided for the selection of the teacher to be approved by the DIOS. The court held a person cannot be appointed as a teacher unless it is approved by the DIOS. The approval of the DIOS must be accorded before making the appointment.

Sri Rahul Jain, cited the case of Prabhu Narain Singh3 to contend that the appointed person gets the status of the post to which he is appointed on the grant of approval even if it is subsequent in time.

In the aforesaid case the selected candidate had started working as a teacher even before approval was accorded by the DIOS. Subsequently, approval was granted. The Court considering the provisions of Section 16-F of the Act held that the selected candidate would not enjoy the status of a teacher without the approval of the DIOS but once the approval is accorded he would get the status of a teacher. The case of the Arya Kanya Pathshala (Supra) was distinguished as in the said case there was no approval at all.

The aforesaid decision was rendered in the light of provisions of Section 16-F of the Act in the context of the appointment of a teacher of the College. It was not concerning the Class-IV employee of the College. The provisions in respect both of them are quiet distinct.

The relevant part of Section 16-F(1) of the Act reads as under:-

"....no person shall be appointed as a Principal, Headmaster or Teacher of any recognised Institution unless he-"

(1) possesses the prescribed qualification and has been exempted under Sub-section(1) of Section 16-E:

(2) has been recommended by the selection committee constituted under Sub-section (2) or

(3) as the case may be of the said section, and approved in the case of Principal or Headmaster by the Regional Deputy Director of Education and in case of a teacher by the Inspector...."

The Sub-section (3) of Section 16-F of the Act, 1921 stipulates that no person shall be appointed as a Teacher of any recognised college unless he possesses the prescribed qualification, has been recommended by the Selection Committee and his selection is approved by the DIOS. The aforesaid provision speaks not about prior approval but simply approval. The language of the aforesaid provisions contemplates approval of DIOS without the use of the specific words requiring prior approval.

It is in context with the aforesaid requirement of approval to the selection that the court in the aforesaid decision of Prabhu Narain Singh (Supra) held that the person selected/appointed or is working gets the status of a teacher as soon as approval is granted to his selection/appointment.

In view of the aforesaid distinction between the language of the two provisions, the aforesaid decision has no application to the facts and circumstances of the present case when the precedent of Jagdish Dildar Singh (Supra) which is directly concerning Regulation 101 is available.

Similarly, is the position with the decision in the case of Lalit Mohan Misra and another4. It also relates to the appointment of a Teacher of a recognised college in context with Section 16-F of the Act. Therefore, the ratio of that decision that appointment of a person as a Teacher is effective from the date the approval is granted to the appointment by the DIOS is also of no value for the present case.

Sri Rahul Jain has placed reliance upon one another decision of the court in the case of Ashika Prasad Shukla5. This was a case of appointment of a Teacher under the Second Removal of Difficulties Order wherein paragraph 2 (3) (iv) of the said order had come up for consideration. The relevant part of the aforesaid order which is germane for our purpose as under:-

"2(3)(i) The Management shall intimate the vacancies to the District Inspector of Schools and shall also immediately notify the same on the notice-board of the institution, requiring the candidates to apply to the Manager of the institution along with the particulars given in Appendix 'B' to this order. The selection shall be made on the basis of quality point marks specified in the Appendix to the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, issued with Notification No. Ma-1993/XV-7-1(7)-1981. The compilation of quality point marks shall be done under the personal supervision of the head of the institution.

(ii) The names and particulars of the candidate selected and also of other candidates and the quality point marks allowed to them shall be forwarded by the Manager to the District Inspector of Schools for his prior approval.

(iii) The District Inspector of Schools shall communicate his decision within seven days of the date of receipt of particulars by him failing which the Inspector will be deemed to have given his approval.

(iv) On receipt of the approval of the District Inspector of Schools or as the case may be, on his failure, to communicate his decision within seven days of the receipt of papers by him from the Manager, the Management shall appoint the selected candidate and an order of appointment shall be issued under the signature of the Manager.

Explanation--For the purpose of this paragraph--

(i)..........................................................

(ii)...........................................................

(iii) short-term vacancy shall mean a vacancy which is not substantive and is of a limited duration.

A reading of the aforesaid provisions would reveal that it provides for the procedure to be followed for making appointment on short-term vacancy and that after the candidate is selected papers are to be forwarded to the DIOS for his prior approval.

In the event the DIOS grants approval or fails to communicate it decision within 7 days, it will be deemed that the approval has been granted and the Manager/Management can appoint the selected candidate.

The Court placing reliance upon Lalit Mohan Misra (Supra) held that no doubt the use of the words "prior approval" leads to a inescapable conclusion that the appointment of a Teacher would be made only on the communication of the approval of the DIOS or deemed approval, if the approval is granted even subsequently appointment would become effective from the date of such approval as has been held in Lalit Mohan Misra (Supra) case.

The aforesaid decision apparently fails to consider the fact that the case of Lalit Mohan Misra (Supra) was decided in context with the different provision i.e. Section 16-F of the Act which provides only for the approval and not specifically of prior approval before the appointments.

In view of the aforesaid, the above decisions are not the ones which concern the use of the words "prior approval" as used in Regulation 101 of the Regulations as interpreted by the Division Bench in Jagdish Dildar Singh (Supra) rather are in respect of different provisions where the language used is different, and as such are of no benefit to the petitioner-appellant.

Lastly, there is a decision of the Supreme Court in Kunda Motiram Bodalkar6. The said decision relates to appointment of a Headmistress of a High-School, who was appointed without obtaining the prior permission of the Competent Authority but later on the appointment was approved. Thus, the court without referring to any of the provision of law under which the appointment was made and without making any interpretation of the term 'prior approval' and without examining its effect held that as the Headmistress was working and the appointment had been approved subsequently, the High Court fell in error in setting aside her appointment.

The aforesaid decision in no manner lays down any binding precedent of law which may help the petitioner-appellant.

In view of the aforesaid facts and circumstances, the opinion expressed by the writ court that as the appointment of the petitioner-appellant was de hors the statutory provision without any prior approval, it is nullity as has been held in the case of Union of India & another7 is not at all incorrect or illegal.

Accordingly, no mandamus could have been issued in favour of the petitioner-appellant for the payment of salary. In our opinion the writ petition has rightly been dismissed.

The appeal as such is devoid of merit and stands dismissed with no order as to costs.

Order Date :- 6.3.2019

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