JUDGMENT
1. Heard Sri Arvind Srivastava, learned Counsel for the appellant and Sri C.B. Yadav, learned Chief Standing Counsel.
2. This appeal has been filed against the judgment dated 19.1.2005 passed by a learned Single Judge, dismissing the writ petition filed by the appellant.
3. Brief facts necessary for deciding the appeal are; Janta Inter College, Indrapur, District Gorakhpur is a recognised Institution under the U.P. Intermediate Education Act, 1921. The petitioner-appellant's case in the writ petition was that for appointment against Class-IV post, he made an application and was selected on 28.6.2000. The Principal of the Institution forwarded necessary documents to the District Inspector of Schools for grant ol approval of appointment of the writ petitioner-appellant. Since no approval was granted by the District Inspector of Schools, the i-'rincipal issued the appointment order on 16.5.2001 appointing the petitioner as Class-IV employee. The Principal again wrote to the District Inspector of Schools for approval and payment of salary. The District Inspector of School made an inspection and put an endorsement on the attendance register on 31.5.2002 that the petitioner was appointed without seeking approval and directed the Principal to strike out the name of the petitioner. Accordingly, the petitioner has been informed that his name has been struck out. The writ petition has been filed challenging the order dated 31.5.2002 ssed by the District Inspector of Schools. The learned Single Judge by the impugned judgment has dismissed the writ petition.
4. Sri Arvind Srivastava has raised two submissions. The first submission of the learned Counsel for the appellant js that the District Inspector of Schools having failed to exercise his jurisdiction to consider the grant of approval within reasonable time for the appointment, shall be deemed to have been made. He has placed reliance upon a case of Rajendra Yadav v. Deputy Director of Education, Gorakhpur, reported at 1993 (3) AWC 2423.
5. The second submission of the learned Counsel for the appellant is that in event, the Regulation 101 is construed that it does not contemplate any deemed approval, Lie said Regulation is arbitrary having not provided for any guidelines to exercise the power and jurisdiction by the authority. He has placed reliance upon the two judgements of the apex Court for the above submission, that is, 2003 (5) S.T. 180: Krishna Mohan Pvt Ltd. v. Municipal Corporation of Delhi and Ors. and 1998 (8) S.T. 386: State of Kerala and Ors. v. Travancore Chemicals & Manufacturing Co. and Anr.
6. Sri C.B, Yadav, learned Chief Standing Counsel refuting the suomission of the appellant contended that Regulation 101 does not provide for any ieemed approval and there being no approval of selection of the appellant-writ petitioner, he could not have been appointed and the appointment is void. He further submitted that Regulation 101 cannot be said to confer any arbitrary exercise of power by the District Inspector of Schools.
7. We have considered the submissions and perused the records.
8. The first submission of the learned Counsel for the appellant is based on deemed approval. The concept of the deemed approval of appointment is not unknown to the legislature, in the U.P. Intermediate Education Act, 1921, Section 16(F) as well as Regulation 6 of Chapter-II, the concept of the express deemed approval is very much there.
9. In Regulation 6 (6) of Chapter-II, it is provided that:
6 (6). Within three weeks from the date of receipt of the propose under Clause (5) the Inspector shall communicate his decision thereon to the Manager failing which the Inspector shall be deemed to have given his concurrence to the resolution passed by the Committee of Management.
10. The said Regulation is with regard to the recommerkiation of the Committee of Management for promotion of Teacher into L.T. Grade or Lecturer, the above Regulation thus clearly contemplate deemed approval; thus wherever the legislature intended, the provision of deemed approval was erpressly provided. Regulation 101 of Chapter-Ill, is as follows:
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 filiag of the vacancy on the post of Jamadar may be granted by the Inspector.
11. Regulation 101 does not provide for any deemed approval expressly rather it contempes 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 an) vacancy without approval of the Inspector. The learned Single Judge in the case of Rajendra Yadav (supra) while consider 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 is decision to, i.e. appointing authority, failing which he shall be deemed to have accorded approval. Learned Single Judge in the judgment has relied on Section 16-F(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 16-F(2) and Order 2(3)(iii) contemplate the deemed approval. Order 2 (3; (iii) is also extracted below:
2(3)(ili).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 '6-F (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 words concept of deemed ap; oval 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 thu said judgment does not lay down the correct law. We overrule the judgment of Rajendra Yadav's case (supra).
15. The second submission of the learned Counsel for the appellant is that the Regulation 10] does not lay down any guidelines for exercise of jurisdiction for approval. The said contention cannot be accepted for more than one reasons.
16. The concept of the approval of an appointment is a well known concept under the U.P. Intermediate Education Act, 1921 with regard to the appointment by the Selection Committee for direct recruitment as well as in the case of promotion For appointment the procedure is prescribed in the various Regulations. The qualification for appointment is also provided in Chapter-III and other provisions of the Act and the Regulations framed. While considering the question of approval of appointment of a candidate, the District Inspector of Schools has to act in accordance with the other express provisions provided for qualification, eligibility and procedure prescribed for selection. It cannot be said that the power of approval as contemplated under Regulation 101 is not hedged by any guidelines or qualification. It is not in the discretion of the District Inspector of Schools to vn%. in order for approval or disapproval at his sweet will. He has to pass an order taking into consideration the other provisions and Regulations of the Act. Thus the submission of the learned Counsel for the appellant that the said power is uncanalised and the provision itself is arbitrary, cannot be accepted. The two judgements, relied upon by the learned Counsel for the appellant in the case of Krishna Mohan Pvt. Ltd. v. Municipal Corporation of Delhi and Ors. (supra) and State of Kerala and Ors. v. Travancore Chemicals & Manufacturing Co. and Anr. (supra) have no application in the facts and circumstances of the case. In Krishna Mohan Pvt. Ltd. (supra), the apex court was considering Section 116(3) of the DMC Act, 1949. The apex Court declared Section 116(3) invalid as it delegated unguided and uncanalised legislative powers to the Commissioner to declare any plant or machinery as part of land or building for the purpose of determination of the rateable value thereof. The said decision interpreted the specific provision of Section 116(3) and the said judgment has no application in the present case. In the cased of State of Kerala (supra), the apex court held Section 59-A of The Kerala General Sales Tax Act, 1963 as violative of Article 14 of the Constitution of India. The reasons for holding Section 59-A as being violative of Article 14 are contained in paragraphs 11 and 13 of the judgment, which are extracted below:-
11. A plain reading of Section 59-A shows that if any question relating to the rate of tax leviable under the Act on any goods is referred to the Government then its decision thereon, notwithstanding any other provision in this Act is final". This section does not indicate as to who can make a reference to the Government. There is no obligation on the Government to hear a ay dealer before it decides as to the rate of tax leviable on the sales or purchase of any type of goods. In fact, as we have noticed earlier, by an omnibus order dated 23.4.1984, the Government decided rates of tax payable in respect of various items without ; any opportunity of being heard having been granted to any of the alers. Lastly, Section 59-A clairly states that the decision so given by the Government shall be final and would have an overriding effect.
13. Section 59-A enables the Government to pass an administrative order which has the effect of negating the statutory provisions of appeal, revision etc. contained in Chapter VII of the Act which would have enabled the appellate or revisional authority to decide upon questions in relation to which an order under Section 59-A is passed. Quasi-judicial or judicial determination stands replaced by the power to take an administrative decision. There is nothing in Section 59-A which debars the Government from exercising the power even after a dealer has succeeded on a question relating to the rate of tax bei.re an appellate authority. The power under Section 59-A is so wide and unbridled that it can be exercised at any time and the decision so rendered shall be final. It may well be that the effect of this would be that such a decision may even attempt to override the appellate or the revisional power exercised by the High Court under Section 40 of the Act as the case may be. The section enables passing of an executive order which has the effect of subverting the scheme of a quasi-judicial and judicial resolution of the lis between the State and the dealer.
17. The apex court for the reasons as contained in paragraphs 11 and 13 of the judgment found Section 59-A as arbitrary. Present is not such a case. Regulation 101 contains the provision for prior approval by the District juage. Inspector of Schools before making any appointment on Class-III or Class IV post by the Committee of Management of a recognised private aided i dilution. As quoted above, the other provisions of Regulation control the exercise of power under Regulation 101. Grant of approval or refusal of approval is based on several relevant factors including qualification for the post, procedure of selection and availability of sanctioned post. Hence it cannot be said that the power of the District Inspector of Schools to grant approval or refuse approval is unguided. The apex court's judgment in the State of Kerala's case (supra) has no application in the facts and circumstances of the present case and does not help the appellant in any manner.
18. There cannot be a dispute that the power conferred to a statutory authority has to be exercised in a reasonable period; what shall be the reasonable period for exercise of power, shall differ from fact to fact. In event, the statutory authority does not exercise the power within reasonable period, the appointing authority or the" candidate are not remedy-less. It is always open to them to bring into notice of the higher authorities or to seek recourse in the Court of law. The second case relied upon by the learned Counsel for the appellant also does not help the appellant in the present case.
19. We are in respectful agreement with the view taken by the learned Single Judge in dismissing the writ petition. vVe do not find any error in the ipugned judgment.
20. The appeal is dismissed.