1. The present writ petition has been filed with the prayer to issue a writ of mandamus directing the opposite party No. 2. particularly the District Inspector of Schools, Mau to pay the arrears of the salary of the petitioners for the period from 1.12.1999 to 20.3.2006 (seven years, three months and twenty days) by treating the petitioners' ser-vice on Class IV employee's post since 1.12.1999 and further to issue direction to accord all benefits and emoluments to the petitioners for Class IV post in the institution treating the petitioners' service since 01.12.1999 on Class IV post in accordance with law.
2. Heard learned counsel for the petitioners, learned Standing Counsel and perused the record.
3. Learned counsel for the petitioners submitted that there was vacancy for the post of Class IV employee in the B.R.K Inter College, Walidpur, Mau on which the petitioners were appointed on 1.12.1999
4. The post was advertised on 16.9.1999 Interview took place on 17.10.99 and consequently by the resolution they were selected on the post of Class IV. They were appointed and joined on 1.12.1999 The matter for approval was already pending before District Inspector of School, District Mau for a long time and since there was delay, hence the petitioners were appointed by the Principal of the Institution, respondent No. 5 which has not been denied by the respondent No. 5 in his counter-affidavit. The reminder was also issued to the District Inspector of School (in short D.I.O.S) Mau on 1.11.1999 and thereafter appointment was issued on 27.11.1999 On 11.7.2000 the District Inspector of School disapproved the appointment of the petitioners by interpreting the Regulations 101 to 107 Chapter III, U.R Intermediate Education Act, 1921. That order was challenged before the High Court in Writ Petition No. 8347 of 2001 which was allowed on 11.3.2005 and the order of District Inspector of School disapproving the appointment of the petitioners was quashed and the direction was issued to consider the approval of the petitioners afresh by order dated 11.3.2005 Thereafter the District Inspector of School considered the matter of the petitioners afresh by order dated 14.11.2005 The appointment of the petitioners was approved and the same was placed before the Joint Director, Education, Azamgarh Mandal, Azamgarh, after report of Regional Committee dated 9.3.2006 as the representation of the petitioners had already been accepted by the District Inspector of School. The order of Joint Director of Education, Azamgarh was issued on 18.3.2006 Thereafter District Inspector of School issued a letter on 21.3.2006 in pursuance of the order of Joint Director, Education on 18.3.2006 and for payment of salary w.e.f the date of the order issued by him, hence the present petition has been filed. The District Inspector of School has arbitrarily issued the letter in pursuance of the letter though the petitioner was entitled for payment of the salary from the date of the appointment, hence the direction be issued for payment of salary from 1.12.1999 to 20.3.2006 (Since he was working continuously from the date of joining.)
5. Counsel for the respondent No. 5 had not denied the claim of the petitioners and has not controverted the aforesaid facts regarding the appointment of the petitioners.
6. The learned Standing Counsel opposed the claim of the petitioners on the ground that under Regulation 101 of Chapter 3 of the U.P Intermediate Education Act, 1921, The appointment of the petitioners on the post of Class IV can be issued only after approval. Since the approval was granted subsequently in March 2006, hence the petitioners were not entitled for salary as the appointment was against the Regulation. He relied on the judgment of the Division Bench, reported in case of Jagdish Singh, etc. v. State of U.P, in 2006 UPLBEC (3) 2765. In counter-affidavit it was stated whether the petitioners were working regularly or not and if they were not working, then they are not entitled for the salary. In para-10 of the counter-affidavit it has been stated that the salary claimed by the petitioners for the period from 1.12.1999 to 20.3.2006 cannot be paid to the petitioners due to reason that from record it cannot be verified that as to whether the petitioners have worked in this institution or not.
7. Considering the submissions of counsel for the parties. The appointment of the petitioners has not been denied in the institution. Admittedly without prior approval they were appointed on the post of Class IV on substantive vacancy. The Principal of the Institution sought approval of District Inspector of School before appointment. Thereafter, the post was advertised and petitioners were selected. They were appointed and joined on 1.12.1999 On 11.7.2000 the District Inspector of School disapproved appointment merely on the ground that by notification in view of Regulation under 101 to 107 there was ban for appointment on the post of Class IV employee. When the order dated 11.7.2000 was challenged by the petitioners before the High Court in Writ Petition No. 8347/01, then that order was quashed and it was upheld by this Court that “a view taken by the District Inspector of School in the impugned order that there is ban in direct recruitment in view of the Regulations 101 to 107, is erroneous and is based on mis-appreciation of the Regulation. The impugned order in the writ petition cannot be sustained and is hereby set aside.” On the direction of the High Court the matter was considered afresh by the District Inspector of School and the appointment of the petitioners was approved. However, there is no indication from the order whether the petitioners worked or not during this period rather the fact has been mentioned that the petitioners worked in the institution. Now the question remains to be considered whether the petitioners are entitled for the salary w.e.f 1.12.1999 to 20.3.2006 because the prior approval was required before appointment on the post of Class IV. In case of Jagdish Singh etc. (supra) it was held by the Division Bench of this Court that prior approval means approval in between the completion of process of selection and before issuance of the appointment letters in a recognized institution. In view of the regulation 101 and Chapter HI U.R Intermediate Education Act, 1921 the prior approval was required in the case. Admittedly there was no prior approval for the appointment.
8. Now what would be the effective date of approval in the present case. On 11.7.2000 the appointment was disapproved on the ground that there was ban on the direct recruitment on the post of the Class IV employees and that was found incorrect and against the provision, which was set aside by the High Court. It is not the case of the District Inspector of School that there was no selection committee or there was irregularity and illegality except that there was no prior approval which was necessary. Had the approval been considered on 11.7.2000 when the appointment was disapproved, then the approval might have been granted on that date i.e 11.7.2000 merely on the ground of ban for direct recruitment, the appointment was disapproved on 11-7-2000 and when the order of disapproval was quashed by the High Court and the matter was considered by the authority concerned a fresh it is required to be considered with effect from the order, when the approval was refused and appointment was disapproved.
9. From a perusal of the order of District Inspector of School dated 14.11.2005 and order of Joint Director Education issued on 18.3.2006 there is no indication that the approval was from the prospective effect and from the date of the order, hence in view of the fact, the petitioner is entitled for the salary from 11.7.2000 when the appointment was disapproved because the same was set aside and the matter was considered afresh, hence the approval will be treated w.e.f 11.7.2000 However, the petitioner is not entitled for the salary from 1.12.1999 to 10.7.2000 as there was no approval.
10. The respondents are directed to pay the salary to the petitioner for the period from 11.7.2000 to 20.3.2006 and further the petitioners will be entitled for other consequential benefits for which they are entitled in accordance with law. The payment will be considered expeditiously preferably within a period of four months.
11. In view of the above, this petition is partly allowed. However, no order as to cost.
12. Petition partly allowed.