- (1.) S. K. Phaujdar, J. Through this writ petition the petitioner prayed for the writ of mandamus for directing the respondents to pay to him the arrears of salary as also his monthly salary every month and for other consequential reliefs.
(2.) AS per averments in the writ peti tion, the petitioner's father had been a class IVth employee in Subhash Higher Secon dary School, Rajpura, Meerut. Preparatory to his retirement, the petitioner's father had taken leave from 1. 9. 1992 to 31. 12. 92. In the consequent leave vacancy the petitioner was appointed as a temporary class IVth employee and, it is said, his appointment was approved by the District Inspector of Schools, Meerut (DIGS, in short ). In an ticipation of the superannuation of the petitioner's father on 31. 12. 1992, the Prin cipal of the Institution, in his capacity as the appointing authority, issued an advertise ment for that post on 1. 11. 1992. It was pub lished in the notice-board of the concerned institution. Several applicants including the petitioner filed their applications. The petitioner was selected as he had already gathered the experience aforementioned and had acquainted himself very well with that job. He was appointed by the Principal in the vacancy created on the retirement of his father. The petitioner stated that he had a better educational qualification and ex perience and was the person best suited for the job. The Principal wrote to the DIGS for granting approval to the appointment of the petitioner which was, according to the petitioner, only a financial approval. The DIGS, however, did not respond. The Prin cipal had to write to him again but till the date of filing of the writ petition, no response came from the DIGS. The petitioner, according to the averment in the writ petition, has been working continuous ly in class IVth grade in the institution but he was not paid any salary since 1. 1. 1993. Accordingly, this writ petition has been filed. On presentation of the writ petition, a direction was issued to the DIGS to pay to the petitioner the salary legally payable to him or to show cause. The State has come up with a case that the temporary appointment of the petitioner was approved on 12. 1. 1993. It was stated further that the retirement of Sri Ram Singh could not be accepted under the law w. e. f. 31. 12. 1992 as he should have worked on the date of superannuation. It was stated further that the Head Master of the institution had withheld the truth to show that the petitioner was working since 1. 1. 1993 when the petitioner himself had on 4. 1. 1993 indicated about retirement of one person. The Head Master of the institution was informed clearly by the office of the DIGS that no direct appointment in the post of clerks and Class IVth employees would be made as any vacancy would first be available to dependents of persons dying-in- harness. The Head Master was informed in writing on 7. 1. 1992 regarding such reser vation. It was stated that approval of the appointment against a temporary vacancy could not have been taken to be an approval of the appointment against a permanent vacancy. It was contended that the petitioner could not have been appointed by the Head Master without approval of the DIGS and he was not entitled to any pay nor was he entitled to any relief as he was never appointed legally in the institution. Certain facts are not disputed. The father of the petitioner had been a Class IVth employee in the concerned institution. He had taken leave from 1. 9. 1992 till 31. 12. 1992. The leave vacancy was filled up through the petitioner and his temporary appointment was approved by the DIGS. From 1. 1. 1993, the Principal of the institu tion took the post to have been vacated permanently on superannuation of the father of the petitioner. He appointed the petitioner against that vacancy, admittedly, without prior approvaland sent a recom mendation to the DIGS for according ap proval. The DIGS had intimated the prin cipal that any post falling vacant in the category of class Illrd and Class IVth employees were to be filled up through the dependents of persons dying-in-harness. The appointment of the petitioner was never approved whether prior or after he was appointed by the Principal.
(3.) THE learned counsel for the petitioner stated that there was no necessity of any prior approval to fill up the post of the Class IV employees and when his atten tion was drawn to Regulation 101 in the Regulations under the U. P. Intermediate Education Act, it was contended that this provision was merely directory and not mandatory. THE learned counsel proposed to make a distinction between appointment and filling up of a post. Regulations 101 to 107 were intro duced by a notification dated 30th July, 1992. Under regulation 101 it was enjoined that the appointing authority in an ap proved or aided institution shall not fill in any vacancy in the post of a non-teaching staff without the prior approval of the DIGS. Regulation 102 requires that in such an institution any vacancy that may fall vacant due to superannuation was to be notified three months ahead of the date of superannuation. Regulation 103 speaks of a contingency when an employee dies in har ness. It provides for an appointment of one of his family members having requisite qualifications on compassionate ground. The other regulations that follow indicate how such compassionate appointments are to be made. It was contended by the learned counsel for the petitioner that regulation 101 spoke of filling up of a vacancy and not of appointment. He proposed to make a distinction between the filling up of a vacan cy and appointment and argued that the power of appointment always lies with the appointing authority, the Principal. If at all there will be any violation, according to the learned counsel, the principal may be proceeded against under the law but the appointment may not be nullified. It was argued that the power to approve any ap pointment and that too a prior approval gives an arbitrary authority to the DIGS as no guidelines have been given in the regula tions or the U. P. Intermediate Education Act as to how this power of prior approval was to be exercised. It was contended that the provisions of regulation 101 must be held ultra vires the Constitution as it had given an arbitrary power to the DIGS.;