JUDGMENT Tarun Agarwala, J.
1. Heard Sri Ramesh Chandra Dwivedi, the learned counsel for the petitioner and Sri Suresh Singh, the learned Standing Counsel appearing for the respondents.
2. Sri Upendra Mishra working as an Assistant Teacher in L.T. Grade in Mahant Triveni Parvat Inter College, Vishunpura Bazar, Deoria was given an adhoc promotion to the post of lecturer in Economics. Consequently, a short term vacancy on the post of Assistant Teacher in L.T. Grade fell vacant. The Committee of Management intimated the vacancy to the District Inspector of Schools on 27.9.1998. An advertisement for this vacancy was also published in the newspaper 'Amar Ujala'. The petitioner applied for the said post and was called for the interview. The Selection Committee recommended the name of the petitioner on this short term vacancy on the post of Assistant Teacher in L.T. Grade. The recommendation of the Selection Committee was forwarded by the Committee of Management to the District Inspector of Schools vide a covering letter dated 1.12.1998 for grant of financial approval. Pending approval from the District Inspector of Schools, it transpires that the Committee of Management issued an appointment letter dated 16.11.1998 in favour of the petitioner.
3. The District Inspector of Schools by an order dated 30.3.1999 refused to grant the financial approval on the ground that the State Government had imposed a ban on appointments and, therefore, no appointment could be made. This order was challenged by the petitioner in Writ Petition No. 34845 of 1999. This Court while disposing of the writ petition, quashed the order dated 30.3.1999 and directed the authority to reconsider the matter afresh. Pursuant to the aforesaid direction, the District Inspector of Schools by an order dated 29.1.2003 again rejected the claim of the petitioner for the grant of financial approval of his appointment on the post of Assistant Teacher in L.T. Grade. Consequently, the present writ petition.
4. The District Inspector of Schools has refused to grant the financial approval on three grounds-
(a) No vacancy was intimated by the Committee of Management to the authority concerned.
(b) The intimation of the select list was received in the office of the District Inspector of Schools on 2.12.1998 and the Committee of Management was required to wait at least for a period of one week before issuing an appointment letter, but without waiting for the expiry of the aforesaid period, the appointment letter was issued by the Committee of Management.
(c) The U.P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order, 1981 had been repealed w.e.f. 23.1.1999. Therefore, no such appointment order could now be approved by the authority now.
5. In my view, the reasoning adopted by the District Inspector of Schools is totally incorrect. The petitioner in paragraph 4 of the writ petition has categorically stated that the short term vacancy was duly intimated to the District Inspector of Schools on 27.9.1998. This fact has not been denied by the respondents either in paragraphs 3 or 4 of the counter affidavit. Consequently, the finding of the District Inspector of Schools that no vacancy was intimated in the office of the authority is against the material evidence on record.
6. The finding of the Inspector that the appointment was made by the Committee of Management was illegal inasmuch as the appointment was made prior to the approval granted by the Inspector is also misconceived. In Ashika Prasad Shukla v. District Inspector of Schools, Allahabad and Anr., (1998)3 ESC 2006, a Division Bench of this Court held-
"15. The next question that falls for consideration is whether the appointment of the petitioner-appellant could still stand invalidated on the ground that it was make without prior approval of the District Inspector of Schools, Sri Yatindra Singh placed reliance on a Division Bench decision of this Court in A.K. Pathshala v. Smt. M.D. Agnihotri, 1971 Alld. LJ. 983, wherein it was held, on construction of Section 16-F(1) of the U.P. Intermeditate Education Act, 1921, that appointment without prior approval by the Competent Authority would, in the eye of law, be no appointment. The ratio of the said decision as held by a subsequent Division Bench in Lalit Mohan Misra v. District Inspector of Schools, 1979 All.LJ. 1025, is that a "person gets the status of a teacher when requisite formality is completed." The relevant observation are as under:-
"Without approval the person does not get the status of a teacher even though the approval is to be followed by formal letter but in the absence of formal letter the person gets the status of a teacher after approval to the appointment is given by the District Inspector of Schools. The appointment of a person as a teacher becomes effective only from the date approval is given and even if a person is allowed to work before that the same has no recognition under the U.P. Intermediate Education Act."
16.Paragraph 2(3)(iv) of the Second Removal of Difficulties Order is not phrased in a prohibitory language as was the language used in Section 16-F(1) of the U.P. Intermediate Education Act, 1921. The words 'prior approval' have been used in Sub-clause(ii) of paragraph 2(3) of the Second Removal of Difficulties Order and a conjoint reading of Sub-clauses (ii),(iii) and (iv) of Clause (3) of paragraph 2, no doubt, leads to an inescapable conclusion that the appointment would be issued under the signature of the Manager only on the approval having been communicated by the District Inspector of Schools within seven days of the receipt of the papers or where the approval is deemed to have been accorded as visualized by Sub-clause (iii) of Clause (3) of paragraph 2 of the Second Removal of Difficulties Order. However, appointment if made prior to approval or deemed approval, would become-effective from the date of approval of deemed approval as held by the Division Bench of this Court in Lalit Mohan Misra."
7. Similar view was again held by a Division Bench of this Court in Special Appeal No. 319 of 2005 in Smt. Shobha Rastogi v. The Committee of Management and Ors., decided on 22.3.2005. From the aforesaid judgments, the conclusion arrived is that the appointment could be issued by the Manager only on the approval communicated by the District Inspector of Schools within seven days of the receipt of the papers or where the approval was deemed to have been accorded as visualized by sub Clause (iii) of Clause (3) of Paragraph 2 of the Second Removal of Difficulties Order. Further, any appointment made prior to the approval or deemed approval would become effective only from the date of approval or deemed approval and that the appointment made prior to the approval or deemed approval would not be held to be illegal. In view of the aforesaid, the authority was not justified in rejecting the case of the petitioner on this ground.
8. The last ground, namely, that the approval cannot be granted on account of the fact that the Second Removal of Difficulties Order had been repealed w.e.f. 25.1.1999, it is submitted that the repealing of the Second Removal of Difficulties Order would not make any difference with regard to the action taken under the said Order prior to the date of the repeal.
Section 18 of the Act has been repealed by the U.P. Secondary Education Service Selection Board (Amendment) Act, 1999 with effect from 25.1.1999 by the insertion of Section 33-E in U.P. Act No. 5 of 1982. Section 3 of the U.P. Act No. 13 of 1999 states as under:-
"Section 3- Repeal and Saving.
(1) The U.P. Secondary Education Service Commission and Selection Board (Amendment) Ordinance, 1999 (U.P. Act No. 5 of 1999) is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken under the provisions of the Principal Act, as amended by Ordinance referred to in Sub-section (1) shall be deemed to have been done or taken under the corresponding provisions of the Principal Act, as amended by this Act as if the provisions of this Act were enforced at all material times."
9. The aforesaid provisions clearly indicates that the action of the Management in appointing the petitioner under Section 18 of the aforesaid Act could not be rendered illegal or void, merely because the said section had been repealed. Similar view was held by this Court in Ram Swaroop Bajpayee v. Joint Director of Education and Ors., 2004(57) ALR 155.
10. In the present case, the appointment was made on 16.11.1998 whereas the Section was repealed on 25.1.1999. Therefore, in my view, the action taken under section 18 of the Act remains valid and will not become void, merely, by the repealing of the Section.
11. In view of the aforesaid, the impugned order dated 19.1.2003 cannot be sustained and is quashed. The writ petition is allowed and a mandamus is issued to the District Inspector of Schools to grant financial approval on the appointment of petitioner on the short term vacancy on the post of Assistant Teacher in L.T.Grade within six weeks from the date of the production of a certified copy of this order.