JUDGMENT Ajoy Nath Ray, C.J. and Ashok Bhushan, J.
1. These two special appeals have been heard together and are being disposed of by this common judgment.
2. We have heard Sri R. K. Ojha, learned Counsel for the appellant in special appeal of Jagdish Singh and Sri S. K. Verma, Senior Advocate, assisted by Sri Siddharth Verma In special appeal of Sanjay Kumar and Sri Ran Vijay Singh, learned Standing Counsel appearing on behalf of the respondents.
3. Special Appeal No. 178 of 2006 filed by Jagdish Singh is against the judgment and order dated 27th January, 2006 passed by a learned single Judge of this Court dismissing the writ petition of the appellant challenging the order of the District Inspector of Schools, Bhadohi dated 18th September, 2003 refusing to approve the appointment of the appellant as Class IV employee of a recognized aided institution, namely, Indra Bahadur Singh International Inter College, Bhadohi.
4. Brief facts necessary for deciding the appeal No. 178 of 2006 are; that a Class IV vacancy arose in the institution due to retirement of an incumbent. The case of the appellant is that the committee of management was permitted to start process of selection by the District Inspector of Schools vide his letter dated 11th March, 1998 in pursuance of which advertisement was issued on 11th March, 1998 calling the candidates to appear on 22nd March, 1998 at 10.00 A. M. in the institution for interview. The appellant's case is that the appellant applied and appeared for interview and was selected on 22nd March, 1998 on which date the appointment letter was also issued. The papers were forwarded by the Principal to the District Inspector of Schools for approval, on which the District Inspector of Schools has taken a decision on 18th September, 2003 after an order of this Court dated 4th May, 2003 passed in Writ Petition No. 20336 of 2000. The District Inspector of Schools by the impugned order has taken the view that the advertisement for appointment of the appellant was not published in two newspapers having wide circulation nor the information of the vacancy was given to the Employment Exchange. The order further states that details of the selection committee have not been made available and it is also not clear that how many applicants applied. The permission dated 11th March, 1998 was also said to be not issued from the office as per the statement made by the Camp Clerk Sri V.D. Pandey. The District Inspector of Schools has further taken view that there is a ban on the appointment, hence approval cannot be granted. The order dated 18th March, 1998 was challenged by the appellant in the writ petition which has been dismissed by the learned single Judge.
5. Special appeal of Sanjay Kumar is against the judgment and order dated 20th February, 2006 by which judgment a learned single Judge has dismissed the writ petition filed by the appellant. The appellant had filed the writ petition claiming that he is entitled for salary as Class IV employee. The appellant's case was that permission was given by the District Inspector of Schools for filling up Class IV post vide letter dated 5th March, 2001 and in pursuance of which, advertisement was issued on 8th March, 2001 and thereafter the appointment letter was issued to the appellant on 26th March, 2001 and the appellant thereafter joined on 27th March, 2001 and was working. The papers were forwarded for approval by the District Inspector of Schools, which were forwarded to the Regional Committee by the District Inspector of Schools, which were returned by the Regional Committee and subsequently another advertisement was issued on 28th April, 2002 in which the appellant also participated and some other person was selected and appointed.
6. Sri R. K. Ojha as well as Sri S. K. Verma, Senior Advocate appearing for the appellants submitted that under Regulation 101 of Chapter III of U.P. Intermediate Education Act, 1921 permission is required from the District Inspector of Schools for filling up the post and the permission having been granted by the District Inspector of Schools for appointment of the appellant, the selection of the appellant was complete and no error was committed by the appointing authority in giving appointment letter and permitting the appellant to join. It is submitted that the permission granted by the District Inspector of Schools, as claimed in the case of Jagdish Singh dated 11th March, 1998 and dated 5th March, 2001 in the case of Sanjay Kumar was sufficient which fully empowered the appointing authority to fill up the post.
7. Sri R.K. Ojha also submitted that the Rules, namely. The Group 'D' Employees Service (U.P.) Rules, 1985 are not applicable with regard to the appointment of Class IV employees in a recognized aided institution under the U.P. Intermediate Education Act, 1921 and the learned single Judge committed error in relying on the said Rules. Sri Ojha further submitted that the advertisement was made in one newspaper, which was sufficient. A number of applications received were there and the selection being fair, the District Inspector of Schools committed error in rejecting the candidature of the appellant.
8. Sri Ran Vijay Singh, learned Standing Counsel, appearing for the respondents, refuting the submissions of the learned Counsel for the appellant, contended that Regulation 101 of Chapter III of the U. P. Intermediate Education Act, 1921 contemplates 'prior approval', He submits that word 'approval' as used in Regulation 101 is not akin to prior approval as contended by the learned Counsel for the appellant. He submits that prior approval has to be accorded by the District Inspector of Schools after completion of entire process of selection of an employee whose process started with giving up intimation of vacancy as contemplated in Regulation 104 of Chapter III of U.P. Intermediate Education Act. Sri Ran Vijay Singh contended that unless the District Inspector of Schools is aware of the entire procedure of the selection, qualification of the candidates, their respective age and other detail facts, no effective power to approve can be exercised hence the approval has to be of the entire process of selection which is to be given immediately prior to appointing a candidate. He submits word "fill up" as used in Regulation 101 covers entire process beginning from intimation of vacancy culminating into submission of the proceeding to the District Inspector of Schools for consideration and approval and it is at that stage the Inspector is in a better position to check entire process and effectively exercise the duty entrusted on the Inspector. He submits that in aided recognized institutions entire salary is paid by the State and thus it is the obligation of the District Inspector of Schools also to look into all aspects of the matter before permitting to fill up the vacancy. Learned Counsel for both the parties have relied upon various judgments of this Court which shall be referred to while considering the submissions.
9. First issue, which has arisen in these appeals, is interpretation of 'prior approval' as used in Regulation 101 of Chapter III. Prior to Insertion of Regulations 101 to 107 in U. P. Intermediate Education Act with effect from 30th July, 1992, there was no express provision under the U. P. Intermediate Education Act, 1921 and the Regulations framed thereunder requiring approval of appointment of Class III and Class IV employees, although the provisions were there in the U. P. Intermediate Education Act, 1921 regarding approval of appointment of teachers. A Division Bench of this Court in 1982 UPLBEC - 232 Om Prakash v. District Inspector of Schools. Budaun and Ors., while considering the appointment of Class IV employee took the view that there is no provision for approval of appointment of Class IV employees. Regulations 101 to 107 were added providing for prior approval before filling up the vacancy of non-teaching post and providing for the appointment of dependent of deceased employee and a procedure thereof. Regulations 101 to 104 of the Regulations, which are relevant for the present case, are extracted below:
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.
"102. Information regarding vacancy as a result of retirement of any employee holding a non-teaching post in any recognised, aided institution shall be given before three months of his date of retirement and information about any vacancy falling due to death, resignation or for any other reasons shall be intimated to the Inspector by the appointing authority within seven days of the date of such occurrence.
103. Notwithstanding anything contained in these regulations, where any teacher or employee of ministerial grade of any recognised, aided institution, who is appointed accordingly with prescribed procedure, dies during service period, then one member of his family, who is not less that eighteen years in age, can be appointed on the post of teacher in train graduate grade or on any ministerial post, if he possesses prescribed requisite academic qualifications, training eligibilities, if any, and he is otherwise fit for appointment.
Provided that anything contained in this regulation would not apply to any recognised aided institution establish and administered by any minority class.
Explanation.- For the purpose of this regulation "member of the family" means widow or widower, son, unmarried or widowed daughter of the deceased employee.
Note.- This regulation and Regulations 104 to 107 would apply in relation to those employees who have died on or after 1 January, 1981.
104. Management of any recognised, aided institution within seven days of the date of death shall present a report to the Inspector about the members of the family of deceased employee, in which particulars of name of the deceased employee, post held, pay scale, date of appointment, date of death, name of the appointing institution and names of his family members, their academic and training eligibilities, if any, and age shall also be given. Inspector shall make entries of particulars of the deceased in the register maintained by himself.
10. Regulations 103 and 104, as quoted above, provide that the appointing authority shall intimate vacancy falling on account of retirement before three months of the date of retirement. In other cases vacancy was required to be communicated within 7 days from occurrence. Regulation further provides for appointment on compassionate ground to dependent of teaching or non-teaching employee in a recognized aided institution. The management was also enjoined to inform about the death of employee, dependents of the employees and the District Inspector of Schools was to put up the application, received from the member of the deceased employee for appointment, to a committee as contemplated under Regulation 105 to consider the case and thereafter the application was to be sent to the management for issuing appointment letter. Regulations 101 to 107 have to be read in a manner to give effect/and meaning to the provisions incorporated with effect from 30th July, 1992. The entire provisions requires harmonious construction, so all the regulations become workable and every part of it is given meaning.
11. Regulation 101, which is to be interpreted, uses a word "Inspector shall not fill up any vacancy". The word 'fill up', for the purpose of appointment, embraces in itself a procedure, which initiates from intimation of vacancy till selection of a candidate. The submission, which has been placed by the learned Counsel for the appellant, is that Regulation 101 means that before starting to fill up any vacancy, prior approval of the Inspector is required. He contended that thus permission is required from Inspector by the appointing authority to start with process of selection and once the permission is granted by the Inspector, the appointing authority is free to proceed with selection and make appointment. They contended that the permission to start selection is one which is contemplated in Regulation 101.
12. As noted above, there was no provision prior to 30th July, 1992 requiring prior approval with regard to Class III and Class IV posts. It is although true that no procedure for filling up the Class III and Class IV posts is contained in the regulation, except the requirement of the qualification which has been mentioned in Chapter III Regulation 2(1) of the U. P. Intermediate Education Act. The word 'approval' as rightly contended by the learned standing counsel, is approval of certain action which has already been taken. Had the Legislature intended that no selection process for Class III and Class IV posts shall begin without permission of the District Inspector of Schools, the word 'approval' would not have been used and the word used would have been that without prior approval or permission of the District Inspector of Schools, the appointing authority shall not commence selection process. The word approval has been defined in Webster's Third New International Dictionary as 'the act of approving, approbation, sanction, certification as to acceptability.
13. A learned single Judge of this Court had considered Regulations 101 in 1997 (2) UPLBEC 102 Dingur v. District Inspector of Schools. Mirzapur and Ors. In paragraph 23 of the judgment it has been observed that prior approval, which has been referred to in Regulation 101, has to be granted after examining the proceeding relating to the appointment and finding out as to whether the appointment was really necessary and as to whether it was made after following the procedure in a fair manner in accordance with the provisions. Paragraph 23 of the judgment is quoted below:
Further, the prior approval which has been referred to in the Regulation 101 in question has to be granted or refused by the competent authority not in an arbitrary manner but after examining the proceedings relating to the appointment and finding out as to whether the appointment was really necessary taking into consideration the norms fixed by the State Government justifying the continuance of the post and after satisfying as to whether the appointment was made after following the prescribed procedure in a fair manner and is in accordance with the provisions regulating the procedure which is prescribed for making such an appointment. It is only after the competent authority is satisfied that there is no defect in the procedure followed for making the appointment and such an appointment is infact necessary and further all the requisite conditions including the eligibility criteria etc. stand complied with and further the selection proceedings have been concluded in a fair manner that the District Inspector of Schools has to accord the prior approval which on the requisite conditions being satisfied cannot be withheld keeping in view the public interest involved as the State having undertaken to take the liability for payment of salary etc. of the teaching as well as non-teaching staff employed in a recognized Intermediate College or High School is bound to ensure that its smooth functioning is not hampered on account of refusal to grant approval to an appointment made by the committee of management in the interest of the institution.
14. Another learned single Judge had occasion to consider Regulation 101 in Writ Petition No. 36628 of 2002 Ram Dhani v. State of U.P. and Ors. and Writ Petition No. 36630 of 2002 Kailash Prasad v. State of U.P. and Ors. Vide its judgment dated 19th October, 2005, the learned single Judge, after considering the Regulation 102, took view that previous approval under Regulation 101 is required to be taken before issuing advertisement for filling up vacancy. Following was observed by the learned single Judge:
In the present case, from the record, it transpires that no previous approval was sought from the District Inspector of Schools before making an advertisement. In my opinion, previous approval under Regulation 101 is required to be taken before issuing an advertisement for filling up the vacancy. Previous approval is required at this stage and not at the stage when a candidate is selected after the advertisement. In the present case, no permission was sought from the District Inspector of Schools, Gorakhpur, prior to the issuance of the advertisement. The Committee of Management has also filed a counter affidavit and has no where stated that previous permission was taken from the District Inspector of Schools, Gorakhpur or that they had applied for permission before issuing the advertisement. Consequently, the appointment of the petitioner was ex-facie in violation of Regulation 101 of the Regulations. Consequently, no financial approval could be accorded by the District Inspector of Schools, Gorakhpur.
15. Against the above judgment of the learned single Judge dated 19th October, 2005, special appeal was filed, which was decided by our Division Bench vide judgment dated 22nd February, 2006 in special appeal. Only two submissions, raised before us, were dealt with by us i.e. firstly if the District Inspector of Schools fails to communicate its decision within reasonable time, the appointment shall be deemed to have been made and secondly, Regulation 101 gives uncanalised and unguided power to the District Inspector of Schools to grant or refuse approval, which itself is violative of Article 14 of the Constitution. Both the above contentions were repelled by us in our judgment dated 22nd February, 2006. While considering the concept of approval, we made the following observation in the said judgment.
The concept of the approval of an appointment is a well known concept under the U. P. Intermediate Education Act, 1921 with regard to the appointment by the Selection Committee for direct recruitment as well as in the case of promotion. For appointment the procedure is prescribed in the various Regulations. The qualification for appointment is also provided in Chapter-Ill and other provisions of the Act and the Regulations framed. While considering the question of approval of appointment of a candidate, the District Inspector of Schools has to act in accordance with the other express provisions provided for qualification, eligibility and procedure prescribed for selection. It cannot be said that the power of approval as contemplated under Regulation 101 is not hedged by any guidance or qualification. It is not in the discretion of the District Inspector of Schools to pass an order for approval or disapproval at his sweet will. He has to pass an order taking into consideration the other provisions and Regulations of the Act. Thus the submission of the learned Counsel for the appellant that the said power is uncanalised and the provision itself is arbitrary, cannot be accepted.
16. The submission, which is now being raised before us in these appeals, was neither considered by us nor was pressed before us in the special appeal decided on 22nd February, 2006, although we have approved the judgment of the learned single Judge dismissing the writ petition but the question as to whether the prior approval is required to be taken before issuing an advertisement for filling up vacancy was neither canvassed before us nor felt for our consideration.
17. Original Notification by which Regulation 101 to 107 was inserted in Chapter III is in Hindi. It is useful to reproduce the original Regulation 101 which is as follows:
101-fu;qfDr izkf/kdkjh] fufj{kd ds iwokZuqeksnu ds flokp fdlh ekU;rkizkIr] lgk;rkizkIr laLFkk ds f'k{k.ksRrj LVkQ dh fdlh fjfDr dks ugha Hkjksxk% izfrcU/k ;g gS fd teknkj ds in dh fjfDr dks fujh{kd }kjk Hkjus dh vuqefr nh tk ldrh gSA
18. Regulation 101, as quoted above, uses two words, namely, ^iwokZuqeksnu* and ^vuqefr*]. The first part of the Regulation provides that appointing authority except with prior approval of Inspector shall not fill up any vacancy of non-teaching post of any recognised aided institution whereas second part of the Regulation provides that permission for filling of post of sweeper (Jamadar) can be given by Inspector. Second part of the Regulation is In the nature of proviso. The main part of the Regulation contains word ^iwokZuqeksnu* i.e. prior approval whereas second part of the Regulation uses word ^vuqefr*] i.e. permission. Thus, the Statute uses both the word 'prior approval' and 'permission'. The meaning of both the word cannot be the same. In view of this, the submission of the learned Counsel for the appellant that Regulation 101 requires only permission to issue advertisement by appointing authority and if such permission is granted by Inspector, the appointing authority can fill up the post. Regulation 101 provides prior approval with regard to vacancy of non-teaching staff and permission is contemplated only for filling the post of sweeper. Regulation thus indicates that when the permission is given to the appointing authority to fill up post of sweeper. There is no further prior approval is required. This provision being in nature of proviso to the main Regulation shall operate as an inception to the first part of Regulation. Thus, the use of two words in Regulation 101 i.e. 'prior approval' and 'permission' itself negates construction of Regulation as contended by the counsel for the appellant.
19. When the prior approval of the Inspector is contemplated in Regulation 101, that prior approval embraces itself an examination of all aspects of the matter including existence of the vacancy, nature of the vacancy whether vacancy is to be filled up by management or it be filled by appointing the dependent of deceased employee who has claimed for appointment under the scheme of the Regulations 101 to 107.
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 member of deceased employee, who is entitled for compassionate appointment to the institution, who has to issue appointment letter to such candidate. 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 candidate. 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.
23. The second submission, with regard to the applicability of The Group 'D' Employees (U.P.) Service Rules, 1985 to selection of Class IV posts in a recognized aided institution, Sri Ojha contended that the said Rules are not applicable. Further Sri Ojha contended that for the first time the said Rules were made applicable to the selection of Class IV posts vide letter dated 1st June, 2001 of the Director of Education issued in pursuance of some letter written by the State Government dated 11th May, 2001 and the selection of the appellant being earlier in point of time, the said Rules were not applicable in the present case. Sri Ojha has further submitted that it is not necessary to decide the issue regarding the applicability of 1985 Rules to the selection of the Class III and Class IV employees. Sri Ran Vijay Singh submits that since, according to the petitioner's case, the said 1985 Rules have been made applicable by the letter of the Director of Education dated 1st June, 2001 and the appellant's selection being of the year 1998, thus 1985 Rules cannot be applied to the appellant. In view of the aforesaid, we have not examined the submissions regarding the applicability of 1985 Rules with regard to selection on Class III and Class IV posts in a recognized aided institution and the said question is left open.
24. Coming to the submission of Sri R. K. Ojha on merits of the order passed by the District Inspector of Schools refusing approval, it is clear that the District Inspector of Schools, not being satisfied that the advertisement was published in two newspapers having wide circulation and there being no details of the candidates, who have applied against the post and there being no information to Employment Exchange, the approval was refused. The advertisement, on which reliance has been placed by the learned Counsel for the appellant, has been filed as Annexure '2' to the affidavit filed in support of memo of appeal. The case of the appellant is that the District Inspector of Schools has granted permission on 11th March, 1998 to take steps for appointment by completing all formalities. The said letter is Annexure '1'. The District Inspector of Schools in the order although has not accepted the said letter dated 11th March, 1998 having been issued from the office of the District Inspector of Schools but it is not necessary to express any opinion as to whether the said letter was issued or not by the office of the District Inspector of Schools due to one reason as noticed below. The letter of the District Inspector of Schools granting alleged permission is dated 11th March, 1998. The advertisement, which is said to be issued in newspaper 'Janvarta' is also of the same date i.e. 11th March, 1998. How it was possible to get the advertisement published on 11th March, 1998 when the permission is being granted by the District Inspector of Schools on 11th March, 1998 itself. In the advertisement dated 11th March, 1998, 22nd March, 1998, i.e. just eleven days after the date has been fixed for interview. We are satisfied that the District Inspector of Schools has rightly taken the view that there was no proper advertisement of the vacancy and the view taken by the District Inspector of Schools refusing to approve such appointment cannot be said to be based on no material or perverse, We are unable to interfere with the order of the District Inspector of Schools dated 18th September, 2003 refusing to approve such appointment.
25. Coming to the appeal of Sanjay Kumar, it is not the case of the appellant that any approval has been granted to the selection of the appellant after completion of selection process. Learned Counsel for Sanjay Kumar, appellant, has placed reliance only on permission dated 5th March, 2001 of the District Inspector of Schools for publishing advertisement. We have already held that the permission to publish the advertisement is not same thing as prior approval by the District Inspector of Schools as contemplated under Regulation 101. Moreover, after first advertisement dated 8th March, 2001, the Principal again issued advertisement on 28th April, 2002 on the basis of which selection has already been made and a person has already been appointed who has been represented before us by Sri R. S. Misra, Advocate. Sri R. S. Misra, Advocate has rightly pointed out that the appellant is not entitled for any relief since he has not even challenged the selection of the selected candidate on the basis of the advertisement dated 28th April, 2002. There being no approval to the selection of the appellant, Sanjay Kumar, no error has been committed by the learned single Judge in dismissing the writ petition filed by Sanjay Kumar.
26. In view of the foregoing discussions, both the appeals are dismissed. The parties shall bear their own costs.