Heard Shri A.K. Singh for the petitioner, learned Standing Counsel for State respondents and Shri J.P. Singh for respondent no. 5.
Petitioner herein is aggrieved by the order dated 14.03.2011 passed by Joint Director of Education, Azamgarh Region holding his appointment on Class III post in the institution illegal and in violation of provisions of Regulation 101 to 107 of Chapter III of the Regulations framed under U.P. Intermediate Education Act, 1921.
Facts giving rise to the dispute are as under.
Shri Ganga Prasad Inter College, Jagdishpur, Azamgarh is a recognised and aided Intermediate college. One post of senior clerk and one post of junior clerk were sanctioned in the institution by the Director of Education vide order dated 07.07.2006. It is alleged in the petition that Committee of Management vide resolution dated 25.07.2006 resolved to fill the said post and accordingly an application dated 26.07.2006 seeking prior approval for initiating proceedings of appointment was moved before District Inspector of Schools. However, when District Inspector of Schools did not respond to the request, the committee advertised the vacancies in Hindi Daily 'Aaj' and 'Amar Ujala' in its issue dated 29.09.2006. Petitioner along with respondent no. 5 and others were applicant for the post of senior clerk. Selection committee after interview recommended a list in order of merit wherein respondent no. 5 was placed at serial no. 1 and petitioner was placed at serial no. 2. Committee of Management approved the recommendation of the selection committee in its meeting dated 17.12.2006. Without seeking any approval from District Inspector of Schools, respondent no. 5 was issued appointment order dated 29.01.2007. It is alleged that vide letter dated 05.02.2007, respondent no. 5 expressed his inability to join. Thereafter, Committee of Management issued appointment letter dated 08.02.2007 in favour of the petitioner who joined the institution on 12.02.2007. It is alleged that papers pertaining to appointment of the petitioner were forwarded to District Inspector of Schools on 08.02.2007 for grant of approval. However, when District Inspector of Schools did not pass any order, petitioner approached this Court by filing Writ Petition No. 23922 of 2007 which was disposed of with a direction to District Inspector of Schools to examine the claim and pass appropriate order. In compliance of the order, petitioner represented before District Inspector of Schools, who passed an order dated 23.09.2008 according approval to the appointment of the petitioner and payment of salary w.e.f. the actual date of joining the post.
According to the own case set up by the petitioner, he joined on 05.02.2007, thus, approval by the District Inspector of Schools was post facto. Aggrieved by the approval granted to appointment of petitioner, respondent no. 5 Arun Kumar Singh filed Writ Petition No. 70694 of 2009 alleging that he never waived his right to be appointed nor offered resignation and the petitioner obtained the appointment by misrepresentation. Vide order dated 23.12.2009, this Court disposed of the writ petition giving liberty to approach Regional Joint Director for redressal of grievances, who in turn, was directed to resolve the controversy after notice to the Committee of Management and the present petitioner.
However before Regional Joint Director could decide the issue, the order of District Inspector of Schools approving appointment of the petitioner, was also challenged by Deputy Manager of the institution by filing Writ Petition No. 21957 of 2010. The said writ petition was also disposed of on 22.04.2010 relegating the parties to Regional Joint Director of Education.
In pursuance to the aforesaid two orders passed by this Court, Joint Director of Education after considering the representations of the petitioner, respondent no. 5, Manager and Deputy Manager and the documents produced in support of their claim, disapproved the appointment of the petitioner vide order dated 08.09.2010 on the ground that post of senior clerk is promotional post and was to be filled up by promotion and not by direct recruitment, hence, the entire process of direct recruitment was illegal. He further held that since the appointment of petitioner was made without prior approval, hence, it was illegal and District Inspector of Schools wrongly granted approval without considering that no prior approval was obtained. With respect to respondent no. 5, it was held that since the very procedure adopted for making selection and appointment was illegal, the question whether he declined the appointment or resigned, loses its significance.
Petitioner again filed Writ Petition No. 59909 of 2010 challenging the order dated 08.09.2010. Vide order dated 29.09.2010, writ petition was allowed and the order of Regional Joint Director was quashed on the ground that direct appointment has been held to be illegal on the basis that it was a promotional post without considering the question whether any eligible candidate in the cadre of assistant clerk was available for being promoted or not. A further direction was issued to Regional Director to pass fresh order, after opportunity to every party, in accordance with Regulation (2) (2) of Chapter III of U.P. Act No. 2 of 1921 and Regulations 101 to 107 of Chapter III of U.P. Act No. II of 1921.
In pursuance to the aforesaid order of this Court, Regional Director again after considering the written submissions filed by the parties and documents produced by them and opportunity of hearing, rejected the claim of the petitioner on the following findings.
(a) No prior approval of District Inspector of Schools was obtained before making the appointment, hence, it was illegal.
(b) It was not a case of deemed approval as according to the report of District Inspector of Schools, no application was made by the management seeking prior approval.
(c) Selection proceedings were initiated and selection committee was constituted without any approval by the District Inspector of Schools.
(d) Since no suitable assistant clerk in the institution was available, as such, though the post could have been filled by direct recruitment, but no one from the select list of direct recruitees could have been appointed for want of prior approval from District Inspector of Schools.
(e) Appointment of petitioner, who was placed at serial no. 2 in the select list, on alleged refusal of respondent no. 5 to accept appointment, was illegal and in violation of Regulations 101 to 107 of Chapter III as no prior approval of District Inspector of Schools was obtained.
Learned counsel for the petitioner has vehemently contended that once the management wrote letter to the District Inspector of Schools seeking prior approval before undertaking proceedings for selection, the same could not have been withheld and was liable to be granted within a reasonable time and in case, the same was not granted within a reasonable time, it would be deemed that approval has been granted and management was well within its right to proceed with the selection and appointment. In the alternative, it has been urged that since the Committee of Management after issuing appointment letter to the petitioner on 08.02.2007 forwarded the papers on the same day to the District Inspector of Schools for considering granting financial approval, which was not considered by the District Inspector of Schools within a reasonable time, hence, it would be deemed that approval has been granted.
Reliance in support of the aforesaid two contentions have been placed on the judgment of Hon'ble Single Judge in the case of Rajendra Yadav Vs. Deputy Director of Education, Gorakhpur & Ors., 1999 (3) AWC 2123 and Ram Dhani Vs. State of U.P. & Ors., 2005 (5) ESC 139.
In reply, it has been contended on behalf of contesting respondents that Regulation 101 provides that prior approval of District Inspector of Schools has to be obtained by the appointing authority before making any appointment on a non-teaching post of Class III and Class IV and as the same is mandatory in nature, the appointment of the petitioner was illegal and has rightly been disapproved.
I have considered the rival submissions and perused the record of writ petition.
Regulations 101 to 107 were inserted in Chapter III of the Regulations framed under 1921 Act by the State Government vide notification dated 30.07.1992. Regulations 101 and 103 to 107 were subsequently substituted vide Government notification dated 02.02.1995. Regulation 100 provides that appointing authority for Class III post in an institution shall be the Committee of Management and Class IV post, the Principal. Regulation 101 relevant for the purposes of this case reads as under.
"101. fu;qfDr izkf/kdkjh, fujh{kd ds iwokZuqeksnu ds flok; fdlh ekU;rkizkIr, lgk;rk izkIr laLFkk ds f'k{k.ksRrj LVkQ dh fdlh fjfDr dks ugha "jsxk:
izfrcU/k ;g gS fd teknkj ds in dh fjfDr dks fujh{kd }kjk "jus dh vuqefr nh tk ldrh gSSA"
A bare reading of Regulation 101 goes to show that vacancy of a non-teaching post in a recognised and aided institution shall not be filled by appointing authority without obtaining prior approval of District Inspector of Schools.
Argument advanced on behalf of petitioner is two fold. Firstly it proceeds on the assumption that previous approval under Regulation 101 is required to be obtained before starting the selection process, that is, issuance of advertisement for filling the vacancy and not at the stage when the candidate is to be appointed after selection and once such an application is made and the order of District Inspector of Schools is not communicated within reasonable time, approval shall be deemed to have been given, and thereafter the appointing authority is free to proceed and make appointment. In the alternative, it has been urged that since after making appointment, papers were forwarded to the District Inspector of Schools for approval and the same was not granted within reasonable time, it shall be deemed that approval has been granted and the petitioner will be deemed to have been duly appointed. In both the contingencies, learned counsel for the petitioner has emphasised that theory of deemed approval shall come into operation.
Regulation 101 has been subject matter of interpretation by a Division Bench of this Court in the case of Jagdish Singh, etc. Vs. State of U.P. & Ors. etc., (2006) 3 UPLBEC 2765. Analysing the two words 'iwokZuqeksnu' and 'vuqefr' used by Legislature in Regulation 101, it has been observed as under.
"18. Regulation 101, as quoted above, used 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 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 itself indicates that when the permission is given to the Appointing Authority to fill up the 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 the 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 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 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."
Again in paragraph 22 of the judgment, it has been observed as under.
"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."
Division Bench has categorically held that observations made by Hon'ble Single Judge in Ram Dhani's case (supra) being relied upon by the petitioner to contend that previous approval is required before issuing an advertisement for filling vacancy, does not lay down correct law. Thus, reliance placed on the judgment of Ram Dhani case (supra), which clearly stands overruled by Division Bench, is totally unwarranted and argument advanced on behalf of the petitioner based upon the same are to be repelled.
The other judgment in the case of Rajendra Prasad Yadav (supra) being relied upon by the petitioner to contend that once papers have been forwarded either before issuance of the advertisement or after the selection process is completed to the District Inspector of Schools and the approval is not granted within two weeks' time, in either contingency, it will be deemed that approval has been granted, also stands overruled by Division Bench judgment in Special appeal filed against the judgment of Hon'ble Single Judge in Ram Dhani's case reported in 2006 (7) AWC 6708. After considering the provisions of Regulation 101 and reliance placed by Hon'ble Single Judge in the case of Rajendra Prasad Yadav (supra) on Section 16F (2) (as it originally stood) and Order 2 (3) (iii) of Removal of Difficulties Order, 1981 in drawing the analogy of deemed approval in Regulation 101, the Division Bench has held as under.
"11. Regulation 101 does not provide for any deemed approval expressly rather it contemplates an injunction to the appointing authority not to fill up any vacancy without the prior approval of the Inspector.
12. The provision clearly contemplates that the appointing authority is prohibited from filling any vacancy without approval of the Inspector. The learned Single Judge in the case of Rajendra Yadav (supra) while considering the Regulation 101, has taken the view that two weeks time 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. Learned Single Judge in the judgment has relied on Section 16F (2) of the U.P. Intermediate Education Act, 1921 and Order 2 (3) (iii) of the U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981. The provisions which have been relied upon by the learned single Judge, i.e., Section 16F (2) and Order 2 (3) (iii) contemplate the deemed approval. Order 2 (3) (iii) is also extracted below.
"2 (3) (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.
13. The learned Single Judge erred in drawing the analogy of deemed approval in Regulation 101 taking support from provisions 16F (2) and Order 2 (3) (iii), whereas those provisions expressly provided for deemed approval. The Legislature being well aware of the concept of deemed approval and having provided wherever they thought it proper, adding the concept of deemed approval in Regulation 101 is nothing, but adding the words to the provision, which is not within the competence of the Court while interpreting Statute.
14. We are of the respectful opinion that the said judgment does not lay down the correct law. We overrule the judgment of Rajendra Yadav's case (supra)."
A Division Bench of this Court in Special Appeal No. (87) of 2003, Joint Director of Education, Azamgarh Region, Azamgarh & Anr. Vs. Udai Raj Vishwakarma & Anr. decided on 06.02.2007, had yet another occasion to consider the interpretation of words 'prior approval' and 'approval' used in the Statute and the same view was upheld. Relying upon the another Division Bench judgment of this Court in the case of M/s. Shailja Shah Vs. Executive Committee, 1995 (25) ALR 88, it was held that expressions 'prior approval' and 'approval' connote different situations. Where a Statute uses the term 'prior approval', anything done without prior approval is nullity. However, where the Statute uses the expression 'approval', in such cases, subsequent ratification can make the action valid.
In the case of Regional Joint Director of Education, Agra & Ors. Vs. Smt. Raju V. John & Anr., Division Bench while considering the provisions of Section 16 FF (3) which require that any person selected as a teacher shall not be appointed unless proposal was approved, has held that an appointment made in violation of the mandatory provisions of the Statute is wholly illegal and such illegality can not be cured subsequently.
From a conjoint reading of the aforesaid Division Bench judgments, the law laid down can be summarised as under.
(I) '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.
(II) Requirement of prior approval provided under Regulation 101 is a condition precedent before issuing an appointment letter and is mandatory.
(III) Without prior approval of the Inspector, the appointing authority cannot issue an appointment letter or permit joining of any candidate on a Class III or Class IV post in a recognised and aided institution.
(IV) Appointment made without prior approval of District Inspector of Schools is ex facie illegal and void ab initio and the same will not stand cured by granting post facto approval.
In the case in hand, admittedly, the petitioner, who was placed at serial no. 2 in the select list by the selection committee, was issued appointment letter on 08.02.2007 when respondent no. 5 who was placed first in the list, allegedly expressed his inability to join, and in pursuance of appointment letter, petitioner joined on 12.02.2007. Petitioner has made an averment that papers pertaining to his appointment were forwarded by the Committee of Management to District Inspector of Schools for granting approval on 08.02.2007. Though there is dispute in this regard, as District Inspector of Schools in his report dated 21.02.2011 submitted before Regional Joint Director, has stated that there is no material available in his office to establish that said papers were ever received. Even if for the sake of arguments, it is accepted that committee forwarded the papers and the same were received, admittedly, no communication was sent by District Inspector of Schools either refusing or granting approval, as such, there would be no material change in the situation as the Committee of Management proceeded to make appointment of the petitioner and permitted his joining without any prior approval and the provision of deemed approval cannot be read into Regulation 101.
At this stage, learned counsel for the petitioner submitted that since the appointment of the petitioner was subsequently approved by the District Inspector of Schools, as such the defect, if any, in the original appointment stood cured. The argument is bereft of any merits. Statute specifically provides for 'prior approval', before making any appointment. Division Bench of this Court in the case of M/s. Shailja Shah (supra) has held that expressions 'prior approval' and 'approval' connote different situation. Where the Statute uses the term 'prior approval', anything done without prior approval is nullity.
Hon'ble Apex Court has emphasised strict observance of procedure prescribed for making appointments. In Prabhat Kumar Sharma & Ors. Vs. State of U.P., while referring to the procedure prescribed for appointment under the First Removal of Difficulties Order, has observed as under.
"Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees."
It is well settled that when the law requires something to be done in a particular manner, no other way is permissible and any action not in accordance with such procedure would be void and is illegal. Thus, any appointment made without prior approval of District Inspector of Schools would be in violation of Regulation 101 and thus, void ab initio and any subsequent action including the post facto approval by the District Inspector of Schools would not legalise it.
In view of aforesaid facts and discussions, it cannot be held that appointment of the petitioner was validly made after following the mandate of Regulation 101, as admittedly, he was appointed and permitted to join the post without prior approval of District Inspector of Schools in gross violation of the said Regulation.
Appointment of the petitioner being in violation of mandatory provision of Regulation 101 of the Regulations framed under Chapter III of 1921 Act is ex facie, illegal and void and has rightly been disapproved by the Regional Joint Director of Education, and the impugned order does not call for any interference.
The writ petition, accordingly, fails and stands dismissed in limine.
25.05.2011 VKS