# Dhruv Kumar Pandey & Anr v. State of U.P. & Ors

- **Citation:** (2020) 6 ILRA 784
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-04-24
- **Case number:** Special Appeal No. 187 of 2020
- **Bench:** Biswanath Somadder, Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dhruv-kumar-pandey-anr-v-state-of-u-p-ors-45796
- **Pages:** 14

## Headnote

A. Civil Law - Intermediate Education
Act, 1921 - Regulations framed under
Act of 1921 - Regulation 101 - Appointment
of Class III and Class IV Employees - Prior
Approval of DIOS - Where selection is made
by direct recruitment by the Principal or the
Committee of Management, prior approval of
the DIOS would be mandatory and would be a
condition precedent before issuance of an
appointment order to the selected candidate.
(Para 19 and 24)

B. Civil Law -Intermediate Education Act,
1921 - Regulations framed under Act of
1921 - Regulation 101 to 107
-
Appointment of Class III and Class IV
Employees - Intimation of vacancy to DIOS -
Regulation 102 is specifically enjoined upon
the appointing authority, which as per
Regulation
100
is
the
Committee
of
Management for the clerical posts and the
Principal/Head Master for Class IV posts, to
intimate the Inspector regarding occurrence of
vacancy - The provisions do not contemplate
that the Principal or the Committee of
Management, upon occurrence of a vacancy
against nonteaching post, would straight away
proceed to initiate the selection process for
direct recruitment without any intimation to
the DIOS - Such action, if permitted, would
frustrate the very scheme as provided for
under Regulations 101 to 107. (Para 22 and
25)
C. Interpretation of Statute - Purposive
Construction - The object of interpretation of
a set of statutory rules/regulations is to
ascertain the intent of the rule making
authority and to ensure that the provisions are
interpreted so as to subserve the intent -
There is a general presumption that the
statutory provisions have to be given a
purposive construction that best gives effect
to the purpose for which the provision had
been made. (Para 33)
Special Appeal dismissed (E-1)
Cases relied on :-

## Text

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784 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)06ILR A784
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.04.2020
BEFORE
THE HON'BLE BISWANATH SOMADDER, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Special Appeal No. 187 of 2020

Dhruv Kumar Pandey & Anr. ...Appellants
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellants:
Sri Radha Kant Ojha, Sri Shivendu Ojha

Counsel for the Respondents:
Sri Ankit Gaur

A. Civil Law - Intermediate Education
Act, 1921 - Regulations framed under
Act of 1921 - Regulation 101 - Appointment
of Class III and Class IV Employees - Prior
Approval of DIOS - Where selection is made
by direct recruitment by the Principal or the
Committee of Management, prior approval of
the DIOS would be mandatory and would be a
condition precedent before issuance of an
appointment order to the selected candidate.
(Para 19 and 24)

B. Civil Law -Intermediate Education Act,
1921 - Regulations framed under Act of
1921 - Regulation 101 to 107
-
Appointment of Class III and Class IV
Employees - Intimation of vacancy to DIOS -
Regulation 102 is specifically enjoined upon
the appointing authority, which as per
Regulation
100
is
the
Committee
of
Management for the clerical posts and the
Principal/Head Master for Class IV posts, to
intimate the Inspector regarding occurrence of
vacancy - The provisions do not contemplate
that the Principal or the Committee of
Management, upon occurrence of a vacancy
against nonteaching post, would straight away
proceed to initiate the selection process for
direct recruitment without any intimation to
the DIOS - Such action, if permitted, would
frustrate the very scheme as provided for
under Regulations 101 to 107. (Para 22 and
25)
C. Interpretation of Statute - Purposive
Construction - The object of interpretation of
a set of statutory rules/regulations is to
ascertain the intent of the rule making
authority and to ensure that the provisions are
interpreted so as to subserve the intent -
There is a general presumption that the
statutory provisions have to be given a
purposive construction that best gives effect
to the purpose for which the provision had
been made. (Para 33)
Special Appeal dismissed (E-1)
Cases relied on :-
1. Dingur Vs D.I.O.S. Mirzapur & ors. (1997) 2
UPLBEC 1250

2. Jagdish Singh Vs St. of U.P. & ors. (2006)
3 UPLBEC 2765

3. R (on the application of Quintavalle) Vs
Secy. of St. for Health (2003) UKHL 13, (2003)
2 AC 687, (2003) 2 All ER 113

4. Pollen Estate Trustee Co. Ltd. Vs Revenue &
Customs Comm. (2013) EWCA Civ 753
(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. The present intra court appeal has
been filed against the judgment and order
dated 29.11.2019 passed in Writ A No.
59653 of 2015 (Dhruv Kumar Pandey and
another Vs. State of U.P. and others), in
terms of which the writ petition has been
dismissed.

2. The writ petitioners are the
appellants before us.

3. The records of the case reflect
that the writ petition had been filed
primarily seeking to challenge an order
6 All. Dhruv Kumar Pandey & Anr. Vs. State of U.P. & Ors. 785
dated 15.7.2015 passed by the District
Inspector of Schools1, Basti, whereunder
the approval to the appointments of the
appellants/writ
petitioners
had
been
declined. A further prayer was made for
issuance of a mandamus commanding the
DIOS to consider the grant of approval
afresh to the appointments of the
petitioners on Class IV posts made by the
Committee of Management of the Janta
Inter College Nagar Bazar, Basti2.

4.

Learned
Senior
Counsel
appearing for the appellants has sought to
assail the judgment of the learned Single
Judge by contending that the writ petition
has been dismissed upon noticing the fact
that the order impugned therein being the
order dated 15.7.2015 passed by the
DIOS had
recorded
that no
prior
permission had been obtained and the
procedure prescribed under law had not
been
followed
before
making
the
appointments,
whereas
there
is
no
requirement
under
the
relevant
regulations with regard to the obtaining
any prior permission. He has submitted
that the judgment of the writ court having
been passed on an erroneous legal
premise, the same cannot be sustained.

5. Per contra, learned Standing
Counsel
appearing
for
the
State
respondents has supported the judgment
of the learned Single Judge and has
submitted that the appointments of the
appellants/petitioners had been made
without following the procedure as
prescribed under the relevant regulations
and as such the same could not have been
approved, and accordingly the DIOS had
rightly refused to accord the approval to
their appointments.

6. In order to appreciate the rival
contentions, it would be necessary to
advert to the relevant statutory provisions.

7. The Institution in question is
governed by the provisions of the
Intermediate Education Act, 19213 and it
receives
grants-in-aid
under
the
provisions of the Uttar Pradesh High
School
and
Intermediate
Colleges
(Payment of Salaries of Teachers and
other Employees) Act, 1974 .

8. The Intermediate Education Act,
1921 was enacted to establish the Board
of
High
School
and
Intermediate
Education for the purposes of regulating
and supervising the system of High
School and Intermediate Education in the
State of Uttar Pradesh, and to prescribe
courses therefor.

9. The conditions of service of
heads of institutions, teachers and other
employees in an institution recognised
under the Act, 1921 are provided for
under Chapter III of the Regulations made
thereunder, which are referable to powers
under Section 16-G of the said Act.

10. The provisions with regard to
appointment of Class III and Class IV
employees
in
institutions
recognised
under the Act, 1921 were brought into
force with effect from 30th July, 1992
with the insertion of Regulations 101 to
107 under Chapter III of the Regulations
framed under the Act, 1921.

11.

For
ease
of
reference,
Regulations 100 to 107 (as they stood at
the relevant point of time) are being
extracted below:-
786 INDIAN LAW REPORTS ALLAHABAD SERIES

"100 fyfid] ftlesa iqLrdky;k/;{k
Hkh lfEefyr gS] ds lEcU/k esa izcU/k lfefr rFkk
prqFkZ
Js.kh
deZpkjh
ds
lEcU/k
esa
vkpk;Z@iz/kkuk/;kid fu;qfDr izf/kdkjh gksxkA
fyfidksa] ftlesa iqLrdky;k/;{k Hkh lfEefyr gSa]
rFkk prqFkZ Js.kh deZpkfj;ksa dh fu;qfDr ifjoh{kk
1⁄4ftldh vof/k ,d o"kZ gksxh1⁄2 LFkk;hdj.k ,oa
lsok fu;e vkfn ds lEcU/k esa vko';d
ifjorZuksa lfgr Åij ds fofu;e 1] 4 ls 8] 10]
11] 15] 24 ls 26] 30] 32 ls 34] 36 ls 38] 40
ls 43] 45 ls 52] 54] 66] 67] 70 ls 73 rFkk 76
ls 82 ykxw gksaxs] fdUrq prqFkZ Js.kh deZpkfj;ksa ds
lEcU/k esa fofu;e 77 ls 82 ds izkfo/kku rHkh
ykxw gksaxs tc bl lEcU/k esa jkT; ljdkj }kjk
vko';d funsZ'k fuxZr fd;s tk;saxsA bu
deZpkfj;ksa ds lEcU/k esa fofu;e 9] 12] 13] 14]
16 ls 20] 27] 28] 54] 55 ls 65 rFkk 97 ds
izkfo/kku ykxw ugha gksaxsA

101 fu;qfDr izkf/kdkjh] fujh{kd ds
iwokZuqeksnu ds flok; fdlh ekU;rkizkIr]
lgk;rkizkIr laLFkk ds f'k{k.ksRrj LVkQ esa fdlh
fjfDr dks ugha Hkjsxk %

izfrca/k ;g gS fd teknkj ds in dh
fjfDr dks fujh{kd }kjk Hkjus dh vuqefr nh tk
ldrh gSA

102 fdlh ekU;rkizkIr] lgk;rkizkIr
laLFkk esa f'k{k.ksrj in /kkj.k djus okys fdlh
deZpkjh dh lsokfuo`fr ds QyLo:i gksus okyh
fjfDr dh lwpuk mldh lsokfuo`fr ds fnuakd ls
rhu ekl iwoZ nh tk,xh vkSj e`R;q] in R;kx ds
dkj.k ;k fdUgha vU; dkj.kksa ls gqbZ fdlh
fjfDr dh lwpuk mlds gksus ds fnuakd ls lkr
fnu ds Hkhrj fu;qfDr izkf/kdkjh }kjk fujh{kd
dks nh tk,xhA

103 bl fu;ekoyh esa nh xbZ fdlh
ckr ds gksrs gq, Hkh tgka fdlh ekU;rkizkIr
lgk;rkizkIr laLFkk dk v/;kid ;k f'k{k.ksrj
deZpkjh oxZ ds fdlh deZpkjh dh] tks fofgr
izfdz;k ds vuqlkj fu;qDr fd;k x;k gks] lsok
dky esa e`R;q gks tk;s] rks mlds dqVqEc ds ,d
lnL; dks]tks 18 o"kZ ls de vk;q dk u gks]
izf'kf{kr Lukrd dh Js.kh esa v/;kid ds in
:i esa ;k fdlh f'k{k.ksrj in ij] ;fn og in
ds fy;s fofgr visf{kr 'kSf{kd izf'k{k.k vgZrk,a]
;fn dksbZ gksa] j[krk gks vkSj fu;qfDr ds fy;s
vU;Fkk mi;qDr gks] fu;qDr fd;k tk ldrk gS %

Li"Vhdj.k&
bl
fofu;e
ds
iz;kstukFkZ ^^dqVqEc dk lnL;** dk rkRi;Z e`rd
dh fo/kok@fo/kqj] iq=] vfookfgr ;k fo/kok iq=h
ls gksxkA

fVIi.kh& ;g fofu;e vkSj fofu;e
104 ls 107 mu e`r deZpkfj;ksa ds laca/k esa Hkh
ykxw gksxk ftudh e`R;q 1 tuojh] 1981 dks ;k
mlds i'pkr~ gqbZ gksA

104 fdlh ekU;rkizkIr] lgk;rkizkIr
laLFkk dk izc/ak ra= ;k ;FkkfLFkfr] iz/kkukpk;Z ;k
iz/kku v/;kid e`R;q gksus dh n'kk esa e`R;q gksus
ds lkr fnu ds Hkhrj fujh{kd dks ,d fjiksVZ
izLrqr djsxk ftlesa e`r deZpkjh dk uke] /k`r
in] osrueku] fu;qfDr dk fnukad] e`R;q dk
fnukad mlds fu;kstd laLFkk dk uke vkSj
mlds dqVqEc ds lnL;ksa dk uke] mudh 'kSf{kd
vgZrk,a vkSj vk;q vkfn fn;k tk,xkA fujh{kd
vius }kjk j[ks tkus okys jftLVj esa e`rd dh
fof'kf"V;ka ntZ djsxkA

105 fofu;e 103 esa fofufnZ"V e`r
deZpkjh ds dqVqEc dk dksbZ lnL; lEcfU/kr
fujh{kd dks ;FkkfLFkfr izf'kf{kr Lukrd Js.kh esa
v/;kid ;k f'k{k.ksrj laoxZ ds fdlh in ij
fu;qfDr ds fy, vkosnu djsxkA vkosnu&i=
izLrqr ij lfefr }kjk fopkj fd;k tk;sxk vkSj
;fn lfefr mudh fu;qfDr dh laLrqfr djs] rks
fujh{kd ekU;rkizkIr lgk;rkizkIr ml laLFkk ds]
ftlesa vkosnu dks fu;qfDr fd;k tkuk gS]
izac/kra= dks vkosnu&i= fofu;e 106 vkSj 107
ds vuqlkj fu;qfDr vkns'k tkjh djus ds fy;s
HkstsxkA

lfefr esa fuEufyf[kr gksaxs %

1-
fujh{kd
6 All. Dhruv Kumar Pandey & Anr. Vs. State of U.P. & Ors. 787

& v/;{k

2- ftyk fo|ky; fujh{kd ds
dk;kZy; esa ys[kkf/kdkjh

&lnL;

3- ftyk csfld f'k{kk vf/kdkjh

&lnL;

106 e`r deZpkjh ds dqVqEc ds
lnL; dh fu;qfDr mldh 'kSf{kd vgZrkvksa ds
vuqlkj izf'kf{kr Lukrd Js.kh esa ;k fdlh
f'k{k.ksrj in ij ;FkklEHko mlh laLFkk esa dh
tk;sxh tgka e`r deZpkjh viuh e`R;q ds le;
lsokjr FkkA ;fn ,slh laLFkk esa izf'kf{kr Lukrd
Js.kh esa fdlh v/;kid ;k f'k{k.ksrj laoxZ esa
dksbZ in fjDr u gks rks mldh fu;qfDr ftys
dh fdlh vU; ekU;rkizkIr] lgk;rkizkIr laLFkk
tgka ,slh fjfDr gks] dh tk;sxhA

izfrca/k ;g gS fd ;fn ftys ds
fdlh ekU;rkizkIr] lgk;rkizkIr laLFkk esa dksbZ
fjfDr rRle; fo|eku u gks rks ml laLFkk esa
tgka e`rd viuh e`R;q ds le; lsokjr Fkk]
fu;qfDr izf'kf{kr Lukrd Js.kh ds v/;kid ds
;k prqFkZ Js.kh ds f'k{k.ksrj in ds izfr fdlh
vf/kla[; in ds izfr rqjar dh tk;sxhA ,sls
vf/kla[; in dks bl iz;kstu ds fy;s l`ftr
fd;k x;k le>k tk;sxk vkSj mls rc rd
tkjh रखा tk;sxk tc rd dksbZ fjfDr ml
laLFkk esa ;k ftys dh fdlh vU; ekU;rk izkIr]
lgk;rkizkIr laLFkk esa miyC/k u gks tk, vkSj
,slh fLFkfr esa vf/kla[; in ds in/kkjh }kjk dh
xbZ lsok dh x.kuk osru fu/kkZj.k vkSj
lsokfuo`fr ykHkksa ds fy, dh tk,xhA

107 ml ekU;rkizkIr] lgk;rkizkIr]
laLFkk ds izca/kra= }kjk] ftldk fofu;e 105 ds
v/khu fujh{kd }kjk vkosnu&i= Hkstk x;k ;k
vkosnu i= dh izkfIr ds fnuakd ls ,d ekg dh
vof/k ds Hkhrj fujh{kd dks lwpuk nsrs gq,
fu;qfDr&i= tkjh fd;k tk;sxkA"

(English Translation)

"100. The appointing authority
in respect of clerks, including librarian,
would be the Committee of Management
and in respect of Class IV employees the
appointing
authority
would
be
the
Principal/Head Master.The regulations
mentioned
above,
with
necessary
amendments, 1, 4 to 8, 10, 11, 15, 24 to
26, 30, 32 to 34, 36 to 38, 40 to 43, 45 to
52, 54, 66, 67, 70 to 73 and 76 to 82 shall
be applicable in respect to appointment,
probation (the duration of which will be
one year), confirmation and service rules
etc. of clerks including librarian and the
fourth class employees; however in
relation to the fourth class employees, the
provisions of regulations 77 to 82 shall be
applicable only when the necessary
directions are issued in this regard by the
State
Government.
Provisions
of
regulations 9, 12, 13, 14, 16 to 20, 27, 28,
54, 55 to 65 & 97 shall not be applicable
in respect to those employees.

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

Provided that permission for
filling up the vacancy against the post of
Jamadar may be granted by the Inspector.

102. A vacancy falling vacant
on account of retirement of an employee
holding non-teaching post in a recognized
aided institution shall be intimated three
months before from the date of his
retirement and any vacancy falling vacant
due to death, resignation or for any other
reasons, shall be intimated within seven
788 INDIAN LAW REPORTS ALLAHABAD SERIES
days from the date of its occurrence to the
Inspector by the appointing authority.

103. Notwithstanding anything
contained in this regulation, where
teacher
of
any
recognized
aided
institution or an employee of the nonteaching staff who, as per the prescribed
procedure, dies during service period,
then one member of his family, who is
not less than 18 years, may be appointed
on the post of a teacher in the category of
trained graduate teacher or on any nonteaching post, if he possesses requisite
educational training eligibility prescribed
for the post, if any, and is otherwise
suitable for appointment.

Explanation:- For the purposes
of this regulation 'member of family' shall
mean widow/widower, son, unmarried or
widow daughter of the deceased.

Comment:- This Regulation and
Regulation 104 to 107 shall be applicable
in respect of those deceased employees
also who died on 1st January, 1981 or
thereafter.

104. The Management or the
Principal or the Head Master, as the case
may
be, of
any
recognized
aided
institution shall submit a report to the
Inspector within seven days in case of
death, which shall include the name of
deceased employee, designation of the
post he held, pay-scale, the date of
appointment, the date of his death, the
name of employing institution, names of
his family members, his educational
qualifications, age etc. The Inspector shall
mention specification of the deceased
person in the register he maintains.

105. Any member of the family
of the deceased employee specified in the
regulation-103 shall apply to be Inspector
for teaching cadre in the trained graduate
category, or for non-teaching cadre, as the
case may be. The Committee shall decide
on the application submitted and if the
Committee makes a recommendation for
his appointment, the Inspector under the
regulations of 106 and 107, shall send the
application for issuance of appointment
order
to
the
Management
of
the
Institution where the appointment is to be
made. The following shall be the
members of the committee.

1- Inspector-Chairman

2- Account Officer in the Office
of District Inspector of Schools-Member

3- District Basic Education
Officer-Member

106. The appointment of any
member of the deceased employee shall
be made in the trained graduate category,
or in the non-teaching staff of the
institution where the employee was in
service at the time of his death. If no post
in the teaching or non-teaching staff is
vacant in such institution, then his
appointment shall be made against the
similar vacancy in any other recognized
aided institution of the district.

Provided that if such vacancy
does not exist for the time being in any
recognized aided institution of the district,
the appointment on the supernumerary
post against the post of teacher or the
non-teaching staff of class four in the
institution where the employee was in
service shall be deemed to have been
made
with
immediate
effect.
The
supernumerary post for such purpose
shall be taken to be created and shall
6 All. Dhruv Kumar Pandey & Anr. Vs. State of U.P. & Ors. 789
continue till the availability of the
vacancy in the same institution or any
other recognized aided institution of the
district, and the services of such post
holder shall be taken into account while
considering pay-fixation and retirement
benefits.

107. The appointment letter
shall be issued by the Management, in
relation
to
those
recognized
aided
institution
whose
application,
under
regulation 105, has been sent by the
Inspector within one month from the date
of receipt of application by intimating to
the inspector."

12. Regulations 101 to 107, referred
to above, provide for a scheme for filling
up the vacancies of non-teaching posts i.e.
(Class III and Class IV posts) in any
institution recognised under the Act,
1921.

13. Regulation 102 which may be
seen as a first step in the process provides
that intimation regarding vacancy as a
result of retirement of any employee
holding a non-teaching post in any
recognised and aided institution shall be
given three months before the date of
retirement and information about any
vacancy falling due to death, resignation
or for any other reasons shall be intimated
to the Inspector by the appointing
authority within seven days of the date of
such occurrence.

14. The language under Regulation
102 is couched in a mandatory form and it
enjoins upon the appointing authority,
which as per Regulation 100 is the
Committee of Management for the
clerical posts and the Principal/Head
Master for Class IV posts, to intimate the
Inspector
regarding
occurrence
of
vacancy arising out of retirement of an
employee holding a non-teaching post
three months prior to the date of his
retirement, and in case of a vacancy
arising due to death, resignation or for
any other reasons, within seven days of
such occurrence.

15. Regulations 103 creates a
provision
for
appointment
on
compassionate grounds to be granted to
the dependents of a teaching/non-teaching
employee in a recognised and aided
institution. In terms of Regulation 104 the
Committee
of
Management
or
the
Principal/Head Master, as the case may
be, is required to submit a report
furnishing necessary particulars to the
Inspector within seven days from the
death of the employee concerned. As per
Regulation 105, an application is to be
submitted by the dependent of the
deceased employee before the Inspector,
which is to be placed for consideration
before a Committee constituted for the
purpose, and upon recommendation made
by the Committee the same is to be
forwarded by the Inspector to the
institution
concerned
whereupon
appointment order is to be issued as per
Regulations 106 and 107.

16. Regulation 106 provides that the
appointment of any member of the family
of a deceased employee shall be made in
the trained graduate category, or against a
non-teaching post in the institution where
the employee was in service at the time of
his death, and if no post in the teaching or
non-teaching cadre is vacant in such
institution, then the appointment shall be
made against a similar vacancy in any
other recognized and aided institution in
the district. In terms of the proviso to
790 INDIAN LAW REPORTS ALLAHABAD SERIES
Regulation 106, if such vacancy does not
exist for the time being in any recognized
and aided institution in the district, the
appointment would be made immediately
on a supernumerary post in the institution
where the employee was in service. The
supernumerary post shall be deemed to be
created for the purpose and shall continue
till the availability of a vacancy in the
institution in question or in any other
recognized and aided institution of the
district.

17.

The
requirement
under
Regulation 101 of obtaining a 'prior
approval' for appointments of a nonteaching post was considered in the case
of Dingur Vs. District Inspector of
Schools, Mirzapur and others5, and
after noticing the statutory scheme under
the Act, 1921 and the U.P. Act No. 24 of
1971, it was stated as follows :-

"17. Taking into consideration
the provisions contained in the U. P. Act
No. 24 of 1971, there is no escape from
the conclusion that a statutory duty stands
cast
upon
the
competent
authority
envisaged therein to ensure that there is
no wasteful expenditure of the public
money and in that view of the matter, it
has
to
be
ensured
taking
into
consideration the norms fixed by the State
Government for continuance of a post, as
to whether the filling up of the vacancy is
infact necessary. It has further to be
ensured as to whether the appointment
has been made taking into consideration
the provisions contained in the U. P.
Intermediate Education Act and the
Regulations framed thereunder regulating
the procedure for the appointment and the
manner in which the appointment has to
be made and further whether the person
appointed
satisfies
the
minimum
eligibility criteria and his appointment is
in accordance with law. In such a
circumstance in order to discharge the
statutory duty, it is incumbent upon the
authority functioning under the U. P. Act
No. 24 of 1971 to grant financial approval
to the appointment reported to it after
examining all the aspects as indicated
above. In the absence of such a financial
approval, the State Government cannot be
saddled with any liability in regard to the
payment of salary etc. to the appointee of
the management as against the vacancy in
a post sanctioned for the High School or
any intermediate college. In fact the
provisions contained in Regulation 101 of
the Regulations which have now come
into force ensure that no financial liability
is cast upon the State in respect of any
appointment made by the appointing
authority unless the appointment is made
after obtaining the prior approval from the
District Inspector of Schools.

xxx

21.
With
the
insertion
of
Regulation 101, the position stands
further clarified that any appointment as
against non-teaching post cannot be made
by the management without obtaining
prior approval of the District Inspector of
Schools with the consequential result that
if the management acts in contravention
of the provisions of this provision, it
would be liable to be vitiated with the
penalty of de-recognition or of any other
action and further the District Inspector of
Schools or any other competent authority
stands authorised to withhold payment of
salary to such an appointee refusing to
recognise his appointment which is
sought to be made the basis for such an
entitlement. This provision is in effect a
check
to
prevent
an
appointment
6 All. Dhruv Kumar Pandey & Anr. Vs. State of U.P. & Ors. 791
becoming effective in the sense of
saddling the State with the responsibility
of payment of salary etc. in case it is
against the cannons of financial propriety
or suffers from any procedural defect or is
otherwise vitiated in law. The District
Inspector of Schools by virtue of this
provisions stands vested with ample
jurisdiction to examine above aspects and
on being satisfied that the appointment
has infact been made in accordance with
the provisions contained in the Act and
the Regulations framed therein, he may
grant
the
approval
whereupon
the
appointment becomes effective so as to
saddle the State with the liability in
regard to the payment of salary etc. to the
appointee and extending to him the
benefits envisaged under the U. P.
Intermediate Education Act and the
Regulations framed thereunder ensuring
the security of tenure of service etc.

xxx

23. Further, the prior approval
which has been referred to in the
Regulation 101 in question has to be
granted or refused by the competent
authority not in an arbitrary manner but
after examining the proceedings relating
to the appointment and finding out as to
whether the appointment was really
necessary taking into consideration the
norms fixed by the State Government
justifying the continuance of the post and
after satisfying as to whether the
appointment was made after following the
prescribed procedure in a fair manner and
is in accordance with the provisions
regulating
the
procedure
which
is
prescribed
for
making
such
an
appointment.
It
is
only
after
the
competent authority is satisfied that there
is no defect in the procedure followed for
making the appointment and such an
appointment is infact necessary and
further
all
the
requisite
conditions
including the eligibility criteria etc. stand
complied with and further the selection
proceedings have been conducted in a fair
manner that the District Inspector of
Schools has to accord the prior approval
which on the requisite conditions being
satisfied cannot be withheld keeping in
view the public interest involved as the
State having undertaken to take the
liability for payment of salary etc. of the
teaching as well as non-teaching staff
employed in a recognized Intermediate
College or High School is bound to
ensure that its smooth functioning is not
hampered on account of refusal to grant
approval to an appointment made by the
Committee of Management in the interest
of the institution."

18. The provision with regard to
'prior approval' of the DIOS contemplated
under Regulation 101 again came up for
consideration in the case of Jagdish
Singh Vs. The State of U.P. and
others6, and after taking note of the
provisions contained under Regulations
101 to 104, it was observed as follows:-

"10. Regulations 103 and 104,
as quoted above, provide that the
Appointing
Authority
shall
intimate
vacancy falling on account of retirement
before three months of the date of
retirement. In other cases vacancy was
required to be communicated within 7
days from occurrence. Regulation further
provides
for
appointment
on
compassionate ground to dependent of
teaching or non-teaching employee in a
recognized
aided
institution.
The
management was also enjoined to inform
about the death of employee, dependents
792 INDIAN LAW REPORTS ALLAHABAD SERIES
of the employees and the District
Inspector of Schools was to put up the
application, received from the member of
the deceased employee for appointment,
to a Committee as contemplated under
Regulation 105 to consider the case and
thereafter the application was to be sent to
the Management for issuing appointment
letter. Regulations 101 to 107 have to be
read in a manner to give effect/and
meaning to the provisions incorporated
with effect from 30th July, 1992. The
entire provisions requires harmonious
construction,
so
all
the
regulations
become workable and every part of it is
given meaning.

11. Regulation 101, which is to
be interpreted, uses a word "Inspector
shall not fill up any vacancy". The word
'fill up', for the purpose of appointment,
embraces in itself a procedure, which
initiates from intimation of vacancy till
selection of a candidate...

xxx

18. Regulation 101, as quoted
above,
uses
two
words,
namely,
^iwokZuqeksnu* and ^vuqefr*. The first
part of the Regulation provides that
appointing authority except with prior
approval of Inspector shall not fill up any
vacancy of non-teaching post of any
recognized aided institution whereas
second part of the Regulation provides
that permission for filling of post of
sweeper (Jamadar) can be given by
Inspector. Second part of the Regulation
is in the nature of proviso. The main part
of
the
Regulation
contains
word
^iwokZuqeksnu*
i.e.
prior
approval
whereas second part of the Regulation
uses word ^vuqefr*] i.e. permission.
Thus, the Statute uses both the word 'prior
approval' and 'permission'. The meaning
of both the word cannot be the same. In
view of this, the submission of the learned
Counsel for the appellant that Regulation
101 requires only permission to issue
advertisement by Appointing Authority
and if such permission is granted by
Inspector, the Appointing Authority can
fill up the post. Regulation 101 provides
prior approval with regard to vacancy of
non-teaching staff and permission is
contemplated only for filling the post of
sweeper. Regulation thus indicates that
when the permission is given to the
Appointing Authority to fill up post of
sweeper. There is no further prior
approval is required. This provision being
in nature of proviso to the main
Regulation shall operate as an inception
to the first part of Regulation. Thus, the
use of two words in Regulation 101 i.e.
'prior approval' and 'permission' itself
negates construction of Regulation as
contended by the counsel for the
appellant."

19. When the prior approval of
the
Inspector
is
contemplated
in
Regulation 101, that prior approval
embraces itself an examination of all
aspects of the matter including existence
of the vacancy, nature of the vacancy
whether vacancy is to be filled up by
management or it be filled by appointing
the dependent of deceased employee who
has claimed for appointment under the
scheme of the Regulations 101 to 107.

20. Scheme of Regulations 101
to 107 makes it clear that after receiving
an intimation of vacancy, the District
Inspector of Schools is empowered to
send the application of member of
deceased employee, who is entitled for
compassionate
appointment
to
the
6 All. Dhruv Kumar Pandey & Anr. Vs. State of U.P. & Ors. 793
institution, who has to issue appointment
letter to such candidate. It is, however,
implied in the scheme that in the event
there
is
no
candidate
entitled
for
compassionate appointment to fill a
particular vacancy, the intimation of
which has been received by the District
Inspector
of
Schools,
the
District
Inspector of Schools can direct the
Appointing Authority to fill up vacancy
by direct recruitment but even in a case
the
selection
is
made
by
direct
recruitment by the Principal/Committee
of
Management,
prior
approval
is
required of the District Inspector of
Schools before issuing an appointment
letter to the selected candidate. Without
prior approval of the Inspector, the
Principal
or
the
Committee
of
Management cannot issue an appointment
letter or permit joining of any candidate.
The requirement of prior approval in
Regulation 101 is a condition precedent
before issuing an appointment letter and
is mandatory. The observation of the
learned single Judge in the case of Dingur
v. District Inspector of Schools, Mirzapur
(supra) as quoted above, is also to the
effect that approval has to be considered
by the District Inspector of Schools after
examining the proceeding relating to
appointment and after examining as to
whether prescribed procedure in a fair
manner has been followed or not."

19. Taking into consideration the
scheme under Regulations 101 to 107 it
was held in the case of Jagdish Singh
that an intimation of the vacancy is
required to be sent to the DIOS
whereafter the Inspector is empowered to
send
the
application,
if
any,
for
compassionate appointment which may
have been submitted by a member of the
family of a deceased employee, upon due
recommendation
of
the
Committee
constituted for the purpose, for issuance
of an order of appointment, and in the
event there is no candidate entitled for
compassionate appointment, the Inspector
can direct the appointing authority to fill
up vacancy by direct recruitment, but
even in such a case, prior approval of the
Inspector is required before issuance of an
order of appointment to the selected
candidate. The requirement of prior
approval under Regulation 101 was held
to
be
mandatory
and
a
condition
precedent
before
issuance
of
an
appointment
order.
Although,
an
observation was made that there is no
requirement for taking previous approval
under Regulation 101 before issuance of
advertisement and that prior approval of
the Inspector is required after completion
of the process of the selection but it was
made clear that there was no prohibition
for the Principal or the Management to
seek permission of the Inspector for
filling
up
the
vacancy
by
direct
recruitment and such permission may or
may not be granted by the Inspector. The
observations made in the judgment, in
this regard,

"21. The observation of the
learned single Judge in Ram Dhani's case
(supra) that previous approval under
Regulation 101 is required to be taken
before issuing advertisement for filling up
vacancy does not lay down correct law.
We, however, make it clear that although
prior approval is required from the
District
Inspector
of
Schools
after
completion of process of selection but
there
is
no
prohibition
in
the
Principal/Management to seek permission
of the District Inspector of Schools for
filling up vacancy by direct recruitment.
The permission may or may not be
794 INDIAN LAW REPORTS ALLAHABAD SERIES
granted by the District Inspector of
Schools but even if such permission to
start the selection process or to issue
advertisement is granted that is not akin
to prior approval as contemplated under
Regulation 101.

22. In view of the aforesaid, we
are of the considered opinion that prior
approval contemplated under Regulation
101 is prior approval by the District
Inspector of Schools after completion of
process of selection and before issuance
of appointment letter to the selected
candidate."

20. We may take note of the fact
that the earlier judgment rendered by a
Single Judge of this Court in the case of
Dingur was duly noticed and approved by
the subsequent Division Bench in the
decision in Jagdish Singh and referring to
para 23 of the judgment in the case of
Dingur the Division Bench held that the
prior approval, which has been referred to
in Regulation 101, has to be granted by
the DIOS after examining as to whether
the
prescribed
procedure
had
been
followed in a fair manner and also finding
out as to whether the appointment was
really necessary.

21. In the case at hand, in terms of
the order dated 15.07.2015 which was
under challenge in the writ petition the
DIOS had declined to grant approval to
the appointments said to have been made
by the Selection Committee at a meeting
held on 20.06.2010 by assigning the
reason that no permission had been taken
from the department and that the papers
which had been submitted did not contain
the signatures of the Principal of the
Institution. It was also stated that
approval could not be granted almost after
five years of holding of selection
proceedings.

22. The provisions under the
Regulations 101 to 107 though do not
require any permission to be taken before
issuance of the advertisement but the
language
under
Regulation
102
is
couched in a mandatory form and it is
specifically enjoined upon the appointing
authority, which as per Regulation 100 is
the Committee of Management for the
clerical posts and the Principal/Head
Master for Class IV posts, to intimate the
Inspector
regarding
occurrence
of
vacancy arising out of retirement of an
employee holding a non-teaching post
three months prior to the date of his
retirement, and in case of a vacancy
arising due to death, resignation or for
any other reasons, within seven days of
such occurrence.

23. The material on record does not
reflect that any intimation as mandated in
terms of Regulation 102 with regard to
occurrence of the vacancies, was sent by
the management or the Principal of the
Institution to the Inspector.

24.

The
scheme
under
the
Regulations 101 to 107 contemplates
intimation of vacancy occurring due to
retirement or due to death or resignation
or for any other reason within a stipulated
time. This would be for the reason that
the regulations provide for appointment
on compassionate grounds to a dependent
of a teaching/ non-teaching employee of a
recognised institution and for the said
purpose the management or the Principal
of the Institution is enjoined to intimate
the Inspector regarding the death of the
employee and the particulars of the
dependents of the deceased employee so
6 All. Dhruv Kumar Pandey & Anr. Vs. State of U.P. & Ors. 795
that the application submitted by the
dependent of the deceased employee may
be
considered
and
upon
a
recommendation being made by the
Committee set up for the purpose the
application may be forwarded by the
Inspector to the management or the
Principal of the Institution concerned for
issuance of an appointment order. It is
only in the event that there is no claim of
any candidate seeking appointment on
compassionate grounds for filling up of a
particular vacancy that the DIOS can
direct the appointing authority to fill up
vacancy by direct recruitment, and even
in such a case where selection is made by
direct recruitment by the Principal or the
Committee
of
Management,
prior
approval
of
the
DIOS
would
be
mandatory and would be a condition
precedent
before
issuance
of
an
appointment
order
to
the
selected
candidate.

25.

The
provisions
do
not
contemplate that the Principal or the
Committee
of
Management,
upon
occurrence of a vacancy against nonteaching post, would straight away
proceed to initiate the selection process
for
direct
recruitment
without
any
intimation to the DIOS. Such action, if
permitted, would frustrate the very
scheme as provided for under Regulations
101 to 107.

26. The claim of any candidate
seeking compassionate appointment
and the discretion to be exercised by
the DIOS in that regard, in such
circumstances where the management
proceeds to straight away initiate the
selection
process
without
any
intimation to the Inspector, would
stand defeated.

27. As we have already noticed,
Regulation
106
provides
that
the
appointment of any member of the family
of a deceased employee shall be made in
the trained graduate category, or in the
non-teaching category of the institution
where the employee was in service at the
time of his death, and if no post in the
teaching or non-teaching cadre is vacant
in such institution, then the appointment
shall be made against a similar vacancy in
any other recognized and aided institution
in the district. In terms of the proviso to
Rule 106, if such vacancy does not exist
for the time being in any recognized and
aided institution in the district, the
appointment would be made immediately
on a supernumerary post in the institution
where the employee was in service. The
supernumerary post shall be deemed to be
created for the purpose and shall continue
till the availability of a vacancy in the
institution in question or in any other
recognized and aided institution of the
district.

28. It is therefore seen that under the
scheme
provided
for
in
terms
of
Regulations 101 to 107, the DIOS, before
proceeding to direct the appointing
authority i.e. the management or the
Principal of the institution, to fill up any
vacancy by direct recruitment, would be
required to consider not only the claims
of the dependents of the deceased
employee of the institution concerned but
also the claims of the dependents of the
deceased employees of all recognized and
aided institutions in the district. This
object,
as
envisaged
under
the
regulations, is for providing immediate
succour to claims for appointment on
compassionate grounds and the same
would stand totally frustrated in case the
institution is permitted to proceed with
796 INDIAN LAW REPORTS ALLAHABAD SERIES
the
selection
process
without
any
intimation of the occurrence of the
vacancy to the Inspector.

29. We may also observe that in
terms of the statutory scheme governing
the appointments to posts in recognized
and aided institutions, as per the terms of
the Act 1921 and payment of salaries
against the said posts in terms of the U.P.
Act No. 24 of 1971, a statutory duty is
cast upon the educational authorities to
ensure that the appointments are made
taking into consideration the provisions
under the Act, 1921 and the regulations
framed
thereunder
governing
the
procedure for appointments and also to
ensure that the filling up of the vacancy is
in fact necessary taking into consideration
the norms fixed by the State Government.
The financial approval required under the
U.P. Act No. 24 of 1971 for the purposes
of ensuring payment of salaries is to be
granted
after
examining
all
the
aforementioned aspects.

30.