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SMT.KAMLA & ANOTHER versus D.I.O.S. II,& OTHERS

High Court of Judicature at Allahabad

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Smt.Kamla & Another v. D.I.O.S. Ii,& Others - WRIT - A No. 12838 of 2001 [2006] RD-AH 8917 (3 May 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.26

CIVIL MISC. WRIT PETITION NO. 12838 OF 2001

Smt. Kamla & another

Versus

District Inspector of Schools-II, Allahabad and others

HON. SHISHIR KUMAR, J.

By means of this writ petition the petitioners have approached this Court for issuing a writ of certiorari quashing the order dated 16.10.2000 Annexure-10 to the writ petition passed   by respondent no.1 and a writ of mandamus directing the respondent no.2 to consider and decide the representation of the petitioners.

The facts arising out of the writ petition are that there is Arya Kanya Inter College which comes in grant in aid and Payment of Salary Act 1971 is fully applicable to the institution. One Smt. Bachchi who was working as Class-IV employee in the institution was to retire on 30.11.1999. Principal being the appointing authority of Class-IV sent an application to respondent no.1 on 31.8.1999 requesting to grant the permission for publication and approval for making appointment on account of retirement of Smt. Bachchi. The said application was duly received in the office of respondent no.1. Another post in the institution in question was also to be filled on account of retirement of one Ram Sajivan Tripathi on 31.1.2000. Then another application-dated 30.10.19999 was sent to respondent no.1 with a request for granting permission as required under Regulation 101. Respondent no.1 has not passed any order and has not communicated in spite of the fact that a communication to this effect for granting an approval as required under the law was sent to respondent no.1. Then the said post was advertised and it was also placed on the Notice Board. A Selection Committee was constituted and various persons submitted their applications for appointment in Class-IV. An interview was held on 19.11.1999 and petitioner no.1 has been selected and appointment letter was issued on 20.11.1999. Petitioner no.2 was also appointed by order-dated 22.1.2000.

As required under the law, the papers were sent to the respondents for granting financial approval for the purpose of payment of salary but respondent no.1 without any notice or opportunity has rejected the claim of the petitioner on the ground that no prior permission as required under Chapter-III Regulation 101 has been taken and no publication in the newspaper has been made and the third ground taken by respondent no.1 is that no verification of the post has been obtained by the respondent.

Aggrieved by the aforesaid order the petitioners have approached this Court. It has been brought to the notice of the Court by the counsel for the petitioners that the contention raised by the respondents that the vacancy has not been published is also not correct. A supplementary affidavit has been filed and the advertisement and the vacancy, which was notified in the notice board, have been annexed with the supplementary affidavit. Annexures-1 and 2 to the writ petition dated 31.8.99 and 30.10.99 respectively are the letters for granting prior approval as required under the Regulation. It has further been submitted on behalf of the petitioners that the order passed by the respondents is an order without application of mind and without assigning any reason. Therefore, it will be presumed that respondent no.1 has passed an order without taking into consideration the fact and the relevant record, which was before respondent no1. Reliance has been placed by the counsel for the petitioner upon a judgment of this Court reported in 1999 (3) A.W.C. 2123 Rajendra Yadav vs. Deputy Director of Education, Gorakhpur and it has been submitted that this Court while considering the similar type of cases has held that if an intimation as provided under the Regulation 101 has been sent for the purpose of approval and no communication has been received by  the concerned authority, within the reasonable time, then if appointment is made, then approval cannot be rejected on the ground that no prior approval as provided under the regulation has been obtained. The Court has taken the reasonable period and has held that the reasonable period will be two weeks. In such circumstances, the petitioners submit that as intimation to that effect was sent but nothing was communicated by respondent no.1, therefore after following the proper procedure as provided under the law the appointments have been made. Further reliance has been placed by the counsel for the petitioners on the judgment in Writ Petition No. 8505 of 2000 and has submitted that this Court while considering the similar issue has held that if the intimation has been sent and the District Inspector of Schools has not communicated or granted any permission in spite of the fact that the letter was received in the office of the District Inspector of Schools, the Principal of the institution had no option except to proceed with the selection process. Hon'ble Single Judge has held that in such circumstances if the appointment has been made, the authority cannot refuse approval only on the ground that no prior approval as provided under the regulation has been obtained. In view of the aforesaid facts, the counsel for the petitioners submit that as intimation has already been sent but no communication by respondent no.1 was given, therefore, the appointments have been made and if the appointments were made after following the due procedure, therefore, respondent no.1 was not justified in rejecting the claim of the petitioners vide its order dated 16.10.2000.

A counter affidavit has been filed in which respondents have justified the order passed by respondent no.1 only on the ground that as no prior approval, which is a mandatory requirement under Regulation 101, has been obtained; therefore, respondent no.1 was justified in rejecting the claim of the petitioner. Further it has been stated that as there are several persons, who are to be appointed on compassionate ground, therefore, no direct appointment can be made.

I have heard the learned counsel for the petitioners and the Standing Counsel and have perused the record. From the record it is clear that on the basis of the vacancy of retirement of two Class-IV employees intimation was sent on 31.8.1999 granting approval and the same was received in the office of respondent no.1 on the same day. Then again on 30.10.1999 the similar request was made by the Principal of the Institution and the same was also received in the office of respondent no.1 but when the respondent no.1 has not communicated to this effectt granting any prior permission or refusing the permission, there was no option for the institution except to make the appointment. Respondent no.1 has not given any reasoning to this effect that the selection of these persons is not after following the proper procedure as provided under the rule. Respondent no.1 while rejecting the claim of the petitioners has passed only two lines' order without assigning any reason. Therefore, in my opinion it will be presumed that the order passed by respondent no.1 is an order of non-application of mind without assigning any reason. Therefore it cannot be sustained.

In view of the aforesaid fact the writ petition is allowed and the order dated 16.10.2000, Annexure-10 to the writ petition passed by respondent no.1 is hereby quashed. The respondent no.1 is directed to pass appropriate detailed and reasoned order according to law, regarding granting financial approval relating to the appointment of the petitioners within a period of two months. If necessary, the respondent no.1 will afford an opportunity to the petitioners. No order as to costs.

3.5.2006

V.Sri/-


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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