Dingur vs District Inspector of Schools,Mirzapur & Ors.

S. P. Srivastava, J.—Heard the learned Counsel for the petitioner and the learned Standing Counsel representing the respondent Nos. 1 and 4.

Perused the record.

The petitioner has by means of the present writ petition approached this Court seeking a direction requiring the respondents which include besides the District Inspector of Schools, Mirzapur and State of U. P. through Collector, Mirzapur, the Committee of Management, Maharana Pratap Adarsh Inter College Sati Dhampuria, Chunar as well as the Principal of the said college, requiring them to pay salary to the petitioner for the post of Peon month to month as and when it falls due together with the arrears with effect from 9101996.

The facts in brief, shorn of details and necessary for the disposal of this case, lie in a narrow compass. Maharana Pratap Adarsh Inter College'', Sati Dham Raipuria, Chunar, district Mirzapur is an educational institution which stands recognised under the provisions of the U. P. Intermediate Education Act and the Regulations framed thereunder. This institution also falls within the purview of the U. P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (U. P. Act No. 24 of 1971) It is asserted that a vacancy in the post of a peon in the college became available for being filled up on account of promotion and when the information in regard to this availability of the vacancy for being filled up was sent by the management to the District Inspector of Schools with a request for granting permission to fill up the same, the District Inspector of Schools issued an order on 1091996 approving of the promotion and permitting the filling up of the resultant vacancy in the post of a peon in the next below cadre subject to the conditions that the appointment be made in accordance with the relevant rules and orders in regard to the reservations. It is further asserted that on the strength of the aforesaid order passed by the District Inspector of Schools, the Principal of the college who is the appointing authority for the post of a peon placed a notice on the notice board of the college on 1591996 inviting applications for appointment on the post of peon. This mode of advertisement adopted by the Principal of the college could attract only four persons including the petitioner who submitted his application for appointment on the post of peon in the college. It is claimed that an interview was held on 4101996 wherein the petitioner was found to be most suitable candidate and the petitioner who belonged to a backward class was selected for appointment on the post in question. The principal vide his order dated 4101996 appointed the petitioner as the Peon filling up the vacancy, pursuant to the appointment letter, the petitioner was allowed to join the post 9101996. It is claimed that with effect from 9th October, 1996, the petitioner has continuously been working as peon in the college but even though all the papers in regard to the selection proceedings had been submitted to the District Inspector of Schools, he was not being paid any salary even though the District Inspector of Schools has not passed any order disapproving the appointment of the petitioner.

On 20th March, 1997, the petitioner moved an application seeking various amendments in the writ petition asserting that there is no provision under the Intermediate Education Act or the Regulations framed there under requiring any approval regarding appointment of a person on a post filling in class IV. It was further asserted that Regulation 101 of Chapter III of the Regulations framed under the U.P. Intermediate Education Act does not contemplate that after the District Inspector of Schools had granted approval for filling up the vacancy any further approval regarding the appointment was necessary or required. It is also asserted that Section 16E of the Act provides for recruitment of only teacher and head of institution but there is no provision in the Act authorising the framing of any regulations regulating the recruitment for filling up the post falling in class IV in a college recognised under the provision of the U.P. Intermediate Education Act. It was also claimed that the provisions contained in Section 16G of the Act only provided for framing of regulations governing the service conditions and could not regulate the recruitment of a class III or class IV employee, emphasising that expression "recruitment" and conditions of service are not synonimous and could not be treated to be one and the same thing and they convey different meanings. It was asserted that Regulation 101 of the Regulations contained in Chapter II of the Regulations framed under the U. P. Intermediate Education Act deals with recruitment only and could not be taken to be a condition of service and since the Regulation 101 in question had been framed in exercise of the power under Section 16F of the Act, was beyond the scope and power to frame regulation under Section 16G of the Act. It was also asserted that the provisions as contained in Regulation 101 of the aforesaid regulations is inderogation of and in conflict with Regulation 10 of Chapter I of the Regulations and was liable to be ignored. On the aforesaid allegations, the petitioner claimed in the alternative that the Regulations 101 of Chapter III of the Regulations framed under the U.P. Intermediates Education Act be quashed.

Learned Standing Counsel representing the respondent Nos. 1 and 4 has opposed the writ petition asserting that taking into consideration the various provisions contained in the U.P. Act No. 24 of 1971 and the scheme underlying the aforesaid Act, the provisions contained in Regulations 101 of Chapter III of the Regulations framed under the U.P. Intermediate Education Act prescribing the prior approval of an appointment from the District Inspector of Schools and prohibiting the filling up of vacancy contemplated therein without obtaining the prior approval in respect of the proposed appointment does not suffer from any such legal infirmity as contended by the petitioner and considering the facts and circumstances of the case, no justifiable ground has been made out for the inssuance of writ of mandamus or a writ of the like nature as claimed by the petitioner.

The question which arises for consideration in this case is as to whether the Regulation 101 of Chapter III of the Regulations framed under the U. P. Intermediate Education Act suffers from any constitutional or other invalidity or stands vitiated on account of being beyond jurisdiction as claimed by the petitioner. The further question which arises for consideration is as to whether any appointment made by the Principal against a post falling in class IV in respect where of he is the appointing authority could be treated to have not come into existance so as to saddle the Stale with any liability in regard to the payment of salary etc. for such an appointee in the absence of a prior approval from the District

Inspector of Schools in respect of the proposed appointment and the said post is to be taken to be continuing as vacant so long as prior approval for the appointment is not obtained.

Regulation 101 of the Regulations framed under the U.P. Intermediate Education Act is to the following effect:

The aforesaid provision mandates that any vacancy in the post of nonteaching staff of an institution recognised under the provisions of the U. P. Intermediate Education Act, which institution receives grant in aids shall not be filled up by the appointing authority without the prior approval of the District Inspector of Schools. It may be noticed that the recogntion referred to in the aforesaid provisions is to the recognition contemplated under the provisions of the U.P. Intermediate Education Act and the grant in aid stipulated therein refers to the financial assistance provided by the State under the provisions of the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (U.P. Act No. 24 of 1971).

Section 15 of the U.P. Intermediate Education Act vests the Board constituted under Section 3 of the Act with the jurisdiction to make regulations for the purpose of carrying into effect the provisions of the Act.

The provisions contained in Section 16 however, provides that the regulations under Section 15 shall be made only with the previous sanction of the State Government and shall be published in the Gazette. Subclause (2) of Section 15 provides that the State Government may sanction any such regulations proposed by the Board either with or without modification as it thinks fit.

In the aforesaid connection, it may be usefully noticed that the provisions contained in Section 9 of the Act vests the State Government with the jurisdiction in exercise whereof, whenever, in the opinion of the State Government, it is necessary or expedient to take immediate action, it may, without making any reference to the Board pass such order or take such other action consistent with the provisions of the Act as it deems necessary and particular may be such order modify or rescind or make any regulation in respect of any matter and shall forthwith inform the Board accordingly.

It may further be noticed that the jurisdiction contemplated under Section 9 of the U. P. Intermediate Education Act is quite wide in its amplitude securing in favour of the State a very wide jurisdiction to make any regulations in respect of any matter and inform the Board accordingly. The action taken by the State Government in exercise of such jurisdiction cannot be called in question as expressly provided under Section 9 (5) of the Act.

It seems to me that the exercise of the jurisdiction which stands secured in favour of the State as envisaged under subclause (4) and subclause (5) of Section 9 of the Act has to be exercised taking into account the implications arising under the provisions of the U.P. High Schools and Intermediate College (Payment of Salaries of Teachers and Other Employees) Act, 1971 (U.P. Act No. 24 of 1971) which cast a statutory liability on the State Government in respect of payment of salaries of teachers and employees of every recognised institution receiving maintenance grant from the State Government.

Section 9 of the aforesaid Act prohibits any institution from creating a new post of teacher or other employee except with the previous approval of the Director or such other officers as may be empowered in that behalf by the Director. The provisions contained in Section 4 of the aforesaid Act vests the Inspector with the jurisdiction to issue to the management of an institution any direction for the observations of such canons of financial propriety including any direction for retrenchment of any teacher or employee or for prohibition of any wasteful expenditure as he deems fit.

Sub Clause (2) of Section 4 of the U.P. Act No. 24 of 1971 provides that where a direction as referred to above is given for retrenchment of a teacher or a n employee it shall be complied with in accordance with the provisions of the U. P. Intermediate Education Act, 1921 and the Regulations or as the case may be the conditions of his service.

Taking into consideration the provisions contained in the U. P. Act No. 24 of 1971, there is no escape from the conclusion that a statutory duty stands cast upon the competent authority envisaged therein to ensure that there is no wasteful expenditure of the public money and in that view of the matter, it has to be ensured taking into consideration the norms fixed by the State Government for continuance of a post, as to whether the filling up of the vacancy is infact necessary. It has further to be ensured as to whether the appointment has been made taking into consideration the provisions contained in the U.P. Intermediate Education Act and the regulations framed there under regulating the procedure for the appointment and the manner in which the appointment has to be made and further whether the person appointed satisfies the minimum eligibility criteria and his appointment is in accordance with law. In such a circumstance in order to discharge the statutory duty, it is incumbent upon the authority functioning under the U.P. Act No. 24 of 1971 to grant financial approval to the appointment reported to it after examining all the aspects as indicated above. In the absence of such a financial approval, the State Government cannot be saddled with any liability in regard to the payment of salary etc. to the appointee of the management as against the vacancy in a post sanctioned for the High School or any intermediate college. In fact the provisions contained in Regulation 101 of the Regulations which have now come into force ensure that no financial liability is cast upon the State in respect of any appointment made by the appointing authority unless the appointment is made after obtaining the prior approval from the District Inspector of Schools.

Section 16G of the U.P. Intermediate Education Act as substituted by Section 15 of the U.P. Act No. 26 of 1975 provides that every person employed in a recognised institution shall be governed by such conditions of service as may be prescribed by Regulations and any agreement between the management and such employees in so far as it is inconsistent with the provisions of the Act or with the Regulations shall be void. Without prejudice to the generality of the powers referred to in Section 16C (1), it is provided under Sub clause (2) of Section 16G that the regulations may provide for the period of probation, the conditions, confirmation and the procedure and the conditions, for promotion and appointment including suspension pending or in contemplation of an enquiry or during the pendency of the investigation, enquiry or trial in any criminal case for offences involving moral turpitude, emoluments for the period of suspension and termination of same with notice, the scale of payment of salaries transfer of service from one recognised institution to another and various other matters.

A perusal of Section 16G of the Act indicates that the provisions contained therein relate to period subsequent to the appointment and security of tenure but do not relate to the period anterior to the appointment referred to in Regulation 101 indicated hereinabove. Prior to the insertion of the Regulation 101 in question the management was required to obtain an approval of the District Inspector of Schools in respect of the appointment made against the post of teachers that is of employees other than the members of the nonteaching staff and the appointment for the purpose of seniority as well as entitlement to payment of salary was to be taken to have begun from the date of such approval. For the nonteaching staff there was no provision for obtaining prior approval but in view of the provisions contained in U.P. Act No. 24 of 1971, the District Inspector of Schools could refuse to recognise the appointment unless financial approval for the same had been obtained from him.

In this connection, it may be noticed that in its decision in the case of Radhey Shay am Dubey v. District Inspector of Schools, Deoria and others, 1987 UPLBEC 553, a Division Bench of this Court had observed that the contention to the effect that the District Inspector of Schools could not go into the validity of the appointment of a persons claiming salary from the State under the provisions of the U.P. Act No. 24 of 1971 was devoid of any merit. It was emphasised that the responsibility cast upon the District Inspector of Schools to disburse salaries necessarily carried with it an implied power to satisfy himself whether the appointment of the teacher or employee whose salary he is called upon to disburse was appointed in accordance with law and in a bona fide manner. For this purpose, the District Inspector of Schools is free to make an enquiry and satisfy himself within a reasonable time.

With the insertion of Regulation 101, the position stands further clarified that any appointment as against nonteaching post cannot be made by the management without obtaining prior approval of the District Inspector of Schools with the consequential result that if the management acts in contravention of the provisions of this provision, it would be liable to be visited with the penalty of derecognition or of any other action and further the District Inspector of Schools or any other competent authority stands authorised to withhold payment of salary to such an appointee refusing to recognise his appointment which is sought to be made the basis for such an entitlement. This provision is in effect a check to prevent an appointment becoming effective in the sense of saddling the State with the responsibility of payment of salary etc. in case it is against the cannons of financial propriety or suffers from any procedural defect or is otherwise vitiated in law. The District Inspector of Schools by virtue of this provision stands vested with ample jurisdiction to examine the above aspects and on being satisfied that the appointment has infact been made in accordance with the provisions contained in the Act and the regulations framed therein, he may grant the approval whereupon the appointment becomes effective so as to saddle the State with the liability in regard to the payment of salary etc. to the appointee and extending to him the benefits envisaged under the U. P. Intermediate Education Act and the Regulations framed thereunder ensuring the security of tenure of service etc.

Taking into consideration the facts and circumstances indicated hereinabove and the implications arising under the Legislative intent flowing from the provisions contained in the U. P. Intermediate Education Act as well as U. P. Act No. 24 of 1971, there can be no escape from the conclusion that Regulation 101 in question does not suffer from any such Constitutional invalidity or any defect of Legislative competence or any such legal infirmity as contended by the learned Counsel for the petitioner. The aforesaid provision is not vitiated in law in any manner and in fact is in consonance with the Legislative policy underlying the U.P. Intermediate Education Act as well as U.P. Act No. 24 of 1971.

Further, the prior approval which has been referred to in the Regulation 101 in question has to be granted or refused by the competent authority not in an arbitrary manner but after examining the proceedings relating to the appointment and finding out as to whether the appointment was really necessary taking into consideration the norms fixed by the State Government justifying the continuance of the post and after satisfying as to whether the appointment was made after following the prescribed procedure in a fair manner and is in accordance with the provisions regulating the procedure which is prescribed for making such an appointment. It is only after the competent authority is satisfied that there is no defect in the procedure followed for making the appointment and such an appointment is infact necessary and further all the requisite conditions including the eligibility criteria etc. stand complied with and further the selection proceedings have been conducted in a fair manner that the District Inspector of Schools has to accord the prior approval which on the requisite conditions being satisfied cannot be withheld keeping in view the public interest involved as the State having undertaken to take the liability for payment of salary etc. of the teaching as well as nonteaching staff employed in a recognised Intermediate College or High School is bound to ensure that its smooth functioning is not hampered on account of refusal to grant approval to an appointment made by the Committee of Management in the interest of the institution.

In the present case, what I find is that the information in regard to the appointment of the petitioner had been sent to the District Inspector of Schools on 10101996. The matter in regard to the granting or withholding of the approval is kept pending by the District Inspector of Schools and he has not passed any order in the matter.

A vacancy in a sanctioned post when becomes available has to be filled up as expeditiously as possible as delay in the filling up of the vacancy in a post which is required for the efficient and smooth functioning of the institution is detrimental not only to the institution but also to the public interest for serving which purpose, the institution is provided the financial aid from the State out of the public funds. The District Inspector of Schools/competent authority functioning under the U. P. Intermediate Education Act as well as under the U.P. Act No. 24 of 1971 has therefore, to act with expedition in the matter.

In the present case, however, what I find is that on the own showing of the petitioner, the Principal who is the appointing authority, while taking recourse to the method of direct recruitment had invited applications from the eligible candidates for being considered for appointment against the vacancy in question by placing a notice only on the notice Board of the college on 1591996 and this mode of advertisement adopted by the Principal of the College could attract only four persons including the petitioner.

The implications arising under such a procedure adopted by the appointing authority for filling up a sanctioned post in an intermediate college or High School which stands duly recognised under the provisions of the U.P. Intermediate Education Act and the regulations framed thereunder had come up for consideration by a Full Bench of this Court in the case of Radha Raizada v. Committee of Management, Vutyawati Darbari Girls Inter College and other, (1994) 3 UPLBEC 1551, had observed that the advertisement on the notice board of the Institution is infact no notice to the prospective eligible candidates. The advertisement must conform to the requirement of Article 16 (I) of the Constitution which prohibit the State from doing anything whether by making rule or by executive order which would deny equal opportunity to all the citizens. Such kind of notice is an eyewash for the requirement of Article 16 of the Constitution. Notice through the notice board of the institution throws open the doors for manipulations and nepotism.

In the aforesaid view of the matter, requiring the District Inspector of Schools to consider the matter in regard to the granting of the approval contemplated under the Regulation 101 of the Regulations referred to hereinabove will be only a futile exercise which will serve no useful purpose as the aforesaid situation would lead to only one irresistible conclusion that the appointment of the petitioner could not under the law be approved of in face of the fatal defect in the procedure adopted by the appointing authority for selecting the candidate for appointment as against the vacancy in question. This fatal defect vitiates the entire proceedings culminating in the appointment for the purposes of being recognised as a valid appointment entitling the appointee to receive the benefits contemplated either under the U.P. Intermediate Education Act or Regulations framed thereunder or to the benefits contemplated under the provision of the U.P. Act No. 24 of 1971. In such a situation, it seems to me that the present one is not a fit case for interference by this Court, while exercising the extraordinary jurisdiction envisaged under Article 226 of the Constitution of India.

The writ petition is accordingly dismissed.

There shall however, be no order as to costs.