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1998 Supreme(All) 1061
IN THE HIGH COURT OF ALLAHABAD
D. K. Seth, J.
RAJESH KUMAR DWIVEDI - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
C. M. W. P. 27857 Of 1998
Decided On : 09/16/1998
Arun Tandon, V.K.RAI
An appointment made without prior approval can be subsequently approved and will be effective from the date of approval.
Headnote:
EDUCATION - APPOINTMENT OF CLERK - APPROVAL BY DISTRICT INSPECTOR OF SCHOOLS - REFUSAL - GROUNDS - SUBSEQUENT BAN ON APPOINTMENTS - EFFECT - APPROVAL GRANTED AFTER BAN - VALIDITY.
Fact of the Case:
The petitioner was appointed as a clerk in an institution pursuant to a resolution passed by the Committee of Management. The appointment letter stipulated that the order of appointment would be enforceable only with the approval of the District Inspector of Schools. The petitioner joined the school and the papers were forwarded to the District Inspector of Schools for approval. The District Inspector of Schools refused to grant approval on the ground that no approval could be granted under the rules. The petitioner challenged this order and the court directed the District Inspector of Schools to reconsider the question of approval and specify the defects in the appointment. The District Inspector of Schools then refused approval on the ground that the post was filled up without prior permission and that there was a ban on appointments. The petitioner challenged this order.
Finding of the Court:
The court held that the District Inspector of Schools could not refuse approval on the ground that the prior approval was not sought for, as the appointment letter itself specified that it would be effective only when the approval is granted. The court also held that the ban on appointments imposed after the petitioner's appointment could not be applied retrospectively. Therefore, the court quashed the order of the District Inspector of Schools and directed her to consider the question of grant of approval afresh.
Issues: 1. Whether the District Inspector of Schools could refuse approval on the ground that the prior approval was not sought for, when the appointment letter itself specified that it would be effective only when the approval is granted? 2. Whether the ban on appointments imposed after the petitioner's appointment could be applied retrospectively?
Ratio Decidendi: 1. The court held that the District Inspector of Schools could not refuse approval on the ground that the prior approval was not sought for, as the appointment letter itself specified that it would be effective only when the approval is granted. The court relied on the decision in Janta Higher Secondary School Society v. Aniruddh Prasad Dwivedi, where it was held that if an appointment is made without prior approval then till the approval is granted the same will be in-effective. However, if approval is subsequently granted in that event, the same would be operative with effect from the date of approval. It was not the law that if appointment is made without prior approval, then Inspector cannot grant approval subsequently. Such an approval if granted subsequently it may not be effective in respect of the post but will certainly be effective in respect of the future. 2. The court held that the ban on appointments imposed after the petitioner's appointment could not be applied retrospectively. The court held that no executive order could be effected retrospectively.
Final Decision: The court quashed the order of the District Inspector of Schools and directed her to consider the question of grant of approval afresh.
( 1 ) THE petitioner alleges that he was appointed in the post of clerk in the institution pursuant to a resolution dated 31. 8. 1997 passed by the Committee of Management. An appointment letter was issued to him on 1st September, 1997, which stipulates that the order of appointment would be enforceable only with the approval of the District Inspector of Schools as is apparent from annexure-5. The petitioner joined the school on 2nd September. 1997. On 7th September, 1997, the papers were forwarded by the Committee of Management to the District Inspector of schools. By an order dated 22nd September, 1997, the District Inspector of Schools had refused to grant approval to the appointment on the ground that no approval could be granted under the rules. This order was challenged by means of Writ Petition No. 33547 of 1997 since been disposed of by an order dated 13lh October. 1997. By the said order, the District Inspector of schools was directed, to reconsider the question of approval and specify the defects In the appointment and communicate the reason to the petitioner within the stipulated time. Despite communication of the said order, the District Inspector of Schools decided the question long after by the order dated 27th February, 1998. The reason as given in the said order dated 27th february, 1998 was that the post was filled up without the prior permission of the District inspector of Schools and, therefore, the approval was not granted and the papers were returned. Pursuant to the order dated 13th October, 1997, passed by this Court, no approval could be granted since there has been a ban on every kind of appointment by reason of a Government order dated 3rd November, 1997. This order was communicated to the petitioner by a letter dated 28th February, 1998, which have since been challenged in this writ petition.
( 2 ) MR. Arun Tandon. learned counsel for the petitioner contends that the earlier refusal to grant approval having been quashed, the same ground cannot be taken once again and in effect in the order dated 27th February, 1998 that ground was not the ground for refusal of approval, on the other hand a different ground has been set up which on the facts and circumstances of the case, is inapplicable. Therefore, the District Inspector of Schools should be directed to grant approval to the appointment of the petitioner. He also contends that the reason that the appointment was given without permission cannot sustain in view of the stipulated condition in the order of appointment that the same would be effective oniy on receipt of the approval. This non-approval does not prevent a person from working in (he school but it would only entitle the appointee to receive salary only after the approval is granted. Therefore, according to him, the objection raised by Sri V. K. Rai, learned counsel for the respondents cannot be acceded to.
( 3 ) MR. V. K. Rat, learned Brief Holder for the respondents, on the other hand, contends that since the appointment of the petitioner was in violation of the Regulation 101, Chapter III of the regulations framed under the U. P. Intermediate Education Act, 1921 and the same being a question of law can very well be raised even at this stage. The question of approval having been considered after the ban is imposed, the ban is very much applicable. Alternatively, he contends that even if the ban cannot be applicable in case of the pelitioner. still then in view of the infirmity in the appointment itself, no approval could be granted. According to him the appointment being void, it Is not open to the petitioner to question the order passed by the district Inspector of Schools.
( 4 ) I have heard both the learned counsel at length.
( 5 ) THE facts remain that the earlier order dated 22nd September, 1997 was subject-matter of challenge in Writ Petition No. 33547 of 1997, wherein the said order was quashed pursuant to the order dated 13th October, 1997 passed on the said writ peti
