1. Heard Sri R.K. Ojha, learned Senior Advocate, assisted by Sri Shivendu Ojha, Advocate, for petitioner, learned Standing Counsel for respondents-1 and 3 and Sri S.C. Tripathi, Advocate, for Committee of Management, respondent-2.
2. Petitioner is seeking a writ of certiorari quashing order dated 08.01.2001 passed by District Inspector of Schools, Allahabad (hereinafter referred to as "DIOS") rejecting petitioner's representation in respect to his appointment on the post of Assistant Teacher (L.T. Grade).
3. Krishak Inter College, Kashauta, Allahabad (hereinafter referred to as "College") is a Secondary Educational Institution recognized by U.P. Board of High School and Intermediate Education (hereinafter referred to as "Board") under the provisions of U.P. Intermediate Education Act, 1921 (hereinafter referred to as "Act, 1921"). Recruitment to the post of Teachers is governed by U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as "1982 Act"). With respect to payment of salary of teaching and non teaching staff of the College, it is governed by U.P. U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as "Act, 1971").
4. Board, by letter dated 31.12.1981 granted recognition to College upto High School with effect from Examination of 1983 under Section 7(A) of Act, 1921.
5. Grant in aid was sanctioned to College by Government Order dated 13.11.1991 with effect from 01.04.1991. After recognition of College upto High School by Board vide letter dated 31.12.1981, Director, Secondary Education, Allahabad, by letter dated 21.09.1983, recognized/ created following posts in the College:
6. DIOS vide order dated 06.03.1982 allowed College to run class 9th with effect from July, 1981. At the time of recognition of College upto High School, there were five Teachers, one Head Master and one Clerk as informed to Management vide letter dated 06.03.1982 and details of such teaching and non teaching staff are as under:
Sl.No.
Name of employee Name of Post Pay/Pay Scale Educational and Training Qualification Date of first continuous appointment in Institution 1 Sri Surendra Prasad Tripathi Head Master 490-860 M.A., B.Ed.
01/07/74 2 Sri Vinod Kumar Dwivdei Assistant Teacher 450-720 B.A., B.Ed.
20/12/77 3 Sri Lalta Prasad Mishra Assistant Teacher 450-720 B.A., B.Ed.
17/07/78 4 Sri Mani Shanker Assistant Teacher 450-720 Intermediate, I.G.D.
01/07/81 5 Sri Mithilesh Prasad Tripathi Assistant Teacher 335 fixed Intermediate 08/07/75 6 Sri Adya Prasad Dwivedi Assistant Teacher 335 fixed Intermediate 08/07/75 7 Sri Ram Naresh Dwivedi Clerk 350-495 High School 01/07/70
7. DIOS by order dated 21.11.1984 recognized teaching and non teaching staff of College as under:
Sl.No.
Name Post Pay Scale Date of appointment Qualification Educational Qualification 1 Sri Surendra Prasad Tripathi Head Master (Junior High School Level)
-
01/07/76 M.A., B.Ed.
Sri Vinod Kumar Dwivdei Trained Graduate Assistant Teacher
-
20/10/77 B.A., B.Ed.
Sri Lalta Prasad Mishra Trained Graduate Assistant Teacher
-
17/07/78 B.A., B.Ed.
Ram Chandra Chowkidar 165-215 01/07/75
-
Narani Prasad Peon 165-215 01/03/76 Class-5th passed as per entry in service book 6 Kamta Prasad Waterman 165-215 01/03/76 As above
8. On the post of Principal created in the College upgraded upto High School, ad-hoc appointment of Surendra Prasad Tripathi with effect from 01.07.1984 was approved by DIOS vide letter dated 22.01.1985 subject to following conditions:
^^1& tc og vH;FkhZ ftldh flQkfj'k ;FkkfLFkfr vk;ksx }kjk dh xbZ gks dk;ZHkkj xzg.k djrk gSA 2& tc mDr vf/kfu;e dh /kkjk 11 dh mi/kkjk ¼---½ esa fufnZ"V ,d ekl dh vof/k lekIr gks tkrh gSA 3& ,slh rnFkZ fu;[email protected] inksUufr ds fnukad ds ckn tks okLrfod 30 [email protected] "1. When the candidate, recommended by the commission, as the case may be, assumes charge.
2. When the period of one month expires as mentioned in sub-section (.....) of Section 11 of the said Act.
3. The actual 30th June ...... after such adhoc appointment/promotion." (English Translation by Court)
9. By letter dated 04.06.1991, Principal of College requested for regularization of remaining teaching and non teaching staff, i.e., Mithilesh Prasad Tripathi, Adya Prasad Dwivedi, Mani Shanker Shukla, all Assistant Teachers, and Ram Naresh Dwivedi, Assistant Clerk and three Class-IV employees, namely, Aditya Narain, Bikanu Rai and Paras Nath.
10. DIOS vide letter dated 27.08.1991 recognized above seven persons upto High School level. Thus when the institution was taken in grant-in-aid by Government Order dated 13.11.1991, following teaching and non teaching staff of College was approved for payment of salary from State Exchequer:
Sl.No.
Name of Teacher Post Pay scale Pay fixed on 1.4.91 1 Surendra Prasad Tripathi Principal 2000-3500 2300-00 2 Vinod Kumar Dwivedi Assistant Teacher 1200-2040 1640-00 3 Lalta Prasad Mishra Assistant Teacher 1200-2040 1600-00 4 Mithilesh Prasad Tripathi Assistant Teacher 1200-2040 1500-00 5 Adya Prasad Dwivedi Assistant Teacher 1200-2040 1500-00 6 Mani Shanker Assistant Teacher 1200-2040 1500-00 7 Ram Naresh Dwivedi Assistant Teacher 950-1500 1070-00 8 Lakshmi Prasad Peon 750-940 882-00 9 Kamta Prasad Peon 750-940 822-00 10 Aditya Narain Peon 750-940 822-00 11 Bikanu Rai Peon 750-940 822-00 12 Paras Nath Peon 750-940 786-00
11. DIOS vide letter dated 08.09.1994 approved appointment of Surendra Prasad Tripathi as Assistant Teacher (L.T. Grade) appointed on substantive basis with effect from 06.04.1991 and, therefore, it resulted in a substantive vacancy on the post of Assistant Teacher (L.T. Grade) on 06.04.1991.
12. Petitioner, Ashika Prasad Shukla, was appointed as ad-hoc Assistant Teacher (L.T. Grade) by appointment letter dated 05.08.1992 in the vacancy caused by Surendra Prasad Tiwari. At the time when petitioner was appointed, appointment of Surendra Prasad as Principal was also ad-hoc, therefore, vacancy of Assistant Teacher (L.T. Grade) was short term vacancy in 1992 wherein procedure laid down in U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 (hereinafter referred to as "Second Order") for making ad hoc appointment had to be followed. Petitioner was appointed as Assistant Teacher (L.T. Grade) on ad-hoc basis. Subsequently by letter dated 08.09.1994, DIOS regularized services of Surendra Prasad Tripathi with effect from 06.04.1991 but the fact remains that 05.08.1992 when appointment letter was issued to petitioner, vacancy was short term as Surendra Prasad Tripathi was de facto promoted on ad hoc basis, on that date.
13. Petitioner's ad hoc appointment was not approved by DIOS. He approached this Court in Writ Petition No. 31694 of 1994 but the same was dismissed by learned Single Judge vide judgment dated 31.10.1995. Thereagainst Special Appeal No. 948 of 1995 was filed which was allowed by a Division Bench vide judgment dated 18.08.1998. Division Bench held that short term vacancy could have been filled in by ad hoc appointment under Second Order by notifying vacancies on Notice Board itself. Setting aside judgment of learned Single Judge, Division Bench disposed of the matter directing DIOS to consider the question, "whether three requisite conditions attracting "deemed approval" were satisfied or not". Taking a decision pursuant thereto, matter was examined by DIOS and it passed order dated 17.11.1998 again holding that appointment of petitioner was not validly made and rejected petitioner's representation for payment of salary.
14. This order dated 17.11.1998 came to be challenged in Writ Petition No. 40140 of 1998 which was allowed vide judgment dated 16.03.2000 whereby, setting aside order dated 17.11.1998, DIOS was directed to pass a fresh order in the light of Division Bench's judgment dated 18.08.1998.
15. Pursuant to the aforesaid judgment dated 16.03.2000, matter was again examined by DIOS. Vide letter dated 08.01.2001, impugned in the present writ petition, DIOS has rejected petitioner's claim observing that his appointment was not validly made. DIOS has held that selection was held on 05.08.1992 and on the same day letter of appointment was issued to petitioner, therefore, there was no occasion to comply Clause 2(3) (ii) and (iii) of Second Order and the same has been completely violated. It has also held that there was a ban imposed upon appointments vide Government Order dated 29.06.1991, therefore also, even ad-hoc appointment on short term vacancy could not have been made.
16. Learned Senior Counsel appearing for petitioner submitted that DIOS has committed manifest error inasmuch appointment was strictly made in accordance with procedure prescribed in Second Order and ban imposed by Government was not applicable to short term vacancies.
17. For my consideration, three points need be considered in this matter.
(1) Whether ban imposed by Government Order dated 29.06.1991 could be extended to short term vacancies?
(2) Whether ad hoc appointment of petitioner was validly made by following relevant Removal of Difficulties Order i.e. 'Second Order'?
(3) Whether vacancy in question could have been treated to be a substantive vacancy or short term vacancy?
18. So far as first question is concerned, this aspect is covered by the judgment of this Court Court in Mukesh Kumar Vs. State of U.P. and others 1996 (2) UPLBEC 783 which has been followed in Sanjay Kumar Vs. Director of Education, Allahabad and others (Writ Petition No. 28608 of 2000) decided on 26.07.2016 by Hon'ble Pradeep Kumar Singh Baghel, J. and Pramod Kumar Vs. State of U.P. and others (Writ Petition No. 13181 of 1997) decided on 14.09.2018 by judgment of myself. Hence, I answer it in favour of petitioner holding that ban imposed by Government Order dated 29.06.1991 could not have been extended to short term vacancies.
19. Now I come to the questions- (2) and (3), which, in my view, can be considered together. Admittedly, due to ad-hoc promotion of Surendra Prasad Tripathi as Principal with effect from 06.04.1991, a short term vacancy occurred on the post of Assistant Teacher (L.T. Grade). The mere fact that subsequently Surendra Prasad Tripathi was made substantive on the post of Principal by DIOS's letter dated 08.09.1994 with effect from 06.04.1991 will not distract the fact that when petitioner was appointed on 05.08.1992 on ad-hoc basis as Assistant Teacher (L.T. Grade), the said vacancy was a de facto short term vacancy. Therefore, if appointment of petitioner was made following procedure laid down in Second Order, he is entitled for all consequential benefits. Para-2 of Second Order provides procedure for making ad hoc appointment in short term vacancy and reads as under:
"2. Procedure for filling up short-term vacancies.-(1) If short-term vacancy in the post of a teacher caused by grant of leave to him or on account of his suspension duly approved by the District Inspector of Schools or otherwise, shall be filled by the Management of the Institution by promotion of the permanent senior-most teacher of the institution, in the next lower grade. The Management shall immediately inform the District Inspector of Schools of such promotion along with the particulars of the teacher so promoted.
(2) Where any vacancy referred to in Clause (1) cannot be filled by promotion, due to non-availability of a teacher in the next lower grade in the institution, possessing the prescribed minimum qualifications, it shall be filled by direct recruitment in the manner laid down in Clause (3).
(3) (i) The management shall intimate the vacancies to the District Inspector of Schools and shall also immediately notify the same on the notice board of the institution, requiring the candidates to apply to the Manager of the Institution along with the particulars given in Appendix "B" to this Order. The selection shall be made on the basis of quality point marks specified in the Appendix to the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, issued with Notification No. Ma-1993/XV-7(79)-1981, dated July 31, 1981, hereinafter to be referred to as the First Removal of Difficulties Order, 1981. The compilation of quality point marks shall be done under the personal supervision of the Head of Institution.
(ii) The names and particulars of the candidate selected and also of other candidates and the quality point marks allotted to them shall be forwarded by the Manager to the District Inspector of Schools for his prior approval.
(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.
(iv) On receipt of the approval of the District Inspector of Schools or, as the case may be, on his failure, to communicate his decision within seven days of the receipt of papers by him from the Manager, the Management shall appoint the selected candidate and an order of appointment shall be issued under the signature of the Manager.
Explanation-For the purpose of this Paragraph-
(i) the expression "senior-most teacher" means the teacher having longest continuous service in the institution in the Lecturer's grade or the Trained prabhatgraduate (L.T.) grade or Trained under-graduate (C.T.) grade or J.T.C. or B.T.C. grade as the case may be;
(ii) in relation to institution imparting instructions to women, the expression ''District Inspector of Schools' shall mean the Regional Inspectress of Girls' Schools;
(iii) short-term vacancy which is not substantive and is of a limited duration." (emphasis added)
20. It is own admission of petitioner that Selection Committee considered various candidates in the interview held on 05.08.1992 and prepared chart of qualitative marks allotted to respective candidates, who appeared in the interview. It is also admitted by petitioner that appointment letter was issued on the same date, i.e., 05.08.1992 pursuant whereto petitioner joined on 06.08.1992. If that be so, procedure laid down under Clause 2(3)(ii) and (iii) of Second Order could not have been observed/followed for the reason that selection was made on 05.08.1992 and on the same day appointment letter was issued to petitioner. Thus, there was no occasion for Management to send documents to DIOS seeking prior approval. It is only when either prior approval is granted by DIOS within seven days after receipt of papers or when deemed approval is applied, power of appointment could have been exercised by Management and not otherwise. Appointment of petitioner, therefore, made on 05.08.1992 was not in compliance of Clause 2(3)(ii) and (iii) of Second Order and the provision relating to prior approval was not at all followed.
21. It has been repeatedly held that a provision if requires approval before making appointment, it is a condition precedent before issuing an appointment letter and is mandatory. Any appointment made in transgress thereof would be void ab initio and a nullity. First of all I may refer two authorities of Supreme Court holding that an appointment if not made in strict compliance of procedure laid down in Removal of Difficulties Order, then such appointment would be a nullity and would not confer any right upon incumbent, either to hold the post or to claim salary.
22. In Prabhat Kumar Sharma and others Vs. State of U.P. and others, (1996) 10 SCC 62 Court held that procedure laid down in Removal of Difficulties Order is mandatory and has to be observed in words and spirit. An appointment made inconsistent with the said procedure is void abinitio and will not confer either any right upon the incumbent to hold the post or to continue in service or to claim salary from State exchequer. The relevant observations made by Court in Prabhat Kumar Sharma (supra) are as under:
"Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees." (emphasis added)
23. Again in para 11 of the judgment, Court held as under:
"Any appointment in violation thereof is void. As seen prior to the Amendment Act of 1982 the First 1981 Order envisages recruitment as per the procedure prescribed in para 5 thereof. It is an inbuilt procedure to avoid manipulation and nepotism in selection and appointment of the teachers by the Management to any posts in aided institution."
24. This decision has been followed and reiterated in Shesh Mani Shukla Vs. District Inspector of Schools Deoria and others J.T. 2009 (10) SC 309 wherein it has been held:
"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."
25. Now I propose to refer the authorities dealing with the question of "prior approval" and making distinction between "approval" and "prior approval".
26. In reference to "prior approval" required under Regulation 101, Chapter-III of the Regulations framed under Act, 1921, in Jagdish Singh etc. Vs. State of U.P. & others, 2006 (3) ESC 2055 (All)(DB) a Division Bench has held "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."
27. Rule 11 of U.P. Recognized Basic Schools (Recruitment and Conditions of Service of Teachers and other Conditions) Rules, 1975 provides that no service can be terminated without "prior permission" from the District Basic Education Officer. A Division Bench of this Court in Ms. Shailja Shah Vs. Executive Committee, Bharat Varshiya National Association and another, 1995 (25) ALR, 88 held that 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.
28. Section 59(1)(a) of U.P. Urban Planning and Development Act, 1973 provides for "prior approval". Supreme Court in U.P. Avas Evam Vikas Parishad and another Vs. Friends Coop. Housing Society Ltd. and another, 1995 (Supple.) (3) SCC 456 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". The earlier judgment in Life Insurance Corporation of India Vs. Escorts Ltd., 1986 (1) SCC 264 was also referred where it was held that the word ''prior' and ''previous' may be implied if the contextual situation or circumstances justify such reading and the Act which requires only approval, the action holds good until it is disapproved.
29. Section 9 of Act, 1971 provides for "prior approval". In Director of Education and others Vs. Gajadhar Prasad Verma, AIR 1995 SC 1121, it was held that the absence of "prior approval" would not have an effect of creation of post and therefore State is not obliged to reimburse salary to Management without "prior approval" of the Director or competent authority under the Act.
30. In Shiv Gorakh Nath Charitable Society, Kanpur and others Vs. Cantonment Board, Kanpur and others, 1997 (3) ALR 616, a Division Bench while considering the effect of "prior permission" held where construction is made without "prior permission" a "post permission" cannot be granted and the construction, so made, has to be dismantled. Same view has been taken by another Division Bench in Vivek Srivastava Vs. Union of India and others- 2005 (3) ESC (Alld.) 1790 (Para 51).
31. The issue of 'prior approval' in the context of Second Order has specifically been considered by a Division Bench (in which I was also a Member) in Joint Director of Education, Azamgarh Region and another versus Udai Raj Vishwakarma, 2007(3) ADJ 121 and this Court has said:
"We thus proceed on to consider the effect of non-observance of the provision pertaining to "prior approval". Para 2(3)(II) of Second Order requires "prior approval" before making appointment of a teacher in a short term vacancy. It is not a case of mere approval. In Prabhu Narain Singh (Supra) this court had an occasion to consider the effect of lack of approval in making appointment of a teacher under Section 16-F of 1921 Act as it stood prior to amendment of the said provision by U.P. Act No. 16 of 1972. The selection was made by the selection committee on 2.8.1972 and papers were forwarded to DIOS who approved selection and appointment vide order dated 10.8.1972. Thereafter the management passed resolution on 25.5.1973 terminating service of the petitioner Prabhu Narain Singh and communicating him by letter dated 18.6.1973 and also forwarding the said resolution to DIOS who refused to accord approval vide order dated 13.7.1973. Whereagainst management preferred an appeal before Regional Deputy Director of Education, which was allowed on 13.5.1975 on the ground since Sri Prabhu Narain Singh was not appointed in accordance with Section 16-F of 1921 Act, no approval for termination was necessary. The Court noticed as a matter of fact that Sri Prabhu Narain Singh after his selection was given charge and started working as a teacher before DIOS accorded approval and it was actually accorded on 10.8.1972. Referring to Section 16-F(1) read with Regulation 6, Chapter-III and Regulation 16 Chapter II of the regulations framed under 1921 Act, this Court held that merely if a letter of appointment is withheld by the management it would not result in denial of right to be appointed to an approved candidate as a teacher due to the purposeful lapse on the part of the management and the management cannot take advantage of its own wrong though approval was accorded by the DIOS. It held further that once a selection has been made by the selection committee and accorded approval by the appropriate authority, the performance of act by the management of issuance of letter of appointment under Regulation 16 Chapter II is a mere ministerial act since management is bound to appoint him and issue letter of appointment. It has no option otherwise at all. In these circumstances, this Court held that the appointment of Sri Prabhu Narain Singh cannot be said to be inconsistent with Section 16-F(1) of the Act read with Regulation 6 Chapter-III and Regulation 16 Chapter-II of the Regulations and therefore before termination, approval of DIOS was necessary. Considering the effect from Regulation 16 Chapter II in the scheme of the Act and the Regulations framed thereunder the Court after referring to an earlier Division Bench judgment in Janta Inter College Nagra Vs. District Inspector of School Balia and others, Civil Misc. Writ Petition No. 4497 of 1969 decided on 26.11.1971 observed that once a person has been selected by a selection committee and his name has been approved by the DIOS, the Committee of Management is bound to appoint him and the Manager is bound to issue a letter of appointment for which the Committee of Management is bound to grant the officer authorization. It is held that the issuance of appointment letter in such circumstances was a mere ministerial act, non-observance thereof would not disentitled a person who otherwise is entitled to be treated as appointed under the statute. In our view the aforesaid judgment has no application to the facts and provisions applicable in this case particularly since Section 16-F talked of "approval" and not "prior approval". It is true that approval under Section 16-F was required after making selection and before issuing appointment letter but the legislature in its wisdom has used the word "approval" and not "prior approval" though in the Second Order it has used the words "prior approval" which have a definite connotation and purpose behind it. Further there is no provision like Regulation 16 Chapter III available in 1982 Act and the rules regulations framed thereunder. This Court considered the effect of certain regulations in that case which are not applicable in the case in hand. The provisions considered therein were different and not pari materia with those contained in Second Order.
Lalit Mohan Misra (Supra) was also a case of appointment made in 1971 inasmuch as the committee of management passed resolution on 23.7.1971 for appointing Lalit Mohan Misra and others as Demonstrator and papers sent to DIOS for approval. In anticipation of approval, the management allowed Lalit Mohan Misra and others to join the institution on 31.7.1971. The approval was accorded by the DIOS on 3.8.1971 whereafter the appointment letters were issued. The appointees thereafter were formally allowed to join on 4.8.1971. After five years of their working, the DIOS issued a letter on 9.11.1976 amending approval order dated 3.8.1971 stating that Lalit Mohan Misra and others would be treated as having been placed on probation w.e.f. 31.7.1971 i.e. three days prior to the date when the approval was accorded and accordingly also confirmed them. On representation made against the aforesaid order dated 9.11.1976 it was held by the DIOS vide order dated 17.8.1977 that Sri Lalit Mohan Misra and others will be deemed to have joined w.e.f. 4.8.1971 and not earlier thereto, whereagainst a writ petition was filed wherein the aforesaid view take by DIOS on 17.8.1977 was upheld. Considering Section 16-F of 1921 Act and Regulation 6 Chapter III and Regulation 16 Chapter II of the regulations, this Court held that though the management has got no right to appoint a person awaiting approval of the DIOS or the Deputy Director of Education, as the case may be, but the said appointment will become legal and regular only from the date approval is accorded by the competent authority and the prior working of the person will not confer any benefit qua the appointees. It also held that DIOS has no authority to subsequently pass an order modifying the date of appointment. In our view the aforesaid judgment considered the provisions which were differently worded framing different scope and the dispute involved in the aforesaid case was also totally different.
Coming to the third judgment relied on by the petitioner namely Ashika Prasad Shukla (Supra) it is no doubt true that this Court with reference to para2 (3) (II) of the Second Order and relying on the judgment of this Court in Lalit Mohan Misra (Supra) observed that the appointment if made prior to approval or deemed approval would become effective from the date of approval or deemed approval but since this issue was not considered by the Hon'ble Single Judge in the judgment under appeal before the Court, the DIOS was directed to look into this aspect whether the pre-requisite conditions for deemed approval were satisfied or not and thereafter pass an appropriate order. Thus it cannot be said that it lays down a law that an appointment made before prior approval would be valid after expiry of the period necessary to attract deemed approval and cannot be treated to be a binding precedent on this issue.
On the contrary where the statute specifically provides "prior approval" before passing any order, what its effects would be has been considered in some other cases which we propose to refer as under. Rule 11 of U.P. Recognized Basic Schools (Recruitment and Conditions of Service of Teachers and other Conditions) Rules, 1975 provides that no service can be terminated without prior permission from the District Basic Officer. A Division Bench of this Court in Ms. Shailja Shah Vs. Executive Committee, Bharat Varshiya National Association and another, 1995 (25) ALR, 88 held that 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.
Section 59(1)(a) of U.P. Urban Planning and Development Act, 1973 provides for "prior approval". The Apex Court in U.P. Avas Evam Vikas Parishad and another Vs. Friends Coop. Housing Society Ltd. and another, 1995 (Supple.) (3) SCC 456 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". The earlier judgment in Life Insurance Corporation of India Vs. Escorts Ltd., 1986 (1) SCC 264 was also referred where it was held that the word ''prior' and ''previous' may be implied if the contextual situation or circumstances justify such reading and the Act which requires only approval, the action holds good until it is disapproved.
Section 9 of the 1971 Act provides for "prior approval". In Director of Education and others Vs. Gajadhar Prasad Verma, AIR 1995 SC 1121, it was held that the absence of "prior approval" would not have an effect of creation of post and therefore the State is not obliged to reimburse salary to the management without "prior approval" of the Director or the competent authority under the Act. In Shiv Gorakh Nath Charitable Society, Kanpur and others Vs. Cantonment Board, Kanpur and others, 1997 (3) ALR 616, a Division Bench while considering the effect of "prior permission" held where construction is made without "prior permission" a "post permission" cannot be granted and the construction, so made, has to be dismantled. Same view has been taken by another Division Bench in Vivek Srivastava Vs. Union of India and others- 2005 (3) ESC (Alld.) 1790 -(Para 51).
32. Recently also, the issue of non compliance of provision of 'prior approval' has been considered by Supreme Court in Union of India & Another Vs. Raghuwar Pal Singh 2018 (7) ADJ 16 wherein appointment could have been made after obtaining prior approval from Competent Authority i.e. Ministry of Agriculture, Department of Animal Husbandry and Dairying, New Delhi. 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. 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 reads as under :
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.
(emphasis added)
33. In view of above discussion, my answer to questions- (2) and (3) is that vacancy in question was short term vacancy when appointment of petitioner was made on ad hoc basic and, therefore, procedure under Second Order had to be followed but simultaneously I have no hesitation in holding that by making appointment of petitioner on 05.08.1992, on which date interview was also held by Selection Committee, petitioner was not appointed by following procedure prescribed in Clause 2(3)(ii) and (iii) of Second Order and, therefore, very appointment of petitioner was a nullity.
34. In view of above discussion, I am constrained to observe that order of DIOS though may not be confirmed for the reason of ban on short term vacancies and that reason will not hold good but ultimate decision of DIOS that appointment of petitioner was not validly made cannot be faulted. Hence, no effective relief can be granted to petitioner. The writ petition fails and is dismissed. No costs.
Dt. 31.10.2018 PS