B. Amit Sthalekar, J.@mdashLearned counsel for the petitioners is permitted to add respondent No. 6 in the array of the parties. This writ petition has been filed by the petitioners seeking quashing of the order dated 7.6.2008 whereby approval to the appointment of the petitioners on the post of class-IV has been declined.
2. There is an Institution known as Lalmani Inter College, Reona, District Kanpur Nagar. Earlier the institution was a High School, which was upgraded to Inter College on 1.4.1991. When the institution was still High School there were two posts in Class-IV category.
3. According to the petitioners, the petitioner No. 1 was appointed in the class-IV on 18.2.1989, the petitioner No. 2 was appointed in class-IV on 25.12.1991 and the petitioner No. 3 was appointed in the class-IV on 30.12.1991 in pursuance of their respective appointment orders. The petitioners also joined the institution in Class-IV post. According to the petitioners, after the selection of the petitioners all the requisite papers regarding selection were forwarded to the District Inspector of Schools, Kanpur Dehat for approval. It is also stated by the petitioners that Reona at the relevant point of time came under the jurisdiction of the District Inspector of Schools, Kanpur Dehat. After creation of the new district of Kanpur Nagar it is the District Inspector of Schools, Kanpur Nagar, who is the competent authority. The petitioners had earlier filed writ petition No. 8299 of 1999 alongwith one Shashi Narain, which was dismissed by this Court vide order dated 22.2.2008 with a direction to the District Inspector of Schools to take a decision in the matter after giving an opportunity of hearing to the petitioners. It is also stated that in the said writ petition an interim order was granted on 12.3.1993 and a direction was issued to the respondents to treat the petitioners in service and pay their salary provided the petitioners appointment has been made within the sanctioned posts. Subsequently in compliance of the order of this Court the impugned order dated 7.6.2008 has been passed whereby claim of the petitioners for salary under the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 has been rejected on the ground that on an enquiry made from the Manager of the Committee of Management one Anil Kumar Tiwari, who is and was the manager even at the time of the petitioners were appointed, it has been stated by the Manager that he was not aware of any such appointment and that there was no record available regarding the appointment of the petitioners in class-IV post.
4. I have heard Sri Siddharth Khare, learned counsel for the petitioners and learned standing counsel for the State-respondents. List has been revised. None appears for the respondent Nos. 4 and 5 although a counter-affidavit has been filed by Sri R.K. Saxena.
5. Sri Siddharth Khare submits that at the time when the petitioners were appointed in the year 1991 in Class-IV the vacancies were notified. In the judgment of Full Bench in the case of Radha Raizada v. Committee of Management, 1994 (2) ESC 345 (FB) (All), it was provided that all the vacancies should be advertised. It was also held by a Division Bench of this Court in
6. From a perusal averments made in para-6 of the said counter-affidavit, it is seen that respondents themselves admitted that information regarding appointment of the petitioners was communicated to the District Inspector of Schools on 25.1.1992 after a delay of one month. There was delay in communicating the selection and appointment of the petitioners but it cannot be said that there were no papers or documents regarding the appointment of the petitioners as claimed by the respondents in the impugned order dated 7.6.2008. The averments in the impugned order that merely because the Manager of the Committee of Management of the Institution had stated that he had no knowledge nor any record was available regarding appointment of the petitioners, therefore, the appointment of the petitioners was suspicious, is a contradiction of the averments of the respondents in para-6 of the counter-affidavit filed by them in Writ Petition No. 8299 of 1993. In the said counter-affidavit it is also admitted that there were five existing posts in class-IV in the institution in question.
7. In the impugned order a further plea has been taken that the appointment of the petitioners has been made in contravention of the provision of Regulation 101 of Chapter HI of the Regulations framed under the U.P. Intermediate Education Act, 1921. The Regulation 101 contemplates that before the vacancies advertised in class-IV, prior approval of the District Inspector of Schools has to be taken.
8. This point has already been clarified by the Division Bench of this Court in the case of Jagdish Singh v. State of U.P. and others, 2006 (3) ESC 2055. Before issuing the advertisement prior approval of the District Inspector of Schools is not necessary but after the selection has been made the papers are required to be forwarded to the District Inspector of Schools for approval prior to appointment for purpose of payment of salary under the Payment of Salaries Act, 1971. Para 22 of the judgment reads as under:
22. In view of the aforesaid, we are of the considered opinion that prior approval contemplated under Regulation 101 is prior approval by the District Inspector of Schools after completion of process of selection and before issuance of appointment letter to the selected candidate.
9. Even otherwise Regulation 101 of Chapter III of the Regulations was introduced on 30.7.1992 whereas the appointment of the three petitioners was made prior to 30.7.1992, Therefore, in any case the said Regulation would not apply on the date when the petitioners were appointed.
10. The Division Bench in Jagdish Singh (Supra) has further referred to the case of Om Prakash v. District Inspector of Schools, Badaun and another, 1982 UPLBEC 232. Para 9 of the judgment reads as below:
9. First issue, which has arisen in these appeals, is interpretation of ''prior approval'' as used in Regulation 101 of Chapter III. Prior to insertion of Regulations 101 to 107 in U.P. Intermediate Education Act with effect from 30th July, 1992 there was no express provision under the U.P. Intermediate Education Act, 1921 and the Regulations framed thereunder requiring approval of appointment of Class III and Class IV employees, although the provisions were there in the U.P. Intermediate Education Act, 1921 regarding approval of appointment of teachers. A Division Bench of this Court in Om Prakash v. District Inspector of Schools, Budaun and others, 1982 UPLBEC 232, while considering the appointment of Class IV employee took the view that there is no provision for approval of appointment of Class IV employees. Regulations 101 to 107 were added providing for the appointment of dependent of deceased employee and a procedure thereof............................
Paras 1 and 2 of the Division Bench judgment in the case of Om Prakash (Supra) read as under:
1. The post of a Chaukidar in the S.K. Inter College, Baudaun fell vacant because of the death of the then incumbent Iqbal Husain. Sri D.S. Chauhan who was at that time officiating as Principal of the college asked the local Employment Exchange to send names of eligible candidates for the post of Chaukidar. Eleven names were sent, they were asked to appear at the interview which was fixed for 31st January, 1981. Some out of the eleven candidates appeared and they were interviewed by the principal. After the interview, the principal selected the petitioner as a suitable candidate. In due course by a written order he was appointed as Chaukidar of the college. The petitioner''s grievance is that though he had been appointed and though he was working on the post over since his appointment but the District Inspector of Schools was not paying his salary. On the other hand, he has passed an order on 18th February, 1981 refusing to pay the petitioner''s salary.
2. Learned standing counsel submits that the order of appointment of the petitioner was invalid because the Inspector''s approval was not obtained. The learned counsel has not been able to invite our attention to any regulation which requires approval of the Inspector for appointment of a person to the post of Chaukidar which is a class IV post. This argument hence has no merit..............
11. Thus in view of the settled legal position and the claim of the respondents in the impugned order being contrary to the averments made in the counter-affidavit filed in the earlier Writ Petition No. 8299 of 1993, the impugned order dated 7.6.2008 is an absolutely illegal and arbitrary order and is quashed.
12. The writ petition is allowed. A direction is issued to the respondent No. 6, the District Inspector of Schools, Kanpur Nagar, who has filed counter-affidavit in the present writ petition, to consider the claim of the petitioners for payment of salary on the post of class-IV employee. The petitioners shall be entitled to salary in terms of the provision of Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971. This exercise shall be completed by the respondent No. 6 within a period of one month from the date a certified copy of this order is received by him.
