Pramod Gupta vs Regional Deputy Director of Education (Secondary),Moradabad Region,Moradabad.

S. P. Srivastava, J.—Heard the counsel for the petitioner and the learned Standing Counsel representing the respondents No. 1 to 3.

Perused the record.

The petitioner feels aggrieved by the order of the District Inspector of Schools dated 13297 whereunder he has refused the grant of approval to the appointment of the petitioner.

The petitioner claims that a vacancy in the post of Assistant Clerk falling in class III became available in the educational institution in question on account of the retirement of Smt. Sushila Singh. Proceedings for filling up this vacancy, taking recourse to the method of direct recruitment were initiated by the appointing authority with the advertisement made in the Newspaper ''Dainik Jagaran'' dated 311096 inviting applications for appointment. The petitioner asserts that he is fully qualified for being appointed on the post in question and in the selection held by the appointing authority on 23197 he was found to be most suitable and was given an appointment letter dated 24197 whereupon he joined the post on that date. He claims that he is continuously discharging the duties attached to the office held by him since his joining the post.

The District Inspector of Schools under the impugned order has indicated that the vacancy in question fell within the quota reserved for being filled up by promotion from the next below cadre and so long as the promotion quota was not filled up the question of making any appointment taking recourse to the method of direct recruitment could not be permitted.

The petitioner has, however, urged that while the post in fact fell within the promotion quota of 50% of the total number of sanctioned posts yet since there was no person in the next below cadre who was eligible for being considered for appointment on the promotion post, the Management did not commit any error in taking recourse to the method of direct recruitment for filling up the vacancy in question. It has further been urged that the District Inspector of Schools had been informed about the vacancy and its proposed filling up by the Management. Therefore, it is urged, that once the permission to fill up the vacancy had been granted there could be no occasion for disapproving the appointment.

It may be noticed that Regulation l0l of the Regulations contained in Chapter III of the Regulations framed under the provisions of U.P. Intermediate Education Act which became effective from 3071992 stipulates that an appointment could become effective only if prior approval has been obtained in respect thereof from the District Inspector of Schools so far as the posts falling in class IIIrd or class IVth category are concerned. This provision prohibits filling up of a vacancy in a nonteaching post without obtaining a prior approval in regard to the proposed appointment as against such a vacancy. This Court in its decision in the case of Turram Singh v. District Inspector of Schools and others (Civil Misc. Writ Petition No. 10905 of 1992 decided on 10397) has already clarified that the Regulation 101 of the Regulations does not suffer from any constitutional invalidity and taking into consideration the provisions contained in the U.P. Intermediate Education Act and the Regulations framed thereunder relating to the recruitment or an appointment of a nonteaching staff in an institution recognised under the provisions of the U.P. Intermediate Education Act and the provisions contained in the Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees), Act, 1971 (U. P. Act No. 24 of 1971), the State cannot be deemed to have been saddled with the liability in regard to the payment of salary etc., to an appointee unless prior approval in regard to the appointment has been obtained from the District Inspector of Schools. This approval has to be granted after taking into consideration various factors in order to ensure that a proper eligible and suitable qualified person is appointed as against a vacancy in the sanctioned posts after following the prescribed procedure and in accordance with law and further the appointment does not result in creating any uncalled for liability on the State in regard to the payment of salary etc. However, the question in regard to the granting or withholding of the approval contemplated under Regulation 101 of the Regulations framed under the U. P. Intermediate Education Act cannot be delayed unnecessarily as the delay is bound to affect not only the smooth running of the institution but also the public interest.

In the present case what I find is that the District Inspector of Schools has not applied his mind to the relevant factors which have to be taken into account while granting or withholding the prior approval referred to under Regulation 101 of Chapter III of the Regulations framed under the U.P. Intermediate Education Act. In case the promotion quota of 50% stood already filled up or in case where no eligible or suitable person from the next below cadre was available who could be considered for appointment as against the vacancy in question, in that event recourse to direct recruitment could be taken by the Management and in case the proposed appointment was found not to suffer or vitiated on account of any illegality there could be no impediment in granting the prior approval sought for.

In the aforesaid view of the matter, this writ petition is disposed of finally requiring the District Inspector of Schools to reconsider the matter in regard to the grant of prior approval to the appointment of the petitioner in the light of the observations made hereinabove and pass a fresh order within period not later than two months from the date of production of a certified copy of this order before the said authority.

It is further provided that in case the District Inspector of Schools comes to the conclusion that there was no procedural irregularity in the appointment of the petitioner & his appointment was in accordance with law and further there was no eligible and suitable candidate available from the next below cadre, while granting the approval sought for it shall be ensured that the petitioner is paid his salary etc., as admissible under the law from the first date of the month succeeding the date of the receipt of the relevant papers relating to his appointment by the District Inspector of Schools, provided the petitioner had actually discharged the duties attached to the office during the relevant period.