# Satish Narain Treivedi v. State of U.P

- **Citation:** Service Single No. 5748 of 1999
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-10
- **Case number:** Service Single No. 5748 of 1999
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satish-narain-treivedi-v-state-of-u-p-46302
- **Pages:** 13

## Headnote

A. Service Law- Appointment/Payment
of salary - U.P. Intermediate Education
Act, 1921-Regulations 101 to 104 -.
Service
-
Post
retiral
benefits
-
Appointment should be made after
taking the approval from the competent
authority - Appointment of the petitioner,
without prior approval of the DIOS, is void
and he is not entitled to any benefit or relief.
(Para 7, 8, 22, 23)

B. A regular appointment to a post
under the State or Union cannot be
made without issuing advertisement in
the prescribed manner - The petitioner's
appointment made by management, without
advertisement of the vacancy and without
inviting applications from the candidates
from open market to participate in the
selection process, is void appointment. (Para
10, 16 to 20)

C. Merely because an employee had
continued under cover of an order of
the
court,
described
as
"litigious
litigation", he would not be entitled to
any right to be absorbed or made
permanent in the service. - Interim order
dated 04.11.1999, on the strength of which,
the petitioner was continuing in service and
was getting the salary from the State
Exchequer, would not give any benefit or
right to the petitioner. (Para 24 to 28)

Writ petition dismissed. (E-4)

Precedent followed:

## Text

_Characters 0–39,770 of 43,914. This is a partial read: ask again with offset=39770 for what follows._

1188 INDIAN LAW REPORTS ALLAHABAD SERIES

24. For the reasons mentioned
hereinabove, the petitioner shall approach
the competent authority within a period of
ten days alongwith the certified copy of the
order of this Court for payment of retiral
dues and family pension and the authorities
are directed to complete the necessary
formalities and make the payment of due
amount to the petitioner within a period of
two months with 6 percent simple interest.
The writ petition to claim retiral benefit is
allowed while dismissing on the claim of
the petitioner for taking the date of birth of
her husband as 15.10.1942.
----------
(2020)03-05ILR A1188
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.02.2020

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Service Single No. 5748 of 1999

Satish Narain Treivedi ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Anil Kumar, Anurag Srivastava

Counsel for the Respondent:
C.S.C.

A. Service Law- Appointment/Payment
of salary - U.P. Intermediate Education
Act, 1921-Regulations 101 to 104 -.
Service
-
Post
retiral
benefits
-
Appointment should be made after
taking the approval from the competent
authority - Appointment of the petitioner,
without prior approval of the DIOS, is void
and he is not entitled to any benefit or relief.
(Para 7, 8, 22, 23)

B. A regular appointment to a post
under the State or Union cannot be
made without issuing advertisement in
the prescribed manner - The petitioner's
appointment made by management, without
advertisement of the vacancy and without
inviting applications from the candidates
from open market to participate in the
selection process, is void appointment. (Para
10, 16 to 20)

C. Merely because an employee had
continued under cover of an order of
the
court,
described
as
"litigious
litigation", he would not be entitled to
any right to be absorbed or made
permanent in the service. - Interim order
dated 04.11.1999, on the strength of which,
the petitioner was continuing in service and
was getting the salary from the State
Exchequer, would not give any benefit or
right to the petitioner. (Para 24 to 28)

Writ petition dismissed. (E-4)

Precedent followed:

1. Jagdish Singh Vs. St. of U.P. & ors.,
(2006) 3 UPLBEC 2765 (Para 7, 22)

2. National Fertilizers Ltd. & ors. Vs. Somvir
Singh, (2006) 5 SCC 493; 2006 SCC (L&S)
1152 (Para 17)

3. U.P.S.C. Vs. Girish Jayanti Lal Vaghela,
(2006) 2 SCC 482; 2006 SCC (L&S) 339
(Para 17)

4. Secretary, St. of Karnataka & ors. Vs.
Umadevi & ors., (2006) 4 SCC 1; 2006 SCC
(L&S) 753 (Para 25)

5. Shesh Mani Shukla Vs. District Inspector
of Schools, Deoria & ors., (2009) 15 SCC
436 (Para 27)

6. Raghvendra Rao etc. Vs. St. of Karnataka
& ors., JT 2009 (20) SC 520 (Para 28)

Petition
challenges
order
dated
07.09.1999,
passed
by
District
Inspector of School-II, Lucknow.

(Delivered by Hon'ble Saurabh Lavania, J.)
3-5 All. Satish Narain Treivedi Vs. State of U.P.
1189

1. Heard Sri Anurag Srivastava,
learned counsel for the petitioner and Sri
Gyanendra
Srivastava,
learned
State
Counsel.

2. By means of the present writ
petition, a challenge has been made to the
order dated 07.09.1999 (Annexure No. 9 to
the writ petition), whereby the financial
approval to the appointment of the
petitioner on the post of Peon, in the ClassIV category, in the College known as Janta
Girls Inter College, Alambagh, Lucknow
(in short "College") has been rejected by
the DIOS (District Inspector of School-II,
Lucknow)/respondent No. 2.

3. It is stated that the petitioner was
appointed by the competent authority i.e.
Principal of the College/respondent No. 5
vide order dated 10.08.1997 and the
required documents were sent to the DIOS
for approval of appointment of the
petitioner on the post of Peon, but no heed
was paid by the DIOS thereupon.

4. Being aggrieved by the inaction of
the DIOS, the petitioner approached this
Court by means of the Writ Petition No.
4520 (S/S) of 1998, whereby this Court
after considering the facts of the case
passed the final order on 08.10.1998, which
reads as under:-

"Heard learned counsel for the
petitioner learned standing counsel and
also perused the record.

By means of this petition under
Article 226 of the Constitution of India,
petitioner prays for issuance of a writ order
or direction in the nature of mandamus
commanding the District Inspector of
Schools, Lucknow to accord approval to
the appointment of the petitioner on Class
IV post in Janta Girls Inter College,
Alambagh, Lucknow.

It has been stated that after
following the procedure prescribed under
law, the petitioner was appointed as ClassIV employee in the aforesaid Institution by
the Principal of the college, but till date
District Inspector of Schools, did not
accord financial approval. Consequently,
petition is not being paid his salary. It has
been urged that the petitioner has filed
several applications/ representations for
ventilation of his grievances before the
District Inspector of Schools, and the
Account Officer of the District Inspector of
Schools, but of no avail, he had not option
but to approach this Court and file the
present petition.

Since the matter is pending
disposal before the District Inspector of
Schools, this petition is finally disposed of
with the direction to District Inspector of
Schools, Lucknow to look into the matter
and decide the representations filed by the
petitioner for according financial approval
of his appointment by means of speaking
order, within one month from the date a
certified copy of this order is produced
before him."

5. In compliance of the order passed
by this Court dated 08.10.1998, the DIOS
considered the case of the petitioner for
approval of appointment on the post of
Peon in the College in issue. The DIOS
after considering the material available on
record and by recording the following
reasons rejected the claim of approval of
appointment of the petitioner vide order
dated
07.09.1999,
which
has
been
challenged in the present writ petition.
"fu"d"kZ

i=koyh ds voyksdu ls fuEu fLFkfr
Li"V gksrh g%Sa&
1190 INDIAN LAW REPORTS ALLAHABAD SERIES

1& ;kph }kjk fn, x;s i=ksa dh izfr;ka
bl dk;kZy; esa izkIr gqbZ ugha izrhr gksrh gSaA
;kph rFkk iz/kkukpk;kZ }kjk laYkXu i=ksa dks bl
dk;kZy; esa izkIr djkus dk lk{; izLrqr ugha
fd;k tk ldkA

2&fjDr in ij fu;qfDr gsrq p;u ds
fy, dksbZ izfdz;k ugha viukbZ xbZA

3&fjDr in ij fu;qfDr gsrq p;u ds
fy, dksbZ izfdz;k ugha viukbZ xbZA

4&fo|ky; esa vuqlwfpr tkfr gsrq
vkjf{kr dksVk iw.kZ ugha gSA fjDr in vuqlwfpr
tkfr ds vH;FkhZ }kjk Hkjk tkuk gSA

5&m0iz0 ek/;fed f'k{kk vf/kfu;e ds
vUrxZr fufeZr fofu;ekoyh ds v/;k; 3 fofu;e
101 ds izkfo/kkukuqlkj ;kph dh fu;qfDr djus ls
iwoZ fujh{kd ls iwokZuqeksnu ugha izkIr fd;kA"

6.

Assailing
the
order
dated
07.09.1999,
learned
counsel
for
the
petitioner submitted that the procedure as
required under the law was followed by the
appointing authority i.e. Principal of the
College and thereafter, the petitioner was
appointed on the post in question i.e. Peon
against the post under unreserved category
and the DIOS while passing the impugned
order failed to consider the entire facts in
its true spirit and accordingly, denial of
salary from the State Exchequer is
unjustified.

7. Per contra, learned State Counsel
submitted that the appointment of the
petitioner was made after insertion of
Regulations 101 to 104 in Chapter-3 of the
U.P. Intermediate Education Act, 1921 (in
short "Act, 1921") vide Notification No.
4001/15-7-2-(1)(90)
dated
03.07.1992
subsequently amended vide Notification
No. 300/15-7(1)(90) dated 02.02.1995. The
Regulations 101 to 104 provides that prior
approval of DIOS for appointment on the
post in issue i.e. Peon, on which the
petitioner was appointed vide order dated
10.08.1997, is necessary. In the instant
case, the petitioner was appointed without
taking prior approval of the DIOS, as such
the appointment of the petitioner is illegal
and arbitrary and being so, the petitioner is
not entitled to salary from the State
Exchequer. In this regard, reliance has been
placed on the judgment passed in the case
of Jagdish Singh v. State of U.P. and
others reported in [(2006) 3 UPLBEC
2765]. The relevant portion of the same on
reproduction reads as under:-

"9. First issue, which has arisen
in these appeals, is interpretation of 'prior
approval' as used in Regulation 101 of
Chapter
III.
Prior
to
Insertion
of
Regulations
101
to
107
in
U.
P.
Intermediate Education Act with effect from
30th July, 1992, there was no express
provision under the U. P. Intermediate
Education Act, 1921 and the Regulations
framed thereunder requiring approval of
appointment of Class III and Class IV
employees, although the provisions were
there in the U. P. Intermediate Education
Act,
1921
regarding
approval
of
appointment of teachers. A Division Bench
of this Court in 1982 UPLBEC - 232 Om
Prakash v. District Inspector of Schools.
Budaun and Ors., while considering the
appointment of Class IV employee took the
view that there is no provision for approval
of appointment of Class IV employees.
Regulations 101 to 107 were added
providing for prior approval before filling
up the vacancy of non-teaching post and
providing for the appointment of dependent
of deceased employee and a procedure
thereof. Regulations 101 to 104 of the
Regulations, which are relevant for the
present case, are extracted below:

101. Appointing Authority except
with prior approval of Inspector shall not
fill up any vacancy of non-teaching post of
any recognised aided institution.
3-5 All. Satish Narain Treivedi Vs. State of U.P.
1191
Provided that filling of the vacancy on the
post of Jamadar may be granted by the
Inspector.

"102.
Information
regarding
vacancy as a result of retirement of any
employee holding a non-teaching post in
any recognised, aided institution shall be
given before three months of his date of
retirement and information about any
vacancy falling due to death, resignation or
for any other reasons shall be intimated to
the Inspector by the appointing authority
within seven days of the date of such
occurrence.

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

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

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

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

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

10. Regulations 103 and 104, as
quoted above, provide that the appointing
authority shall intimate vacancy falling on
account of retirement before three months
of the date of retirement. In other cases
vacancy was required to be communicated
within 7 days from occurrence. Regulation
further
provides
for
appointment
on
compassionate ground to dependent of
teaching or non-teaching employee in a
recognized
aided
institution.
The
management was also enjoined to inform
about the death of employee, dependents of
the employees and the District Inspector of
Schools was to put up the application,
received from the member of the deceased
employee for appointment, to a committee
as contemplated under Regulation 105 to
consider the case and thereafter the
application was to be sent to the
management for issuing appointment letter.
Regulations 101 to 107 have to be read in a
manner to give effect/and meaning to the
provisions incorporated with effect from
30th July, 1992. The entire provisions
requires harmonious construction, so all
the regulations become workable and every
part of it is given meaning.

11. Regulation 101, which is to be
interpreted, uses a word "Inspector shall
not fill up any vacancy". The word 'fill up',
for the purpose of appointment, embraces
in itself a procedure, which initiates from
intimation of vacancy till selection of a
candidate. The submission, which has been
1192 INDIAN LAW REPORTS ALLAHABAD SERIES
placed by the learned Counsel for the
appellant, is that Regulation 101 means
that before starting to fill up any vacancy,
prior approval of the Inspector is required.
He contended that thus permission is
required from Inspector by the appointing
authority to start with process of selection
and once the permission is granted by the
Inspector, the appointing authority is free
to proceed with selection and make
appointment. They contended that the
permission to start selection is one which is
contemplated in Regulation 101.

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

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

"Further, the prior approval
which has been referred to in the
Regulation 101 in question has to be
granted or refused by the competent
authority not in an arbitrary manner but
after examining the proceedings relating to
the appointment and finding out as to
whether
the
appointment
was
really
necessary taking into consideration the
norms fixed by the State Government
justifying the continuance of the post and
after
satisfying
as
to
whether
the
appointment was made after following the
prescribed procedure in a fair manner and
is in accordance with the provisions
regulating
the
procedure
which
is
prescribed
for
making
such
an
appointment. It is only after the competent
authority is satisfied that there is no defect
in the procedure followed for making the
appointment and such an appointment is
infact necessary and further all the
requisite conditions including the eligibility
criteria etc. stand complied with and
further the selection proceedings have been
concluded in a fair manner that the District
Inspector of Schools has to accord the
prior approval which on the requisite
conditions
being
satisfied
cannot
be
withheld keeping in view the public interest
involved as the State having undertaken to
take the liability for payment of salary etc.
of the teaching as well as non-teaching
staff employed in a recognized Intermediate
College or High School is bound to ensure
3-5 All. Satish Narain Treivedi Vs. State of U.P.
1193
that its smooth functioning is not hampered
on account of refusal to grant approval to
an appointment made by the committee of
management
in
the
interest
of
the
institution."

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

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

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

"The concept of the approval of
an appointment is a well known concept
under the U. P. Intermediate Education
Act, 1921 with regard to the appointment
by the Selection Committee for direct
recruitment as well as in the case of
promotion. For appointment the procedure
is prescribed in the various Regulations.
The qualification for appointment is also
provided
in
Chapter-Ill
and
other
provisions of the Act and the Regulations
framed. While considering the question of
approval of appointment of a candidate, the
District Inspector of Schools has to act in
accordance
with
the
other
express
provisions
provided
for
qualification,
eligibility and procedure prescribed for
selection. It cannot be said that the power
of
approval
as
contemplated
under
Regulation 101 is not hedged by any
guidance or qualification. It is not in the
discretion of the District Inspector of
Schools to pass an order for approval or
disapproval at his sweet will. He has to
pass an order taking into consideration the
1194 INDIAN LAW REPORTS ALLAHABAD SERIES
other provisions and Regulations of the
Act. Thus the submission of the learned
Counsel for the appellant that the said
power is uncanalised and the provision
itself is arbitrary, cannot be accepted."

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

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

"101-fu;qfDr izkf/kdkjh] fufj{kd ds
iwokZuqeksnu
ds
flokp
fdlh
ekU;rkizkIr]
lgk;rkizkIr laLFkk ds f'k{k.ksRrj LVkQ dh fdlh
fjfDr dks ugha Hkjksxk%

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

18. Regulation 101, as quoted
above, uses two words, namely, ^iwokZuqeksnu*
and ^vuqefr*]. The first part of the
Regulation
provides
that
appointing
authority except with prior approval of
Inspector shall not fill up any vacancy of
non-teaching post of any recognised aided
institution whereas second part of the
Regulation provides that permission for
filling of post of sweeper (Jamadar) can be
given by Inspector. Second part of the
Regulation is In the nature of proviso. The
main part of the Regulation contains word
^iwokZuqeksnu* i.e. prior approval whereas
second part of the Regulation uses word
^vuqefr*] i.e. permission. Thus, the Statute
uses both the word 'prior approval' and
'permission'. The meaning of both the word
cannot be the same. In view of this, the
submission of the learned Counsel for the
appellant that Regulation 101 requires only
permission to issue advertisement by
appointing authority and if such permission
is granted by Inspector, the appointing
authority can fill up the post. Regulation
101 provides prior approval with regard to
vacancy
of
non-teaching
staff
and
permission is contemplated only for filling
the post of sweeper. Regulation thus
indicates that when the permission is given
to the appointing authority to fill up post of
sweeper. There is no further prior approval
is required. This provision being in nature
of proviso to the main Regulation shall
operate as an inception to the first part of
Regulation. Thus, the use of two words in
Regulation 101 i.e. 'prior approval' and
'permission' itself negates construction of
Regulation as contended by the counsel for
the appellant.

19. When the prior approval of
the Inspector is contemplated in Regulation
101, that prior approval embraces itself an
examination of all aspects of the matter
including existence of the vacancy, nature
of the vacancy whether vacancy is to be
filled up by management or it be filled by
appointing the dependent of deceased
employee who has claimed for appointment
under the scheme of the Regulations 101 to
107.

20. Scheme of Regulations 101 to
107 makes it clear that after receiving an
intimation
of
vacancy,
the
District
Inspector of Schools is empowered to send
the application of member of deceased
employee,
who
is
entitled
for
compassionate
appointment
to
the
institution, who has to issue appointment
letter to such candidate. It is, however,
3-5 All. Satish Narain Treivedi Vs. State of U.P.
1195
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."

8. It is further submitted that the
petitioner was appointed by the Principal of
the College but prior to issuing of the order
of appointment dated 10.08.1997, the
approval, as required under the Regulations
101 was not taken by the appointing
authority from the competent authority i.e.
DIOS/opposite party No. 2. Thus, the
impugned order being just and proper is not
liable to be interfered with by this Court.

9. Keeping in view the provisions as
envisaged under Regulation 101 in the
Chapter III of the Act, 1921, the DIOS
denied the approval of appointment of the
petitioner, as such there is no illegality and
infirmity in the impugned order.

10. Sri Srivastava, learned State
Counsel, further submitted that a perusal of
the averments made in the writ petition and
the documents annexed thereto would show
that prior to appointment, the post in issue
was not advertised in two daily newspapers
having vide circulation. Thus, the settled
procedure required for recruitment was not
followed and being so, the appointment of
the petitioner is vitiated under the law and
the petitioner is not entitled to the relief of
1196 INDIAN LAW REPORTS ALLAHABAD SERIES
payment
of
salary
from
the
State
Exchequer.

11. It is further stated that on the post
for
reserved
category
candidate,
the
petitioner was appointed. Thus also the
appointment of the petitioner is not legal.

12. In view of the above, the prayer is
to dismiss the writ petition.

13. In rebuttal, learned counsel for the
petitioner submitted that while entertaining
the present writ petition, this Court on
04.11.1999 passed an interim order, which
is quoted below, and on the strength of the
interim order, the petitioner is still
continuing in service in the pay band of Rs.
5200-20200/- with grade pay of Rs. 1800/-
and is getting the salary from the State
Exchequer and in view of the same, the
petitioner may be allowed to continue in
service and the writ petition for the reliefs
sought may be allowed.

"Notice on behalf of opp. parties
1 to 3 has been accepted by the learned
Chief Standing Counsel.

Issue notice to opp. parties 4 and
5.

Learned counsel for the opp.
parties prays for and is granted four weeks
time
to
file
counter
affidavit.
List
thereafter.

In the meantime it is provided
that in case the petitioner's appointment
has been made against a sanctioned post
after selection and the petitioner is actually
working on that post, he shall be paid
salary regularly till further order of this
Court. The operation of impugned order
dated 7-9-99 as contained in Annexure-9 to
the writ petition shall remain stayed till
further orders of this Court."

14. In response to the arguments
raised by the learned counsel for the
petitioner in regard to continuance of the
petitioner in service and payment of salary
from State Exchequer on the strength of
interim order, learned State Counsel
submitted that the petitioner cannot get any
benefit from the interim order, as the
appointment of the petitioner is not valid.

15. Heard learned counsel for the
parties and perused the record.

16. In regard to submissions made by
the learned State Counsel that the vacancy
was not published in newspaper, which
process is mandatory, this Court considered
the pleadings and documents on record and
it appears therefrom, particularly para 16 of
the writ petition, that the vacancy in issue
i.e. the vacancy of the post of Peon was
notified on the "Notice Board" of the
Institution and it was not advertised in two
daily newspapers having vide circulation.

17. In National Fertilizers Ltd.
[(2006) 5 SCC 493 : 2006 SCC (L&S)
1152] this Court referred to the decision in
Union Public Service Commission v. Girish
Jayanti Lal Vaghela [(2006) 2 SCC 482 :
2006 SCC (L&S) 339] wherein the Court
had observed as under: (SCC p. 490, para
12)

"The appointment to any post
under the State can only be made after a
proper advertisement has been made
inviting
applications
from
eligible
candidates and holding of selection by a
body of experts or a specially constituted
committee whose members are fair and
impartial through a written examination or
interview or some other rational criteria
for judging the inter se merit of candidates
who have applied in response to the
3-5 All. Satish Narain Treivedi Vs. State of U.P.
1197
advertisement
made.
A
regular
appointment to a post under the State or
Union cannot be made without issuing
advertisement in the prescribed manner
which may in some cases include inviting
applications
from
the
employment
exchange where eligible candidates get
their
names
registered.
Any
regular
appointment made on a post under the
State
or
Union
without
issuing
advertisement inviting applications from
eligible candidates and without holding a
proper
selection
where
all
eligible
candidates get a fair chance to compete
would violate the guarantee enshrined
under Article 16 of the Constitution."

18. It is true that, at relevant time, the
provisions of Chapter III of the U. P.
Intermediate Education Act, 1921, did not
provide any procedure for selection on the
post of the Peon. In the absence of any
prescribed procedure under the rules, it is
open to the management to adopt a
procedure which conforms the provisions
of Articles 14 and 16 of the Constitution of
India. The committee of management was
free to issue advertisement in the news
paper and to call names from the
Employment
Exchange
for
making
selection.

19. In the aided Institution, the salary
to the teachers and the staff is paid by the
State Government. Since the salary is paid
by the State Government, for all purposes
the employment to the post of clerk is
public
employment.
For
a
public
employment, the minimum requirement
which is needed is to advertise the post to
enable all the eligible candidates to apply
for the post. The committee of management
cannot claim to select any person on its
own choice without advertising the post in
any news paper.

20. In view of the above, the
petitioner's appointment made by the
management, without advertisement of the
vacancy and without inviting applications
from the candidates from open market to
participate in the selection process, is void
appointment.

21. It appears from the pleadings on
record that the specific stand taken by the
State, based on Regulation 101 in the
Chapter III of the Act, 1921, that the
appointment of the petitioner was not made
after seeking prior approval of competent
authority i.e. DIOS/opposite party No. 2, is
undisputed. The specific plea, based on the
Regulation 101, taken in the counter
affidavit has not been denied by the
petitioner.

22. The Division Bench of this Court
in the case of Jagdish Singh (supra) held
that the appointment should be made after
taking the approval from the competent
authority, as provided under Regulation
101 in the Chapter III of the Act, 1921. At
the cost of repetition, the relevant portion
of the judgment passed by the Division
Bench of this Court in the case of Jagdish
Singh (supra) is quoted below for ready
reference:-

"20. Scheme of Regulations 101
to 107 makes it clear that after receiving an
intimation
of
vacancy,
the
District
Inspector of Schools is empowered to send
the application of member of deceased
employee,
who
is
entitled
for
compassionate
appointment
to
the
institution, who has to issue appointment
letter to such candidate. It is, however,
implied in the scheme that in the event
there
is
no
candidate
entitled
for
compassionate
appointment
to
fill
a
particular vacancy, the intimation of which
1198 INDIAN LAW REPORTS ALLAHABAD SERIES
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. In view of the above also, the
appointment of the petitioner, without prior
approval of the DIOS, is void and being so
he is not entitled to any benefit or relief.

24. With regard to payment of salary
and continuation on the post on the strength
of the interim order dated 04.11.1999 and
the arguments based on the same for
seeking the reliefs sought, this Court is of
the view that the interim order would not
give any benefit or right to the petitioner to
get the reliefs sought in the present writ
petition.

25. The aforesaid view of this Court is
in view of the observations made by the
Constitution Bench of the Apex Court in
Umadevi (3) case [(2006) 4 SCC 1 : 2006
SCC (L&S) 753], wherein it has been
observed as under:-

"43. Thus, it is clear that
adherence to the rule of equality in public
employment is a basic feature of our
Constitution and since the rule of law is the
core of our Constitution, a court would
certainly be disabled from passing an order
upholding a violation of Article 14 or in
ordering the overlooking of the need to
comply with the requirements of Article 14
read with Article 16 of the Constitution.
Therefore, consistent with the scheme for
public employment, this Court while laying
3-5 All. Satish Narain Treivedi Vs. State of U.P.
1199
down the law, has necessarily to hold that
unless the appointment is in terms of the
relevant
rules
and
after
a
proper
competition among qualified persons, the
same would not confer any right on the
appointee.
If
it
is
a
contractual
appointment, the appointment comes to an
end at the end of the contract, if it were an
engagement or appointment on daily wages
or casual basis, the same would come to an
end when it is discontinued. Similarly, a
temporary employee could not claim to be
made permanent on the expiry of his term
of appointment. It has also to be clarified
that merely because a temporary employee
or a casual wage worker is continued for a
time beyond the term of his appointment, he
would not be entitled to be absorbed in
regular service or made permanent, merely
on the strength of such continuance, if the
original appointment was not made by
following a due process of selection as
envisaged by the relevant rules. It is not
open to the court to prevent regular
recruitment at the instance of temporary
employees whose period of employment has
come to an end or of ad hoc employees who
by the very nature of their appointment, do
not acquire any right. The High Courts
acting
under
Article
226
of
the
Constitution, should not ordinarily issue
directions for absorption, regularisation,
or permanent continuance unless the
recruitment itself was made regularly and
in terms of the constitutional scheme.
Merely because an employee had continued
under cover of an order of the court, which
we
have
described
as
''litigious
employment' in the earlier part of the
judgment, he would not be entitled to any
right to be absorbed or made permanent in
the service. In fact, in such cases, the High
Court may not be justified in issuing
interim directions, since, after all, if
ultimately the employee approaching it is
found entitled to relief, it may be possible
for it to mould the relief in such a manner
that ultimately no prejudice will be caused
to him, whereas an interim direction to
continue his employment would hold up the
regular procedure for selection or impose
on the State the burden of paying an
employee who is really not required.