Heard Shri Rahul Jain, learned counsel for the petitioner and learned Standing Counsel for the State-respondents.
The petitioner has approached this Court challenging the order dated 17.11.1999 passed by the District Inspector of Schools annexed as Annexure No.6 to the writ petition, whereby he has refused to grant approval to the selection of the petitioner on the post of Assistant Clerk on the ground that it was made without prior approval granted by him. The respondent No.3 was appointed on the disputed post held by the petitioner after the impugned order passed by the D.I.O.S. The petitioner has brought on record the order dated 24.02.2000, whereby the respondent No.3 was subsequently adjusted in another college namely Adarsh Inter College, Siyawan, District Ghazipur and his claim has come to an end.
The only objection in the impugned order is that without prior permission of the District Inspector of Schools, the selection of the petitioner was made. The respondent No.4, who was claiming promotion on the post of Assistant Clerk, has died and the petitioner has brought on record the death certificate of the respondent No.4, namely, Chunni Singh Yadav.
The learned counsel for the petitioner has relied upon the Division Bench Judgement of this Court in the case of Jagdish Singh s/o Dildar Singh Vs. State of U.P. and others 2006 (2) ADJ 710, wherein this Court held that the prior approval contemplated under Regulation 101 of the Intermediate Education Act is prior approval by the District Inspector of Schools, after completion of the process of selection and before issuance of appointment letter to the selected candidate.
The case of the petitioner is that prior approval was sought in his case after completion of process of selection and therefore, the objection raised in the impugned order is not tenable.
In support of his submissions, following judgments of this Court have been relied upon with the relevant paragraphs,
1. Preet Kumar Srivastava Vs. State of U.P. and others, 2011 (89) ALR 346 (Para Nos. 6, 7, 8 and 9), "6. Regulation 101 of Chapter III stipulates that the appointing authority shall not fill up any vacancy on a non-teaching post without prior approval of the District Inspector of Schools. The said regulation reads as under:
"The appointing authority shall not fill up any vacancy on a non-teaching staff of a recognized aided institution except with the prior approval of the Inspector."
7. The important words to be considered for interpretation of the aforesaid provision are 'fill up any vacancy' and 'except with the prior approval of the Inspector'. The words 'not fill any vacancy' and 'except with the prior approval of the Inspector' when read conjointly could only mean that some person has been selected and an approval is required for his appointment the same would be possible only after the selection process is complete and some person is selected for being appointed. The words "except with the prior approval of the Inspector" used in the regulation clearly goes to show that approval is to be accorded by the Inspector to the person selected by the selection committee and not before that. Regulation 101 does not speak of any prior approval before initiating the process of making the selection. Obvious intention of the legislature enacting the aforesaid provision is that the District Inspector of Schools before according approval for sanction of payment from the State exchequer may examine whether a duly sanctioned vacancy was available in the institution, the procedure prescribed for making the selection has been strictly adhered to and there has been fairness and transparency, the candidate selected possesses the prescribed requisite qualification, provision of reservation, if applicable, has been adhered to. Apparently, such stage will come only after selection has been made and not earlier to that. In case the words "prior approval of the Inspector" are interpreted to mean prior approval before initiating the selection process then once the same is accorded and the institution proceeds to fill any vacancy there would be no occasion for the District Inspector of Schools to scrutinize the process undertaken for selection and whether it has been made in accordance with the prescribed procedure. The regulation does not contemplate prior approval at two stages (i) at the time of initiating the selection process and (ii) after the selection process is over. Therefore, what is contemplated in Regulation 101 is prior approval after the selection is over and before appointment. The view taken by me finds support from the Division Bench judgment of this Court in the case of Jagdish Singh vs. State of U.P. & others, reported in 2006(4) Alld. Daily Judgment 162 (Allahabad) (DB) wherein it has been observed as under :
"21. The observation of the learned Single Judge in Ram Dhani's case (supra) that previous approval under Regulation 101 is required to be taken before issuing advertisement for filling up vacancy does not lay down correct law. We, however, make it clear that although prior approval is required from the District Inspector of Schools after completion of process of selection but there is no prohibition in the Principal/Management to seek permission of the District Inspector of Schools for filling up vacancy by direct recruitment. The permission may or may not be granted by the District Inspector of Schools but even if such permission to start the selection process or to issue advertisement is granted that is not akin to prior approval as contemplated under Regulation 101.
22. In view of the aforesaid, we are of the considered opinion that prior approval contemplated under Regulation 101 is prior approval by the District Inspector of Schools after completion of process of selection and before issuance of appointment letter to the selected candidate."
8. From the aforesaid facts and discussions and the law laid down by the Division Bench of this Court in the case of Jagdish Singh (supra), it is clear that prior approval contemplated in Regulation 101 means prior approval at the time of appointment and not at the time of initiation of process for making the appointment.
9. Admittedly, in the present case, no irregularity or illegality was found in the procedure adopted for selection of the petitioner for appointment and his appointment has only been disapproved on the ground that no prior permission was obtained before initiating the selection process and thus the said part of the impugned order dated 13.3.2008 passed by the Joint Director of Education (Madhyamik) cannot be sustained."
2. Leela Singh and others Vs. D.I.O.S. and other, Writ-A No. 7369 of 1999, "I have examined the contentions advanced by learned counsel for the parties as also the material placed on record.
Regulation 101 of Chapter III of the U.P. Intermediate Education Act, 1921 was inserted w.e.f. 30th July 1992. The said provision has undergone amendment in the year 2009 but prior to its amendment, it read thus:-
"Appointing Authority except with prior approval of Inspector shall not fill up any vacancy of non-teaching post of any recognized aided institution:
Provided that filling of the vacancy on the post of Jamadar may be granted by the Inspector. "
The said provision was interpreted by this Court in Jagdish Singh (supra) by holding that prior approval contemplated thereunder was at the stage of issuance of appointment letter to the selected candidates. It does not contemplate seeking approval before the selection process is started. The relevant observations made in this regard are as under:-
"20. Scheme of Regulations 101 to 107 makes it clear that after receiving an intimation of vacancy, the District Inspector of Schools is empowered to send the application of members of deceased employee, who is entitled for compassionate appointment to the institution, who has to issue appointment letter to such candidates. It is, however, implied in the scheme that in the event there is no candidate entitled for compassionate appointment to fill a particular vacancy, the intimation of which has been received by the District Inspector of Schools, the District Inspector of Schools can direct the appointing authority to fill up vacancy by direct recruitment but even in a case the selection is made by direct recruitment by the Principal/committee of management, prior approval is required of the District Inspector of Schools before issuing an appointment letter to the selected candidates. Without prior approval of the Inspector, the Principal or the committee of management cannot issue an appointment letter or permit joining of any candidate. The requirement of prior approval in Regulation 101 is a condition precedent before issuing an appointment letter and is mandatory. The observation of the learned single Judge, in the case of Dingur v. District Inspector of Schools, Mirzapur (supra) as quoted above, is also to the effect that approval has to be considered by the District Inspector of Schools after examining the proceeding relating to appointment and after examining as to whether prescribed procedure in a fair manner has been followed or not.
21. The observation of the learned single Judge in Ram Dhani's case (supra) that previous approval under Regulation 101 is required to be taken before issuing advertisement for filling up vacancy does not lay down correct law. We, however, make it clear that although prior approval is required from the District Inspector of Schools after completion of process of selection but there is no prohibition in the Principal/Management to seek permission of the District Inspector of Schools for filling up vacancy by direct recruitment. The permission may or may not be granted by the District Inspector of Schools but even if such permission to start the selection process or to issue advertisement is granted that is not akin to prior approval as contemplated under Regulation 101.
22. In view of the aforesaid, we are of the considered opinion that prior approval contemplated under Regulation 101 is prior approval by the District Inspector of Schools after completion of process of selection and before issuance of appointment letter to the selected candidate."
3. Abhishek Tripathi Vs. State of U.P. and others, 2015 (4) ADJ 270 (Para Nos. 3, 4, 10 and 11) "3. Challenging the refusal to grant financial approval, learned counsel for the petitioner relied upon the judgment of this Court in Preet Kumar Srivastava Vs. State of U.P. and others reported in 2011 (9) ADJ 591. The Regulation 101 has been interpreted by this Court and it was held that looking to the language of Regulation 101 which says that no appointment shall be made on a non-teaching post without there being approval of the District Inspector of Schools, the prior approval is required between selection and appointment of the incumbent against the vacant post. No prior approval is required before making selection for filling up the vacancy.
4. In the case of Preet Kumar Srivastava (supra), Regulation 101 as existed prior to the amendment made on 31.12.2009, was under consideration which reads as under:-
"The appointing authority shall not fill up any vacancy on a non-teaching staff of a recognized aided institution except with the prior approval of the Inspector."
Whereas the amended Regulation 101 vide notification dated 31.12.2009 is as follows:-
"fu;qfDr izkf/kdkjh fujh{kd ds iwokZuqeksnu ds flok; fdlh ekU;rk izkIr] lgk;rk izkIr laLFkk ds f'k{k.ksRrj in dh fjfDr dks ugha HkjsxkA izfrcU/k ;g gS fd ftyk fo|ky; fujh{kd leLr fjfDr;ksa dh la[;k f'k{kk funs'kd] ek/;fed dks miyC/k djk;sxk rFkk laLFkk esa Nk= la[;k n'kkZrs gq;s inksa dks Hkjs tkus ds vkSfpR; dks Hkh Li"V djsaxsA f'k{kk funs'kd ek/;fed ls vkns'k izkIr gksus ij ftyk fo|ky; fujh{kd mDr fjfDr;ksa dks Hkjus gsrq fu;qfDr izkf/kdkjh dks vuqefr iznku djsxk vkSj vuqefr iznku djrs le; 'kklu }kjk fu/kkZfjr vkj{k.k fu;eksa ,oa inksa ds vkSfpR; ds fy;s fu/kkZfjr ekudks dk ikyu djk;sxkA "
10. Placing reliance upon the case of Preet Kumar Srivastava (supra), submission is that the controversy as to what would be the stage for grant of approval by the District Inspector of Schools has been set at rest. In Preet Kumar Srivastava (supra), the words "fill up any vacancy except with the prior approval of the Inspector" as contained in Regulation 101 of Chapter III were interpreted. These words are very much there in the amended Regulation 101 and have not been replaced. A reading of the amended Regulation 101 also indicates that prior approval of the District Inspector of Schools is to be obtained before "filling up the vacancy" that means the approval is to be obtained at the time of appointment and not at the time of initiation of selection process for making appointment as held in Preet Kumar Srivastava (supra) wherein reliance has been placed upon the Division Bench judgement of this Court in the case of Jagdish Singh, etc. Vs. State of U.P. and others, reported in 2006 (4) ADJ, 162 (All)(DB). It was held therein that what is contemplated in Regulation 101 is approval after the selection is held and before appointment.
11.The amended Regulation 101 also contemplates the same stage that is after the selection process is over but before making appointment to the post. Only addition is that the District Inspector of Schools shall ensure that there exist sanctioned post in the institution in question at the time of initiation of the selection process and sufficient information of the said position be given to the Director of Education and his order be obtained"
In view of the impugned order dated order dated 17.11.1999 passed by the District Inspector of Schools is hereby quashed.
The petitioner is already working on the strength of the interim order passed by this Court and has further been promoted on the post of Head Clerk.
The order dated 17.11.1999 passed by the D.I.O.S. is hereby quashed. The petitioner is working and getting the salary. His selection stands approved. Counsel for the petitioner states that some arrears of salary remain to be paid to the petitioner. He may make an appropriate representation in this regard within three weeks along with certified copy of the order before the concerned authority, who shall consider and pass appropriate order thereon within next six weeks.
The writ petition is allowed. There shall be no order as to costs.
Order Date :- 29.3.2018 Ruchi Agrahari