Court No. - 34
Case :- WRIT - A No. - 12751 of 2005 Petitioner :- Smt. Chandra Kanti Tripathi Respondent :- District Inspector Of Schools And Others Counsel for Petitioner :- U.K. Saxena, K.M. Misrha, V.K.Saxena, Yogesh Kumar Saxena Counsel for Respondent :- C.S.C.,A.K. Tewari,A.K.Tiwari
Hon'ble Sudhir Agarwal,J.
1. Heard Sri Yogesh Kumar Saxena, learned counsel for petitioner and perused the material available on record.
2. Admittedly, petitioner claimed to have been appointed on 04.09.1991 against short-term vacancy after following the procedure prescribed under U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 (hereinafter referred to as “Second Order”). It is also said that papers were forwarded to District Inspector of Schools, Etawah (hereinafter referred to as “DIOS”) for approval on the same day i.e. on 04.09.1991.
3. Clause 2 of Second Order providing procedure for ad-hoc appointment against short-term vacancy reads as under:
“2. Procedure for filing 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 immediate 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 nonavailability of a teacher in the next lower grade in the institution, possessing the prescribed minimum qualification, 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.Ma1993/ XV7(79)1981, dated July 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 candidates 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 candidates 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 graduate (L.T.) grade or Trained undergraduate (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)
4. It is evident that before sending papers to DIOS and until order is passed by DIOS granting approval or the period as contemplated does not expire so as to bring in deemed approval, petitioner could not have been appointed though in the present case, he was appointed on 04.09.1991. Thus, appointment of petitioner is not in accordance with Rules prescribed in Second Order. Aforesaid procedure is held mandatory and requirement of prior approval is necessary.
5. A Division Bench of this Court in Jagdish Singh Vs. State of U.P. and others, 2006(3) ESC 2055, also held that prior approval of DIOS is mandatory and violation thereof makes an appointment null and void hence the incumbent has no right to hold the post nor claim salary. The effect and consequence of lack of compliance of Regulation 101 has also been considered by another Division Bench of this Court in Kailash Prasad Vs. State of U.P. and others, 2008(1) ESC 532, in a matter pertaining to appointment of teachers in secondary institutions where the requirement of prior approval is pari materia, provision has been held mandatory and effect of lack of compliance has been held, fatal.
6. A similar issue has recently been considered 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 found that Appointing Authority, in fact, was permitted to look after current charge/ duties. That being so, he could not have exercised statutory powers of the said office and hence had no authority to make any appointment to Group - C and D. It further held that since appointments were made without any prior approval, they were de hors the rules and 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.
7. The Court also relied on its earlier judgment in Kendriya Vidyalaya Sangathan & Ors. Vs. Ajay Kumar Das & Ors. 2002 (4) SCC 503 wherein Court had observed that if appointment letters are nullity, having been issued by an officer who did not wield authority to do so, there was no question of observance of principles of natural justice even though affected party was not before Court.
8. In Union of India & Anr. Vs. Raghuwar Pal Singh (supra), Court clearly held that letter of appointment was issued by Director Incharge, without prior approval of Competent Authority is a nullity and that being so principles of natural justice are not attracted. It has also held that it was not an essential requirement and would have been an exercise in futility.
9. In the case in hand, appointment letter was issued to petitioner on 04.09.1991, on which date the management did not possess power to make appointment under Clause 2 (3)(iii) and (iv) of Second Order. Hence, the very appointment of petitioner was void ab-initio being in violation of procedure prescribed in Second Order and he has no right either to hold post or to claim salary from State Exchequer.
10. The effect of non compliance of any part of Removal of Difficulties Order has been considered in Prabhat Kumar Sharma & others Vs. State of U.P. & others, A.I.R. 1996 SC 2638 wherein it has been held that the procedure for ad hoc appointment under the Removal of Difficulties Order is mandatory and if the said procedure is not observed strictly, the appointment, if any, shall be void ab initio and would not confer any right upon the incumbent either to hold the post or to claim salary. This decision was reiterated and followed by the Apex Court recently in Shesh Mani Shukla Vs. D.I.O.S., Deoria & others, J.T. 2009 (10) S.C. 309.
11. In view of above discussion, I find no merit in this writ petition.
12. Dismissed. Interim order, if any, stands vacated.
Order Date :- 28.2.2019 Siddhant Sahu