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2017 DIGILAW 2415 (ALL)

LEELA SINGH v. D. I. O. S. , GHAZIABAD

2017-10-25

MANOJ KUMAR GUPTA

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JUDGMENT Hon’ble Manoj Kumar Gupta, J.—Heard counsel for the petitioners and learned standing counsel for the State respondents. No one has appeared on behalf of respondent Nos. 3 and 4, even though the matter is taken up in the revised call. 2. The petitioners, who are three in number, claim that they appeared in a selection held for appointment on Class IV posts in Shri Saraswati Vidyalaya Inter College, Hapur, Ghaziabad, a recognised institution under the U.P. Intermediate Education Act, 1921. The provisions of U.P. Act No. 24 of 1971 are also applicable to the institution. The District Inspector of Schools accorded approval to their selection by communication dated 27.7.1996. In the pursuance thereof, the petitioners were issued appointment letters dated 31.7.1996 whereunder they were permitted to join the institution since 1.8.1996. After completion of probationary period of one year, their services were confirmed by orders dated 6.8.1997 issued by the Principal of the institution. The petitioners were paid salary from the State exchequer since the date of initial appointment and they continued to receive the same till April 1998 when abruptly the salary was stopped. On enquiry, the petitioners came to know that the salary was stopped in pursuance of some direction given by the District Inspector of Schools. The Accounts Officer attached to the office of the District Inspector of Schools made an endorsement on 16.5.1998 on the salary bills that payment of salary to the petitioners has been kept in abeyance by the order of the District Inspector of Schools. This compelled the petitioners to file the instant writ petition seeking quashing of the endorsement dated 16.5.1998 made by the Accounts Officer on the salary bills as well as for a mandamus commanding the respondents to pay salary to the petitioners from April, 1998 onwards. 3. A counter-affidavit has been filed by the State respondents and in paragraphs 4, 8 and 17 thereof it is alleged that an audit objection was raised to the effect that at the relevant time, there were only two vacancies, but the Principal of the institution, instead of appointing two persons against two vacancies, proceeded to make three appointments. It is alleged that the prior approval of the District Inspector of Schools was for filling up two vacant posts only. It is alleged that the prior approval of the District Inspector of Schools was for filling up two vacant posts only. It is further alleged that the District Inspector of Schools gave approval to the selection of all the three petitioners, without examining as to whether three vacancies were in existence at the relevant time or not. It is alleged that since one of the appointments was made against a future vacancy, without prior approval, hence salary of the petitioners was rightly stopped on the basis of audit objection. 4. Learned counsel for the petitioners contended that in fact on 1.8.1996, the date on which the petitioners were appointed, there were three vacancies in existence. In support of his contention, he has placed reliance on the communication sent by the Principal to the District Inspector of Schools on 12.7.1996 seeking approval to the appointment of the petitioners. In the said communication, it was specifically mentioned that two vacancies were already in existence, whereas one vacancy would come into existence from 1.8.1996, as the incumbent Sri Vimal Pal working on the said post would be promoted to the post of Daftari since 1.8.1996. It is further stated in the said communication that the appointment of the petitioners would be from 1.8.1996 on a probation of one year. It is contended on the basis of the recitals contained therein that on the date of actual appointment, three vacancies were in existence and as such, there was no illegality in the appointment of any of the petitioners. It is further submitted that under Chapter III Regulation 101, there was no requirement of seeking prior approval for holding the selection. It is urged that the approval was to be obtained after holding selection but before issuing the appointment orders, which requirement stands duly complied with. It is thus sought to be contended that the stand taken in the counter-affidavit that the selection was held at least in respect of one post, without obtaining prior approval of the District Inspector of Schools, is without any basis. In support of the said contention, learned counsel for the petitioners has placed reliance on a Division Bench judgement of this Court in Jagdish Singh v. State of U.P. and others, 2006(4) ADJ 162 . In support of the said contention, learned counsel for the petitioners has placed reliance on a Division Bench judgement of this Court in Jagdish Singh v. State of U.P. and others, 2006(4) ADJ 162 . Lastly, it is submitted that even otherwise, such an objection could have been raised only in respect of one of the appointments, but there was no justification in withholding the salary of all the three petitioners. 5. On the other hand, Sri Vikram Yadav, learned standing counsel appearing on behalf of the State respondents submitted that since on the date when the selection was held, there were only two vacancies, therefore, appointment of three persons was illegal. 6. I have examined the contentions advanced by learned counsel for the parties as also the material placed on record. 7. Regulation 101 of Chapter III of the U.P. Intermediate Education Act, 1921 was inserted w.e.f. 30th July 1992. The said provision has undergone amendment in the year 2009 but prior to its amendment, it read thus : “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.” 8. The said provision was interpreted by this Court in Jagdish Singh (supra) by holding that prior approval contemplated thereunder was at the stage of issuance of appointment letter to the selected candidates. It does not contemplate seeking approval before the selection process is started. The relevant observations made in this regard are as under : “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 members of deceased employee, who is entitled for compassionate appointment to the institution, who has to issue appointment letter to such candidates. 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 members of deceased employee, who is entitled for compassionate appointment to the institution, who has to issue appointment letter to such candidates. 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 the Principal/committee of management, prior approval is required of the District Inspector of Schools before issuing an appointment letter to the selected candidates. 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. The observation of the learned single Judge, in the case of Dingur v. District Inspector of Schools, Mirzapur (supra) as quoted above, is also to the effect that approval has to be considered by the District Inspector of Schools after examining the proceeding relating to appointment and after examining as to whether prescribed procedure in a fair manner has been followed or not. 21. 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 Principal/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. 22. 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. 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.” (emphasis supplied) 9. Sri Vikram Yadav, learned standing counsel appearing on behalf of the State respondents is not in a position to dispute the law laid down in the said judgement nor he has placed before this Court any contrary view. It is thus well-settled that prior approval contemplated under Regulation 101 of Chapter III, as existed at the relevant time, was in regard to selection held for filling up the posts. The approval required from the District Inspector of Schools is not with regard to the permission for holding selection but in regard to the selection already held. Concededly, the selection of all the three petitioners has due approval from the District Inspector of Schools. They were formally appointed only thereafter. Thus, it is difficult to accept the contention of the State respondents that since approval was sought for filling up two vacancies, whereas the selection was held for three posts, therefore, the selection was illegal. 10. Coming to the next objection that there were only two vacancies, whereas selection was made in respect of three posts, it is to be noted that the Principal in his communication dated 12.7.1996 specifically mentioned that two vacancies were already in existence, whereas one more vacancy would come into existence since 1.8.1996. The District Inspector of Schools was well aware of the said factual position when he granted approval to the selection of the three petitioners by order dated 27.7.1996. The appointment order specifically states that petitioners would join since 1.8.1996. This condition was imposed apparently for the reason that the third post would also fall vacant since 1.8.1996. It is not disputed before this Court that in fact the third vacancy also became available since 1.8.1996. The appointment order specifically states that petitioners would join since 1.8.1996. This condition was imposed apparently for the reason that the third post would also fall vacant since 1.8.1996. It is not disputed before this Court that in fact the third vacancy also became available since 1.8.1996. In view of the said factual position, in the opinion of the Court, there was also no illegality in filling up the third post in contemplation of the vacancy, nor in the approval granted by the District Inspector of Schools to the selection of all the three petitioners. It is not in dispute that since the date of initial appointment of the petitioners i.e. 1.8.1996 they were duly paid their salary when it was abruptly stopped on the basis of audit objection. It is also not in dispute that upon filing of the writ petition, an interim order was passed in favour of the petitioners on 10.1.1999 and on basis thereof, they continued in service and were paid salary. 11. Having regard to these facts, this Court is of the firm opinion that the audit objection was manifestly incorrect, as there was no illegality in the appointment of the petitioners on the three vacant posts which had been in existence since 1.8.1996. 12. As a result of the discussion made above, the writ petition succeeds and is allowed. The petitioners are held entitled to regular salary from the date of their initial appointment alongwith all other benefits as are admissible to them under law. The arrears of salary, if any, shall be paid to the petitioners within six weeks from the date of production of certified copy of this order before the fifth respondent.