# Umakant & Ors v. State of U.P. & Ors

- **Citation:** (2016) 5 ILRA 257
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-02
- **Bench:** Dr. Devendra Kumar Arora
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/umakant-ors-v-state-of-u-p-ors-43941
- **Pages:** 6

## Text

5 All. Umakant & Ors. Vs State Of U.P. & Ors.

257

62. In the result, we find and hold that the present appeal has got merit and the appeal is
allowed.

63. In the result, we find and hold that both the appeals have got merit and are allowed.

64. Let a copy of this judgment along with the trial court record be sent to the court concerned
for compliance.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.05.2016

BEFORE

THE HON'BLE DR. DEVENDRA KUMAR ARORA, J.

Writ Petition/Service Single No.- 2697 Of 2003

Umakant & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Opposite Parties

This petition has been filed for a direction to pass order for giving financial approval for payment of salary and
further to pay monthly salary alongwith arrears of salary.

The issue which arise in this writ was whether prior approval is required before advertising the said post or
before issuing the appointment letter.

Court observed that it proper to direct the District Inspector of Schools, Hardoi, to examine the matter in the
light of the fact that petitioners are in service last more than ten years and even are being paid salary and in
the event he finds that there is no defect in the selection process then financial concurrence shall be given in
the manner as has been given to S/Sri Arvind Kumar and Gurudutt Pandey by the District Inspector of Schools
vide order dated 29.1.2005. It is also made open to the District Inspector of Schools to recover the salary paid
earlier from the Management of the College in case refusal of financial concurrence by the DIOS on finding
any irregularity in the selection process or short coming in the candidature of the petitioners.

This writ petition is disposed of finally.

List of Cases Cited:

1. Rajendra Yadav v. Deputy Director of Education; 1999 (3)AWC 2123
2. Shri Ranjan and others vs. District Inspector of Schools, Allahabad and others; 2005(2) ESC (All) 1023
3. Dubari and other vs. State of U.P. and others 2007(25) LCD 1176
4. Jagdish Singh vs. State of aU.P. And others (2006) 2 UPLBEC 1851

(Delivered by Hon'ble Dr. Devendra Kumar Arora, J.)
258 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard Sri Rakesh Kumar Srivastava, learned Counsel for the petitioner, Sri Pankaj Verma,
who has put in appearance on behalf of Committee of Management and Sri Prashant Jaiswal,
learned Addl. Chief Standing Counsel for the State.

2. Petitioners have filed this writ petitioner inter-alia for a direction to pass order for giving
financial approval for payment of salary and further to pay monthly salary alongwith arrears of
salary.

3. According to the learned Counsel for the petitioners, the Committee of Management of B.N.
Inter College, Mallawan, Hardoi, which is a recognized and aided institution, [ hereinafter referred
to as the "College"] issued an advertisement in News Paper, namely, Swatantra Bharat and 'Yeh
Samta Raj' on 8th Agusut, 2002 inviting applications for Class IV posts. In response to the said
advertisement, petitioners and other similarly situated candidates applied for the said posts and
were called upon for interview, which was held on10.9.2002. After due procedure, petitioners were
declared selected on different types of Class IV posts, namely, petitioner no.1 was selected and
appointed on the post of Intermediate Physics Lab Assistant, petitioner no.2 on the post of Office
peon, petitioner no. 3 on the post of Principal's Orderly whereas petitioner no.4 was selected and
appointed on the post of 'Farrash'.

4. It has been pointed out by the Counsel for the petitioners that there are 17 sanctioned posts
of Class IV in the College. Two posts fell vacant on account of promotion of Class IV employees,
namely, Ram Khilawan and Ram Narayan Gupta and the other two posts fell vacant due to the
retirement of Ram Bharosey [ Orderly] and Gaya Prasad [ Farrrash].

5. After the selection, the Principal of the College sent proposal on 12.10.2002 to the District
Inspector of Schools, Hardoi for according financial approval for payment of salary to the
petitioners. As all the petitioners were discharging their duties with sincerity but were not paid
salary, they also made representation in the month of January, 2003 followed by reminders but they
were not paid salary compelling them to file the instant writ petition claiming relief, as aforesaid.

6. On the strength of the decision rendered in Rajendra Yadav v. Deputy Director of
Education; 1999 (3)AWC 2123, learned Counsel for the petitioner has contended that in the
eventuality when the District Inspector of Schools did not communicate any decision in response to
the letter of the Management of the College within reasonable time, i.e. within a period of two
weeks, then it shall be deemed that the DIOS has accorded approval. The said decision, according
to the learned Counsel for the petitioner, has been followed in Shri Ranjan and others vs. District
Inspector of Schools, Allahabad and others; 2005(2) ESC (All) 1023 wherein this Court held
that even though prior approval is required for appointing a non-teaching staff under Regulation
101, the appointment made by the Committee of Management was deemed to have been approved
by the District Inspector of Schools after expiry of two weeks from the date of the receipt of
information.
5 All. Umakant & Ors. Vs State Of U.P. & Ors.

259

7. As regard the appointment of the petitioners against the vacancies falling in the general
category, learned Counsel for the petitioner has submitted that no provisions of the Reservation
Rules has infact been violated by the Committee of Management while making appointment of the
petitioners as against the reserved vacancies the general category candidate would have no right for
being considered but for open category, namely, which is commonly known as general vacancy, no
quota can be fixed for general candidate nor it can be said that the persons belonging to any
reserved category shall stand dis-qualified and would not be eligible for being considered for
appointment or promotion against such post of general vacancy. In support of his submissions, as
aforesaid, reliance has been placed on a Division Bench judgment of this Court in Dubari and
other vs. State of U.P. and others [2007(25) LCD 1176].

8. Lastly, learned Counsel for the petitioner has submitted that after appointment of the
petitioners, other vacancies of Class IV post in the Institution have fallen vacant and in the same
manner in which the petitioners were appointed other persons, namely, S/Sri Arvind Prasad and
Guru Dutt Pandey were appointed by the Principal of the College and their appointment have been
approved for payment of salary to them vide order dated 29.1.2005 passed by the District Inspector
of Schools. Therefore, the action of the District Inspector of Schools in not giving financial
concurrence in the matter of petitioners is discriminatory and is hit by Article 14 of the
Constitution.

9. Sri Pankaj Verma, Counsel for the opposite parties nos. 3 and 4 has submitted that on
1.2.2001, that due to promotion of Ram Kehelawan from Class IV to Class III, the post of Daftari
had fallen vacant. Therefore, the Committee of Management sought approval vide letter dated
18.5.2001. Thereafter, two more vacancy were caused due to retirement of Gaya Prasad Yadav and
Shri Ram Bharosey. Therefore, opposite party no.4 sent another letter in furtherance of the earlier
letter dated 18.5.2001 making request for grant of prior permission to make appointment. When
despite reminders and last letter dated 23.7.2002 when nothing was heard from the end of the
District Inspector of Schools, the opposite party no.4 having no other alternative and in the interest
of the College, proceeded with the selection proceedings. Thereafter vide letter dated 12.10.2002,
the information about the appointment was sent by the opposite party no.4 through Shri Ram
Narain Gupta,Assistant Clerk, which was not received in the office of DIOS and as such the
Principal of the College sent the same through registered post on 17.10.2002 but the same was
returned with the endorsement of refusal. Thereafter on 6.11.2002, opposite party no.4 again sent
letter dated 1.11.2002 which was also returned. Again, the papers were sent vide letter dated
4.12.2002 which were received but no orders were passed in respect of the petitioner.

10. As regard the policy of reservation is concerned, the quota of general category candidate
has been filled up by making appointments of the petitioners no.1 to 3 according to their merit as
they have applied for the post under the general category quota. Further, the petitioner no.4 belongs
to the Scheduled Caste community. Therefore, there is no illegality in the appointment of the
petitioners in the College and their appointment being made after due process of selection, they are
entitled for their salary. It has also been urged that a duty is cast upon the DIOS to pass whatever
260 INDIAN LAW REPORTS ALLAHABAD SERIES
order he thinks proper on the letters which were sent by the College but he cannot sleep over the
matter for all time to come and treat the papers as waste papers.

11. Sri Prashant Jaiswal, Addl. Chief Standing Counsel while opposing the writ petition
submitted that the College is a recognized Intermediate College and is controlled and governed by
the U.P. Intermediate Education Act,1921 and the Regulations framed thereunder. The provisions
of U.P. Secondary Education Service Commission and Selection Board Act, 1982, the Uttar
Pradesh Secondary Education Services Commission Rules, 1995 and the U.P. High School and
Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act are also
applicable upon the College.

12. Elaborating his submissions, learned Counsel for the State submitted that in the College 16
posts are sanctioned in Class IV category amongst which on 11 posts, employees belonging to the
Scheduled Castes and Backward Class category are working, while as per Reservation Rules 8
employees should be in the reserved category and on 08 posts, persons belonging to the general
category are to be appointed. Against 04 vacancies, the Principal of the College has made
appointments of 01 candidates of Scheduled Caste Category and 03 candidates belonging to the
backward class category while as per provisions of the Reservation Rules, against these 04 posts,
the appointments ought to have bee made under 50% quota from the general category.

13. It has also been contended that the as per provisions of Regulation 101 as mentioned in the
Government Order dated 2.2.1995, the Principal of the College has not sought necessary prior
permission from the District Inspector of Schools, Hardoi and illegally appointments were made.
And as such the Management of the College is responsible to make payments of salary from its
own resources. Clarifying the position, it has been submitted that no letters as alleged by the
College were received except the letter ated 4.12.2002 that too was without any enclosures
regarding qualification, certificates and record of the selection proceedings.

14. Lastly, it has been argued that as per provisions till the appointments are not approved and
financial approval is accorded, no appointment order could be issued but the Principal of the
College has illegally made appointments of the petitioners and issued appointment letters on
1.10.2002 and had also allowed them joining and the matter of approval was sent to the DIOS vide
letter dated 4.12.2002 i.e. after two months from the date of appointment. To strengthen his
aforesaid assertion, reliance has been placed upon Jagdish Singh vs. State of aU.P. And others
[(2006) 2 UPLBEC 1851)].

15. Before dealing with the actual controversy, it would be useful to reproduce to Regulation
101 of Chapter III of the Regulations framed under the Intermediate Education Act, which 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."
5 All. Umakant & Ors. Vs State Of U.P. & Ors.

261

16. The above 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 (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."

17. 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.

18. In the present case, the advertisement was made on 8th August, 2002. The candidates were
called for interview on 10.9.2002 and appointment letters to petitioners were issued on 1.1.2002
and in pursuance thereof the candidates joined on 8.10.2002 and 9.10.2002 respectively. Thereafter
the Principal with the consent of the Committee of Management sent record on 12.10.2002 to the
District Inspector of Schools, Hardoi for getting financial approval for payment of salary. The
assertion of the respondent-State is that the letters as alleged by the Principal of the College were
never received and the only letter dated 4.12.2002 was received in the office of District Inspector of
Schools.

19. It would be relevant to point out that this court vide an ad interim order dated 3.11.2006
directed the respondents to pay regular monthly salary to the petitioner w.e.f. 1.11.2006, provided
the petitioners are in the employment in the aforesaid college. It is informed at the Bar that in
compliance of the said order petitioners are regularly getting salary as they are discharging their
duties i in the College. However, the fact remains that till date, as admitted by the Standing
Counsel, no order has been passed by the District Inspector of Schools and the petitioners were
allowed to work and even almost ten long years have elapsed since then. This shows the
lackadiasical and callous attitude of the concerned authority. It was imperative on the part of the
DIOS to examine the issue when the documents/papers were received by him and pass appropriate
orders in accordance with law.
262 INDIAN LAW REPORTS ALLAHABAD SERIES

20. In the fitness of things and to secure the ends of justice, this Court deem it proper to direct
the District Inspector of Schools, Hardoi, to examine the matter in the light of the fact that
petitioners are in service last more than ten years and even are being paid salary and in the event he
finds that there is no defect in the selection process then financial concurrence shall be given in the
manner as has been given to S/Sri Arvind Kumar and Gurudutt Pandey by the District Inspector of
Schools vide order dated 29.1.2005. It is also made open to the District Inspector of Schools to
recover the salary paid earlier from the Management of the College in case refusal of financial
concurrence by the DIOS on finding any irregularity in the selection process or short coming in the
candidature of the petitioners.

21. Subject to the aforesaid observations and directions, this writ petition is disposed of
finally.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.05.2016

BEFORE

THE HON'BLE RAM SURAT RAM (MAURYA), J.

Matters Under Article 227 No.- 2880 Of 2016

Smt. Sukhpali Devi ...Petitioner
Versus
Civil Judge (S.D.) & Ors. ...Respondents

Counsel for Petitioner:
Ayub Khan

Counsel for Respondents:
CSC

Held:

Where a suit is decreed on the basis of a compromise verified and accepted by the Lok Adalat,
the plaintiff is entitled to refund of the entire court fee paid on the plaint.

It is immaterial whether the compromise was arrived at prior to reference or during proceedings
before the Lok Adalat, once the matter is referred and disposed of by Lok Adalat, the provisions of Section
21 of the Legal Services Authorities Act, 1987 and Section 16 of the Court Fees Act, 1870 are
attracted.

A distinction between compromises arrived at voluntarily by parties and compromises arrived at
due to persuasion of Lok Adalat is illegal and unsustainable in law.