Durgesh Kumar Singh vs State of U.P. and Others

Sunita Agarwal, J.—The petitioner is seeking quashing of the order dated 15.10.2014 passed by respondent No. 3 i.e. District Inspector of Schools, Deoria refusing to grant financial approval to the appointment of the petitioner as Head Clerk. The grounds of rejection are that no prior approval has been taken and further there was a ban imposed by the State Government vide Government Orders issued for the purpose.

Challenging the refusal to grant financial approval, submissions of learned counsel for the petitioner are two fold. First contention is that no prior approval is required for appointment on a class III post under Regulation 101 as has been held by this Court in Preet Kumar Srivastava Vs. State of U.P. and Others, . The Regulation 101 has been interpreted by this Court and it was held that looking to the language of Regulation 101 which says that no appointment shall be made on a non-teaching post without there being approval of the District Inspector of Schools, the prior approval is required between selection and appointment of the incumbent against the vacant post. No prior approval is required before making selection for filling up the vacancy.

In the case of Preet Kumar Srivastava (supra), Regulation 101 as existed prior to the amendment made on 31.12.2009, was under consideration which reads as under:--

"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." 4. Whereas the amended Regulation 101 vide notification dated 31.12.2009 is as follows:--

A perusal of Regulation 101 as amended on 31.12.2009 indicates that by way of amendment, in the existing provision it was added that before filling up the vacancy, the District Inspector of Schools shall intimate the vacancy position (in the institution in question) to the Director of Education (Madhyamik) and also justify the number of sanctioned post considering the strength of students in the said institution. The approval to fill up the vacant post shall be granted by the District Inspector of Schools after receipt of the order/direction of the Director of Education (Madhyamik). While granting permission to fill up the post, the District Inspector of Schools was to ensure that the reservation rules and the sanctioned strength in the institution as determined by the State Government shall be strictly adhered to.

The vacancies against which the petitioner was selected occurred on 31.12.2011 and 31.1.2012 and as such the amended Regulation 101 vide notification dated 31.12.2009 would be applicable.

In Preet Kumar Srivastava (supra), the words "fill up any vacancy except with the prior approval of the Inspector" as contained in Regulation 101 of Chapter III were interpreted. These two words are also contained in the amended Regulation 101. Amended Regulation 101 also contemplates that prior approval of the District Inspector of Schools is to be obtained before filling up the vacancy that means the approval is to be obtained at the time of appointment and not at the time of initiation of process for making appointment as held in Preet Kumar Srivastava (supra), placing reliance upon the Division Bench judgement of this Court in the case of Jagdish Singh, etc. v. State of U.P. and others, reported in 2006 (4) ADJ, 162 (All)(DB). It was held therein that what is contemplated in Regulation 101 is approval after the selection is held and before appointment.

The amended Regulation 101 also contemplates the same stage that is after the selection process is over but before making appointment to the post. Only addition is that the District Inspector of Schools shall ensure that there exist sanctioned post in the institution in question at the time of initiation of the selection process.

This Court further finds that in the case of Dhruv Narain Singh Versus State of U.P. in Writ Petition No. 26307 of 2010, this court has found that time and again, appointments are made in educational institution in various districts in the State of U.P. against non-sanctioned and non-available post. No action has been taken by the State Government to determine the number of posts as per the sanctioned strength in the educational institutions in order to weed out fraudulent appointments. A direction was given to the Principal Secretary, State of U.P. to conduct an enquiry for determining the number of posts actually created for teaching and non-teaching staff, institution-wise in the recognised Intermediate Colleges.

A further observation was made that no effort has been made to determine the cadre for about 39 years. Pursuant to various directions given by this Court in the case of Dhruv Narain Singh (supra), physical survey was conducted and cadre strength in the institution (District-wise) in the entire State of U.P. has been determined.

It appears that the amendment in Regulation 101 vide notification dated 31.12.2009 was also made in order to check illegal appointments against non-sanctioned, non-existing posts in the recognised Educational institutions.

Thus, it can safely be concluded that before appointment of an incumbent on a non-teaching post, information is required is to be given to the District Inspector of Schools concerned regarding the sanctioned strength. The District Inspector of Schools is under obligation to examine the sanctioned strength in the institution and report the same to the Director of Education (Madhyamik). Only after satisfying itself to the sanctioned strength and the vacancy position, the District Inspector of Schools can grant approval for filling up the vacancy.

However, there is another aspect of the matter that in case, the management approaches the District Inspector of Schools for grant of prior approval, the District Inspector of Schools cannot keep the matter pending for a long period as it would disturb the smooth functioning of the institution concerned. In case, sanctioned strength has already been determined by the Director of Education (Madhyamik), in view of the directions given by this Court in the case of Dhruv Narain Singh (supra), there would be no further requirement for referring the matter again to the Director of Education (Madhyamik) as contemplated in Regulation 101 as it would be a futile exercise and would further delay the appointments and impede the daily functioning of the institution.

Admittedly, in the present case, the District Inspector of Schools has not examined the position of sanctioned post as determined by the Director of Education and the vacancy position in the institution before passing the order of refusal to accord permission to fill up the vacancy, the first ground for refusal of financial approval to the appointment of the petitioner is bad.

So far as second ground is concerned, learned counsel for the petitioner placing reliance upon judgement of this Court in the case of Committee of Management, Lala Babu Baijal Memorial Inter College, Lodipur, Ghaziabad and Another Vs. State of U.P. and Others, submits that the validity of the Government Order dated 6.1.2011 was subject matter of challenge. This court has struck down paragraph 2 of the Government Order dated 6.1.2011 in its applicability to the Secondary Educational institutions recognized by the Board and governed by the provisions of U.P. Intermediate Education Act,1921. Holding the ban being illegal, unconstitutional and ultra vires, direction has been given to pass fresh order in the light of observations made in the said judgement.

A direction was given by this Court to the effect that the educational authorities ought not to obstruct the selection of class IV posts in the secondary educational institutions only on the basis of paragraph 2 of the Government dated 6.1.2011 which provides for appointment through outsourcing only.

Learned Standing Counsel appearing for respondent Nos. 1 to 3 has not been able to dispute the contentions of learned counsel for the petitioner.

In view thereof, the order dated 15.10.2015 passed by the District Inspector of Schools, Deoria is hereby set aside. The matter is remitted back with a direction to the District Inspector of Schools, Deoria to pass a reasoned and speaking order strictly in accordance with the provisions as contained in Regulation 101 of Chapter III of the Regulations framed under the Intermediate Education Act 1921 and the observations made herein above.

An expeditious decision be taken within a period of two months from the date of filing of certified copy of this order after calling for the comments of the Committee of Management of the concerned institution.

With these observations, the writ petition is disposed of.