2017 (7) TMI 1467 - HC - Indian Laws

Disapproval of appointment of the appellant - prior approval not taken - rejection of claim of the appellant on the ground that no prior approval of the District Inspector of Schools was obtained before making the appointment and that it was not a case of deemed approval since no application was made by the management seeking prior approval - Interpretation of Regulation 101 of the U.P. Intermediate Education Act, 1921 - HELD THAT - Division Bench in Miss Shailja Shah vs. Executive Committee, 1994 (10) TMI 334 - ALLAHABAD HIGH COURT considered the expression prior approval and approval and held that two words connotes different situation. The Division Bench held that where the statutes uses the term prior approval , anything done without prior approval was a nullity. The Court further held that where the statute employs the expression approval , in such cases, subsequent rectification can make the act valid. 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, 1996 (7) TMI 603 - SUPREME COURT the Supreme Court held ' Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees.' In the present case, 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. It is also found that the Regional Joint Director of Education in the impugned order had clearly given a categorical finding of fact that Arun Kumar Singh, respondent No. 5, who was at Sl. No. 1 of the select list had not declined to take the appointment nor gave any resignation. In view of this finding, the appellant could not have been offered appointment. This finding has not being questioned by the appellant in the writ petition - Petition dismissed.

Summary

Issues involved: Interpretation of Regulation 101 of the U.P. Intermediate Education Act, 1921 regarding prior approval for filling non-teaching posts in recognized aided institutions.

The judgment dealt with a case where a Senior Clerk and Junior Clerk post became vacant in a college, leading to a dispute over the appointment process. The appellant was initially appointed without prior approval from the District Inspector of Schools, which was deemed mandatory u/s Regulation 101. The Regional Joint Director later disapproved the appointment, citing the post as promotional and requiring promotion rather than direct recruitment. The appellant challenged this decision through various legal proceedings.

The appellant argued that post facto approval granted by the District Inspector of Schools should validate the appointment, as it was found that no qualified person was available for promotion. The appellant contended that the District Inspector examined all aspects, including vacancy availability and fairness of the selection process, before granting post facto approval.

The court referred to previous decisions and emphasized the distinction between "approval" and "permission." It highlighted that Regulation 101 mandates prior approval for filling non-teaching posts, making any appointment without such approval illegal and void. The court cited Supreme Court rulings to support the importance of prior approval in such cases.

The court dismissed the appeal, stating that the appellant's appointment without prior approval was illegal and conferred no rights. It noted that the Regional Joint Director found that the candidate initially selected had not declined the appointment, making the appellant's appointment improper. The court upheld the decision that the appointment lacked merit and was rightfully dismissed.