Court No. - 34
Case :- SPECIAL APPEAL DEFECTIVE No. - 1147 of 2012
Appellant :- State Of U.P. And Others
Respondent :- Bal Mukund Singh
Counsel for Appellant :- A.K. Goyal, Addl. C.S.C.
Counsel for Respondent :- V.K. Singh
Hon'ble Sudhir Agarwal,J. Hon'ble Shashi Kant,J.
1. Heard learned Standing Counsel for appellants-applicants. None appeared on behalf of respondent though the case is called in revise and name of Sri V.K. Singh, Advocate is shown in cause list as counsel for respondent.
2. As requested and agreed by learned Standing Counsel, we proceed to hear and decide this case at this stage.
3. This Intra-Court appeal under Chapter VIII Rule 5 of Allahabad High Court, Rules, 1952 has been filed against the judgement dated 27.8.2012 passed by learned Single Judge allowing Writ – A No. 43618 of 2006 directing the appellants to pay salary as well as arrears of salary to petitioner-respondent.
4. Admittedly, dispute relates to salary as well as arrears of salary of petitioner-respondent who was appointed on 23.4.1997 as Class IV employee in Kachcha Baba Inter College, Jalhoopur, Varanasi (hereinafter referred to as 'College'), governed by provisions of U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other employees) Act, 1971 (hereinafter referred to as 'Act, 1971').
5. Brief facts are that in College, three posts of Class IV employees fell vacant due to retirement of Neebu Ram, Ram Chet Ram and Dev Raj on 1.3.1994, 31.3.1996 and 30.11.1996 respectively. Principal of College sought permission to fill up said posts from District Inspector of Schools, Varanasi (hereinafter referred to as 'DIOS') which was granted on 1.4.1997. Thereafter, posts were advertised, selection was made and letter of appointment issued to petitioner-respondent on 21.4.1997. Petitioner-respondent joined College as Class IV employee on 23.04.1997. Thereafter, relevant documents relating to selection and appointment on said posts were forwarded to DIOS seeking approval.
6. Learned Standing Counsel submitted that in the present case, no attempt was made by appointing authority to seek prior approval of DIOS and here first appointment was made and, thereafter, documents were forwarded for approval of DIOS. This procedure is clearly illegal being in the teeth of Regulation 101 Chapter III of Regulations framed under U.P. Intermediate Education Act, 1921 (hereinafter referred to as 'Act, 1921'). He contended that when statute talks of “prior approval” it was incumbent upon appointing authority to forward all the relevant documents to DIOS seeking his approval and only when such approval is granted, or the period prescribed under Regulation expired and no approval is conveyed then a deemed approval comes into picture only then appointment could have been made and not earlier thereto. In the present case, record shows that appointment was made on 21.4.1997 and documents were forwarded to DIOS thereafter. Learned Standing Counsel also placed reliance on a Division Bench Judgement of this Court considering effect of Regulation 101 Chapter III of Regulations in Jagdish Singh etc. Vs. State of U.P. & others, 2006 (3) ESC 2055 (All)(DB).
7. Per contra, learned Counsel for petitioner-respondent submitted that
once documents were sent for approval even after making appointment it will be substantial compliance of Regulation 101. Learned counsel for the petitioner however sought to argue that the judgment of this Court in Jagdish Singh (supra) needs to be considered by a larger Bench since it has not noticed earlier Division Bench decisions of this Court in Prabhu Narain Singh Vs. Deputy Director of Education, Varanasi and another, 1977(3) ALR 391, Lalit Mohan Misra Vs. District Inspector of Schools, 1979 ALJ 1025 and Ashika Prasad Shukla Vs. District Inspector of Schools, Allahabad and another, 1998(3) UPLBEC 1722, wherein it was held that an appointment made without approval ipso facto would not be illegal but may get validated from the date, approval is granted by the competent authority subsequently.
8. Having considered the rival submissions, we find that issue raised in this appeal is squarely covered by Division Bench judgement of this Court in Jagdish Singh (Supra) and the arguments advanced by learned counsel for petitioner-respondent in respect to effect of subsequent forwarding of papers for approval, have already been considered in detail in another Division Bench judgement of this Court in Joint Director of Education, Azamgarh Region and another versus Udai Raj Vishwakarma 2007 3 ADJ 121 .
9. In view thereof, we find that petitioner-respondent having not been appointed validly and in view of the judgement in Jagdish Singh (Supra) the appointment is void ab initio, learned Single Judge has erred in law in issuing directions for payment of salary.
10. We find that effect of provision which talks of “prior approval” has been considered at length by Division Bench in Udai Raj Vishwakarma (supra), wherein similar argument was sought to be advanced on the strength of the judgments in Prabhu Narain Singh (Supra), Lalit Mohan Misra (Supra), and Ashika Prasad Shukla (Supra) but was repelled by this Court and it was held that appointment without prior approval is void ab initio. We may refer the relevant finding on this aspect recorded by Court in Udai Raj Vishwakarma (supra) as under:
“We thus proceed on to consider the effect of non- observance of the provision pertaining to "prior approval". Para 2(3)(II) of Second Order requires "prior approval" before making appointment of a teacher in a short term vacancy. It is not a case of mere approval. In Prabhu Narain Singh (Supra) this court had an occasion to consider the effect of lack of approval in making appointment of a teacher under Section 16-F of 1921 Act as it stood prior to amendment of the said provision by U.P. Act No. 16 of 1972. The selection was made by the selection committee on 2.8.1972 and papers were forwarded to DIOS who approved selection and appointment vide order dated 10.8.1972. Thereafter the management passed resolution on 25.5.1973 terminating service of the petitioner Prabhu Narain Singh and communicating him by letter dated 18.6.1973 and also forwarding the said resolution to DIOS who refused to accord approval vide order dated 13.7.1973. Whereagainst management preferred an appeal before Regional Deputy Director of Education, which was allowed on 13.5.1975 on the ground since Sri Prabhu Narain Singh was not appointed in accordance with Section 16-F of 1921 Act, no approval for termination was necessary. The Court noticed as a matter of fact that Sri Prabhu Narain Singh after his selection was given charge and started working as a teacher before DIOS accorded approval and it was actually accorded on 10.8.1972. Referring to Section 16-F(1) read with Regulation 6, Chapter-III and Regulation 16 Chapter II of the regulations framed under 1921 Act, this Court held that merely if a letter of appointment is withheld by the management it would not result in denial of right to be appointed to an approved candidate as a teacher due to the purposeful lapse on the part of the management and the management cannot take advantage of its own wrong though approval was accorded by the DIOS. It held further that once a selection has been made by the selection committee and accorded approval by the appropriate authority, the performance of act by the management of issuance of letter of appointment under Regulation 16 Chapter II is a mere ministerial act since management is bound to appoint him and issue letter of appointment. It has no option otherwise at all. In these circumstances, this Court held that the appointment of Sri Prabhu Narain Singh cannot be said to be inconsistent with Section 16-F(1) of the Act read with Regulation 6 Chapter-III and Regulation 16 Chapter-II of the Regulations and therefore before termination, approval of DIOS was necessary. Considering the effect from Regulation 16 Chapter II in the scheme of the Act and the Regulations framed thereunder the Court after referring to an earlier Division Bench judgment in Janta Inter College Nagra Vs. District Inspector of School Balia and others, Civil Misc. Writ Petition No. 4497 of 1969 decided on 26.11.1971 observed that once a person has been selected by a selection committee and his name has been approved by the DIOS, the Committee of Management is bound to appoint him and the Manager is bound to issue a letter of appointment for which the Committee of Management is bound to grant the officer authorization. It is held that the issuance of appointment letter in such circumstances was a mere ministerial act, non-observance thereof would not disentitled a person who otherwise is entitled to be treated as appointed under the statute. In our view the aforesaid judgment has no application to the facts and provisions applicable in this case particularly since Section 16-F talked of "approval" and not "prior approval". It is true that approval under Section 16-F was required after making selection and before issuing appointment letter but the legislature in its wisdom has used the word "approval" and not "prior approval" though in the Second Order it has used the words "prior approval" which have a definite connotation and purpose behind it. Further there is no provision like Regulation 16 Chapter III available in 1982 Act and the rules regulations framed thereunder. This Court considered the effect of certain regulations in that case which are not applicable in the case in hand. The provisions considered therein were different and not pari materia with those contained in Second Order.
Lalit Mohan Misra (Supra) was also a case of appointment made in 1971 inasmuch as the committee of management passed resolution on 23.7.1971 for appointing Lalit Mohan Misra and others as Demonstrator and papers sent to DIOS for approval. In anticipation of approval, the management allowed Lalit Mohan Misra and others to join the institution on 31.7.1971. The approval was accorded by the DIOS on 3.8.1971 whereafter the appointment letters were issued. The appointees thereafter were formally allowed to join on 4.8.1971. After five years of their working, the DIOS issued a letter on 9.11.1976 amending approval order dated 3.8.1971 stating that Lalit Mohan Misra and others would be treated as having been placed on probation w.e.f. 31.7.1971 i.e. three days prior to the date when the approval was accorded and accordingly also confirmed them. On representation made against the aforesaid order dated 9.11.1976 it was held by the DIOS vide order dated 17.8.1977 that Sri Lalit Mohan Misra and others will be deemed to have joined w.e.f. 4.8.1971 and not earlier thereto, whereagainst a writ petition was filed wherein the aforesaid view take by DIOS on 17.8.1977 was upheld. Considering Section 16-F of 1921 Act and Regulation 6 Chapter III and Regulation 16 Chapter II of the regulations, this Court held that though the management has got no right to appoint a person awaiting approval of the DIOS or the Deputy Director of Education, as the case may be, but the said appointment will become legal and regular only from the date approval is accorded by the competent authority and the prior working of the person will not confer any benefit qua the appointees. It also held that DIOS has no authority to subsequently pass an order modifying the date of appointment. In our view the aforesaid judgment considered the provisions which were differently worded framing different scope and the dispute involved in the aforesaid case was also totally different.
Coming to the third judgment relied on by the petitioner namely Ashika Prasad Shukla (Supra) it is no doubt true that this Court with reference to para2 (3) (II) of the Second Order and relying on the judgment of this Court in Lalit Mohan Misra (Supra) observed that the appointment if made prior to approval or deemed approval would become effective from the date of approval or deemed approval but since this issue was not considered by the Hon'ble Single Judge in the judgment under appeal before the Court, the DIOS was directed to look into this aspect whether the pre-requisite conditions for deemed approval were satisfied or not and thereafter pass an appropriate order. Thus it cannot be said that it lays down a law that an appointment made before prior approval would be valid after expiry of the period necessary to attract deemed approval and cannot be treated to be a binding precedent on this issue.
On the contrary where the statute specifically provides "prior approval" before passing any order, what its effects would be has been considered in some other cases which we propose to refer as under. Rule 11 of U.P. Recognized Basic Schools (Recruitment and Conditions of Service of Teachers and other Conditions) Rules, 1975 provides that no service can be terminated without prior permission from the District Basic Officer. A Division Bench of this Court in Ms. Shailja Shah Vs. Executive Committee, Bharat Varshiya National Association and another, 1995 (25) ALR, 88 held that expression "prior approval" and "approval" connotes different situation. Where a statute uses the term "prior approval" anything done without prior approval is nullity. Where a statute employs expression "approval", however, in such cases subsequent ratification can make the act valid.
Section 59(1)(a) of U.P. Urban Planning and Development Act, 1973 provides for "prior approval". The Apex Court in U.P. Avas Evam Vikas Parishad and another Vs. Friends Coop. Housing Society Ltd. and another, 1995 (Supple.) (3) SCC 456 held that "prior approval" and "approval" are two different connotations and if the statute does not mention "prior approval" what is material would be only "approval". The earlier judgment in Life Insurance Corporation of India Vs. Escorts Ltd., 1986 (1) SCC 264 was also referred where it was held that the word ''prior' and ''previous' may be implied if the contextual situation or circumstances justify such reading and the Act which requires only approval, the action holds good until it is disapproved.
Section 9 of the 1971 Act provides for "prior approval". In Director of Education and others Vs. Gajadhar Prasad Verma, AIR 1995 SC 1121, it was held that the absence of "prior approval" would not have an effect of creation of post and therefore the State is not obliged to reimburse salary to the management without "prior approval" of the Director or the competent authority under the Act. In Shiv Gorakh Nath Charitable Society, Kanpur and others Vs. Cantonment Board, Kanpur and others, 1997 (3) ALR 616, a Division Bench while considering the effect of "prior permission" held where construction is made without "prior permission" a "post permission" cannot be granted and the construction, so made, has to be dismantled. Same view has been taken by another Division Bench in Vivek Srivastava Vs. Union of India and others- 2005 (3) ESC (Alld.) 1790 -(Para 51).
(emphasis added)
11. In view of aforesaid exposition of law, the appointment of petitioner made on 23.04.1997 by Principal cannot be said to be legal or valid conferring any right on petitioner to claim salary or any other benefit on the basis thereof.
12. The judgement under appeal passed by learned Single Judge directing appellants to pay salary to petitioner-appellant from State- Exchequer cannot be sustained.
13. The appeal is, accordingly, allowed and impugned order dated 27.8.2012 is hereby set aside.
Order Date :- 23.2.2018 Siddhant Sahu
Court No. - 34
Case :- SPECIAL APPEAL DEFECTIVE No. - 1147 of 2012
Appellant :- State Of U.P. And Others
Respondent :- Bal Mukund Singh
Counsel for Appellant :- A.K. Goyal, Addl. C.S.C.
Counsel for Respondent :- V.K. Singh
Hon'ble Sudhir Agarwal,J. Hon'ble Shashi Kant,J.
1. Heard learned Standing Counsel for appellants-applicants. None appeared on behalf of respondent though the case is called in revise and name of Sri V.K. Singh, Advocate is shown in cause list as counsel for respondent.
2. Heard
3. This is an application seeking condonation of delay in filing appeal.
4. Delay in filing appeal is explained satisfactorily. It is hereby condoned. The application is accordingly allowed.
5. Let appeal be registered with regular number and old number shall also continued to be shown in bracket for finding out details of case, whenever required by parties with reference to either of the two numbers.
Order Date :- 23.2.2018 Siddhant Sahu
(C.M.Appl. No. 383521 of 2012)