- (1.) R. B. Misra, J. In this petition order dated 1-5-1999 (Annexure-5 to the writ petition) passed by the District Inspector of Schools, Ghazipur, thereby, not according approval of appointment of the petitioner to the Class-IV post, has been challenged. Heard Sri V. C. Mishra, learned Senior, Advocate alongwith Sri Vikrant Pandey, learned Counsel for the petitioner as well as Sri S. S. Sharma, learned Standing Counsel for the respondents.
(2.) THE facts necessary for adjudication of the writ petition are that Sri Mahant Ram Baran Das Intermediate College, Bhurkura, Ghazipur is a college recognised and governed under the provisions of U. P. Intermediate Education Act, 1921 and the regulations framed thereunder. It appears that by virtue of retirement of Sri Deo Chand Ram, Daftari on 31-7-1998 and by virtue of the appointment of Class-IV employee Khudi Ram by promotion on temporary basis to the post of Daftari one post of Class-IV employee had fallen vacant. THErefore, the principal of the said college by letter No. 42 dated 1-9-1998 and reminder letter No. 43 dated 5-11-1998 wrote to the District Inspector of Schools sought permission for appointment to the Class-IV post temporarily/short term period. It appears that after waiting for a period of 6 months when the principal of the said college did not receive any communication from the District Inspector of Schools, the principal of the said college requisitioned the name of the applicant on 10-3-1999 from the Employment Exchange and published an advertisement dated 23-2-1999 and the interviews were conducted on 20-3-1999, thereby appointed the petitioner to the Class-IV post on 20-3- 1999. THE principal of the said college wrote a letter on 24-3-1999 (Annexure-4 to the writ petition) to the District Inspector of Schools for getting approval of the appointment and to accord financial approval, which was refused by the District Inspector of Schools on 1-5-1999 (Annexure-5 to the writ petition), the impugned order under challenge in the present writ petition, on the grounds that : (i) no permission was sought for making appointment to the said post; (ii) despite the communication on 22-3-1999 from the District Inspector of Schools to the principal that the selected candidates on compassionate grounds under the Dying-in-Harness Rules are being forwarded, however, in defiance thereto the said appointment was made; (iii) no permission of promotion to the post of Daftari was given by the District Inspector of Schools in the said college, therefore, appointment to the post of Class-IV employee could not be said to be legally made in absence of the post. Counter-affidavit has been filed on behalf of District Inspector of Schools, wherein it was asserted that the principal by a letter dated 26-2-1999 had sought permission for the appointment to the Class-IV post and prior to seeking permission had published the advertisement on 23-2-1999. In these circumstances the publication was not justified. It was also asserted on behalf of the respondents that the requisition was sent to the Employment Exchange on 10-3-1999 and for paucity of time the candidates' name could not be forwarded by the Employment Exchange. As contended on behalf of the respondents that the name of employee as a dependent of the deceased in reference to the Dying-in-Harness Rules was forwarded to the principal. In these circumstances the appointment of the petitioner was said to be illegal. Learned Standing Counsel for the respondents states that the letters dated 1-9-1998 and 5-11-1998 referred above were not part of the petition and have been placed at the stage of finalisation of the writ petition, as such these letters cannot be given effect to.
(3.) LEARNED Counsel for the petitioner has asserted that repeated request seeking permission for making appointment to the Class-IV post sought was withheld by the District Inspector of Schools without any rhyme and reason, therefore, in view of 1999 (2) LBESR 428 (Allahabad), Rajendra Yadav v. The Deputy Director of Education, VII Region, Gorakhpur and others, the approval shall be deemed to have been accorded. In the case of Rajendra Yadav (supra) Shri Krishna Inter College, Ashram Barhi, Deoria a vacancy in Class-IV post was to be accorded due to retirement of a permanent incumbent, and the principal of the said college by his letter dated 28-2-1995 reminder letters dated 30th August, 1995 and 27-11-1995 had requested for permission from the District Inspector of Schools for appointment to the Class-IV post in the said college and when these letters were not responded by District Inspector of Schools the vacancy to fulfil the Class-IV post was advertised in the local newspaper on 17- 10-1995 and after considering the various candidates the writ petitioner was appointed on 25-12-1995 and by letter dated 13-1- 1996 of the principal the District Inspector of Schools was requested to accord financial approval and in the mean time the writ petitioner was allowed to join duty on 1-1-1996. However, the District Inspector of Schools sat tight over the matter. The Writ Petition No. 16812 of 1996 was filed by Rajendra Yadav challenging the aforesaid order dated 30-7-1992, which was disposed of by this Court with a direction to decide the case by Regional Deputy Director of Education, who rejected the writ petitioner's representation on the ground that a ban was imposed for appointment by notification dated 25-7-1992, moreso in terms of provisions of Regulation 101 of Chapter III of the Regulations of U. P. Intermediate Education Act, 1921 the procedure for appointment was also not followed. The said decision of Regional Deputy Director of Education dated 22-10-1995 was challenged by way of Writ Petition No. 36935 of 1996, which was decided by this Court on 21st May, 1999 as reported above in 1999 (2) LBESR 428 Allahabad. This Court in Rajendra Yadav (supra) observed as below : " (4) Having considered the submissions made by the learned Counsel for the parties and perused the orders impugned herein, I am of the view that the petition deserves to be allowed. Regulations 101 and 107 were inserted in Chapter III of the regulations made under the U. P. Intermediate Education Act, 1921 vide Board's Notification No. 9/592 dated 28-8-1992 issued pursuant to the Government Notification No. 400/15-7-2 (1)-19 dated 30-7-1992. Regulation 101 and Regulations 103 to 107 were subsequently substituted by Notification No. 300/15-7-2 (1)/19 dated 2-2-1995. The language in which Regulation 101 is couched does not suggest that it was intended to impose as ban on appointment on the non-teaching staff in recognised and aided institutions. All that it provides is that appointing authority would not fill in any vacancy of non-teaching staff in recognised and aided institutions except with the prior approval of the District Inspector of Schools. Prior approval is necessary for filling the vacancies but in the fact situation of a given case, as the instant one, the approval may be deemed if no communication is received by appointing authority within a reasonable time. There are provisions in the Act prohibiting 'appointment' of any person as a teacher except with the prior approval of the District Inspector of Schools. Regulation 101 prohibits 'filing of vacancies of non-teaching staff. The respondent authorities have fallen into error in holding that there was ban on appointment in view of Regulation 101 of Chapter III of the Regulations. The view taken by the respondent authorities is based on misconstruction of the provisions contained in Regulation 101 of Chapter III of the U. P. Intermediate Education Act which in my opinion requires prior approval for filling in vacancies of non-teaching staff. As stated earlier in this judgment permission was sought for appointment vide letter dated 28-2-1995 followed by subsequent letters but the District Inspector of Schools did not care to respond to the request of the principal seeking permission/approval for making appointment in the vacant post. Ultimately the vacancy was advertised on 17-10-1995 and upon consideration of the inter se suitability of candidates who have applied for the post, the petitioner was selected on 25- 10-1995. Since the District Inspector of Schools failed to communicate his decision with reference to letter dated 28-2- 1995, he would be deemed to have given his approval to fill in the vacancy. " " (5) Even if it be held that prior approval is necessary as a condition precedent to issuing order of appointment, the District Inspector of Schools would in the fact situation of the case, be deemed to have accorded approval on expiry of a period of two weeks after the receipt of the letter dated 13-1- 1996 and appointment would become effective from the date of deemed approval. The District Inspector of Schools and the Regional Deputy Director of Education have rejected the petitioner's representation on misconstruction of the provisions of the Regulation 101 of Chapter III of the Regulations made under the provisions of U. P. Intermediate Education Act, 1921 and on a manifestly erroneous conclusion that the procedure for appointment was not followed. " " (6) It may be pertinent to observe that by means of the notification dated 30-7-1992 provisions has been made in Chapter III for making compassionate of the dependents of teacher and other employees dying in harness. The requirement as to prior approval of the District Inspector of Schools is, in my opinion, intended to safeguard the interest of the dependents of teachers and other employees dying in harness for whom the provision has been made in Regulations 103 to 106 for compassionate appointment. The finding recorded in the instant case is that no candidate was available for appointment on compassionate ground and, therefore, there was no question of the object sought to be achieved by Regulation 101 being frustrated in the instant case. The orders impugned herein are, therefore, liable to be quashed. " " (7) The only question that remains to be considered is whether the District Inspector of Schools in the circumstances of the case would be deemed to have accorded approval to the appointment of the petitioner. As stated (supra), the approval of the District Inspector of Schools was sought vide letter dated 13-1-1995 but the District Inspector of Schools failed to communicate his decision thereon within a reasonable time. True, Regulation 101 does not prescribed a time limit within which the District Inspector of Schools is to accord approval. The District Inspector of Schools in my opinion must exercise his powers within a reasonable time. The principle has been stated by the Supreme Court in Regional Provident Fund Commissioner v. M/s. K. T. Rolling Mills Pvt. Ltd. , JT 1995 (1) SC 138 : 1995 (1) LBESR 233 (SC), as under : "there can be no dispute in law that when a power is conferred by statute without mentioning the period within which it could be invoked the same has to be done within reasonable period, as all powers must be exercised reasonably, and exercise of the same within reasonable period would be a facet of reasonableness. " " (8) The question is as to what should be 'reasonable period' within which the District Inspector of Schools should either accord, or refuse to accord, approval under Regulation 101 of Chapter III of the Regulations. In Regulation 6 of the Chapter II provision has been made that if the District Inspector of Schools fails to communicate his decision on the proposal submitted by the Committee of Management for appointment of a teacher by promotion within three weeks from the date of receipt of the proposal he shall be deemed to have given concurrence to the proposal of the management. There are other provisions, for example Section 16-F (2), as it originally stood, where the legislature has provided for 'deemed approval' in the event of failure on the part of the competent authority to communicate his decision within two weeks. Similarly para 2 (3) (iii) of U. P. Secondary Education Service Commission (Removal of Difficulties) Order, 1981 also enjoins a duty upon the District Inspector of Schools to communicate its decision on the proposal for ad hoc appointment in short term vacancy within seven days from the date of receipt of the relevant papers failing which it shall be deemed that the District Inspector so Schools has given his approval. The District Inspector of Schools, as stated earlier in this judgment, did not communicate his decision in response to the letters dated 28-2-1995 and 13-1-1996 within reasonable time and it was by means of the letter dated 25-4-1996 (Annexure No. 10 to the writ petition) that he purports to have declined financial approval to the appointment of the petitioner. Applying the test of reasonableness as laid down by the Supreme Court in the case referred to above. I am of the considered view that two weeks from the date of receipt the letter seeking approval would be 'reasonable period' within which the District Inspector of Schools must communicate his decision to the appointing authority failing which he shall be deemed to have accorded approval. In the circumstances of the case, therefore, the District Inspector of Schools would be deemed to have accorded approval way back on or before February 1, 1996 and the petitioner is, therefore, entitled to his salary w. e. f. 1-2- 1996. " This Court in Rajendra Yadav (supra) held that : "two weeks from the date of receipt the letter seeking approval would be 'reasonable period' within which the District Inspector of Schools must communicate his decision to the appointing authority failing which he shall be deemed to have accorded approval. " On the other hand learned Standing Counsel for the respondents has referred and relied upon 2001 (2) LBESR 776 (All) ; (2001)3 UPLBEC 2619, Sunil Kumar v. District Inspector of Schools, Ghazipur and another, which has taken a different view in respect of Regulation 106 of Chapter III of the U. P. Intermediate Education Act, 1921 (that the prior approval for appointment as Clerk in the college that is on non-teaching post the prior approval of the District Inspector of Schools was held to be necessary ). In Sunil Kumar (supra) this Court has considered the judgment of this Court (Single Judge) in the case of Amit Kumar v. District Inspector of Schools, Jaunpur and others, reported in 2000 (4) ESC 2758, Allahabad and has noted as below : " (9) With regard to submission of Counsel for the petitioner that the reasons given by the District Inspector of Schools in his order dated 25-1-1996 for not approving the appointment of the petitioner is irrelevant it is to be noted that the provisions of Regulation 101 of Chapter III of U. P. Intermediate Education Act, 1921 has been held to be mandatory by the learned single Judge of this Court in the case of Amit Kumar v. District Inspector of Schools, Jaunpur and others, 2001 (1) LBESR 878 (All) ; 2000 (4) ESC 2758 (All ). In the aforesaid judgment the learned single Judge after considering the provisions of Regulation 101 has held that without prior approval of the District Inspector of Schools no appointment can be made by the management. In paragraph 8 it was held - "from the aforesaid meaning of the word 'except' it is clear that the expression 'except' has been used in Regulation 101 to mean 'only'. Therefore, the appointing authority before making appointment on a non-teaching post could make any appointment only after obtaining prior approval of District Inspector of Schools. In my opinion use of these two words 'shall' and 'except' have been used in imperative terms. And clearly express that prior approval of District Inspector of Schools is a condition precedent for making any appointment on a non-teaching post. Use of word 'except' with the prior approval of District Inspector of Schools does not leave any discretion to the appointing authority to make any appointment without obtaining his prior approval. If Regulation 101 is treated to be directory then the appointing authority could make appointment on non- teaching post even without prior approval of the District Inspector of Schools. It would result in giving power to the appointing authority to make appointment first and thereafter, obtain financial approval. This was not the intention of legislature or the rule making authority. And it clearly intended that before making any appointment the appointing authority must obtain 4 prior approval of the District Inspector of Schools. The legislative intent has to be given effect to while interpreting regulatory provisions of Regulation 101. Regulations 103 to 106 to Regulations further make it clear that the Regulation 101 cannot be construed as permissive or directory. Further, the procedural safeguard contained in Regulation 101, making it obligatory for the appointing authority in matters of making appointment on non-teaching posts, not to fill the vacancy except with the prior approval of the District Inspector of Schools, has an element of public interest. Regulation 103 providing for appointments under the Dying in Harness Rules makes it obligatory on the District Inspector of Schools to provide appointment to dependents not only in the institution where the deceased was working but any other institution, therefore, the only reasonable interpretation which can be given to the two words 'shall' and 'except' used in Regulation 101 is that these expressions are imperative and the regulatory provisions contained in Regulation 101 is mandatory and cannot be treated to be directory. The requirement of obtaining prior approval of District Inspector of Schools is not an empty formality. It is in public interest. The appointment of petitioner being contrary to Regulation 101 did not vest any right in him either to claim his appointment as regular or any salary. ";