# Rambir Singh v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 746
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-26
- **Case number:** Special Appeal No. 174 of 2020
- **Bench:** Manoj Misra, Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rambir-singh-v-state-of-u-p-ors-46692
- **Pages:** 6

## Headnote

A. Service Law - Appointment - Payment of
Salary - U.P. Intermediate Education Act, 1921
- Regulations framed under the Act of 1921 -
Regulation
101
of
Chapter
III
-
An
appointment
without
prior
approval
u/Regulation 101 would be a nullity in so far as
it purports to bind the State Government to
grant aid to the institution concerned for
payment of salary. (Para 16)

The decision in the case of Pawan Kumar Misra (infra),
in which it was held that anything done without "prior
approval" is a nullity, would have to be read in terms of
the judgment of the SC (State of U.P. Vs Principal
Abhay Nandan Inter College & ors., AIR 2021 SC
4968), that is to say, an appointment without prior
approval u/Regulation 101 would be a nullity in so far
as it purports to bind the State Government to grant
aid to the institution concerned for payment of salary.
The appointment made by the Principal of the
Institution, and the Manager of the institution
having forwarded the papers for approval of the
appointment of the appellant-petitioner, would
not be a nullity so far as the institution is
concerned. (Para 11, 16)

Neither the appellant-petitioner nor the institution
concerned have any right to claim government aid for
salary & ors. dues of the appellant-petitioner. Since
the
appellant-petitioner
has
been
found
suitable for the post by the management and
was appointed without "prior approval", the
appointment would not be valid only as far as
any right to claim aid u/Regulation 101 of
Chapter III of the Regulation framed under the
Act of 1921 is concerned. Accordingly, the
judgment of the learned Judge is upheld. However,
this will not stand in the way of appellant-petitioner
claiming entitlement to pay & ors. dues from the
management itself. (Para 17)

Appeal dismissed. (E-4)

Precedent followed:

## Text

746 INDIAN LAW REPORTS ALLAHABAD SERIES
disturb the appointments already made thus
direction is kept limited to the writ petitioners. If
with award of one mark to any of the litigants
till date before Allahabad High Court, they find
place in the merit, then the respondents would
give them appointment, subject to satisfaction of
other conditions, if any.

41. The exercise aforesaid would not effect
in any manner the selection or appointments
already made. The benefit would be given to the
appellants and the writ petitioners, if they are
short of one mark and not otherwise. If any of
the litigant till date are short by two marks in the
merit, they would not be entitled to any benefit
of this judgment.

42. With the aforesaid direction, all the
appeals
are
disposed
of
after
causing
interference in the impugned judgment limited
to Question No. 60.
----------
(2021)11ILR A746
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.10.2021

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE JAYANT BANERJI, J.

Special Appeal No. 174 of 2020

Rambir Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Suresh Chandra Dwivedi, Sri Siddharth
Khare, Sri Ashok Khare(Senior Adv.)

Counsel for the Respondents:
C.S.C., C.S.C. Sri Ankit Gaur

A. Service Law - Appointment - Payment of
Salary - U.P. Intermediate Education Act, 1921
- Regulations framed under the Act of 1921 -
Regulation
101
of
Chapter
III
-
An
appointment
without
prior
approval
u/Regulation 101 would be a nullity in so far as
it purports to bind the State Government to
grant aid to the institution concerned for
payment of salary. (Para 16)

The decision in the case of Pawan Kumar Misra (infra),
in which it was held that anything done without "prior
approval" is a nullity, would have to be read in terms of
the judgment of the SC (State of U.P. Vs Principal
Abhay Nandan Inter College & ors., AIR 2021 SC
4968), that is to say, an appointment without prior
approval u/Regulation 101 would be a nullity in so far
as it purports to bind the State Government to grant
aid to the institution concerned for payment of salary.
The appointment made by the Principal of the
Institution, and the Manager of the institution
having forwarded the papers for approval of the
appointment of the appellant-petitioner, would
not be a nullity so far as the institution is
concerned. (Para 11, 16)

Neither the appellant-petitioner nor the institution
concerned have any right to claim government aid for
salary & ors. dues of the appellant-petitioner. Since
the
appellant-petitioner
has
been
found
suitable for the post by the management and
was appointed without "prior approval", the
appointment would not be valid only as far as
any right to claim aid u/Regulation 101 of
Chapter III of the Regulation framed under the
Act of 1921 is concerned. Accordingly, the
judgment of the learned Judge is upheld. However,
this will not stand in the way of appellant-petitioner
claiming entitlement to pay & ors. dues from the
management itself. (Para 17)

Appeal dismissed. (E-4)

Precedent followed:

1. Jagdish Singh Vs St. of U.P. & ors., 2006 (3) ESC
2055 (Para 8)

2. Kailash Prasad Vs St. of U.P. & ors., 2008 (1) ESC
532 (Para 8)

3. Pawan Kumar Misra Vs Joint Director of Education,
Azamgarh, 2017(12) ADJ 516 (Para 11)

4. Dhruv Kumar Pandey Vs St. of U.P. & ors., 2020
(4) ADJ 599 (Para 12)
11 All. Rambir Singh Vs. State of U.P. & Ors.
747
5. State of U.P. Vs Principal Abhay Nandan Inter
College & ors., AIR 2021 SC 4968 (Para 17)

Present appeal challenges judgment and order
dated 27.10.2017, passed by learned Single
Judge.

(Delivered by Hon'ble Manoj Misra, J.
&
Hon'ble Jayant Banerji, J.)

1. Heard Shri Ashok Khare, learned Senior
Advocate assisted by Shri Siddharth Khare, for the
appellant and learned Standing Counsel for the
respondents.

2. This intra-court appeal has been filed
challenging the judgement dated 27.10.2017,
passed by a learned Judge of this Court in Writ-A
No. 38251 of 2000 (Rambir Singh and another Vs.
State of U.P. and others).

3. The case of the appellant-petitioner is that
for being appointed as class IV employee in Janta
Inter College, Saroorpur, Meerut (hereinafter
referred to as the Institution), which is a
recognized and aided institution under the
provisions of the U.P. Intermediate Education Act,
19211, he applied pursuant to an advertisement
published in a newspaper on 21.1.1996 by the
Principal of the institution. It was stated that four
class IV posts had fallen vacant in the institution
for various reasons and alongwith him, 18 other
candidates had applied. The appellant- petitioner
was found suitable, as a result of which, an
appointment letter was issued by the Principal on
14.2.1996 in his favour appointing him on class IV
post in the pay scale of Rs. 750-940. He submitted
a joining report on 23.7.1996 which was duly
accepted by the Principal on the same day. For
necessary approval of the appointment, the
Manager of the institution, by means of letter dated
26.2.1996 forwarded all relevant papers to the
District Inspector of Schools2. It is alleged that the
DIOS did not communicate any decision on that
letter.

4. It is stated that thereafter, the DIOS,
after being satisfied that the appointment of the
appellant-petitioner was made in accordance
with law passed an order fixing salary of the
petitioners in the pay scale of Rs. 750-910 in the
month of February 1999. The endorsement made
in his service book under the signature of the
DIOS and the Finance Officer has also been
referred to. However, after more than five
months when salary bills of the appellantpetitioner was presented in the month of June
1999, an endorsement was made that until
further orders of the DIOS the salary was being
stopped. After repeated enquiries by the
Principal it was revealed that an enquiry was
being conducted regarding appointment of the
appellant-petitioner and so the salary had been
withheld. Accordingly, the writ petition was
filed seeking mandamus for ensuring payment of
salary. Counter and rejoinder affidavits were
exchanged. In the counter affidavit, it is stated
that the approval letter that was made available
by the Principal was found to be fabricated and
on the basis of that document, the Principal
obtained the salary from January 1999 to May
1999. On the basis of a complaint in June 1999,
the payment of salary was stopped under order
of the DIOS. It is further stated that the
appellant-petitioner filed the writ petition in
which an order was passed to file a counter
affidavit and for payment of salary.

5. By means of the impugned judgement,
the learned Judge dismissed the writ petition
holding that, (a) there was no material available
showing compliance of requirement of "prior
approval" of the DIOS as contemplated in
Regulation 101 of Chapter III of the Regulations
framed under the Act of 1921 before making
appointment of the petitioner; and (b) there was
nothing on record to show that the appointment
was made after a valid advertisement of
vacancies. Relying upon two Division Bench
judgements of this Court for payment of salary
from State Exchequer, mandamus was declined.
748 INDIAN LAW REPORTS ALLAHABAD SERIES

6. It is the contention of Sri Ashok Khare,
learned Senior Advocate appearing for the
appellant-petitioner that "prior approval" for
appointment was not necessary under the facts
and circumstances of the case. He contends that
once the financial approval regarding the
appointment has been accorded by the competent
authority, it would be deemed that approval had
been granted and as such the requirement of
"prior approval" is rendered otiose. That when
salary was not being paid to the appellantpetitioner, the writ petition was filed and by an
interim order dated 29.8.2000, the Court directed
that he shall be allowed to continue to work and
shall be paid salary. On 13.9.2002, the writ
petition was admitted and notices were issued
with a direction that in case the respondents failed
to comply with the interim order, it would amount
to gross contempt and they shall be dealt with as
may be warranted under law. He contends that on
14.7.2003, a letter was issued by the DIOS to the
Principal granting financial approval with regard
to the appointment of the appellant-petitioner and
therefore, the respondents cannot refuse salary to
the appellant-petitioner.

7. Learned Standing Counsel on the other
hand has opposed the appeal stating that the
financial approval granted by the DIOS on
14.7.2003 was in compliance of the interim order
passed in the writ petition. Therefore, no benefit
would accrue to the appellant-petitioner from the
financial approval so granted. It is further
contended that the prior approval of the DIOS is a
condition precedent imposed by the Regulation
101 which was never granted.

8. The learned Judge has referred to the
judgements of two coordinate Benches of this
Court in the matter of Jagdish Singh Vs. State of
U.P. and others3 and Kailash Prasad Vs. State
of U.P. and others4 wherein, it has been held that
prior approval of the DIOS is mandatory and
violation thereof renders the appointment null and
void.

9. Regulation 101 of Chapter III of the
Regulation as amended on 2.2.1995 reads as
under:-

"101-
fu;qfDr
izkf/kdkjh]
fujh{kd
ds
iwokZuqeksnu ds flok; fdlh ekU;rk lgk;rk izkIr laLFkk ds
f'k{k.ksRrj in dh fdlh fjfDr dks ugha Hkjsxk1

izfrcU/k ;g gS fd teknkj ds in dh fjDr dks
fujh{kd }kjk Hkjus dh vuqefr nh tk ldrh gS"1

10. We have perused the aforesaid two
judgements cited by the learned Judge and
concur with the view expressed therein. Merely
because, as argued in the instant case, the
appellant-petitioner
was
granted
financial
sanction by the DIOS, would not eclipse the
requirement of prior approval as contemplated in
Regulation 101 of Chapter III of the Regulations
framed under the Act of 1921.

11. After considering the case of Jagdish
Singh (supra), another division Bench of this
Court in the case of Pawan Kumar Misra Vs.
Joint Director of Education, Azamgarh5
dismissed the petition holding that Regulation
101 uses expression "prior approval" and not
"approval", and therefore, anything done without
"prior approval" is a nullity.

12. In another case of Dhruv Kumar
Pandey Vs. State of U.P. and others;6 another
coordinate Bench of this Court while dismissing
an intra-court appeal challenging an order of a
learned Judge dismissing challenge to an order
dated 15.7.2019, passed by the District Inspector
of Schools, Basti, whereunder the approval to
the appointments of the writ-petitioners had
been declined, the court observed as follows:-

"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
11 All. Rambir Singh Vs. State of U.P. & Ors.
749
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 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. The 'prior approval' which is
contemplated under Regulation 101 before
issuance of an order of appointment is therefore
required to be granted by the DIOS after
examining the proceedings relating to the
appointment and verifying as to whether the
appointment was required as per the norms fixed
by the State Government and being satisfied that
the same had been made after following the
prescribed procedure in a fair manner. It is only
thereafter that the Inspector is to accord prior
approval whereafter the order of appointment is
to be issued by the appointing authority i.e. the
Committee of Management or the Principal of
the institution as the case may be".

13. In a recent judgement delivered on
27.9.2021, the Supreme Court, in Civil Appeal
No. 865 of 20217 considered a judgement of a
Division Bench of this Court dated 19.11.2018
which had held that Regulation 101 of Chapter
III of the Regulation, as amended in 2013,
framed
under
the
Act
of
1921,
is
unconstitutional.
The
case
of
the
State
Government before the Supreme Court was that
appointments of class IV employees by the
management of various institutions were made
contrary to the policy decision taken by the State
Government
on
23.1.2008
and
the
recommendation made by the 6th Central Pay
Commission in the month of March 2008, to the
effect that it would only be appropriate to have
"outsourcing" of Class IV employees instead
seeking any new recruitment. Regulation 101
was amended on 31.12.2009. Taking into
consideration the recommendations made by the
Sixth Central Pay Commission, Government
Orders were issued on 8.9.2010 and 6.1.2011
making it applicable to all the Government
departments and aided schools. Thus, the State
Government decided not to go in for fresh
recruitment of Class IV employees and further
directed that any arrangement concerning the
post to be vacated may be made only through
"outsourcing". Following the said decision,
Regulation 101 was once again amended by
Government Order dated 4.9.2013, which was
notified on 24.4.2014. The amended Regulation
as quoted in the judgement of the Supreme
Court is as follows:-

"AMENDED REGULATION:

101. The appointing authority, except
for the prior approval of the inspector, shall not
fill any vacant post of non-teaching staff
(clerical cadre) in any recognised or aided
institution; with the restriction that the District
Inspector of Schools shall make available the
total number of vacancies to the Director of
Education (Secondary Education) and also put
forth justification for filling of the posts,
750 INDIAN LAW REPORTS ALLAHABAD SERIES
showing the strength of the students in the
institution. On receipt of the order from Director
of Education (Secondary Education), the District
Inspector of Schools shall give permission to the
appointing
authority
for
filling
the
said
vacancies (except the vacancies of Class-IV
posts) and while giving the permission, he shall
ensure compliance of the 5 reservation rules
specified by the government as also of the
prescribed norms in justification for the posts.
With respect to the Class-IV vacancies,
arrangements shall be made by way of
outsourcing only; but the relevant rules, 1981, as
amended from time to time, for recruitment of
dependants of teaching or non-teaching staff of
the nongovernment aided institutions dying in
harness shall be applicable in relation to the
appointments to be made on the vacant posts of
Class-IV category."

14. The Supreme Court, while observing
that
prior
to
the
amendment
aforesaid,
Regulation 101 imposed strict compliance of
getting "prior approval", held that the exercise
done by the High Court in interpreting
''outsourcing' ought to have been avoided as it
stands outside the scope of judicial review,
being in realm of policy. The Supreme Court
allowed the appeals and set aside the judgement
of the High Court, holding that the management
of the institutions, having appointed persons and
found them suitable, while creating a situation
which could have been avoided, will have to
take up their responsibility and the State
Government cannot be made to continue the
appointments by making a contribution towards
their salary by way of aid. It was held by the
Supreme
Court
that
the
respondents/writ
petitioners and similarly placed persons who
are recruited by the institutions including the
respondents shall be continued with the same
scale of pay as if they are recruited prior to
8.9.20108 for which, the entire disbursement
will have to be made by the institutions alone.
The directions given by the Supreme Court in
State of U.P. and others Vs. Principal Abhay
Nandan Inter College (supra) are extracted
below:-

"RELIEF:-

54.We have one more issue to be
considered before our conclusion. That is,
whether
the
institutions
should
be
held
responsible, with respect to the interest of those
who were recruited though contrary to the
Impugned Regulation or not. These persons are
innocent civilians who got embroiled in the legal
battle initiated by the management and made to
fight as front-line soldiers. It is the management
which found these persons suitable to hold the
post. Therefore, this court will have to apply the
theory of justice and adopt a problem-solving
approach. Having appointed persons and found
them suitable, while creating a situation which
could have been avoided, the managements will
have to take up their responsibility. If imparting
education is seen to be in public interest, such
institutions have duties to their employees as
well. Certainly, the appellants cannot be made to
continue them by making a contribution towards
their salary by way of aid.

55.We may also note that even the
Division Bench in its own wisdom has observed
that the impugned Regulation can only be
applied to the aided institutions alone. This
finding has not been challenged seriously before
us. We are conscious of the legal position
governing equity when pitted against law.
Though both can travel in the same channel,
their waters do not mix very often.

56.Having found that the appellants
are justified in passing the relevant Government
Order followed by the impugned Regulation, we
do not wish to impose any further liability on
them. On the contrary, we do feel that
institutions should be held responsible for the
judicial adventurism undertaken.

57.However, we would also like to
observe that the appellants will have to seriously
consider paragraph 3.72 and 3.83 of the Seventh
11 All. Sandeep @ Pintu Vs. State of U.P.
751
Central Pay Commission. We expect the
appellants to create an adequate mechanism to
see to it that the persons employed by the
process of "Outsourcing" are not exploited in
any manner.

58.Accordingly, we have no difficulty in
setting aside the judgment of the Division Bench
dated 19.11.2018 and the consequential orders
passed while upholding the impugned Regulation.
The appeals are allowed with the following
directions:

(i) The respondents/writ petitioners in
Civil Appeal No 2753 of 2021 are directed to be
confirmed by granting adequate approval as Class
"IV" employees, having given prior approval.

(ii) The respondents/writ petitioners
and similarly placed persons who are recruited
by the institutions including the respondents
shall be continued with the same scale of pay as
if they are recruited prior to 08.09.2010 for
which the entire disbursement will have to be
made by the institutions alone.

(iii) The appellants shall undertake the
necessary exercise to see to it that there is a
mechanism available for the proper implementation
of "Outsourcing" with specific reference to the
conditions of service of those who are employed
while taking note of the recommendations made in
the Seventh Central Pay Commission".

 (emphasis supplied)

15. In the present case, as is evident from the
letter of the DIOS dated 14.7.2003, the appellantpetitioner's salary was approved for the post of
Assistant Clerk ( Class IV employee) with a
condition that such appointment would be subject to
the decision of the writ petition. The decision of the
DIOS dated 14.7.2003 is itself based on the interim
order dated 13.9.2002 passed by the writ court.

16. The decision in the case of Pawan
Kumar Misra (supra), in which it was held that
anything done without "prior approval" is a nullity,
would therefore, have to be read in terms of the
aforesaid judgement of the Supreme Court, that is to
say, an appointment without prior approval under
Section 101 of the Regulation would be a nullity in
so far as it purports to bind the State Government to
grant aid to the institution concerned for payment of
salary. The appointment made by the Principal of
the Institution, and the Manager of the institution
having forwarded the papers for approval of the
appointment of the appellant-petitioner, would not
be a nullity so far as the institution is concerned.

17. Under the circumstances and in view of
the settled law on the question, neither the appellantpetitioner nor the institution concerned have any
right to claim government aid for salary and others
dues of the appellant-petitioner. Since the appellantpetitioner has been found suitable for the post by the
management and was appointed without "prior
approval", the appointment would not be valid only
as far as any right to claim aid under Regulation 101
of Chapter III of the Regulation framed under the
Act of 1921 is concerned. Accordingly, the
judgement of the learned Judge is upheld. However,
this will not stand in the way of appellant-petitioner
claiming entitlement to pay and others dues from
the management itself in terms of judgement of the
Supreme Court in the case of State of U.P. and
others Vs. Principal Abhay Nandan Inter
College and others (supra).

18. Subject to above, the appeal is dismissed.
----------

(2021)11ILR A751
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.11.2021

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE MANISH KUMAR, J.

Criminal Appeal No. 256 of 2010

Sandeep @ Pintu ...Appellant
Versus
State of U.P. ...Respondent