State Of U.P. And Another vs Mukhtar Yadav And 5 Others
2021 Latest Caselaw 2331 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 40
 

 
Case :- SPECIAL APPEAL No. - 149 of 2019
 

 
Appellant :- State Of U.P. And Another
 
Respondent :- Mukhtar Yadav And 5 Others
 
Counsel for Appellant :- Chandan Kumar
 
Counsel for Respondent :- Prem Prakash Srivastava,Amit Kumar Asthana,Prem Prakash Srivastava,Sabhajeet Singh
 

 
Hon'ble Munishwar Nath Bhandari,J.

Hon'ble Rohit Ranjan Agarwal,J.

An application has been filed for condonation of delay. It would be considered after considering the case on merit.

A challenge is made to the judgment dated 30.05.2018 whereby writ petition was allowed.

Learned counsel for the appellants submits that the judgment under challenge basically was given placing reliance on the earlier judgment of this Court in the case of Rajendra Yadav vs. Deputy Director of Education, 1993 (3) AWC 2123. The judgment in the case of Rajendra Yadav (supra) was overruled by the Division Bench of this Court in the case of Ramdhani vs. State of Uttar Pradesh, 2006 (7) AWC 6708.

The issue otherwise involved is in reference to Regulation 101 of Chapter III of U.P. Intermediate Education Act, 1921 (in short the 'Act of 1921'). The Regulation aforesaid requires prior approval of the Inspector before filling the vacancy.

In the instant case, without prior approval, appointment was given. The learned Single Judge treated it to be a case of deemed approval/permission pursuant to the Regulation 101. It is after relying the judgment in the case Rajendra Yadav (supra). The issue of deemed approval was not accepted by this Court in the case of Ramdhani (supra) and accordingly, the judgment of the learned Single Judge deserves to be set aside.

Learned counsel for the non-appellants has however supported the judgment of the learned Single Judge as it is squarely covered by the judgment in the case of Rajendra Yadav (supra). It is stated that approval under Regulation 101 was required to be given within reasonable time and if it is not accorded, becomes a case of deemed approval. It is otherwise a case where four employees retired and accordingly petitioners-non-appellants were appointed as Class-IV employees. It is after sending a letter to D.I.O.S. for prior approval. Despite reminders given by the Principal on 23.07.1999 and 29.07.1999, no action was taken. The posts were then advertised on 06.08.1999 in daily newspaper 'Aaj'. The selections were held thereupon on 13.08.1999. Pursuant to the interview for selection, the petitioners-non appellants were appointed on the post of Chowkidar, peon and sweepers. The D.I.O.S. Refused to give approval.

The petitioners-non appellants preferred a writ petition to challenge the order dated 13.08.1999 passed by the District Inspector of Schools (in short the 'D.I.O.S.'). The said writ petition was allowed vide order dated 23.04.2002 quashing the order of D.I.O.S. dated 13.08.1999. The matter was remanded back for deciding it afresh. The representation submitted by the non-appellants was not accepted even on second occasion. It was mainly on the ground that no post was available and otherwise prior approval of the Inspector was a pre-condition. The petitioners-non appellants again filed Civil Misc. Writ Petition No. 29501 of 2003 to assail the order dated 18.06.2003 passed by the D.I.O.S. The said writ petition was allowed with a direction to D.I.O.S. to decide the matter afresh. The D.I.O.S. again passed an order on 22.01.2005. The representation of the petitioners-non appellants was rejected alleging non-availability of post and absence of prior approval.

The writ was again filed, wherein it was stated that sanctioned posts of  Class-IV were lying vacant. The Regulation 101 mandates prior approval for filling up the posts but when the D.I.O.S.  failed to pass an order within reasonable time on the letter sent by the Management Committee for grant of prior approval, it is to be taken as a case of deemed approval and accordingly the learned Single Judge rightly applied the judgment in the case of Rajendra Yadav (supra). It is also stated that the vacant posts were available but respondents shown it to be a case of surplus staff without any basis. The prayer is accordingly to maintain the judgment passed by the learned Single Judge.

We have considered the rival submission of parties and perused the record.

The dispute raised in the present appeal is not only pertains to availability of vacant posts but compliance of Regulation 101 alsoop. For ready reference, Regulation 101 is quoted here under:

"101. Appointing authority except with prior approval of Inspector shall not fill 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. "

Perusal of the provision quoted above reveals that appointing authority could not have filled the vacancies without prior approval of the Inspector. The aforesaid Rule has been given interpretation by the learned Single Judge holding that on sending requisition for approval, if a decision is not taken within a reasonable time, it should be taken to be a case of deemed approval. The judgment in the case of Rajendra Yadav (supra) has been relied. It may be for the reasons that the learned counsel appeared before the Single Bench did not refer to the judgment in the case of Ramdhani (supra). The Judgment in the case of Ramdhani (supra) has overruled the judgment in the case of Reajendra Yadav (supra). For ready reference para 12 to 16 of the said judgment are quoted here under:

"12. The provision clearly contemplates that the appointing authority is prohibited from filling an) vacancy without approval of the Inspector. The learned Single Judge in the case of Rajendra Yadav (supra) while consider the Regulation 101, has taken the view that two weeks time from the date of receipt of the letter seeking approval would be 'reasonable period' within which the District Inspector of Schools must communicate is decision to, i.e. appointing authority, failing which he shall be deemed to have accorded approval. Learned Single Judge in the judgment has relied on Section 16-F(2) of the U.P. Intermediate Education Act, 1921 and Order 2(3)(iii) of the U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981. The provisions which have been relied upon by the learned Single Judge, i.e. Section 16-F(2) and Order 2(3)(iii) contemplate the deemed approval. Order 2 (3; (iii) is also extracted below:

2(3)(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.

13. The learned Single Judge erred in drawing the analogy of deemed approval in Regulation 101 taking support from provisions '6-F (2) and Order 2(3)(iii), whereas those provisions expressly provided for deemed approval. The legislature being well aware of the concept of deemed approval and having provided wherever they thought it proper, adding the words concept of deemed ap; oval in Regulation 101 is nothing, but adding the words to the provision, which is not within the competence of the Court while interpreting Statute.

14. We are of the respectful opinion that the said judgment does not lay down the correct law. We overrule the judgment of Rajendra Yadav's case (supra).

15. The second submission of the learned Counsel for the appellant is that the Regulation 10] does not lay down any guidelines for exercise of jurisdiction for approval. The said contention cannot be accepted for more than one reasons.

16. The concept of the approval of an appointment is a well known concept under the U.P. Intermediate Education Act, 1921 with regard to the appointment by the Selection Committee for direct recruitment as well as in the case of promotion For appointment the procedure is prescribed in the various Regulations. The qualification for appointment is also provided in Chapter-III and other provisions of the Act and the Regulations framed. While considering the question of approval of appointment of a candidate, the District Inspector of Schools has to act in accordance with the other express provisions provided for qualification, eligibility and procedure prescribed for selection. It cannot be said that the power of approval as contemplated under Regulation 101 is not hedged by any guidelines or qualification. It is not in the discretion of the District Inspector of Schools to vn%. in order for approval or disapproval at his sweet will. He has to pass an order taking into consideration the other provisions and Regulations of the Act. Thus the submission of the learned Counsel for the appellant that the said power is uncanalised and the provision itself is arbitrary, cannot be accepted. The two judgements, relied upon by the learned Counsel for the appellant in the case of Krishna Mohan Pvt. Ltd. v. Municipal Corporation of Delhi and Ors. (supra) and State of Kerala and Ors. v. Travancore Chemicals and Manufafcturing Co. and Anr. (supra) have no application in the facts and circumstances of the case. In Krishna Mohan Pvt. Ltd. (supra), the apex court was considering Section 116(3) of the DMC Act, 1949. The apex Court declared Section 116 (3) invalid as it delegated unguided and uncanalised legislative powers to the Commissioner to declare any plant or machinery as part of land or building for the purpose of determination of the rateable value thereof. The said decision interpreted the specific provision of Section 116 (3) and the said judgment has no application in the present case. In the cased of State of Kerala (supra), the apex court held Section 59-A of The Kerala General Sales Tax Act, 1963 as violative of Article 14 of the Constitution of India. The reasons for holding Section 59-A as being violative of Article 14 are contained in paragraphs 11 and 13 of the judgment, which are extracted below:-

11. A plain reading of Section 59-A shows that if any question relating to the rate of tax leviable under the Act on any goods is referred to the Government then its decision thereon, notwithstanding any other provision in this Act is final". This section does not indicate as to who can make a reference to the Government. There is no obligation on the Government to hear a ay dealer before it decides as to the rate of tax leviable on the sales or purchase of any type of goods. In fact, as we have noticed earlier, by an omnibus order dated 23.4.1984, the Government decided rates of tax payable in respect of various items without ; any opportunity of being heard having been granted to any of the alers. Lastly, Section 59-Aclairly states that the decision so given by the Government shall be final and would have an overriding effect.

13. Section 59-A enables the Government to pass an administrative order which has the effect of negating the statutory provisions of appeal, revision etc. contained in Chapter VII of the Act which would have enabled the appellate or revisional authority to decide upon questions in relation to which an order under Section 59-A is passed. Quasi-judicial or judicial determination stands replaced by the power to take an administrative decision. There is nothing in Section 59-A which debars the Government from exercising the power even after a dealer has succeeded on a question relating to the rate of tax bei.re an appellate authority. The power under Section 59-A is so wide and unbridled that it can be exercised at any time and the decision so rendered shall be final. It may well be that the effect of this would be that such a decision may even attempt to override the appellate or the revisional power exercised by the High Court under Section 40 of the Act as the case may be. The section enables passing of an executive order which has the effect of subverting the scheme of a quasi-judicial and judicial resolution of the lis between the State and the dealer."

The issue raised in the present case has been considered and decided by the Division Bench in the case of Ramdhani (supra) by referring to Regulation 101 and other provisions. It is held that appointment cannot be given without prior approval.

In view of the above, the judgment of learned Single Judge is based on the judgment in the case of Rajendra Yadav (supra) cannot be approved.

It is not in dispute that prior approval in the matter was not accorded by the Inspector. The appointments were yet made which cannot be said to be as per rules. The judgment of the learned Single Judge is thus interfered. The payment of salary cannot be allowed from the State exchequer in absence of the prior approval.

The controversy regarding availability of the vacancy is another issue. In absence of prior approval in compliance of Regulation 101, the issue aforesaid became secondary. If at all vacancy was available, the appointments could have made after prior approval of the D.I.O.S. and not without it.

The judgment dated 30.05.2018 is accordingly quashed. The appeal is allowed with the aforesaid.

Order Date :- 17.2.2021

Ashish Pd.