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2018 DIGILAW 2441 (ALL)

Anand Kumar Singh v. State of U. P.

2018-12-03

MANISH MATHUR

body2018
ORDER : Manish Mathur, J. 1. Heard Sri G.C. Verma, learned counsel appearing on behalf of the petitioner and the learned Standing Counsel appearing on behalf of opposite parties 1 to 3. Opposite party No. 4, the Committee of Management is unrepresented. 2. The present petition has been filed seeking a writ of certiorari quashing the order dated 17.10.2008 passed by the District Inspector of Schools, Gonda whereby the petitioner's appointment on the post of Junior Clerk has been disapproved on account of the fact that prior approval for the same as contemplated under Regulation 101 framed under the Intermediate Education Act, 1921 has not been taken. He has further prayed for a direction to the opposite parties to make payment of salary to the petitioner on Class III post regularly including arrears of salary with effect from 15.10.2009. 3. I have heard learned counsel for the parties and perused the record. 4. The impugned order dated 17.10.2008 indicates that the appointment of petitioner on a non-teaching post in the Institution in question has been disapproved, primarily, on two grounds. Firstly that prior approval as contemplated under Regulation 106 of the Regulations framed under the Intermediate Education Act, 1921 has not been taken. A reference to Regulation 106 in the impugned order seems to be incorrect inasmuch as the petitioner's appointment on a non-teaching post by direct recruitment is governed by the provisions of Regulation 101 of the said Regulation and not Regulation 106. 5. The second ground for disapproval of petitioner's appointment is based on an order dated 25.09.2008 whereby, apparently, a ban has been imposed by the State Government on new appointments in aided private schools. 6. So far as the first ground of rejection is concerned, the said dispute has already been settled by a Division Bench of this Court in Jagdish Singh v. State of U.P. and others reported in 2006 (2) UPLBEC 1851 : (2006 (5) ALJ 151) wherein this Court explaining the words 'prior approval' indicated in the said Regulation 101 has held that the said provision is applicable only after the selection process has been completed but is to be taken prior to issuance of the appointment letter by the appointing authority. Paragraphs 18 and 22 of the judgment are quoted herein below, for reference: "18. Regulation 101, as quoted above, uses two words, namely, 'POORVANUMODAN' and 'ANUMATI'. Paragraphs 18 and 22 of the judgment are quoted herein below, for reference: "18. Regulation 101, as quoted above, uses two words, namely, 'POORVANUMODAN' and 'ANUMATI'. 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 'POORVANUMODAN' i.e. prior approval whereas second part of the Regulation uses word 'ANUMATI' 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. 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." "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." 7. In view of the above, the said ground for rejection of approval of the petitioner's appointment does not hold good, particularly, when the impugned order does not differentiate between grant of approval prior to selection or prior to issuance of appointment letter. 8. In view of the above, the said ground for rejection of approval of the petitioner's appointment does not hold good, particularly, when the impugned order does not differentiate between grant of approval prior to selection or prior to issuance of appointment letter. 8. So far as the second ground for rejection is concerned, the same is also covered by various decisions of this Court, namely, Vipin v. State of U.P. and others, reported in (2014) 1 UPLBEC 168 ; Mahendra Prasad Mishra v. District Inspector of Schools, Allahabad and others, reported in (1994) 1 UPLBEC 446 and Kumari Prabhabati Dikshit v. U.P. Madhyamic Shiksha Sewa Ayog, Allahabad reported in (1992) 1 UPLBEC 582 : (1992 All LJ 713) which have been relied upon by the learned counsel for the petitioner and clearly hold that a general ban issued by the State without specifying its applicability in terms of Section 9(4) of the Intermediate Education Act, 1921 is bad in law, particularly, when it is not only the role of teachers which is important in an educational institution but it is equally important to have some permanent Class III and Class IV employees in an educational institution for its smooth functioning. It has been further held that an absolute prohibitory ban on new appointments in educational institutions is inconsistent with the mandate of the Act of 1921, which contemplates the continuous and smooth functioning of an educational institution for the proper imparting of education. 9. I am also of the view that the arrears of salary of the said post should be granted with effect from 15.10.2009 on the ground that the impugned order has been passed without appreciating the purpose and import of the provisions contained in the said Regulation 101 and also specifically on account of the fact that even at the time of passing of the impugned order in 2008, the matter was completely covered by the judgment of this Court rendered in 2006 in the case of Jagdish Singh v. State of U.P. and others (2006 (5) ALJ 151) (supra) and, therefore, also the impugned order being against the law, the benefit thereof should be granted to the petitioner, who should not be deprived of his just rights. The non-grant of arrears of salary to the petitioner would also amount to opposite parties deriving benefit of their own wrongs. 10. The non-grant of arrears of salary to the petitioner would also amount to opposite parties deriving benefit of their own wrongs. 10. In view of the above, the order impugned dated 17.10.2008 passed by opposite party No. 3, being against the law settled by this Court, is quashed and a writ in the nature of mandamus is issued directing the opposite parties to ensure monthly payment of salary to the petitioner on a Class III post in the Institution and the opposite parties are directed to ensure payment of arrears of salary to the petitioner with effect from 15.10.2008, i.e. the date of petitioner joining on post, within a period of six months from the date a copy of this order is produced before them. 11. In terms of the above, the writ petition is allowed.