# Amit Kumar v. D.I.O.S. and another

- **Citation:** (2001) 1 ILRA 148
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amit-kumar-v-d-i-o-s-and-another-39581
- **Pages:** 7

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2001
148
management. Had the Committee of
Management been impleaded as a party to
the suit, then it could be said that as the
plaintiff/appellant had admittedly worked
as teacher for the entire academic session
1971-72 he should be paid his salary by
the
Management
Committee
of
the
institution out of its own funds. (But it is
sad and bad that the plaintiff/appellant did
not care to implead the Committee of
Management of the institution as a party
to the suit and as such it is not possible to
grant any relief in his favour against the
institution). Non-impleadment of the
Committee of Management goes to the
root of the matter and it is not a proper
answer to over come this basic defect that
the Manager effectively represented the
Management of the Institution. This
Court is of the considered view that the
lower appellate court was perfectly
justified in finding that the suit was bad
for non-joinder of necessary parties.
Question no.2 is answered accordingly.

15. It follows from the above
discussion on the questions of law
formulated in the second appeal that the
appeal completely lacks merit and it is
destined to be dismissed.

16. This second appeal is hereby
dismissed.
However,
under
the
circumstances of the case, it is directed
that the parties shall bear their costs.

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By the Court

1. The short question that arises for
consideration in this petition is whether
the provisions of Regulation 101 of
Chapter III of the Regulations framed
under U.P. Intermediate Education Act
1All] Amit Kumar V. D.I.O.S. and another 149
1921
requiring
the
appointing
authority not to fill a vacancy of a nonteaching post in an aided and recognised
institution except with the prior approval
of District Inspector of Schools is
mandatory of directory.

2. One Ram Lala Singh was working
as Junior Clerk (in brief clerk) in an aided
and recognised institution Balika Inter
College, Shahganj, Jaunpur (in brief
institution). In the institution there was
only one sanctioned post of clerk. Ram
Lala Singh was due to retire on 31.72000.
He took medical leave from 19.6.2000 to
31.7.2000.
The
Committee
of
management (in brief management) sent a
letter on 8.1.2000 to District Inspector of
Schools (in Brief DIOS) that since Ram
Lala Singh Was due to retire on
31.7.2000, permission be granted to fill
the post of clerk. An advertisement was
issued on 20.6.2000 by the management
inviting applications to fill short-term
vacancy of clerk, which was available till
30.7.2000. The petitioner, who is son of
Ram Lala Singh, applied. The selection
committee selected him on 25.6.2000. He
was
issued
appointment
letter
on
30.6.2000 in the leave vacancy of his
father. He joined on 8.7.2000. On
10.7.2000 the manager wrote a letter to
DIOS for granting financial approval to
the appointment of the petitioner, No
approval was granted, Meanwhile Ram
Lala Singh retired on 31.7.2000 and a
substantive vacancy of clerk became
available. On 24.8.2000 the manager
wrote a letter to DIOS, intimation him
that he had already written letters on
8.1.2000,
2.2.2000,
22.3.2000,
19.4.2000,26.5.2000,20.6.2000
and
31.7.2000 for grant of permission to fill
the post of clerk. But no prior approval
has been granted by DIOS. In the leave
vacancy of Ram Lala Singh the petitioner
had been appointed and it was prayed that
appointment of the petitioner be approved
on the substantive vacancy of clerk and
financial approval be granted. It was also
prayed, in the alternative, that for making
regular
appointment
on
substantive
vacancy of clerk, which occurred on
31.7.2000, permission be granted to the
management to fill the post. The DIOS
did not pass any order. The management
on 4.9.2000 issued an advertisement in
local newspaper 'Tarun Mitra' published
from Jaunpur inviting applications for
appointment on the substantive post of
clerk. The petitioner applied and was
selected by the respondents on 20.9.2000.
The manager sent a letter to DIOS on
12.10.2000 for granting financial approval
to the appointment. The DIOS on
12.10.2000 for granting financial approval
to
the
appointment
the
DIOS
on
6.11.2000 refused to grant financial
approval on the ground that his prior
approval was not taken before making the
appointment. It is this order dated
6.11.2000 which has been challenged by
the petitioner in this writ petition.

I have heard at length Sri Indra Raj
Singh, learned counsel for the petitioner
and
Smt.
Sunita
Agrawal,
learned
Standing Counsel appearing for the
respondent no. 1.

3. The learned counsel for the
petitioner has vehemently urged that once
the management wrote a letter to DIOS
for
obtaining
prior
approval before
making the appointment of clerk, DIOS
could not withhold permission. And he
permission was to be granted within
reasonable time. He placed reliance on the
decision of this court in Rajendra Yadav
v.
Deputy
Director
of
Education,
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
150
Gorakhpur and others 1999 AWC (3)
2123 and has urged that in case prior
approval is not granted by DIOS within
two weeks it would be deemed that
approval has been granted for making
appointment and the management was
will within its right to make appointment
on the post of clerk. The learned counsel
urged that the impugned order has been
passed by DIOS without affording any
opportunity of hearing to the petitioner or
the management. He further urged that it
is not disclosed in the impugned order if
any application for appointment under the
Dying in Harness Rules was pending.
Therefore, there was no justification to
refuse
approval
of
petitioner's
appointment. The learned counsel further
urged that in view of the decision of the
apex court in Post Graduate institution of
Medical
Education
and
Research
Chandigarh v. Faculty Association and
other AIR 1998 SC 1767 that single post
cannot be reserved and it could only be
filled by direct recruitment the DIOS
could not refuse approval on the ground
that candidate under Dying in Harness
Rules was to be appointed. Learned
counsel then urged that even if the
appointment of petitioner was irregular,
once
approval
is
granted
to
the
appointment by DIOS it will be deemed
to be a valid appointment with effect from
the date of approval and in this regard he
has placed reliance on the decision of this
court in Ashika Prasad Shukla v The
District Inspector of Schools, Allahabad
and another 1998 (3) E.S.C. 2006, Rajesh
Kumar Dwivedi v. State of U.P. 1998 (4)
AWC 531 and Atul Bhatnagar v. District
Inspector of Schools Saharanpur and
others 1997 ALR (30) 627. Learned
counsel for the petitioner lastly urged that
since he worked as clerk he is entitled for
salary, it should be paid either by DIOS or
the management of the institution.

4. Smt. Sunita Agarwal, learned
standing
counsel
has
urged
that
Regulation
101
provides
that
prior
approval of DIOS has to be obtained by
the appointing authority before making
any appointment on a non-teaching post
of class III or IV, therefore, regulation
101 is mandatory and it has not been
complied
with
by
the
appointing
authority. She urged that two weeks
period for grant of prior approval under
regulation 101 could not be treated to be
reasonable as held by this court in
Rajendra Yadav (supra). She further
urged that under regulations 101 to 107 of
the
Regulations
framed
under
U.P.
Intermediate Education Act, 1921 (in
brief regulation) appointment under the
Dying in Harness Rules have to be
provided
to
the
dependent
of
the
deceased. If two weeks' period were
treated, in law, to be sufficient period,
then the interest of the dependant of the
deceased who is claiming appointment
would seriously be jeopardised. She
further urged that decision of apex court
in Post Graduate Institute of Medical
Education (supra) was not applicable to
the facts of the instant case as the single
post of clerk is to be filled by direct
recruitment. And appointments under the
Dying in Harness Rules are also made by
direct recruitment. Learned standing
counsel urged that the petitioner being the
son of the retired clerk Ram Lala Singh
the management appears to be interested
in appointing him as the advertisement
issued to fill the post of clerk was
published only in one local newspaper
"Tarun Mitra" published from Jaunpur. It
is
not
a
newspaper
having
wide
circulation. Further the advertisement is
1All] Amit Kumar V. D.I.O.S. and another 151
required to be issued in two newspapers,
therefore the management did not follow
the procedure and the appointment was
illegal and contrary to the provisions of
regulations, therefore, the petitioner is not
entitled to any salary.

5. The question is whether the
provisions of Regulation 101 of Chapter
III of the Regulations framed under U.P.
Intermediate
Education
Act
1921
requiring the appointing authority not to
fill a vacancy of a non-teaching post in an
aided and recognised institution except
with the prior approval of District
Inspector of Schools is mandatory or
directory. Regulations 101 to 107 was
inserted in Chapter III of the Regulations
framed under U.P. Intermediate Education
Act,
1921
by
State
Government
notification dated 30.7.1992. Regulation
101 and Regulation 103 to 107 were
subsequently substituted by notification
dated 2.2.1995 The relevant Regulations
101 in Hindi and its translated version in
English as quoted by apex court in
Director of Education (Secondary) and
another v. Pushpendra Kumar and others
1998 (2) UPLBEC 1310 are extracted
below:_

"101. The appointing authority shall not
fill any vacancy in the non-teaching staff
of a recognised aided institution except
with the prior approval of the Inspector".

"

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6. Regulation 100 provides that
appointing authority for the post of classIII employee is committee of management
and for the class-IV post is Principal of
the institution. Regulation 101 provides
that vacancy of a non-teaching post in a
recognised aided institution shall not be
filled by the appointing authority without
obtaining prior approval of the DIOS.
Regulation
102
provides
that
the
appointing
authority
would
intimate
within three months before the occurrence
of vacancy due to the retirement, to the
DIOS. Regulation 103 provides that
dependent of teaching or non-teaching
staff who has died in harness he given
appointment on a non-teaching post.
Regulation
106
provides
that
such
appointment has to be given to candidate
under the Dying in Harness Rules as far
as possible in the same organisation. And
if there is no vacancy available the
organisation he could be appointed in any
other organisation of the district. The
reason for obtaining prior approval of the
DIOS is that he shall look into class IV
post as per qualification to any candidate
in the district under Dying in Harness
Rules. If not, he may grant prior approval
to the appointing authority. Thereafter,
the
appointing
authority
makes
appointment on the non-teaching post, in
accordance with the procedure prescribed
by law and forwards the papers to the
DIOS for grant of financial approval.

7. The language of the regulation is
clear that appointing authority shall not
fill any vacancy in non-teaching staff of a
recognised aided institution except with
the prior approval of the inspector. Two
words in regulation 101 are important.
The use of word "shall" makes it
obligatory for the appointing authority
before filling the vacancy of non-teaching
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
152
post to obtain prior approval of the
Inspector. The use of word "except"
mandates the appointing authority not to
fill the vacancy without obtaining prior
approval of the Inspector. The question
which arise is that what is the import of
word "shall" and 'except' used in
regulation 101. When the legislature or
the rule making authority uses the word
"shall", normally it is used in imperative
or mandatory sense. After reading the
provision it has to be culled out as to
whether word "shall" has been used in
mandatory or directory sense.

The word "except' has been defined in
Webster's
Third
New
International
Dictionary to mean,
"unless" or "only"
 The word "except" has been defined in
Black's law Dictionary revised fourth
edition as the expression "except for" in
synonymous in many cases with,
"but for" and "only for"
"In Black's Law Dictionary sixth edition
the word "except" has been defined as,
but for; only for; not including other then
otherwise than; to leave out of account or
consideration;
"In Grolier New Webster's Dictionary the
word "except" has been defined as,
apart from, excluding only, but".

"In Black's Law Dictionary sixth edition
the word "shall" expressed as used in
statutes, contracts, or the like, this word is
generally imperative or mandatory. In
Common or ordinary parlance, and in its
ordinary signification, the term "shall" is
a word of command, and one which has
always or which must be given a
compulsory
meaning;
as
denoting
obligation. The word in ordinary usage
means 'must" and is inconsistent with a
concept of discretion. It has the invariable
significance of excluding the idea of
discretion, and has the significance of
operating the impose a duty which may be
enforced, particularly if public policy is in
favour
of
this
meaning,
or
when
addressed to public officials, or where a
public interest is involved, or where the
public or persons have rights which ought
to be exercised or enforced, unless a
contrary intent appears. But it may be
construed
as
merely
permissive
or
directory (as equivalent to "may"), to
carry out the legislative intention and in
cases where no right or benefit to nay one
depends on its being taken in the
imperative sense, and where no public or
private
right
is
impaired
by
its
interpretation in the other sense."

8. 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 DIOS. In my
opinion use of these two words "shall and
"except" have been used in imperative
terms. And clearly express that prior
approval of DIOS is a condition precedent
for making any appointment on a nonteaching post. Use of word "except" with
the prior approval of DIOS 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 DIOS. 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
1All] Amit Kumar V. D.I.O.S. and another 153
legislature or the rule making authority.
And it clearly intended that before making
any appointment the appointing authority
must obtain prior approval of the DIOS.
The legislative intent has to be given
effect to while interpreting regulatory
provisions of regulation 101. Regulation
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 nonteaching posts, not to fill the vacancy
except with the prior approval of the
DIOS, as an element of public interest.
Regulation
103
providing
for
appointments under the Dying in Harness
Rules makes it obligatory on the DIOS to
provide appointment to dependants 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
provision contained in regulation 101 is
mandatory and cannot be treated to be
directory. The requirement of obtaining
prior approval of DIOS 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.

9. The nest question is whether the
court could fix any time limit for exercise
of power by the DIOS under regulation
101. The legislature or the rule making
authority while amending regulation 101
did not dix any time limit for DIOS within
which he has to grant or refuse prior
approval to the appointing authority for
filling the non-teaching post. Learned
counsel for the petitioner has strongly
relied on a decision of this court in
Rajendra Yadav (supra). It has been urged
that in view of this decision once
appointing authority sends a request to
approval is not granted within two weeks
after papers are received by DIOS, then it
would be deemed that the DIOS has
granted approval to the appointment
sought to be made by the appointing
authority. The learned judge has relied on
the decision of apex court in Regional
Provident Fund Commissioner v M/s K.T.
Rolling Mills Private Limited JT 1995 (1)
SC 38. The apex court held that where a
power is conferred on an authority under
the Statute it has to be exercised within a
reasonable period. Ture but what is
reasonable period would depend on the
facts of each case. It cannot be fixed by
the Court. It can only determine whether
the power exercised by the authority was
within reasonable time or not, in the facts
of a particular case. The authority while
framing Regulations 101 to 107 did not
fix any time limit within which the DIOS
could
grant
prior
approval
to
the
recommendation made by the appointing
authority for filling the non-teaching post.
The reason is obvious. The DIOS has to
verity from the records as to whether any
candidate in the district is to be appointed
under the Dying in Harness Rules and
vacancies for making appointments are
available or not in the institutions of the
district. Therefore, the authority in its
wisdom did not think it reasonable to fix
any time limit for the DIOS under
regulation 101 for exercising power of
granting prior approval. Wherever, either
in the U.P. Intermediate Education Act,
1921
or
the
Regulations
framed
thereunder, legislature or the rule making
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
154
authority, thought it proper to fix a time
limit, it clearly provided the time within
which the power is to be exercised and it
the power is not exercised within fixed
time limit, it provided that it would be
deemed that prior approval has been
granted by the educational authority, in
regulation 6 of chapter II of the
regulations deemed approval has been
provided if on the proposal for promotion
of a teacher, the DIOS does not
communicate his decision within three
weeks to the management. The provision
for deemed approval, therefore, was a
conscious omission. It is settled rule of
interpretation that where legislature or the
rule making authority enacts different
provisions for similar situation, then it
should be interpreted in the manner it has
been provided for. On the construction of
the regulation 101 and in absence of any
provision for deemed approval the learned
standing counsel rightly argued that the
decision in Rajendra Yadav (supra) is not
helpful.

10. The appointing authority had
applied to the DIOS for grant of prior
approval before making any appointment
on the class-III post. No or granting the
permission.
Without
obtaining
prior
approval of the DIOS the appointing
authority proceeded to make appointment
of the petitioner on the non-teaching post.
It the DIOS failed to perform his statutory
duty under regulation 101 and did not
grant prior approval, then it was open to
the management to approach this court for
issuance of a writ of mandamus for
direction to the DIOS for deciding the
application of the appointing authority for
grant of prior approval. But in absence of
prior
approval
by
the
DIOS,
the
appointing authority could not have
proceeded to make appointment of the
petitioner. And the appointment made by
the appointing authority of the petitioner
without obtaining prior approval of the
DIOS on a non-teaching post was in
violation of mandatory provision of
regulation 101 and the petitioner could
not claim any benefit from such an
appointment made by the appointing
authority.

11. The petitioner is not entitled to
any relief, as the management in violation
of mandatory provisions of regulation 101
made his appointment. Therefore, it is not
necessary for me to consider the other
questions raised by the learned counsel
for the parties.

For the aforesaid reasons, I do not
find any merit in this writ petition.

This writ petition fails and is
accordingly dismissed.

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