Ram Narain Yadav vs State of U.P.& Ors.

Sudhir Agarwal, J.—Heard Sri Krishna Kumar Gupta, holding brief of Sri V.K. Singh, for the petitioner, the learned Standing Counsel for the respondents and perused the record.

This writ petition is directed against the order dated 1642004 passed by the District Inspector of School directing the management to take steps for regular selection of the candidate, in accordance with Rule 14 of U.P. Secondary Education Services Commission (Procedure and Conduct of Business) First Regulations, 1995. He also held selection of the petitioner as Assistant Teacher being illegal since there was no vacancy on 27101998.

The facts as disclosed in the writ petition are that a substantive vacancy of Lecturer (Hindi) occurred in Janta Inter College, Ambari, District Azamgarh (hereinafter referred to as the ''College'') due to retirement of one Sri Heeraman Maurya on 3061998. Consequently the management promoted one Lal Behari Chauhan who was working in L.T. Grade vide resolution dated 571998. In the resultant shortterm vacancy in L.T. Grade, the management vide its resolution dated 2091998, decided to make appointment on ad hoc basis. Pursuant thereto, an advertisement was published in Newspapers on 3091998. The petitioner applied and interview was held on 27101998. Thereafter the petitioner was selected and appointment letter was issued on 29101998 and he joined in October, 1998 itself. Thereafter the papers of his selection alongwith covering letter dated 7111998 sent to District Inspector of Schools (hereinafter referred to as the ''D.I.O.S.''), but he did not pass any order. In the meantime promotion of Lal Behari Chauhan on the post of Lecturer (Hindi) was considered for regularization and vide order dated 1032000, the Joint Director of Education regularized Sri Lal Behari Chauhan on the post of Lecturer (Hindi). The shortterm vacancy in L.T. grade thus became substantive. The D.I.O.S. thereafter passed the impugned order dated 1642004, whereagainst the present writ petition has been filed.

From the facts stated above it appears that after promotion of Sri Lal Behari Chauhan on the post of Lecturer (Hindi) on 571998, vacancy occurred on the post of Assistant teacher in L.T. grade immediately thereafter. It also appears from the record that vacancy of Lecturer (Hindi) was liable to be filled in by promotion and hence Sri Lal Behari Chauhan was promoted on the said post. The said promotion was approved as substantive appointment by the Joint Director of Education vide order dated 1032000. The learned Standing Counsel, therefore, in my view is right in submitting that after promotion of Sri Lal Behari Chauhan on the post of Lecturer (Hindi), the resultant vacancy on the post of Assistant teacher was not a shortterm vacancy but a substantive vacancy since Sri Chauhan was promoted against a vacancy which was to be filled up by promotion itself. In this view of the matter it cannot be said that there was a shortterm vacancy which could have been filled in by the management under the provision of the U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 (hereinafter referred to as ''Second Order''). Thus, ex facie, appointment if any made by the management under Second Order i.e. the appointment of the petitioner on the post of Assistant teacher in L.T. grade is illegal. On 29101998, the management did not possess any such power under the statute to make such appointment since Second Order could not have been resorted to and under Section 18 read with U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981 (hereinafter referred to as the ''First Order'') the management had no such power.

However, even if it is considered that promotion of Sri Lal Behari Chauhan on the post of Lecturer (Hindi) resulted in a shortterm vacancy which could have been filled in by the management in accordance with the procedure prescribed under the Second Order, in my view, in appointing the petitioner, the procedure under para 2 of Second Order has not been followed and hence it does not confer any right upon the petitioner either to hold the post or to claim salary and the order of the DIOS declining to pay salary from the State Exchequer cannot be said to be erroneous.

Where a shortterm vacancy is to be filled in on ad hoc vacancy, the procedure prescribed under para 2 of the Second Order has to be observed. It is reproduced as under :

�2. Procedure for filling up shortterm vacancies. (1) If shortterm vacancy in the post of a teacher caused by grant of leave to him or on account of his suspension duly approved by the District Inspector of Schools or otherwise, shall be filled by the Management of the Institution by promotion of the permanent seniormost teacher of the institution, in the next lower grade. The Management shall immediately inform the District Inspector of Schools of such promotion alongwith the particulars of the teacher so promoted.

(2) Where any vacancy referred to in Clause (1) cannot be filled by promotion, due to nonavailability of a teacher in the next lower grade in the institution, possessing the prescribed minimum qualifications, it shall be filled by direct recruitment in the manner laid down in Clause (3).

(3) (i) The management shall intimate the vacancies to the District Inspector of Schools and shall also immediately notify the same on the notice board of the institution, requiring the candidates to apply to the Manager of the Institution alongwith the particulars given in Appendix �B� to this Order. The selection shall be made on the basis of quality point marks specified in the Appendix to the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, issued with Notification No. Ma1993/XV7(79)1981, dated July 31, 1981, hereinafter to be referred to as the First Removal of Difficulties Order, 1981. The compilation of quality point marks shall be done under the personal supervision of the Head of Institution.

(ii) The names and particulars of the candidate selected and also of other candidates and the quality point marks allotted to them shall be forwarded by the Manager to the District Inspector of Schools for his prior approval.

(iii) The District Inspector of Schools shall communicate his decision within seven days of the date of receipt of particulars by him failing which the Inspector will be deemed to have given his approval.

(iv) On receipt of the approval of the District Inspector of Schools or, as the case may be, on his failure, to communicate his decision within seven days of the receipt of papers by him from the Manager, the Management shall appoint the selected candidate and an order of appointment shall be issued under the signature of the Manager.

Explanation. For the purpose of this Paragraph

(i) the expression �seniormost teacher� means the teacher having longest continuous service in the institution in the Lecturer''s grade or the Trained graduate (L.T.) grade or Trained undergraduate (C.T.) grade or J.T.C. or B.T.C. grade as the case may be;

(ii) in relation to institution imparting instructions to women, the expression ''District Inspector of Schools'' shall mean the Regional Inspectress of Girls'' Schools;

(iii) shortterm vacancy which is not substantive and is of a limited duration.�

Para 2 of the Second Order provides where a shortterm vacancy has occurred, the management shall immediately take steps to fill in the same by making ad hoc promotion of the permanent senior most teacher of the institution in the next lower grade and inform the same to DIOS. Where the shortterm vacancy cannot be filled in by promotion due to nonavailability of a teacher in the next lower grade possessing prescribed minimum qualification, it can be filled in by direct recruitment observing the procedure prescribed in para 2 (3) of Second Order. It provides that the management shall intimate vacancy to DIOS and would also notify the same on the notice board requiring the candidate to apply to the Manager of the College. Thereafter a selection shall be made on the basis of quality point marks. The compilation of quality point marks shall be prepared under the personal supervision of Head of the College. The details of selection, quality point marks and other particulars of the candidates thereafter shall be forwarded by the Manager to DIOS for his �prior approval�. The DIOS is under a statutory obligation to communicate his decision within seven days from the date of receipt of particulars by him failing which he would be deemed to have given his approval. The management after approval is communicated by the DIOS or in the case of his failure to communicate within seven days of the receipt of the papers sent by the Manager, shall appoint selected candidate and an order of appointment shall be issued under signature of the Manager. The scheme is thus very clear. Since payment has to be made from the State Exchequer, the appointment can be made only when the entire selection procedure as well as particulars of the candidate selected are scrutinized and examined by DIOS and he has an occasion to convey his approval to the selection prior to appointment. Under clause 2(3) of the Second Order, �prior approval� is required after selection but before appointment. A well defined and unambiguous procedure for shortterm appointment has been provided in the Second Order which does not admit of any doubt.

There is nothing on record to show as to when the management intimated the aforesaid vacancy to DIOS and whether thereafter any exercise was undertaken to find out whether the post of L.T. grade could have been filled in by promotion of a permanent senior most teacher working in next lower grade. Thereafter, if it has to be filled in by direct recruitment, the vacancy is required to be advertised in two newspapers of wider circulation as held by a Full Bench of this Court in Radha Raizada v. Committee of Management, 1994(2) ESC 345 (All)(FB). The record shows that the same was advertised on 3091998 in daily newspaper �Bharat Doot� and �City Pioneer�, published from Varanasi. Moreover the advertisements show that the intending candidates were required to apply within 14 days by registered post. The candidates thus could have submitted applications till 14101998. It is said that the interview was held on 27101998 and as per recommendation thereof the petitioner was selected and consequently appointment letter was issued on 29101998/2111998 by the management and the aforesaid documents sent to DIOS for his approval vide covering letter dated 7111998. The record does not show as to when the committee of management resolved to appoint the petitioner and authorize the Manager of the committee of management to issue appointment letter to the petitioner. Annexure4 to the writ petition which is letter dated 7111998 sent to the DIOS annexing various documents seeking his approval shows that Item Nos. 8 and 9 contains from the resolution of committee of management which are dated 2091999 and 22101998. Learned Counsel for the petitioner stated that in Item No. 8 there is some typing mistake and the correct date is 2091998. Even if the aforesaid explanation of learned Counsel for the petitioner is taken to be correct it is evident that the alleged resolution dated 2091998 is one whereby the committee of management resolved to make appointment by direct recruitment on ad hoc basis on the post of Assistant teacher in L.T. grade and authorize the Manager/Principal to take necessary action thereon. Admittedly after receiving applications till 14101998 it is said that interview was held by the Selection Committee on 27101998. Meaning thereby recommendation of the selection committee could not have been at any date prior to 2091998. That being so in no case the committee of management could have resolved on 2291998 to appoint the petitioner on the post of Assistant teacher pursuant to the recommendation of the Selection committee selection since on that date selection itself had not taken place. No other document is placed before the Court showing that the committee of management has passed any resolution on or after 22101998 or appointed the candidate selected by the Selection Committee, namely the petitioner on the post of Assistant teacher. This shows that the Manager issued the alleged appointment letter dated 29101998 on his own without there being any decision or resolution of the committee of management appointing the petitioner on the aforesaid post. It is not disputed that under the Act, it is the committee of management which is the appointing authority and pursuant to its resolution a written order of appointment is to be issued by the Manager of the committee of management. There is another aspect of the matter. In para 12 of the writ petition the petitioner has stated that he joined the College in the month of October, 1998. It is pursuant to appointment order dated 29101998 but a perusal of Annexure3 to the writ petition which is copy of the aforesaid alleged appointment letter dated 29101998 shows that the Manager signed the aforesaid letter on 29101998 but dispatched No. is Patrank: 2/Aa Ni/9899 dated 2111998. Meaning thereby the aforesaid appointment letter was issued by the College on 2111998 and hence there was no occasion for the petitioner to join the College in October 1998 and this shows that the documents have been prepared at the sweet will and cannot be relied upon to hold that the procedure prescribed in law has been followed. Moreover, the occasion to issue letter of appointment would have arisen only when the documents pertaining to selection first of all would have been sent to the DIOS seeking his prior approval and after getting prior approval either by means of a positive order of own issued by the DIOS or in form of deeming approval as prescribed in para 2 (3) (iii) of the Second Order only thereafter, the letter of appointment could have been issued. However, the aforesaid procedure has not been followed and the appointment letter issued without there being prior approval under Second Order, hence it cannot be said that he appointment of the petitioner is legal and in accordance with law. This Court has no hesitation in holding that the petitioner''s alleged appointment cannot be said to be in accordance with procedure prescribed in Second Order and therefore, is not valid, legal and confers any right to claim salary in accordance with U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971. Where a statute requires prior approval any act or order without obtaining prior approval is illegal and void and would not confer any benefit upon the person who is beneficiary of such order issuing without obtaining prior approval.

At this stage learned Counsel for the petitioner placed reliance on the judgments of this Court in Prabhu Narain Singh v. Deputy Director of Education, Varanasi & Anr., 1977(3) ALR 391; Lalit Mohan Misra v. District Inspector of Schools, 1979 ALJ 1025 and Ashika Prasad Shukla v. District Inspector of Schools, Allahabad & Anr., 1999(1) LBESR 13 (All) : 1998(3) ESC 2006, and contended that the appointment of the petitioner even if made without first sending the papers to DIOS and obtaining his �prior approval� yet the subsequent sending of the papers to DIOS and after expiry of seven days thereafter, his appointment would stand validated from then on. The petitioner''s appointment thus is liable to be treated valid at least from 15111998 and onwards since all the documents were sent to DIOS on 7111998 and he did not pass any order within seven days as provided under the statute. The submission, however, does not impress me. What he really intends to argue is that even if a strict compliance of the procedure provided in the Second Order on the part of the management is not observed, yet so far as the authorities are concerned, if they have failed to pass an order within the period prescribed, a deeming fiction would apply by strict application of Statute against the authorities. The argument in fact try to read the procedure of Second Order in a lenient way so far as the management is concerned and in strictest way so far as the respondents are concerned. I do not find any reason for such interpretation. When law requires something to be done in a particular manner and the thing is being done in some other way which is not prescribed under law, it would be illegal. The procedure prescribed in Removal of Difficulties Order or U.P. Secondary Education Services Selection Board Act, 1982 and the effect of its infraction came up for consideration before the Apex Court in Prabhat Kumar Sharma & Ors. v. State of U.P. & Ors., 1996(2) LBESR 394 (All) : JT 1996 (6) SC 579, and the Apex Court considering the procedure under First Order observed as under :

�Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees.�

Again in para 11 of the judgment the Court held as under :

�Any appointment in violation thereof is void. As seen prior to the Amendment Act of 1982 the First 1981 Order envisages recruitment as per the procedure prescribed in para 5 thereof. It is an inbuilt procedure to avoid manipulation and nepotism in selection and appointment of the teachers by the Management to any posts in aided institution.�

Again it was considered by a Division Bench of this Court (in which I was also a member) in Special Appeal No. 331 of 1992, District Inspector of Schools v. Naresh Chandra, decided on 2032006 Reported in 2006(2) LBESR 609 (All) : 2006(2) ESC 1483 (All), wherein it was held :

�Thus when the law requires some thing to be done in a particular manner no other way is permissible and any action not in accordance with such procedure would be void and illegal. The provision of statute and the rigor of statutory procedure cannot be diluted by holding the same to be mere irregularity, since it would be very difficult in such case to restrict or define the extent of such irregularity. For illustration, in one case, the management, who has made appointment after 58 days instead of 60 days may claim it to be a mere irregularity and in another matter the management after making appointment even within a week instead of waiting for 60 years may claim the similar protection. Such interpretation would result in making the period prescribed under Section 18 to be ununiform, illusory and virtually redundant. A statutory provision cannot be read in a manner, which will bring redundancy to any part of the statutory provision. In this view of the matter, we are clearly of the view that any infraction of the procedure prescribed under Section 18 of the Act would vitiate the appointment being void and illegal and such deviation cannot be said to be a mere irregularity.�

I have also gone through the judgments relied upon by learned Counsel for the petitioner. In Prabhu Narain Singh (supra) this Court had an occasion to consider the effect of lack of approval in making appointment of a teacher under Section 16F of 1921 Act as it stood prior to amendment of the said Section by U.P. Act No. 16 of 1972. The selection was made by the selection committee on 281972 and the papers were forwarded to DIOS who approved selection and appointment vide order dated 1081972. Thereafter the management passed resolution on 2551973 terminating service of the petitioner Prabhu Narain Singh and communicating him by letter dated 1861973 and also forwarding the said resolution to DIOS who refused to accord approval vide order dated 1371973 whereagainst management preferred an appeal before Regional Deputy Director of Education, which was allowed on 1351975 on the ground since Sri Prabhu Narain Singh was not appointed in accordance with Section 16F of 1921 Act, no approval for termination was necessary. The Court noticed as a matter of fact that Sri Prabhu Narain Singh after his selection was given charge and started working as a teacher before DIOS accorded approval and it was actually accorded on 1081972. Referring to Section 16F (1) read with Regulation 6 Chapter III and Regulation 16 Chapter II of the regulations framed under 1921 Act, this Court held that merely if a letter of appointment is withheld by a management it would not result to an of approved candidate of denying his right to be appointed as a teacher on account of a purposeful lapse on the part of the management and the management cannot take advantage of his own wrong though approval was accorded by the DIOS. It held further that once a selection has been made by the selection committee and accorded approval by the appropriate authority, the performance of act by the management of issuance of letter of appointment under Regulation 16 Chapter II is a mere ministerial act since management is bound to appoint him and issue letter of appointment. It has no option otherwise at all. In these circumstances, this Court held that the appointment of Sri Prabhu Narain Singh cannot be said to be inconsistent with Section 16F(1) of the Act read with Regulation 6 Chapter III and Regulation 16 Chapter II of the Regulation and therefore before termination, approval of DIOS was necessary. In my view the aforesaid judgment has no application to the facts of this case particularly since Section 16F talked of �approval� and not �prior approval�. It is true that approval under Section 16F was required after making selection and before issuing appointment letter but the legislature in its wisdom has used the words �approval� and not �prior approval� though in the Second Order it has used the words �prior approval� which have a definite connotation and purpose behind it. Further the provisions considered therein were different and not pari materia with that of Second Order.

Lalit Mohan Misra (supra) was also a case of appointment made in 1971 inasmuch as the committee of management passed resolution on 2371971 for appointing Lalit Mohan Misra and others as Demonstrator and papers sent to DIOS for approval. In anticipation of approval, the management allowed Lalit Mohan Misra and others to join the institution on 3171971. The approval was accorded by the DIOS on 381971 whereafter the appointment letters were issued. The appointees thereafter were formerly allowed to join on 481971. After five years of their working, the DIOS issued a letter on 9111976 amending approval order dated 381971 stating that Lalit Mohan Misra and others would be treated as having been placed on probation w.e.f. 3171971 i.e. three days prior to the date when the approval was accorded and accordingly also confirm them. On representation made against the aforesaid order dated 9111976 it was held by the DIOS vide order dated 1781977 that Sri Lalit Mohan Misra and others will be deemed to have joined w.e.f. 481971 and not earlier thereto, whereagainst a writ petition was filed. The aforesaid view taken by DIOS on 1781977 was upheld. Considering Section 16F of 1921 Act and Regulation 16 Chapter II of the Regulations, this Court held that though the management has got no right to appoint a person awaiting approval of DIOS or Deputy Director of Education, as the case may be, but the said appointment will become legal and regular only from the date approval is accorded by the competent authority, and the prior working of the person will not confer any benefit qua the appointees. It also held that DIOS has no authority to subsequently pass an order modifying the date of appointment. In my view the aforesaid judgment considered the provisions which were differently worded having different scope and the dispute involved in the aforesaid case was also totally different hence the aforesaid judgment would have no application to the facts of the present case.

Coming to the third judgment relied on by the petitioner namely Ashika Prasad Shukla (supra) it is no doubt true that this Court with reference to para 2 (3) (II) of the Second Order, relying on the judgment of this Court in Lalit Mohan Misra (supra) held that the appointment, if made prior to approval or deemed approval would become effective from the date of approval or deemed approval but since this issue was not considered by the Hon''ble Single Judge in the judgment under appeal before the Court, the DIOS was directed to look into this aspect whether the prerequisite conditions for deemed approval were satisfied or not and thereafter passed an appropriate order. Thus it cannot be said that it lays down a law that an appointment made before prior approval would be valid after expiry of the period necessary to attract deemed approval.

On the contrary where the statute specifically provides �prior approval� before passing any order, what its effects would be has been considered in some other cases which I propose to refer as under Rule 11 of U.P. Recognized Basic Schools (Recruitment and Conditions of Service of Teachers and other Conditions) Rules, 1975 provides that no service can be terminated without prior permission from the District Basic Officer. A Division Bench of this Court in Ms. Shailja Shah v. Executive Committee, Bharat Varshiya National Association & Anr., 1995 (25) ALR 88, held that expression �prior approval� and �approval� connotes different situation. Where a statute uses the term �prior approval� anything done without prior approval is nullity. Where a statute employs expression �approval�, however, in such cases subsequent ratification can make the act valid.�

Section 59(1)(a) of U.P. Urban Planning and Development Act, 1973 provides for �prior approval�. The Apex Court in U.P. Avas Evam Vikas Parishad & Anr. v. Friends Coop. Housing Society Ltd. & Anr., 1995 Suppl (3) SCC 456, held that �prior approval� and �approval� are two different connotations and if the statute does not mention �prior approval� what is material would be only �approval�. The earlier judgment in Life Insurance Corporation of India v. Escorts Ltd., 1986 (1) SCC 264, was also referred where it was held that the word `prior'' and `previous'' may be implied if the contextual situation or circumstances justify such reading and the Act which requires only approval, the action holds good until it is disapproved.

Section 9 of the U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as �1971 Act�) provides for �prior approval�. In Director of Education & Ors. v. Gajadhar Prasad Verma, AIR 1995 SC 1121, it was held that the absence of �prior approval� would not have an effect of creation of post and therefore the State is not obliged to reimburse salary to the management without �prior approval� of the Director or the competent authority under the Act. In Shiv Gorakh Nath Charitable Society, Kanpur & Ors. v. Cantonment Board, Kanpur & Ors., 1997 (3) ALR 616, a Division Bench while considering the effect of �prior permission� held where construction is made without �prior permission� a �post permission� cannot be granted and the construction, so made, has to be dismantled. Same view has been taken by another Division Bench in Vivek Srivastava v. Union of India & Ors., 2005 (3) ESC 1790 (All) (Para 51).

Thus, I am not inclined to accept the submission of the petitioner that he was appointed in accordance with the procedure prescribed in law and therefore, is entitled for payment of salary from the State Exchequer under the provisions of 1971 Act and in the result I do not find any error on the face of record in the order passed by the DIOS declining to grant financial approval to the appointment of the petitioner.

In the result, the writ petition lacks merit and is accordingly dismissed without there being any order as to costs.