A post of clerk is stated to have fallen vacant on 3.1.2012. Intimation of it was given to the District Inspector of Schools on 8.1.2012. It is stated that no appointment was made and consequently, the authorised controller proceeded to advertise the post on 10.3.2012. It is claimed that pursuant to an advertisement, selection committee was constituted which has selected the petitioner. The authorised controller, vide his letter dated 24.3.2012 has forwarded the papers to the District Inspector of Schools, Balrampur for consideration and approval of appointment, which is stated to be pending.
Respondent no. 7 has filed an impleadment application and also a counter affidavit, according to which, the post in question was to be filled by way of promotion and the District Inspector of Schools has approved the promotion of respondent no. 7 on 31.1.2013 and that the said respondent no.7 is working pursuant to an appointment order issued on 4.2.2013.
Learned counsel for the petitioner submits that although an appointment letter dated 4.2.2013 is stated to have been issued in favour of respondent no. 7 but infact, the respondent no. 7 has neither been appointed nor he has actually been working in the institution ever since then. Rather, it is claimed by the counsel for the petitioner, that the petitioner is continuing as clerk in the institution and he is entitled to be paid salary.
Following prayers have been made in the writ petition:-
" I. Issue a writ, order or direction in the nature of mandamus thereby commanding and directing to the opposite parties to pay the regular salary to the petitioner with w.e.f. 26.3.2012 for the post of the clerk in Balrampur Balika Inter College, Balrampur District Balrampur U.P.
II. Issue a writ, order or direction in the nature of mandamus thereby commanding and directing to the opposite parties i.e. to the District Inspector of Schools Balrampur to issue the order of approval of petitioner for the post of clerk in the Balrampur Balika Inter College, Balrampur U.P. and to ensure payment of regular salary of petitioner regularly month to month alongwith its arrears and appropriate interests since the date of his joining 26.3.2012 in the interest of justice.
III. Issue any other order or direction in favour of the petitioner, which this Hon'ble Court may deem fit, just and proper under circumstances of the case.
IV. Allow this writ petition of the petitioner with appropriate costs in the interest of justice.
Counsel for the petitioner has stated that he is confining the present writ petition with regard to Prayer Clause-II and is not pressing prayer Clause-I in view of settled proposition of Law.
Learned Standing Counsel submits that no prior approval , as was required under Regulation-101, has been granted for filling up of the post, as such, the petitioner is not entitled to any relief. He further submits that since the post has, otherwise, been filled by way of promotion as such, no occasion now arises, to consider the approval for filling up of the post by direct recruitment.
I have heard learned counsel for the petitioner and learned Standing Counsel appearing on behalf of respondent nos. 1 to 6. Even though, the matter has been taken up in the revised list, none has appeared on behalf of respondent no. 7. However, the counter affidavit filed, on his behalf, has been considered.
In view of the nature of the order ,which is proposed to be passed in the present writ petition, grant of further opportunity to the counsel for the State for filing the counter affidavit, is not warranted and with the consent of the learned counsel appearing for the petitioner and the learned Standing Counsel, the writ petition is being disposed of at the admission stage itself.
Admittedly, a substantive post of clerk has fallen vacant in the institution on 3.1.2012 on account of promotion of previous clerk to the post of head clerk. There is no elected committee of management, in existence, and the authorised controller is discharging the functions of the committee of management. It appears that intimation of vacancy has been sent to the office of the District Inspector of Schools on 8.1.2012 and thereafter, steps to fill up the post have been taken by issuing an advertisement on 10.3.2012. The petitioner is claimed to have been selected and his papers for approval have been forwarded to the District Inspector of Schools. It also appears that no decision on the communication of the authorised controller dated 24.3.2012, seeking approval of appointment, has been taken. Regulation-101, as amended in 2009, is reproduced below :-
"101. fu;qfDr izkf/kdkjh fujh{kd ds iwokZuweksnu ds flok; fdlh ekU;rk izkIr] lgk;rk izkIr laLFkk ds f'k{k.ksRrj in dh fjfDr dks ugh HkjsxkA izfrcU/k ;g gS fd ftyk fo|ky; fujh{kd leLr fjfDr;ksa dh la[;k f"k{kk funs"kd] ek/;fed dks miyC/k djk;sxk rFkk laLFkk esa Nk= la[;k n'kkZrs gq;s inksa dks Hkjs tkus ds vkSfpR; dks Hkh Li"V djsaxsA f'k{kk funs'kd ek/;fed ls vkns'k izkIr gksus ij ftyk fo|ky; fujh{kd mDr fjfDr;ksa dks Hkjus gsrq fu;qfDr izkf/kdkjh dks vuqefr iznku djsxk vkSj vuqefr iznku djrs le; "kklu }kjk fu/kkZfjr vkj{k.k fu;eksa ,oa inksa ds vkSfpR; ds fy;s fu/kkZfjr ekudksa dks ikyu djk;sxkA izfrcU/k ;g gS fd teknkj ds in dh fjDr dks fujh{kd }kjk Hkjus dh vuqefr nh tk ldrh gSA"
A Division Bench of this Court in the case of Jagdish Singh Vs State of U.P. and others, (2006) 3 UPLBEC ,2765 has considered the import of Regulation-101 and held 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."
The District Inspector of Schools is required to consider in the present case, as to whether, the post was required to be filled by way of promotion or by way of direct recruitment and in case it is found that the post was required to be filled by way of direct recruitment, then whether procedure contemplated for appointment had been followed or not. There is no such consideration on the part of the inspector in the present matter. Since the required exercise has not been undertaken at the level of the District Inspector of Schools, this Court is not required to consider the issue raised regarding petitioner's claim on merits, at this stage, and the writ petition can be disposed off with the direction to the authority concerned to carry out the required exercise, warranted at his level, in accordance with law.
The writ petition, therefore, is disposed of with a direction upon the District Inspector of Schools to first deal with the question as to whether the post in question was required to be filled by way of direct recruitment or by way of promotion and in case it was found that the post had to be filled by way of direct recruitment, then to consider whether the appointment in accordance with law, after due publication of vacancy etc. had been under taken as intimated by the Authorised Controller vide his communication dated 24.3.2012. The District Inspector of Schools, would pass a reasoned and speaking order in this regard, after hearing the petitioner, authorised controller and also the respondent no. 7 in accordance with law, expeditiously, preferably within a period of two months from the date of presentation of certified copy of this order before the authority concerned.
Order Date :- 28.4.2014 n.u.