Sri Gandhi Inter College Thru ... vs State Of U.P.Thru Secy & Ors.
2013 Latest Caselaw 11 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.F.
 
Court No.30
 

 
Civil Misc. Writ Petition No. 16830 of 2013
 
Sri Gandhi Inter College, Orai at Jalaun and another Vs. State of U.P. and others
 

 
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Hon'ble A.P. Sahi, J

Heard Sri R.M. Saggi, learned counsel for the petitioner and Sri Ashok Yadav for the respondents.

Sri Yadav states that in view of the facts already on the record and the judgement on which reliance has been placed by the learned counsel for the petitioner, the matter can be disposed of finally without calling for a counter-affidavit as it is a pure question of interpretation of applicability of the judgment while passing the impugned order.

Keeping in view the facts and circumstances of the case and with the consent of the parties, the matter is being disposed of finally at this stage.

The dispute relates to appointment on the post of class-IV vacancies in the institution namely Gandhi Inter College, Orai at Jalaun. Two persons namely Sri Munni Singh and one Sri Prakash Tiwari claimed that they were appointed against sanctioned posts in the institution and had been granted approval but they were not being paid salary. They filed two writ petitions before this Court in the year 1984, being Writ Petition No.17675 of 1984 and 17676 of 1984. The said two writ petitions were contested by the State squarely on the issue of number of sanctioned posts of class-IV employees in the institution on the basis of the norms prescribed in the Government Order dated 20.11.1977.

The learned single Judge, who finally dismissed the writ petition, found that according to the said Government Order the total sanctioned strength in the institution as per the stand taken in the counter-affidavit filed in the said writ petition could be only 17 and accordingly held that there could only be 17 posts sanctioned in the institution. Consequently, both the petitioners therein were not found entitled for any further relief as they were in excess but it was made clear that no recovery of salary shall be made from them. The said petitioners filed a Special Appeal, which was disposed of on 4.8.2010 affirming the judgment of the learned single Judge with a further clarification on the peculiar facts of the case that in the event the Management proceeds to fill up any post in future, the appellants would be considered after giving relaxation in age as they have already served the institution for quite some time.

It is thereafter that the said two petitioners-appellants through the Committee of Management staked their claim before the District Inspector of Schools to call upon the committee to proceed to make appointments as two posts out of 17 sanctioned posts fell vacant due to the retirement of one Suresh Kumar on 31.1.2011 and the untimely death of one Shyam Prakash on 3.7.2010. These 2 vacancies were taken notice of by the District Inspector of Schools in the letter dated 26.5.2011 that was forwarded to the Director of Education with a further note that notice should also be taken of the ban imposed by the Government Order dated 6.1.2011.

Thereafter the matter appears to have been dealt with and queries were raised which were answered by the District Inspector of Schools. The Committee of Management in the aforesaid circumstances filed Writ Petition No.63102 of 2012 which was disposed of by this Court on 5.12.2012 directing the Director of Education (Secondary) to proceed to pass appropriate orders keeping in view the judgment in Special Appeal No.538 of 2009 and 539 of 2009 referred to herein above and disposed of on 4.8.2010.

The Director of Education (Secondary) thereafter proceeded to pass the impugned order and has concluded on a recalculation that there are only 15 posts sanctioned in the institution. He has further directed the District Inspector of Schools to take appropriate action for filling up one post as only 14 posts are occupied at present. The aforesaid calculation has been proceeded with by the Director of Education on the basis of the alleged strength of 934 students which according to him was the current strength and, therefore, the Director of Education appears to have reduced the sanctioned strength of class-IV employees from 17 to 15.

Sri Saggi contends that this calculation is a clear act of over reaching the directions of the High Court and the judgment of the learned single Judge as affirmed in Special Appeal. Sri Saggi submits that the Director of Education has not been given liberty to reduce the sanctioned strength that stood fixed as per the decision of this Court. He, therefore, submits that even otherwise the calculation made is wrong and without putting the petitioner - Committee of Management to notice on the issue of the strength of the students existing in the institution. He further contends that the Director of Education having travelled beyond the direction of this Court, the impugned order deserves to be set aside and the direction should be issued treating the sanctioned strength as 17 in the institution.

Sri Yadav, learned Standing Counsel, submits that strength has been reduced which is within the power of the Director of Education keeping in view the provisions of Section 9 of the U.P. Act No.24 of 1971 and, therefore, he was within his jurisdiction to proceed to recalculate the strength permissible for the purpose of making appointments. He, therefore, contends that there is no error in the impugned order and one post is still available for being filled up in accordance with law.

Having heard learned counsel for the parties, the strength of class-IV employees was the main contest in the writ petition and the Special Appeal referred to herein above. The same was contested on the basis of the stand taken by the State in the counter-affidavit filed in the said litigation where the State itself had admitted the sanctioned strength of 17 class-IV employees as per the Government Order dated 20.11.1977. The learned single Judge has recorded this fact. In such a situation, once the sanctioned strength had been determined then it was not open to the Director of Education to embark upon any fresh inquiry and re-determine the sanctioned strength after the judicial intervention had taken place. The Director of Education has, therefore, clearly over reached the decision of this Court which was impermissible. He ought to have proceeded on the strength of 17 posts as available in the institution as finally decided by this Court.

In the event the Director of Education was proceeding to redetermine the strength then proceedings ought to have been undertaken in accordance with law and not otherwise inasmuch as the Director was proceeding to decide the matter only on the basis of the direction given by this Court on 5.12.2012 in Writ Petition No.63102 of 2012. A perusal of the said judgment leaves no room for doubt that the Director's jurisdiction was confined to the observations made therein which clearly indicated that the matter shall be proceeded with in terms of judgment of the Special Appeal and the learned single Judge which had been affirmed therein. Thus, refixing of the strength of the Director of Education was patently without authority in law.

The writ petition is allowed. The impugned order dated 15.2.2013 is, therefore, quashed. The directions shall now be issued on the basis of the strength of class-IV employees in the institution treating it to be 17 as on date. The Director shall issue necessary instructions to the District Inspector of Schools forthwith within 15 days from the date of production of a certified copy of this order before him without any further delay.

This Court would have proceeded against the Director Sri Basudeo Yadav as the impugned order was in effect a contemptuous act but keeping in view the stand taken by Sri Ashok Yadav, learned Standing Counsel, not to file counter-affidavit at this stage, the Court has taken a lenient view and has issued the aforesaid directions.

Dt. 22.3.2013

Irshad