Nagendra Kumar vs State of U.P. thorugh Principal Secy. Secondary Edu. Lko.

Devendra Kumar Arora, J.—By means of instant writ petition, the Petitioner has prayed for a direction to be issued to opposite parties No. 2, 3 and 4 to make payment of salary to the Petitioner with effect from the date of joining i.e. 24.10.2009.

The submission of learned Counsel for the Petitioner is that Sarvodaya Uchchatar Madhyamik Vidyalaya Bamhera, Sitapur is an educational institution imparting education from 6th to 10th classes and is duly recognized by the U.P. Board of High School and Intermediate Education and receives grant-in-aid from the State Government. There are three posts of class IV employees and have been sanctioned by the competent authority. One post of class IV posts fell vacant on 1.1.2002 on account of the retirement of its incumbent Sri Shiv Bux on 31.12.2001. The remaining two posts are occupied by one Scheduled Caste candidate and the other by OBC category candidate. Opposite party No. 5 by means of letter dated 26.5.2008 sought permission from the D.I.O.S. Sitapur for filling up the post under Regulation 101 of the Regulations framed u/s 16-G of the Intermediate Education Act. The D.I.O.S. after examining the record granted permission to fill up the post by order dated 16.7.2008. The post could not be filled up and in the meantime, ban was imposed by the State Government for filling up the post.

However, after lifting of the ban, the District Inspector of Schools by way of letter dated 30.1.2009 directed the opposite party No. 5 to proceed with the selection on the class IV post and on receiving the aforesaid letter, the post was advertised in the Newspaper and after approval of the selection committee, interview was held on 13.2.2009. Opposite party No. 5 sent the record of the selection committee to the D.I.O.S. for financial concurrence vide letter dated 16.2.2009. The District Inspector of Schools after examining the record found that the selection was done in accordance with law but instead of granting the approval to the Petitioner''s appointment, referred the matter to the Regional Committee vide letter dated 13.8.2009.

Further submission of the learned Counsel for the Petitioner is that since the D.I.O.S. found the selection of the Petitioner in order, therefore, the appointing authority issued appointment order to the Petitioner. The Petitioner in pursuance of the appointment order joined the institution on 24.10.2009. The grievance of the Petitioner is that more than one year has passed the matter is laying with the regional committee and no decision has been taken. The Petitioner is working without salary on class IV post in anticipation of approval of his appointment. The further argument is that there is no occasion for the District Inspector of Schools to refer the matter to the regional committee, as the D.I.O.S. was competent to grant approval/financial concurrence to the appointment of the Petitioner. Learned Counsel for the Petitioner in support of his contention placed reliance on a judgment of this Court reported in Ajit Ram v. District Inspector of Schools, Balia and Ors.(2005) 3 UPPLBEC 2516 in which it has been observed that U.P. Act No. 24 of 1971 does not envisage the approval or sanction of any authority other than the District Inspector of Schools, therefore, sending of the file to the Regional Level Committee was absolutely unnecessary. The observation of the court in Para 5 reads as under:

A perusal of the aforesaid facts and relevant Government Orders, which have been placed before the Court, it is obvious that the power of the District Inspector of Schools to make the payment of salary is not subject to any authority and the District Inspector of Schools is under an obligation to pass orders delegated to him under the U.P. Act No. 24 of 1971, in accordance with the provisions contained therein. Not only this it is obligation of the District Inspector of Schools to pass such an order and ensure the payment of salary to the validly appointed and approved employee, which cannot be either deducted or with held except for under the contingencies, referred to in the provisions of Act No. 24 of 1971. In these circumstances and in view of the aforesaid provisions indicated herein above, the District Inspector of Schools has to perform the duty of passing a final order in respect of payment of salary of teachers/employees of recognized Institution, in the event the Institution is under grant-in-aid list or within the purview of U.P. Act No. 24 of 1971.

Learned Standing Counsel while opposing the petition submitted that it is incumbent upon the authorities of the institution to issue appointment order after approval of the District Inspector of Schools and till the District Inspector of Schools grants the approval to the recommendation of the selection committee, no appointment should be issued to the selected candidates. In support of his argument, he placed reliance upon a judgment rendered by this Court reported in Jagdish Singh v. State of U.P. 2006 (24) LCD 1712 Paras 20 and 21 of this judgment read as under:

20."Scheme of Regulations 101 to 107 makes it clear that after receiving as intimation of vacancy, the District Inspect of Schools is empowered to send the application of member of (the family of the) 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 Dinqur 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.

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."

Heard the learned Counsel for the parties and perused the record.

It is admitted position that opposite party No. 5 issued advertisement for making selection on the post of Class IV after prior approval of the District Inspector of Schools dated 16.7.2008. The selection committee was also approved by the District Inspector of Schools and the D.I.O.S. also found that the selection was done in accordance with law vide letter dated 13.8.2009 while referring the matter to the Regional Committee.

Learned Standing Counsel could not show any provision before this Court which requires the District Inspector of Schools to refer the matter to the Regional Committee, whereas the learned Counsel for the Petitioner placed reliance on the judgment in which it has been held that the District Inspector of Schools is competent authority to grant approval/financial concurrence and there is no provision for sending the file to the Regional Committee.

After taking into consideration the judgment of this Court rendered in Ajit Ram (supra), this Court is of the considered opinion that it was not necessary for the District Inspector of Schools to refer the matter to the Regional Committee for granting approval/financial concurrence and the D.I.O.S. is competent authority to take decision and grant approval/financial concurrence to the recommendation of the selection committee. In the instant case though the D.I.O.S. found everything in order and in accordance with the provisions, yet he referred the matter to the Regional Committee and the issue is pending before the regional committee since August 2007.

In view of the aforesaid facts & circumstances, as well as on due Consideration, present Writ Petition deserves to be allowed and is allowed at the admission stage. A writ of mandamus is issued thereby directing to the District Inspector of Schools, Sitapur to reconsider the issue of granting approval/financial sanction to the appointment of the Petitioner within four weeks from the date a certified copy of this order is produced before him and while doing so the D.I.O.S. will take into consideration the fact that he has already found the appointment of the Petitioner in order while sending the record to the Regional Committee.