1. Heard learned counsel for the petitioner and learned Standing counsel appearing for the State-respondents.
2. Since both the petitions have been filed against the impugned order dated 23.12.2018 and involve common question of law and facts, they are being decided by a common order. However, the facts of Writ Petition No.15782 (SS) of 2021 are taken into consideration for deciding the writ petitions.
3. The petitioner being aggrieved with the order dated 23.12.2018, a copy of which is annexure 1 to the writ petition passed by the District Inspector of Schools, Raebareilly by which the claim of approval of the petitioner's appointment on a Class IV post has been rejected, is before this Court.
4. Learned counsel for the petitioner contends that the impugned order has been passed by the District Inspector of Schools by which the approval of the petitioner has been rejected on grounds including the grounds of a Class IV post to be filled in only through outsourcing. He submits that the matter of outsourcing is engaging the attention of the Apex Court and thus, the matter may come up after the Apex Court decide the issue.
5. However, a perusal of the order dated 23.12.2018 would indicate that outsourcing is one of the grounds on which the case of the petitioner has been rejected, the other ground being that there was no prior approval to the appointment of the petitioner on a Class IV post.
6. Admittedly, the petitioner has been appointed on 1st August, 2015 and subsequent to his appointment, his papers had been sent by the institution for approval to the District Inspector of Schools. Thus, there was no prior approval to the appointment of the petitioner. The law in this regard already stands settled by the judgment of this Court in the case of Sanjay Kumar Vs. State of U.P and ors passed in Writ Petition No. 1592 (SS) of 2014. For the sake of convenience, the relevant paragraphs are reproduced below:-
"10. The expression "prior approval" has been considered in various judgments of this Court. In the case of Jagdish Singh vs. State of U.P. and others reported in 2006(3) UPLBEC 2765 a Division Bench of this Court has held as under:-
"18. Regulation 101, as quoted above, uses two words, namely, iwokZuqeksnu 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 the 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 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.
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 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 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.
11. Another Division Bench of thisCourt in the case of Miss Shailja Shah vs. ExecutiveCommittee reported in 1995(25) ALR 88, aftr consider the expression "prior approval" and "approval" held that two words connotes different situation. The Division Bench held that where the statutes uses the term "prior approval" anything done without prior approval was a nullity.
12. Another Division Bench of this Court in the case of Pawan Kumar Mishra vs. Joint Director of Education and others reported in 2018(3) AWC 2418 has held as under:-
"In the instant case, the expression used in Regulation 101, is "prior approval" and not "approval". Consequently, when the statute uses the term "prior approval", then anything done without prior approval is a nullity. In Prabhat Kumar Sharma and others vs. State of U.P. and others, AIR 1996(SC)2638 the Supreme Court held:
"Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees."
In the light of the aforesaid, we find that admittedly the appellant was appointed without seeking prior approval from the District Inspector of Schools. The said appointment was wholly illegal and was a void order, which conferred no right on the appellant."
13. When the facts of the present case are seen in the light of the aforesaid judgments in the case of Jagdish Singh, Miss. Shailja Shah and Pawan Kumar Mishra (supra), what this Court finds is that no prior approval at any stage was given by the DIOS for filling in the Class-IV post on which the petitioner was appointed. The Director of Education has held the appointment of the petitioner to be illegal after considering the aforesaid facts and Regulation 101 to 107 of the 1921 Act. The Director of Education has also observed that there is no evidence on record that any documents were sent by the Institution to the DIOS for seeking approval of the appointment of the petitioner and after considering the aforesaid facts the impugned order dated 28.2.2014 has been passed. No doubt, the ground taken in the impugned order that a Class-IV post can only be filled in through outsourcing is no longer in existence inasmuch as the said Government Order has already been set-aside by this Court yet the fact of the matter remains that there was no permission granted by the DIOS for filling in the Class-IV post on which the petitioner was appointed."
7. Considering the aforesaid ground of no prior approval having been given by the District Inspector of Schools prior to making the appointment, even if the other grounds are not considered, the said ground is a valid ground on which the approval has not been granted to the appointment of the petitioner. As such, it cannot be said that there is any illegality in the order dated 23.12.2018.
8. Accordingly, the writ petition is dismissed.
Order Date :- 27.7.2021 Pachhere/-