# Rajesh Kumar Misra v. State of U.P. and others

- **Citation:** (2013) 1 ILRA 53
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-12-04
- **Bench:** Visnhu Chandra Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-kumar-misra-v-state-of-u-p-and-others-42420
- **Pages:** 10

## Headnote

Act
1921,
Chapter 3 (Regulation 101 to 104) as
amended 1992-the appointment on the
post of Class IV employee in aided
intermediate
institution-vacancy
caused due to retirement of permanent
incumbent on the same day another
vacancy of Class III employee occurred
due to death in Harness-claim for
compassionate
appointment
already
processed-accepted
by
D.I.O.S.-the
Principal
without
taking
prior
permission/information
made
direct
appointment and send the papers for
approval-refusal
by
D.I.O.S.-heldproper-according
to
mandatory
provisions of regulations 101 to 107without
waiting
the compassionate
appointment-finally authority can not
proceed to make direct recruitmentCourt
declined
to
interfere-as
compassionate
appointment
has
already been made-another existing
vacancy of Class IV post can be madesubject to fulfillment of mandatory
requirements of regulation.
54 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Held: Para-27

In view of the fact that the person
waiting for compassionate appointment,
for whom information was sought by the
DIOS by its letter dated 20.3.2010, have
already given appointment on another
vacant post, it would be proper that
Principal may initiate fresh process of
selection to fill up the vacant post, if any
available in class IV cadre, of course,
subject
to
fulfillment
of
mandatory
requirements of regulations 101 to 107
of Chapter III of Sub section 6 of Section
16 of the Act and also in accordance with
the provisions of law.

## Text

1 All] Rajesh Kumar Misra V. State of U.P. and others
53

9. In our considered view, while
issuing notice/order for demolition, it is
imperative
upon
the
authorities
concerned to indicate in the notice as to
how much area of the property was the
subject
matter
of
unauthorized
constructions. Had a proper show cause
notice been served upon the petitioner,
he could have shown that the alleged
violation of the provisions of the Act is
of negligible character, which did not
warrant order of demolition. Aforesaid
view of ours, is fortified by the decision
rendered
by
the
Apex
Court
in
Municipal
Corporation,
Ludhiana
Versus Inderjit Singh and another
reported in 2008 (13) SCC 506.

10. In the instant case, since the
description of unauthorized construction
has not been indicated in the impugned
order of demolition, it cannot be
sustained. It appears that authorities were
swayed with the fact that constructions
were raised without getting the lay out
plan sanctioned but later on, in the
counter affidavit, they admitted that the
petitioner did get the lay out plan
approved
but
raised
unauthorized
constructions.

11. In view of the above, the
impugned order of demolition dated
7.6.2001 being defective in nature, is
hereby quashed.

12. The writ petition stands allowed
in above terms.
----------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.12.2012

BEFORE
THE HON'BLE VISNHU CHANDRA GUPTA, J.

W.P.No. 3158 (S/S) of 2011

Rajesh Kumar Misra, aged about 35
years, S/O Sri Dwarka Prasad Misra,R/O
C-335, Avas Vikas Colony, Mira Bhawan,
Pratapgarh,

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri L.P.Misra, Senior Advocate , Advocate

Counsel for the Respondents:
Standing Counsel

Intermediate
Education
Act
1921,
Chapter 3 (Regulation 101 to 104) as
amended 1992-the appointment on the
post of Class IV employee in aided
intermediate
institution-vacancy
caused due to retirement of permanent
incumbent on the same day another
vacancy of Class III employee occurred
due to death in Harness-claim for
compassionate
appointment
already
processed-accepted
by
D.I.O.S.-the
Principal
without
taking
prior
permission/information
made
direct
appointment and send the papers for
approval-refusal
by
D.I.O.S.-heldproper-according
to
mandatory
provisions of regulations 101 to 107without
waiting
the compassionate
appointment-finally authority can not
proceed to make direct recruitmentCourt
declined
to
interfere-as
compassionate
appointment
has
already been made-another existing
vacancy of Class IV post can be madesubject to fulfillment of mandatory
requirements of regulation.
54 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Held: Para-27

In view of the fact that the person
waiting for compassionate appointment,
for whom information was sought by the
DIOS by its letter dated 20.3.2010, have
already given appointment on another
vacant post, it would be proper that
Principal may initiate fresh process of
selection to fill up the vacant post, if any
available in class IV cadre, of course,
subject
to
fulfillment
of
mandatory
requirements of regulations 101 to 107
of Chapter III of Sub section 6 of Section
16 of the Act and also in accordance with
the provisions of law.

(Delivered by Hon'ble Visnhu Chandra
Gupta, J.)

J U D G M E NT

1. Challenge in this writ petition is an
order dated 03.05.2011 (Annexure-1 to the
writ petition) passed by opposite party no.
4
(District
Inspector
of
Schools,
Pratapgarh,(hereinafter
referred
to
D.I.O.S.) by which the approval for
appointment of the petitioner as Class IV
employee in Brijendra Mani Inter College,
Kohdaur, District Pratapgarh was not
accorded.

2. The brief facts giving rise to this
petition are that Brijendra Mani Inter
College (in short 'School')) is a recognized
government aided institution under the
provisions of Intermediate Education Act,
1921 (hereinafter referred to as Act). On
account of retirement of one Rameshwar
Prasad on 31.10.2009 a substantive
vacancy occurred in the cadre of Class IV.
On the same day another vacancy in cadre
of class III was occurred on account of
death of one Ajay Pratap Maurya, who
died in harness. Smt. Rekha, W/O
deceased
Ajay
Pratap
was
seeking
appointment of his son Santosh Kumar on
compassionate ground through a letter
given to DIOS. The DIOS by its letter
dated
20.3.2010
asked
for
certain
information from the principal of school in
regard to the compassionate appointment
to be made in the light of the application of
Smt. Rekha Devi. DIOS informed Smt.
Rekha Devi by the same letter that she may
apply to the principal of school for
compassionate appointment of his son
because, the application for compassionate
appointment should be proceeded through
the principal so further action may be taken
thereon. In reply to this letter of DIOS
principal intimated DIOS by his letter
dated 15.5.2010 that the petitioner Rajesh
Kumar Misra has been appointed against
the vacant post in Class IV cadre on
account of vacancy occurred due to
retirement of Rameshwar Prasad. He
further informed that now no post is lying
vacant in Class IV cadre. This letter
appears to have been written by the
Principal with an intention to informe the
DIOS that he had already made the
appointment of the Petitioner of this case
Sri Rajesh Kumar Misra, and now no
vacancy exist in the Class IV cadre. It also
reflect that the principal was not inclined to
make
compassionate
appointment
of
Santosh Kumar, son of deceased Ajay
Pratap, who died in harness, on the vacant
post in class IV cadre.

3. It is not in dispute that the matter
for compassionate appointment of Santosh
Kumar was pending consideration when
principal issued appointment letter to the
of petitioner. Consequently approval of
appointment of petitioner was rejected by
DIOS vide his order dated 25.5.2010.

4. Aggrieved by it the present
petitioner filed a writ petition in this court
1 All] Rajesh Kumar Misra V. State of U.P. and others
55
having no. 6052 (S/S) 2010 (Rajesh Kumar
Misra V/S U.P. State and ors.). The
aforesaid writ petition has been disposed of
finally by an order dated 1.11.2010(
Annexure-9 to the writ petition). The order
passed by this court dated 1.11.2010 is
reproduced herein below, :-

"Heard Sri Nagendra B. Singh,
learned counsel for the petitioner and
learned
Standing
counsel
for
the
respondents.

Case of the petitioner is that after
proper selection his name was sent to the
District Inspector of Schools for prior
approval. The petitioner says that the
District Inspector of Schools has rejected
his case vide order dated 25.5.2010 as
contained in Annexure-7. The ground
taken by the District Inspector of Schools
is that prior permission before starting of
the selection process was not obtained
hence the appointment order can not be
issued and the selection is bad.

Learned counsel for the petitioner has
annexed the order of Jagdish Singh Vs.
State of U.P. and others, (2006) 2
UPLBEC 1851 in which this controversy
has been cleared and it has been held that
prior permission before initiation of the
selection process is not required. Only
after due process has been adopted and a
candidate has been selected the papers
have to be sent to the District Inspector of
Schools and then a prior approval before
order is issued is required. In the present
case, the papers are pending with the
District Inspector of Schools and the
District Inspector of School has rejected
the case erroneously in contravention of
the law laid down in the case of Jagdish
Singh (supra).

Learned Standing counsel has fairly
informed the Court about the legal position
as observed in Jagdish Singh (supra).

Accordingly,
the
order
dated
25.5.2010 is hereby quashed. The District
Inspector of Schools, Pratapgarh is
directed to look into the matter again and
pass fresh orders in accordance with law
laid down in the case of Jagdish Singh
(supra) within a period of one month from
the date a certified copy of this order is
placed before him.

The writ petition is thus allowed."

5. In pursuance of the order passed
by this court on 1.11.2010 matter was
reconsidered. The DIOS issued letter dated
19.11.2010 to the Principal of the school(
Annexure -17 to the writ petition). This
letter is also reproduced herein below as
follows:-

ftyk fo|ky; fujh{kd

izrkix< A

lsok esa

iz|kukpk;Z

o`tsUnz ef.k b0 dk0

dksIgksj+] izrkix< A

dzekad % ek0 iVVh @ 19895 & 95 @ 2010 & 11
fnukad % 19-11-10-

fo"k; %& fjV ;kfpdk la0 % 6052 ¿ ,l- ,e-À @
2010 jkts'k dqekj feJk cuke m0 iz0 ljdkj o vU;
esa ek0 mPp U;k;ky; }kjk ikfjr vkns'k fnukad % 0111-2010 ds laca/k esa A

egk'k;~

mi;qZDr fo"A;d ds lanZHk esa dguk gS fd vki
}kjk fo+|ky; esa Jh jkts'k dqekj feJk dh prqFkZ Js.kh
deZpkjh in ij fu;qfDr iwokZuqefr izkIr fd;s fcuk gh
fu;qfDr djyh x;h gS ftldh lwpuk vkids i=
56 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
fnukad 15-5-2010 }kjk voxr djk;k x;k gS fd
fo|ky; esa prqFkZ Js.kh dh fu;qfDr dj yh x;h gS
vc dksbZ in fjDr ugha gS A vki }kjk dh x;h
fu;qfDr vfu;fer ,oa voS|kfud gS A oknh Jh jkts'k
dqekj feJk us ek0 mPp U;k;ky; esa fjV pkfpdk la0
6052 ¿ ,l- ,e-À @ 2010 nkf[ky fd;k ftlesa ek0
mPp U;k;ky; us fnukad % 01-11-2010 dks vkns'k
ikfjr fd;k rFkk funsZf'kr fd;k fd ftyk fo|ky;
fujh{kd mDr vkns'k fnukad 01-11-2010 esa mfYyf[kr
txnh'k flag cuke m0 iz0 ljdkj o vU; ¿ 2006À
esa ikfjr vkns'k ds vuqikyu esa dk;Zokgh lqfuf'pr
djsa A

ek0 mPp U;k;ky; ds vkns'k fnukad % 01-112010 ds vuqikyu esa fnukad % 27-11-2010 dks izdj.k
ij lquokbZ dh frfFk izkr% 10%00 cts v|ksgLrk{kjh
d{k esa lqfuf'pr dh tkrh gS A vr% vkidks voxr
djk;k tkrk gS fd mDr lquokbZ dh frfFk, le; o
LFkku ij fuEu lwpuk,a@ vfHkys[kksasa,s vfHkdFkuksa ds
lkFk mifLFkr gksus dk d"V djsa ftlls izdj.k ij
lquokbZ djds vfxze dk;Zokgh dh tk lds A

01- prqFkZ Js.kh deZpkjh ds in ltu dh Nk;k izfr
izekf.kr A

02- prqFkZ oxhZ; dk;Zjr deZpkjh dh fu;qfDr frfFk,
tUe frfFk] fu;qfDr dk izdkj, tkfr okj fooj.k o
'kSf{kd ;kasX;rk osru vkgfjr gks jgk gks A

03- fjDr inks dh la[;k A

04 fjDrh dk dkj.k A

05- la[;k esa dksbZ e`rd vkfJr 'ks"k rks ugha gS dk
izek.k iz= A

Hkonh;
gk0 @ vkse izdk'k feJ
ftyk fo|ky; fujh{kd
izrkix<

izfrfyfi %& ;kph Jh jkts'k dqekj feJ iq= Jh
}kfjdk izlkn feJ lh0& 335 vkokl fodkl dkWyuh
ehjk Hkou izrkix< dks bl funsZ'k ds lkFk izsf"kr fd
os ek0 mPp U;k;ky; ds vkns'k

fnukad % 1-11-2010 esa mfYyf[kr txnh'k flag
cuke m0 iz0 ljdkj o vU; 2006 esa ikfjr ek0
U;k;ky; ds vkns'k dh iBuh; izfr ds lkFk rFkk
vius vfHkdFkuksa ds lkFk fu/kkZfjr lquokbZ gsrq le;]
frfFk o Lfkku ij mifLFr gksdj lquokbZ esa lg;ksx
iznku djsa A

02- izcUl/kd c`tsUnz ef.k b0 dk0 dksgMksj]
izrkix< dks lwpukFkZ izsf"kr A

gk0 @ vkse izdk'k feJ
ftyk fo|ky; fujh{kd
izrkix<

6. When DIOS did not received the
reply of the aforesaid letter written by him
to the principal the DIOS proceeded to
summon the principal along-with relevant
record for hearing the matter on 18th of
December,
2010.
The
parties
were
informed by letter dated 10.12.2010 of the
aforesaid date fixed for hearing. The
Principal and the Rajesh Kumar Misra (the
present petitioner) both appeared on
18.12.2010. During the course of hearing
the Principal informed that on account of
vacancy occurred on 31.10.2009 due to
retirement of Rameshwar Prasad Yadav in
Class IV cadre, the same was filled. The
vacancy was published in News Paper. The
selection committee was also constituted
for filling up the vacancy. The committee
after
complying
all
the
procedural
requirements appointed Rajesh Kumar
Misra on 23.11.2009 on Class IV post. The
petitioner Rajesh Kumar Misra joined
office on 26.11.2009 and he continued to
work on the said post. His work and
conduct is satisfactory and Rajesh Kumar
Misra is entitled to salary from the date of
his joining and he filed the required
documents and asked for the approval of
the appointment of Sri Rajesh Kumar
Misra. The DIOS after considering the
material on record and the statement made
by the Principal passed the impugned order
dated 3.5.2011. The relevant portion of
which is produced herein below :-
1 All] Rajesh Kumar Misra V. State of U.P. and others
57

";gkW ;g mYys[kuh; gS fd i= fnukad 20-032010 }kjk ,slh dksbZ lwpuk ugh ekWxh x;h Fkh tks
;kph Jh jkts'k dqekj feJ ds fu;qfDr ls lEcfU/kr
fdlh Hkh izdkj dk i=ktkr vkfn dk;kZy; esa ugh
izLrqr fd;k x;kA ;gkW rd fd lquokbZ ds le; Hkh
dksbZ i=ktkr vkfn dk;kZy; esa ugh izLrqr fd;k x;k
A lquokbZ ds le; ekWxs tkusa ij muds }kjk ;g dgk
x;k fd fnukad 05-12-10 esa nh x;h vk[;k ds
vuqlkj mUgs vkSj dqN ugh dguk gSa A u gh in
fjDr gksus dh dksbZ lwpuk nh x;h vkSj u gh b.Vj
ehfM,V f'k{kk vf/kfu;e 1921 dh /kkjk 161⁄461⁄2 esa cus
fofu;e 101 v/;k; 1⁄431⁄2 ds vUrxZr in Hkjusa dh
ekWx, u rks fu;qfDr ds igys dh x;h vkSj u rks
fu;qfDr ds ckn esa gh dh x;h A iz/kkukpk;Z }kjk
vius vfHkdFku fnukad 05-12-2010 esa osru Hkqxrku
dh vkSipkfjd Lohd`fr fcuk fu;qfDr lEcU/kh i=ktkr
izLrqr djds dh x;h gSa tks mfpr ,oa U;k; laxr
ugha gS A

fu.kZ;

Jh jkts'k dqekj feJ dks jkT; ljdkj ds
vuqnku ls osru Hkqxrku dh dksbZ ns;rk ugh curh gS
A vr% iz/kkukpk;Z ,oa ;kph dh ekWx ds vuqlkj osru
Hkqxrku djus dh vkSipkfjd Lohd`fr iznku fd;k
tkuk lEHko ugh gS A

1⁄4Mk0 vkse izdk'k1⁄2
ftyk fo|ky; fujh{kd
izrkix< "

7. The DIOS again did not approved
the
appointment
of
the
petitioner.
Aggrieved by the order rejecting the
approval for appointment by impugned
order the petitioner filed this writ petition
for quashing the same.

8. It is important to mention here that
neither the management nor Principal of
school challenged the order passed by the
DIOS
rejecting
the
approval
of
appointment of the petitioner made by the
principal on the basis of recommendation
given by the Selection Committee. From
perusal of the material on record it reveals
that the earlier order passed on 25.5.2010
by which the petitioner alleged that his
appointment has not been approved is on
record as Annexure-8. The perusal of
which reveals that a reference has been
made of the letter dated 15.5.2010 of the
Principal who informed that Rameshwar
Prasad retired on 31.10.2009. The vacancy
was occurred and the same was filled up
by making appointment of petitioner
Rajesh Kumar Misra. No vacancy has been
available in Class-IV cadre.

9. It is important to mention here that
letter dated 15.5.2010 has not been brought
on record either by the petitioner or by the
Principal or the Management Committee
of the institution. From the perusal of the
impugned order it reveals that letter dated
15.5.2010, which was issued in reply to the
letter dated 23.3.2010 issued by DIOS
requiring certain information with regard
to consider the compassionate appointment
of Santosh Kumar. It also appears that by
the letter dated 15.5.2010 the Principal
informed the DIOS that Rajesh Kumar
Misra has been appointed on the vacant
post and asked for its approval. The DIOS
was of the opinion that appointment made
was not in accordance with regulations of
Chapter III framed under Section 16(6) of
the Act.

10. The order dated 1.11.2010 passed
by this court, by which the DIOS was
directed to re-consider the matter, a
reference has been made therein of a
judgment reported in 2006 (2) UPLBEC
1851 Jagdish Singh V/S State of U.P.
and Ors. This is the judgement on the
basis of which DIOS required to reconsider the matter.

11. In this case the counter affidavit
on behalf of Respondent no. 1 to 5 was
filed for whom notice has been accepted
58 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
by the Chief Standing Counsel. In spite of
service upon respondent no. 6 and 7, the
Committee of Management and Principal
of School, no counter affidavit has been
filed and they did not chose to contest this
petition.

12. Petitioner filed a supplementary
affidavit
along
with
9
annexures.
Annexure-1 is the letter dated 4.12.2009,
which is said to have been issued by the
Principal of the School informing the
appointment of Rajesh Kumar Misra to
DIOS and asking for formal approval of
the appointment. Enclosers 1 to 9 to this
letter were also filed. Another letter alleged
to have been issued by the Principal of the
School on 5.12.2010, has also been
annexed
as
Annexure
-2
to
this
supplementary affidavit wherein the details
of Class IV cadre were given. It was
informed therein that three matters for
compassionate appointment were pending.
In the counter affidavit filed on behalf of
respondent no. 2,3 and 4 it has been
categorically stated that the Principal of the
School did not produce any paper or
documents regarding the appointment of
the petitioner during the course of hearing
of the matter by the DIOS. This allegation
has not been controverted by the Principal
or the Management Committee of the
School by filing their counter affidavit.
Moreover no papers were filed by
respondent no. 6 and 7 in this writ petition.
The papers which said to have been filed
by the petitioner, are those papers which
has been purported to be written by
Principal and ought to have been filed by
the
Principal
or
the
Management
Committee of this School. From the
perusal of the Supplementary affidavit
filed in support of this writ petition it has
not been disclosed by the petitioner that
from where he got these papers and who
handed over these papers to him.

13. In view of the aforesaid facts, the
matter has to be considered by this court.

14. Sri L.P.Mishra, learned Senior
Advocate appearing for the petitioner
submits that the impugned order is not
sustainable in view of the judgment of the
Division Bench of this court in Jagdish
Singh's case (Supra). It was further
submitted that the Division Bench of this
court while considering the regulation
framed under Chapter III of Section 16(6)
of the Act held that the prior approval of
the Inspector is not necessary. Hence, the
order impugned is liable to be set aside and
this court is required to approve the
appointment of the petitioner made by the
principal on the vacant post.

15. It was further submitted that the
grievance of the DIOS has now set at rest
because of the fact that to the dependent of
Ajay Pratap, who died in harness on 31st
October 2009, appointment has been given
against a vacancy occurred on 31.08.2007
due to retirement of one Raja Ram Pandey
a Class IV employee vide resolution dated
23.12.2010. The relevant record regarding
appointment annexed as Annexure-14 to
this writ petition. Therefore, now there is
no impediment in granting the approval of
the appointment of the petitioner.

16. The learned Standing Counsel
submits that while passing the impugned
order the decision rendered in Jagdish
Singh's case (Supra) by the Division Bench
of this court has been rightly and properly
applied by the DIOS. It was further
submitted that in view of the regulation
104 of Chapter III, which has been
amended in the year 1992 and is also
1 All] Rajesh Kumar Misra V. State of U.P. and others
59
reproduced in Jagdish Prasad's Case
(Supra), made it clear that matters relating
to
compassionate
appointment
were
pending and the vacant posts should be
filled first by making compassionate
appointment and direct recruitment shall
not be made ordinarily on such post. He
further submits that the scheme of
Regulation 101 to 107 is that while filling
of the vacancy of Class IV preference
should be given to the person waiting for
appointment under compassionate ground
and direct recruitment would not be
permissible. Here in this case the principal
concerned who is also one of the party to
this petition purposely concealed the
material facts which ought to have been
furnished by him in reply to letter of DIOS
informing the appointment made by him of
the petitioner.

17. Replying the second limb of
argument advanced by the counsel for the
petitioner the learned Standing Counsel
submits that the papers filed by the
petitioner
are
not
admitted
to
the
respondents as their receipt of the same is
not acceptable to them. In the alternative it
was submitted that even if those papers are
taken into consideration, the letter dated
15.5.2010 was material wherein the
Principal has mentioned that after making
the appointment of petitioner no vacancy
in Class IV exists in the School. This
information is patently wrong in view of
Annexure-14 to the writ petition, which is
a resolution dated 23.12.2010. In this
resolution it has been mentioned that the
compassionate
appointment
of
the
dependent of Ajay Pratap was made
against the vacant post of 31.11.2007. It
was further submitted that the Principal
and committee both while making the
appointment of the petitioner not adhered
to the mandatory procedure prescribed
under the regulations. Therefore, DIOS
was
rights
in
not
approving
the
appointment of the petitioner.

18. It was further submitted by the
learned Standing Counsel that perusal of
the impugned order clearly demonstrated
that
neither
before
making
direct
recruitment as exception nor before issuing
appointment letter to the petitioner,
approval
was
sought
from
DIOS.
Therefore, the law laid down in Jagdish
Singh's case (Supra) has not been adhered
to by the School authorities and there is no
illegality, infirmity or impropriety in the
impugned order.

19. It was further submitted by the
learned Standing Counsel that proxy
litigation should not be permitted by this
court specially when the order refusing to
accord the approval of appointment of the
petitioner has not been challenged by the
Principal and management committee of
the School. In such situation, the petitioner
has no right to assail the impugned order.

20. It was further submitted by the
learned Standing Counsel that issuing the
appointment letter and permitting the
joining of the petitioner without approval
is contrary to the provisions contained in
regulation 101 as explained by the
Division Bench of this court in Jagdish
Singh's case (Supra). On these grounds the
learned Standing Counsel submits that this
petition has no merit and deserves to be
dismissed with cost.

21. After considering the submissions
made at bar it is necessary to reproduced
the relevant regulation of Chapter III
framed under Section 16(6) of the Act
which
are
in
operation
after
the
amendment of 1992. The Regulations 101,
60 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
102,
103
and
104
are
reproduced
hereinbelow :-

" 101 Appointing Authority except
with prior approval of Inspector shall not
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
recognized, 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
than eighteen years in age, can be
appointed on the post of teacher in trained
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 Ist 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, 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."

22. Words 'prior approval' used in
regulation 101 has been explained in
Jagdish Singh's case. The Division Bench
while explaining the same in Para 20, 21
and 22 has observed that the prior approval
by the District Inspector of School is
required after completion of the process of
selection and before issuance of the
appointment
letter
to
the
selected
candidate. Para 20, 21 and 22 of Judgment
of Jagdish Singh's case (Supra) are
reproduced herein below:-

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
1 All] Rajesh Kumar Misra V. State of U.P. and others
61
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 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.

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
of
appointment
letter
to
the
selected
candidate.

23. Admittedly, the letter part of
mandate of Jagdish Singh's case (Supra)
has not been observed by the Principal of
the School. He issued appointment letter
and permitted to join the petitioner in the
school without prior approval of the DIOS.

24. So far as the earlier part of this
exercise conducted by the Principal is
concerned, in the opinion of this court the
Principal was not competent to initiate the
process of direct recruitment to fill up the
vacancy occurred on account of retirement
of Rameshwar Prasad in the cadre of Class
IV unless all the matters relating to
compassionate
appointment
are
not
disposed of. In such situation if there was
some emergency or any compelling
circumstances
for
making
immediate
appointment
then
the
Principal
or
management of School was under statutory
obligation to present a case before DIOS
and to seek permission to fill up the
vacancy
by
direct
recruitment
after
62 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
suspending
the
process
of
making
compassionate appointment on the vacant
post, which admittedly has not been done
by the Principal or the management of the
School.

25. From perusal of the regulations
from 101 to 107 there is a scheme and
there exists a legislative intent behind it. It
leaves no room to doubt that until the
applications of the persons waiting for
compassionate appointment are finally
disposed of , the appointing authority
should not proceed to make direct
recruitment on the vacant post. If it was
necessary in the interest of the institution
to make immediate appointment the
appointing authority, i.e., Principal must
place the reasons in writing before District
Inspector of School and must seek prior
permission to make direct recruitment on
the vacant post.

26. In the aforesaid situation without
giving
much
importance
to
the
correspondence alleged to have been taken
place in between the Principal and the
DIOS as alleged according to petitioner,
this court is of the view that this matter
may be decided on the broader legal aspect
of the case. In view of willful violation by
principal
of
the
statutory
mandate
contained in regulations 101 to 107 as
discussed above, the impugned order of
DIOS cannot said to be against the law or
facts.

27. In view of the fact that the person
waiting for compassionate appointment,
for whom information was sought by the
DIOS by its letter dated 20.3.2010, have
already given appointment on another
vacant post, it would be proper that
Principal may initiate fresh process of
selection to fill up the vacant post, if any
available in class IV cadre, of course,
subject
to
fulfillment
of
mandatory
requirements of regulations 101 to 107 of
Chapter III of Sub section 6 of Section 16
of the Act and also in accordance with the
provisions of law.

28. In view of the aforesaid
observations, this writ petition lacks merit
and is liable to be dismissed.

29. Accordingly, writ petition is
dismissed. There shall be no order as to
costs.
---------
 ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.12.2012

BEFORE
THE HON'BLE AJAI LAMBA, J.

Crl. Misc. Case No.4208 (B) of 2012.

Musheer Ahamad @ Munna

 ...Petitioner
Versus
State of U.P.

 ...Respondents

Code of Criminal Procedure-Section 439bail application-offence under Section
8/21 Narcotic Drugs and Psychotropic
Substances Act, 1985 -on ground of non
fulfillment of the formalities issued
under circular date 05-05-2012-recovery
of 260 gm Morphine without using
weightment
scale-using
word
"approximately"-itself clear violation of
the
circular-substance
less
than
commercial quantity-entitled for bailsubject to heavy surety.

(Delivered by Hon'ble Ajai Lamba, J.)

1. Applicant prays for bail in Case
Crime No.120 of 2012 under Section 8/21
Narcotic
Drugs
&
Psychotropic