Smt. Kalawati Devi vs State Of U.P. And 5 Others
2023 Latest Caselaw 27984 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:195468
 
Court No. - 35
 

 
Case :- WRIT - A No. - 15425 of 2023
 

 
Petitioner :- Smt. Kalawati Devi
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Santosh Kumar Tiwari
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Vikas Budhwar,J.

Heard Sri Santosh Kumar Tiwari, learned counsel for the writ petitioner as well as Sri Shailendra Singh, the learned Standing Counsel, who appears for Respondents 1 to 4.

The case of the writ petitioner is that her husband Late Heera Lal claims to have been appointed by the sixth respondent, Principal of the fifth respondent-Institution, Sri Kachha Baba Inter College, Jalhupur, District Varanasi on 04.08.1992 as Class IV employee. Since the appointment of the husband of the writ petitioner was not approved by the District Inspector of Schools, Varanasi, as prior approval was not accorded in terms of the judgment in the case of Jagdish Singh Vs. State of U.P., 2006 (3) ESC 2055, and Kailash Prasad Vs. State of U.P. and others, 2008(1) ESC 532, so the services of the husband of the writ petitioner came to be terminated on 26.06.1993.

Challenging the termination order dated 26.06.1993, the husband of the writ petitioner, Heera Lal (since deceased) preferred the Writ Petition No.25882 of 1993, which came to be dismissed on 30.04.2009, while passing the following order: -

"List revised. None appears for the petitioner. However, I have perused the record.

This writ petition is directed against the order of termination dated 26.6.1993, Annexure 4 to the writ petition, passed by the Manager, Kachcha Baba Inter College, Jalhupur, Varanasi (hereinafter referred to as "the College"). The petitioner claims to have been appointed as Class IV employee by the Principal of the College on 4.8.1992. Since the said appointment was not subsequently approved by the District Inspector of Schools (for short 'D.I.O.S.') the impugned order of termination was passed on 26.6.1993. I do not find any illegality in the impugned order inasmuch as, the appointment of the petitioner in Class IV post could not have been made without prior approval of the D.I.O.S. as contemplated in Regulation 101 of Chapter 3 which reads 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 division Bench of this Court in in the case of Jagdish Singh etc. Vs. State of U.P. and others, 2006(3) ESC 2055 (All) (DB) has held that any appointment made without prior approval of the D.I.O.S. is void ab initio and would not confer any benefit upon such person who claims to have been appointed on Class IV post without such approval. The same view has been reiterated subsequently by another Division Bench ( of which I was a member) in Kailash Prasad Vs. State of U.P. and others 2008(1) ESC 532(All)(DB). In the circumstances, no relief can be granted.

The petition lacks merit and is accordingly, dismissed."

Challenging the order dated 30.04.2009 passed by the learned Single Judge, a Special Appeal No.899 of 2012, Sri Heera Lal Vs. District Inspector of Schools and others was preferred before the Special Appellate Bench, which came to be dismissed on 08.12.2016, order whereof is being quoted hereinunder:

"1. Present Special Appeal under Chapter VIII Rule-5 of the High Court Rules, 1952 has been filed assailing the judgement and order dated 30.4.2009 passed by learned Single Judge of this Court in Writ A No.25882 of 1993 (Heera Lal vs. District Inspector of Schools, Varanasi and ors) by which he had proceeded to dismiss the writ petition with following observations:-

"List revised. None appears for the petitioner. However, I have perused the record.

This writ petition is directed against the order of termination dated 26.6.1993, Annexure 4 to the writ petition, passed by the Manager, Kachcha Baba Inter College, Jalhupur, Varanasi (hereinafter referred to as "the College"). The petitioner claims to have been appointed as Class IV employee by the Principal of the College on 4.8.1992. Since the said appointment was not subsequently approved by the District Inspector of Schools (for short 'D.I.O.S.') the impugned order of termination was passed on 26.6.1993. I do not find any illegality in the impugned order inasmuch as, the appointment of the petitioner in Class IV post could not have been made without prior approval of the D.I.O.S. as contemplated in Regulation 101 of Chapter 3 which reads 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 division Bench of this Court in in the case of Jagdish Singh etc. Vs. State of U.P. and others, 2006(3) ESC 2055 (All) (DB) has held that any appointment made without prior approval of the D.I.O.S. is void ab initio and would not confer any benefit upon such person who claims to have been appointed on Class IV post without such approval. The same view has been reiterated subsequently by another Division Bench ( of which I was a member) in Kailash Prasad Vs. State of U.P. and others 2008(1) ESC 532(All)(DB). In the circumstances, no relief can be granted.

The petition lacks merit and is accordingly, dismissed."

2. The petitioner-appellant claims to be appointed as Class-IV employee by the Principal of Kachcha Baba Inter College, Jalhpur, Varanasi (in short, the institution) on 4.8.1992. Since the said appointment was not subsequently approved by the District Inspector of Schools, Varanasi, the order of termination was passed by the Manager of the institution on 26.6.1993. The said order has been assailed in the aforesaid writ petition. Learned Single Judge has proceeded to consider the claim of the petitioner-appellant in the light of Regulation 101 of Chapter III of the regulations framed under U.P. Intermediate Education Act, 1921 and relying the judgement passed by Division Bench of this Court in Jagdish Singh etc. vs. State of UP and ors 2006 (3) ESC 2055 (All) (DB) and Kailash Prasad vs. State of UP and ors 2008 (1) ESC 532 (All) (DB), dismissed the writ petition.

3. We have occasion to peruse the record in question and find that in the present matter, no doubt prior to the initiation of the selection proceeding on Class-IV post in the institution, the required permission was taken from the District Inspector of Schools concerned but this much is clearly reflected from the record in question that at no point of time after the the selection the District Inspector of Schools had ever accorded approval to the said appointment. Regulation 101 of Chapter III of the regulations framed under U.P. Intermediate Education Act, 1921 clearly proceeds to mention that the 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. The law on the subject is very much clear, as has been laid down in Jagdish Singh's case (supra), in which it was held that any appointment made without prior approval of the District Inspector of Schools is void ab initio and would not confer any benefit upon such person who claims to have been appointed on Class-IV post without such approval. The said view has been reiterated in Kailash Singh's case (supra).

4. Once this is the factual situation that at no point of time the appointment of the petitioner was ever approved by the District Inspector of Schools and as such, in the light of the judgment passed by Coordinate Benches of this Court in Jagdish Singh's case (supra) and Kailash Singh's case (supra), no relief can be granted to the petitioner. There is no infirmity or illegality in the order passed by learned Single Judge.

5. The Special Appeal sans merit and is accordingly dismissed."

Being further aggrieved against the order passed by the Special Appellate Bench, a Special Leave to Appeal (C) No.5214 of 2018, Heera Lal (Dead) Vs. District Inspector of School & Others was preferred on 23.07.2021, in which the following orders were passed: -

"Delay Condoned.

Substitution allowed.

We are not inclined to interfere with the impugned judgment passed by the High Court, Special Leave Petition is dismissed. However, the respondents shall not initiate any proceedings for recovery of the salary from the legal heirs of the deceased Petitioner.

Pending applications, if any, also stand disposed of."

The writ petitioner and other dependents of the deceased further claims to have preferred Writ Petition No.2024 of 2022 for according family pension and other benefits, which came to be disposed off on 11.03.2022, requiring the second respondent in the said writ petition to decide the claim of the writ petitioner. An order is stated to have been passed on 16.09.2022 by the District Inspector of Schools, Varanasi, fourth respondent, whereby it was observed that the husband of the writ petitioner was entitled for the said benefits. However, in the said order, the matter was transmitted to the Deputy Director of Education (Madhyamik), Fifth Region, Varanasi to decide the said issue. Since no action whatsoever was being taken on the recommendation of the District Inspector of Schools, Varanasi, fourth respondent, by the third respondent, Deputy Director of Education (Madhyamik), Fifth Region, Varanasi, so that writ petitioner preferred Writ Petition No.9031 of 2023, Kalawati Devi Vs. State of U.P., which came to be disposed off on 23.05.2023 requiring the respondents to take a decision. Now, an order has been passed on 26.07.2023 by the third respondent negating the claim of the writ petitioner for the payment of family pension.

Questioning the order dated 26.07.2023 passed by the third respondent, the writ petitioner has filed the present writ petition.

Sri S.K. Tiwari, learned counsel for the writ petitioner further submits that once there happens to be a positive recommendation in favour of the writ petitioner for payment of family pension and other benefits, then it is not open for the respondents to take another view, particularly when the husband of the writ petitioner continued to work on the post in question, till the date of death of her husband, i.e. 12.09.2019. He further submits that the writ petitioner is entitled to the relief.

Sri Shailendra Singh, learrned Standing Counsel, who appears for Respondent Nos. 1 to 4 on the other hand submits that once the services of the husband of the writ petitioner stood terminated on 26.06.1993 and a writ petition preferred by the husband of the writ petitioner, the Writ Petition No. 25682 of 1993 stood dismissed on 30.04.2009. A Special Appeal challenging the order of the Writ-Court also stood dismissed on 08.12.2016 in Special Appeal No. 899 of 2012, Heera Lal Vs. State of U.P. and the said order has been affirmed by the Hon'ble Apex Court by virtue of the order dated 23.07.2021 modifying the orders of the Special Appellate Bench that the recovery would not be made for the amount so paid, then the writ petitioner is not entitled to the benefit of family pension, as the appointment made in favour of the writ petitioner was a nullity in the eyes of law. He further submits that the writ petitioner is not entitled to any relief.

I have heard learned counsel for the parties and perused the records carefully.

Undisputedly, the services of the husband of the writ petitioner stood terminated on 26.06.1993 on the ground that the prior approval as required under law was not obtained by the District Inspector of Schools, Varanasi. The orders of the Writ-Court stood confirmed by the Hon'ble Apex Court only with a minor modification that the recovery of the amount so paid shall not made.

In view of the said circumstances, once the appointment of the husband of the writ petitioner has been held to be illegal, then in the circumstances, the writ petitioner is not entitled to any relief there from. Even otherwise, this Court cannot take a different view on the face of the fact that the orders passed by the Writ-Court affirmed upto the level of the Hon'ble Apex Court have attained finality and are inter se binding.

In view of the said undisputed facts, the writ petition is accordingly dismissed.

Order Date :- 11.10.2023

N.S.Rathour