Allowed

Anjani Kumar Singh v. Jt.Director of Education and 4 Ors.

Allahabad HC1 Dec 2017WRIA/27366/2013

Case brief

AI extract

What is this about?

The Single Judge allowed a writ petition challenging the validation of an ad-hoc teacher's appointment. The court held that the appointment was void ab-initio as it was made without obtaining mandatory prior approval from the District Inspector of Schools as per the Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981.

What did the court decide?

The impugned order upholding the appointment of the respondent-5 was set aside.

Anjani Kumar Singh Vs Jt.Director of Education… — Education and Admissions | Allahabad HC (2017)

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Court No. - 34

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Case :- WRIT - A No. - 27366 of 2013

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Petitioner :- Anjani Kumar Singh Respondent :- Joint Director of Education and others Counsel for Petitioner :- Indra Raj Singh,Ashok Khare, In Person Counsel for Respondent :- C.S.C., Abhishek Mishra, Alok Mishra, Anoop Baranwal, Bhairo Nath Pandey (Inperson), R.K.Ojha, Ajay Kumar

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Hon'ble Sudhir Agarwal, J.

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Sri Indra Raj Singh, Advocate, for petitioner and Sri Ajay Kumar Yadav, Advocate, for respondents.

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The writ petition is directed against the order dated 07.05.2010 passed by Joint Director of Education, Azamgarh Mandal, Azamgarh whereby it has upheld ad-hoc appointment of respondent-5, Bhairo Nath Pandey, and directed for payment of salary to him. Sri Indra Raj Singh, learned counsel for petitioner, submitted that there was short term vacancy for which as per own case set up by respondent-5 it was advertised on 06.05.1993, selection was made on 21.05.1993 whereafter recommendation of Selection Committee was considered by the Committee of Management and resolution was passed on 27.06.1993 to appoint respondent-5. Letter of appointment was issued to respondent-5 on 28.06.1993. Thereafter on 06.07.1993 documents were forwarded to District Inspector of Schools (hereinafter referred to as “DIOS”) for his approval. From these facts, it is submitted that ad-hoc appointment of respondent-5 was not in accordance with Section 18 of U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as the "Act, 1982") read with U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 (hereinafter referred to as the "Second Order") and, hence, it was void ab-initio. Therefore, impugned order passed by Joint Director of Education is patently illegal.

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Sri Yadav, on the contrary submitted that petitioner has no locus

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standi inasmuch he claims to have been appointed on 10.09.1991 though on that date there was no vacancy since Ram Chandra Singh, Assistant Teacher L.T. Grade, himself was not promoted as Lecturer, hence question of appointment of petitioner does not arise and therefore, petitioner has no locus standi to challenge ad-hoc promotion of respondent-5.

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I find that neither the petitioner was validly appointed nor could have been appointed as ad-hoc Teacher on the post i.e. Assistant Teacher (L.T. Grade) nor appointment of respondent-5 is in accordance with procedure prescribed in Second Order, therefore, it is also patently illegal.

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Power to make ad-hoc appointment has been conferred by Section 18 of Act, 1982 and procedure is prescribed in Para-2 of Second Order. Section 18 of Act, 1982 and Para 2 of Second Order read as under:

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Section 18 of Act, 1982

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" 18. Ad hoc Principals or Headmasters.- (1) Where the management has notified a vacancy to the Board in accordance with sub-section (1) of Section 10 and the post of the Principal or the Headmaster actually remained vacant for more than two months, the Management shall fill such vacancy on purely ad hoc basis by promoting the senior most teacher,-

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(a) in the lecturer's grade in respect of a vacancy in the post of the Principal;

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(b) in the trained graduate's grade in respect of a vacancy in the post of the Headmaster.

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(2) Where the Management fails to promote the senior most teacher under sub-section (1), the Inspector shall himself issue the order of promotion of such teacher and the teacher concerned shall be entitled to get his salary as the Principal or the Headmaster, as the case may be, from the date he joins such

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post in pursuance of such order of promotion.

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(3) Where the teacher to whom the order of promotion is issued under sub-section (2) is unable to joint the post of Principal or the Headmaster, as the case may be, due to any act or omission on the part of the Management, such teacher may submit his joining report to the Inspector, and shall thereupon be entitled to get his salary as the Principal or the Headmaster, as the case may be, from the date he submits the said report.

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(4) Every appointment of an ad hoc Principal or Headmaster under sub-section (1) shall cease to have effect from the date when the candidate recommended by the Board joins the post.”

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Para-2 of Second Order:

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“ 2. Procedure for filling up short-term vacancies.- (1) If shortterm vacancy in the post of a teacher caused by grant of leave to him or on account of his suspension duly approved by the District Inspector of Schools or otherwise, shall be filled by the Management of the Institution by promotion of the permanent senior-most teacher of the institution, in the next lower grade. The Management shall immediately inform the District Inspector of Schools of such promotion along with the particulars of the teacher so promoted.

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(2) Where any vacancy referred to in Clause (1) cannot be filled by promotion, due to non-availability of a teacher in the next lower grade in the institution, possessing the prescribed minimum qualifications, it shall be filled by direct recruitment in the manner laid down in Clause (3).

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(3) (i) The management shall intimate the vacancies to the District Inspector of Schools and shall also immediately notify the same on the notice board of the institution, requiring the candidates to apply to the Manager of the Institution along

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with the particulars given in Appendix “B” to this Order. The selection shall be made on the basis of quality point marks specified in the Appendix to the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, issued with Notification No. Ma-1993/XV-7(79)1981, dated July 31, 1981, hereinafter to be referred to as the First Removal of Difficulties Order, 1981. The compilation of quality point marks shall be done under the personal supervision of the Head of Institution.

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(ii) The names and particulars of the candidate selected and also of other candidates and the quality point marks allotted to them shall be forwarded by the Manager to the District Inspector of Schools for his prior approval .

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(iii) The District Inspector of Schools shall communicate his decision within seven days of the date of receipt of particulars by him failing which the Inspector will be deemed to have given his approval.

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(iv) On receipt of the approval of the District Inspector of Schools or, as the case may be, on his failure, to communicate his decision within seven days of the receipt of papers by him from the Manager, the Management shall appoint the selected candidate and an order of appointment shall be issued under the signature of the Manager.

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Explanation-For the purpose of this Paragraph-

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(i) the expression “senior-most t7576eacher” means the teacher having longest continuous service in the institution in the Lecturer’s grade or the Trained graduate (L.T.) grade or Trained under-graduate (C.T.) grade or J.T.C. or B.T.C. grade as the case may be;

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(ii) in relation to institution imparting instructions to

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women, the expression ‘District Inspector of Schools’ shall mean the Regional Inspectress of Girls’ Schools; (iii)short-term vacancy which is not substantive and is of a limited duration.”

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Para 2(3) shows that after intimating vacancies to DIOS the Management shall advertise the vacancies and thereafter selection shall be made on the basis of quality point marks specified in Appendix. Recommendation of Selection Committee thereafter shall be forwarded by Manager to DIOS for his prior approval. DIOS in case fails to communicate his decision within seven days of the receipt of recommendation, it will be deemed that DIOS has granted approval. After the decision is communicated to Management or there is a deemed approval, Management shall appoint the selected candidate and letter of appointment shall be issued. Therefore, after the selection documents were to be forwarded to DIOS and either if he grants approval within one week or if there is a deemed approval due to failure on the part of DIOS to convey his decision, only then Management get a right to make appointment and not otherwise. In the present case, selection was made on 21.05.1993 and thereafter Management approved the aforesaid selection vide resolution dated 27.06.1993. On the very next day, i.e., on on 28.06.1993, letter of appointment was issued to respondent-5 and documents were forwarded to DIOS after more than a week, i.e., on 06.07.1993. In the present case, therefore no compliance of Para 2 (3)(ii)(iii)(iv) has been made inasmuch appointment was made earlier on 28.06.1993 and documents were forwarded to DIOS thereafter on 06.07.1993. It has been held repeatedly that the requirement is of prior approval and if the aforesaid procedure is not followed, the appointment would be void ab-initio.

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A Division Bench of this Court in Jagdish Singh etc. Vs. State of U.P. & others, 2006 (3) ESC 2055 (All)(DB) has held that

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“ without prior approval of the Inspector, the Principal or the committee of management cannot issue an appointment letter or permit joining of any candidate. Requirement of prior approval in Regulation 101 is a condition precedent before issuing an appointment letter and is mandatory.”

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Learned counsel appearing for respondent-5 however sought to argue that the judgment of this Court in Jagdish Singh ( supra ) needs reconsideration by a larger Bench since it has not noticed earlier Division Bench decisions of this Court in Prabhu Narain Singh Vs. Deputy Director of Education, Varanasi and another, 1977(3) ALR 391, Lalit Mohan Misra Vs. District Inspector of Schools, 1979 ALJ 1025 and Ashika Prasad Shukla Vs. District Inspector of Schools, Allahabad and another, 1998(3) UPLBEC 1722, wherein it was held that an appointment made without approval ipso facto would not be illegal but may get validated from the date, approval is granted by the competent authority subsequently.

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I have considered this submission also carefully but find myself unable to agree. On the contrary I find that a Division Bench of this Court (in which one of us, Hon'ble Sudhir Agarwal, was also a Member) has already considered the above three cases in Special Appeal No. Special Appeal No. (87) of 2003, Joint Director of Education, Azamgarh Region and another Vs. Udai Raj Vishwakarma, decided on 6.2.2007 wherein similar argument was sought to be advanced on the strength of the aforesaid judgments but repelled by this Court. It was held that appointment without “prior approval” is void ab initio . I may refer the relevant findings on this aspect recorded by Court in Udai Raj Vishwakarma ( supra ) as under:

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“We thus proceed on to consider the effect of nonobservance of the provision pertaining to "prior approval". Para 2(3)(II) of Second Order requires "prior

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approval" before making appointment of a teacher in a short term vacancy. It is not a case of mere approval. In Prabhu Narain Singh (Supra) this court had an occasion to consider the effect of lack of approval in making appointment of a teacher under Section 16-F of 1921 Act as it stood prior to amendment of the said provision by U.P. Act No. 16 of 1972. The selection was made by the selection committee on 2.8.1972 and papers were forwarded to DIOS who approved selection and appointment vide order dated 10.8.1972. Thereafter the management passed resolution on 25.5.1973 terminating service of the petitioner Prabhu Narain Singh and communicating him by letter dated 18.6.1973 and also forwarding the said resolution to DIOS who refused to accord approval vide order dated 13.7.1973. Whereagainst management preferred an appeal before Regional Deputy Director of Education, which was allowed on 13.5.1975 on the ground since Sri Prabhu Narain Singh was not appointed in accordance with Section 16-F of 1921 Act, no approval for termination was necessary. The Court noticed as a matter of fact that Sri Prabhu Narain Singh after his selection was given charge and started working as a teacher before DIOS accorded approval and it was actually accorded on 10.8.1972. Referring to Section 16-F(1) read with Regulation 6, Chapter-III and Regulation 16 Chapter II of the regulations framed under 1921 Act, this Court held that merely if a letter of appointment is withheld by the management it would not result in denial of right to be appointed to an approved candidate as a teacher due to the purposeful lapse on the part of the management and

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the management cannot take advantage of its own wrong though approval was accorded by the DIOS. It held further that once a selection has been made by the selection committee and accorded approval by the appropriate authority, the performance of act by the management of issuance of letter of appointment under Regulation 16 Chapter II is a mere ministerial act since management is bound to appoint him and issue letter of appointment. It has no option otherwise at all. In these circumstances, this Court held that the appointment of Sri Prabhu Narain Singh cannot be said to be inconsistent with Section 16-F(1) of the Act read with Regulation 6 Chapter-III and Regulation 16 Chapter-II of the Regulations and therefore before termination, approval of DIOS was necessary. Considering the effect from Regulation 16 Chapter II in the scheme of the Act and the Regulations framed thereunder the Court after referring to an earlier Division Bench judgment in Janta Inter College Nagra Vs. District Inspector of School Balia and others, Civil Misc. Writ Petition No. 4497 of 1969 decided on 26.11.1971 observed that once a person has been selected by a selection committee and his name has been approved by the DIOS, the Committee of Management is bound to appoint him and the Manager is bound to issue a letter of appointment for which the Committee of Management is bound to grant the officer authorization. It is held that the issuance of appointment letter in such circumstances was a mere ministerial act, non-observance thereof would not disentitled a person who otherwise is entitled to be treated as appointed under the statute. In our view the aforesaid judgment has

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no application to the facts and provisions applicable in this case particularly since Section 16-F talked of "approval" and not "prior approval". It is true that approval under Section 16-F was required after making selection and before issuing appointment letter but the legislature in its wisdom has used the word "approval" and not "prior approval" though in the Second Order it has used the words "prior approval" which have a definite connotation and purpose behind it. Further there is no provision like Regulation 16 Chapter III available in 1982 Act and the rules regulations framed thereunder. This Court considered the effect of certain regulations in that case which are not applicable in the case in hand. The provisions considered therein were different and not pari materia with those contained in Second Order.

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Lalit Mohan Misra (Supra) was also a case of appointment made in 1971 inasmuch as the committee of management passed resolution on 23.7.1971 for appointing Lalit Mohan Misra and others as Demonstrator and papers sent to DIOS for approval. In anticipation of approval, the management allowed Lalit Mohan Misra and others to join the institution on 31.7.1971. The approval was accorded by the DIOS on 3.8.1971 whereafter the appointment letters were issued. The appointees thereafter were formally allowed to join on 4.8.1971. After five years of their working, the DIOS issued a letter on 9.11.1976 amending approval order dated 3.8.1971 stating that Lalit Mohan Misra and others would be treated as having been placed on probation w.e.f. 31.7.1971 i.e. three days prior to the date when the approval was accorded and accordingly also confirmed

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them. On representation made against the aforesaid order dated 9.11.1976 it was held by the DIOS vide order dated 17.8.1977 that Sri Lalit Mohan Misra and others will be deemed to have joined w.e.f. 4.8.1971 and not earlier thereto, whereagainst a writ petition was filed wherein the aforesaid view take by DIOS on 17.8.1977 was upheld. Considering Section 16-F of 1921 Act and Regulation 6 Chapter III and Regulation 16 Chapter II of the regulations, this Court held that though the management has got no right to appoint a person awaiting approval of the DIOS or the Deputy Director of Education, as the case may be, but the said appointment will become legal and regular only from the date approval is accorded by the competent authority and the prior working of the person will not confer any benefit qua the appointees. It also held that DIOS has no authority to subsequently pass an order modifying the date of appointment. In our view the aforesaid judgment considered the provisions which were differently worded framing different scope and the dispute involved in the aforesaid case was also totally different.

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Coming to the third judgment relied on by the petitioner namely Ashika Prasad Shukla (Supra) it is no doubt true that this Court with reference to para2 (3) (II) of the Second Order and relying on the judgment of this Court in Lalit Mohan Misra (Supra) observed that the appointment if made prior to approval or deemed approval would become effective from the date of approval or deemed approval but since this issue was not considered by the Hon'ble Single Judge in the judgment under appeal before the Court, the DIOS was directed to

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look into this aspect whether the pre-requisite conditions for deemed approval were satisfied or not and thereafter pass an appropriate order. Thus it cannot be said that it lays down a law that an appointment made before prior approval would be valid after expiry of the period necessary to attract deemed approval and cannot be treated to be a binding precedent on this issue.

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On the contrary where the statute specifically provides "prior approval" before passing any order, what its effects would be has been considered in some other cases which we propose to refer as under. Rule 11 of U.P. Recognized Basic Schools (Recruitment and Conditions of Service of Teachers and other Conditions) Rules, 1975 provides that no service can be terminated without prior permission from the District Basic Officer. A Division Bench of this Court in Ms. Shailja Shah Vs. Executive Committee, Bharat Varshiya National Association and another, 1995 (25) ALR, 88 held that expression "prior approval" and "approval" connotes different situation. Where a statute uses the term "prior approval" anything done without prior approval is nullity. Where a statute employs expression "approval", however, in such cases subsequent ratification can make the act valid.

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Section 59(1)(a) of U.P. Urban Planning and Development Act, 1973 provides for "prior approval". The Apex Court in U.P. Avas Evam Vikas Parishad and another Vs. Friends Coop. Housing Society Ltd. and another, 1995 (Supple.) (3) SCC 456 held that "prior approval" and "approval" are two different connotations and if the statute does not mention "prior approval" what is material would be only "approval". The earlier

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judgment in Life Insurance Corporation of India Vs. Escorts Ltd., 1986 (1) SCC 264 was also referred where it was held that the word ''prior' and ''previous' may be implied if the contextual situation or circumstances justify such reading and the Act which requires only approval, the action holds good until it is disapproved.

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Section 9 of the 1971 Act provides for "prior approval". In Director of Education and others Vs. Gajadhar Prasad Verma, AIR 1995 SC 1121, it was held that the absence of "prior approval" would not have an effect of creation of post and therefore the State is not obliged to reimburse salary to the management without "prior approval" of the Director or the competent authority under the Act. In Shiv Gorakh Nath Charitable Society, Kanpur and others Vs. Cantonment Board, Kanpur and others, 1997 (3) ALR 616, a Division Bench while considering the effect of "prior permission" held where construction is made without "prior permission" a "post permission" cannot be granted and the construction, so made, has to be dismantled. Same view has been taken by another Division Bench in Vivek Srivastava Vs. Union of India and others- 2005 (3) ESC (Alld.) 1790 -(Para 51 ).

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We may notice at this stage Special Leave Petition No. 11264 of 2007 was filed assailing judgment in Joint Director of Education, Azamgarh Region and another Vs. Udai Raj Vishwakarma (supra) and the same was dismissed on 14.12.2009.

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When there is non compliance of procedure laid down in Removal of Difficulties Order, the appointment made by Management is patently illegal and would not confer any right upon the Teacher concerned either to hold the post or to claim salary from State

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Exchequer.

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Apex Court in Prabhat Kumar Sharma and others Vs. State of U.P. and others, (1996) 10 SCC 62 held that procedure laid down in Removal of Difficulties Order is mandatory and has to be observed in words and spirit. An appointment made inconsistent with the said procedure is void ab-initio and will not confer either any right upon the incumbent to hold the post or to continue in service or claim salary from State exchequer. The relevant observations made by the Apex Court in Prabhat Kumar Sharma (supra) is as under:

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" Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees."

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Again in para 11 of the judgment the Court held as under:

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"Any appointment in violation thereof is void. As seen prior to the Amendment Act of 1982 the First 1981 Order envisages recruitment as per the procedure prescribed in para 5 thereof. It is an in-built procedure to avoid manipulation and nepotism in selection and appointment of the teachers by the Management to any posts in aided institution."

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This decision has been followed and reiterated in Shesh Mani Shukla Vs. District Inspector of Schools Deoria and others J.T. 2009 (10) SC 309 wherein the Apex Court has held as under:

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"It is true that the appellant has worked for a long time. His appointment, however, being in contravention of the statutory provision was illegal, and, thus, void ab initio. If his appointment has not been granted approval by the statutory authority, no exception can be taken only because the appellant had worked for a long time. The same by itself, in our opinion, cannot form the basis for obtaining a writ of or in the nature of mandamus; as it is well known that for the said purpose, the writ petitioner must establish a legal right in himself and a

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corresponding legal duty in the State."

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The above authorities of Apex Court have been referred to and relied on by this Court in Civil Misc. Writ Petition (Writ-A) No. 17070 of 2002 (Santosh Kumar Singh Vs. D.I.O.S. Jaunpur & Others) decided on 21.01.2014; Civil Misc. Writ Petition (Writ-A) No. 14369 of 1996 (Mrityanjay Kumar Shukla Vs. D.I.O.S. and Others) decided on 07.02.2014; Civil Misc. Writ Petition (Writ-A) No. 27242 of 1996 (Sri Atar Singh Maurya Vs. State Of U.P.& Others) decided on 23.5.2014 and Civil Misc. Writ Petition (WritA) No. 8475 of 1996 (Sachchida Nand Rai Vs. D.I.O.S. and others) decided on 13.03.2015.

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In the circumstances, it cannot be said that the appointment of respondent-5 is validly made.

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Learned counsel for respondent-5, however, argued that short term vacancy having become substantive vacancy and he having continued to work on the post in question is now entitled for regularization under Section 33B of Act, 1982. 18. Once the appointment itself was not made in accordance with Section 18 read with Removal of Difficulties Order, question of regularization does not arise. This view was taken by a Division Bench of this Court in Lalta Prasad Goswami Vs. State of U.P. and others (Special Appeal No. 32 of 2006) decided on 12.01.2006 whereagainst appeal was dismissed by Supreme Court being Special Leave to Appeal (Civil) No. 6948 of 2006 vide order dated 28.04.2006 observing as under:

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“The Petitioner having not been appointed as a Principal in terms of provisions under Section 18 of the Act, we are of the opinion that the question of his being regularized in the said post does not arise. The Special Leave Petition is dismissed accordingly.”

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Hence this argument has no substance.

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In the result, the writ petition is allowed. Impugned order dated 07.05.2010 insofar as it has upheld appointment of respondent-5 as Assistant Teacher (L.T. Grade) is hereby set aside. It will be open to institution in question to take steps for regular appointment on the post in question in accordance with law without any further delay. Dt. 01.12.2017 PS

Anjani Kumar Singh v. Jt.Director of Education and 4 Ors.

Case brief

What is this about?

What did the court decide?

Anjani Kumar Singh v. Jt.Director of Education and 4 Ors.

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