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2017 DIGILAW 1596 (ALL)

PAWAN KUMAR MISHRA v. JOINT DIRECTOR OF EDUCATION

2017-07-04

ASHOK KUMAR, TARUN AGARWALA

body2017
JUDGMENT Hon’ble Tarun Agarwala, J.—We have heard Sri Shashi Nandan, the learned senior Advocate alongwith Sri A.K.Singh, the learned counsel for the appellant and Sri S.B.Singh, the learned counsel for the Committee of Management and the learned standing counsel for the State. 2. The facts as has been culled out from the pleadings is, that one post of Senior Clerk and one post of Junior Clerk became vacant in Sri Ganga Prasad Inter College, Jagdishpur, Azamgarh. The Committee of Management resolved to fill up the vacancies. The vacancies were advertised and applications were invited. The appellant alongwith respondent No. 5 and others applied and the Selection Committee recommended a list in which respondent No. 5 was placed at Sl.No. 1 and the appellant was placed at Sl.No. 2. An appointment order was issued in favour of respondent No. 5. It was alleged that respondent No. 5 expressed his inability to join, on the basis of which the Committee of Management issued another letter of appointment dated 8.2.2007 in favour of the petitioner who accepted the appointment letter and joined on 12.2.2007. After the issuance of the appointment letter the institution forwarded the papers to the District Inspector of Schools for grant of approval. Since no approval was granted the appellant filed Writ Petition No. 23922 of 2007, which was disposed of directing the District Inspector of Schools to pass an appropriate order. The District Inspector of Schools thereafter passed an order on 23.9.2008 granting approval to the appointment of the petitioner. 3. The approval so granted to the petitioner was questioned by Sri Arun Kumar Singh, who was placed at Sl. No. 1 of the merit list contending that he had never waived his right to be appointed nor declined the appointment and contended that the appellant had obtained the appointment by misrepresentation. 4. Sri Arun Kumar Singh filed Writ Petition No. 70694 of 2009, which was disposed of by an order dated 23.12.2009 directing the Regional Joint Director to resolve the controversy. The Joint Director of Education after considering the matter disapproved the appointment of the appellant by an order dated 8.9.2010 on the ground that the post of Senior Clerk was a promotional post and was required to be filled up by promotion and not by direct recruitment. The Joint Director of Education after considering the matter disapproved the appointment of the appellant by an order dated 8.9.2010 on the ground that the post of Senior Clerk was a promotional post and was required to be filled up by promotion and not by direct recruitment. This order was challenged by the appellant in Writ Petition No. 59909 of 2010, which was allowed by judgment dated 29.9.2010. The order of the Regional Joint Director was quashed holding that the post in question was a promotional post and the matter was remitted again to the Regional Joint Director of Education to pass a fresh order after giving opportunity to all the parties. The Regional Joint Director thereafter passed a fresh order dated 14.3.2011 rejecting the claim of the appellant on the ground that no prior approval of the District Inspector of Schools was obtained before making the appointment and that it was not a case of deemed approval since no application was made by the management seeking prior approval. The Joint Director further held that the appellant who was placed at Sl.No. 2 in the select list could not have been given appointment since no proof of refusal by respondent No. 5 for accepting appointment could be proved. 5. The appellant, being aggrieved, filed a writ petition, which was dismissed by the learned Single Judge by judgment dated 25.5.2011. The learned Single Judge held, that under Regulation 101 of the U.P. Intermediate Education Act, 1921 (hereinafter referred to as the Regulation), prior approval of the District Inspector of School is mandatory and no post facto approval could be taken. The learned Single Judge held, that any appointment made without taking prior approval was an illegal appointment and was a void order, which conferred no right on the appellant. The appellant, being aggrieved, by the aforesaid decision of the learned Single Judge has filed the present Special Appeal under Chapter VIII Rule 5 of the Rules of the Court. 6. The learned Senior Counsel contended that in the instant case, admittedly, no previous approval was taken by the Committee of Management from the District Inspector of Schools. The appellant, being aggrieved, by the aforesaid decision of the learned Single Judge has filed the present Special Appeal under Chapter VIII Rule 5 of the Rules of the Court. 6. The learned Senior Counsel contended that in the instant case, admittedly, no previous approval was taken by the Committee of Management from the District Inspector of Schools. However, post facto approval was granted by the District Inspector of Schools after considering all aspects of the matter, did not find any discrepancy in the selection process and also found that the vacancy was available, which post could be filled up by way of direct recruitment since no qualified person was available to be filled up the vacancy by way of promotion. The learned Senior Counsel contended that once post facto approval was granted, the defect, if any, was curable, which was rightly cured by granting post facto approval by the District Inspector of Schools. The said approval could not be set aside on the sole ground that the provision is mandatory and that prior approval was essential. It was urged, that when prior approval of the District Inspector of Schools is contemplated in Regulation 101, the prior approval embraces itself an examination of all aspects of the matter including existence of the vacancy, the nature of the vacancy, whether vacancy is to be filled up by the management or it be filled by appointing a dependent of the deceased employee, which was all examined by the District Inspector of Schools. 7. The learned Senior Counsel thus contended that all these aspects were duly considered by the District Inspector of Schools and since no one was eligible for the said post and the process was found to be fair, the District Inspector of Schools had rightly granted post facto approval for the appointment of the petitioner, which should be maintained and the order passed by the Regional Joint Director should be set aside. 8. In support of his submissions, the learned counsel placed reliance upon a decision of the Supreme Court in High Court of Judicature For Rajasthan v. P.P.Singh and another, 2003 (4) SCC 239 , wherein the Supreme Court held : “When an approval is required, an action holds good. Only if it is disapproved it loses it force. Only when a permission is required, the decision does not become effective till permission is obtained.” 9. Only if it is disapproved it loses it force. Only when a permission is required, the decision does not become effective till permission is obtained.” 9. The learned counsel further relied upon another decision of the Supreme Court in U.P. Avas Evam Vikas Parishad and another v. Friends Coop. Housing Society Ltd. and another, 1995 Supp.(3)SCC 456, wherein the distinction between approval and promotion was explained. The Supreme Court held: “Ordinarily, the difference between approval and permission is that in the first case the action holds goods until it is disapproved, while in the other case it does not become effective until permission is obtained. But permission subsequently granted may validate the previous Act.” 10. In our view the aforesaid decisions are not applicable in the instant case. The distinction between “approval” and “permission” and “consultation” is not involved in the present case and, consequently, the aforesaid decisions have no bearing with the principles culled in the interpretation of Regulation 101 of the Regulations. 11. The learned Senior Counsel has also relied upon three decisions of the learned Single Judge in Vinod Kumar Singh v. State of U.P. and others, 2008(7) ADJ 36 , Principal, Intermediate College, Jaura Bazar, District Kushinagar and another v. State of U.P. and others, 2012 (5) AWC 4648 and Preet Kumar Srivastava v. State of U.P. through Secretary, Secondary Education, Government of U.P., Lucknow and others, 2011 (89) ALR 346. 12. In our opinion the said decisions are clearly against the appellant and in consonance with the principles laid down by the learned Single Judge. In all the three decisions, it was held that the previous permission is not required to be obtained by the institution before advertising the said post and that previous approval is required to be taken at the time of appointment. 13. On the other hand Regulation 101 has been the subject-matter of interpretation by the Division Bench of this Court. For facility, the English version as well as the Hindi version of Regulation 101 is extracted hereunder: “101. Appointing Authority except with prior approval of Inspector shall not fill up any vacancy of non-teaching post of any recognized aided institution. 13. On the other hand Regulation 101 has been the subject-matter of interpretation by the Division Bench of this Court. For facility, the English version as well as the Hindi version of Regulation 101 is extracted hereunder: “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.” **fu;qfDr izkf/kdkjh] fujh{kd ds iwokZuqeksnu ds flok; fdlh ekU;rkizkIr] lgk;rk izkIr laLFkk ds f'k{k.ksRrj LVkQ dh fdlh fjfDr dks ugh Hkjsxk% izfrcU/k ;g gS fd teknkj ds in dh fjfDr dks fujh{kd }kjk Hkjus dh vuqefr nh tk ldrh gSA^^ 14. A Division Bench of this Court in Jagdish Singh etc. v. State of U.P. and others etc., 2006(3) UPLBEC 2765 , analysed the words “ iwokZuqeksnu” and “vuqefr” and held: “18. Regulation 101, as quoted above, uses two words, namely, ‘iwokZuqeksnu’ and ‘vuqefr’. The first part of the Regulation provides that appointing authority except with prior approval of Inspector shall not fill up any vacancy of non-teaching post of any recognised aided institution whereas second part of the Regulation provides that permission for filling of post of sweeper (Jamadar) can be given by Inspector. Second part of the Regulation is in the nature of proviso. The main part of the Regulation contains word ‘iwokZuqeksnu’ i.e., prior approval whereas second part of the Regulation uses word ‘vuqefr’ i.e., permission. Thus, the Statute uses both the word “prior approval” and ‘permission’. The meaning of both the word cannot be the same. In view of this, the submission of the learned Counsel for the appellant that Regulation 101 requires only permission to issue advertisement by Appointing Authority and if such permission is granted by Inspector, the Appointing Authority can fill up the post. Regulation 101 provides prior approval with regard to vacancy of non-teaching staff and permission is contemplated only for filling the post of sweeper. Regulation thus indicates that when the permission is given to the Appointing Authority to fill up post of sweeper. There is no further prior approval is required. This provision being in nature of proviso to the main Regulation shall operate as an inception to the first part of Regulation. Regulation thus indicates that when the permission is given to the Appointing Authority to fill up post of sweeper. There is no further prior approval is required. This provision being in nature of proviso to the main Regulation shall operate as an inception to the first part of Regulation. Thus, the use of two words in Regulation 101 i.e., ‘prior approval’ and ‘permission’ itself negates construction of Regulation as contended by the Counsel for the appellant. 19. When the prior approval of the Inspector is contemplated in Regulation 101, that prior approval embraces itself an examination of all aspects of the matter including existence of the vacancy, nature of the vacancy whether vacancy is to be filled up by the Management or it be filled by appointing the dependent of deceased employee who has claimed for appointment under the scheme of the Regulations 101 to 107. 20. Scheme of Regulations 101 to 107 makes it clear that after receiving an intimation of vacancy, the District Inspector of Schools is empowered to send the application of member of deceased employee, who is entitled for compassionate appointment to the institution, who has to issue appointment letter to such candidate. It is, however, implied in the scheme that in the event there is no candidate entitled for compassionate appointment to fill a particular vacancy, the intimation of which has been received by the District Inspector of Schools, the District Inspector of Schools can direct the Appointing Authority to fill up vacancy by direct recruitment but even in a case the selection is made by direct recruitment by Principal/Committee of Management, prior approval is required of the District Inspector of Schools before issuing an appointment letter to the selected candidate. Without prior approval of the Inspector, the Principal or the Committee of Management cannot issue an appointment letter or permit joining of any candidate. The requirement of prior approval in Regulation 101 is a condition precedent before issuing an appointment letter and is mandatory. 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.” 15. 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.” 15. Another Division Bench in Miss Shailja Shah v. Executive Committee, 1995 (25) ALR 88, also considered the expression “prior approval” and “approval” and held that two words connotes different situation. The Division Bench held that where the statutes uses the term “prior approval”, anything done without prior approval was a nullity. The Court further held that where the statute employs the expression “approval”, in such cases, subsequent rectification can make the act valid. The aforesaid decision was followed by another Division Bench in Joint Director of Education Azamgarh Regions, Azamgarh and another v. Udai Raj Vishwkarma and another, 2007(3) ADJ 121 . We are in agreement with the aforesaid decisions of the Division Bench. 16. In the instant case, the expression used in Regulation 101, is “prior approval” and not “approval”. Consequently, when the statute uses the term “prior approval”, then anything done without prior approval is a nullity. In Prabhat Kumar Sharma and others v. State of U.P. and others, AIR 1996 (SC) 2638 , the Supreme Court held: “Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees.” 17. In the light of the aforesaid, we find that admittedly the appellant was appointed without seeking prior approval from the District Inspector of Schools. The said appointment was wholly illegal and was a void order, which conferred no right on the appellant. 18. We also find that the Regional Joint Director of Education in the impugned order had clearly given a categorical finding of fact that Arun Kumar Singh, respondent No. 5, who was at Sl. No. 1 of the select list had not declined to take the appointment nor gave any resignation. Consequently, in view of this finding, the appellant could not have been offered appointment. This finding has not being questioned by the appellant in the writ petition. 19. For the reasons stated aforesaid, the appeal lacks merit and is, accordingly, dismissed.