Heard Sri Yatindra, learned counsel for the petitioner and learned Standing Counsel for the State respondents.
Brief facts relevant for the purposes of the case are that a substantive vacancy on class-IV post in the institution namely, Gram Vidyapeeth Inter College, Garkhera, Varanasi, which is duly aided and recognized, fell vacant on account of superannuation of one Sambhu Nath Upadyyaya. Principal of the institution vide letter dated 4.6.2007 requested the District Inspector of Schools for according approval for initiating the selection process to fill up the vacancy. Despite intimation by the Principal, when no action was taken by the District Inspector of Schools the vacancy was duly advertised in two daily newspapers. In pursuance thereof, the petitioner along with others applied. Selection committee selected the petitioner for appointment. The papers with regard to the selection of the petitioner were forwarded to the District Inspector of Schools along with letter dated 15.7.1997 for according financial approval. When no action was taken by the District Inspector of Schools despite reminders and letters by the petitioner he approached this Court by filing writ petition no. 40695 of 1999 which was disposed of vide judgment and order dated 10.8.2000 with the direction to the District Inspector of Schools to take appropriate decision within one month from the date of receipt of the certified copy of the order. Vide order dated 6.4.2004 the District Inspector of Schools refused to accord approval to the selection and appointment of the petitioner. Aggrieved, the petitioner again approached this Court by means of writ petition no. 18337 of 2004. The said writ petition was filed on the allegation that the claim of the petitioner has been rejected by the District Inspector of Schools without any notice and opportunity of hearing. The writ petition was finally disposed of by this Court vide order dated 10.5.2004 with the direction that in case the petitioner appears and applies before the District Inspector of Schools for rehearing the matter, he shall fix a date and after notice to the Principal of the College shall reconsider the matter in accordance with law. The District Inspector of Schools after reconsidering the matter vide order dated 8.12.2004 accorded approval to the appointment and payment of salary to the petitioner. In compliance of the aforesaid order, the Principal of the Institution issued a letter dated 1.1.2005, in pursuance whereof, the petitioner joined the post. The Principal also sent a letter to the State Bank of India for opening a savings bank account in the name of the petitioner for payment of salary. Despite joining the post, when the petitioner was not paid salary for a long period on account of some dispute that the petitioner was not making signature in the attendance register and not attending the duty, he again approached this Court by filing writ petition no. 64064 of 2005 which was disposed of by this Court vide judgment and order dated 3.10.2005 with the direction to the Authorised Controller, who was functioning in place of the management, to place entire documents pertaining to the claim of the petitioner before the District Inspector of Schools within three weeks and the District Inspector of Schools was directed to decide the claim of the petitioner expeditiously preferably within six weeks from the date of production of certified copy of the order. The District Inspector of Schools instead of deciding the dispute himself, as directed by this Court, vide letter dated 30.11.2005 referred the matter to the Director of Education. Again the petitioner approached this Court by filing the writ petition no. 37096 of 2006 wherein a direction was issued to the respondent no. 2 Director to decide the dispute by means of a reasoned and speaking order. Joint Director of Education vide order dated 13.8.2008 impugned in this petition rejected the claim of the petitioner on the ground that the appointment of the petitioner was not in accordance with Regulation 101 of Chapter III framed under 1921 Act as prior permission of the District Inspector of Schools was not obtained before proceeding to issue the advertisement and initiate the selection process.
It has been urged by learned counsel for the petitioner that though the Joint Director of Education has recorded a finding in the impugned order that the appointment of the petitioner has been made on a substantive vacancy on account of retirement of the incumbent after due advertisement in two newspapers by a validly constituted selection committee but has disapproved the same only the ground that prior approval from the District Inspector of School was not obtained before initiating the selection process.
In reply, it has been submitted by learned Standing Counsel that since prior approval of the District Inspector of Schools before initiating the selection process was not obtained as such the appointment of the petitioner has rightly been disapproved being in violation of Regulation 101 of Chapter III of the Regulation.
In have considered the argument advanced by learned counsel for the parties and perused the record.
Regulation 101 of Chapter III stipulates that the appointing authority shall not fill up any vacancy on a non-teaching post without prior approval of the District Inspector of Schools. The said regulation reads as under :
"The appointing authority shall not fill up any vacancy on a non-teaching staff of a recognized aided institution except with the prior approval of the Inspector."
The important words to be considered for interpretation of the aforesaid provision are 'fill up any vacancy' and 'except with the prior approval of the Inspector'. The words 'not fill any vacancy' and 'except with the prior approval of the Inspector' when read conjointly could only mean that some person has been selected and an approval is required for his appointment the same would be possible only after the selection process is complete and some person is selected for being appointed. The words "except with the prior approval of the Inspector" used in the regulation clearly goes to show that approval is to be accorded by the Inspector to the person selected by the selection committee and not before that. Regulation 101 does not speak of any prior approval before initiating the process of making the selection. Obvious intention of the legislature enacting the aforesaid provision is that the District Inspector of Schools before according approval for sanction of payment from the State exchequer may examine whether a duly sanctioned vacancy was available in the institution, the procedure prescribed for making the selection has been strictly adhered to and there has been fairness and transparency, the candidate selected possesses the prescribed requisite qualification, provision of reservation, if applicable, has been adhered to. Apparently, such stage will come only after selection has been made and not earlier to that. In case the words " prior approval of the Inspector" are interpreted to mean prior approval before initiating the selection process then once the same is accorded and the institution proceeds to fill any vacancy there would be no occasion for the District Inspector of Schools to scrutinize the process undertaken for selection and whether it has been made in accordance with the prescribed procedure. The regulation does not contemplate prior approval at two stages (i) at the time of initiating the selection process and (ii) after the selection process is over. Therefore, what is contemplated in Regulation 101 is prior approval after the selection is over and before appointment. The view taken by me finds support from the Division Bench judgment of this Court in the case of Jagdish Singh vs. State of U.P. & others, reported in 2006(4) Alld. Daily Judgment 162 (Allahabad) (DB) wherein it has been observed as under :
"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."
From the aforesaid facts and discussions and the law laid down by the Division Bench of this Court in the case of Jagdish Singh (supra), it is clear that prior approval contemplated in Regulation 101 means prior approval at the time of appointment and not at the time of initiation of process for making the appointment.
Admittedly, in the present case, no irregularity or illegality was found in the procedure adopted for selection of the petitioner for appointment and his appointment has only been disapproved on the ground that no prior permission was obtained before initiating the selection process and thus the said part of the impugned order dated 13.3.2008 passed by the Joint Director of Education (Madhyamik) cannot be sustained.
In view of above, the part of the order dated 13.3.2008 passed by the Joint Director of Education rejecting the approval of the appointment of the petitioner on the ground that there was no prior approval of the District Inspector of Schools before initiating the selection process, stands quashed.
Writ petition is allowed in part.
The District Inspector of Schools, Varanasi is directed to pass fresh appropriate orders with regard to the approval to the appointment of the petitioner in the institution in question in accordance with law and in the light of the observation made hereinabove expeditiously preferably within a period of six weeks from the date of production of a certified copy of this order before him.
Order Date :- 2.9.2011 nd