Heard Sri Rakesh Kumar Srivastava, learned Counsel for the petitioner, Sri Pankaj Verma, who has put in appearance on behalf of Committee of Management and Sri Prashant Jaiswal, learned Addl. Chief Standing Counsel for the State.
Petitioners have filed this writ petitioner inter-alia for a direction to pass order for giving financial approval for payment of salary and further to pay monthly salary alongwith arrears of salary.
According to the learned Counsel for the petitioners, the Committee of Management of B.N. Inter College, Mallawan, Hardoi, which is a recognized and aided institution, [ hereinafter referred to as the "College"] issued an advertisement in News Paper, namely, Swatantra Bharat and 'Yeh Samta Raj' on 8th Agusut, 2002 inviting applications for Class IV posts. In response to the said advertisement, petitioners and other similarly situated candidates applied for the said posts and were called upon for interview, which was held on10.9.2002. After due procedure, petitioners were declared selected on different types of Class IV posts, namely, petitioner no.1 was selected and appointed on the post of Intermediate Physics Lab Assistant, petitioner no.2 on the post of Office peon, petitioner no. 3 on the post of Principal's Orderly whereas petitioner no.4 was selected and appointed on the post of 'Farrash'.
It has been pointed out by the Counsel for the petitioners that there are 17 sanctioned posts of Class IV in the College. Two posts fell vacant on account of promotion of Class IV employees, namely, Ram Khilawan and Ram Narayan Gupta and the other two posts fell vacant due to the retirement of Ram Bharosey [ Orderly] and Gaya Prasad [ Farrrash].
After the selection, the Principal of the College sent proposal on 12.10.2002 to the District Inspector of Schools, Hardoi for according financial approval for payment of salary to the petitioners. As all the petitioners were discharging their duties with sincerity but were not paid salary, they also made representation in the month of January, 2003 followed by reminders but they were not paid salary compelling them to file the instant writ petition claiming relief, as aforesaid.
On the strength of the decision rendered in Rajendra Yadav v. Deputy Director of Education; 1999 (3)AWC 2123, learned Counsel for the petitioner has contended that in the eventuality when the District Inspector of Schools did not communicate any decision in response to the letter of the Management of the College within reasonable time, i.e. within a period of two weeks, then it shall be deemed that the DIOS has accorded approval. The said decision, according to the learned Counsel for the petitioner, has been followed in Shri Ranjan and others vs. District Inspector of Schools, Allahabad and others; 2005(2) ESC (All) 1023 wherein this Court held that even though prior approval is required for appointing a non-teaching staff under Regulation 101, the appointment made by the Committee of Management was deemed to have been approved by the District Inspector of Schools after expiry of two weeks from the date of the receipt of information.
As regard the appointment of the petitioners against the vacancies falling in the general category, learned Counsel for the petitioner has submitted that no provisions of the Reservation Rules has infact been violated by the Committee of Management while making appointment of the petitioners as against the reserved vacancies the general category candidate would have no right for being considered but for open category, namely, which is commonly known as general vacancy, no quota can be fixed for general candidate nor it can be said that the persons belonging to any reserved category shall stand dis-qualified and would not be eligible for being considered for appointment or promotion against such post of general vacancy. In support of his submissions, as aforesaid, reliance has been placed on a Division Bench judgment of this Court in Dubari and other vs. State of U.P. and others [2007(25) LCD 1176].
Lastly, learned Counsel for the petitioner has submitted that after appointment of the petitioners, other vacancies of Class IV post in the Institution have fallen vacant and in the same manner in which the petitioners were appointed other persons, namely, S/Sri Arvind Prasad and Guru Dutt Pandey were appointed by the Principal of the College and their appointment have been approved for payment of salary to them vide order dated 29.1.2005 passed by the District Inspector of Schools. Therefore, the action of the District Inspector of Schools in not giving financial concurrence in the matter of petitioners is discriminatory and is hit by Article 14 of the Constitution.
Sri Pankaj Verma, Counsel for the opposite parties nos. 3 and 4 has submitted that on 1.2.2001, that due to promotion of Ram Kehelawan from Class IV to Class III, the post of Daftari had fallen vacant. Therefore, the Committee of Management sought approval vide letter dated 18.5.2001. Thereafter, two more vacancy were caused due to retirement of Gaya Prasad Yadav and Shri Ram Bharosey. Therefore, opposite party no.4 sent another letter in furtherance of the earlier letter dated 18.5.2001 making request for grant of prior permission to make appointment. When despite reminders and last letter dated 23.7.2002 when nothing was heard from the end of the District Inspector of Schools, the opposite party no.4 having no other alternative and in the interest of the College, proceeded with the selection proceedings. Thereafter vide letter dated 12.10.2002, the information about the appointment was sent by the opposite party no.4 through Shri Ram Narain Gupta,Assistant Clerk, which was not received in the office of DIOS and as such the Principal of the College sent the same through registered post on 17.10.2002 but the same was returned with the endorsement of refusal. Thereafter on 6.11.2002, opposite party no.4 again sent letter dated 1.11.2002 which was also returned. Again, the papers were sent vide letter dated 4.12.2002 which were received but no orders were passed in respect of the petitioner.
As regard the policy of reservation is concerned, the quota of general category candidate has been filled up by making appointments of the petitioners no.1 to 3 according to their merit as they have applied for the post under the general category quota. Further, the petitioner no.4 belongs to the Scheduled Caste community. Therefore, there is no illegality in the appointment of the petitioners in the College and their appointment being made after due process of selection, they are entitled for their salary. It has also been urged that a duty is cast upon the DIOS to pass whatever order he thinks proper on the letters which were sent by the College but he cannot sleep over the matter for all time to come and treat the papers as waste papers.
Sri Prashant Jaiswal, Addl. Chief Standing Counsel while opposing the writ petition submitted that the College is a recognized Intermediate College and is controlled and governed by the U.P. Intermediate Education Act,1921 and the Regulations framed thereunder. The provisions of U.P. Secondary Education Service Commission and Selection Board Act, 1982, the Uttar Pradesh Secondary Education Services Commission Rules, 1995 and the U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act are also applicable upon the College.
Elaborating his submissions, learned Counsel for the State submitted that in the College 16 posts are sanctioned in Class IV category amongst which on 11 posts, employees belonging to the Scheduled Castes and Backward Class category are working, while as per Reservation Rules 8 employees should be in the reserved category and on 08 posts, persons belonging to the general category are to be appointed. Against 04 vacancies, the Principal of the College has made appointments of 01 candidates of Scheduled Caste Category and 03 candidates belonging to the backward class category while as per provisions of the Reservation Rules, against these 04 posts, the appointments ought to have bee made under 50% quota from the general category.
It has also been contended that the as per provisions of Regulation 101 as mentioned in the Government Order dated 2.2.1995, the Principal of the College has not sought necessary prior permission from the District Inspector of Schools, Hardoi and illegally appointments were made. And as such the Management of the College is responsible to make payments of salary from its own resources. Clarifying the position, it has been submitted that no letters as alleged by the College were received except the letter ated 4.12.2002 that too was without any enclosures regarding qualification, certificates and record of the selection proceedings.
Lastly, it has been argued that as per provisions till the appointments are not approved and financial approval is accorded, no appointment order could be issued but the Principal of the College has illegally made appointments of the petitioners and issued appointment letters on 1.10.2002 and had also allowed them joining and the matter of approval was sent to the DIOS vide letter dated 4.12.2002 i.e. after two months from the date of appointment. To strengthen his aforesaid assertion, reliance has been placed upon Jagdish Singh vs. State of aU.P. And others [(2006) 2 UPLBEC 1851)].
Before dealing with the actual controversy, it would be useful to reproduce to Regulation 101 of Chapter III of the Regulations framed under the Intermediate Education Act, which provides as under:-
"101. Appointing Authority except with prior approval of Inspector shall not fill up any vacancy of non-teaching post of any recognized aided institution: Provided that filling of the vacancy on the post of Jamadar may be granted by the Inspector."
The above provision contemplates that prior approval of the Inspector is required before filling up any vacancy. The moot question which arises for consideration is, whether prior approval is required before advertising the said post or before issuing the appointment letter. A Division Bench of this Court in Jagdish Singh vs. State of U.P. and others, 2006(2) UPLBEC 1851, has held as under:-
"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 Principle/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. 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 Division Bench held that it is not necessary that permission is sought by the institution seeking permission to issue an advertisement for filling up the post and that it is mandatory that prior approval is obtained from the Inspector before issuing an appointment letter.
In the present case, the advertisement was made on 8th August, 2002. The candidates were called for interview on 10.9.2002 and appointment letters to petitioners were issued on 1.1.2002 and in pursuance thereof the candidates joined on 8.10.2002 and 9.10.2002 respectively. Thereafter the Principal with the consent of the Committee of Management sent record on 12.10.2002 to the District Inspector of Schools, Hardoi for getting financial approval for payment of salary. The assertion of the respondent-State is that the letters as alleged by the Principal of the College were never received and the only letter dated 4.12.2002 was received in the office of District Inspector of Schools.
It would be relevant to point out that this court vide an ad interim order dated 3.11.2006 directed the respondents to pay regular monthly salary to the petitioner w.e.f. 1.11.2006, provided the petitioners are in the employment in the aforesaid college. It is informed at the Bar that in compliance of the said order petitioners are regularly getting salary as they are discharging their duties i in the College. However, the fact remains that till date, as admitted by the Standing Counsel, no order has been passed by the District Inspector of Schools and the petitioners were allowed to work and even almost ten long years have elapsed since then. This shows the lackadiasical and callous attitude of the concerned authority. It was imperative on the part of the DIOS to examine the issue when the documents/papers were received by him and pass appropriate orders in accordance with law.
In the fitness of things and to secure the ends of justice, this Court deem it proper to direct the District Inspector of Schools, Hardoi, to examine the matter in the light of the fact that petitioners are in service last more than ten years and even are being paid salary and in the event he finds that there is no defect in the selection process then financial concurrence shall be given in the manner as has been given to S/Sri Arvind Kumar and Gurudutt Pandey by the District Inspector of Schools vide order dated 29.1.2005. It is also made open to the District Inspector of Schools to recover the salary paid earlier from the Management of the College in case refusal of financial concurrence by the DIOS on finding any irregularity in the selection process or short coming in the candidature of the petitioners.
Subject to the aforesaid observations and directions, this writ petition is disposed of finally.
2.5.2016/-
MH/