Turram Singh vs District Inspector of Schools and Others

S.P. Srivastava, J.—Heard the learned Counsel for the Petitioner and the learned standing counsel representing the Respondents No. 1 and 2.

Perused the record.

The Petitioner feels aggrieved by an order passed by the District Inspector of Schools dated 28.1.1992 whereunder disapproving the proceedings relating to the appointment of the Petitioner on the post of Daftari falling in Class IV and setting aside his appointment, the appointing authority was informed that the vacancy available in Class IV cadre shall be filled up only in accordance with the directions issued by the State Government vide its letter dated 23.9.1981 by appointing an eligible dependent of an employee who had died while in service as provided thereunder.

The Petitioner claims that a substantive vacancy in the post of Daftari had become available for the filling up whereof proceedings were initiated by the appointing authority vide the advertisement dated 16.8.1990. In the selection held by the appointing authority on 1.10.1990, the Petitioner was found to be most suitable candidate for being appointed and he was granted an appointment in the post of Daftari on a period of probation of one year on 1.10.1990 and has been continuously discharging the duties attached to that post to the satisfaction of the appointing authority who vide the order dated 3.10.1991 confirmed him on the said post. However, the District Inspector of Schools under the impugned order disapproved the entire proceedings.

The Petitioner asserts that the impugned order is totally without jurisdiction as the District Inspector of Schools had no authority either to approve or disapprove an appointment as against a vacancy in a post falling in Class IV. It has also been asserted that the impugned order has been passed in violation of the principles of natural justice as no opportunity of hearing had been afforded to the Petitioner before the passing of the impugned order. It has also been alleged that there was no person who had claimed any appointment on the ground of being a dependent of an employee of a person employed in the institution where the vacancy had occurred. In that view of the matter, it is urged that the order issued by the State Government could not come in the way of the Petitioner.

In the counter-affidavit, the claim of the Petitioner has been opposed asserting that since the appointment of the Petitioner had not been approved by the District Inspector of Schools, the Petitioner had no right to continue to hold the post or claim any salary on that basis. It has further been asserted that the claim of the dependent of an employee dying in-harness for compassionate appointment had to be considered first and he had to be adjusted against the available vacancy and in this view of the matter also the appointing authority, in the presence of the direction issued by the State Government in this connection had no jurisdiction to either initiate the proceedings for the appointment or to appoint any person against the available vacancy without first ascertaining as to whether there was any person claiming an appointment on compassionate ground. The contesting Respondents have also asserted that the list of the dependents of the person dying-in-harness employed in the recognised institutions falling within the purview of the U.P. Act No. 24 of 1971 functioning in the district is maintained in the office of the District Inspector of Schools and if any vacancy occurs in any Intermediate College or High Schools of the category as indicated above, the District Inspector of Schools recommends the name of the dependent for the appointment.

A perusal of the order issued by the State Government dated 23rd September, 1981 indicates that the State Government had taken a policy decision to provide relief to the dependent of an employee dying-in-harness while holding teaching or non-teaching post in High School or Intermediate College and had carved out a procedure in that regard making it clear that the regulations framed under the U.P. Intermediate Education Act were proposed to be amended for enforcing the policy decision. The learned standing counsel points out that regulations have since been amended by adding Regulation 103 which became effective from 30.7.1992.

It has further been pointed out that the Regulation 101 has also been added to the regulations framed under the U.P. Intermediate Education Act which requires prior approval in regard to any appointment made as against the vacancies occurring in the post of non-teaching staff.

The provisions contained in Regulation 101 of the regulations which also became effective from 30.7.1991 prohibit the filling up of a vacancy in a non-teaching post without obtaining prior approval from the District Inspector of Schools.

The liability in regard to the payment of salary, etc. in respect of an employee of a recognised institution as contemplated under the provisions of the U.P. Intermediate Education Act stand fastened on the State as provided for in the provisions contained in 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). The aforesaid provisions further vest the competent authority with ample jurisdiction to issue directions in regard to observance of such canons of financial propriety including any direction for retrenchment of any teacher or employees or for prohibition of any wasteful expenditure as he thinks fit.

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 thereunder 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.

In the present case, the appointment is claimed to have been made on 1.10.1990. The District Inspector of Schools has refused to grant financial approval to the aforesaid appointment. The basis for the refusal as disclosed in the impugned order is that the post was required to be filled up by the dependent of an employee dying-in-harness. However, inspite of the fact that in the counter affidavit it has been indicated that a list of such dependents is in the office of the District Inspector of Schools, no effort has been made to indicate as to whether on the relevant date, that is the date of appointment, there was any such dependent of an employee dying-in-harness who was required to be accommodated as against the vacancy in question. In case, there was such a dependent, his name ought to have been recommended for appointment against the vacancy but there is nothing to indicate that any such effort was ever made. It is not permissible for a District Inspector of Schools to allow a vacancy remaining unfilled for an indefinite period, in the absence of a finding that infact the appointment sought to be approved was really not required in view of the norms fixed by the State Government for the continuance of such a post being not satisfied. In case the requirement continues to exist, any delay in according financial approval is bound to affect the smooth running of the institution and in this manner adversely affects the public interest.

It further seems to me that the provisions contained in the letter issued by the State Government dated 23.9.1981 and the direction stipulated therein as well as the provisions contained in Regulation 103 of the regulations framed under the U.P. Intermediate Education Act only provide for a preference/preferential treatment and priority to a candidate seeking compassionate appointment. In the event of the availability of a vacancy, an eligible candidate seeking appointment on compassionate ground if found to be suitable for the same can be accommodated as against such a vacancy but the filling up of the vacancy cannot be postponed in anticipation of a claim by a person seeking appointment on compassionate ground. For redressing the grievances of such person if the requisite conditions are satisfied such a person can be accommodated as against a supernumerary post, depending on the exigencies of the situation, who can thereafter be adjusted any where against a substantive vacancy becoming available.

In the aforesaid connection, it may be noticed that the Apex Court in its decision in the case of Sher Singh v. Union of India AIR 1984 SC 2001, had an occasion to consider the significance of the expression ''Preference'' in the context of Section 47(1)H under the Motor Vehicles Act, 1939. The expression ''preference'' it was indicated meant, ''prior right'', ''advantage'' precedence etc., pointing out that other things being equal, the preferential criteria should be held to be the balancing factor.

The Apex Court considered the significance of the expression ''preference'' in yet another decision in the case of the Government of Andhra Pradesh Vs. P. Dilip Kumar and Another, . It was pointed out that the word ''preference'' as understood in the ordinary parlance means "preferring or choosing as more desirable, favouring or conferring a prior right". While noticing the above, the Apex Court in its aforesaid decision had indicated that in such a situation, the purpose and object sought to be achieved by the insertion of the preference clause has to be seen. The ratio of the aforesaid decision clearly points out that the real purpose of the insertion of such a preference rule has to be taken into account and it must also be ensured that the preference rule is utilised to realise the object for which it had been inserted.

Considering the facts and circumstances in the present case, sufficient ground has been made out for interference by this Court.

In the result this writ petition succeeds in part with a direction to the District Inspector of Schools to reconsider the matter in regard to the grant of approval to the appointment of the Petitioner in the light of the observations made hereinabove within a period not later than two months from the date of the 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 dependent of an employee dying-in-harness who was required to be accommodated as against the vacancy in question and the necessity for the filling up of the post continued to exist and further there was no irregularity in the appointment in question, in that event, the Petitioner will be entitled to payment of salary from the date of the appointment granted to him provided he has discharged the duties attached to the office.