- (1.) HEARD Sri Som Kartik, learned counsel for the petitioner and learned Standing Counsel appearing for the District Inspector of Schools.
(2.) UNDER challenge in the instant writ petition is an order passed by the District Inspector of Schools, Lucknow on 21.09.2002 (Annexure-7 to the writ petition) whereby approval for payment of salary to the petitioner, who was appointed against a Class-IV post in Sahai Singh Girls Inter College, Narahi, Lucknow (hereinafter referred to as the College), has been refused. Learned counsel for the petitioner submits that the reasons indicated in the impugned order refusing approval for payment of salary to the petitioner are not legally tenable and further that the petitioner having been duly appointed is entitled to be paid salary of the post as ever since his appointment he has been discharging his duties. On the other hand, learned Standing Counsel appearing for opposite party no.1 submits that even though the reasons indicated by the D.I.O.S. in the impugned order dated 21.09.2002 may not be tenable but the petitioner has to stand on his own legs and has to satisfy the Court that he was appointed in terms of the rules/regulations applicable to appointment against Class-IV post in privately managed government aided institutions. In this regard he states that as per requirement of Regulation 101 of chapter 3 framed under U.P. Intermediate Education Act, 1921, the appointing authority can not be permitted to fill up any vacancy in a recognized aided institution against the posts of non-teaching staff without prior approval of the District Inspector of Schools. He also states that since in the instant writ petition no approval as required under Regulation 101 was granted by the District Inspector of Schools., as such, petitioner is not entitled to be paid his salary, the appointment being against the aforesaid regulation. In support of his contention, learned Standing Counsel has placed heavy reliance on a case decided by a Division Bench of this Hon'ble Court reported in [(2006) 2 UPLBEC 1851], Jagdish Singh Vs. State of U.P. and Others. On the basis of the said judgment, it has been urged by the learned Standing Counsel that in the instant case since no permission to fill up the vacancy was taken by the Principal/Management of the College before issuing the advertisement, as such, requirement of Regulation 101 of Chapter 3 (supra) having not been fulfilled, appointment of the petitioner is rendered unlawful. I have considered the arguments advanced by the counsels for respective parties and also perused the documents available on record. The District Inspector of Schools while passing the impugned order dated 21.09.2002 refusing to grant approval for payment of salary to the petitioner has indicated following two reasons; 1. that the post in question was to be filled in by a reserved category candidate. 2. that the post could be filled in only by way of making compassionate appointment for which several candidates may be eligible. The impugned order passed by D.I.O.S. on 21.09.2002 does not indicate as to how, in his view itself, the post in question was to be filled in by a reserved category candidate. The order also does not indicate as to from which particular reserved category candidate the vacancy was liable to be filled in. The order also does not disclose as to whether there was any candidate seeking his appointment against the vacancy in question on compassionate ground, predecessor of whom, at the relevant point of time, was working in Sahai Singh Girls Inter College, Narahi, Lucknow. It is silent on the fact as to whether there were any other candidate/candidates seeking his/their appointment on compassionate grounds whose predecessors had been working in some other institution in the District of Lucknow.
(3.) AS regards the first reason indicated by the District Inspector of Schools, it may be noticed that there are a total number of eight sanctioned posts in the college out of which five were being occupied from amongst the reserved category candidates belonging to Other Backward Classes and two were being occupied by the reserved category candidates belonging to Scheduled Caste. Thus, the sole vacancy which is the subject matter of the instant writ petition was filed in by appointing the petitioner by the Principal of the institution. In this undisputed position of vacancy and occupancy of the posts, it can safely be inferred that the vacancy in question could not have been reserved for any reserved category for the reason that in case the vacancy was allowed to be filled in from amongst the candidates belonging to either of the two reserved categories, the total reservation would have exceeded the reservation quota and hence the vacancy in question could not be filled in from amongst the reserved category candidates. Thus, in this view of the matter, the first reason indicated by the District Inspector of Schools in the impugned order falls to ground. Regarding the second reason indicated by the District Inspector of Schools in the impugned order that since the proceedings for giving compassionate appointment in the girls schools in the district was going on, as such, it was not justified to grant approval for payment of salary to the petitioner, it is noticed that neither the order nor the counter affidavit filed by the District Inspector of Schools. anywhere disclose as to what number of candidates at the relevant point of time were seeking their appointment on compassionate grounds and also as to what number of schools, where compassionate appointments were being sought, did not have any vacancy to accommodate the aspirants of compassionate appointment. In absence of any such details either in the impugned order or in the counter affidavit, the second reason indicated by D.I.O.S. in the impugned order dated 21.09.2002 also falls to ground. In respect of the contention of learned Standing Counsel that the petitioner has to stand on his own legs and that he has to establish that his appointment was made in terms of the regulations framed under U.P. Intermediate Education Act, 1921, suffice would it be to say that the impugned order does not state anywhere that the appointment of the petitioner was not made as per the regulations . The reasons for refusal to grant approval for payment of salary to the petitioner, as indicated in the impugned order is not that the requirement of Regulation 101 (supra) was not fulfilled.;