By means of present writ petition under Article 226 of the Constitution, the petitioner four in number, are assailing the validity of the order dated 22.1.2005 passed by the District Inspector of Schools, Gorakhpur rejecting their representation dated 18.11.2004.
The facts as reflect from the record are thus:
There is an Institution known as Dayanand Inter College, Gorakhpur (hereinafter referred to as Institution), which is recognized and aided Intermediate College imparting education from Class VI to XII. The said Institution is duly recognized under the provisions of U.P. Intermediate Education Act, 1921 and the provisions of U.P. Act No. 21 of 1971 are also applicable to the said Institution.
On account of retirement of Sri Subedar, Smt. Jaitun, Sri Sampat and Sri Ram Saran, Class-IV employees, four vacancies came into existence in the Institution. Out of four Class-IV posts, two posts are of Sweeper. The Principal of the Institution sought permission from the D.I.O.S on 15.7.1999 to fill up the aforesaid four Class-IV vacancies. When the D.I.O.S paid no heed, the Principal sent reminders on 23.7.1999 and 29.7.1999 seeking prior permission for filling up the aforesaid posts, but no orders were passed by the D.I.O.S, and therefore, the Principal advertised the said posts on 6.8.1999 in daily newspaper 'Aaj', according to which the interview was to be held on 13.8.1999. A selection committee was constituted consisting of the Principal, one Lecturer and one L.T. Grade Teacher. The petitioners in pursuance of the advertisement applied for their appointments on the aforesaid four vacancies and their interview was to take place on 13.8.1999.
On 13.8.1999, when interview was to take place at 10:00 am, a letter from the D.I.O.S was received informing/intimating that since there was a ban on appointment, it was not possible to accord the permission for making selection and appointment against the vacancies in question. However, since the candidates had already turned up in pursuance of the advertisement, the interview started and the selection proceedings were finalized and the petitioners were issued appointment letters on 17.8.1999. The petitioner-1 was appointed as Chowkidar, petitioner-2 as Peon, while petitioner-3 and 4 were appointed as Sweepers. The petitioners joined their post and started working w.e.f. 18.8.1999. Subsequently, papers regarding their appointments were sent to the D.I.O.S for financial approval vide letter dated 15.10.1999, but no response was received from the D.I.O.S . Thereafter, the Principal sent the reminder on 15.10.1999 for grant of financial approval.
In the meantime, the petitioners preferred Writ Petition No. 37334 of 1999 before this Court challenging the order dated 13.8.1999 of the D.I.O.S . The said writ petition was allowed vide judgment and order dated 23.4.2002, whereby the order dated 13.8.1999 was quashed and matter was remanded to the D.I.O.S for deciding the matter afresh in the light of judgment passed in case of Rajendra Yadava Vs. Deputy Director of Education, 1999 (3) AWC 2123.
Pursuant to the said judgment, petitioners moved representation before the D.I.O.S and the claim of the petitioners were again rejected vide order dated 18.6.2003. This order was passed on the ground that no Class-IV posts are vacant at the time of the advertisement/appointment of the petitioners as according to financial survey report dated 23.6.1989, only 16 Class-IV employees can be appointed although, 17 Class-IV employees were already working; the officiating had no right to make the appointment; the advertisement was defective; and lastly Regulation 101 of Chapter III of the U.P. Intermediate Education Act had not been complied with as no prior permission/approval was taken.
The petitioner again filed Civil Misc. Writ petition No. 29501 of 2003 assailing the order dated 18.6.2003 passed by the D.I.O.S and the said writ petition was also allowed by this Court vide judgment and order dated 15.10.2004. The order of the D.I.O.S was quashed and D.I.O.S was directed to decide the matter afresh in accordance with law in the light of the observations made in the judgment after affording opportunity of hearing to the parties concerned.
Pursuant to the order passed by this Court, the D.I.O.S again refused to accord the approval vide order dated 22.1.2005 and rejected the representation of the petitioner. The said order is impugned in the present writ petition.
I have heard Sri Rahul Jain, learned counsel for the petitioner and learned Standing Counsel for the State respondents.
Sri Rahul Jain, learned counsel for the petitioners submits that the D.I.O.S has wrongly held that no Class-IV posts were vacant at the time of appointment although there are 24 sanctioned posts of Class-IV employees vacant. Further the finding that the Regulation 101 of Chapter III of the Intermediate Education Act was not complied with as no prior permission was taken before making the appointment, is not correct and against the law laid down by this Court in the case of Jagdish Dildar Singh Vs. State of U.P 2006 (3) UPLBEC 2765. He further submitted that the earlier order of the D.I.O.S dated 13.8.2006 was set aside by this Court vide judgment and order dated 23.4.2002 and again the impugned order has been passed refusing to grant financial approval to the appointment of petitioners almost on the same ground. According to the learned counsel, the order impugned is contemptuous as twice this Court had directed the D.I.O.S to consider the case of the petitioners but the same has not been considered.
It is further argued by the learned counsel for the petitioners that the officiating has a right to appoint the Class-IV employees and there is no bar either under the Act or the Regulation that the officiating cannot make the appointment. Lastly it was argued that roaster as prescribed under the U.P. Act No. 4 of 1994 has wrongly been applied.
On the other hand, learned Standing Counsel supported the findings as recorded in the impugned order.
I have considered the rival submissions and perused the record.
The District Inspector of Schools rejected the claim of the petitioners for grant of financial approval on the following grounds:
(i) No Class-IV posts were vacant at the time of advertisement/appointment of the petitioners and only 16 Class-IV posts were sanctioned while at the time of the appointment, 17 Class-IV employees were already working.
(ii) Provisions of Regulation 101 and 102 of Chapter III of U.P. Intermediate Education Act, 1921 have not been complied with as no prior approval/permission was taken before making the appointment and judgment passed in the case of Rajendra Yadava Vs. Deputy Director of Education does not apply to the present case.
(iii) Roster of 1994 prescribed under U.P. Act No.4 of 1994 provides 4 posts for scheduled caste category and 4 posts for other backward community while 5 scheduled caste and 9 other backward community candidates were already working at the time of advertisement/appointment of the petitioners.
(iv) The Officiating Principals had no right to make appointment of Class-IV employees.
So far as the first ground is concerned, it reflects from the record that in paragraph 11 and 29 of the counter affidavit, it has been stated that only 16 posts have been approved in the Institution and 14 Class-IV posts have been declared surplus and 17 Class-IV employees were working at the time of the appointment of the petitioners, therefore, in absence of the posts, it was not appropriate to grant financial approval.
The petitioners filed rejoinder affidavit in which it has been stated that there are 30 sanctioned posts of Class-IV and 30 Class-IV employees were working and getting salary from the State exchequer. It is further stated that neither any Class-IV post has been declared surplus nor has been abolished.
This Court's vide order dated 15.4.2013, granted time to the Standing Counsel to file supplementary counter affidavit stating the fact as to how and by which order, 14 posts of Class-IV employees in the Institution in Class-IV have been abolished.
In compliance of the said direction, a supplementary counter affidavit was filed on behalf of respondent no.2 annexing therewith a copy of letter dated 19.7.2006 issued by the Director, Secondary Education, wherein it has been stated that there were only 16 sanctioned posts of Class-IV employees in the Institution.
Again this Court vide order dated 30.7.2014 directed the Standing Counsel to clarify the contents of para 2 and 3 of the said supplementary counter affidavit as the respondents did not disclose the manner in which the Class-IV posts were declared surplus.
Pursuant to the aforesaid order second supplementary counter affidavit has been filed on behalf of respondent no.2 stating that there are 29 sanctioned posts of Class-IV employees in the Institution and a copy of the letter dated 22.2.2013 of Government of U.P. sent to the Director, Secondary Education, U.P. containing strength of teaching and non-teaching staff of the Institution has been annexed. The name of the Institution in question is at Serial No. 39 along with enclosed list.
The District Inspector of Schools has wrongly held that no Class-IV posts were vacant at the time of the appointment of the petitioners. Although, in fact there are 30 sanctioned posts of Class-IV against which 30 employees were working and getting salary from the State Exchequer, which is also apparent from annexure-2 of the writ petition.
The respondent in their second supplementary counter affidavit have admitted that there were 29 sanctioned posts and therefore, the finding given by the District Inspector of Schools regarding Class-IV posts is against the record and is perverse.
So far as the finding of the District Inspector of Schools that the Provisions of Regulation 101 of Chapter III of the U.P. Intermediate Education Act have not been complied with as no prior permission was obtained before making the appointment is concerned, it is relevant to quote here Regulation 101 to 104 of the Regulations, which reads thus:
"101. Appointing authority except with prior approval of Inspector shall not fill 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 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 than eighteen years in age, can be appointed on the post of teacher in trained 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 established and administered by any minority class.
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 eligibility, if any, and age shall also be given. Inspector shall make entries of particulars of the deceased in the register maintained by himself."
Regulations 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 its occurrence. Regulation further provides for appointment on compassionate ground to dependent of teaching and 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 family 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.
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.
In Jagdish Dildar Singh Vs. State of U.P. and others 2006 (3) UPLBEC 2765, this Court after interpreting the provisions of Regulations framed under U.P. Intermediate Education Act observed as under:
"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. "
In the present case, though prior permission for making the appointment was sought by the Principal, but no orders were passed by the District Inspector of Schools within the reasonable time and more than two weeks had passed. Thus, there was a deemed approval/permission as laid down by this Court in the case of Rajendra Yadava Vs. Deputy Director of Education, 1999 (3) AWC 2123 in which, the question as to what should be the reasonable period, has been considered. Paragraph 9 of the said judgment is quoted as under:
"9. The question is as to what should the "reasonable period' within which the District Inspector of Schools should either accord, or refuse to accord, approval under Regulation 101 of Chapter III of the Regulations. In Regulation 6 of Chapter II, provision has been made that if the District Inspector of Schools fails to communicate his decision on the proposal submitted by the Committee of Management for appointment of a teacher by promotion within three weeks from the date of receipt of the proposal, he shall be deemed to have given concurrence to the proposal of the management. There are other provisions, for example Section 16F (2) as it originally stood, where the Legislature has provided for 'deemed approval' in the event of failure on the part of the competent authority to communicate his decision within two weeks. Similarly para 2 (3) (iii) of U. P. Secondary Education Service Commission (Removal of Difficulties) Order, 1981 also enjoins a duty upon the District Inspector of Schools to communicate its decision on the proposal for ad hoc appointment in short term vacancy within seven days from the date of receipt of the relevant papers failing which it shall be deemed that the District Inspector of Schools has given his approval. The District Inspector of School, as stated earlier in this judgment, did not communicate his decision in response to the letters dated 28.2.1995 and 13.1.1996 within reasonable time and it was by means of the letter dated 25.4.1996 (Annexure-10 to the writ petition) that he purports to have declined financial approval to the appointment of the petitioner. Applying the test of reasonableness as laid down by the Supreme Court in the case referred to above. I am of the considered view that two weeks from the date of receipt of the letter seeking approval would be 'reasonable period' within which the District Inspector of Schools must communicate his decision to the appointing authority failing which he shall be deemed to have accorded approval. In the circumstances of the case, therefore,, the District Inspector of Schools would be deemed to have accorded approval way back on or before February 1, 1996 and the petitioner is, therefore, entitled to his salary w.e.f. 1.2.1996. "
The ratio laid down in the case of Rajendra Yadav (supra) applies with full force to the facts of the present case and contrary view taken by the D.I.O.S in the impugned order cannot be sustained in the eyes of law.
The District Inspector of Schools applied the roster prescribed under U.P. Act No.4 of 1994 simply on the ground that there were 16 Class-IV posts, while it is admitted by the respondents in their supplementary counter affidavit that there are 29 sanctioned Class-IV posts and therefore, the roster should be applied on 29 posts of Class-IV and not on 16 posts. Admittedly, the petitioner nos. 3 and 4 belong to scheduled caste and were appointed on the post of Sweeper and therefore, the roster should consider on 29 Class-IV posts.
On this score, the ground taken with regard to the roster cannot be sustained.
The view taken by the District Inspector of Schools that the Officiating Principal has no right to make appointment does not appear to be correct as there is no provision either under the U.P. Intermediate Education Act or the Regulation framed thereunder that the Officiating Principal cannot make the appointment on Class-IV post.
In view of the aforesaid discussion, it is apparent that the District Inspector of Schools has committed illegality while passing the impugned order and the grounds as mentioned in the impugned order are not sustainable.
In the result, the writ petition succeeds and is allowed. The impugned order dated 22.1.2005 passed by the District Inspector of Schools, Gorakhpur is quashed. The respondents are directed to grant financial approval to the petitioners' appointment from the date of their appointment and to ensure the payment of salaries including its arrears up-to-date within a period of three months from the date of production of certified copy of this order.
There will be no order as to cost.
Order Date :- 30.05.2018 Noman