# Shri Vinod Kumar Singh v. State of U.P. and others

- **Citation:** (2008) 3 ILRA 752
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-07-08
- **Case number:** Civil Misc. Writ Petition No. 62220 of 2006
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-vinod-kumar-singh-v-state-of-u-p-and-others-41159
- **Pages:** 4

## Headnote

U.P. Intermediate Education Act, 1921Chapter
III
Regulation
101
-
Appointment of class 4th employee-no
prior permission to advertise the vacancy
taken-within
11
days
of
notifying
vacancy-selection
made-DIOS refused
financial approval-held-prior permission
not mandatory-giving 11 days time to
apply the prospective candidates-not
illegal
but
mere
irregular-State
Government to make necessary provision
in this connection-till amendment made
Secretary to issue circular by forthwith.

Held: Para 6

In so far as the time factor is concerned,
this Court finds that no period is
prescribed under Regulation 101 for
giving a time factor to the prospective
candidates to apply for the post in
question. Normally 15 days' time is
considered sufficient for a prospective
candidate to apply for the post. In the
present case, only 11 days' time was
granted but, by giving only 11 days' time
will not make the selection process
illegal on the ground that sufficient time
was not granted since there is no
complaint
from
any
prospective
candidates in this regard. Consequently,
3 All] Shri Vinod Kumar Singh V. State of U.P. and others
753
this Court is of the opinion that 11 days'
time given in the advertisement for
applying for the post could at best be a
mere irregularity and is not fatal to the
selection process. It is however, made
clear that in future all appointments
made under Regulation 101, a minimum
of 15 days' time should be given in the
advertisement for applying for the post
for the proposed candidate. In this
regard the State Government is directed
to amend the Regulations. However, till
such time the Regulations are not
amended,
the
Secretary,
Secondary
Education will issue a circular to all the
educational institutions in the State of
U.P. bringing this fact to their knowledge
so that in future a minimum of 15 day's
time is granted in the advertisement for
the prospective candidate to apply for
the post in question.

## Text

752 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
that the employer was not at fault. Thus,
the inference is that in case the coverage
if it is evidently proved that the employer
is
liable
to
pay
the
amount
of
compensation to the ultimate sufferer
without delaying the cause, the insurance
company will be directed to pay and
recover it since the statutory duty lies
with the employer. Therefore, it requires
further consideration by the appropriate
court and as such matters are remitted
back to the appropriate court to reconsider
the issue in presence of the parties upon
notice and giving adequate opportunity of
hearing and to come to an appropriate
finding thereof. If it is done, the principle
of audi alteram partem will be fulfilled in
its true sense before the Court where not
only substantial question of law but
factual ascertainment is needed to be
considered. Keeping the appeal pending
for the sake of pendency is a matter of
futility and therefore, orders are required
to be set aside and are set aside hereunder
and the matters are remitted back
hereunder, however, without imposing
any cost and with a caution that in the
garb of the decision to be taken by the
appropriate court the payment of principal
sum to the ultimate sufferer would not be
stalled.

6. Accordingly, the appeals are
treated to be disposed of even at the stage
of admission, however, without imposing
any cost.

7. All the pending matters on such
ground
are
reviewed
hereunder.
Therefore, all such appeals are bound by
this order subject to passing of a formal
order as and when those will appear in the
cause list.

Appeal disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.07.2008

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 62220 of 2006

Shri Vinod Kumar Singh
...Petitioner
Versus.
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri S.P. Singh Parmar
Sri V.K. Singh

Counsel for the Respondents:
S.C.

U.P. Intermediate Education Act, 1921Chapter
III
Regulation
101
-
Appointment of class 4th employee-no
prior permission to advertise the vacancy
taken-within
11
days
of
notifying
vacancy-selection
made-DIOS refused
financial approval-held-prior permission
not mandatory-giving 11 days time to
apply the prospective candidates-not
illegal
but
mere
irregular-State
Government to make necessary provision
in this connection-till amendment made
Secretary to issue circular by forthwith.

Held: Para 6

In so far as the time factor is concerned,
this Court finds that no period is
prescribed under Regulation 101 for
giving a time factor to the prospective
candidates to apply for the post in
question. Normally 15 days' time is
considered sufficient for a prospective
candidate to apply for the post. In the
present case, only 11 days' time was
granted but, by giving only 11 days' time
will not make the selection process
illegal on the ground that sufficient time
was not granted since there is no
complaint
from
any
prospective
candidates in this regard. Consequently,
3 All] Shri Vinod Kumar Singh V. State of U.P. and others
753
this Court is of the opinion that 11 days'
time given in the advertisement for
applying for the post could at best be a
mere irregularity and is not fatal to the
selection process. It is however, made
clear that in future all appointments
made under Regulation 101, a minimum
of 15 days' time should be given in the
advertisement for applying for the post
for the proposed candidate. In this
regard the State Government is directed
to amend the Regulations. However, till
such time the Regulations are not
amended,
the
Secretary,
Secondary
Education will issue a circular to all the
educational institutions in the State of
U.P. bringing this fact to their knowledge
so that in future a minimum of 15 day's
time is granted in the advertisement for
the prospective candidate to apply for
the post in question.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Sri V.K.Singh, the
learned counsel for the petitioner and
the learned Standing Counsel for the
respondents.

2. A Class-IV post became vacant
in the institution upon the retirement of
Sri
Jawahar
on
31.3.2006.
The
Principal,
being
the
competent
authority, issued an advertisement in a
daily newspaper on 17.6.2006 inviting
applications for filling up the said post.
The Principal also wrote a letter to the
District Inspector of Schools seeking
permission to fill up the said post. The
District Inspector of Schools, by an
order
dated
19.6.2006,
granted
permission to the institution to fill up
the vacancy. Based on the aforesaid
advertisement,
the
petitioner
also
applied and was selected by the
competent
authority
and,
an
appointment letter dated 28.6.2006 was
issued. The necessary papers were
forwarded by the Principal to the
District
Inspector
of
Schools
for
financial
approval.
The
District
Inspector of Schools, by an order dated
19.9.2006, refused to accord financial
sanction to the appointment of the
petitioner on the ground that previous
permission had not been obtained by
the institution before advertising the
post and that only 11 days' time was
given to the applicant to apply for the
said post instead of 15 days. The
petitioner, being aggrieved by the said
order, has filed the present writ
petition.

3. Regulation 101 of Chapter III
of the Regulations framed under the
Intermediate Education Act provides as
under:-

"101. Appointing Authority except
with prior approval of Inspector shall
not fill up any vacancy of non-teaching
post
of
any
recognized
aided
institution:

Provided
that
filling
of
the
vacancy on the post of Jamadar may be
granted by the Inspector."

4. The provision contemplates
that prior approval of the Inspector is
required before filling up any vacancy.
The moot question which arises for
consideration
is,
whether
prior
approval is required before advertising
the said post or before issuing the
appointment letter. A Division Bench
of this Court in Jagdish Singh vs.
State of U.P. and others, 2006(2)
UPLBEC 1851, has held as under:-

"The observation of the learned
Single Judge in Ram Dhani's case
754 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
(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
Principle/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.

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."

5. The Division Bench held that it is
not necessary that permission is sought by
the institution seeking permission to issue
an advertisement for filling up the post
and that it is mandatory that prior
approval is obtained from the Inspector
before issuing an appointment letter. In
the present case, the advertisement was
issued on 17.6.2006 and permission was
granted by the Inspector on 19.6.2006. No
doubt the advertisement was issued prior
to seeking permission and in view of the
Division Bench decision (supra), the
issuance of the advertisement prior to
seeking permission was not fatal to the
selection process. Further, after the
selection process, the Principal sought
financial approval of the appointment of
the petitioner which was in accordance
with the provisions of Regulation 101 of
the aforesaid Regulations. In view of the
aforesaid, this Court holds that there is no
defect in the procedure adopted by the
Principal in advertising the post on
17.6.2006.
6. In so far as the time factor is
concerned, this Court finds that no period
is prescribed under Regulation 101 for
giving a time factor to the prospective
candidates to apply for the post in
question. Normally 15 days' time is
considered sufficient for a prospective
candidate to apply for the post. In the
present case, only 11 days' time was
granted but, by giving only 11 days' time
will not make the selection process illegal
on the ground that sufficient time was not
granted since there is no complaint from
any prospective candidates in this regard.
Consequently, this Court is of the opinion
that
11
days'
time
given
in
the
advertisement for applying for the post
could at best be a mere irregularity and is
not fatal to the selection process. It is
however, made clear that in future all
appointments made under Regulation 101,
a minimum of 15 days' time should be
given in the advertisement for applying
for the post for the proposed candidate. In
this regard the State Government is
directed to amend the Regulations.
However, till such time the Regulations
are
not
amended,
the
Secretary,
Secondary Education will issue a circular
to all the educational institutions in the
State of U.P. bringing this fact to their
knowledge so that in future a minimum of
15
day's
time
is
granted
in
the
advertisement
for
the
prospective
3 All] Sudhir Kumar Jain V. State of U.P. and others
755
candidate to apply for the post in
question.

7. In view of the aforesaid, the
impugned order cannot be sustained
and is quashed. The writ petition is
allowed.

8. The matter is remitted again to
the District Inspector of Schools to
pass fresh orders in accordance with
the observations made aforesaid within
six weeks from the date of the
production of a certified copy of this
order.

9. A certified copy of this order
shall be made available to Sri Amit
Kumar, the learned standing counsel to
forward the same to the Secretary,
Secondary Education for necessary
action.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.07.2008

BEFORE
THE HON'BLE VINEET SARAN, J.
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 23072 of 2008

Sudhir Kumar Jain

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

Counsel for the Petitioner:
Sri Chetan Chatterji

Counsel for the Respondents:
Sri. Arjun Singhal
S.C.

Constitution of India, Article 226cancellation
of
allotment-petitioner
was allotted flat C-type by Saharanpur
Development
Authority
on
05.05.2006-total amount Rs.93,500/-
payable
upto
30.05.2008-petitioner
deposited all quarterly instalments-in
default of one instalment-allotment
cancelled with condition that if the
petitioner desirous to regularize the
allotment-deposit entire amount as
per
enhanced
rate-petitioner
submitted draft of Rs.25,350/- on
19.03.2008-prior to cut of date total
amount of Rs.89,511/- already paidsubstantial amount already depositedthe same be adjusted against the total
amount be fixed within one month by
the development authority being a
model State-expected to act fairlycancellation
of
allotment
without
notice
liable
to
be
quashedDevelopment Authority shall conclude
entire amount as per rate of allotment
order after adjusting Rs.25,350/- also.

Held: Para 7

Keeping in view that the last date for
payment of last installment has not
yet
expired
even
today
and
the
petitioner
has
made
substantial
deposit prior to the passing of the
impugned order, even though there
has been default in payment of some
installments
by
the
petitioner,
cancellation order could have been
passed
only
after
notice
to
the
petitioner
to
make
such
payment
alongwith normal or penal interest, if
any. In such view of the matter, we
are of the firm view that the order
dated 26.3.2008 is unjustified and
arbitrary. We accordingly quash the
same. In case the respondents have
not
encashed
the
draft
dated
19.3.2008 for a sum of Rs.25,350/-,
the same may be encashed or returned
to the petitioner and in case, if it has
been encashed by the Development
Authority, the said amount shall be
adjusted towards the payment made
by the petitioner. Whatever amount is
then found due from the petitioner,
that
may
be
intimated
to
the