# Rakesh Chandra Sharma v. State of U.P. and others

- **Citation:** (2001) 1 ILRA 154
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-chandra-sharma-v-state-of-u-p-and-others-39584
- **Pages:** 5

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2001
154
authority, thought it proper to fix a time
limit, it clearly provided the time within
which the power is to be exercised and it
the power is not exercised within fixed
time limit, it provided that it would be
deemed that prior approval has been
granted by the educational authority, in
regulation 6 of chapter II of the
regulations deemed approval has been
provided if on the proposal for promotion
of a teacher, the DIOS does not
communicate his decision within three
weeks to the management. The provision
for deemed approval, therefore, was a
conscious omission. It is settled rule of
interpretation that where legislature or the
rule making authority enacts different
provisions for similar situation, then it
should be interpreted in the manner it has
been provided for. On the construction of
the regulation 101 and in absence of any
provision for deemed approval the learned
standing counsel rightly argued that the
decision in Rajendra Yadav (supra) is not
helpful.

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

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

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

This writ petition fails and is
accordingly dismissed.

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1All] Rakesh Chandra Sharma V. State of U.P. and others 155
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By the Court

1. Janta Uchchatar Madhyamik
Vidyalaya, Arkauli, Moradabad (in brief
institution) was a recognised on 26.4.1968
as Higher Secondary School. It was taken
in grant-in-aid list under The Uttar
Pradesh Junior High Schools (Payment of
Salaries
to
Teachers
and
other
Employees) Act, 1978 (in brief Act 1978)
with effect from 1.5.1979. the institution
was
upgraded
and
granted
unaided
recognition as High School on 24.91993.
Permission to open class IX was granted
on 4.12.1993. after up gradation of the
institution as High School a Writ Petition
was filed before this court being civil
Misc. Writ Petition No. 947 of 1995 and
under the interim order of this court dated
11.1.1995, salary of teachers and staff of
the institution is being paid from the
grant-in-aid received by the institution
under Act 1978 till the institution is
brought in the grant-in-aid list of High
School.

2. After up gradation of the
institution as High School, one clerk
working in the institution was dismissed
from service. The post of clerk fell
vacant.
The
management
issued
an
advertisement on 2.4.1999 in newspaper
'Nav Amar Bharat' inviting applications
for appointment on the post of clerk. The
petitioner applied and he was selected by
the selection committee on 24.4.1999.
appointment letter was issued to him
22.4.1999 he joined on 23.4.1999. the
management
sent
the
papers
of
appointment of the petitioner for granting
financial approval to District Basic
Education Officer (in brief BSA) who
granted approval on 20.4.1999 with a
condition that if any fact was found
incorrect then the approval shall be
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
156
treated to the viod. The management sent
salary bill of the petitioner for the month
of April 1999. The Accounts Officer
working in the office of BSA raised
objection on the salary bill and sent a
letter to Director of Education, U.P.,
Allahabad along with the documents
making a query as to whether payment of
salary
could
be
made
or
not.
Correspondence took place between the
office of the Director and the Accounts
Officer but salary was not paid. The
petitioner filed Civil Misc. Writ Petition
no. 30438 o f2000 praying that his salary
be paid by the respondents. This Court, on
26.7.2000, issued an interim mandamus to
the Accounts officer to pass salary bill be
the petitioner or show cause by filing
counter affidavit within six weeks. In
paragraph 18 of the counter affidavit filed
by the Accounts Officer it was been stated
that after up gradation of the institution as
High School, provisions of the U.P.
Intermediate Education Act, 1921 is
applicable to the institution; it was further
stated that by order dated 2.9.2000
approval granted to the appointment of
the petitioner on 20.4.1999 has been
cancelled by BSA, as it was viod. This
order dated 2.9.2000 passed by BSA has
been challenged by the petitioner by
means of Civil Misc. Writ Petition No.
48316 of 2000.

3. I have heard Sri Birendra Pratap
Singh, learned counsel for the petitioner
and Sri P.D. Tripathi, learned counsel
appearing for respondents no. 3 and 4 and
Standing Counsel appearing on behalf of
respondents no. 1 and 2. Since both the
writ petitions raise a common dispute,
therefore, they are being taken up together
for final disposal with the consent of the
learned counsel for the parties.

4. Learned counsel for the petitioner
has urged that once BSA granted approval
to the appointment of the petitioner as
clerk he could not cancel the approval
granted earlier by him. Learned counsel
has further urged that since the petitioner
was paid from the grant-in-aid received
by the Junior High School, the petitioner
could be appointed as clerk under the
rules applicable to clerks of junior High
Schools and BSA has the power to grant
approval to the appointment. Hence, the
approval granted by the BSA could not be
cancelled by him.

5. Learned counsel appearing for
respondents has urged that after up
gradation of the institution as High School
appointment of clerk could only take
place under the provisions of U.P.
Intermediate Education Act, 1921 and the
Regulations framed thereunder (in brief
Act 1921 and Regulations) and the
petitioner could not be appointed under
the rules which applicable to clerks of
junior High School imparting education
from classes VI to VIII. He urged that
since appointment of the petitioner was
not
made
under
Act
1921
and
Regulations, BSA did not have any power
to grant approval to the appointment of
the petitioner. Since the order passed by
BSA was viod he was empowered to
cancel the approval earlier granted by
him.

6. The first question which arises for
consideration
is
whether
after
up
gradation of the institution of High School
if a vacancy of clerk occurs in the
institution, it has to be filled under the
provisions
of
the
Act
1921
and
Regulations framed thereunder or under
the provisions of the U.P. Recognised
Basic Schools (Junior High Schools)
1All] Rakesh Chandra Sharma V. State of U.P. and others 157
Recruitment and Conditions of Service of
Ministerial
Staff
and
Group
'D'
employees) Rules, 1984 (in brief Rules
1984). It is not disputed that the
institution was upgraded from Junior
High School to High Scholl on 24.8.1993.
A clerk of the institution was dismissed
from service after the institution was
upgraded and this vacancy was sought to
be filled by the management through an
advertisement made on 2.4.1999. Section
2 (e) of Rules 1984 defines a Junior High
School to mean an institution other than
High School or intermediate College
imparting education to boys and girls or
both from class VI to VIII. Therefore,
Rules 1984 would apply to the institutions
where education is imparted from class VI
to VIII but it shall not apply to the
institutions which impart education from
classes IX and X. since the institution was
upgraded as High School in 1993, Rules
1984 ceased to apply to the institution.
And the only provision to fill the nonteaching p0st of clerk was regulation 101
of chapter III of the regulations. Under
regulation 101 prior approval of District
Inspector of Schools had to be obtained
before making appointment on a class -III
post. It has been held by this court in Civil
Misc. Writ Petition No. 50286 of 2000
Amit Kumar V District Inspector of
Schools, Jaunpur and another decided on
21.11.2000 that provisions of Regulation
101
are
mandatory.
Therefore,
appointment of the petitioner on the post
of clerk could not be made by the
management
without
obtaining
prior
approval of the District Inspector of
Schools. BSA had no power to grant
approval to the appointment of the
petitioner. Thus, the approval granted to
the petitioner's appointment on 20.4.1999
by BSA was viod. It has rightly been
cancelled by BSA.
7. The next question is what would
be the effect of payment of salary etc. to
the teachers and staff from the grant-inaid received from the government as
Junior High School under interim order
passed by this court and whether services
of such teachers and staff would be
governed by Basic Education Act and
Rules or U.P. Intermediate Education Act
1921 and Regulations framed thereunder.
I have earlier held that after up gradation
of the institution to high School, the
provisions of Act 1921 and Regulations
would apply and the provisions of Rules
1984 would not be applicable for
recruitment on the non-teaching post. If
teachers and non-teaching staff of the
institution are receiving salary from grantin-aid which was earlier payable to the
institution are receiving salary from grantin-aid which was earlier payable to the
institution prior to its up gradation as
High
School.
Even
then,
fresh
appointments in unaided recognised High
School would be governed by the
provisions of Act 1921 and Regulations.
A division bench of this court (Lucknow
Bench) in Shiksha Prasar Samiti Babhnan,
District Gonda v. State of U.P. and others
1986UPLBEC 47 has held that the
provisions of U.P. intermediate Education
Act
1921
apply
to
a
recognised
institution. It is not necessary that the
institution should be received grant in aid,
therefore, even thought he institution is
not
receiving
grant-in-aid
from
the
government
and
has
been
granted
recognition as unaided high School. The
management could fill vacancy of clerk,
only by following the provision of
recruitment as provided under the U.P.
Intermediate Education Act 1921 and
Regulations framed thereunder. Since the
management did not appoint the petitioner
under
Act
1921
and
Regulations,
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
158
therefore, no relief could be granted to the
petitioner.

8. For the aforesaid reasons, I do not
find any merit in these petitions.

9. Both the writ petitions fail and are
hereby dismissed.

10. Parties shall bear their own
costs.

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By the Court

1. This writ petition was filed for a
mandamus directing respondent no.1 the
Nagar Nigam Meerut not to settle the
contract in respect of advertisement
hoardings in favour of respondent no.2
and to restrain the respondents from
interfering with the possession of the
petitioners over the hoardings sites.

2. We have heard learned counsel
for the parties.

3. It has been alleged in paragraph 2
of the petition that the petitioners are
engaged in the business of advertising by
fixing hoardings on the roadsides within
the municipal limits of the Nagar Nigam,
Meerut. In paragraph 3 of the petition it is
alleged that the Nagar Mahapalika (now
known as Nagar Nigam) has framed rules
for settling such contracts. True copy of
the rules is annexed as Annexure-1 to the
petition.

4. The aforesaid rules do not
prescribe the manner in which the
hoardings are to be let out. The petitioners
have erected their own hoardings on the
roadsides within the Meerut City and they
are regularly depositing tax in accordance
with the aforesaid rules vide Annexure-2
to the petition. In paragraph 7 of the
petition it is alleged that a tender notice
was published in the daily newspaper
'Dainik Jagran' on 16.6.2000 by which
the Nagar Nigam has invited tenders in