Heard learned counsel for the petitioner, learned State Counsel for the respondent nos. 1 &2 and Sri Shashi Kant Mishra, Advocate, holding brief of Sri M.E.Khan, learned counsel for the respondent no. 3.
The present writ petition has been preferred for quashing of the impugned order dated 21-04-2014 passed by the District Inspector of Schools, Gonda i.e. respondent no. 2 by which the approval for the appointment of the petitioner on Class IV post has been rejected.
Learned counsel for the petitioner has submitted that the petitioner, after following the due process of selection i.e. advertisement in two newspapers, after facing the selection committee, was selected for appointment on a Class IV post. The appointment letter was issued in favour of the petitioner on 12-11-2013 and in pursuance of which the petitioner joined on 18-11-2013 and since then he has continuously been working. The papers pertaining to selection of the petitioner had been forwarded to the D.I.O.S., Gonda for his approval, but, the same was rejected vide impugned order dated 21-04-2014.
The approval of the petitioner's appointment has been rejected mainly on two grounds; firstly, the appointment of the petitioner is against the government order dated 06-01-2011 by which there was a ban on the appointment on Class IV posts and the Class IV posts which were to be filled up by outsourcing only. Secondly, the selection of the petitioner was made without there being any prior approval from the D.I.O.S.
It is further stated that the government order dated 06-01-2011 has already been quashed by this court vide its Judgment and order dated 25-01-2012 passed in Writ Petition No. 512(S/S) of 2012, Rakesh Kumar Maurya Versus State of U.P. Through Prin. Secy. Finance Deptt. Lko & Ors and the prior approval of the Director of Education (Madhyamik) is not required prior to the selection.
Prior approval has been interpreted by this court in catena of Judgments wherein it has been held that the prior approval is required prior to issuance of appointment letter after the selection.
Learned counsel for the petitioner in support of his submissions has relied upon the case of Rakesh Kumar Maurya(Supra), the Judgment and order dated 25-11-2020 passed by this court in Writ A No. 27163 of 2016, Amarsen And Another Versus State of U.P. And 2 Others and also the Judgment and order dated 03-12-2018 passed by this court in Writ Petition No. 2341(S/S) of 2010, Sunil Kumar Versus State of U.P. Through Secy. Secondary Education, Lko and Ors.
On the other hand, learned Counsel for the State has submitted that there was a ban by the government order dated 06-01-2011, so appointment of the petitioner is in contravention of the said government order and there was no prior approval of the competent authority for making selection on Class-IV posts.
It is further contended that it is also not sure as to whether the petitioner is still working in the institution or not and prays for some more time for filing Counter Affidavit. In the Counter Affidavit filed by opposite party no. 3 where it is stated that the petitioner is though working but is not paid any salary.
The issue involved in the present writ petition is covered by the Judgments of this court and can be decided at this stage itself.
The request of the learned State Counsel is not acceptable as this court vide its order dated 05-11-2014 had granted four weeks' time for filing Counter Affidavit, but till date no Counter Affidavit has been filed.
The learned State Counsel has failed to dispute that the Judgment and order dated 25-01-2012 passed in Writ Petition No. 512(S/S) of 2012 by which the government order dated 06-01-2011 has been quashed. The copy of the Judgment and order dated 25-01-2012 is enclosed as Annexure No. 4 to the writ petition. He is also unable to dispute the other two Judgments relied upon by the learned counsel for the petitioner relating to interpretation of prior approval that it is required prior to issuance of appointment letter.
After hearing learned counsel for both the parties, it is found that the order dated 21-04-2014 passed by the D.I.O.S., Gonda is without application of mind for the reason that the government order dated 06-01-2011 has already been quashed by this court in the year 2012 and the reliance has been placed on the said government order for rejecting the claim of the petitioner at the time of consideration on 21-04-2014.
Second ground taken in the impugned order that the prior approval from the Director of Education (Madhyamik) was not taken prior to selection is also interpreted by this court in catena of Judgments and lastly in the Judgment and order relied upon by the learned counsel for the petitioner in the case of Sunil Kumar(Supra), which has been passed placing reliance on the Judgment of this court in the case of Jagdish Singh Versus State of U.P. and Others, reported in 2006(2) U.P.L.B.E.C. 1851, wherein it has been held by this court that the words 'prior approval' indicated in the said Regulation 101 is applicable only after the selection process has been completed but prior to issuance of the appointment letter by the appointing authority. Relevant portion in the case of Jagdish Singh (Supra) is extracted hereinunder :-
"18. Regulation 101, as quoted above, uses two words, namely,"POORVANUMODAN" and "ANUMATI". 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 "POORVANUMODAN" i.e. prior approval whereas second part of the Regulation uses word "ANUMATI" 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."
"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."
Both these grounds taken in the impugned order dated 21-04-2014 are non existing and against the law settled by this court, hence, the impugned order dated 21-04-2014 is hereby quashed with a direction to the D.I.O.S. Gonda to consider the case of the petitioner afresh and pass appropriate orders within a period of six weeks from the date of representation made by the petitioner in the light of the aforesaid observation made hereinabove.
With the observations made hereinabove, the writ petition is allowed.
Order Date :- 22.2.2021 AKS