Pankaj Srivastava Vs the Director of Education (Secondary Education) Lko. and Others

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Neutral Citation No. - 2025:AHC-LKO:23679-DB

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Reserved

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Chief Justice's Court

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Case :- SPECIAL APPEAL No. - 543 of 2023 Appellant :- Pankaj Srivastava Respondent :- The Director Of Education (Secondary Education) Lko. And Others Counsel for Appellant :- Meenakshi Singh Parihar Counsel for Respondent :- C.S.C.,Rohit Tripathi

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Hon'ble Arun Bhansali,Chief Justice Hon'ble Jaspreet Singh,J.

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(Per:- Jaspreet Singh, J.)

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This instant intra-court appeal has been preferred by the appellant against the judgment and order dated 07.11.2023 passed by the learned Single Judge in W.P. No. 6463 of 2000 whereby the writ petition filed by the appellant was dismissed.

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The appellant who was the writ-petitioner had filed W.P. No. 6463 (SS) of 2000 seeking a writ in the nature of mandamus commanding the respondents of the writ petition to pay regular salary to the petitioner and to approve his appointment. He further prayed for quashing of the order dated 19.12.2000 passed by the District Inspector of Schools, Unnao.

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The case set up by the appellant was that Rani Laxmibai Kanya Vidyalaya Mandir Inter College, Unnao is a school duly recognized by the Board of High School and Intermediate Education, Uttar Pradesh and it is governed by the provisions of Payment of Salaries Act, 1971.

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In the said Institution, there were three sanctioned posts of Class-III Grade, one post for Head Clerk, one post for Assistant Clerk and one post for a Librarian.

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It was stated that on account of superannuation of Jagdish Prasad

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Gupta, the post of Head Clerk became vacant. The Assistant Clerk namely Ram Kishore Nigam was promoted on the post of Head Clerk, accordingly, one post of Assistant Clerk fell vacant.

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It is the case of the appellant that there was proper intimation of the said vacancy which was also informed to the District Inspector of Schools, Unnao and thereafter the said post was advertised. The appellant was fully eligible and as he applied for the said post. He was found most suitable and the Committee of Management of the school passed a resolution appointing the appellant as the Assistant Clerk on the said vacant post.

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Since the appellant was not paid the salary, accordingly, the petitioner invoked the writ-jurisdiction of this Court by filing W.P. No. 6463 (SS) of 2000 wherein it was prayed that appropriate direction be issued to the respondent authorities to pay the salary to the petitioner.

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It is also stated that the Writ Court by means of order dated 14.11.2000 directed the Authorities to pay the salary to the petitioner w.e.f. October, 2000 and since then the petitioner had been receiving the salary till the dismissal of his writ petition on 07.11.2023.

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It was stated that the interim order dated 14.11.2000, in pursuance whereof the petitioner was given the salary w.e.f. October, 2000, when placed before the District Inspector of Schools he did not approve the appointment of the petitioner and it was stated that in case if the College was taking the work from the petitioner, then the College would be responsible for the salary. This order dated 19.12.2000 was also challenged in the writ petition by moving an amendment before the learned Single Judge.

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The State-Authorities contested the writ petition primarily on the ground that there was clear breach of Regulations 101 to 107 framed under the U.P. Intermediate Education Act, 1921, hence, the alleged appointment of the appellant was illegal.

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In the aforesaid background, the learned Single Judge considered the submissions of the respective parties and dismissed the writ petition by recording a finding that the appointment of the appellant was de-hors the rules. It further held that since the appellant was the relative of the Principal of the College concerned and a fact which was not denied by the appellant, hence, the appointment of the appellant was void and with the aforesaid findings, the writ petition was dismissed.

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Sri H.G.S. Parihar, learned Senior Counsel assisted by Sri Prashant Kumar Singh, learned counsel for the appellant has submitted that the order passed by the Writ Court is patently erroneous, inasmuch as, the appointment of the appellant was made after following the due procedure as prescribed in the Regulations.

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It was pointed out that on account of a substantive vacancy having occurred in Class-III post for an Assistant Clerk, after the consent of the District Inspector of Schools, the said post was advertised in a newspaper. Several candidates appeared, however, the appellant was found most suitable by the Committee, consequently, he was appointed and the necessary documents relating to the appointment of the appellant was submitted with the office of the District Inspector of Schools.

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It is urged that there was never any discrepancy in so far as the appointment is concerned but since the appellant was not granted the salary

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and he had to approach the Court and an interim order was passed in favour of the petitioner and this irked the District Inspector of Schools who instead of approving the appointment, refused it. In the given circumstances on account of the interim order passed by the Writ Court, the appellant had served for more than 23 years and had drawn the salary and now at the fag end of his career, the writ petition has been dismissed which has put the appellant to serious prejudice and that too on a hyper-technical view taken by the Writ Court.

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It is urged that the reliance placed on the Regulations 101 to 107 was not material, inasmuch as, the word prior approval mentioned therein did not mean that the appointment could not be made without the prior approval rather the said approval could also be granted post the appointment and this aspect has not been considered by the learned Single Judge who has ascribed a strict view ignoring the material on record which has resulted in an incorrect finding.

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It is further urged that the learned Single Judge fell in error in noticing that the relative of the petitioner (his sister) was the Principal when the petitioner was appointed, is also an incorrect fact. However, the correct fact is that when the appointment of the appellant was made, his sister was an Assistant Teacher. It is only after decades that once the Principal had superannuated and other senior teachers had retired, on account of the vacancy, the sister of the appellant was given a temporary charge of the Principal, though otherwise, she was a Lecturer at that point of time and in these circumstances, it could not be stretched to hold it against the appellant that he was appointed in a College where his relative

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was the Principal and this has also given an incorrect colour to the finding which apparently is against the record. Thus, for the aforesaid reasons, the dismissal of the writ petition of the appellant is patently bad, accordingly, the judgment passed by the learned Single Judge deserves to be set aside after allowing the intra-court appeal.

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Sri Anil Kumar Singh Bisen, learned counsel for the State has contested the aforesaid submissions and urged that even the fact that the sister of the appellant may not have been the Principal of the Institution at the given point of time but the fact remains that the appointment of the appellant was de-hors the rules.

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It has been emphasized by the learned Standing Counsel that as per the Regulations, it was incumbent upon the Committee to have sought the prior approval of the District Inspector of Schools and having failed to substantiate the same, the appointment of the appellant could not be held to be valid. This aspect has been appropriately considered and dealt with by the learned Single Judge while declining to accept the submissions of the appellant which has resulted in dismissal of his writ petition.

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The learned Standing Counsel has further urged that throughout the proceedings before the learned Single Judge which had been pending since the year 2000, it has consistently been the stand of the State-respondents that the appointment of the appellant was not valid.

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The Counter affidavit filed by the Committee of Management before the Writ Court also substantiated that there was irregularity which bordered on illegality in so far as the appointment of the appellant is concerned. The salary was paid to the appellant only in terms of the interim order dated

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14.11.2000 and once the writ petition has been dismissed, the petitioner, who otherwise has enjoyed serving for more than 22 years cannot be permitted to be rewarded for his illegal appointment. In the aforesaid circumstances, the findings recorded by the learned Single Judge cannot be faulted and as such the appeal deserves to be dismissed.

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The Court has heard the learned counsel for the parties and also perused the material on record.

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At the outset, it may be noticed that in so far as the plea taken by the learned Single Judge that the appointment of the petitioner was bad as his relative was the Principal of the College, apparently, is not borne out from the records.

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The learned counsel for the State respondents could not dispute or deny the fact that the sister of the appellant was appointed as an Assistant Teacher on 18.02.1991. At the time of appointment of the petitioner, she was not the Principal rather Ms. Shobha Tripathi was the Principal who retired on 31.06.1999 and in her place Smt. Snehlata Pal was given the charge. It also could not be disputed by the learned Standing Counsel that upon retirement of Smt. Snehlata Pal, one Smt. Rita Devi Singh was given the officiating charge of the Principal who too retired on 31.03.2018 and only thereafter the sister of the appellant who was working as a Lecturer was given the officiating charge of the Principal on 31.03.2018.

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Thus, apparently, the dismissal of the writ petition on the ground that the relative of the petitioner was the Principal could not be substantiated.

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The other ground which found favour with the writ court for dismissing the writ petition relates to the Regulations framed under the U.P.

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Intermediate Education Act, 1921 wherein it is provided that the appointment could not be made without the prior approval of the District Inspector of Schools.

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Before proceeding further, it will be apposite to notice Regulations 101 framed under the U.P. Education Act, 1921 which reads as under:-

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"101. नि�युनि�प्राधि�कारी , नि�रीक्षककेपूर्व ा� ुमोद�केसि�र्व ा यनिक�ीमान्यताप्राप्त , �हायताप्राप्त�ंस्थाकेशि क्षणेतरस्टाफमेंनिक�ीरिरनि�कोको�हींभरेगा : प्रधितबन्�यहहैनिकजमादारकेपदकीरिरनि�कोनि�रीक्षकद्वाराभर�ेकीअ�ुमधितदीजा �कतीहै। "

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Bare perusal of the aforesaid provision would reveal that as far as the appointments of non-teaching staff is concerned, the same can be done only after taking the prior approval of the District Inspector of Schools. Despite the writ petition being pending since 2000 and it came to be decided in the year 2023 yet during this period, no document could be placed on record which could indicate that the District Inspector of Schools had granted prior approval for the selection process. An attempt has been made by the learned counsel for the appellant to indicate that the advertisement was made, however, the said advertisement appears to be undated as evident from the copy which has been placed in the paper book.

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It is alleged that the appellant was granted the appointment on 01.08.2000, however, it is not disputed that the appointment made on 01.08.2000 was rescinded as stated by the appellant himself. Once again selection took place and the appellant was appointed on 02.10.2000. Nevertheless, no material has been brought to the notice of this Court which can be construed as grant of any approval from the District Inspector of Schools for making the appointment. Accordingly, it cannot be said that the appointment of the appellant was with the prior approval of the District

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Inspector of Schools. Moreover, there is no material to indicate that any such approval was given after the appointment was made and in this context it cannot be said that there was either any prior approval or even deemed approval after the appointment was made since the District Inspector of Schools vide its order dated 19.12.2000 had clearly made his stand known, hence, the issue of having obtained approval from the District Inspector of Schools could not be substantiated.

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It will not be out of place to mention here that the issue of validity of the appellant’s appointment was hotly contested both by the State as well as the Committee of Management. This fact the Committee raised another ground that the appellant did not possess the proficiency in typing. In this regard, the learned Single Judge on 14.12.2022 ordered the learned Standing Counsel to file an affidavit of the District Inspector of Schools indicating the functioning of the petitioner (the appellant herein) as to whether the appellant had acquired any proficiency in typing.

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Upon a typing test held, it revealed that the appellant did not possess the proficiency in typing which was a necessary qualification for considering a candidate for appointment on the post of Assistant Clerk. Though, this aspect was refuted by the appellant urging that the aforesaid condition of proficiency in typing was included only after the appellant was appointed, however, the fact remains that the appellant could not establish the fact that the District Inspector of Schools had granted the prior approval to the Committee before the appointment of the appellant was made.

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A coordinate Bench of this Court in Jagdish Dildar Singh v. State of U.P., 2006 SCC OnLine All 1597 : (2006) 5 All LJ 151, has held as under:-

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“18. 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 the 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. 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.

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19. 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.

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20. 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.”

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The aforesaid proposition has also been followed by a Division Bench of this Court in Krishna V. Joint Director of Eduction; 2019 OnLine All 4320, Dhruv Kumar Sri Bihari Pandey Vs. State of U.P.; 2020 SCC OnLine 2201 as well as in Rambir Singh Vs. State of U.P.; 2021 SCC OnLine 771.

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In light of the aforesaid discussions and in absence of any material to establish that the DIOS had given any prior approval to make the appointment, this Court does not find that there is any palpable error in the

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judgment of the learned Single Judge dated 07.11.2023, accordingly, the appeal is sans merit and is dismissed. However, it is provided that since the appellant was working in the Institution on the strength of an interim order during the pendency of the writ petition and had put in service for more than 22 years, hence, it is provided that no recovery shall be made from the petitioner (appellant herein) in respect of the salary received by him for the period, he worked in the institution concerned.

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Subject to the aforesaid direction, the instant intra-court appeal is dismissed . Costs are made easy.

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Order Date:-25 April, 2025

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Asheesh/-

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(Jaspreet Singh, J.) (Arun Bhansali, CJ.)

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Digitally signed by :- ASHEESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Pankaj Srivastava v. the Director of Education (Secondary Education) Lko. and Others

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