JUDGMENT : (Order on application for Condonation of Delay) 1. Having heard learned counsel for respective parties and having gone through the contents of the affidavit filed in support of the application seeking condonation of delay, we are satisfied that delay has sufficiently been explained. 2. Accordingly, application is allowed and the delay in preferring the special appeal is hereby condoned. (Order on memo of appeal) 3. Heard Sri Santosh Kumar Yadav "Warsi" learned counsel for appellant-Committee of Management of the Institution in question, Sri Surendra Pratap Singh, learned counsel for respondent nos.1 and 2, and learned Standing Counsel for the State-respondents. 4. Under challenge in this intra-court appeal filed under Chapter VIII Rule 5 of the Rules is the judgment and order dated 08.01.2020 passed by learned Single Judge in Writ Petition No.5223 (S/S) of 2002 whereby learned Single Judge has directed that appointment of respondent nos.1 and 2-petitioners shall be treated to have been approved and further that they shall be given arrears of their salary with effect from the date they were given appointment. Learned Single Judge has also observed that all consequential benefits of seniority and promotion shall also be extended to respondent nos.1 and 2 from the date of their appointment. 5. It has been argued by learned counsel for appellant-Committee of Management of the Institution that in absence of any material to arrive at a conclusion that the very initial appointment of respondent nos.1 and 2-petitioners was made in conformity with the statutory requirement of the then existing Regulation 101 of Chapter III of Regulations framed under U.P. Intermediate Education Act, 1921, the directions issued by learned Single Judge in the judgment and order under appeal are erroneous. He has further argued that non-fulfillment of statutory requirement in the matter of appointment where payment of salary of the incumbent is charged with the State Exchequer, has to be necessarily in conformity with the Rules regulating the conditions of service which will include the recruitment. In this view, submission is that since the very initial appointment of respondent nos.1 and 2 was not lawful, hence the directions issued by learned Single Judge cannot be permitted to be sustained. 6. In this view, submission is that since the very initial appointment of respondent nos.1 and 2 was not lawful, hence the directions issued by learned Single Judge cannot be permitted to be sustained. 6. On the other hand, learned counsel for respondent nos.1 and 2 has submitted that there is no error in the judgment rendered by learned Single Judge for the reason that the same is based on pronouncement of law made by this Court in the case of Preet Kumar Srivastava vs. State of U.P. thru' Secondary Edu. & others, reported in 2011 (9) ADJ 591 . He has further stated that once this Court passed interim order on 14.09.2009 which was complied with by the District Inspector of Schools by passing the order dated 19.07.2010, prior approval of appointment of respondent nos.1 and 2-petitioners will be deemed to have been accorded. He has also relied in this regard upon a judgment rendered by Hon'ble Supreme Court in the case of Kunda Motiram Bodalkar vs. Swami Vivemanand Shikshan Sanstha and others, reported in (2010) 6 SCC 712 and has submitted that once the post is created after sanction by the competent authority, the permission to fill up the same is intrinsic in such sanction/creation of the post. It has, thus, been argued that there was no illegality so far as the appointment of respondent nos.1 and 2 is concerned and accordingly it has been submitted by learned counsel for respondents that the special appeal needs to be dismissed. 7. Learned Standing Counsel has also made his submission and has argued that requirement of Regulation 101 of Chapter III of the Regulations as referred to herein above is a mandatory requirement and in absence of fulfillment of said statutory requirement, the very initial appointment of respondent nos.1 and 2-petitioners cannot be said to be lawful. He has further stated that the order dated 19.07.2010 passed by the District Inspector of Schools was only to ensure the compliance of the order dated 14.09.2009 passed by this Court, however, such compliance, in fact, was subject to final decision of the writ petition and thus learned Single Judge has fell in error in not considering the issue as to whether the appointment of respondent nos.1 and 2 was in accordance with the provisions contained in Regulation 101 or not. His submission is that in fact, since the very initial appointment of respondent nos.1 and 2 was unlawful, the direction issued by the learned Single Judge to treat the said appointment to have been approved, is erroneous. 8. We have considered the submissions made by learned counsel representing the respective parties and have also perused the records available before us on this special appeal. 9. The case put up by learned counsel for respondent nos.1 and 2 before the learned Single Judge by filing Writ Petition No. 5223 (S/S) of 2002 was that they were appointed on the posts of Orderly and Lab Assistant which are class IV posts, in the institution, namely, Narpati Singh Inter College, Madhoganj, Hardoi. It was also the case of respondent nos. 1 and 2 before the learned Single Judge that after following due process, they were appointed by means of an order dated 20.04.2002, however, since their appointment was not being approved and they were not being paid salary, they instituted writ petition which has been decided by the learned Single Judge by means of the judgment and order which is under appeal before us. 10. In the entire writ petition, no document or any other material has been annexed whereby it can be inferred that before issuance of appointment order, any prior approval to the selection/appointment of the respondent nos.1 and 2 was accorded by the District Inspector of Schools. 11. Recruitment to a class IV post in a recognized aided institution in the State of U.P. is governed by Regulation 101 of Chapter III of the Regulations framed under U.P. Intermediate Education Act. The said Regulations having been framed under the aforesaid Act are statutory in nature and hence, binding. Any process of appointment in deviation of such statutory provisions cannot be justified and will in fact not confer any right on any such person, of either being appointed or continued or paid salary of the post concerned. 12. Regulation 101 of Chapter III of the Regulations as it existed at the relevant point of time is quoted herein:- 101."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". 13. 12. Regulation 101 of Chapter III of the Regulations as it existed at the relevant point of time is quoted herein:- 101."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". 13. From a perusal of the aforequoted provisions of Regulation 101, it is clear that there is a prohibition for the appointing authority to fill up any vacancy on a non-teaching post without prior approval of the District Inspector of Schools. The appointing authority, in fact, has been injuncted by the said provisions not to fill up any vacancy on a non-teaching post except with the prior approval of the District Inspector of Schools. The said provision simply construed would mean that before issuing appointment order, approval of the District Inspector of Schools is needed. 14. In case any vacancy against a non-teaching post in a recognized institution occurs, since the Principal is the appointing authority against a class IV posts, he needs to initiate the selection process in conformity with the Regulations. The said Regulations which existed at the relevant point of time in this case did not require the appointing authority to seek any permission or approval for initiating the process of recruitment/selection/appointment, meaning thereby on occurrence of vacancy against a class IV posts, the Principal could have initiated the process of recruitment by advertising the post, inviting applications etc. and could have proceeded with the selection. The only requirement under Regulation 101 is that before making appointment, approval of the District Inspector of Schools is required. 15. We may indicate at this juncture that there is a rationale for seeking prior approval of appointment from the District Inspector of Schools. While the District Inspector of Schools accords his prior approval for appointment against any class IV post in a recognized institution, he is supposed to examine the relevant factors like existence of vacancy, application of rule of reservation, whether person proposed to be appointed possessed the requisite qualification, whether process of selection has been fair and all other relevant factors. While the District Inspector of Schools accords his prior approval for appointment against any class IV post in a recognized institution, he is supposed to examine the relevant factors like existence of vacancy, application of rule of reservation, whether person proposed to be appointed possessed the requisite qualification, whether process of selection has been fair and all other relevant factors. It is also to be noticed that in the State of U.P. in a recognized government aided institution there is a provision for making appointment on compassionate grounds on the death of an employee working in the institution and as per the said provision in case no vacancy in the institution where the deceased employee used to work exists, it is the District Inspector of Schools who has to explore the possibility of making compassionate appointment of one member of the family of the deceased employee in any other institution. Thus, the provision for prior approval to be accorded by the District Inspector of Schools for appointment has the purpose and in case no prior approval from the District Inspector of Schools is obtained or accorded, the same in our considered opinion, will vitiate the appointment. 16. We have come across various cases where we have found that in the minds of the authorities, management of the institutions and all other concerned there exists a confusion regarding prior approval or permission for initiating the process of appointment and prior approval for appointment. There may be a situation where requirement as given in the Regulations/Rules may be for seeking prior approval or permission of the authority concerned for initiating the very process of appointment/selection/recruitment. This would mean that once a vacancy occurs, the appropriate authority concerned needs to be approached seeking its approval/permission to initiate the very process of recruitment/appointment/selection. This prior approval precedes the initiation of process of selection/appointment etc. However, prior approval for appointment as required by Regulation 101 as quoted above, connotes a different meaning and it covers a different exigency. Such prior approval is required to be obtained from the District Inspector of Schools before the appointment order is issued, meaning thereby before selected person is actually appointed. Such prior approval follows completion of appointment/recruitment/selection process. 17. However, prior approval for appointment as required by Regulation 101 as quoted above, connotes a different meaning and it covers a different exigency. Such prior approval is required to be obtained from the District Inspector of Schools before the appointment order is issued, meaning thereby before selected person is actually appointed. Such prior approval follows completion of appointment/recruitment/selection process. 17. In the instant case, as already noticed above, there is no material to show that prior approval as per requirement of Regulation 101 was accorded by the District Inspector of Schools to the alleged appointment of respondent nos.1 and 2. 18. Having observed as above, we may also notice that at the time of filing of writ petition learned Single Judge had passed the interim order on 23.09.2002 directing therein the respondents in the writ petition shall pay the salary to respondent nos.1 and 2-petitioners and further that they shall be allowed to continue till the next date of listing. However, pursuant to the said order dated 23.09.2002 they were not paid salary and subsequently learned Single Judge passed another interim order on 14.09.2009 expressing his expectation that the respondents in the writ petition shall ensure compliance of the earlier order dated 23.09.2002 as during last seven years some vacancies might have arisen on account of death/resignation/retirement/ promotion of the employee. 19. In compliance of the said order dated 14.09.2009, an order has been passed by the District Inspector of Schools on 19.07.2010 wherein he has accorded his approval to the appointment of respondent nos.1 and 2-petitioners against the vacancies which had occurred on account of retirement of the regular incumbents, namely, Sunder Lal and Sarwan Lal, who are said to have retired on 31.08.2006 and 31.08.2009, respectively. 20. When we peruse the judgment under appeal passed by learned Single Judge, what we find is that no finding has been returned in the said judgment about non-compliance/compliance of the statutory provisions of Regulation 101. Learned Single Judge has relied upon a judgment in the case of Preet Kumar Srivastava (supra). 20. When we peruse the judgment under appeal passed by learned Single Judge, what we find is that no finding has been returned in the said judgment about non-compliance/compliance of the statutory provisions of Regulation 101. Learned Single Judge has relied upon a judgment in the case of Preet Kumar Srivastava (supra). However, when we peruse the said judgment, we are of the considered opinion that the said judgment in the case of Preet Kumar Srivastava does not have any application to the facts of the present case and the same does not come to the rescue of respondent nos.1 and 2 for the reason that the said judgment deals with the approval/permission required for filling up the vacancies, as already clarified above. 21. The view taken by us is supported by a Division Bench judgment rendered by this Court in the case of Dhruv Kumar Pandey and another vs. State of U.P. and others, reported in 2020 (4) ADJ 599 . There lies a difference between permission/approval required for initiating the process of recruitment/appointment/selection and prior approval required for appointment. In the first case, approval shall precede the selection process whereas in the second case the approval has to follow the selection process, that is say, prior approval is needed before issuance of the appointment order or before actual appointment is made. Thus, we are of the opinion that reliance placed by learned Single Judge in the case of Preet Kumar Srivastava (supra) is misplaced. 22. So far as the judgment cited by Sri Surendra Pratap Singh, learned counsel for respondent nos.1 and 2-petitioners in the case of Kunda Motiram Bodalkar (supra) is concerned, we may observe that the same also does not have any application to the facts of the present case for two reasons; firstly the said judgment has been rendered in the facts of the case, and secondly, the said judgment does not discuss any such provision akin to the provisions contained in Regulation 101. 23. In view of the aforesaid discussion, in our opinion, the judgment and order dated 08.01.2020 passed by learned Single Judge cannot be permitted to be sustained as it is. 24. 23. In view of the aforesaid discussion, in our opinion, the judgment and order dated 08.01.2020 passed by learned Single Judge cannot be permitted to be sustained as it is. 24. Having noticed the aforesaid facts and legal position, we may also note that the District Inspector of Schools passed the order on 19.07.2010 for ensuring compliance of the interim order passed by learned Single Judge on 14.09.2009 coupled with the earlier interim order dated 23.09.2002. In compliance of the said order, the District Inspector of Schools accorded his approval to the appointment of respondent nos.1 and 2 against the vacancies which had occurred on account of superannuation of earlier regular class IV employees, namely, Sunder Lal and Sarwan Lal. Thus, in our opinion respondent nos.1 and 2 will be entitled to salary and all other service related benefits with effect from the said date i.e. with effect from 19.07.2010 and not from any prior date. 25. Accordingly, in view of the aforesaid discussions made, we modify the judgment and order passed by learned Single Judge dated 08.01.2020 passed in Writ Petition No.5223 (S/S) of 2002 by providing that respondent nos.1 and 2 shall be entitled to payment of salary with effect from 19.07.2010 i.e. w.e.f. date the District Inspector of Schools accorded his approval to their appointment. They shall also be entitled to all service benefits only w.e.f. 19.07.2010 and not with effect from any retrospective date. The judgment and order dated 08.01.2020 passed by learned Single Judge is modified to the aforesaid extent. 26. The special appeal is disposed of in the aforesaid terms.