Pratap Kumar Ray, J. - (1.) :- In the writ application it is the grievance of the petitioner that though the petitioner was appointed for the post of Peon of Manmathapur Siksha Bhawan High School in terms of the approved panel of the District Inspector of Schools concerned but no salaries, allowance and service benefits have been released by according post appointment approval it is the case of the petitioner that due to financial embargo under Memo No. 4100-FB dated 13th December, 2000 issued by the Chief Secretary the post appointment approval has not been accorded. From the records it appears that on 2nd January, 2002 the District Inspector of Schools concerned accorded prior permission to fill up the vacancy when already the financial embargo Circular letter being Memo No. 4100-FB dated Calcutta, the 13th December, 2000 was existing. The appointment of non- teaching staff of the school is controlled by Rule 28(1) of Rules of Management of Recognised Non Government Institutions (Aided and Unaided) Rules 1969, Rule 28(l) of the said Management Rules reads thus: 28. Power of Committee.- (I)- In an aided institution the Committee shall, subject to the provisions of any Grant-in- aid Scheme or Pay Revision Scheme or any order or direction or guidelines issued by the State Government or the Director in connection therewith and in force for the time being, have the power:- (ii) To appoint non-teaching employees on permanent or temporary basis against permanent or temporary vacancies, if and when available, within the sanctioned strength of non-teaching employees and an approval by the Director or any officer authorised by him, such approval being sought for within a fortnight from the date of decision of the Committee in this behalf."
(2.) The said Management Rules 1969 is outcome of the rule making power of the State Government in terms of Section 45 of the West Bengal Board of Secondary Education Act, 1963 (hereinafter referred to as the said Act). Management Rules 1969 accordingly was framed on exercise of the power under Clause (d) subsection (2) of Section 45 as well as under sub-section (1) of the said Section. So the Management Rules, 1969 is a statutory Rule in the field of appointment of non-teaching staff of a school. Under Rule 28(l) (ii) it is clear that the Managing Committee has the power to appoint a non-teaching staff subject to the order or direction or guidelines issued by the State Government or the Director. There is no doubt that a direction was issued by the Director of School Education, West Bengal under Memo No. 1736 (21) G.A. dated, Calcutta, the 1st November, 1999 providing procedure for recruitment of non-teaching staff which provides that the prior permission to be accorded by the District Inspector of Schools concerned on the requisition of the school intimating the vacancy and after approval of the panel by the District Inspector of Schools concerned the Managing Committee will appoint the candidates. The panel is also required to be prepared following the procedure as mentioned therein. In the instant case it appears that filling up of the vacancy arise when a person is appointed in a particular post. Following the guidelines of the Director of Schools Education, West Bengal the selection process was completed by approving the panel but in view of the provisions as made under Rule 28(1) providing, inter alia, that the Managing Committee is required to follow any direction or order of the State Government the Memorandum no. 4100-FB dated 13th December, 2000 also was required to be followed in terms of Rule 28(1) of the Managing Committee. Since the Managing Committee is the appointing authority, the provision as made in the said Financial Department Memo dated 13th December, 2000 is binding to him in view of Clause (4) of the said memorandum which reads thus: "4. All the above instructions will apply mutatis mutandis to statutory bodies including local self-Government, institutions, autonomous body and corporations/undertakings owned or substantially controlled by the State Government and to institutions receiving substantial grants from Government."
(3.) Under the said Finance Department Memo a provision has been made under Clause 2(f) directing to seek prior approval of the Appointment Committee of the Cabinet before filling up the vacancy. Hence, as soon as the panel was approved by the District Inspector of Schools concerned a duty was tasted upon the Managing Committee of the school to take follow up action in terms of Clause 2(f), which is in the instant case has not been done though such order or direction of the State Government is binding to the Managing Committee and appointment is subject to such order in terms of Rule 28(1) of the Management Rules 1969. Without taking recourse to Clause 2(f) the Managing Committee issued appointment letter. Accordingly the appointment of the petitioner is dehors of the Government circular letter no. 4100- FB dated 13th December, 2000. It is now a settled legal position that an employer has the right not to appoint even a selected candidate. It is also a settled law now that a selectee of a post can not claim as a matter of right to be appointed. It is also a settled law that it is the discretion of the employer to appoint and to stop appointment. The employer is required to consider his financial problem before making any appointment and nobody can force any employer to appoint any employee. From the Finance Department Memo dated 13th December, 2000 it appears that the State of West Bengal to economise on Government expenditure issued certain economic instruction by finance budget Memo No. 1770-FB dated 27th July, 1999 and thereafter the State Government felt it necessary to cut down avoidable revenue expenditure and accordingly issued economic circular being Memo No. 4100-FB dated 13th December, 2000. Such circular letter has been issued by the Chief Secretary of the State of West Bengal. Under the Rule of business of the State Government the Chief Secretary is the authority to issue any circular letter on behalf of the State Government. In that views of the matter, the circular letter issued by the Chief Secretary is binding to all the appointing authority concerned as it is the desire of the Government not to burden the Government with financial expenditure. It is the State Government, who has the choice in their own field to appoint and/or stop appointment. No citizen can force the State Government to appoint the employees in particular posts. Having regard to such position, the decision of the Managing Committee to appoint the petitioner without seeking prior approval of the Appointment Committee of the Cabinet in terms of the said Memo dated 13th December, 2000 is dehors of the provision. It is a settled law that any appointment wherein a provision is made for seeking prior approval and/or any action where a provision is made to seek prior approval it remains ineffective unless such prior approval is accorded. Before issuance of the appointment letter accordingly the Managing Committee was required to seek prior approval of the State Government through the District Inspector of Schools concerned. It is a settled law that unless any prior approval is accorded on the basis of the circular letter any appointment if made that will be illegal and invalid. Reliance may be made to the judgment passed in the case Baijanth v. State of Madhya Pradesh, reported in AIR 1996 Supreme Court 220, judgment of three Judges Bench of the Apex Court. In that case, though it arose out of a criminal proceeding where is sanction of prosecution under Section 197 of the Code of Criminal Procedure which was required to be taken prior to taking cognizance of the offence by the learned Magistrate was the issue in question and the Apex Court answered that the entire prosecution even by subsequent sanction after cognizance was invalid but the same principle is applicable under the Service Jurisprudence and this point has been considered by the Allahabad High Court in the name of Sint. Sudha Bhatnagor, reported in 1974 Service Law Journal 306 wherein the Court held that any approval subsequent to appointment cannot validate the appointment. Having regard to such legal position it appears that in the instant case the appointment of the petitioner since was made without seeking prior approval of the State Government that is Appointment Committee of Cabinet is invalid. Having regard to such, the petitioner is not entitled to get any relief from this Court. The appointment of the petitioner accordingly stands cancelled. The writ petition accordingly stands dismissed.;