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1998 Supreme(All) 708
HIGH COURT OF ALLAHABAD
D.K.Seth
RAKESH KUMAR DIVEDI
Versus
DIRECTOR OF EDUCATION OF SCHOOLS U P ALLAHABAD
Decided On : 20 July 1998
C. M. W. P No. 21372 of 1990
Shyamji Gaur,
Prior approval from the District Inspector of Schools (DIS) is required for ad hoc appointments against short-term vacancies under Para 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981. The deemed approval provision in Para 2(iii) is subject to the conditions that the management has waited for seven days after the receipt of particulars by the DIS and that the appointment letter is issued only after the expiry of seven days or upon receipt of the DIS's approval.
Headnote:
EDUCATION - TEACHER APPOINTMENT - SHORT TERM VACANCY - APPROVAL OF DISTRICT INSPECTOR OF SCHOOLS - UTTAR PRADESH SECONDARY EDUCATION SERVICES COMMISSION (REMOVAL OF DIFFICULTIES) (SECOND) ORDER, 1981 - PARA 2 - INTERPRETATION - PRIOR APPROVAL REQUIRED - DEEMED APPROVAL - CONDITIONS - PROCEDURE TO BE FOLLOWED - APPOINTMENT WITHOUT COMPLIANCE - INVALID.
Fact of the Case:
The petitioner was appointed as a C.T Grade Teacher on a short-term vacancy in a school. The appointment was made without obtaining prior approval from the District Inspector of Schools (DIS) as required under Para 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981. The petitioner claimed that the appointment was valid as the DIS had not communicated his decision within seven days of receiving the particulars of the appointment, resulting in deemed approval. The DIS, however, disapproved the appointment.
Finding of the Court:
The court held that the appointment of the petitioner was invalid as it was made without complying with the mandatory procedure prescribed in Para 2 of the Second Removal of Difficulties Order. The court interpreted the provisions of Para 2 and held that prior approval from the DIS was required for ad hoc appointments against short-term vacancies. The court further held that the deemed approval provision in Para 2(iii) was subject to the conditions that the management had waited for seven days after the receipt of particulars by the DIS and that the appointment letter was issued only after the expiry of seven days or upon receipt of the DIS's approval.
Issues: 1. Whether prior approval from the DIS was required for ad hoc appointments against short-term vacancies under Para 2 of the Second Removal of Difficulties Order? 2. Whether the deemed approval provision in Para 2(iii) applied in the present case?
Ratio Decidendi: 1. The court interpreted the provisions of Para 2 of the Second Removal of Difficulties Order and held that prior approval from the DIS was required for ad hoc appointments against short-term vacancies. The court reasoned that the expression "prior approval" in Clause (ii) qualified Clause (iv), which required the management to issue an appointment letter only after receiving the DIS's approval or, in the case of deemed approval, after the expiry of seven days from the date of receipt of papers by the DIS. 2. The court held that the deemed approval provision in Para 2(iii) was subject to the conditions that the management had waited for seven days after the receipt of particulars by the DIS and that the appointment letter was issued only after the expiry of seven days or upon receipt of the DIS's approval. In the present case, the petitioner had not waited for seven days after sending the particulars to the DIS and had issued the appointment letter within five days of the interview, which was in violation of the procedure prescribed in Para 2.
Final Decision: The court dismissed the writ petition filed by the petitioner, holding that the appointment was invalid and that the petitioner had no legal right to the post or to regularization.
In the present writ petition the petitioner has prayed for a writ of mandamus commanding the respondents to Regularise his service on the substantive post of C. T Grade Teacher and for payment of his salaries w. e. f. 15-3-1982 till date.
2. It is alleged by the petitioner that there was a short term vacancy in the in stitution known as Gramodyogik Inter mediate College, Ashok Nagar Bharswan, Fatehpur, for which a notice was duly pasted in the notice board of the institu tion after sending intimation to the Dis trict Inspector of Schools on 10-2-1982 fixing 7-3-1982 as date for interview. The petitioner had appeared in the interview on 7-3-1982 and was selected for the ap pointment. The institution issued an ap pointment letter to the petitioner on 12-3-1982. Pursuant to the such appointment letter, the petitioner had joined his duties on 15-3-1982. It is alleged that the school authority had sent the particulars of the candidates selected and also the list of the quality point marks allotted to them to the District Inspector of Schools concerned on 30-4-1982 and sought for the approval to the appointment of the petitioner given on 12- 3-1982. The District Inspector of Schools had disapproved the appoint ment of the petitioner.
3. On this back ground, Sri A. N. Tripathi, learned Counsel for the petitioner, contends that since the petitioner was appointed on short term vacancy under the Uttar Pradesh Secon dary Education Services Commission (Removal of Difficulties) (Second), Order, 1981 and the procedure prescribed in paragraph 2 for such recruitment has been complied with and as the District Inspector of Schools having not intimated his approval within seven days, the ap pointment of the petitioner shall be deemed to have been approved and as such the petitioner is entitled to the payment of his salary from 15-3-1982 as well as he is also entitled for regularisation.
4. Sri K. R. Singh, learned standing Counsel appearing on behalf of the respondents, on the other hand, submits that the provisions of paragraph 2 of the Uttar Pradesh Secondary Education Ser vices Commission (Removal of Difficul ties (Second) Order, 1981, hereinafter referred to as Second Removal of Difficul ties Order, having not been complied with, the appointment of the petitioner is in valid. The petitioner, having been refused approval by a specific Order, the question of prior approval does not arise. He points out that from the pleadings, it appears that there was infraction in the procedure for appointment as is provided in para 2 of the Second Removal of Difficulties Order. Ac cording to him, the provisions provided in para 2 are mandatory, infraction of which would lead to the invalidity of such ap pointment. He had pointed out that the papers were sent to the District Inspector of Schools on 30- 4-1982 and the approval was refused on 15-5-1982 which, according to him, is within time. Then, again he points out that there cannot be any ap pointment before the expiry of seven days from the date of receipt of details alleged to have been sent. He specifically argued that there is no possibility of regularisation of petitioners service as there has been no regular/substantive vacancy.
5. Sri AN. Tripathi, learned Counsel for the petitioner, in reply, relying on the decision in the case of Radha Raizada & Ors. v. Committee of Management, Vidyawati Darbari Girls Inter College & Ors. 1994 (3) UPLBEC 1551, rendered by A Full Bench of this High Court, submits that no prior approval from the District Inspector of School is required when such ad hoc appointment is to be made under the Second Removal of Difficulties Order. He also relied on a decision in the case of Arvind Mishra and Others v. Deputy Direc tor of Education Gorakhpur Region, Gorakhpur& Ors. , 1996 (3) UPLBEC 1984 in order to contend that the ad hoc ap pointment does not require any prior ap proval. He then relied on a decision in the case of Shri Niwas Singh v. District Inspec tor of
