J U D G M E NT (1) Challenge in this writ petition is an order dated 03.05.2011 (Annexure-1 to the writ petition) passed by opposite party no. 4 (District Inspector of Schools, Pratapgarh,(hereinafter referred to D.I.O.S.) by which the approval for appointment of the petitioner as Class IV employee in Brijendra Mani Inter College, Kohdaur, District Pratapgarh was not accorded.
(2) The brief facts giving rise to this petition are that Brijendra Mani Inter College (in short 'School')) is a recognized government aided institution under the provisions of Intermediate Education Act, 1921 (hereinafter referred to as Act). On account of retirement of one Rameshwar Prasad on 31.10.2009 a substantive vacancy occurred in the cadre of Class IV. On the same day another vacancy in cadre of class III was occurred on account of death of one Ajay Pratap Maurya, who died in harness. Smt. Rekha, W/O deceased Ajay Pratap was seeking appointment of his son Santosh Kumar on compassionate ground through a letter given to DIOS. The DIOS by its letter dated 20.3.2010 asked for certain information from the principal of school in regard to the compassionate appointment to be made in the light of the application of Smt. Rekha Devi. DIOS informed Smt. Rekha Devi by the same letter that she may apply to the principal of school for compassionate appointment of his son because, the application for compassionate appointment should be proceeded through the principal so further action may be taken thereon. In reply to this letter of DIOS principal intimated DIOS by his letter dated 15.5.2010 that the petitioner Rajesh Kumar Misra has been appointed against the vacant post in Class IV cadre on account of vacancy occurred due to retirement of Rameshwar Prasad. He further informed that now no post is lying vacant in Class IV cadre. This letter appears to have been written by the Principal with an intention to informe the DIOS that he had already made the appointment of the Petitioner of this case Sri Rajesh Kumar Misra, and now no vacancy exist in the Class IV cadre. It also reflect that the principal was not inclined to make compassionate appointment of Santosh Kumar, son of deceased Ajay Pratap, who died in harness, on the vacant post in class IV cadre.
(3) It is not in dispute that the matter for compassionate appointment of Santosh Kumar was pending consideration when principal issued appointment letter to the of petitioner. Consequently approval of appointment of petitioner was rejected by DIOS vide his order dated 25.5.2010.
(4) Aggrieved by it the present petitioner filed a writ petition in this court having no. 6052 (S/S) 2010 (Rajesh Kumar Misra V/S U.P. State and ors.). The aforesaid writ petition has been disposed of finally by an order dated 1.11.2010( Annexure-9 to the writ petition). The order passed by this court dated 1.11.2010 is reproduced herein below, :-
"Heard Sri Nagendra B. Singh, learned counsel for the petitioner and learned Standing counsel for the respondents.
Case of the petitioner is that after proper selection his name was sent to the District Inspector of Schools for prior approval. The petitioner says that the District Inspector of Schools has rejected his case vide order dated 25.5.2010 as contained in Annexure-7. The ground taken by the District Inspector of Schools is that prior permission before starting of the selection process was not obtained hence the appointment order can not be issued and the selection is bad.
Learned counsel for the petitioner has annexed the order of Jagdish Singh Vs. State of U.P. and others, (2006) 2 UPLBEC 1851 in which this controversy has been cleared and it has been held that prior permission before initiation of the selection process is not required. Only after due process has been adopted and a candidate has been selected the papers have to be sent to the District Inspector of Schools and then a prior approval before order is issued is required. In the present case, the papers are pending with the District Inspector of Schools and the District Inspector of School has rejected the case erroneously in contravention of the law laid down in the case of Jagdish Singh (supra).
Learned Standing counsel has fairly informed the Court about the legal position as observed in Jagdish Singh (supra).
Accordingly, the order dated 25.5.2010 is hereby quashed. The District Inspector of Schools, Pratapgarh is directed to look into the matter again and pass fresh orders in accordance with law laid down in the case of Jagdish Singh (supra) within a period of one month from the date a certified copy of this order is placed before him.
The writ petition is thus allowed."
(5) In pursuance of the order passed by this court on 1.11.2010 matter was reconsidered. The DIOS issued letter dated 19.11.2010 to the Principal of the school( Annexure -17 to the writ petition). This letter is also reproduced herein below as follows:-
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mi;qZDr foष;d ds lanZHk esa dguk gS fd vki }kjk fo+|ky; esa Jh jkts'k dqekj feJk dh prqFkZ Js.kh deZpkjh in ij fu;qfDr iwokZuqefr izkIr fd;s fcuk gh fu;qfDr djyh x;h gS ftldh lwpuk vkids i= fnukad 15-5-2010 }kjk voxr djk;k x;k gS fd fo|ky; esa prqFkZ Js.kh dh fu;qfDr dj yh x;h gS vc dksbZ in fjDr ugha gS A vki }kjk dh x;h fu;qfDr vfu;fer ,oa voS|kfud gS A oknh Jh jkts'k dqekj feJk us ek0 mPp U;k;ky; esa fjV pkfpdk la0 6052 ¿ ,l- ,e-À @ 2010 nkf[ky fd;k ftlesa ek0 mPp U;k;ky; us fnukad % 01-11-2010 dks vkns'k ikfjr fd;k rFkk funsZf'kr fd;k fd ftyk fo|ky; fujh{kd mDr vkns'k fnukad 01-11-2010 esa mfYyf[kr txnh'k flag cuke m0 iz0 ljdkj o vU; ¿ 2006À esa ikfjr vkns'k ds vuqikyu esa dk;Zokgh lqfuf'pr djsa A ek0 mPp U;k;ky; ds vkns'k fnukad % 01-11-2010 ds vuqikyu esa fnukad % 27-11-2010 dks izdj.k ij lquokbZ dh frfFk izkr% 10%00 cts v|ksgLrk{kjh d{k esa lqfuf'pr dh tkrh gS A vr% vkidks voxr djk;k tkrk gS fd mDr lquokbZ dh frfFk, le; o LFkku ij fuEu lwpuk,[email protected] vfHkys[kksasa,s vfHkdFkuksa ds lkFk mifLFkr gksus dk d"V djsa ftlls izdj.k ij lquokbZ djds vfxze dk;Zokgh dh tk lds A 01- prqFkZ Js.kh deZpkjh ds in ltu dh Nk;k izfr izekf.kr A 02- prqFkZ oxhZ; dk;Zjr deZpkjh dh fu;qfDr frfFk, tUe frfFk] fu;qfDr dk izdkj, tkfr okj fooj.k o 'kSf{kd ;kasX;rk osru vkgfjr gks jgk gks A 03- fjDr inks dh la[;k A 04 fjDrh dk dkj.k A 05- la[;k esa dksbZ e`rd vkfJr 'ksष rks ugha gS dk izek.k iz= A Hkonh;
gk0 @ vkse izdk'k feJ ftyk fo|ky; fujh{kd izrkix< izfrfyfi %& ;kph Jh jkts'k dqekj feJ iq= Jh }kfjdk izlkn feJ lh0& 335 vkokl fodkl dkWyuh ehjk Hkou izrkix< dks bl funsZ'k ds lkFk izsfषr fd os ek0 mPp U;k;ky; ds vkns'k fnukad % 1-11-2010 esa mfYyf[kr txnh'k flag cuke m0 iz0 ljdkj o vU; 2006 esa ikfjr ek0 U;k;ky; ds vkns'k dh iBuh; izfr ds lkFk rFkk vius vfHkdFkuksa ds lkFk fu/kkZfjr lquokbZ gsrq le;] frfFk o Lfkku ij mifLFr gksdj lquokbZ esa lg;ksx iznku djsa A 02- izcUl/kd c`tsUnz ef.k b0 dk0 dksgMksj] izrkix< dks lwpukFkZ izsfषr A gk0 @ vkse izdk'k feJ ftyk fo|ky; fujh{kd izrkix< (6) When DIOS did not received the reply of the aforesaid letter written by him to the principal the DIOS proceeded to summon the principal along-with relevant record for hearing the matter on 18th of December, 2010. The parties were informed by letter dated 10.12.2010 of the aforesaid date fixed for hearing. The Principal and the Rajesh Kumar Misra (the present petitioner) both appeared on 18.12.2010. During the course of hearing the Principal informed that on account of vacancy occurred on 31.10.2009 due to retirement of Rameshwar Prasad Yadav in Class IV cadre, the same was filled. The vacancy was published in News Paper. The selection committee was also constituted for filling up the vacancy. The committee after complying all the procedural requirements appointed Rajesh Kumar Misra on 23.11.2009 on Class IV post. The petitioner Rajesh Kumar Misra joined office on 26.11.2009 and he continued to work on the said post. His work and conduct is satisfactory and Rajesh Kumar Misra is entitled to salary from the date of his joining and he filed the required documents and asked for the approval of the appointment of Sri Rajesh Kumar Misra. The DIOS after considering the material on record and the statement made by the Principal passed the impugned order dated 3.5.2011. The relevant portion of which is produced herein below :-
";gkW ;g mYys[kuh; gS fd i= fnukad 20-03-2010 }kjk ,slh dksbZ lwpuk ugh ekWxh x;h Fkh tks ;kph Jh jkts'k dqekj feJ ds fu;qfDr ls lEcfU/kr fdlh Hkh izdkj dk i=ktkr vkfn dk;kZy; esa ugh izLrqr fd;k x;kA ;gkW rd fd lquokbZ ds le; Hkh dksbZ i=ktkr vkfn dk;kZy; esa ugh izLrqr fd;k x;k A lquokbZ ds le; ekWxs tkusa ij muds }kjk ;g dgk x;k fd fnukad 05-12-10 esa nh x;h vk[;k ds vuqlkj mUgs vkSj dqN ugh dguk gSa A u gh in fjDr gksus dh dksbZ lwpuk nh x;h vkSj u gh b.Vj ehfM,V f'k{kk vf/kfu;e 1921 dh /kkjk 16¼6½ essaa cus fofu;e 101 v/;k; ¼3½ ds vUrxZr in Hkjusa dh ekWx, u rks fu;qfDr ds igys dh x;h vkSj u rks fu;qfDr ds ckn esa gh dh x;h A iz/kkukpk;Z }kjk vius vfHkdFku fnukad 05-12-2010 esa osru Hkqxrku dh vkSipkfjd Lohd`fr fcuk fu;qfDr lEcU/kh i=ktkr izLrqr djds dh x;h gSa tks mfpr ,oa U;k; laxr ugha gS A fu.kZ;
Jh jkts'k dqekj feJ dks jkT; ljdkj ds vuqnku ls osru Hkqxrku dh dksbZ ns;rk ugh curh gS A vr% iz/kkukpk;Z ,oa ;kph dh ekWx ds vuqlkj osru Hkqxrku djus dh vkSipkfjd Lohd`fr iznku fd;k tkuk lEHko ugh gS A ¼Mk0 vkse izdk'k½ ftyk fo|ky; fujh{kd izrkix< "
(7) The DIOS again did not approved the appointment of the petitioner. Aggrieved by the order rejecting the approval for appointment by impugned order the petitioner filed this writ petition for quashing the same.
(8) It is important to mention here that neither the management nor Principal of school challenged the order passed by the DIOS rejecting the approval of appointment of the petitioner made by the principal on the basis of recommendation given by the Selection Committee. From perusal of the material on record it reveals that the earlier order passed on 25.5.2010 by which the petitioner alleged that his appointment has not been approved is on record as Annexure-8. The perusal of which reveals that a reference has been made of the letter dated 15.5.2010 of the Principal who informed that Rameshwar Prasad retired on 31.10.2009. The vacancy was occurred and the same was filled up by making appointment of petitioner Rajesh Kumar Misra. No vacancy has been available in Class-IV cadre.
(9) It is important to mention here that letter dated 15.5.2010 has not been brought on record either by the petitioner or by the Principal or the Management Committee of the institution. From the perusal of the impugned order it reveals that letter dated 15.5.2010, which was issued in reply to the letter dated 23.3.2010 issued by DIOS requiring certain information with regard to consider the compassionate appointment of Santosh Kumar. It also appears that by the letter dated 15.5.2010 the Principal informed the DIOS that Rajesh Kumar Misra has been appointed on the vacant post and asked for its approval. The DIOS was of the opinion that appointment made was not in accordance with regulations of Chapter III framed under Section 16(6) of the Act.
(10) The order dated 1.11.2010 passed by this court, by which the DIOS was directed to re-consider the matter, a reference has been made therein of a judgment reported in 2006 (2) UPLBEC 1851 Jagdish Singh V/S State of U.P. and Ors. This is the judgement on the basis of which DIOS required to re-consider the matter.
(11) In this case the counter affidavit on behalf of Respondent no. 1 to 5 was filed for whom notice has been accepted by the Chief Standing Counsel. In spite of service upon respondent no. 6 and 7, the Committee of Management and Principal of School, no counter affidavit has been filed and they did not chose to contest this petition.
(12) Petitioner filed a supplementary affidavit along with 9 annexures. Annexure-1 is the letter dated 4.12.2009, which is said to have been issued by the Principal of the School informing the appointment of Rajesh Kumar Misra to DIOS and asking for formal approval of the appointment. Enclosers 1 to 9 to this letter were also filed. Another letter alleged to have been issued by the Principal of the School on 5.12.2010, has also been annexed as Annexure -2 to this supplementary affidavit wherein the details of Class IV cadre were given. It was informed therein that three matters for compassionate appointment were pending. In the counter affidavit filed on behalf of respondent no. 2,3 and 4 it has been categorically stated that the Principal of the School did not produce any paper or documents regarding the appointment of the petitioner during the course of hearing of the matter by the DIOS. This allegation has not been controverted by the Principal or the Management Committee of the School by filing their counter affidavit. Moreover no papers were filed by respondent no. 6 and 7 in this writ petition. The papers which said to have been filed by the petitioner, are those papers which has been purported to be written by Principal and ought to have been filed by the Principal or the Management Committee of this School. From the perusal of the Supplementary affidavit filed in support of this writ petition it has not been disclosed by the petitioner that from where he got these papers and who handed over these papers to him.
(13) In view of the aforesaid facts, the matter has to be considered by this court.
(14) Sri L.P.Mishra, learned Senior Advocate appearing for the petitioner submits that the impugned order is not sustainable in view of the judgment of the Division Bench of this court in Jagdish Singh's case (Supra). It was further submitted that the Division Bench of this court while considering the regulation framed under Chapter III of Section 16(6) of the Act held that the prior approval of the Inspector is not necessary. Hence, the order impugned is liable to be set aside and this court is required to approve the appointment of the petitioner made by the principal on the vacant post.
(15) It was further submitted that the grievance of the DIOS has now set at rest because of the fact that to the dependent of Ajay Pratap, who died in harness on 31st October 2009, appointment has been given against a vacancy occurred on 31.08.2007 due to retirement of one Raja Ram Pandey a Class IV employee vide resolution dated 23.12.2010. The relevant record regarding appointment annexed as Annexure-14 to this writ petition. Therefore, now there is no impediment in granting the approval of the appointment of the petitioner.
(16) The learned Standing Counsel submits that while passing the impugned order the decision rendered in Jagdish Singh's case (Supra) by the Division Bench of this court has been rightly and properly applied by the DIOS. It was further submitted that in view of the regulation 104 of Chapter III, which has been amended in the year 1992 and is also reproduced in Jagdish Prasad's Case (Supra), made it clear that matters relating to compassionate appointment were pending and the vacant posts should be filled first by making compassionate appointment and direct recruitment shall not be made ordinarily on such post. He further submits that the scheme of Regulation 101 to 107 is that while filling of the vacancy of Class IV preference should be given to the person waiting for appointment under compassionate ground and direct recruitment would not be permissible. Here in this case the principal concerned who is also one of the party to this petition purposely concealed the material facts which ought to have been furnished by him in reply to letter of DIOS informing the appointment made by him of the petitioner.
(17) Replying the second limb of argument advanced by the counsel for the petitioner the learned Standing Counsel submits that the papers filed by the petitioner are not admitted to the respondents as their receipt of the same is not acceptable to them. In the alternative it was submitted that even if those papers are taken into consideration, the letter dated 15.5.2010 was material wherein the Principal has mentioned that after making the appointment of petitioner no vacancy in Class IV exists in the School. This information is patently wrong in view of Annexure-14 to the writ petition, which is a resolution dated 23.12.2010. In this resolution it has been mentioned that the compassionate appointment of the dependent of Ajay Pratap was made against the vacant post of 31.11.2007. It was further submitted that the Principal and committee both while making the appointment of the petitioner not adhered to the mandatory procedure prescribed under the regulations. Therefore, DIOS was rights in not approving the appointment of the petitioner.
(18) It was further submitted by the learned Standing Counsel that perusal of the impugned order clearly demonstrated that neither before making direct recruitment as exception nor before issuing appointment letter to the petitioner, approval was sought from DIOS. Therefore, the law laid down in Jagdish Singh's case (Supra) has not been adhered to by the School authorities and there is no illegality, infirmity or impropriety in the impugned order.
(19) It was further submitted by the learned Standing Counsel that proxy litigation should not be permitted by this court specially when the order refusing to accord the approval of appointment of the petitioner has not been challenged by the Principal and management committee of the School. In such situation, the petitioner has no right to assail the impugned order.
(20) It was further submitted by the learned Standing Counsel that issuing the appointment letter and permitting the joining of the petitioner without approval is contrary to the provisions contained in regulation 101 as explained by the Division Bench of this court in Jagdish Singh's case (Supra). On these grounds the learned Standing Counsel submits that this petition has no merit and deserves to be dismissed with cost.
(21) After considering the submissions made at bar it is necessary to reproduced the relevant regulation of Chapter III framed under Section 16(6) of the Act which are in operation after the amendment of 1992. The Regulations 101, 102, 103 and 104 are reproduced hereinbelow :-
" 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 recognized, 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 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 Ist 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."
(22) Words 'prior approval' used in regulation 101 has been explained in Jagdish Singh's case. The Division Bench while explaining the same in Para 20, 21 and 22 has observed that the prior approval by the District Inspector of School is required after completion of the process of selection and before issuance of the appointment letter to the selected candidate. Para 20, 21 and 22 of Judgment of Jagdish Singh's case (Supra) are reproduced herein below:-
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) Admittedly, the letter part of mandate of Jagdish Singh's case (Supra) has not been observed by the Principal of the School. He issued appointment letter and permitted to join the petitioner in the school without prior approval of the DIOS.
(24) So far as the earlier part of this exercise conducted by the Principal is concerned, in the opinion of this court the Principal was not competent to initiate the process of direct recruitment to fill up the vacancy occurred on account of retirement of Rameshwar Prasad in the cadre of Class IV unless all the matters relating to compassionate appointment are not disposed of. In such situation if there was some emergency or any compelling circumstances for making immediate appointment then the Principal or management of School was under statutory obligation to present a case before DIOS and to seek permission to fill up the vacancy by direct recruitment after suspending the process of making compassionate appointment on the vacant post, which admittedly has not been done by the Principal or the management of the School.
(25) From perusal of the regulations from 101 to 107 there is a scheme and there exists a legislative intent behind it. It leaves no room to doubt that until the applications of the persons waiting for compassionate appointment are finally disposed of , the appointing authority should not proceed to make direct recruitment on the vacant post. If it was necessary in the interest of the institution to make immediate appointment the appointing authority, i.e., Principal must place the reasons in writing before District Inspector of School and must seek prior permission to make direct recruitment on the vacant post.
(26) In the aforesaid situation without giving much importance to the correspondence alleged to have been taken place in between the Principal and the DIOS as alleged according to petitioner, this court is of the view that this matter may be decided on the broader legal aspect of the case. In view of willful violation by principal of the statutory mandate contained in regulations 101 to 107 as discussed above, the impugned order of DIOS cannot said to be against the law or facts.
(27) In view of the fact that the person waiting for compassionate appointment, for whom information was sought by the DIOS by its letter dated 20.3.2010, have already given appointment on another vacant post, it would be proper that Principal may initiate fresh process of selection to fill up the vacant post, if any available in class IV cadre, of course, subject to fulfillment of mandatory requirements of regulations 101 to 107 of Chapter III of Sub section 6 of Section 16 of the Act and also in accordance with the provisions of law.
(28) In view of the aforesaid observations, this writ petition lacks merit and is liable to be dismissed.
(29) Accordingly, writ petition is dismissed. There shall be no order as to costs.
(Justice Vishnu Chandra Gupta ) Dated : 04.12.2012 S. Kumar