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2015 DIGILAW 2577 (ALL)

Arun Kumara Pandey v. State of U. P.

2015-08-24

ATTAU RAHMAN MASOODI

body2015
JUDGMENT Attau Rahman Masoodi, J. 1. Heard learned counsel for the petitioner and learned Standing Counsel, who has accepted notice on behalf of the respondents no. 1 and 2. Respondents no. 3 and 4 are unrepresented. 2. The relief prayed for in the present writ petition is as under: - "(i) to issue a writ, order or direction in the nature of mandamus commanding the opposite parties to pay salary to the petitioner of Class IV post in Shri Ganesh Vidyalaya Inter College, Aihar, Rae Bareli regularly." 3. In the light of relief sought as above, it is stated that two posts of Group-D employees were advertised by the Principal of the College on 03.09.1998 and one more post of Group-D employee to be appointed in the Library was also advertised by a supplementary advertisement. 4. The documents placed on record further show that as many as eight candidates participated in the process of selection which appears to have been held by the Principal of the College on the basis of interview. The merit of the candidates was categorized in grades. Two candidates were graded in 'I' category, namely, Mata Prasad Tiwari and Arun Kumar Pandey (Petitioner). Both the candidates categorized in Grade-I are said to have been appointed and all the relevant papers as regards to their selection were forwarded to the District Inspector of Schools (for short 'D.I.O.S.) for necessary approval on 26.09.1998. Simultaneous to forwarding papers for approval of D.I.O.S., the petitioner was appointed on Group-D post by order dated 26.09.1998. The matter as regards to grant of approval remained pending, however, the petitioner is said to have joined on 26.09.1998. Despite joining of the petitioner in pursuance of the appointment order issued on 26.09.1998, he was not paid salary obviously for the reason that the necessary approval was not granted. 5. The petitioner by moving a representation on 09.08.1999 demanded salary from the Principal, who by letter dated 20.08.1999 informed the petitioner to the effect that his appointment was not approved by the D.I.O.S. despite necessary papers being forwarded to him on 26.09.1998, therefore, regular salary can not be given to him. It was also mentioned in the letter dated 20.08.1999 by the Principal of the College that the D.I.O.S. on being contacted has informed that the matter has been sent to the Director of Education (Madhyamik) for necessary guidance. 6. It was also mentioned in the letter dated 20.08.1999 by the Principal of the College that the D.I.O.S. on being contacted has informed that the matter has been sent to the Director of Education (Madhyamik) for necessary guidance. 6. The present writ petition was filed in the back ground of the fact that the petitioner was not paid his salary for want of necessary approval of the D.I.O.S. and the matter being forwarded to the Director of Education (Madhyamik) as mentioned in the letter dated 20.08.1999 by the Principal of the College. 7. At the initial stage of filing of this writ petition, this Court passed an interim order on 18.09.1999 whereby the opposite parties no. 2 to 4 were directed to pay salary to the petitioner and submit a compliance report. 8. It is on the strength of aforesaid order that the petitioner has been continued in service and is being paid salary from the State Exchequer under the provision of U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971. 9. Learned counsel for the petitioner while arguing the matter primarily placed reliance upon an order dated 01.04.2014 passed by this Court in the case of Mata Prasad Tiwari Vs. State of U.P. and Ors.) who being a similarly situated person was allowed to work in terms of the interim order and the writ petition filed by him on being finally disposed of by order dated 01.04.2014 has been continued and is being allowed to work as a regular employee. 10. Learned Standing Counsel does not dispute the similarity of two cases but inviting attention of this Court to the counter affidavit, it is pointed out that the appointment of the petitioner was not approved by the D.I.O.S., therefore, unless the appointment is approved, the relief prayed for by the petitioner in the writ petition, can not be granted. 11. The objection raised in the counter affidavit can not be rejected outright on the strength of Court order placed reliance upon by the learned counsel for the petitioner as mentioned above. The stand taken in the counter affidavit is in the light of Regulation 101 of Chapter-III of the Regulations framed under the U.P. Intermediate Education Act, 1921 which is undisputedly statutory in nature. The stand taken in the counter affidavit is in the light of Regulation 101 of Chapter-III of the Regulations framed under the U.P. Intermediate Education Act, 1921 which is undisputedly statutory in nature. Regulation 101 applicable at the relevant point of time for reference is reproduced herein below: - "101- fu;qfDr izkf/kdkjh] fujh{kd ds iwokZuqeksnu ds flok; fdlh ekU;rk izkIr lgk;rk izkIr laLFkk ds f'k{k.ksRrj in dh fdlh fjfDr dks ugha HkjsxkA izfrcU/k ;g gS fd teknkj ds in dh fjfDr dks fujh{kd }kjk Hkjus dh vuqefr nh tk ldrh gSA" 12. From a plain reading of the Regulation, it is evident that prior approval is a condition precedent before making appointment of a candidate against a non teaching post. Although by an amendment in the year 2009 a further rider has been incorporated in the provision but for the present case, the condition of prior approval to be granted by the D.I.O.S. was the rule at the relevant point of time. 13. Learned counsel for the petitioner very fairly has brought to the notice of this Court a Division Bench Judgment reported in 2006 (24) LCD 1712 (Jagdish Singh Vs. State of U.P. and Others) wherein the aforesaid Regulation was considered and has been interpreted. Paragraph no. 22 of the aforesaid judgment being relevant is quoted herein below: - "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." 14. From the judgment cited before this Court, it follows that prior approval was necessary before issuance of the order of appointment but such a position came to be laid down only in the year 2006 and diverse views prevailed prior thereto. The requirement prescribed under the statute necessarily has a purpose and the legislative intent of the statutory provision can not be sidelined or allowed to be made redundant by any other practice that may frustrate a fair procedure of recruitment. A fair procedure of recruitment is essentially the object regulated under the mechanism of prior approval. 15. In the instant case, so far as the procedure is concerned, it is clearly stated in the writ petition that an advertisement was issued and selection was held. A fair procedure of recruitment is essentially the object regulated under the mechanism of prior approval. 15. In the instant case, so far as the procedure is concerned, it is clearly stated in the writ petition that an advertisement was issued and selection was held. To that extent, the position has not been disputed in the counter affidavit. However, mechanical objection has been raised in the counter affidavit to the effect that approval was not granted by the D.I.O.S. The defect appears to have been left not on account of any procedural infirmity in the selection but on account of inaction on the part of the D.I.O.S., barring the fact that the appointment letter was issued by the competent authority in a hasty manner may be for the reason that the appointing authority thought that the appointment was also a part of selection process. 16. Be that as it may, once the requirement of prior approval is a condition precedent, the defect left in the process of appointment has to be considered and cured by the competent authority having regard to the object of rule. The experience shows that correspondence on such matters is left unattended which rather deserves immediate attention and must be dealt with without any unreasonable delay. 17. In the totality of circumstances, respondent no. 2 i.e. D.I.O.S., Raebareli is hereby directed to examine and finalize the matter of approval expeditiously in accordance with law preferably within a period of two months from the date of production of a certified copy of this order along with the representation, which the petitioner is permitted to make within 10 days from today; and until the decision, the interim order would continue to operate subject to the outcome of above direction. 18. With the above observations and directions, the writ petition is finally disposed of.