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Suryapal v. State Of U.P. And Others - WRIT - A No. 22811 of 2007 [2007] RD-AH 9283 (15 May 2007)


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                                                                                   Court No. 39

Civil Misc. Writ Petition No.22811 of 2007



State of U.P. and others

Hon'ble V.K. Shukla,J.

Petitioner has approached this court requesting therein  for payment of salary for the period  1.7.2003 to 10.11.2004 and for quashing of the order dated 8.12.2006, by means of which District Inspector of schools, Allahabad has rejected the claim of petitioner on the said front.

Contention of petitioner is that post of Class IV fell vacant on account of attaining the age of superannuation of Lala. Principal of the institution sought permission from the D.I.OS., Allahabad to fill up the said post of Class IV employee, by means of letter dated 25.8.2002 informing and intimating that vacancy has occurred on 31.8.2002. D.I.O.S.,Allahabad accorded permission to fill up the post on 27.6.2003. Petitioner submits that thereafter selection proceedings were undertaken, papers were transmitted to D.I.O.S., Allahabad and thereafter on 10.11.2004 approval was accorded to the appointment of petitioner. Petitioner submits  that he was appointed w.e.f. 1.7.2003 and as such he was entitled for salary for the said period. For consideration of his claim,  he preferred Civil Misc. Writ Petition No.23586 of 2006 and this court asked the D.I.O.S., Allahabad to consider the matter and thereafter claim has been rejected.

Sri Shiv Avtar Sharma, learned counsel for the petitioner contended with vehemence that in the present case appointment had been made after taking due permission from D.I.O..S., Allahabad as such there was no occasion to withheld payment of salary  for the period  from 1.7.2003  to 10.11.2004 and as such opinion, which have been formed is  incorrect opinion.

Sri K.K. Chand, learned Standing Counsel on the other hand contended that question of payment for said period  would not arise as issuance of appointment letter  is feasible,  only when appointment is approved by the D.I.O.S., Allahabad   under Regulation 101 of Chapter III of U.P. Act No. II of 1921 and in the present case salary has been ensured from the date  of approval, as such there is no infirmity in the same.

In order to consider respective submission Regulation 101 of Chapter III of U.P. Intermediate Education Act , 1921 is being looked into.

101 fu;qfDr izkf/kdkjh fujh{kd dss iwokZuqeksnu ds flok; fdlh ekU;rk lgk;rk izkIr laLFkk ds f'k{ks.kRrj in fdlh fjfDr dks ugh Hkjsxk

izfrcU/k ;g gS fd teknkj ds in dh fjfDr dks fujhz{kd }kjk Hkjus dh vuwqefr nh tk ldrh gS

Perusal of   Regulation 101 of Chapter III of U.P. Intermediate Education Act , 1921 would go to show that there is specific provision that appointing authority without there being prior approval from the D.I.O.S.  shall not fill up any class IV post  of duly recognised aided institution and only exception, which has been carved out is for the post of Jamadar, for which permission can be accorded by the D.I.O.S even subsequently. Thus provision is clear and categorical that no post is to be filled up except without taking prior approval from the D.I.O.S.

Division Bench of this Court in the case of Jadgish Singh etc. Vs. State of U.P. and others reported in (2006) UPLBEC 2765 has taken the view that no appointment against Class III or Class IV post in a duly recognized Higher Secondary School or Intermediate College, can be made without taking prior  approval from the District Inspector of Schools  as provided in Regulations 101 to 107 of the Regulations framed Under U.P. Act No. II of 1921.  Said Division Bench has considered the  importance of the  word prior approval and its implication  and as per the same any appointment would get life only after same gets approval and not before the same.

In view of judgement of Division Bench,  any  discharge of duty by  petitioner before prior  approval, is of no consequence, as  only when  appointment is approved, then only  incumbent  is entitled to be offered appointment.

Consequently, writ petition lacks substance and same is dismissed.




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