Rambir Singh vs State Of U.P. And 4 Others
2021 Latest Caselaw 11254 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 40
 

 
Case :- SPECIAL APPEAL No. - 174 of 2020
 

 
Appellant :- Rambir Singh
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Appellant :- Suresh Chandra Dwivedi,Siddharth Khare
 
Counsel for Respondent :- C.S.C.,C.S.C.
 

 
Hon'ble Manoj Misra,J.

Hon'ble Jayant Banerji,J.

(Delivered by Hon'ble Jayant Banerji, J)

1. Heard Shri Ashok Khare, learned Senior Advocate assisted by Shri Siddharth Khare, for the appellant and learned Standing Counsel for the respondents.

2. This intra-court appeal has been filed challenging the judgement dated 27.10.2017, passed by a learned Judge of this Court in Writ-A No. 38251 of 2000 (Rambir Singh and another Vs. State of U.P. and others).

3. The case of the appellant-petitioner is that for being appointed as class IV employee in Janta Inter College, Saroorpur, Meerut (hereinafter referred to as the Institution), which is a recognized and aided institution under the provisions of the U.P. Intermediate Education Act, 19211, he applied pursuant to an advertisement published in a newspaper on 21.1.1996 by the Principal of the institution. It was stated that four class IV posts had fallen vacant in the institution for various reasons and alongwith him, 18 other candidates had applied. The appellant- petitioner was found suitable, as a result of which, an appointment letter was issued by the Principal on 14.2.1996 in his favour appointing him on class IV post in the pay scale of Rs. 750-940. He submitted a joining report on 23.7.1996 which was duly accepted by the Principal on the same day. For necessary approval of the appointment, the Manager of the institution, by means of letter dated  26.2.1996 forwarded all relevant papers to the District Inspector of Schools2. It is alleged that the DIOS did not communicate any decision on that letter.

4. It is stated that thereafter, the DIOS, after being satisfied that the appointment of the appellant-petitioner was made in accordance with law passed an order fixing salary of the petitioners in the pay scale of Rs. 750-910 in the month of February 1999. The endorsement made in his service book under the signature of the DIOS and the Finance Officer has also been referred to. However, after more than five months when salary bills of the appellant-petitioner was presented in the month of June 1999, an endorsement was made that until further orders of the DIOS the salary was being stopped. After repeated enquiries by the Principal it was revealed that an enquiry was being conducted regarding appointment of the appellant-petitioner and so the salary had been withheld. Accordingly, the writ petition was filed seeking mandamus for ensuring payment of salary. Counter and rejoinder affidavits were exchanged. In the counter affidavit, it is stated that the approval letter that was made available by the Principal was found to be fabricated and on the basis of that document, the Principal obtained the salary from January 1999 to May 1999. On the basis of a complaint in June 1999, the payment of salary was stopped under order of the DIOS. It is further stated that the appellant-petitioner filed the writ petition in which an order was passed to file a counter affidavit and for payment of salary.

5. By means of the impugned judgement, the learned Judge dismissed the writ petition holding that, (a) there was no material available showing compliance of requirement of "prior approval" of the DIOS as contemplated in Regulation 101 of Chapter III of the Regulations framed under the Act of 1921 before making appointment of the petitioner; and (b) there was nothing on record to show that the appointment was made after a valid advertisement of vacancies. Relying upon two Division Bench judgements of this Court for payment of salary from State Exchequer, mandamus was declined.

6. It is the contention of Sri Ashok Khare, learned Senior Advocate appearing for the appellant-petitioner that "prior approval" for appointment was not necessary under the facts and circumstances of the case. He contends that once the financial approval regarding the appointment has been accorded by the competent authority, it would be deemed that approval had been granted and as such the requirement of "prior approval" is rendered otiose. That when salary was not being paid to the appellant-petitioner, the writ petition was filed and by an interim order dated 29.8.2000, the Court directed that he shall be allowed to continue to work and shall be paid salary. On 13.9.2002, the writ petition was admitted and notices were issued with a direction that in case the respondents failed to comply with the interim order, it would amount  to gross contempt and they shall be dealt with as may be warranted under law. He contends that on 14.7.2003, a letter was issued by the DIOS to the Principal granting financial approval with regard to the appointment of the appellant-petitioner and therefore, the respondents cannot refuse salary to the appellant-petitioner.

7. Learned Standing Counsel on the other hand has opposed the appeal stating that the financial approval granted by the DIOS on 14.7.2003 was in compliance of the interim order passed in the writ petition. Therefore, no benefit would accrue to the appellant-petitioner from the financial approval so granted. It is further contended that the prior approval of the DIOS is a condition precedent imposed by the Regulation 101 which was never granted.

8. The learned Judge has referred to the judgements of two coordinate Benches of this Court in the matter of Jagdish Singh Vs. State of U.P. and others3 and Kailash Prasad Vs. State of U.P. and others4 wherein, it has been held that prior approval of the DIOS is mandatory and violation thereof renders the appointment null and void.

9. Regulation 101 of Chapter III of the Regulation as amended on 2.2.1995 reads as under:-

"101- fu;qfDr izkf/kdkjh] fujh{kd ds iwokZuqeksnu ds flok; fdlh ekU;rk lgk;rk izkIr laLFkk ds f'k{k.ksRrj in dh fdlh fjfDr dks ugha Hkjsxk1

izfrcU/k ;g gS fd teknkj ds in dh fjDr dks fujh{kd }kjk Hkjus dh vuqefr nh tk ldrh gS"1

10. We have perused the aforesaid two judgements cited by the learned Judge and concur with the view expressed therein. Merely because, as argued in the instant case, the appellant-petitioner was granted financial sanction by the DIOS, would not eclipse the requirement of prior approval as contemplated in Regulation 101 of Chapter III of the Regulations framed under the Act of 1921.

11. After considering the case of Jagdish Singh (supra), another division Bench of this Court in the case of Pawan Kumar Misra Vs. Joint Director of Education, Azamgarh5 dismissed the petition holding that Regulation 101 uses expression "prior approval" and not "approval", and therefore, anything done without "prior approval" is a nullity.

12. In another case of Dhruv Kumar Pandey Vs. State of U.P. and others;6 another coordinate Bench of this Court while dismissing an intra-court appeal challenging an order of a learned Judge dismissing challenge to an order dated 15.7.2019, passed by the District Inspector of Schools, Basti, whereunder the approval to the appointments of the writ-petitioners had been declined, the court observed as follows:-

"28. It is therefore seen that under the scheme provided for in terms of Regulations 101 to 107, the DIOS, before proceeding to direct the appointing authority i.e. the management or the Principal of the institution, to fill up any vacancy by direct recruitment, would be required to consider not only the claims of the dependents of the deceased employee of the institution concerned but also the claims of the dependents of the deceased employees of all recognized and aided institutions in the district. This object, as envisaged under the regulations, is for providing immediate succour to claims for appointment on compassionate grounds and the same would stand totally frustrated in case the institution is permitted to proceed with the selection process without any intimation of the occurrence of the vacancy to the Inspector.

29. We may also observe that in terms of the statutory scheme governing the appointments to posts in recognized and aided institutions, as per the terms of the Act 1921 and payment of salaries against the said posts in terms of the U.P. Act No. 24 of 1971, a statutory duty is cast upon the educational authorities to ensure that the appointments are made taking into consideration the provisions under the Act, 1921 and the regulations framed thereunder governing the procedure for appointments and also to ensure that the filling up of the vacancy is in fact necessary taking into consideration the norms fixed by the State Government. The financial approval required under the U.P. Act No. 24 of 1971 for the purposes of ensuring payment of salaries is to be granted after examining all the aforementioned aspects.

30. The 'prior approval' which is contemplated under Regulation 101 before issuance of an order of appointment is therefore required to be granted by the DIOS after examining the proceedings relating to the appointment and verifying as to whether the appointment was required as per the norms fixed by the State Government and being satisfied that the same had been made after following the prescribed procedure in a fair manner. It is only thereafter that the Inspector is to accord prior approval whereafter the order of appointment is to be issued by the appointing authority i.e. the Committee of Management or the Principal of the institution as the case may be".

13. In a recent judgement delivered on 27.9.2021, the Supreme Court, in Civil Appeal No. 865 of 20217 considered a judgement of a Division Bench of this Court dated 19.11.2018 which had held that Regulation 101 of Chapter III of the Regulation, as amended in 2013, framed under the Act of 1921, is unconstitutional. The case of the State Government before the Supreme Court was that appointments of class IV employees by the management of various institutions were made contrary to the policy decision taken by the State Government on 23.1.2008 and the recommendation made by the 6th Central Pay Commission in the month of March 2008, to the effect that it would only be appropriate to have "outsourcing" of Class IV employees instead seeking any new recruitment. Regulation 101 was amended on 31.12.2009. Taking into consideration the recommendations made by the Sixth Central Pay Commission, Government Orders were issued on 8.9.2010 and 6.1.2011 making it applicable to all the Government departments and aided schools. Thus, the State Government decided not to go in for fresh recruitment of Class IV employees and further directed that any arrangement concerning the post to be vacated may be made only through "outsourcing". Following the said decision, Regulation 101 was once again amended by Government Order dated 4.9.2013, which was notified on 24.4.2014. The amended Regulation as quoted in the judgement of the Supreme Court is as follows:-

"AMENDED REGULATION:

101. The appointing authority, except for the prior approval of the inspector, shall not fill any vacant post of non-teaching staff (clerical cadre) in any recognised or aided institution; with the restriction that the District Inspector of Schools shall make available the total number of vacancies to the Director of Education (Secondary Education) and also put forth justification for filling of the posts, showing the strength of the students in the institution. On receipt of the order from Director of Education (Secondary Education), the District Inspector of Schools shall give permission to the appointing authority for filling the said vacancies (except the vacancies of Class-IV posts) and while giving the permission, he shall ensure compliance of the 5 reservation rules specified by the government as also of the prescribed norms in justification for the posts. With respect to the Class-IV vacancies, arrangements shall be made by way of outsourcing only; but the relevant rules, 1981, as amended from time to time, for recruitment of dependants of teaching or non-teaching staff of the nongovernment aided institutions dying in harness shall be applicable in relation to the appointments to be made on the vacant posts of Class-IV category."

14. The Supreme Court, while observing that prior to the amendment aforesaid, Regulation 101 imposed strict compliance of getting "prior approval", held that the exercise done by the High Court in interpreting ''outsourcing' ought to have been avoided as it stands outside the scope of judicial review, being in realm of policy. The Supreme Court allowed the appeals and set aside the judgement of the High Court, holding that the management of the institutions, having appointed persons and found them suitable, while creating a situation which could have been avoided, will have to take up their responsibility and the State Government cannot be made to continue the appointments by making a contribution towards their salary by way of aid. It was held by the Supreme Court that the respondents/writ petitioners and similarly placed persons who are recruited by the institutions including the respondents shall be continued with the same scale of pay as if they are recruited prior to 8.9.20108 for which, the entire disbursement will have to be made by the institutions alone. The directions given by the Supreme Court in State of U.P. and others Vs. Principal Abhay Nandan Inter College (supra) are extracted below:-

"RELIEF:-

54.We have one more issue to be considered before our conclusion. That is, whether the institutions should be held responsible, with respect to the interest of those who were recruited though contrary to the Impugned Regulation or not. These persons are innocent civilians who got embroiled in the legal battle initiated by the management and made to fight as front-line soldiers. It is the management which found these persons suitable to hold the post. Therefore, this court will have to apply the theory of justice and adopt a problem-solving approach. Having appointed persons and found them suitable, while creating a situation which could have been avoided, the managements will have to take up their responsibility. If imparting education is seen to be in public interest, such institutions have duties to their employees as well. Certainly, the appellants cannot be made to continue them by making a contribution towards their salary by way of aid.

55.We may also note that even the Division Bench in its own wisdom has observed that the impugned Regulation can only be applied to the aided institutions alone. This finding has not been challenged seriously before us. We are conscious of the legal position governing equity when pitted against law. Though both can travel in the same channel, their waters do not mix very often.

56.Having found that the appellants are justified in passing the relevant Government Order followed by the impugned Regulation, we do not wish to impose any further liability on them. On the contrary, we do feel that institutions should be held responsible for the judicial adventurism undertaken.

57.However, we would also like to observe that the appellants will have to seriously consider paragraph 3.72 and 3.83 of the Seventh Central Pay Commission. We expect the appellants to create an adequate mechanism to see to it that the persons employed by the process of "Outsourcing" are not exploited in any manner.

58.Accordingly, we have no difficulty in setting aside the judgment of the Division Bench dated 19.11.2018 and the consequential orders passed while upholding the impugned Regulation. The appeals are allowed with the following directions:

(i) The respondents/writ petitioners in Civil Appeal No 2753 of 2021 are directed to be confirmed by granting adequate approval as Class "IV" employees, having given prior approval.

(ii) The respondents/writ petitioners and similarly placed persons who are recruited by the institutions including the respondents shall be continued with the same scale of pay as if they are recruited prior to 08.09.2010 for which the entire disbursement will have to be made by the institutions alone.

(iii) The appellants shall undertake the necessary exercise to see to it that there is a mechanism available for the proper implementation of "Outsourcing" with specific reference to the conditions of service of those who are employed while taking note of the recommendations made in the Seventh Central Pay Commission".

(emphasis supplied)

15. In the present case, as is evident from the letter of the DIOS dated 14.7.2003, the appellant-petitioner's salary was approved for the post of Assistant Clerk ( Class IV employee) with a condition that such appointment would be subject to the decision of the writ petition. The decision of the DIOS dated 14.7.2003 is itself based on the interim order dated 13.9.2002 passed by the writ court.

16. The decision in the case of Pawan Kumar Misra (supra), in which it was held that anything done without "prior approval" is a nullity, would therefore, have to be read in terms of the aforesaid judgement of the Supreme Court, that is to say, an appointment without prior approval under Section 101 of the Regulation would be a nullity in so far as it purports to bind the State Government to grant aid to the institution concerned for payment of salary. The appointment made by the Principal of the Institution, and the Manager of the institution having forwarded the papers for approval of the appointment of the appellant-petitioner, would not be a nullity so far as the institution is concerned.

17. Under the circumstances and in view of the settled law on the question, neither the appellant-petitioner nor the institution concerned have any right to claim government aid for salary and others dues of the appellant-petitioner. Since the appellant-petitioner has been found suitable for the post by the management and was appointed without "prior approval", the appointment would not be valid only as far as any right to claim aid under Regulation 101 of Chapter III of the Regulation framed under the Act of 1921 is concerned. Accordingly, the judgement of the learned Judge is upheld. However, this will not stand in the way of appellant-petitioner claiming entitlement to pay and others dues from the management itself in terms of judgement of the Supreme Court in the case of State of U.P. and others Vs. Principal Abhay Nandan Inter College and others (supra).

18. Subject to above, the appeal is dismissed.

Order Date :- 26.10.2021

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