Court No. - 58
Case :- WRIT - A No. - 1159 of 2016 Petitioner :- Smt. Vinorma Prasad Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Sunil Kumar Srivastava Counsel for Respondent :- C.S.C.,Swapnil Kumar
Hon'ble Ashwani Kumar Mishra,J.
1. The post of L.T. Grade Teacher in Pentiss Girls Inter College, Etah had fallen vacant which was duly advertised and petitioner was thereafter appointed on 14th June, 2003. The papers were forwarded to the Inspector for grant of approval which remained pending. Petitioner therefore, approached this Court by filing Writ Petition No.72086 of 2005, which was disposed of with the direction upon the District Inspector of Schools to take a decision.
2. A consequential order has been passed by the Inspector granting formal approval to petitioner's appointment vide order dated 18th February, 2006. The approval order, however, contained a stipulation that the benefit of salary would be extended from the date of joining consequent upon the approval order itself. Petitioner represented in the matter on the ground that once the approval was granted, it ought to relate back to the actual appointment itself. Such representations made from time to time remained pending. Ultimately, petitioner again approached this Court by filing Writ Petition No.43128 of 2015, which was disposed of vide order dated 10th August, 2015.
3. In pursuance of aforesaid order, the impugned order dated 21st November, 2015, has been passed by the District Inspector of Schools, Etah, rejecting the petitioner's representation. It is stated that since the approval was to be given effect to from the date of actual joining, after passing of such order, the petitioner is not entitled to salary for the period prior to the grant of approval.
4. Learned counsel for the petitioner has placed reliance upon a decision of this Court in Mahfooz Ahmad Khan vs. State of U.P. and others reported in 2010 (81) AllLR. 896. Reliance is also placed upon the decision of this Court in Smt. Sheema Haider and 2 others vs. State of U.P. and 4 others being Writ Petition No.66539 of 2013.
5. A counter affidavit has been filed by the Standing Counsel reiterating the stand of the State as is contained in the order impugned itself.
6. I have heard learned counsel for the parties and have perused the materials on record. Section 16 (FF) of The U.P. Intermediate Education Act, 1921, read with regulation 17(g) framed under Chapter 2 of the Act, regulating the grant of approval to a teacher in the minority institution are reproduced.
"16-FF. Savings as to minority institutions.- (1) Notwithstanding anything in sub-section (4) of Section 16-E, and Section 16-F, the Selection Committee for the appointment of a Head of Institution or a teacher of an institution established and administered by a minority referred to in Clause (1) of Article 30 of the Constitution shall consist of five members (including its Chairman) nominated by the Committee of Management :
Provided that one of the members of the Selection Committee shall-
(a) in the case of appointment of the Head of an institution, be an expert selected by the Committee of Management from a panel of experts prepared by the Director;
(b) in the case of appointment of a teacher, be the Head of the Institution concerned.
(2) The procedure to be followed by the Selection Committee referred to in sub-section (1) shall be such as may be prescribed.
(3) No person selected under this section shall be appointed, unless-
(a) in the case of the Head of Institution the proposal of appointment has been approved by the Regional Deputy Director of Education; and
(b) in the case of a teacher such proposal has been approved by the Inspector.
(4) The Regional Deputy Director of Education or the Inspector, as the Case may be, shall not withhold approval for the selection made under this section where the person selected possesses the minimum qualification prescribed and is otherwise eligible.
(5) Where the Regional Deputy Director of Education or the Inspector, as the case may be, does not approve of a candidate selected under this section the Committee of Management may, within three weeks from the date of receipt of such disapproval, make a representation to the Director in the case of the Head of Institution, and to the Regional Deputy Director of Education in the case of teacher.
(6) Every order passed by the Director or the Regional Deputy Director of Education on a representation under sub-section (5) shall be final."
The provisions of Section 17(g) of Chapter 2 of Regulations framed under the U.P.Intermediate Education Act,1921 reads as follows-:
"17. The procedure for filling up the vacancy of the head of institution and teachers by direct recruitment in any recognized institution referred to in Section 16-FF, shall be as follows:-
(a) ..... ........ .....
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7. The Division Bench judgement in case of Mahfooz Ahmad Khan (supra) has clearly held that in terms of regulations, the decision in the matter of grant of approval has to be taken by the Inspector. Under Regulation 17(g), in case the Inspector does not grant approval to the appointment, then by way of legal fiction, the approval would be deemed to have been granted. Observations made in Smt. Sheema Haidar (supra) in that regard are reproduced:-
“The Division Bench in the case of Mahfooz Ahmad Khan (supra) has held that in the case of appointment of a Teacher it is the District Inspector of Schools, who has to take decision and not the Regional Level Committee in the case of Minority Institutions. In the present case the D.I.O.S. by his order dated 26.8.2013 has already taken a decision in the matter and has accorded his approval to the selection of the petitioner but it is only with regard to payment of salary he has observed that the said approval will be subject to the financial approval by the Regional Level Committee.
In in view of the law settled by the Division Bench in the case of Mahfooz Ahmad Khan, the issue is no longer res integra. The decision in the case of Minority Institution with regard to payment of Assistant Teacher has to be taken by the D.I.O.S. and not by the Regional Level Committee. Therefore, since in the facts and circumstances of the case, the D.I.O.S. has already taken a decision with regard to selection and has approved the same, the petitioners are entitled for salary from the date of joining as Assistant Teacher in the light of the decision in the case of Mahfooz Ahmad Khan. The petitioners are also entitled for arrears of salary from the date of their appointment within a period of three months. Thereafter they will be paid their salary onwards month to month.
The writ petition is disposed of with the aforesaid directions.”
8. The Inspector while passing the order impugned, has failed to notice the aforesaid provisions. Appointment of petitioner has been found to have been validly made against an existing vacancy and approval has also been granted to it by the Inspector. There is no justification on the part of the Inspector in denying approval, upon expiry of one month from the date of communication of appointment, when no adverse orders against the petitioner had otherwise been passed within such period. The approval granted to petitioner's appointment ought to relate back to the expiry of one month period from the date of submission of appointment papers before the Inspector. Any other interpretation would render the provisions of Regulation 17(g) nugatory.
9. For such reasons, the order dated 21.11.2015, passed by the Inspector is quashed. A fresh order shall be passed by the Inspector within two months, keeping in view the observations made in this order. Writ petition accordingly stands disposed of.
Order Date :- 30.4.2018 Shalini