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JOINT DIRECTOR OF EDUCATION,AZAMGARH REGION & ANOTHER versus UDAI RAJ VISHWAKARMA & ANOTHER

High Court of Judicature at Allahabad

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Joint Director Of Education,Azamgarh Region & Another v. Udai Raj Vishwakarma & Another - SPECIAL APPEAL DEFECTIVE No. 87 of 2003 [2007] RD-AH 1842 (6 February 2007)

 

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. 32

Reserved on 13.09.2006

Delivered on 06.02.2007

Special Appeal No. (87) of 2003

Joint Director of Education, Azamgarh

Region, Azamgarh and another

Vs.

Udai Raj Vishwakarma and another

Hon'ble S. Rafat Alam, A.C.J.

Hon'ble Sudhir Agarwal, J.

This intra-court appeal under the Rules of the Court arises against the judgment dated 9.7.2002 passed by Hon'ble Single Judge allowing the writ petition of the petitioner-respondent (hereinafter referred to as ''petitioner').

The facts in brief are that Vindheshwari Inter College, Tulsi Nagar, Azamgarh (hereinafter referred to as "College") is a recognised and aided Intermediate College and governed by the provisions of the U.P. Intermediate Education Act, 1921 (hereinafter referred to as "1921 Act"), the U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred "1971 Act") and U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as "1982 Act"). The post of Principal fell vacant due to retirement of Sri Raj Kumar Gupta the then Principal of the College on 30.6.1994 whereagainst one Sri Raghunath Pandey, Lecturer (English), who was the senior most Lecturer in the College was promoted as ad-hoc Principal under the provisions of the U.P. Secondary Education (Removal of Difficulties) Order, 1981 (hereinafter referred to as the "First Order") read with Section 18 of 1982 Act, which resulted in a short term vacancy on the post of Lecturer (English) in the College. The aforesaid short-term vacancy of Lecturer could have been filled in by observing the procedure prescribed under the U.P. Secondary Education (Removal of Difficulties) (Second) Order, 1981 (hereinafter referred to as the "Second Order").  It is said that Committee of Management on 27.10.1993 had passed a resolution constituting a Selection Committee consisting of Sri Jayant Kumar Jaiswal, Purushottam Jaiswal and the Principal of College authorizing them to make selection for ad-hoc appointment against the short-term vacancies available or likely to occur in future in the College. The said committee on 3.7.1994, advertised the post of English (Lecturer) on the notice board of the College pursuant whereto the petitioner and six more candidates applied. The selection committee interviewed the aforesaid candidates on 24.7.1994 and on the basis of the quality point marks and interview the petitioner was selected and recommended. The management vide its resolution dated 24.7.1994 resolved to appoint petitioner in short term vacancy of Lecturer and an appointment letter was issued on the said date itself pursuant whereto petitioner joined the College on 1.8.1994. It is said that relevant papers of the appointment of petitioner sent by the management through Special Messenger were received in the office of District Inspector of Schools (in short the ''DIOS') on 1.8.1994 but he did not communicate any decision thereon for seven days. Even thereafter salary of the petitioner was not paid despite repeated requests and representations. Rather vide letter dated 7.8.1995 the DIOS informed the College, referring to the management's letter dated 16.5.1995 that a number of documents in respect to the appointment of petitioner were required namely application forms submitted by the various candidates pursuant to the advertisement, the quality point chart, interview chart, management's resolution and the basis on which the quality points were awarded. He also enquired when seven candidates had applied why the quality point chart and interview chart mentioned about four candidates only. The management thereafter sent a quality point chart dated 9.8.1995 of all the seven candidates. The management also sent letter dated 9.8.1995 stating that the documents pertaining to appointment of the petitioner are again being submitted for perusal and necessary action at the earliest. The DIOS vide order dated 4.9.1995 however declined to grant approval on the ground that ban on appointment was imposed vide G.O. dated 30.7.1991. The petitioner challenged the order dated 4.9.1995 in Writ Petition No. 28591 of 1995, which was dismissed vide judgment dated 16.10.1995 on the ground of alternative remedy since the order impugned in the writ petition was appealable under para 7 of the First Order. Thereafter, it appears that the petitioner preferred an appeal dated 25.11.1995 before the Joint Director of Education, Azamgarh. After giving an opportunity of oral hearing to the management and the petitioner, the Joint Director of Education, Azamgarh vide order dated 28.2.1996 rejected the said appeal whereagainst the aforesaid writ petition was filed which has been allowed by the Hon'ble Single Judge vide judgment under appeal.

Sri Abhinav Upadhyay, learned Standing Counsel appearing on behalf of the appellant contended that from the record of the writ petition itself it was evident that the very appointment of petitioner was not in accordance with the procedure prescribed under the Second Order and therefore it was void ab initio and the Hon'ble Single Judge having failed to consider this aspect of the matter has erred in law in allowing the writ petition only on the ground that no counter affidavit was filed though the facts were self evident from a bare perusal of the order passed by the appellate authority as well as other documents placed on record by the petitioner himself. He contended that it was incumbent for the Hon'ble Single Judge before allowing the writ petition and issuing a mandamus to the appellants for payment of salary to the petitioner to consider whether his appointment was strictly in accordance with law since only thereafter the petitioner could have been entitled for salary from the State Exchequer. He pointed out that Sri Raj Kumar Gupta, the then Principal of the College on attaining the age of superannuation, retired on 30.6.1994 and therefore the vacancy of the Principal occurred on 1.7.1994 and not earlier thereto. The management said to have passed a resolution on 30.6.1994 itself authorizing Sri Raghunath Pandey, Senior most Lecturer (English) to officiate as ad-hoc Principal of the College and also authorized the Manager to take further action for verification of signature of Sri Raghunath Pandey as officiating Principal of the College. The DIOS verified signatures of Sri Raghunath Pandey, as officiating Principal vide letter dated 23.8.1994. It is therefore urged that neither Sri Raghunath Pandey could be treated to have been promoted on 1.7.1994 itself on ad-hoc basis as Principal of the College under First Order since such promotion was permissible only if the vacancy has actually continued for a period of 60 days after sending requisition to the commission nor the management did possess any power to make ad-hoc promotion earlier thereto nor it would result in a vacancy on the post of Lecturer. Moreover no order of promotion was issued promoting Sri Raghunath Pandey as officiating or ad-hoc Principal of the College and on the other hand, on the retirement of erstwhile Principal, only his charge was handed over to Sri Raghunath Pandey the senior most Lecturer and he was  authorized to look after the work of Principal without their being any actual order of promotion issued to him. In the circumstances there did not occur any short term vacancy on the post of Lecturer and hence there was no occasion for the management either to make any advertisement on 3.7.1994 or to make any selection on 24.7.1994 and the entire proceedings alleged to have been conducted by the management are illegal and contrary to the statutory provisions namely First and Second Order read with Section 18 of 1982 Act. He also pointed out that the management could not produce any material to show that the documents of appointment of petitioner were ever submitted in the office of the DIOS on 1.8.1994 and on the contrary for the first time, some documents were made available on 16.5.1995 and therefore the entire story set up by the petitioner that the papers were received in the office of the DIOS on 1.8.1994 is incorrect and not supported by the material available on record. It is thus contended that the Hon'ble Single Judge erred in allowing the writ petition only on the ground that an ad-hoc appointment could not be replaced by another ad-hoc without considering the fact as to whether the appointment of the petitioner was in accordance with law or not.

Per contra, Sri R.K. Jain, learned Senior Advocate assisted by Sri Rahul Jain, Advocate appearing on behalf of petitioner- submitted that under 1982 Act, the selection process could have been initiated even in respect to the anticipated vacancies and therefore the management passed resolution on 27.10.1993 itself constituting a selection committee for filling in the vacancies likely to occur in the College pursuant whereto an advertisement was published on 3.7.1994. The petitioner was selected and appointed vide appointment letter dated 24.7.1994. The petitioner joined on the post of Lecturer on 1.8.1994 and since then is continuously discharging his duties. He also submitted that papers of his appointment were received in the office of DIOS on 1.8.1994 but the entire file pertaining to the said appointment was misplaced in the office of the DIOS whereafter on his request the said papers were again made available on 16.5.1995 but without considering the same, DIOS on wholly irrelevant ground declined approval. The appeal was also rejected by the Joint Director of Education erroneously. Relying on Division Bench judgments of this Court in Prabhu Narain Singh Vs. Deputy Director of Education, Varanasi and another, 1977(3) ALR 391, Lalit Mohan Misra Vs. District Inspector of Schools, 1979 ALJ 1025 and Ashika Prasad Shukla Vs. District Inspector of Schools, Allahabad and another, 1998(3) UPLBEC 1722, he contended that even if the appointment of the petitioner was made without first sending the papers to the DIOS, yet the failure of the DIOS for seven days in communicating his disapproval would validate his appointment after expiry of seven days from the date papers were ultimately received in his office and therefore the appointment of the petitioner stood validated in any case w.e.f. 8.8.1994 or in any case after 23.5.1995 and therefore, the petitioner is entitled to get salary then since his appointment stood validated thereafter. He submitted since the procedure prescribed under the Second Order has been followed by the management and the petitioner is also working for the last more than 10 years, the judgment of the Hon'ble Single Judge does not warrant any interference.

We have heard rival submissions, perused the record of the appeal as well as the writ petition and the relevant statutory provisions applicable in this case.

It is not disputed by the learned counsel for the parties that appointment in the College is governed by the provisions of 1982 Act and Removal of Difficulties orders issued thereunder. In our view a mandamus directing the appellants to pay salary to the petitioner could have been issued only if the appellants are under statutory obligation to pay salary. It is no doubt true that the College being aided and recognized institution, liability of payment of salary is upon the State Exchequer under 1971 Act and therefore once a teacher or other staff has been validly appointed in the College, the salary would be payable under 1971 Act. In case of any default a writ of mandamus would lie. Thus it leads to the question whether the appointment of the petitioner was validly made in the College since his right to claim salary would depend upon validity of his appointment and not otherwise. Since this aspect has not been dealt with by the Hon'ble Single Judge in the judgment under appeal initially we ware of the view to remand the matter to the Hon'ble Single Judge but the learned counsels for the parties pointed out that this case is almost more than a decade old and all the relevant documents are already available on record therefore the issue may be considered and decided at this very stage which would protect the parties from further agony of long drawn litigation and would expedite the matter. Accordingly, we proceed further to consider ourselves whether the petitioner was validly appointed.

It is admitted by the parties that the then principal of the College retired on 30.6.1994 and therefore a substantive vacancy on the post of Principal occurred on 1.7.1994. In the absence of any regular appointment on the post of Principal, an ad-hoc appointment could have been made under Section 18 of 1982 Act read with First Order. Section 18 of 1982 Act as it stood on the statute book on 30.6.1994/1.7.1994 is reproduced as under:-

"18. Ad hoc teachers-(1) Where the management has notified a vacancy to the commission in accordance with the provisions of this Act, and the post of such teacher has actually remained vacant for more than two months, the management may appoint by direct recruitment or promotion a teacher, on purely ad hoc basis, in the manner hereinafter provided in this section.

(2) A teacher, other than a Principal or Headmaster, who is to be appointed by direct recruitment, may be appointed on the recommendation of the Selection Committee referred to in sub-section (9).

(3) A teacher, other than a Principal or Headmaster, who is to be appointed by promotion, may in the manner prescribed be appointed by promoting the seniormost teacher possessing prescribed qualifications-

(a) in the trained graduate's grade, as a lecturer, in the case of a vacancy in lecturer's grade;

(b) in the Certificate of Teaching grade, as a teacher in the trained graduate's grade, in the case of vacancy in trained graduate's grade.

(4) A vacancy in the post of a Principal may be filled by promoting the seniormost teacher in the lecturer's grade.

(5) A vacancy in the post of a Headmaster may be filled by promoting the seniormost teacher in the trained graduate's grade.

(6) For the purposes of making appointments under sub-sections (2) and (3), the Management shall determine the number of vacancies, as also the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories of persons in accordance with the rules or orders issued by the State Government in this behalf. If in determining the vacancies it is found that persons belonging to such categories are not holding such number of posts as should have been held by them in accordance with such rules or orders, then the vacancies shall be so determined that first and every alternate vacancy shall be reserved for the persons of such categories until the required percentage of posts is held by them.

(7) After determining the number of vacancies as provided in sub-section (6) the Management shall within fifteen days from the date of the commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Board (Second Amendment) Act, 1992 intimate the vacancies to be filled by direct recruitment to the District Inspector of Schools. If the Management fails to intimate such vacancies within the said period of fifteen days, the District Inspector of Schools may, after verification from such institution or from his own records, determine such vacancies himself.

(8) The District Inspector of Schools shall, on receipt of intimation of vacancies or as the case may be, after determining the vacancies under sub-section (7), invite applications, from the persons possessing qualifications prescribed under the Intermediate Education Act, 1921 or the regulations, made thereunder, for ad hoc appointment to the post of teachers, other than Principal or Headmasters in such manner as may be prescribed.

(9) (a) For each district, there shall be a Selection Committee for selection of candidates for ad hoc appointment by direct recruitment comprising

(i) District Inspector of Schools, who shall be the Chairman;

(ii) Basic Shiksha Adhikari;

(iii) District Inspectress of Girls' Schools, and where there it no such Inspectress, the Principal of the Government Girls' Intermediate College and where there are more than one such college, the seniormost Principal of such Colleges and where there is no such College, the Principal of the Government Girls' Intermediate College as nominated by the State Government.

(b) The Selection Committee constituted under clause (a) shall make selection of the candidates, prepare a list of the selected candidates, allocate them to the institutions and recommend their names to the Management for appointment under sub-section (2).

(c) The criteria and procedure for selection of candidates and the manner of preparation of list of selected candidates and their allocation to the institutions shall be such as may be prescribed.

(10) Every appointment of an ad hoc teacher under sub-section (1) shall cease to have effect from the date when the candidate recommended by the Commission of the Board joins the post.

(11) The provisions of Section 21-D shall, mutatis mutandis, apply to the teachers who are to be appointed under the provisions of this section."        (Emphasis added)

The procedure for ad-hoc appointment against a substantive vacancy is provided in the First Order and clauses, 2, 3 and 4 thereof, as they stood at the relevant time i.e. on 30.6.1994/1.7.1994 are reproduced as under:-

"2. Vacancies in which ad hoc appointment can be made.- The management of an institution may appoint by promotion or by direct recruitment a teacher on purely ad hoc basis in accordance with the provisions of this Order in the case of a substantive vacancy caused by death, retirement, resignation, or otherwise.

(as substituted by Second Order)

3. Duration of ad hoc appointments.-Every appointment of an ad hoc teacher under Paragraph 2 shall cease to have effect when a candidate recommended by the Commission or the Board, as the case may be, joins the post.  (as substituted by Third Order)

4. Ad hoc appointment by promotion.-(1) Every vacancy in the post of the Head of an institution may be filled by promotion-

(a) in the case of an Intermediate College, by the senior-most teacher of the institution in the lecturers'  grade and in the case of a High School, by the senior-most teacher of the institution in the trained graduate (L.T.) grade. (as substituted by Third Order)

(b) in the case of a High School raised to the level of an Intermediate College, by the Headmaster of such High School;

(c) in the case of a Junior High School raised to the level of a High School, by the Headmaster of such Junior High School.

(2) Every vacancy in the post of a teacher in Lecturers grade may be filled by promotion by the senior-most teacher of the institution in the trained -graduate (L.T.) grade.  

(3) Every vacancy in the post of a teacher in the  trained graduate (L.T.) grade shall filled by promotion by the senior-most teacher of the institution in the trained under-graduate (C.T.) grade.

(4) Every vacancy in the post of a teacher in the trained undergraduate (CT.) grade shall be filled by promotion by the senior- most teacher of the institution in the J.T.C. grade or B.T.C. grade.

Explanation.-For the purpose of Clause (1) to (4) of this paragraph, the expression "senior-most teacher" means the teacher having longest continuous service in the Lecturer's grade or the trained Graduate (L.T.) grade, or trained undergraduate (C.T.) grade, J.T.C. or B.T.C. grade, as the case may be."

Where a short term vacancy is to be filled in on ad-hoc vacancy the matter is governed by the Second Order and para 2 which provides procedure thereof is reproduced as under:-

"2. Procedure for filling up short-term vacancies.-(1) If short-term 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 senior-most teacher of the institution, in  the next lower grade. The Management shall immediately inform the District Inspector of Schools of such promotion along with the particulars of the teacher so promoted.

(2) Where any vacancy referred to in Clause (1) cannot be filled by promotion, due to non-availability 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 along with 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. Ma-1993/XV-7(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 "senior-most 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 under-graduate (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) short-term vacancy which is not substantive and is of a limited duration."

Thus on occurrence of substantive vacancy of the Principal on 1.7.1994, the management could not have filled in the same without complying the procedure under Section 18 read with First Order. The management could make ad-hoc appointment only when no substantive appointment could have been made on the recommendation of the commission, and the post has actually remained vacant for a period of more than two months. It is true that on retirement of the Principal since it is the office of the head of the institution and cannot be allowed to remain vacant and somebody has to look after day to day administrative work, the charge has to be handed over to someone who would look after day to day work but handing over charge for the purpose of looking after day to day work, would not result or cause by itself in ad-hoc promotion on the post of Principal and/or result in a short term vacancy on the post of Lecturer from which such ad-hoc promotion on the post of Principal would be made. This aspect has been considered by this Court in Special Appeal No. 935 of 1999 (Smt. Vijay Rani Vs. Regional Inspectress of Girls Schools Region-I, Meerut and others) decided on 27.11.2006 and it has been observed:-

"It can be said that the Petitioner-Appellant was given only current duty charge in addition to her substantive post and this arrangement did not result in promotion to the post of which, the current duty charge was handed over."

Moreover under Section 18 read with First Order it is clear that an ad-hoc appointment could be resorted to only if the vacancy has continued to be actually vacant for a period of more than two months from the date of sending requisition to the commission and prior to that the management has no power to make any appointment even on ad-hoc basis under the First Order. This aspect has also been considered in detail by this Court in Smt. Vijay Rani (Supra) and it has been held that if a substantive vacancy occur and cannot be filledin on regular basis on the recommendations of the commission, ad-hoc appointment in the circumstances mentioned in para 2 of the First Order read with Section 18 may be made but in no way in such a case any provision of Second Order would be attracted and if the procedure and the contingencies contemplated under Section 18(1) are not satisfied the appointment is illegal and would not confer any right upon the incumbent for the reason when the law requires something to be done in a particular manner any other mode is prohibited and anything done otherwise is illegal. Therefore, for the purpose of ad-hoc appointment on a substantive vacancy, Second order would have no application at all. In the facts of this case since the substantive vacancy occurred on 1.7.1994 the management has no authority or jurisdiction to make appointment on ad-hoc basis on the said post on 3.7.1994 or 24.7.1994 as the case may be and such an appointment cannot be justified by reference to the provisions of Section Order. Thus in fact there did not occur any short term vacancy on the post of Lecturer since the senior most Lecturer was at the best could have been give charge of the office of Principal and this would not have resulted in a vacancy on the post of Lecturer. Thus in the absence of any vacancy, no valid appointment could be made in July 1994.

Moreover even the Second Order confers power upon the management to make short term appointment only by following the procedure prescribed thereunder and not otherwise. Para 2 of the Second Order provides where a short term vacancy has occurred, the management shall immediately take steps to fill in the same by making an 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 short term vacancy cannot be filled in by promotion due to non-availability of a teacher in the next lower grade possessing prescribed minimum qualification, it can be fill in by direct recruitment observing the procedure prescribed in para 2 (3) of Second Order. It requires that the management shall intimate vacancy to DIOS and would also notify the same on the notice board requiring the candidates to apply to the Manager of the institution. Thereafter a selection shall be made on the basis of the quality point marks. The compilation of quality point marks shall be prepared under the personal supervision of head of the institution. 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 case of his failure to communicate within seven days of the receipt of the papers sent by the Manager shall deem approval and appoint selected candidate. 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 the 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 the selection but before appointment. A well defined and unambiguous procedure for short term appointment has been provided in the Second Order which does not admit of any doubt. In the case in hand, there is nothing on record to show as to when the management intimated the vacancy to DIOS. Since the vacancy of the Principal itself occurred on 1.7.1994 there was no occasion for the management to convey any short term vacancy to DIOS before its alleged advertisement on 3.7.1994 since none has resulted before that. The record is totally silent about the fact that management at any point of time notified the short term vacancy to DIOS as provided in para 3(i) of the Second Order. Moreover, even the proceedings which have been placed on record do not inspire any confidence and appear to have been prepared for the benefit of the petitioner only. It is said that the advertisement of the short term vacancy was published on the notice board on 3.7.1994. It is not the case of the petitioner that the vacancy was advertised in two news papers having wide circulation as held by a Full Bench of this Court in Radha Raizada Vs. Committee of Management 1994 (3) UPLBEC 1551 decided on 12.7.1994. The learned counsel for the petitioner relying on Ashika Prasad Shukla (Supra) contended that it was held therein that the vacancies advertised and the appointment made prior to the decision of Radha Raizada (Supra) would not be invalidated merely because the vacancy was not notified in two news papers of wider circulation in addition to the notification on the notice board of the College. We find that this Court in para 14 of the judgment  in Ashika Prasad Shukla (Supra) held that appointment made prior to the decision in K.N. Dwivedi Vs. District Inspector of Schools, 1994 (1) UPLBEC 461 and Radha Raizada (Supra) would not be invalidated merely on the ground that vacancy was not advertised in two news papers having wider circulation. It would be useful to notice that K.N. Dwivedi (Supra) was a case decided on 13.1.1994 and Radha Raizada (Supra) was decided on 12.7.1974. In the case in hand though it is claimed that the vacancy was notified on the notice board on 3.7.1994 but interview was held on 24.7.1994 and therefore it is not a case where the appointment was made before decision in the aforesaid two cases. Hence the dictum laid down in Ashika Prasad Shukla (Supra) protecting appointments made prior to the aforesaid judgment would not apply to the case in hand. The obstructions in the way of petitioner do not rest here itself. We further find that the record of the management has been manipulated like anything. Firstly it is contended that interview was held on 24.7.1994. The alleged chart of quality point marks and interview prepared by the selection committee has been placed on record as Annexure-3 to the writ petition which shows that seven candidates had applied for the aforesaid post but the interview was held and quality point chart was prepared only in respect to four candidates namely, Sri Umesh Chandra Upadhyay, Vijay Kumar Yadav, Om Prakash Singh and the petitioner himself. In respect to other three candidates namely, Sri Radhey Shyam Yadav, Sri Ram Kumar Yadav and Sri Umesh Chandra Yadav nothing has been said. Moreover on page 22 of the paper book of the writ petition at serial No. 6 the name of Sri Ram Kumar Yadav son of Sri Ram Sahai Yadav has been subsequently added by scoring out the name of Sri Subhas Chandra Mishra son of Sri Suraj Nath Sharma though in the column of signature Sri Subhas Chandra Mishra has signed. The aforesaid chart is said to have been prepared by the selection committee on 24.7.1994 and on the same date appointment letter is said to have been issued by the Manager of the College appointing petitioner on the post of Lecturer (English) which shows that neither there was any occasion nor any resolution of the committee of management was actually passed to appoint the petitioner on the basis of aforesaid recommendation. The Manager himself issued letter of appointment on 24.7.1994. Thereafter though it is claimed that the papers pertaining to appointment were received in the office of DIOS on 1.8.1994 but there is nothing on record to substantiate the same. It appear that the Manager sought approval of DIOS vide his letter dated 16.5.1995 pursuant whereto DIOS sent letter dated 7.8.1995 informing management about various deficiency in the documents which included the fact that though seven candidates were said to have been interviewed but chart shows only four candidates. Thereafter it is said that the management sent requisite papers including the quality point marks prepared by the selection committee in respect to all the seven candidates. A photocopy of the said chart has been placed on record as annuexure-8 to the writ petition and a perusal thereof shows that the same is dated 9.8.1995 meaning thereby no such chart was prepared by the selection committee on 24.7.1994 or interview of all the seven candidates was not taken on the said date. Moreover in the chart dated 9.8.1995 the three candidates whose name were not shown in the earlier qualify point chart are shown to  have obtained 22, 21 and 22 quality point marks on the basis of their academic qualification but in the interview they are said to have been allotted 1, 2 and 2 marks respectively. We fail to understand whether the chart was actually prepared by the selection committee on 24.7.1994 or 9.8.1995. It shows that the document in fact did not exist but for the first time steps were taken for seeking approval of the petitioners appointment only in May, 1995 without furnishing all the requisite documents and when DIOS pointed out deficiency in documents, the same thereafter were prepared to make up the deficiency. The documents thus ex facie show that no steps for making appointment in July, 1994 were in fact taken in accordance with law. We have no hesitation in holding that the appointment of the petitioner was not made in accordance with the procedure prescribed under the Second Order and the appointment made by the Manager himself on 24.7.1994 was clearly illegal. It is worthy to notice at this stage that the power to appoint a teacher is vested in the management and only when the management resolve to appoint a selected candidate, letter of appointment can be issued under the signature of the Manager. In the case in hand the selection itself having been taken on 24.7.1994 and there is nothing to show that any meeting of the committee of management was convened on the same date, we do not find any material on record to show that the committee of management resolved to appoint the petitioner on the post of Lecturer and hence the alleged letter of appointment by which the Manager appointed the petitioner as Lecturer (English) of the College cannot be said to be a valid and legal order conferring any right of the salary from and against the appellants. This is an additional reason to non suit the petitioner.

Learned Standing Counsel further contended that the appointment could not be made by the Manager of the College without prior approval of DIOS. In the instance case since the appointment letter was issued on 24.7.1994 without even communicating the documents to the DIOS, it was illegal and void ab initio. Learned counsel for the petitioner, however contradicted the aforesaid submission and placing reliance on the judgments of this Court on Lalit Mohan Misra (Supra), Prabhu Narain Singh (Supra) and Ashika Prasad Shukla (Supra) contended if the appointment is made without obtaining prior approval, it would be validated after expiry of the period of seven days from the date of communication of papers to the DIOS and if he has failed in communicating the same within seven days the appointment itself would not be void ab initio for all through but stand validated after expiry of the requisite period and application of deeming fiction.

We thus proceed on to consider the effect of non-observance of the provision pertaining to "prior approval". Para 2(3)(II) of Second Order requires "prior approval" before making appointment of a teacher in a short term vacancy. It is not a case of mere approval. 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 16-F of 1921 Act as it stood prior to amendment of the said provision by U.P. Act No. 16 of 1972. The selection was made by the selection committee on 2.8.1972 and papers were forwarded to DIOS who approved selection and appointment vide order dated 10.8.1972. Thereafter the management passed resolution on 25.5.1973 terminating service of the petitioner Prabhu Narain Singh and communicating him by letter dated 18.6.1973 and also forwarding the said resolution to DIOS who refused to accord approval vide order dated 13.7.1973. Whereagainst management preferred an appeal before Regional Deputy Director of Education, which was allowed on 13.5.1975 on the ground since Sri Prabhu Narain Singh was not appointed in accordance with Section 16-F 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 10.8.1972. Referring to Section 16-F(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 the management it would not result in denial of right to be appointed to an approved candidate as a teacher due to the purposeful lapse on the part of the management and the management cannot take advantage of its 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 16-F(1) of the Act read with Regulation 6 Chapter-III and Regulation 16 Chapter-II of the Regulations and therefore before termination, approval of DIOS was necessary. Considering the effect from Regulation 16 Chapter II in the scheme of the Act and the Regulations framed thereunder the Court after referring to an earlier Division Bench judgment in Janta Inter College Nagra Vs. District Inspector of School Balia and others, Civil Misc. Writ Petition No. 4497 of 1969 decided on 26.11.1971 observed that once a person has been selected by a selection committee and his name has been approved by the DIOS, the Committee of Management is bound to appoint him and the Manager is bound to issue a letter of appointment for which the Committee of Management is bound to grant the officer authorization. It is held that the issuance of appointment letter in such circumstances was a mere ministerial act, non-observance thereof would not disentitled a person who otherwise is entitled to be treated as appointed under the statute.  In our view the aforesaid judgment has no application to the facts and provisions applicable in this case particularly since Section 16-F talked of "approval" and not "prior approval". It is true that approval under Section 16-F was required after making selection and before issuing appointment letter but the legislature in its wisdom has used the word "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 there is no provision like Regulation 16 Chapter III available in 1982 Act and the rules regulations framed thereunder.  This Court considered the effect of certain regulations in that case which are not applicable in the case in hand. The provisions considered therein were different and not pari materia with those contained in Second Order.

Lalit Mohan Misra (Supra) was also a case of appointment made in 1971 inasmuch as the committee of management passed resolution on 23.7.1971 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 31.7.1971. The approval was accorded by the DIOS on 3.8.1971 whereafter the appointment letters were issued. The appointees thereafter were formally allowed to join on 4.8.1971. After five years of their working, the DIOS issued a letter on 9.11.1976 amending approval order dated 3.8.1971 stating that Lalit Mohan Misra and others would be treated as having been placed on probation w.e.f. 31.7.1971 i.e. three days prior to the date when the approval was accorded and accordingly also confirmed them. On representation made against the aforesaid order dated 9.11.1976 it was held by the DIOS vide order dated 17.8.1977 that Sri Lalit Mohan Misra and others will be deemed to have joined w.e.f. 4.8.1971 and not earlier thereto, whereagainst a writ petition was filed wherein the aforesaid view take by DIOS on 17.8.1977 was upheld. Considering Section 16-F of 1921 Act and Regulation 6 Chapter III 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 the DIOS or the 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 our view the aforesaid judgment considered the provisions which were differently worded framing different scope and the dispute involved in the aforesaid case was also totally different.

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 para2 (3) (II) of the Second Order and relying on the judgment of this Court in Lalit Mohan Misra (Supra) observed 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 pre-requisite conditions for deemed approval were satisfied or not and thereafter pass 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 and cannot be treated to be a binding precedent on this issue.

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 we 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 Vs. Executive Committee, Bharat Varshiya National Association and another, 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 and another Vs. Friends Coop. Housing Society Ltd. and another, 1995 (Supple.) (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 Vs. 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 1971 Act provides for "prior approval". In Director of Education and others Vs. 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 and others Vs. Cantonment Board, Kanpur and others, 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 Vs. Union of India and others- 2005 (3) ESC (Alld.) 1790 -(Para 51).

At this stage learned counsel for the petitioner pointed out that since under para 2(3) of Second Order there is a provision for deemed approval and therefore strict construction of the statute requiring "prior approval" as such may not apply and a deemed approval may be treated, if after making appointment, documents were subsequently sent to DIOS and he failed to communicate his decision within seven days. The appointment would not be invalid for all times to come. We are unable to accept the aforesaid submission in view of the binding precedent of the Apex Court providing for strict observance of the procedure prescribed under the First and Second Order. In Prabhat Kumar Sharma and others Vs. State of U.P. and others, JT 1996 (6) SC 579 the Apex Court while referring to the procedure prescribed 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 in-built procedure to avoid manipulation and nepotism in selection and appointment of the teachers by the Management to any posts in aided institution."

It is well settled when law requires something to be done in particular manner anything otherwise is prohibited and illegal and would not confer any right upon the person appointed in a manner not provided under the statute. This Court in Special Appeal No. 331 of 1992, District Inspector of Schools Vs. Naresh Chandra decided on 20.3.2006 held as under:-

"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."

In view of the aforesaid discussions thus it cannot be held that the appointment of the petitioner was made validly by observing the procedure prescribed in para 2(3) of Second Order. Besides, in the case in hand there is nothing on record to show that the papers of the selection committee such as application alongwith testimonials of the candidates and quality point marks awarded by the selection committee were sent to the DIOS on 1.8.1994 or even thereafter. We are not inclined thus to held that the appointment was validly made and the petitioner is entitled to seek a mandamus for payment of salary by the appellant.

In the result the special appeal succeeds and is allowed. The judgment dated 9.7.2002 passed by the Hon'ble Single Judge is set aside and the writ petition is accordingly dismissed. However we leave it open to the petitioner to claim salary from the management of the College in case he is discharging duties pursuant to any order issued by the management or its agent by taking such legal action as permissible in law. There is no order as to costs.

Dt/-06.02.2007

Avy


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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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