Point of Law: An appointment without prior approval under Section 101 of the Regulation would be a nullity in so far as it purports to bind the State Government to grant aid to the institution concerned for payment of salary.

JUDGMENT :

Jayant Banerji, J.

1. Heard Shri Ashok Khare, learned Senior Advocate assisted by Shri Siddharth Khare, for the appellant and learned Standing Counsel for the respondents.

2. This intra-court appeal has been filed challenging the judgment dated 27.10.2017, passed by a learned Judge of this Court in Writ-A No. 38251 of 2000 (Rambir Singh and another Vs. State of U.P. and others).

3. The case of the appellant-petitioner is that for being appointed as class IV employee in Janta Inter College, Saroorpur, Meerut (hereinafter referred to as the Institution), which is a recognized and aided institution under the provisions of the U.P. Intermediate Education Act, 1921[Act of 1921], he applied pursuant to an advertisement published in a newspaper on 21.1.1996 by the Principal of the institution. It was stated that four class IV posts had fallen vacant in the institution for various reasons and alongwith him, 18 other candidates had applied. The appellant-petitioner was found suitable, as a result of which, an appointment letter was issued by the Principal on 14.2.1996 in his favour appointing him on class IV post in the pay scale of Rs. 750-940. He submitted a joining report on 23.7.1996 which was duly accepted by the Principal on the same day. For necessary approval of the appointment, the Manager of the institution, by means of letter dated 26.2.1996 forwarded all relevant papers to the District Inspector of Schools[DIOS]. It is alleged that the DIOS did not communicate any decision on that letter.

4. It is stated that thereafter, the DIOS, after being satisfied that the appointment of the appellant-petitioner was made in accordance with law passed an order fixing salary of the petitioners in the pay scale of Rs.750-910 in the month of February 1999. The endorsement made in his service book under the signature of the DIOS and the Finance Officer has also been referred to. However, after more than five months when salary bills of the appellant-petitioner was presented in the month of June 1999, an endorsement was made that until further orders of the DIOS the salary was being stopped. After repeated enquiries by the Principal it was revealed that an enquiry was being conducted regarding appointment of the appellant-petitioner and so the salary had been withheld. Accordingly, the writ petition was filed seeking mandamus for ensuring payment of salary. Counter and rejoinder affidavits were exchanged. In the counter affidavit, it is stated that the approval letter that was made available by the Principal was found to be fabricated and on the basis of that document, the Principal obtained the salary from January 1999 to May 1999. On the basis of a complaint in June 1999, the payment of salary was stopped under order of the DIOS. It is further stated that the appellant-petitioner filed the writ petition in which an order was passed to file a counter affidavit and for payment of salary.

5. By means of the impugned judgment, the learned Judge dismissed the writ petition holding that, (a) there was no material available showing compliance of requirement of "prior approval" of the DIOS as contemplated in Regulation 101 of Chapter III of the Regulations framed under the Act of 1921 before making appointment of the petitioner; and (b) there was nothing on record to show that the appointment was made after a valid advertisement of vacancies. Relying upon two Division Bench judgments of this Court for payment of salary from State Exchequer, mandamus was declined.

6. It is the contention of Sri Ashok Khare, learned Senior Advocate appearing for the appellant-petitioner that "prior approval" for appointment was not necessary under the facts and circumstances of the case. He contends that once the financial approval regarding the appointment has been accorded by the competent authority, it would be deemed that approval had been granted and as such the requirement of "prior approval" is rendered otiose. That when salary was not being paid to the a