# Jagdish Singh / v. The State of U.P. & others

- **Citation:** (2006) 3 ILRA 1075
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-04-03
- **Case number:** Special Appeal No. 178 of 2006
- **Bench:** Ajoy Nath Ray, C.J. Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagdish-singh-v-the-state-of-u-p-others-40731
- **Pages:** 11

## Headnote

U.P. Intermediate Education Act, 1921,
Regulation
101-Prior
Approvalappointment on the post of class 3 and
Class
4th
post-prior
approval
contemplates-after the completion of
selection
and
before
issuance
of
appointment
letter
to
selected
candidates, D.I.O.S. granted permission
for
fresh
advertisement-selection
completed and such candidate already
joined-held-working without approval-
1076 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
confer
no
right
to
question
such
appointment-made
after
due
advertisement-particularly
where
no
challenge has been made.

Held: Para 22 & 25

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.

Coming to the appeal of Sanjay Kumar, it
is not the case of the appellant that any
approval
has
been
granted
to
the
selection
of
the
appellant
after
completion of selection process. Learned
counsel for Sanjay Kumar, appellant, has
placed reliance only on permission dated
5th March, 2001 of the District Inspector
of Schools for publishing advertisement.
We
have
already
held
that
the
permission to publish the advertisement
is not same thing as prior approval by
the District Inspector of Schools as
contemplated under Regulation 101.
Moreover,
after
first
advertisement
dated 8th March, 2001, the Principal
again issued advertisement on 28th April,
2002 on the basis of which selection has
already been made and a person has
already been appointed who has been
represented before us by Sri R.S. Misra,
Advocate, Sri R.S. Misra, Advocate has
rightly pointed out that the appellant is
not entitled for any relief since he has
not even challenged the selection of the
selected candidate on the basis of the
advertisement dated 28th April, 2002.
There being no approval to the selection
of the appellant, Sanjay Kumar, no error
has been committed by the learned
single Judge in dismissing the writ
petition filed by Sanjay Kumar.
Case law discussed:
1997 (2) UPLBEC-102
W.P. No. 36628 of 02 decided on 19.10.05

## Text

3 All] Smt. Jagannathiya V. The State of U.P. and others
1075
where suit is pending. (Vide K.S. Rashid
& Sons Vs. Income Tax Investigation
Commission & Ors., AIR 1954 SC 207;
A.V. Venkateswaran, Vs. Ramchand
Sobhraj Wadhwani & Anr., AIR 1961 SC
1506; M/s. Tilokchand Motichand & Ors.,
Vs. H.B. Munshi, AIR 1970 SC 898; Jai
Singh Vs. Union of India & Ors., AIR
1977 SC 898; and Bombay Metropolitan
Region Development Authority, Bombay
Vs. Gokak Patel Volkart Ltd., & Ors.,
(1995) 1 SCC 642).

19. However, in Awadh Bihari
Yadav Vs. State of Bihar & Ors., AIR
1996 SC 122, the Hon'ble Supreme Court
held that in extraordinary circumstances,
writ Court may exercise its discretionary
jurisdiction
even
if
the
party
has
approached the other forum. The Court
held as under:-

"There
must
be
extraordinary
situation or circumstances, which may
warrant a different approach, where the
orders passed by a Court are sought to
be violated or thwarted with impunity.
The Court cannot be a silent spectator in
such extraordinary situation." (Emphasis
added)

20. If such a course is not resorted
to, the very existence of the the Courts,
i.e., judicial system will come in the
jeopardy.

21. Learned Standing Counsel takes
notice on behalf of respondent nos. 1 to 7.
Issue notice to respondent nos. 8 to 12
returnable in four weeks.

22. In the fact-situation we have no
option but to direct the civil court to issue
necessary orders to the Superintendent of
Police, Kaushambi to take all measures to
ensure the compliance of the interim
orders passed by it at the earliest, and we
direct the said authority to ensure its
compliance forthwith. We further direct
the Superintendent of Police, Kaushambi
to file his personal affidavit within a
period of three weeks from today as under
what circumstances the interim order
passed by the trial court could not be
complied with.

23. List the matter on 6th July, 2006.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.04.2006

BEFORE
THE HON'BLE AJOY NATH RAY, C.J.
THE HON'BLE ASHOK BHUSHAN, J.

Special Appeal No. 178 of 2006

Jagdish Singh ...Petitioner/Appellant
Versus
The State of U.P. & others ...Respondents

Counsel for the Appellant:
Sri S.K. Verma
Sri R.K. Ojha
Sri Siddharth Verma
Sri Shailendra Kumar Singh

Counsel for the Respondents:
Sri Ran Vijay Singh
S.C.

U.P. Intermediate Education Act, 1921,
Regulation
101-Prior
Approvalappointment on the post of class 3 and
Class
4th
post-prior
approval
contemplates-after the completion of
selection
and
before
issuance
of
appointment
letter
to
selected
candidates, D.I.O.S. granted permission
for
fresh
advertisement-selection
completed and such candidate already
joined-held-working without approval-
1076 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
confer
no
right
to
question
such
appointment-made
after
due
advertisement-particularly
where
no
challenge has been made.

Held: Para 22 & 25

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.

Coming to the appeal of Sanjay Kumar, it
is not the case of the appellant that any
approval
has
been
granted
to
the
selection
of
the
appellant
after
completion of selection process. Learned
counsel for Sanjay Kumar, appellant, has
placed reliance only on permission dated
5th March, 2001 of the District Inspector
of Schools for publishing advertisement.
We
have
already
held
that
the
permission to publish the advertisement
is not same thing as prior approval by
the District Inspector of Schools as
contemplated under Regulation 101.
Moreover,
after
first
advertisement
dated 8th March, 2001, the Principal
again issued advertisement on 28th April,
2002 on the basis of which selection has
already been made and a person has
already been appointed who has been
represented before us by Sri R.S. Misra,
Advocate, Sri R.S. Misra, Advocate has
rightly pointed out that the appellant is
not entitled for any relief since he has
not even challenged the selection of the
selected candidate on the basis of the
advertisement dated 28th April, 2002.
There being no approval to the selection
of the appellant, Sanjay Kumar, no error
has been committed by the learned
single Judge in dismissing the writ
petition filed by Sanjay Kumar.
Case law discussed:
1997 (2) UPLBEC-102
W.P. No. 36628 of 02 decided on 19.10.05

(Delivered by Hon'ble Ajoy Nath Ray, C.J.)

1. These two special appeals have
been heard together and are being
disposed of by this common judgment.

2. We have heard Sri R.K. Ojha,
learned counsel for the appellant in
special appeal of Jagdish Singh and Sri
S.K. Verma, Senior advocate, assisted by
Sri Siddharh Verma in special appeal of
Sanjay Kumar and Sri Ran Vijay Singh,
Learned Standing Counsel appearing on
behalf of the respondents.

3. Special Appeal No. 178 of 2006
filed by Jagdish Singh is against the
judgment
and
order
dated
27th
January,2006 passed by a learned single
Judge of this Court dismissing the writ
petition of the appellant challenging the
order of the District Inspector of Schools,
Bhadohi
dated
18th
September,2003
refusing to approve the appointment of
the appellant as Class IV employee of a
recognized aided institution, namely,
Indra Bahadur Singh International Inter
College, Bhadohi.

4. Brief facts necessary for deciding
the appeal no.178 of 2006 are; that a
Class IV vacancy arose in the institution
due to retirement of an incumbent. The
case of the appellant is that the committee
of management was permitted to start
process of selection by the District
Inspector of Schools vide his letter dated
11th March,!998 in pursuance of which
advertisement was issued on 11th March
1998 in pursuance of which advertisement
was issued on 11th March,1998 calling
the candidates to appear on 22nd
March,1998
at
!0.00
A.M.
in
the
institution for interview. The appellant's
case is that the appellant applied and
3 All] Jagdish Singh V. The State of U.P. and others
1077
appeared for interview and was selected
on 22nd March,1998 on which date the
appointment letter was also issued. The
papers were forwarded by the Principal to
the District Inspector of Schools for
approval, on18th September, 2003 after
an order of this Court dat5ed 4th
May,2003 passed in Writ Petition No.
20336 of 2000.the District Inspector of
Schools by the impugned order has taken
the view that the advertisement for
appointment of the appellant was not
published in two newspapers having wide
circulation nor the information of the
vacancy was given to the Employment
Exchange. The order further states that
details of the selection committee have
not been made available and it is also not
clear that how many applicants applied.
The permission office as per the statement
made by the Camp Clerk Sri V.D.
Pandey. The District Inspector of Schools
has further taken view that there is a ban
on the appointment, hence approval
cannot be granted. The order dated 18th
March, 1998Regional Committee and
subsequently another advertisement was
issued
on
28th
April,
2002
was
challenged by the appellant in the writ
petition which has been dismissed by the
learned single Judge.

5. Special appeal of Sanjay Kumar is
against the judgment and order dated 20th
February 2006 by which judgment a
learned single Judge has dismissed the
Writ Petition filed by the appellant. The
appellant had filed the writ petition
claiming that he is entitled for salary as
Class IV employee. The appellant's case
was that permission was given by the
district Inspector of Schools for filling up
Class IV post vide letter dated 5th March,
2001
and in pursuance of which,
advertisement was issued on 8thMArch,
2001 and thereafter the appointment letter
was issued to the appellant on 26th
March, 2001and was working. The papers
were forwarded for approval by the
District Inspector of Schools, which were
forwarded to the Regional Committee by
the District Inspector of Schools, which
were returned by the Regional Committee
and subsequently another advertisement
was issued on 28th April, 2002 in which
the appellant also participated and some
other person was selected and appointed.

6. Sri R.K Ojha as well as Sri S.K.
Verma, Senior Advocate appearing for the
appellants
submitted
that
under
Regulation 101 of Chapter III of U.P.
Intermediate
Education
Act,
1921
permission is required from the District
Inspector of Schools for filling up the post
and the permission having been granted
by the District Inspector of Schools for
appointment of the appellant, the selection
of the appellant was complete was
complete and no error was committed by
the
appointing
authority
in
giving
appointment letter and permitting the
appellant to join. It is submitted that the
permission
granted
by
the
District
Inspector of Schools, as claimed in the
case of Jagdish Singh dated 11th March,
1998 and dated5th march 2001 in the case
of Sanjay Kumar was sufficient which
fully empowered the appointing authority
to fill up the post.

7. Sri R.K Ojha also submitted that
the Rules, namely, The Group 'D'
Employees
Services
(U.P.)
Rules,
1985are not applicable with regard to the
appointment of Class IV employees in a
recognized aided institution under the
U.P. Intermediate Education Act, 1921
and the learned Single Judge committed
error in relying on the said Rules. Sri
1078 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Ojha
further
submitted
that
the
advertisement
was
made
in
one
newspaper, which was sufficient. A
number of applications received were
there and the selection being fair, the
District Inspector of Schools committed
error I rejecting the candidature of the
appellant.

8. Sri Ran Vijay Singh, learned
Standing Counsel, appearing for the
respondents, refuting the submission of
the learned counsel for the appellant,
contended that Regulation 101 of Chapter
III of the U.P. Intermediate Education
Act, 1921 contemplates 'prior approval'.
He submits that word 'approval' as used
in regulation 101 is not akin to prior
approval as contended by the learned
counsel for the appellant. He submits that
prior approval has to be accorded by the
District
Inspector
of
Schools
after
completion of entire process of selection
of an employee whose process started
with giving up intimation of vacancy as
contemplated
in
Regulation 104 of
Chapter III of U.P. Intermediate education
Act. Sri Ran Vijay Singh contended that
unless the District Inspector of Schools is
aware of the entire procedure of the
selection, qualification of the candidates,
their respective age and other detail facts,
no effective power to approve can be
exercised hence the approval has to be of
the entire process of selection which is to
be given immediately prior to appointing
a candidate. He submits word "fill up" as
used in Regulation 101 covers entire
process beginning from intimation of
vacancy culminating into submission of
the proceeding to the District Inspector of
Schools for consideration and approval
and it is at that stage the Inspector is in a
better position to check entire process and
effectively exercise the duty entrusted on
the Inspector. He submits that in aided
recognized institutions entire salary is
paid by the State and thus it is the
obligation of the District Inspector of
Schools also to look into all aspects of the
matter before permitting to fill up the
vacancy. Learned counsel for both the
parties
have
relied
upon
various
judgments of this Court which shall be
referred
to
while
considering
the
submissions.

9. First issue, which has arisen in
these appeals, is interpretation of 'prior
approval' as used in Regulation 101 of
Chapter
III.
Prior
to
insertion
of
Regulations
101
to
107
in
U.P.
Intermediate Education Act with effect
from 30th July, 1992, there was no express
provision under the U.P. Intermediate
Education Act, 1921 and the Regulations
framed thereunder requiring approval of
appointment of Class III and Class IV
employees, although the provisions were
there in the U.P. Intermediate Education
Act,
1921
regarding
approval
of
appointment of teachers. A Division
Bench of this Court in 1982 UPLBEC232 Om Prakash Vs. District Inspector
of Schools, Budaun and others, while
considering the appointment of Class IV
employee took the view that there is no
provision for approval of appointment of
Class IV employees. Regulations 101 to
107 were added providing for prior
approval before filling up the vacancy of
non-teaching post and providing for the
appointment of dependent of deceased
employee
and
a procedure thereof.
Regulations
101
to
104
of
the
Regulations, which are relevant for the
present case, are extracted below:-

"101. Appointing Authority except
with prior approval of Inspector shall not
3 All] Jagdish Singh V. The State of U.P. and others
1079
fill up any vacancy of non-teaching post
of any recognised aided institution.
Provided that filling of the vacancy on the
post of Jamadar may be granted by the
Inspector.

"102. Information regarding vacancy
as a result of retirement of any employee
holding a non-teaching post in any
recognised, aided institution shall be
given before three months of his 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.

103.

Notwithstanding anything
contained in these regulations, where any
teacher or employee of ministerial grade
of any recognised, aided institution, who
is appointed accordingly with prescribed
procedure, dies during service period,
then one member of his family, who is not
less that eighteen years in age, can be
appointed on the post of teacher in train
graduate grade or on any ministerial post,
if he possesses prescribed requisite
academic
qualifications,
training
eligibilities, if any, and he is otherwise fit
for appointment.

Provided that anything contained in this
regulation would not apply to any
recognised aided institution establish and
administered by any minority class.

Explanation- For the purpose of this
regulation "member of the family" means
widow or widower, son, unmarried or
widowed
daughter
of
the deceased
employee.

Note- This regulation and Regulations
104 to 107 would apply in relation to
those employees who have died on or
after 1 January, 1981.

104. Management of any recognised,
aided institution within seven days of the
date of death shall present a report to the
Inspector about the members of the family
of
deceased
employee,
in
which
particulars of name of the deceased
employee, in which particulars of name of
the deceased employee, post held, pay
scale, date of appointment, date of death,
name of the appointing institution and
names of his family members, their
academic and training eligibilities, if any,
and age shall also be given. Inspector
shall make entries of particulars of the
deceased in the register maintained by
himself.

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 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
1080 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
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. The submission,
which has been placed by the learned
counsel
for
the
appellant,
is
that
Regulation 101 means that before starting
to fill up any vacancy, prior approval of
the Inspector is required. He contended
that thus permission is required from
Inspector by the appointing authority to
start with process of selection and once
the permission is granted by the Inspector,
the appointing authority is free to proceed
with selection and make appointment.
They contended that the permission to
start
selection
is
one
which
is
contemplated in Regulation 101.

12. As noted above, there was no
provision prior to 30th July, 1992
requiring prior approval with regard to
Class III and Class IV posts. It is although
true that no procedure for filling up the
Class III and Class IV posts is contained
in the regulation, except the requirement
of the qualification which has been
mentioned in Chapter III Regulation 2 (1)
of the U.P. Intermediate Education Act.
The word 'approval' as rightly contended
by the learned standing counsel, is
approval of certain action which has
already been taken. Had the Legislature
intended that no selection process for
Class III and Class IV posts shall begin
without
permission
of
the
District
Inspector of Schools, the word 'approval'
would not have been used and the word
used would have been that without prior
approval or permission of the District
Inspector of Schools, the appointing
authority shall not commence selection
process. The word approval has been
defined
in
Webster's
Third
New
International Dictionary as 'the act of
approving,
approbation,
sanction,
certification as to acceptability.

13. A learned single Judge of this
Court had considered Regulations 101 in
1997 (2) UPLBEC 102, Dingur Vs.
District Inspector of Schools, Mirzapur
and others. In paragraph 23 of the
judgment it has been observed that prior
approval, which has been referred to in
Regulation 101, has to be granted after
examining the proceeding relating to the
appointment and finding out as to whether
the appointment was really necessary and
as to whether it was made after following
the procedure in a fair manner in
accordance with the provisions. Paragraph
23 of the judgment is quoted below:

"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
3 All] Jagdish Singh V. The State of U.P. and others
1081
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 concluded 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."

14. Another learned single Judge
had occasion to consider Regulation 101
in Writ Petition No. 36628 of 2002, Ram
Dhani Vs. State of U.P. and others and
Writ Petition No. 36630 of 2002, Kailash
Prasad Vs. State of U.P. and others. Vide
its judgment dated 19th October, 2005, the
learned single Judge, after considering the
Regulation 102, took view that previous
approval under Regulation 101 is required
to be taken before issuing advertisement
for filling up vacancy. Following was
observed by the learned single Judge:

"In the present case, from the record,
it transpires that no previous approval was
sought from the District Inspector of
Schools before making an advertisement.
In my opinion, previous approval under
Regulation 101 is required to be taken
before issuing an advertisement for filling
up the vacancy. Previous approval is
required at this stage and not at the stage
when a candidate is selected after the
advertisement. In the present case, no
permission was sought from the District
Inspector of Schools, Gorakhpur, prior to
the issuance of the advertisement. The
Committee of Management has also filed
a counter affidavit and has no where
stated that previous permission was taken
from the District Inspector of Schools,
Gorakhpur or that they had applied for
permission
before
issuing
the
advertisement.
Consequently,
the
appointment of the petitioner was ex-facie
in violation of Regulation 101 of the
Regulations. Consequently, no financial
approval could be accorded by the District
Inspector of Schools, Gorakhpur."

15. Against the above judgment of
the learned single Judge dated 19th
October, 2005, special appeal was filed,
which, was decided by our Division
Bench vide judgment dated 22nd February,
2006 in special appeal. Only two
submissions, raised before us, were dealt
with by us i.e. firstly if the District
Inspector of Schools fails to communicate
its decision within reasonable time, the
appointment shall be deemed to have been
made and secondly, Regulation 101 gives
uncanalised and unguided power to the
District Inspector of Schools to grant or
refuse approval, which itself is violative
of Article 14 of the Constitution. Both the
above contentions were repelled by us in
our judgment dated 22nd February, 2006.
While
considering
the
concept
of
approval,
we
made
the
following
observation in the said judgment.

"The concept of the approval of an
appointment is a well known concept
1082 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
under the U.P. Intermediate Education
Act, 1921 with regard to the appointment
by the Selection Committee for direct
recruitment as well as in the case of
promotion.
For
appointment
the
procedure is prescribed in the various
Regulations.
The
qualification
for
appointment is also provided in ChapterIII and other provisions of the Act and the
Regulations framed. While considering
the question of approval of appointment
of a candidate, the District Inspector of
Schools has to act in accordance with the
other express provisions provided for
qualification, eligibility and procedure
prescribed for selection. It cannot be said
that
the
power
of
approval
as
contemplated under Regulation 101 is not
hedged by any guidance or qualification.
It is not in the discretion of the District
Inspector of Schools to pass an order for
approval or disapproval at his sweet will.
He has to pass an order taking into
consideration the other provisions and
Regulations
of
the
Act.
Thus
the
submission of the learned counsel for the
appellant
that
the
said
power
is
uncanalised and the provision itself is
arbitrary, cannot be accepted."

16. The submission, which is now
being raised before us in these appeals,
was neither considered by us nor was
pressed before us in the special appeal
decided on 22nd February, 2006, although
we have approved the judgment of the
learned single Judge dismissing the writ
petition but the question as to whether the
prior approval is required to be taken
before issuing an advertisement for filling
up vacancy was neither canvassed before
us nor felt for our consideration.

17. Original Notification by which
Regulation 101 to 107 was inserted in
Chapter III is in Hindi. It is useful to
reproduce the original Regulation 101
which is as follows:

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

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

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 recognised 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
3 All] Jagdish Singh V. The State of U.P. and others
1083
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
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 condidate.
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 Vs.
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.

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
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
1084 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
of appointment letter to the selected
candidate.

23. The second submission, with
regard to the applicability of the Group
'D' Employees (U.P.) Service Rules,
1985 to selection of Class IV posts in a
recognized aided institution, Sri Ojha
contended that the said Rules are not
applicable. Further Sri Ojha contended
that for the first time the said Rules were
made applicable to the selection of Class
IV posts vide letter dated 1st June, 2001 of
the Director of Education issued in
pursuance of some letter written by the
State Government dated 11th May, 2001
and the selection of the appellant being
earlier in point of time, the said Rules
were not applicable in the present case.
Sri Ojha has further submitted that it is
not
necessary
to
decide
the
issue
regarding the applicability of 1985 Rules
to the selection of the Class III and Class
IV employees. Sri Ran Vijay Singh
submits that since, according to the
petitioner's case, the said 1985 Rules
have been made applicable by the letter of
the Director of Education dated 1st June,
2001 and the appellant's selection being
of the year 1998, thus 1985 Rules cannot
be applied to the appellant. In view of the
aforesaid, we have not examined the
submissions regarding the applicability of
1985 Rules with regard to selection on
Class III and Class IV posts in a
recognized aided institution and the said
question is left open.

24. Coming to the submission of Sri
R.K. Ojha on merits of the order passed
by the District Inspector of Schools
refusing approval, it is clear that the
District Inspector of Schools, not being
satisfied that the advertisement was
published in two newspapers having wide
circulation and there being no details of
the candidates, who have applied against
the post and there being no information to
Employment Exchange, the approval was
refused. The advertisement, on which
reliance has been placed by the learned
counsel for the appellant, has been filed as
Annexure '2' to the affidavit filed in
support of memo of appeal. The case of
the appellant is that the District Inspector
of Schools has granted permission on 11th
March, 1998 to take steps for appointment
by completing all formalities. The said
letter is Annexure '1'. The District
Inspector of Schools in the order although
has not accepted the said letter dated 11th
March, 1998 having been issued from the
office of the District Inspector of Schools
but it is not necessary to express any
opinion as to whether the said letter was
issued or not by the office of the District
Inspector of Schools due to one reason as
noticed below. The letter of the District
Inspector of Schools granting alleged
permission is dated 11th March, 1998. The
advertisement, which is said to be issued
in newspaper 'Janvarta' is also of the
same date i.e. 11th March, 1998. How it
was possible to get the advertisement
published on 11th March, 1998 when the
permission is being granted by the District
Inspector of Schools on 11th March, 1998
itself. In the advertisement dated 11th
March, 1998, 22nd March, 1998, i.e. just
eleven days after the date has been fixed
for interview. We are satisfied that the
District Inspector of Schools has rightly
taken the view that there was no proper
advertisement of the vacancy and the
view taken by the District Inspector of
Schools
refusing
to
approve
such
appointment cannot be said to be based on
no material or perverse. We are unable to
interfere with the order of the District
Inspector
of
Schools
dated
18th
3 All] Jagdish Singh V. The State of U.P. and others
1085
September, 2003 refusing to approve such
appointment.

25. Coming to the appeal of Sanjay
Kumar, it is not the case of the appellant
that any approval has been granted to the
selection of the appellant after completion
of selection process. Learned counsel for
Sanjay Kumar, appellant, has placed
reliance only on permission dated 5th
March, 2001 of the District Inspector of
Schools for publishing advertisement. We
have already held that the permission to
publish the advertisement is not same
thing as prior approval by the District
Inspector of Schools as contemplated
under Regulation 101. Moreover, after
first advertisement dated 8th March, 2001,
the Principal again issued advertisement
on 28th April, 2002 on the basis of which
selection has already been made and a
person has already been appointed who
has been represented before us by Sri R.S.
Misra,
Advocate,
Sri
R.S.
Misra,
Advocate has rightly pointed out that the
appellant is not entitled for any relief
since he has not even challenged the
selection of the selected candidate on the
basis of the advertisement dated 28th
April, 2002. There being no approval to
the selection of the appellant, Sanjay
Kumar, no error has been committed by
the learned single Judge in dismissing the
writ petition filed by Sanjay Kumar.

In view of the foregoing discussions,
both the appeals are dismissed. The
parties shall bear their own costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.07.2006

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No. 36139 of 2003

Uttar Pradesh State Road Transport Corpn.
Ltd.,
through
the Regional Manager,
Regional Office, Gorakhpur ...Petitioner
Versus
Rajendra Prasad & others ...Respondents

Counsel for the Petitioner:
Sri Ajay Singh

Counsel for the Respondents:
Sri S.K. Srivastava
Sri J.P. Gupta
S.C.

Constitution of India, Art. 226-Dismissal
Order-challenge on the ground harsh
punishment-disproportionate-petitioner
held guilty for carrying 24 passengers
without ticket-snatched away the way
bill
from
Asstt.
Traffic
Inspectorthreatening
and
misbehaving
with
checking
officer-held-considering
the
conduct
of
employee-dismissal
from
service-proper.

Held: Para 15 & 16

In the present case, the respondent was
found guilty in carrying on the 24
passengers
without
ticket.
In
my
opinion, this conduct of the respondent
is sufficient to dismiss him from the
services in view of law laid down by the
Apex Court.

The issue involved in the present case is
squarely covered by the decisions of the
Apex Court in the case of Karnataka
SRTC Vs. B.S. Hullikatti (Supra), Regional
Manager, RSRTS Vs. Ghanshyam Sharma,
reported in 2002 (10) SCC, 330, U.P.
S.R.T.C. Vs. Mahendra Nath Tiwari and