Tuesday, March 28, 2023

Prior approval required for issuance of appointment letter, not for selection process: Allahabad High Court

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The Allahabad High Court has disposed of a petition, saying that it is clearly settled that no prior approval is required for initiating the selection process, however, prior approval is required before issuance of any appointment letter.

The Single-Judge Lucknow Bench of Justice Pankaj Bhatia passed this order, while hearing a petition filed by the Committee of Management, Sohan Lal Balika Inter College, through its Manager Virendra Kumar Maurya.

The petition has been filed challenging the order dated 07.07.2021 passed by the Director, Secondary Education, Uttar Pradesh, Lucknow whereby the request of the petitioner’s institution for granting approval to the selection made on Class-III post has been rejected as well as the order dated 07.10.2021 passed on similar grounds by the respondent no 2.

The facts of the case are that the petitioner Society is running an institution in the name of Sohan Lal Balika Inter College and is managing the affairs of the institution. On 31.07.2020, the regular clerk posted in the institution was retired, as a result whereof, a vacancy accrued on 01.08.2020.

As the institution was suffering on account of the vacancy, a request was made on 07.08.2020 to the Director, Secondary Education through the District Inspector of Schools informing that the clerk working in the institution has retired and one post of clerk sanctioned for the College is laying vacant since 01.08.2020, as such, permission may be granted to fill up the vacant post through direct recruitment.

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Thereafter, the District Inspector of Schools communicated the request of the petitioner to the Director, Secondary Education, giving reference to the request made by the petitioner.

It is stated that despite the request, no orders were being passed, as such, the petitioner approached the Court by filing a writ petition seeking a direction upon the respondents to decide the application of the petitioner for making the selection.

The said writ petition was disposed of the order dated 19.11.2020 directing the respondent no 2 therein to consider and decide the application of the petitioner by speaking order within six weeks.

It is argued that despite the said directions, no decision was taken within six weeks, as such, the Managing Committee once again sent a reminder on 30.01.2021 with a request to take a decision.

As no decision was being taken despite the directions, the Committee of Management constituted a Committee for selection of a candidate to the post of Junior Clerk and issued an advertisement in the newspaper, namely Swatantra Chetna on 05.02.2021.

The Committee interviewed the eligible candidates and on the basis of the quality points selected one Vibhanshu Maurya for being appointed on the Class-III posts.

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A resolution to that effect was passed on 29.04.2021. The process of selection was intimated to the District Inspector of School-II, Lucknow on 27.05.2021, however, it is stated that he refused to accept the documents, as such, the same was sent through registered post which was received back with the remark “refused to receive”.

As no action was being taken for approval of the selection made by the Committee, another petition was filed by the petitioner being writ petition, which was disposed of the order dated 06.07.2021 by this Court directing the respondents to take  a decision within a period of one months.

The Court noted, “A perusal of the order impugned reveals that the District Inspector of Schools found that two posts were vacant in Class-III category. (Counsel for the petitioner states that the same has been wrongly recorded and was rightly held to be one post in the subsequent order dated 07.10.2021, which is also impugned).”

The order further recorded that the process of selection undertaken was contrary to the mandate of the High Court in its judgment dated 19.11.2020.

It further recorded that the District Inspector of Schools, Lucknow in his report has stated that the selection of Vibhanshu Maurya has been done without any prior approval, as such, it is improper to approve the said selection.

It further recorded that a ban has been imposed by the State Government on 30.10.2019 in respect of 26 colleges.

It also placed reliance on another Government Order dated 19.01.2021 which relates to the colleges except 26 colleges mentioned in the Government Order dated 30.10.2019 and thereafter concluded that for the reasons as disclosed, it would not be proper to grant approval as sought by the petitioner.

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Subsequently, another order came to be passed on 07.10.2021 which was also challenged through an amendment application. In the order dated 07.10.2021, while deciding the representation of the petitioner as directed by this Court vide order dated 06.07.2021, it was observed that there was one post of Class-III was vacant in the petitioner’s institution.

It further recorded that although no procedure for filling the vacancy was specified, as such, any selection may result in nepotism in the process of selection. It also placed reference to the Government Order dated 26.04.2014 and holds that any selection made without any prior approval, could not be entitled for salary from the State exchequer.

The Counsel for the petitioner argued that the Regulation 101 in Chapter III of The Uttar Pradesh Intermediate Education Act, 1921 confers power of appointment subject to approval by the District Inspector of Schools.

He further argued that mention of the Government Order restraining the appointment in 26 colleges would not apply to the case of the petitioner, inasmuch as, the name of the petitioner’s College does not find mention in the list of the said 26 colleges.

He said the Director, Secondary Education ought to have applied his mind with regard to the manner in which the selection was made which does not exist in the said impugned order and thus, the same are bad in law.

He further said that as the selection has already been done and the person is working, a direction is liable to be issued for payment of salary.

“Considering the submissions made at the bar, in the case, there is no dispute that one substantive vacancy existed in the institution in question, the Committee of Management has made selection without there being prior approval and after completing the selection process issued letter to the selected candidate and in view of the law laid down by the Court in the case of Jagdish Singh (Supra) followed in the cases of Preet Kumar Srivastava (Supra) and Abhishek Tripathi (Supra), it is clearly settled that no prior approval is required for initiating the selection process, however, prior approval is required before issuance of any appointment letter.

From the perusal of the orders impugned, it reflects that there is no application of mind in respect of the selection made by the petitioner. The respondents have proceeded to pass the order on the analogy that prior approval for the selection was not taken, which was contrary to the judgments of this Court as referred above.

The other ground that the action of the petitioner was contrary to the order of this court passed on 19.11.2020 also merits rejection, inasmuch as, this Court while passing the order dated 19.11.2020 had simply directed the respondents to take a decision in terms of the request made by the petitioner within six weeks, which the respondents did not do”, the Court observed while disposing the petition.

The Court said the other reasoning mentioned in the impugned orders that in terms of the Government Order, there was a bar for making appointment in respect of the 26 colleges also does not find favour of the court in view of the fact that the petitioner Institution is not named in the list of the 26 colleges as referred to in the Government Order, thus for all the reasons recorded above and in the light of the judgments of the Court rendered in the case of Jagdish Singh (Supra) followed in the cases of Preet Kumar Srivastava (Supra) and Abhishek Tripathi (Supra), the orders impugned dated 07.07.2021 and 07.10.2021 are set aside.

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“The matter is relegated to the Director, Secondary Education for passing a fresh order after considering the observations made herein above and the law laid down by the Court in the case of Jagdish Singh (Supra) followed in the cases of Preet Kumar Srivastava (Supra) and Abhishek Tripathi (Supra).

“The Director, Secondary Education shall take decision with all expeditions preferably within a period of two months from the date of production of certified copy of the order.

“The Director shall take decisions in terms of regulations and pass orders on the request of the petitioner to grant approval for selection on Class-III posts. 

“It is made clear that the question of the petitioner not taking prior approval before the selection process shall not be a ground for passing the orders as directed above”, the Court ordered.

So far as the prayer of the petitioner for granting approval with all consequential benefits cannot be accepted in terms of the orders passed by the Court, inasmuch as, the law is well settled that before issuance of appointment letter and permitting a person to join, prior approval is necessary.

The entitlement of salary to the selected candidate shall be subject to the outcome of the fresh order to be passed by the Director as directed hereinabove, the Court further said.

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