Allahabad High Court
Ravindra Kumar And Another vs State Of Up Thru Secy.Secondary ... on 19 April, 2023
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 7
Case :- WRIT - A No. - 31305 of 2017
Petitioner :- Ravindra Kumar And Another
Respondent :- State Of Up Thru Secy.Secondary Edu.Civil Sectt.Lko.And Ors.
Counsel for Petitioner :- Deepak Kumar Agarwal,Shobhit Mohan Shukla
Counsel for Respondent :- C.S.C.
Hon'ble Abdul Moin,J.
1. Heard Sri Aviral Singh holding brief of Sri Shobhit Mohan Shukla, learned counsel for the petitioners and learned Standing Counsel for the respondents.
2. Under challenge is the order dated 17.03.2016 passed by the District Inspector of Schools, Ambedkar Nagar, a copy of which is Annexure-1 to the writ petition, whereby the claim of the petitioners has been rejected.
3. The case set forth by the petitioners is that in order to fill up three vacancies of class IV in S.N. Inter College, Indaipur, Ambedkar Nagar, the Principal of the college sent letter to the District Inspector of Schools, Ambedkar Nagar to grant permission for filling the said posts. However, no such permission was granted by the District Inspector of Schools, Ambedkar Nagar with the result that the Committee of Management on its own accord published an advertisement and proceeded to fill in the aforesaid posts. The petitioners were issued appointment letters in December, 2014 and claim to have submitted their joining on 29.12.2014 and started working on the said post. The Principal of the college sent a letter on 29.12.2014 again requesting the District Inspector of Schools, Ambedkar Nagar to grant approval for appointment of the petitioners which was rejected vide order dated 14.01.2015, a copy of which is Annexure-10 to the writ petition. Being aggrieved with the said order, the petitioners filed Writ Petition No.2365 (SS) of 2015 in re: Ravindra Kumar and 2 others vs. State of U.P. and others, and the writ Court vide order dated 13.05.2015, a copy of which is Annexure-11 to the writ petition, set-aside the rejection order and required the District Inspector of Schools, Ambedkar Nagar to decide the matter pertaining to grant of approval to the appointment/selection of the petitioners afresh. In pursuance thereof, the competent authority vide order dated 17.03.2016, a copy of which is Annexure-1 to the writ petition, rejected the claim of the petitioners primarily on two grounds namely (a) that no prior approval was accorded by the competent authority for start of the recruitment process and appointment of the petitioners which thus vitiates their appointment, and (b) that in terms of the relevant government orders the Class IV posts are to be filled in through outsourcing.
3. Raising a challenge to the said order, learned counsel for the petitioners contends that even though relevant government orders and amendment in the rules which now provide for outsourcing has been upheld by the Apex Court yet the fact of the matter remains that the appointment of the petitioners is prior to the orders by which outsourcing has been permitting in Class IV posts which aspect of the matter has not been considered by the competent authority and consequently the order impugned merits to be quashed. He also submits that the petitioners have not been paid salary for the period they worked on Class IV post.
4. Responding to that learned Standing Counsel states that in terms of Chapter III Regulation 101 of the U.P. Intermediate Education Act, 1921 a prior approval of the District Inspector of Schools is sine-qua-non for filling in Class IV posts. He contends that no such prior approval was ever accorded by the District Inspector of Schools and consequently the appointment of the petitioners cannot be said to be legally valid in the eyes of law and as such even if the orders pertaining to outsourcing have come at a subsequent date to the appointment of the petitioners, the same would not resile from the fact that once the appointment of the petitioners was itself made without prior approval of the District Inspector of Schools the same would be patently vitiated in the eyes of law.
5. In this regard, reliance has been placed on the judgment of this Court in the case of Deepak Kumar Singh vs. State of U.P. and others - 2019 (6) ADJ 376 (LB).
6. Having heard learned counsel for the parties and having perused the records what emerges is that admittedly the appointment of the petitioners was made by the Committee of Management without a prior approval of the District Inspector of Schools.
7. Whether a prior approval of the District Inspector of Schools is required to an appointment of Class IV is no longer res-integra having been settled by this Court in the case of Deepak Kumar Singh (supra) wherein this Court has held as under:-
"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."
8. Thus, keeping in view the law laid down by this Court in the case of Deepak Kumar Singh (supra) it is apparent that the appointment of the petitioners was made without any prior approval of the District Inspector of Schools consequently the same cannot be said to be legally valid in the eyes of law and as such no illegality or infirmity is found with the order impugned dated 17.03.2016. However, so far as the argument of learned counsel for the petitioners regarding the orders pertaining to outsourcing having come at a latter date to the appointment of the petitioners is concerned, suffice to state that once the appointment of the petitioners itself was void ab-initio and made dehors the provisions of Regulation 101 of the Act, 1921 then even if the orders pertaining to outsourcing may have come at a subsequent date the same would not enure any benefit to the petitioners.
9. Keeping in view the aforesaid discussion, no case for interference is made out. Accordingly, the writ petition is dismissed.
10. However so far as the petitioners having worked on a Class IV post for which no salary has been paid to them it would be open for the petitioners to raise a grievance for payment of their salary with the Committee of Management which appointed them.
Order Date :- 19.4.2023
A. Katiyar
