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2019 Supreme(All) 689
IN THE HIGH COURT OF ALLAHABAD
PANKAJ MITHAL, SAUMITRA DAYAL SINGH, JJ.
Sri Krishna - Appellant
Versus
Joint Director of Education and Others - Respondent
Special Appeal No. 159 of 2019
Decided On : 06-03-2019
Advocate Appeared:
For the Appellant : Rahul Jain
For the Respondent: C.S.C., Prashant Kumar Singh
Headnote:
U.P. Intermediate Education Act – 1921 – Section (3) – Payment of Salaries of Teachers and Other Employees Act –1971 – hereinafter referred to as Payment of Salaries Act – hereinafter referred to as DIOS – section(1) – section (2) Sub-section (3) – Section 16-E –Section 16-F – petitioner-appellant against the dismissal of his writ petition for direction to pay his salary as a Class-IV employee of the Institution Ram Prasad Sarvajanik Inter College –Held, the appointment of the petitioner-appellant was de hors the statutory provision without any prior approval, it is nullity as has been held in the case of Union of India & another[2018(7) ADJ 16 Union of India & another Vs. Raghuwar Pal Singh] is not at all incorrect or illegal no mandamus could have been issued in favour of the petitioner-appellant for the payment of salary – writ petition dismissed. (Para 40,41)
Facts of the case:
Petitioner-appellant against the dismissal of his writ petition for direction to pay his salary as a Class-IV employee of the Institution Ram Prasad Sarvajanik Inter College.
Findings of the court:
The appointment of the petitioner-appellant was de hors the statutory provision without any prior approval, it is nullity as has been held in the case of Union of India & another [2018(7) ADJ 16 Union of India & another Vs. Raghuwar Pal Singh] is not at all incorrect or illegal no mandamus could have been issued in favour of the petitioner-appellant for the payment of salary.
Result : writ petition dismissed
1. Heard Sri Rahul Jain, learned counsel for the petitioner-appellant, learned Standing Counsel for the respondents No. 1, 2 & 5 and Sri Achal Vats, holding brief of Sri Prashant Kumar Singh, learned counsel for the respondents No. 3 and 4.
2. The appeal has been preferred by the petitioner-appellant against the dismissal of his writ petition for direction to pay his salary as a Class-IV employee of the Institution Ram Prasad Sarvajanik Inter College, Rura Kanpur Dehat (hereinafter referred to as "College").
3. The aforesaid College is recognised and is governed by the provisions of the U.P. Intermediate Education Act, 1921 (hereinafter referred to as an Act) It receives grant-in-aid from the State Government for payment of salary to its teachers and staff in accordance with the provisions of U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 (hereinafter referred to as Payment of Salaries Act).
4. Two posts of Class-IV employees at the College fell vacant on 30.07.1997 and 07.07.1999 respectively. The Principal after seeking permission to fill up the said post issued notice on 05.02.2001 inviting applications. The selection was held on 25.02.2001 and on its basis the petitioner-appellant was appointed vide order dated 26.02.2001 with the clear stipulation that his selection is subject to the approval of the District Inspector of Schools (hereinafter referred to as "DIOS") and that he would be paid salary from the date of approval. In pursuance thereof the petitioner-appellant joined on 01.03.2001. The DIOS accorded approval to his appointment vide order dated 27.03.2001.
5. The Joint Director of Education vide order dated 31.05.2001 directed the DIOS not to pay the salary of the petitioner-appellant unless a decision with regard to his appointment is taken by the Regional Level Committee in view of the Government Order dated 19.12.2000. Thus, the DIOS vide order dated 11.06.2001 stopped the payment of the salary of the petitioner-appellant.
6. It is on the aforesaid facts and circumstances that the petitioner-appellant invoked the writ jurisdiction of this court for the payment of his salary as a Class-IV employee w.e.f. 01.06.2001 and for the quashing of the orders of the DIOS dated 11.06.2001 and that of Joint Direction of Education dated 31.05.2001.
7. The learned Single Judge ignoring orders of the DIOS and the Joint Director of Education by the impugned order held that as the appointment of the petitioner-appellant was in clear violation of the statutory provisions, it is a nullity and as such he is not entitled to any salary.
8. The orders of the DIOS and the Regional Level Committee in the above legal position were held to be of no consequence. The appointment was held to be a nullity as it was made without the prior approval of the DIOS as contemplated vide Regulation 101 of the Regulations framed under the Act.
9. Sri Rahul Jain, learned counsel for the petitioner-appellant submits that as the selection/appointment of the petitioner-appellant was subsequently approved by the DIOS, he would acquire the status of a Class-IV employee from the date of the approval.
10. The decisions relied upon by the learned Single Judge in holding the appointment to be nullity do not apply as in those cases the appointments were made without the approval and there was no approval to the selection/appointment even subsequently whereas in the case of the petitioner-appellant approval has been granted subsequently by the DIOS meaning thereby that there was no defect in the procedure of selection/appointment of the petitioner-appellant
11. The respondents on the other hand contend that Regulation 101 of Chapter III of the Regulations mandates for the prior approval of the DIOS before the appointment of a Class-IV employee at the Institution and any infringement therein would vitiate the appointment. Since the appointment of the petitioner-appellant was made before the approval, it is
