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2015 DIGILAW 520 (ALL)

ABHISHEK TRIPATHI v. STATE OF U. P.

2015-03-20

SUNITA AGARWAL

body2015
JUDGMENT Hon’ble Mrs. Sunita Agarwal, J.—Heard Sri Prabhakar Awasthi, learned counsel for the petitioner and the learned Standing Counsel for respondent Nos. 1 to 4. 2. The petitioner is seeking quashing of the order dated 13.11.2014 passed by respondent No. 4 i.e. District Inspector of Schools, Jaunpur refusing to grant financial approval to the appointment of the petitioner on the post of Assistant Clerk in the institution in question. The grounds of rejection are that no prior approval has been taken as per the provisions of Regulation 101 Chapter III which provides for determination of sanctioned post prior to the initiation of the selection process. 3. Challenging the refusal to grant financial approval, learned counsel for the petitioner relied upon the judgment of this Court in Preet Kumar Srivastava v. State of U.P. and others, 2011 (9) ADJ 591 . The Regulation 101 has been interpreted by this Court and it was held that looking to the language of Regulation 101 which says that no appointment shall be made on a non-teaching post without there being approval of the District Inspector of Schools, the prior approval is required between selection and appointment of the incumbent against the vacant post. No prior approval is required before making selection for filling up the vacancy. 4. In the case of Preet Kumar Srivastava (supra), Regulation 101 as existed prior to the amendment made on 31.12.2009, was under consideration which reads as under: “The appointing authority shall not fill up any vacancy on a non-teaching staff of a recognized aided institution except with the prior approval of the Inspector.” Whereas the amended Regulation 101 vide notification dated 31.12.2009 is as follows : “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 fjfDr dks ugha HkjsxkA izfrcU/k ;g gS fd ftyk fo|ky; fujh{kd leLr fjfDr;ksa dh la[;k f'k{kk funs'kd] ekè;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 ekè;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 ekudks dk ikyu djk;sxkA" 5. A perusal of Regulation 101 as amended on 31.12.2009 indicates that by way of amendment, in the existing provision it was added that before filling up the vacancy, the District Inspector of Schools shall intimate the vacancy position (in the institution in question) to the Director of Education (Madhyamik) and also justify the number of sanctioned post considering the strength of students in the said institution. The approval to fill up the vacant post shall be granted by the District Inspector of Schools after receipt of the order/direction of the Director of Education (Madhyamik). While granting permission to fill up the post, the District Inspector of Schools was to ensure that the reservation rules and the sanctioned strength in the institution as determined by the State Government shall be strictly adhered to. 6. The vacancy had occurred on 31.1.2014 on account of retirement of the then incumbent Sri Kripa Shankar Tiwari and hence the amended Regulation 101 vide notification dated 31.12.2009 were made applicable. 7. The contention of the petitioner is that the sanctioned strength has already been determined by the Joint Director of Education pursuant to the Government Order dated 15.6.2012 issued in compliance of the directions dated 22.5.2012 passed by this Court in the case of Dhruv Narain Singh v. State of U.P. in Writ Petition No. 26307 of 2010. 8. An information in this regard was sent by the District Inspector of Schools to the Manager of the institution vide communication dated 9.11.2012. Objections were invited and the sanctioned strength of teaching and non-teaching staff in the institution has been determined. As per the sanctioned strength one post of Clerk in the institution was a sanctioned post. The only incumbent to the post of Assistant Clerk namely Sri Kripa Shankar Tiwari had retired on attaining the age of superannuation on 31.1.2014. This information was very well there before the District Inspector of Schools as he himself had informed the management of the institution regarding determination of sanctioned strength by the Director of Education. 9. In view thereof, it was not open for the District Inspector of Schools to reject the proposal for grant of financial approval to the appointment of the petitioner on the ground mentioned in the impugned order as the information regarding sanctioned post and vacancy position has been given to the District Inspector of Schools. 9. In view thereof, it was not open for the District Inspector of Schools to reject the proposal for grant of financial approval to the appointment of the petitioner on the ground mentioned in the impugned order as the information regarding sanctioned post and vacancy position has been given to the District Inspector of Schools. It is categorically stated that the management vide letter dated 2.2.2014 had informed about the vacancy position and prior approval has been obtained strictly as per provisions of Regulation 101 from the District Inspector of Schools, Jaunpur. However, the District Inspector of Schools did not pass any order and kept the matter pending despite reminder sent on 26.5.2014. As only post of Assistant Clerk was vacant in the institution, the management was facing difficultly in the day to day working in the institution and hence an advertisement dated 7.6.2014 was issued without waiting for further approval of the District Inspector of Schools to initiate the selection process. The petitioner was appointed by a duly constituted Selection Committee and papers were forwarded to the District Inspector of Schools on 30.6.2014. The order dated 13.11.2014 is nothing but an arbitrary exercise of power by the District Inspector of Schools without adverting itself to the object and purpose of the requirement of intimation of vacancy/sanctioned strength as per Regulation 101. 10. Placing reliance upon the case of Preet Kumar Srivastava (supra), submission is that the controversy as to what would be the stage for grant of approval by the District Inspector of Schools has been set at rest. In Preet Kumar Srivastava (supra), the words “fill up any vacancy except with the prior approval of the Inspector” as contained in Regulation 101 of Chapter III were interpreted. These words are very much there in the amended Regulation 101 and have not been replaced. A reading of the amended Regulation 101 also indicates that prior approval of the District Inspector of Schools is to be obtained before “filling up the vacancy” that means the approval is to be obtained at the time of appointment and not at the time of initiation of selection process for making appointment as held in Preet Kumar Srivastava (supra) wherein reliance has been placed upon the Division Bench judgement of this Court in the case of Jagdish Singh, etc. v. State of U.P. and others, 2006(4) ADJ 162 (DB). v. State of U.P. and others, 2006(4) ADJ 162 (DB). It was held therein that what is contemplated in Regulation 101 is approval after the selection is held and before appointment. 11. The amended Regulation 101 also contemplates the same stage that is after the selection process is over but before making appointment to the post. Only addition is that the District Inspector of Schools shall ensure that there exist sanctioned post in the institution in question at the time of initiation of the selection process and sufficient information of the said position be given to the Director of Education and his order be obtained. 12. It is noteworthy that in the case of Dhruv Narain Singh v. State of U.P. in Writ Petition No. 26307 of 2010, this Court found that time and again, appointments are made in the educational institution in various districts in the State of U.P. against non-sanctioned and non-available post. No action has been taken by the State Government to determine the number of posts as per the sanctioned strength in the educational institutions in order to weed out fraudulent appointments. A direction was given to the Principal Secretary, State of U.P. to conduct an enquiry for determining the number of posts actually created for teaching and non-teaching staff, institution-wise in the recognised Intermediate Colleges. 13. A further observation was made that no effort has been made to determine the cadre for about 39 years. Pursuant to various directions given by this Court in the case of Dhruv Narain Singh (supra), physical survey was conducted and cadre strength in the institution (Districtwise) in the entire State of U.P. has been determined. 14. It appears that the amendment in Regulation 101 vide notification dated 31.12.2009 was also made in order to check illegal appointments against non-sanctioned, non-existing posts in the recognised Educational institutions. 15. Thus, it can be safely concluded that before appointment of an incumbent on a non-teaching post, information is required is to be given to the District Inspector of Schools concerned regarding the sanctioned strength. The District Inspector of Schools is under obligation to examine the sanctioned strength in the institution and report the same to the Director of Education (Madhyamik). Only after satisfying itself to the sanctioned strength and the vacancy position, the District Inspector of Schools can grant approval for filling up the vacancy. 17. The District Inspector of Schools is under obligation to examine the sanctioned strength in the institution and report the same to the Director of Education (Madhyamik). Only after satisfying itself to the sanctioned strength and the vacancy position, the District Inspector of Schools can grant approval for filling up the vacancy. 17. However, there is another aspect of the matter that in case, the management approaches the District Inspector of Schools for grant of prior approval, the District Inspector of Schools cannot keep the matter pending for a long period as it would disturb the smooth functioning of the institution concerned. In case, sanctioned strength has already been determined by the Director of Education (Madhyamik), in view of the directions given by this Court in the case of Dhruv Narain Singh (supra), there would be no further requirement for referring the matter again to the Director of Education (Madhyamik) as contemplated in Regulation 101 as it would be a futile exercise and would further delay the appointments and impede the daily functioning of the institution. 18. In the instant case, it is apparent from the communication dated 9.11.2012 (Annexure ‘1’ page ‘12’ of the writ petition) that the determination of sanctioned post was made by the Director of Education, as per the Government Order dated 15.6.2012, which was issued in view of the directions in Writ Petition No. 26307 of 2010 (Dhruv Narain Singh v. State of U.P). A perusal of the communication dated 9.11.2012 indicates that one sanctioned post of Assistant Clerk was found in the institution in question and was finally determined. 19. This Court, therefore, finds force in the contention of the petitioner is that the determination of the post has been made final and hence there was no further requirement of determination of sanctioned post by the Director of Education as per Regulation 101 Chapter-III amended on 31.12.2009. 19. This Court, therefore, finds force in the contention of the petitioner is that the determination of the post has been made final and hence there was no further requirement of determination of sanctioned post by the Director of Education as per Regulation 101 Chapter-III amended on 31.12.2009. The purpose of addition in Regulation 101 by amendment dated 31.12.2009 has been discussed above which indicates that the purpose was to check illegal appointments against non-sanctioned non-existing post in recognised educational institutions in the State of U.P. As the purpose has been achieved with the determination of sanctioned post in the institution in question by the Director of Education and an intimation was sent to the management by the District Inspector of Schools on 9.11.2012, there was no further requirement of determination of sanctioned strength by the Director of Education. Moreover, the management has intimated the vacancy position on 2.2.2014 by way of abandoned caution. Reminders were sent but no reply was given by the District Inspector of Schools. 20. It appears that the District Inspector of Schools sat tight over the matter and has rejected the proposal for appointment of the petitioner on the vacant sanctioned post without adverting itself to the number of sanctioned post and the vacancy position in the institution in question, merely on the ground that no prior approval was obtained before initiation of the selection process. The said approach of the District Inspector of Schools is wholly whimsical. 21. It is not reflected from the order there was any infirmity found in the selection process for appointment of the petitioner. 22. In view of the above discussion, the order passed by the District Inspector of Schools dated 13.11.2014 cannot be sustained. The same is hereby quashed. 23. The matter is remitted back with a direction to the District Inspector of Schools, Jaunpur to pass a reasoned and speaking order strictly in accordance with the provisions as contained in Regulation 101 of Chapter III of the Regulations framed under the U.P. Intermediate Education Act, 1921 and the observations made herein above. 24. An expeditious decision be taken within a period of two months from the date of filing of certified copy of this order after calling for the comments of the Committee of Management of the concerned institution. 25. With these observations, the writ petition is disposed of. ——————