HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 43 Case :- WRIT - A No. - 36249 of 2011 Petitioner :- Lav Kush Pandey Respondent :- State Of U.P. And Others Petitioner Counsel :- J.P.Pandey Respondent Counsel :- C.S.C. Hon'ble Pradeep Kant,J.
Heard learned counsel for the petitioner, Sri J.P. Pandey, and learned counsel for the State, Sri K.K. Chand.
This writ petition by Lav Kush Pandey challenges the order passed by the Joint Director of Education, Allahabad Division, Allahabad, dated 20.5.2011, by means of which he has denied financial concurrence to his appointment made on a class IV post in Adarsh Gram Sabha Inter College, Charwa, District Kaushambi (hereinafter referred to as the 'institution').
The order, aforesaid, says that in view of the ban imposed by the State Government, by means of Government Order dated 6.1.2011, no appointment could be made on a vacancy occurring on a class IV post, which vacancy, of course, can be filled in by outsourcing. The Government Order dated 6.1.2011 is also under challenge, wherein a ban has been imposed from making appointment on a class IV post with a further direction that the vacancies, which are to occur on a class IV post, may be filled in only by outsourcing.
The facts, which are not in dispute, are that the institution is a recognised institution under the supervision of the U.P. Intermediate Education Act, 1921 and that it is imparting education upto Intermediate classes. The institution is also governed by the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 for the purpose of payment of salaries to its teaching and non-teaching staff.
Shorn of other details, a clear vacancy occurred on a class IV post because of the retirement of one Gulab Chand on 28.2.2010. Prior to the induction of Regulation 101, framed under the U.P. Intermediate Education Act, known as the Regulations, there was no requirement of taking any prior approval for filling up a class IV post, but, on the insertion of the aforesaid Regulation, the requirement became mandatory even for appointment on a class IV post, though, earlier, such prior permission by the DIOS was required for filling up the post of teaching staff.
On vacancy having occurred on the post (class IV) on which Gulab Chand was working and on his attaining the age of superannuation the Principal of the Institution, who is the appointing authority on class IV post, made a request for permission to the Director of Education and also to the DIOS, but his efforts did not yield any result and, therefore, a writ petition was filed bearing No. 41908 of 2010, which was disposed of on 26.7.2010 with the direction to take appropriate decision on the application made by the petitioner and dispose of the same in accordance with the Rules within four weeks from date of receipt of a certified copy of the order. This order was duly complied with and due permission was granted by the Director of Education on 22.12.2010 for filling up the post in question. The aforesaid permission laid down certain conditions in which the appointment was to be made, viz. (1) the post must be a duly sanctioned post, (2) the principle of reservation be strictly followed, (3) the appointment be made in accordance with the regulations made under the U.P. Intermediate Education Act, 1921 and the relevant Government Orders, and (4) it be ascertained before making any appointment that there is no candidate in waiting under the Dying in Harness Rules for appointment. Thus, prior permission having been granted by the Director of Education, an advertisement was issued by the Principal in the local daily 'Dainik Jagaran' in its issue of 1.2.2011 inviting applications from the eligible and willing persons for filling up the post. In response to the aforesaid advertisement, number of persons applied, but the petitioner was the successful candidate, who could succeed in the selection, and was issued appointment order on 28.2.2011. The appointment order mentions the pay scale to which he was entitled and also that he was to be placed on probation for a period of one year. It also provides that the salary would be paid only after approval is granted by the DIOS.
The petitioner, in response to the aforesaid direction, joined the Institution on 28.2.2011 itself. The Principal of the Institution sent necessary information along with the necessary documents to the DIOS as well as the Joint Director of Education seeking financial concurrence/approval to the appointment of the petitioner. The DIOS, vide her letter dated 2.4.2011, also wrote on 7.4.2011 to the Joint Director of Education about the appointment of the petitioner though she made a remark that the petitioner has been illegally allowed to join the duties. This remark was only for the reason that in the absence of approval being granted by the DIOS or the Director of Education the appointment would not become effective and, therefore, the Principal as well as the petitioner should have waited till the approval is granted. Apart from this, the DIOS did not say that there was any illegality in making the appointment and the Rules or procedure, framed under the Regulations, have been violated. The Principal of the Institution also made a representation to the Joint Director of Education on 25.2.2011 mentioning therein the procedure adopted in making the appointment and also requesting for approval so that the salary may be paid to the petitioner. Thereafter on 20.5.2011 the impugned order was passed relying upon the Government Order dated 6.1.2011.
It is true that in the presence of a restraint being imposed by the State Government by means of the Government Order dated 6.1.2011, the DIOS, the Joint Director of Education or the Director of Education could not have granted approval/financial concurrence to the appointment of the petitioner made on a class IV post. The departmental authorities are bound by the Government Orders and they cannot flout or violate the same. Thus, the action of the respondents in not granting approval to the appointment made cannot be faulted. The question, however, arises whether the State Government could have issued a blanket restraint order on making appointment on a class IV post on which (1) vacancy has occurred prior to the issuance of the banning order dated 6.1.2011, (2) the vacancy has occurred after the aforesaid Government Order dated 6.1.2011, and (3) whether such a ban can be imposed for making appointment as per the statutory provision and allowing appointment by adopting the process of outsourcing.
A perusal of the Government Order dated 6.1.2011 reveals that future appointments on class IV post were banned, with a further clarification that the vacancies, which are to occur in future, shall be filled in by outsourcing and not by making appointments. Paragraph 2 of the Government Order dated 6.1.2011 reads as under :-
^^2- eq>s ;g dgus dk funsZ'k gqvk gS fd Hkfo"; esa prqFkZ Js.kh ds fdlh Hkh in ¼dfu"B oxZ ds izkfof/kd inksa dks NksM+dj½ ij fu;qfDr ugha dh tk;sxh rFkk prqFkZ Js.kh ds fjDr gksus okys inksa ds lEcU/k esa dsoy vkÅV lksflZax ds ek/;e ls O;oLFkk dh tk;A ijUrq mDr O;oLFkk mRrj izns'k lsok dky esa e`r ljdkjh lsodksa ds vkfJrksa dh HkrhZ fu;ekoyh 1974 ds vUrxZr lewg ^^?k** ds inks ij dh tkus okyh fu;qfDr ds laca/k esa ykxw ugha gksxhA** The sum and substance and the intention of the Government Order appears to be that the State Government intended to put a ban on future appointments and naturally the future appointments shall be in relation to the vacancies which might have occurred after issuance of the Government Order dated 6.1.2011. Even assuming that the vacancies, which had occurred prior to the issuance of the Government Order dated 6.1.2011, could not be filled in because of the reason not within the control of the management or the Principal the said vacancies can be filled in by issuance of formal appointment letters after issuance of the Government Order dated 6.1.2011 is also a matter to be considered. This apart, there is one more aspect of the matter, viz. that the U.P. Intermediate Education Act and the Regulations framed thereunder provide a procedure for appointment and source of recruitment whether the State Government can create a new source of recruitment/procedure for making appointment without amending the statutory provision of the Act and the Regulations framed thereunder.
Regulation 2(1) of Chapter III of the Regulations says that "For the purpose of appointments of clerks and Fourth Class employees the minimum educational qualification would be the same as has been fixed from time to time for the equivalent employees of Government Higher Secondary Schools. Sub-clause (2) of Regulation 2 says that "Fifty per cent of the total number of sanctioned posts of head clerk and clerks shall be filled among the serving clerks and employees through promotion. If employee possesses prescribed eligibility and he has served continuously for 5 years on his substantive post and his service record is good, then promotion shall be made on the basis of seniority, subject to rejection of the unfit." Regulations 4 to 8 have been made applicable in the case of class IV employees also under Regulation 100. The procedure for appointment includes issuance of advertisement etc., fulfillment of requisite qualification and appointment by the Principal on a class IV post, who is the appointing authority. The pay scale, which is available to a class IV employee, is governed by the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971. The scheme of the Act and the Regulations framed thereunder makes it clear that a class IV employee is to be appointed against a clear vacancy by the Principal by adopting the procedure prescribed thereunder if he is possessed of the requisite qualification and once he is appointed, he is entitled to the pay scale given under the 1971 Act. Of course, appointment can be made only with the prior permission of the educational authorities.
Learned counsel for the State has not been able to satisfy the object behind banning the regular process of appointment against a clear vacancy on class IV post and getting it filled up by outsourcing.
The outsourcing, not being a matter of recruitment under the Act and the Regulations, could not have been introduced by means of a Government Order. It is also to be taken note of that in the instant case the vacancy had occurred on 28.2.2010, i.e. much before the issuance of Government Order dated 6.1.2011. Prior permission was granted by the Director of Education on 21.12.2010, i.e. before issuance of the aforesaid Government Order. The appointment, however, was made after issuance of the Government Ord0.79"er dated 6.1.2011. The vacancy having occurred prior to the Government Order dated 6.1.2011, cannot be taken to be a future vacancy so as to restrain the Principal from filling up the post for both the reasons aforesaid, viz. (1) the restraint order could not have been issued for banning the appointment on a clear vacancy of class IV post through regular process of appointment and substituting it by a new method of appointment which is not envisaged under the Act and the Regulations framed thereunder and also for the reason that the aforesaid ban, if at all is to be upheld then it has to be read down for appointments on future vacancies i.e. which had occurred after the issuance of the Government Order dated 6.1.2011 and not for the vacancies which had occurred earlier.
Therefore, the impugned order, passed by the Director of Education dated 20.5.2011 is quashed. The matter is remanded to the Joint Director of Education for reconsideration of the grant of approval to the appointment of the petitioner on a class IV post, which shall be done within a maximum period of four weeks from the date of receipt of a certified copy of this order. The writ petition is, accordingly, allowed.
Order Date :- 14.10.2011 PG