Deepak Kumar Singh vs State Of U.P. Through Prin. Secy. ...
2019 Latest Caselaw 3972 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

	AFR
 
Judgment Reserved on:- 08.04.2019 
 
	      Judgment Delivered on:-  02.05.2019
 
	Court No. - 20
 
Case :- SERVICE SINGLE No. - 932 of 2012
 
Petitioner :- Deepak Kumar Singh
 
Respondent :- State Of U.P. Through Principal Secretary, Department Of Education, Lucknow & Others.
 
Counsel for Petitioner :- Rakesh Kumar Srivastava,Smt. Seema Srivastava
 
Counsel for Respondent :- C.S.C.,D.P.S. Chauhan
 

 
Hon'ble Abdul Moin,J.

1. Heard learned counsel for the petitioner, learned Standing counsel appearing on behalf of the respondent no. 1 to 5 and Sri D.P.Singh, learned counsel appearing for the respondent no. 6.

2. Supplementary affidavit filed today is taken on record.

3. By means of the present petition, the petitioner has prayed for the following reliefs:-

"(i) Issue a writ, order or direction in the nature of Certiorari quashing the impugned order dated 26.11.2011 passed by the opposite party no. 3.as contained as Annexure no. 2 to the writ petition.

(ii) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to pay or to cause to pay salary to the petitioner admissible for the post held by him in accordance of law including its arrears in pursuance of the appointment order dated 30.05.2008.

(iii) Issue such other writ, order or direction which may be deeded just and warranted on the facts and circumstances of the Case in favour of the petitioner.

(iv) Award cost of the writ petition in favour of the petitioner against the opposite parties."

4. The case set forth by the petitioner is that there is an institution by the name of B.G.R.M Inter College, Bilgram, District-Hardoi (hereinafter referred to as "Institution") which is recognized and aided Intermediate College governed by the provisions of Intermediate Education Act, 1921 (hereinafter referred to as "Act, 1921"). One Sri V.P. Singh who was working on the post of Head Clerk in the institution retired on 31.01.2005. The Manager of the institution directed the senior most Assistant Clerk namely Sri Virendra Kumar Maurya to take charge of the post of Head Clerk through an order dated 01.02.2005 in pursuance to which Sri Maurya joined and started discharging his duties on the post of Head Clerk. Thereafter, through resolution dated 12.06.2008 passed by the respondent no. 6 i.e Management, Sri Maurya was granted promotion to the post of Head Clerk with retrospective effect i.e from the date of retirement of Sri V.P.Singh. The said resolution was duly approved by the District Inspector of Schools, Hardoi (hereinafter referred to as "DIOS") through an order dated 31.07.2008, a copy of which has been filed as annexure 6 to the writ petition. It is contended that as there was a resultant vacancy on account of Sri Maurya having been promoted as Head Clerk on 01.02.2005 and there was difficulty being experienced by the institution, consequently the institution sent several letters to the DIOS seeking prior permission for making appointment on the post of 'Assistant Clerk' but no such approval was granted. The respondent no. 6 thereafter issued an advertisement inviting applications for making selection on the post of Clerk in the institution and the said advertisement was published on 19.12.2007 in the newspaper namely 'Swantra Bharat'. A copy of the advertisement has been filed as annexure 7 to the writ petition. A date of interview was fixed as 30.12.2007 and the petitioner having applied in pursuance to the said advertisement is alleged to have been selected by a selection committee consisting of Manager and the Assistant Manager of the institution. On 06.03.2008, the respondent no. 6 management sent the requisite documents to the DIOS for according approval and financial consent towards the selection of the petitioner but despite lapse of sufficient time, no approval was granted. Accordingly, without any approval, the appointment order dated 30.05.2008 was issued by the respondent no. 6 in favour of the petitioner. Copy of the appointment order dated 30.05.2008 has been filed as annexure 9 to the writ petition. In pursuance to the said appointment order, the petitioner started discharging the duties on the post of Clerk in the institution.

5. On 24.07.2008, the DIOS disapproved the appointment of the petitioner and the financial consent was also refused. Copy of order dated 24.07.2008 has been filed as annexure 10 to the writ petition. Being aggrieved against the same, the petitioner filed Writ Petition No. 6842 (SS)/2008 Inre; Deepak Kumar Singh Vs. State of U.P and Ors challenging the said order. This Court vide order dated 27.09.2011, a copy of which has been filed as annexure 1 to the writ petition required the respondent no. 3 i.e Joint Director of Education, Lucknow to look into the matter and take a final decision. In pursuance to the directions issued by this Court, the respondent on. 3 passed the impugned order dated 26.11.2011 rejecting the claim of the petitioner. Being aggrieved with the same, the present petition has been filed.

6. Learned counsel for the petitioner while seeking to challenge the impugned order dated 26.11.2011 contends that the claim of the petitioner has been rejected on the ground that the vacancy on the post of Assistant Clerk had occurred with the promotion of Sri Maurya who was approved for promotion on the post of Head Clerk vide order dated 31.07.2008 passed by the DIOS and thus when the appointment of the petitioner was made on 30.05.2008 with the issue of start of selection process through advertisement dated 19.12.2007, only the post of Head Clerk was vacant and not that of Assistant Clerk and consequently, without there being a vacancy, the appointment of the petitioner could not have been made. It is contended that the said order reflects patent non application mind inasmuch as the respondent no. 6 management had granted promotion to Sri Maurya as Head Clerk with retrospective effect i.e from the date of retirement of Sri V.P.Singh i.e 01.02.2005 and consequently, it is w.e.f 01.02.2005 that the vacancy would be said to have accrued and be vacant and as such, rejection of the claim of the petitioner on this ground is itself bad. It is also contended that the approval as granted by the DIOS of the promotion of Sri Maurya vide order dated 31.07.2008, a copy of which is annexure 6 to the writ petition itself indicates that once it is the promotion of Sri Maurya which has been approved w.e.f 01.02.2005, consequently it would be deemed that the vacancy had accrued with the promotion of Sri Maurya i.e on 01.02.2005 and as such, on the date when the petitioner was appointed by the respondent no. 6 management i.e 30.05.2008 with the start of the selection process by issue of advertisement dated 19.12.2017, a vacancy of Assistant Clerk was very well in existence. It is also contended that once the DIOS did not grant any prior approval to the selection process which was initiated by the Management only after trying to seek prior approval (though not granted) by the DIOS, but the same was never refused consequently, now at this stage, the respondent cannot be allowed to resile and not grant approval to the appointment of the petitioner.

7. Learned counsel for the petitioner has invited the attention of this Court towards the supplementary counter affidavit dated 05.03.2019 filed on behalf of the respondents in pursuance to the order of this Court dated 08.02.2019 pertaining to the sanctioned posts in the institution where in paragraph 5(ii) it has been indicated on behalf of the respondents that sanctioned strength of the institution in question is one post of Principal, 11 posts of Lecturer, 19 posts of Assistant Teacher, one sanctioned post of Head Clerk and one sanctioned post of Clerk/Assistant Clerk to contend that it is admitted by the respondents also that there was only one sanctioned post of Clerk/Assistant Clerk and consequently there was no other person awaiting promotion to the post of Clerk/Assistant Clerk and as such there is no infirmity in case the said post has been filled in with the appointment of the petitioner.

8. Learned counsel for the petitioner further argues that in terms of the Regulation 101 of Chapter 3 of the Act, 1921 which was applicable at the time when the appointment was made, though an appointment against the non teaching post requires the prior approval of the DIOS yet in case the said approval is not granted within two weeks, there would be deemed approval as per the interpretation given by this Court in the case of Rajendra Yadav Vs. Deputy Director of Education reported in 1999 (3) AWC 2123 and Shri Ranjan Vs. District Inspector of Schools, Allahabad and Ors reported in 2005 (2) ESC (All) 1023. Placing reliance on the Division Bench judgment of this Court in the case of Jagdish Singh Vs. State of U.P and Ors reported in 2006 (2) UPLBEC 1851, learned counsel for the petitioner also contends that even otherwise 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 DIOS for filing up vacancy by direct recruitment and the prior approval, as contemplated under Regulation 101, is prior approval by the DIOS after completion of process of selection and before issue of appointment letter to the selected candidate. Thus, it is contended that the impugned order by which the Joint Director of Education, Lucknow has rejected the claim of the petitioner be quashed and the respondents be directed to pay salary to the petitioner in accordance with law by treating the appointment of the petitioner to be valid.

9. Learned counsel for the petitioner also placed reliance on the judgment of this Court in the case of Abdul Shafiq Hanfi and Ors Vs. D.D.E, Allahabad and Ors reported in 2002 (3) UPLBEC 2086 to contend that even if the vacancy of Assistant Clerk was advertised by the respondent no. 6 prior to it coming into existence even then the selection made would be valid as the appointment was made by scrupulously following the selection process by issue of advertisement in a widely circulated newspaper and by forming the select committee for considering the case for appointment of the petitioner and others who had applied in pursuance to the advertisement.

10. Per contra, learned Standing counsel on the basis of averments contained in the counter affidavit has argued that no prior approval was given by the DIOS prior to starting of the selection process by the Management and in case the Management proceeded to fill in the said vacancy after advertising the same and by constituting a select committee and also issued the appointment order without prior approval, the entire action gets patently vitiated in the eyes of law. It is also argued by the learned Standing counsel that the ground taken by the Joint Director of Education while rejecting the claim of the petitioner is perfectly valid inasmuch as the substantive vacancy of Assistant Clerk only arose with the approval of the promotion of Sri Maurya by the DIOS on 31.07.2008. Consequently, at the time when the petitioner was appointed i.e 30.05.2008, there was no vacancy of the post of Assistant Clerk and thus the appointment of the petitioner is patently vitiated on this ground also. Even if the approval of promotion of Sri Maurya was given on 31.07.2008, consequently the same would not entail in a vacancy having arisen w.e.f the date when the promotion of Sri Maurya was made by the management i.e w.e.f 01.02.2005 inasmuch as in terms of the order dated 31.07.2008 by which approval had been granted to the promotion of Sri Maurya, the same has only been granted w.e.f the date of issue of the said order i.e 31.07.2008 and consequently, it is on that date alone i.e 31.07.2008 can it be said that the vacancy of Assistant Clerk has arisen. Thus, there being no vacancy prior to 31.07.2008 of the post of Assistant Clerk, the appointment of the petitioner could not have been made.

11. As regards, the judgments cited on behalf of the petitioner in the case of Rajendra Yadav and Sri Ranjan (supra), it is contended that the said judgments are distinguishable on their own facts. As regards, the judgment of Jagdish Singh (supra), learned Standing counsel has argued while placing reliance on paragraph 20 of the said judgment that it is after receiving an intimation of vacancy from the management that the DIOS is empowered to send the application of member of deceased employee who is entitled for compassionate appointment to the institution and in case there is no candidate entitled for compassionate appointment, the DIOS can direct the appointing authority to fill up the vacancy by direct recruitment. It is contended that had the management sought the approval of the DIOS prior to filling in the vacancy then the DIOS could very well have indicated to the Management that there are seven appointments that have been made on compassionate grounds who are working against the supernumerary post of Clerk and it is only when such supernumerary post are adjusted against the vacant post that any direct appointment could have been done. A specific report in this regard had been submitted by the DIOS on 24.07.2008, copy of which has been filed as annexure 10 to the writ petition. Thus, placing reliance on the averments contained in the said report, it is contended that it is only after adjustment of the compassionate appointees who are working against the supernumerary post of Clerks that any such approval for proceeding with the selection could have granted and this being a specific requirement and having been dealt with by the Division Bench of this Court in the case of Jagdish Singh (supra) and the same having violated by the institution and the appointment of the petitioner having been processed and he having been appointed de-hors the rules, no benefit can be gained by the petitioner.

12. In the rejoinder, learned counsel for the petitioner contends that plea of seven persons working against supernumerary post who were appointed on compassionate grounds has not been taken in the impugned order of rejection and as such the respondents cannot be allowed to take a new plea and the validity of an order should be judged in the light of the grounds contained in the impugned order itself. In this regard, reliance has been placed on the judgment of this Court in the case of Surya Kumar Dixit Vs. D.I.O.S and Ors reported in 1992 (2) UPLBEC 2086 to contend that the only ground which has been taken while rejecting the case of the petitioner is that there was no vacancy when the appointment of the petitioner was made as the approval of Sri Maurya was done subsequent to the post being advertised and petitioner having applied and having been appointed. However, in the counter affidavit the ground of there being no prior approval before issue of the appointment letter or joining of petitioner has also been taken which is legally impermissible and cannot be considered to be a valid ground inasmuch as the validity of an order has to be judged by reasons contained in the said order alone.

13. Heard the learned counsels for the contesting parties and perused the records.

14. From the facts that have been culled out above, it clearly comes out that the Head Clerk who was working in the institution retired on 31.01.2005 and one Sri V.K Maurya who was working as Assistant Clerk was promoted as Head Clerk on 01.02.2005. No approval to the promotion of Sri Maurya was granted by the DIOS prior to 31.07.2008 when the DIOS approved the promotion of Sri Maurya through his order dated 31.07.2008, a copy of which has been filed as annexure 6 to the writ petition. Thus, it could not be said that there was any substantive vacancy prior to Sri Maurya's appointment being approved on 31.07.2008. Still the Management sought permission from the DIOS seeking prior approval for making appointment on the resultant vacancy of Sri Maurya i.e on the post of Assistant Clerk as has been stated in paragraph 12 of the writ petition. However, it is admitted that DIOS never granted any prior approval for making appointment on the post in question. Despite no prior approval, the Management proceeded to issue an advertisement in December, 2007 constituted a select committee and even issued the appointment order of the petitioner on 30.05.2008 without any prior approval. As already observed above, the approval of promotion of Sri Maurya was only granted on 31.07.2008 and thus when the petitioner was appointed on 30.05.2008, there was no substantive vacancy of Assistant Clerk on which the petitioner could have been validly appointed. Even otherwise, there was no prior approval of the DIOS as provided in Regulation 101 of Chapter 3 of the Act, 1921. For the sake of convenience, Regulation 101 as was prevalent at the relevant time is being quoted below:-

fu;qfDr izkf/kdkjh] fujh{kd ds iwokZuqeksnu ds flok; fdlh ekU;rkizkIr] lgk;rkizkIr laLFkk ds f'k{k.ksrj LVkQ esa 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

15. From a perusal of Regulation 101, it is apparent that the appointing authority could not fill up any vacancy of a non teaching staff except with the prior approval of the DIOS.

16. Thus the sine quo non for filling up the vacancy of non teaching staff by the Management is the prior approval of the DIOS.

17. The issue of 'prior approval' has engaged the attention of the Courts from time to time. In the case of Prabhat Kumar Sharma and others Vs. State of U.P and ors reported in (1996) 10 SCC 62, the Hon'ble Supreme Court while considering the provisions of Removal of Difficulties order, which also provides for a prior approval of the DIOS, held that an appointment made inconsistent with the procedure of Removal of Difficulties Order is void abinitio and will not confer any right upon the incumbent to hold the post or to continue in service or to claim salary from the State exchequer. The relevant observations made by Hon'ble Supreme Court in Prabhat Kumar Sharma (supra) are reproduced as under:-

"Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees."

18. Likewise the Hon'ble Supreme Court in the case of Shesh Mani Shukla Vs. District Inspector of Schools Deoria and others reported in (2009) (15) SCC 436 held as under:-

"It is true that the appellant has worked for a long time. His appointment, however, being in contravention of the statutory provision was illegal, and, thus, void ab initio. If his appointment has not been granted approval by the statutory authority, no exception can be taken only because the appellant had worked for a long time. The same by itself, in our opinion, cannot form the basis for obtaining a writ of or in the nature of mandamus; as it is well known that for the said purpose, the writ petitioner must establish a legal right in himself and a corresponding legal duty in the State."

19. A Division Bench judgment of this Court in the case of Jagdish Singh Vs. State of U.P and Ors reported in 2006 (2) UPLBEC 1851 has held as under:-

"without prior approval of the Inspector, the Principal or the committee of management cannot issue an appointment letter or permit joining of any candidate. Requirement of prior approval in Regulation 101 is a condition precedent before issuing an appointment letter and is mandatory."

20. Another Division Bench of this Court in the case of Ms. Shailja Shah Vs. Executive Committee, Bharat Varshiya National Association and another reported in 1995 (25) ALR, 88 has held has under:-

"expression "prior approval" and "approval" connotes different situation. Where a statute uses the term "prior approval" anything done without prior approval is nullity. Where a statute employs expression "approval", however, in such cases subsequent ratification can make the act valid."

21. The word 'Prior Approval' has also been used in Section 59(1)(a) of U.P Urban Planing and Development Act, 1973 and Hon'ble Supreme Court in the case of U.P Avas Evam Vikas Parishad and Anr Vs. Friends Coop. Housing Society Ltd. and Anr reported in 1995 (Supp) (3) SCC 456 has held that "prior approval" and "approval" are two different connotations and if the statute does not mention "prior approval" what is material would be only "approval".

22. Recently Hon'ble Supreme Court in the case of Union of India and Anr Vs. Raghuwar Pal Singh reported in (2018) 15 SCC 463 considered an issue wherein an appointment could have been made only after obtaining prior approval from Competent Authority i.e. Ministry of Agriculture, Department of Animal Husbandry and Dairying, New Delhi. However, prior approval was not obtained and appointments were made. Thereafter, appointments were cancelled/ terminated on the ground that the same were illegal as there was no prior approval. The Hon'ble Supreme Court held that since appointments were made without prior approval, they were de hors the Rules and a nullity, hence, principles of natural justice are also not attracted in such a case. Paras 16 and 17 of judgment which dealt with the aforesaid issue are reproduced below :

16. We shall now consider the efficacy of the reason so recorded in the office order. The recruitment procedure in relation to the post of Veterinary Compounder is governed by the statutory Rules titled 'Central Cattle Breeding Farms (Class III and Class IV posts) Recruitment Rules, 1969, as amended from time to time and including the executive instructions issued in that behalf. As per the stated dispensation for such recruitment, the appointment letter could be issued only by an authorised officer and after grant of approval by the competent authority. Nowhere in the Original Application filed by the Respondent, it has been asserted that such prior approval is not the quintessence for issuing a letter of appointment.

17. For taking this contention forward, we may assume, for the time being, that the then Director Incharge H.S. Rathore, Agriculture Officer had the authority to issue a letter of appointment. Nevertheless, he could do so only upon obtaining prior written approval of the competent authority. No case has been made out in the Original Application that due approval was granted by the competent authority before issue of the letter of appointment to the Respondent. Thus, it is indisputable that no prior approval of the competent authority was given for the appointment of the Respondent. In such a case, the next logical issue that arises for consideration is: whether the appointment letter issued to the Respondent, would be a case of nullity or a mere irregularity? If it is a case of nullity, affording opportunity to the incumbent would be a mere formality and non grant of opportunity may not vitiate the final decision of termination of his services. The Tribunal has rightly held that in absence of prior approval of the competent authority, the Director Incharge could not have hastened issuance of the appointment letter. The act of commission and omission of the then Director Incharge would, therefore, suffer from the vice of lack of authority and nullity in law."

23. A Division Bench of this Court in the case of Pawan Kumar Mishra Vs. Joint Director of Education, Azamgarh and Ors reported in (2018) 3 AWC 2418 after referring to the earlier Division Bench judgment in the case of Jagdish Singh (supra) held as under:-

"21. In the instant case, the expression used in Regulation 101, is "prior approval" and not "approval". Consequently, when the statute uses the term "prior approval", then anything done without prior approval is a nullity. In Prabhat Kumar Sharma and others vs. State of U.P. and others, AIR 1996(SC)2638 the Supreme Court held:

"Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees."

17. In the light of the aforesaid, we find that admittedly the appellant was appointed without seeking prior approval from the District Inspector of Schools. The said appointment was wholly illegal and was a void order, which conferred no right on the appellant."

24. Likewise, this Court in the case of Shashi Kant Gupta Vs. State of U.P and Ors reported in 2014 SCC Online (All) 6039 has held as under :-

"1. Principal of Sri Aastik Muni Inter College, Koriyan, Kanpur Nagar (hereinafter referred to as "College") sought permission of District Inspector of Schools, Kanpur Nagar (hereinafter referred to as "DIOS") before commencing selection and appointment on Class-IV post in the College and having received intimation, proceeded to make selection. The advertisement was published in daily newspaper 'Employment Exchange' dated 1-15' February' 2003 published from Kanpur whereby the applications were invited upto 28.2.2003 and interview was to be held on 8.3.2003. Petitioner submitted application on 27.2.2003 and thereafter on 9.3.2003 appointment was made and petitioner joined on 15.3.2003. It is, therefore, evident from the record that after making selection and before appointment, no record was transmitted to DIOS seeking his prior approval as contemplated under Regulation 101, Chapter-III of the Regulations framed under the U.P. Intermediate Education Act, 1921 (hereinafter referred to as "Act, 1921"). The law does not require prior approval before the selection but Regulation 101 talks of prior approval before the appointment but after making selection. This distinction has been noticed by Division Bench of this Court in Jagdish Singh etc. Vs. State of U.P. & others, 2006 (3) ESC 2055 (All)(DB) and it has been held that Regulation 101 is mandatory and if no prior approval has been obtained before making appointment, but after the selection the appointment shall be void-ab-initio and it shall not confer any right upon the incumbent to hold the post or to claim salary. The relevant observation made by Division Bench reads as under:

"... without prior approval of the Inspector, the Principal or the committee of management cannot issue an appointment letter or permit joining of any candidate. Requirement of prior approval in Regulation 101 is a condition precedent before issuing an appointment letter and is mandatory."

2. In view of above, the alleged appointment of petitioner cannot be said to be valid. No relief, therefore, as sought for in the writ petition can be granted to petitioner.

3. The writ petition lacks merit. Dismissed."

25. This Court in the case of Ram Kumar Shukla Vs. State of U.P and Ors reported in 2014 SCC Online (All) 6040 has held has under :-

1. Principal of Sri Aastik Muni Inter College, Koriyan, Kanpur Nagar (hereinafter referred to as "College") sought permission of District Inspector of Schools, Kanpur Nagar (hereinafter referred to as "DIOS") before commencing selection and appointment on Class-IV post in the College and having received intimation, proceeded to make selection. The advertisement was published in daily newspaper 'Employment Exchange' dated 1-15' February' 2003 published from Kanpur whereby the applications were invited upto 28.2.2003 and interview was to be held on 8.3.2003. Petitioner submitted application on 27.2.2003 and thereafter on 9.3.2003 appointment was made and petitioner joined on 15.3.2003. It is, therefore, evident from the record that after making selection and before appointment, no record was transmitted to DIOS seeking his prior approval as contemplated under Regulation 101, Chapter-III of the Regulations framed under the U.P. Intermediate Education Act, 1921 (hereinafter referred to as "Act, 1921"). The law does not require prior approval before the selection but Regulation 101 talks of prior approval before the appointment but after making selection. This distinction has been noticed by Division Bench of this Court in Jagdish Singh etc. Vs. State of U.P. & others, 2006 (3) ESC 2055 (All)(DB) and it has been held that Regulation 101 is mandatory and if no prior approval has been obtained before making appointment, but after the selection the appointment shall be void-ab-initio and it shall not confer any right upon the incumbent to hold the post or to claim salary. The relevant observation made by Division Bench reads as under:

"... without prior approval of the Inspector, the Principal or the committee of management cannot issue an appointment letter or permit joining of any candidate. Requirement of prior approval in Regulation 101 is a condition precedent before issuing an appointment letter and is mandatory."

2. In view of above, the alleged appointment of petitioner cannot be said to be valid. No relief, therefore, as sought for in the writ petition can be granted to petitioner.

3. The writ petition lacks merit. Dismissed.

26. Thus, from a perusal of the aforesaid, it clearly comes out that prior approval was a sine qua non of filling up of vacancy of non teaching staff and issue of the appointment order. It is settled proposition of law that where a thing is to be done in a particular manner it is to be done in that manner or not at all. In this regard, the Court may refer to the judgment of Nazir Ahmad vs. Emperor reported in AIR 1936 PC 253 wherein it has been held as under:-

"where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all."

27. Likewise the Hon'ble Supreme Court in the case of Deep Chand vs. The State of Rajasthan reported in AIR 1961 SC 1527 has reiterated the principle of law as laid down in the case of Nazir Ahmad (supra) that:-

"........Where power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are necessarily forbidden"

28. Likewise the Hon'ble Supreme Court in the case of State of Uttar Pradesh vs. Singhara Singh and Ors reported in AIR 1964 SC 358 has again followed the principle laid down in the case of Nazir Ahmad (supra).

29. The Hon'ble Supreme Court in the case of Babu Verghese & Ors. vs. Bar Council of Kerala & Ors reported in (1993) 3 SCC 422 while following the principle laid down in the case of Nazir Ahmad (supra) has held that:-

"It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any Statute, the act must be done in that manner or not at all."

30. Keeping in view the aforesaid discussions, it is thus apparent that the relevant regulations provide for a prior approval before filling in the vacancy of non teaching staff. Consequently, no such vacancy could be filled up except with the prior approval of the DIOS inasmuch as once the prescribed procedure itself contemplates a prior approval for filling up the vacancy, as such, keeping in view the settled proposition of law that where a manner of doing a particular act is prescribed, the act must be done in that manner or not at all and thus the vacancy could not have been filled in and the petitioner appointed without the prior approval of the DIOS.

31. Though, the Joint Director of Education has rejected the claim of the petitioner on the ground of there being no substantive vacancy on the date of his appointment and the ground of prior approval does not find place in the impugned order, as has rightly been contended by the learned counsel for the petitioner, yet this Court is of the view that once the said ground of there being no prior approval prior to appointment of the petitioner has been taken in the counter affidavit and is also a legal ground, consequently instead of remanding back the matter to the Joint Director of Education for a fresh decision, this Court has itself gone through the facts of the case and has also considered the said ground which deciding the case after hearing the learned counsel for the petitioner on this ground also more particularly when the pleadings have already been completed and the matter was argued at length.

32. As regards, the judgment cited on behalf of the petitioner in the case of Rajendra Yadav and Sri Ranjan (supra) which pertains to there being deemed approval after lapse of two weeks from the date of seeking prior approval of the DIOS, suffice to state that once the relevant Regulations do not contemplate any such deemed approval consequently, no such deemed approval can be presumed. Moreover, prior approval has been held to be sine qua non by various Division Bench judgment of this Court before making any appointment in terms of Regulation 101, consequently the aforesaid judgments shall not come to the rescue of the petitioner.

33. As regards, the judgment in the case of Abdul Shafiq Hanfi (supra), the said judgment is distinguishable inasmuch the said judgment did not consider the question of prior approval as specifically provided in the Regulations and as has been considered by various Division Bench judgments of this Court as well as by the Hon'ble Supreme Court.

34. As regards, the judgment in the case of Surya Kumar Dixit (supra), the same pertains to an order held to be sustainable only on the grounds contained therein keeping in view the law laid down by the Hon'ble Supreme Court in the case of Mohinder Singh Gill and Ors Vs. The Chief Election Commissioner, New Delhi and Ors reported in AIR 1987 SC 851. This Court has already recorded as to why despite the ground of prior approval not having been taken by the respondent no. 2 while rejecting the case of the petitioner in the impugned order yet the said ground of prior approval having been taken in the counter affidavit as such this Court has itself proceeded to consider the said ground as the pleadings have been completed and it would have been a futile exercise to remit back the matter to the respondent no. 3 for a decision afresh despite having the legal reasons on record . As such, the said judgment would also not be of any help to the petitioner.

35. Accordingly, when facts of the instant case are tested on the touch stone of Regulation 101 wherein the words 'Prior Approval' has been used and the interpretation of the words 'Prior Approval' as has been given by the Hon'ble Supreme Court as well as various Division Benches of this Court and the principle of law as enunciated in the case of Nazir Ahmad (supra) it clearly comes out that where the appointing authority has issued the appointment order or permitted the joining of any candidate without the prior approval the same would be illegal and void abinitio. In the instant case, the Management having initiated the selection process and having issued the advertisement, formed a select committee, selected the petitioner permitted him to join and even issued an appointment order without the prior approval of the DIOS the same would thus vitiate the appointment of the petitioner.

36. Keeping in view the aforesaid discussions, no illegality or infirmity is found in the impugned order dated 26.11.2011 passed by the respondent no. 3.

37. The writ petition is accordingly dismissed.

Order Date :- 02.5.2019

Pachhere/-

(Abdul Moin, J.)