# Ranjan Pratap Singh v. State of U.P. & Ors

- **Citation:** (2019) 2 ILRA 1607
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-18
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ranjan-pratap-singh-v-state-of-u-p-ors-44613
- **Pages:** 9

## Headnote

Law
-
U.P.
Intermediate
Education Act, 1921; Chapter III Regulation
101 - appointing authority cannot fill any
vacancy of non-teaching staff except with
the "prior approval" of the DIOS - financial
approval of appointment of the petitioner
was rejected since he was appointed
without approval - appointment ab-initio

Writ Petition dismissed (E-10)
Cases cited: -

## Text

2 All. Ranjan Pratap Singh Vs State of U.P. & Ors.
1607
ambit of being "Other Authority" as
contemplated in Article 12 of the Constitution
of India and thus the present petition is
dismissed on the ground of maintainability.
However, it would be open for the petitioners
to challenge the impugned orders before
appropriate Court in accordance with law.
----------

(2019)10ILR A 1607

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.10.2019

BEFORE

THE HON'BLE ABDUL MOIN, J.

Service Single No.- 28697 of 2019

Ranjan Pratap Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Nagendra Bahadur Singh.

Counsel for the Respondents:
C.S.C.

A.
Service
Law
-
U.P.
Intermediate
Education Act, 1921; Chapter III Regulation
101 - appointing authority cannot fill any
vacancy of non-teaching staff except with
the "prior approval" of the DIOS - financial
approval of appointment of the petitioner
was rejected since he was appointed
without approval - appointment ab-initio

Writ Petition dismissed (E-10)
Cases cited: -

1. Deepak kumar Singh Vs St of U.P. & ors
(2019) (6) ADJ 376
2. Kunda Motiram Bodalkar Vs Swami Vivekanand
Shikshan Sanstha & ors (2010) 6 SCC 712
3. Ashika Prasad Shukla Vs District Inspector
of Schools (1998) (3) AWC 2150
4. St of U.P. & ors Vs C/M Sarvodaya Inter
College, Sayar District Ghazipur Special Appeal
(Defective) No. 542 of 2014
5. Pramod Kumar Pandey Vs The District
Inspector of Schools & anr Special Appeal
(Defective) No. 684 of 2019
6. Abhendra Anand Singh Vs St. of U.P. & ors
(2017) 2 ADJ 23
7. Prabhat Kumar Sharma & ors Vs St of U.P.
& ors (1996) 10 SCC 62
8. Shesh Mani Shukla Vs District Inspector of
Schools Deoria & ors (2009) 15 Scc 436
9. U.P. Avas Evam Vikas Parishan & anr Vs
Friends Coop. Housing Society Ltd. & anr
(1995) (Supp.) (3)
SCC 463
10. Jaagdish Singh Vs St of U.P. & ors (2006)
2 UPLBEC 1851
11. Ms. Shailja Shah Vs Executive Committee,
Bharat Varshiya National Association & anr
(1995) 25 ALR 88
12. Pawan Kumar Mishra Vs Joint Director of
Education, Azamgarh & ors (2018) 3 AWC
2418

(Delivered by Hon'ble Abdul Moin, J.)

1. Heard learned counsel for the
petitioner and Sri Ran Vijay Singh,
learned
Additional
Chief
Standing
Counsel appearing for respondents.

2. By means of the present petition,
the petitioner has prayed for quashing of
the order dated 21.02.2019, a copy of
which has been filed as Annexure-1 to the
petition, by which the District Inspector
of Schools, Pratapgarh, has rejected the
claim of the petitioner for financial
1608 INDIAN LAW REPORTS ALLAHABAD SERIES
approval of appointment of the petitioner
on the post of Clerk on various grounds
including the ground that there was no
prior approval to the appointment of the
petitioner.

3. The case set forth by the
petitioner is that he had been appointed by
the Committee of Management i.e.
respondent no.4 on a Class III post of
Clerk in pursuance to an advertisement
issued on 11.07.2017 and the appointment
order having been issued on 07.08.2017, a
copy of which has been filed as
Annexure-5 to the petition. Admittedly, in
pursuance to the appointment order dated
07.08.2017, the petitioner had submitted
his joining on 15.08.2017 as would be
apparent from the joining report of the
petitioner, a copy of which has been filed
as Annexure-6 to the petition.

4. Admittedly, the appointment to a
Class III post in educational institutions is
governed by the provisions of Regulation
101
of
Chapter
III
of
the
U.P.
Intermediate
Education
Act,
1921
(hereinafter referred to as 'the Act of
1921'). Admittedly, in the instant case
there was no prior approval of the
competent authority prior to the petitioner
being appointed and he having submitted
his joining in pursuance thereof. This
aspect of the matter has been considered
by the District Inspector of Schools apart
from other grounds while rejecting the
claim of the petitioner by the impugned
order dated 21.02.2019.

5. This Court in the case of Deepak
Kumar Singh vs. State of U.P. and
others reported in 2019 (6) ADJ 376 after
taking into consideration various Division
Bench judgments and the judgments of
Apex Court has held that prior approval is
a sine-qua-non to a valid appointment on
a Class III post in terms of Regulation 101
of Chapter III of the Act of 1921.

6. Learned counsel for the petitioner,
however, contends that the Apex Court in
the case of Kunda Motiram Bodalkar
vs.
Swami
Vivekanand
Shikshan
Sanstha and others - (2010) 6 SCC 712
has held that where an appointment is
made on the basis of an advertisement and
that the employee's appointment has been
approved subsequently consequently even
if there was no prior permission of his
appointment and there being no other
irregularity in the appointment, the
appointment cannot be held to be void.

7. Likewise, reliance has been
placed on the Division Bench judgment in
the case of Ashika Prasad Shukla vs.
District Inspector of Schools - 1998 (3)
AWC 2150, the judgment passed in a
bunch of Special Appeals the leading
being Special Appeal (Defective) No.542
of 2014 in re:State of U.P. and others vs.
C/M Sarvodaya Inter College, Sayar
District
Ghazipur,
Division
Bench
judgment in the case of Pramod Kumar
Pandey and 5 others vs. The District
Inspector of Schools and another passed
in Special Appeal Defective No.684 of
2019 decided on 01.08.2019 as well as the
judgment of Writ Court passed in the case
of Abhendra Anand Singh vs. State of
U.P. and others-2017 (2) ADJ 23.

8. On the other hand, Sri Ran Vijay
Singh, learned Additional Chief Standing
Counsel, submits that the cases of Kunda
Motiram Bodalkar (supra), Ashika
Prasad Shukla (supra), C/M Sarvodaya
Inter College (supra) and Pramod
Kumar Pandey (supra) all pertain to
Assistant Teachers who are governed by
2 All. Ranjan Pratap Singh Vs State of U.P. & Ors.
1609
different set of rules/provision of law
while the present case pertains to an
appointment on a Class III post which is
governed by Regulation 101 of Chapter
III of the Act of 1921 and hence all the
aforesaid cases shall not be applicable.

9. So far as the case of Abhendra
Anand Singh (supra) is concerned, Sri
Ran Vijay Singh, learned Additional
Chief Standing Counsel submits that the
said judgment has been passed without
considering the judgments of Apex Court
in the cases of Prabhat Kumar Sharma
and others vs. State of U.P. and others -
(1996) 10 SCC 62, Shesh Mani Shukla
vs. District Inspector of Schools Deoria
and others - (2009) 15 SCC 436, U.P.
Avas
Evam
Vikas
Parishad
and
another vs. Friends Coop. Housing
Society Ltd. and another - 1995 (Supp.)
(3) SCC 456, Union of India and
another vs. Raghuwar Pal Singh -
(2018) 15 SCC 463, and the Division
Bench judgments in the cases of Jagdish
Singh vs. State of U.P. and others -
(2006) 2 UPLBEC 1851 and Ms. Shailja
Shah vs. Executive Committee, Bharat
Varshiya National Association and
another - 1995 (25) ALR 88, Pawan
Kumar Mishra vs. Joint Director of
Education, Azamgarh and others -
(2018) 3 AWC 2418 and even otherwise
this Court after considering all the
aforesaid Division Bench's judgments
including the judgments of Apex Court
has held in the case of Deepak Kumar
Singh (supra) that prior approval is sinequa-non for a valid appointment on a
Class III post.

10. Having heard learned counsel
for the contesting parties and having
perused the records, what comes out is
that it is an admitted fact that the
petitioner had been appointed on a Class
III post without prior approval of the
competent authority. This aspect of the
matter has already been considered
threadbare by this Court in the case of
Deepak Kumar Singh (supra). For the
sake
of
convenience,
the
relevant
observations in the case of Deepak
Kumar Singh (supra) are reproduced as
under:-

15.
From
a
perusal
of
Regulation 101, it is apparent that the
appointing authority could not fill up any
vacancy of a non teaching staff except
with the prior approval of the DIOS.

16. Thus the sine quo non for
filling up the vacancy of non teaching
staff by the Management is the prior
approval of the DIOS.

17. The issue of 'prior approval'
has engaged the attention of the Courts
from time to time. In the case of Prabhat
Kumar Sharma and others Vs. State of
U.P and ors reported in (1996) 10 SCC
62, the Hon'ble Supreme Court while
considering the provisions of Removal of
Difficulties order, which also provides for
a prior approval of the DIOS, held that an
appointment made inconsistent with the
procedure of Removal of Difficulties
Order is void abinitio and will not confer
any right upon the incumbent to hold the
post or to continue in service or to claim
salary from the State exchequer. The
relevant observations made by Hon'ble
Supreme
Court
in
Prabhat
Kumar
Sharma (supra) are reproduced as
under:-

"Any
appointment
made
in
transgression
thereof
is
illegal
appointment and is void and confers no
right on the appointees."

18.
Likewise
the
Hon'ble
Supreme Court in the case of Shesh Mani
1610 INDIAN LAW REPORTS ALLAHABAD SERIES
Shukla Vs. District Inspector of Schools
Deoria and others reported in (2009)
(15) SCC 436 held as under:-

"It is true that the appellant has
worked for a long time. His appointment,
however, being in contravention of the
statutory provision was illegal, and, thus,
void ab initio. If his appointment has not
been granted approval by the statutory
authority, no exception can be taken only
because the appellant had worked for a
long time. The same by itself, in our
opinion, cannot form the basis for
obtaining a writ of or in the nature of
mandamus; as it is well known that for the
said purpose, the writ petitioner must
establish a legal right in himself and a
corresponding legal duty in the State."

19. A Division Bench judgment
of this Court in the case of Jagdish Singh
Vs. State of U.P and Ors reported in
2006 (2) UPLBEC 1851 has held as
under:-

"without prior approval of the
Inspector, the Principal or the committee
of
management
cannot
issue
an
appointment letter or permit joining of
any candidate. Requirement of prior
approval in Regulation 101 is a condition
precedent before issuing an appointment
letter and is mandatory."

20. Another Division Bench of
this Court in the case of Ms. Shailja Shah
Vs.
Executive
Committee,
Bharat
Varshiya
National
Association
and
another reported in 1995 (25) ALR, 88
has held has under:-

"expression "prior approval"
and
"approval"
connotes
different
situation. Where a statute uses the term
"prior approval" anything done without
prior approval is nullity. Where a statute
employs expression "approval", however,
in such cases subsequent ratification can
make the act valid."

21. The word 'Prior Approval'
has also been used in Section 59(1)(a) of
U.P Urban Planing and Development Act,
1973 and Hon'ble Supreme Court in the
case of U.P Avas Evam Vikas Parishad
and Anr Vs. Friends Coop. Housing
Society Ltd. and Anr reported in 1995
(Supp) (3) SCC 456 has held that "prior
approval"
and
"approval"
are
two
different connotations and if the statute
does not mention "prior approval" what is
material would be only "approval".

22. Recently Hon'ble Supreme
Court in the case of Union of India and
Anr Vs. Raghuwar Pal Singh reported in
(2018) 15 SCC 463 considered an issue
wherein an appointment could have been
made only after obtaining prior approval
from Competent Authority i.e. Ministry of
Agriculture,
Department
of
Animal
Husbandry and Dairying, New Delhi.
However,
prior
approval
was
not
obtained and appointments were made.
Thereafter, appointments were cancelled/
terminated on the ground that the same
were illegal as there was no prior
approval. The Hon'ble Supreme Court
held that since appointments were made
without prior approval, they were de hors
the Rules and a nullity, hence, principles
of natural justice are also not attracted in
such a case. Paras 16 and 17 of judgment
which dealt with the aforesaid issue are
reproduced below :

16. We shall now consider the
efficacy of the reason so recorded in the
office order. The recruitment procedure in
relation to the post of Veterinary
Compounder is governed by the statutory
Rules titled 'Central Cattle Breeding
Farms (Class III and Class IV posts)
Recruitment Rules, 1969, as amended
from time to time and including the
executive instructions issued in that
behalf. As per the stated dispensation for
2 All. Ranjan Pratap Singh Vs State of U.P. & Ors.
1611
such recruitment, the appointment letter
could be issued only by an authorised
officer and after grant of approval by the
competent authority. Nowhere in the
Original
Application
filed
by
the
Respondent, it has been asserted that such
prior approval is not the quintessence for
issuing a letter of appointment.

17. For taking this contention
forward, we may assume, for the time
being, that the then Director Incharge
H.S. Rathore, Agriculture Officer had the
authority to issue a letter of appointment.
Nevertheless, he could do so only upon
obtaining prior written approval of the
competent authority. No case has been
made out in the Original Application that
due approval was granted by the
competent authority before issue of the
letter of appointment to the Respondent.
Thus, it is indisputable that no prior
approval of the competent authority was
given
for
the
appointment
of
the
Respondent. In such a case, the next
logical issue that arises for consideration
is: whether the appointment letter issued
to the Respondent, would be a case of
nullity or a mere irregularity? If it is a
case of nullity, affording opportunity to
the incumbent would be a mere formality
and non grant of opportunity may not
vitiate the final decision of termination of
his services. The Tribunal has rightly held
that in absence of prior approval of the
competent
authority,
the
Director
Incharge
could
not
have
hastened
issuance of the appointment letter. The
act of commission and omission of the
then Director Incharge would, therefore,
suffer from the vice of lack of authority
and nullity in law."

23. A Division Bench of this
Court in the case of Pawan Kumar
Mishra Vs. Joint Director of Education,
Azamgarh and Ors reported in (2018) 3
AWC 2418 after referring to the earlier
Division Bench judgment in the case of
Jagdish Singh (supra) held as under:-

"21. In the instant case, the
expression used in Regulation 101, is
"prior approval" and not "approval".
Consequently, when the statute uses the
term "prior approval", then anything done
without prior approval is a nullity. In
Prabhat Kumar Sharma and others vs.
State
of
U.P.
and
others,
AIR
1996(SC)2638 the Supreme Court held:

"Any
appointment
made
in
transgression
thereof
is
illegal
appointment and is void and confers no
right on the appointees."

17. In the light of the aforesaid,
we find that admittedly the appellant was
appointed without seeking prior approval
from the District Inspector of Schools.
The said appointment was wholly illegal
and was a void order, which conferred no
right on the appellant."

24. Likewise, this Court in the
case of Shashi Kant Gupta Vs. State of
U.P and Ors reported in 2014 SCC
Online (All) 6039 has held as under :-

"1. Principal of Sri Aastik Muni
Inter College, Koriyan, Kanpur Nagar
(hereinafter referred to as "College")
sought permission of District Inspector of
Schools,
Kanpur
Nagar
(hereinafter
referred
to
as
"DIOS")
before
commencing selection and appointment
on Class-IV post in the College and
having received intimation, proceeded to
make selection. The advertisement was
published
in
daily
newspaper
'Employment
Exchange'
dated
1-15'
February' 2003 published from Kanpur
whereby the applications were invited
upto 28.2.2003 and interview was to be
held on 8.3.2003. Petitioner submitted
application on 27.2.2003 and thereafter
on 9.3.2003 appointment was made and
1612 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner joined on 15.3.2003. It is,
therefore, evident from the record that
after
making
selection
and
before
appointment, no record was transmitted
to DIOS seeking his prior approval as
contemplated
under
Regulation 101,
Chapter-III of the Regulations framed
under the U.P. Intermediate Education
Act, 1921 (hereinafter referred to as "Act,
1921"). The law does not require prior
approval
before
the
selection
but
Regulation 101 talks of prior approval
before the appointment but after making
selection. This distinction has been
noticed by Division Bench of this Court in
Jagdish Singh etc. Vs. State of U.P. &
others, 2006 (3) ESC 2055 (All)(DB) and
it has been held that Regulation 101 is
mandatory and if no prior approval has
been
obtained
before
making
appointment, but after the selection the
appointment shall be void-ab-initio and it
shall not confer any right upon the
incumbent to hold the post or to claim
salary. The relevant observation made by
Division Bench reads as under:

"... without prior approval of the
Inspector, the Principal or the committee
of
management
cannot
issue
an
appointment letter or permit joining of
any candidate. Requirement of prior
approval in Regulation 101 is a condition
precedent before issuing an appointment
letter and is mandatory."

2. In view of above, the alleged
appointment of petitioner cannot be said
to be valid. No relief, therefore, as sought
for in the writ petition can be granted to
petitioner.

3. The writ petition lacks merit.
Dismissed."

25. This Court in the case of
Ram Kumar Shukla Vs. State of U.P and
Ors reported in 2014 SCC Online (All)
6040 has held has under :-

1. Principal of Sri Aastik Muni
Inter College, Koriyan, Kanpur Nagar
(hereinafter referred to as "College")
sought permission of District Inspector of
Schools,
Kanpur
Nagar
(hereinafter
referred to as "DIOS") before commencing
selection and appointment on Class-IV post
in the College and having received
intimation, proceeded to make selection.
The advertisement was published in daily
newspaper 'Employment Exchange' dated
1-15' February' 2003 published from
Kanpur whereby the applications were
invited upto 28.2.2003 and interview was to
be held on 8.3.2003. Petitioner submitted
application on 27.2.2003 and thereafter on
9.3.2003 appointment was made and
petitioner joined on 15.3.2003. It is,
therefore, evident from the record that after
making selection and before appointment,
no record was transmitted to DIOS seeking
his prior approval as contemplated under
Regulation
101,
Chapter-III
of
the
Regulations
framed
under
the
U.P.
Intermediate
Education
Act,
1921
(hereinafter referred to as "Act, 1921"). The
law does not require prior approval before
the selection but Regulation 101 talks of
prior approval before the appointment but
after making selection. This distinction has
been noticed by Division Bench of this
Court in Jagdish Singh etc. Vs. State of U.P.
& others, 2006 (3) ESC 2055 (All)(DB) and
it has been held that Regulation 101 is
mandatory and if no prior approval has
been obtained before making appointment,
but after the selection the appointment shall
be void-ab-initio and it shall not confer any
right upon the incumbent to hold the post or
to claim salary. The relevant observation
made by Division Bench reads as under:

"... without prior approval of the
Inspector, the Principal or the committee
of
management
cannot
issue
an
appointment letter or permit joining of
2 All. Ranjan Pratap Singh Vs State of U.P. & Ors.
1613
any candidate. Requirement of prior
approval in Regulation 101 is a condition
precedent before issuing an appointment
letter and is mandatory."

2. In view of above, the alleged
appointment of petitioner cannot be said
to be valid. No relief, therefore, as sought
for in the writ petition can be granted to
petitioner.

3. The writ petition lacks merit.
Dismissed.

26. Thus, from a perusal of the
aforesaid, it clearly comes out that prior
approval was a sine qua non of filling up
of vacancy of non teaching staff and issue
of the appointment order. It is settled
proposition of law that where a thing is to
be done in a particular manner it is to be
done in that manner or not at all. In this
regard, the Court may refer to the
judgment of Nazir Ahmad vs. Emperor
reported in AIR 1936 PC 253 wherein it
has been held as under:-

"where a power is given to do a
certain thing in a certain way the thing
must be done in that way or not at all."

27.
Likewise
the
Hon'ble
Supreme Court in the case of Deep Chand
vs. The State of Rajasthan reported in AIR
1961 SC 1527 has reiterated the principle
of law as laid down in the case of Nazir
Ahmad (supra) that:-

"........Where power is given to
do a certain thing in a certain way, the
thing must be done in that way or not at
all and other methods of performance are
necessarily forbidden"

28.
Likewise
the
Hon'ble
Supreme Court in the case of State of
Uttar Pradesh vs. Singhara Singh and
Ors reported in AIR 1964 SC 358 has
again followed the principle laid down in
the case of Nazir Ahmad (supra).

29. The Hon'ble Supreme Court
in the case of Babu Verghese & Ors. vs.
Bar Council of Kerala & Ors reported in
(1993) 3 SCC 422 while following the
principle laid down in the case of Nazir
Ahmad (supra) has held that:-

"It is the basic principle of law
long settled that if the manner of doing a
particular act is prescribed under any
Statute, the act must be done in that
manner or not at all."

30.
Keeping
in
view
the
aforesaid discussions, it is thus apparent
that the relevant regulations provide for a
prior approval before filling in the
vacancy
of
non
teaching
staff.
Consequently, no such vacancy could be
filled up except with the prior approval of
the
DIOS
inasmuch
as
once
the
prescribed procedure itself contemplates
a prior approval for filling up the
vacancy, as such, keeping in view the
settled proposition of law that where a
manner of doing a particular act is
prescribed, the act must be done in that
manner or not at all and thus the vacancy
could not have been filled in and the
petitioner appointed without the prior
approval of the DIOS.

31. Though, the Joint Director
of Education has rejected the claim of the
petitioner on the ground of there being no
substantive vacancy on the date of his
appointment and the ground of prior
approval does not find place in the
impugned order, as has rightly been
contended by the learned counsel for the
petitioner, yet this Court is of the view
that once the said ground of there being
no prior approval prior to appointment of
the petitioner has been taken in the
counter affidavit and is also a legal
ground,
consequently
instead
of
remanding back the matter to the Joint
Director of Education for a fresh
decision, this Court has itself gone
through the facts of the case and has also
1614 INDIAN LAW REPORTS ALLAHABAD SERIES
considered
the
said
ground
which
deciding the case after hearing the
learned counsel for the petitioner on this
ground also more particularly when the
pleadings have already been completed
and the matter was argued at length.

32. As regards, the judgment
cited on behalf of the petitioner in the
case of Rajendra Yadav and Sri Ranjan
(supra) which pertains to there being
deemed approval after lapse of two weeks
from the date of seeking prior approval of
the DIOS, suffice to state that once the
relevant Regulations do not contemplate
any such deemed approval consequently,
no such deemed approval can be
presumed. Moreover, prior approval has
been held to be sine qua non by various
Division Bench judgment of this Court
before making any appointment in terms
of Regulation 101, consequently the
aforesaid judgments shall not come to the
rescue of the petitioner.

33. As regards, the judgment in
the case of Abdul Shafiq Hanfi (supra),
the said judgment is distinguishable
inasmuch the said judgment did not
consider the question of prior approval as
specifically provided in the Regulations
and as has been considered by various
Division Bench judgments of this Court as
well as by the Hon'ble Supreme Court.

34. As regards, the judgment in
the case of Surya Kumar Dixit (supra),
the same pertains to an order held to be
sustainable only on the grounds contained
therein keeping in view the law laid down
by the Hon'ble Supreme Court in the case
of Mohinder Singh Gill and Ors Vs. The
Chief
Election
Commissioner,
New
Delhi and Ors reported in AIR 1987 SC
851. This Court has already recorded as
to why despite the ground of prior
approval not having been taken by the
respondent no. 2 while rejecting the case
of the petitioner in the impugned order yet
the said ground of prior approval having
been taken in the counter affidavit as such
this Court has itself proceeded to consider
the said ground as the pleadings have
been completed and it would have been a
futile exercise to remit back the matter to
the respondent no. 3 for a decision afresh
despite having the legal reasons on
record . As such, the said judgment would
also not be of any help to the petitioner.

35. Accordingly, when facts of
the instant case are tested on the touch
stone of Regulation 101 wherein the
words 'Prior Approval' has been used and
the interpretation of the words 'Prior
Approval' as has been given by the
Hon'ble Supreme Court as well as various
Division Benches of this Court and the
principle of law as enunciated in the case
of Nazir Ahmad (supra) it clearly comes
out that where the appointing authority
has issued the appointment order or
permitted the joining of any candidate
without the prior approval the same
would be illegal and void abinitio. In the
instant case, the Management having
initiated the selection process and having
issued the advertisement, formed a select
committee,
selected
the
petitioner
permitted him to join and even issued an
appointment order without the prior
approval of the DIOS the same would
thus vitiate the appointment of the
petitioner.

36.
Keeping
in
view
the
aforesaid discussions, no illegality or
infirmity is found in the impugned order
dated
26.11.2011
passed
by
the
respondent no. 3.

37.
The
writ
petition
is
accordingly dismissed."

11. Thus, from perusal of the
aforesaid judgment, it clearly comes out
2 All. Om Naresh Vs U.P. State Public Service Tribunal Lucknow
1615
that once there was no prior approval to
the appointment of the petitioner on a
Class
III
post
consequently
the
appointment of the petitioner is itself void
ab-initio in the eyes of law. Having thus
being
appointed
without
any
prior
approval consequently this Court cannot
come to the rescue of the petitioner more
particularly when the appointment of the
petitioner is void ab-initio and having
been made without prior approval of the
competent authority.

12. So far as the judgments relied
upon by learned counsel for the petitioner
in the case of Kunda Motiram Bodalkar
(supra), Ashika Prasad Shukla (supra),
C/M Sarvodaya Inter College (supra)
and Pramod Kumar Pandey (supra) are
concerned, suffice to state that they all
pertain to appointment of Assistant
Teachers who are governed by different
set of rules and provisions of law while
the
present
case
pertains
to
an
appointment on a Class III post which is
governed by Regulation 101 of Chapter
III of the Act of 1921 and hence all the
aforesaid cases are distinguishable on
their own facts. Further the judgment in
the case of Abhendra Anand Singh
(supra)
has
been
passed
without
considering the judgment of Prabhat
Kumar Sharma (supra), Shesh Mani
Shukla (supra), Jagdish Singh (supra),
Ms. Shailja Shah (supra), U.P. Avas
Evam
Vikas
Parishad
(supra),
Raghuwar Pal Singh (supra) and
Pawan Kumar Mishra (supra) and even
otherwise this Court after considering all
the aforesaid Division Bench's judgments
including the judgments of Apex Court
has held in the case of Deepak Kumar
Singh (supra) that prior approval is sinequa-non for a valid appointment on a
Class III post.

13.

Accordingly,
taking
into
consideration the aforesaid discussion no
case for interference is made out. The writ
petition is dismissed.
----------

(2019)10ILR A 1615

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.10.2019

BEFORE

THE HON'BLE ANIL KUMAR, J.
THE HON'BLE SAURABH LAVANIA, J.

Service Bench No. 1736 of 1998

Om Naresh ...Petitioner
Versus
U.P. State Public Services Tribunal
Lucknow ...Respondent

Counsel for the Petitioner:
Sri Vijay Krishna, Sri G.C. Verma, Sri
Prabhakar Tewari.

Counsel for the Respondent:
C.S.C.

A. Service Law -termination - conditional
and
temporary
appointment
of
the
petitioner - automatic termination when
regular appointment is made

The "temporary appointee" has no right to the
post, and hence the petitioner has no right to
continue even if the post continues to exist.
(Para 17 and 18)
If the order of termination is "termination
simpliciter", no opportunity for hearing is
required to be given to the employee. (Para 19)

B. Review Application - scope of review -
maintainability of review application
The application for review is maintainable only
on the grounds mentioned in Order 47, Rule 1
C.P.C. A party filing a review application on