C/M Shiv Charan Das Kanhaiya Lal ... vs State Of U.P.& 2 Ors.
2013 Latest Caselaw 1538 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No.30
 

 
Civil Misc. Writ Petition No. 24401 of 2013
 
The Committee of Management and another
 
 Vs. 
 
The State of U.P. and others
 

 
**** 

Hon'ble A.P. Sahi, J

Heard Sri R.K. Ojha, learned counsel for the petitioners and the learned Standing Counsel for the respondent Nos. 1 to 3.

The petitioner - Committee of Management runs an Intermediate College governed by the provisions of U.P. Intermediate Education Act, 1921. It is aggrieved by the communication of the District Inspector of Schools dated 30.3.2013 whereby the Committee has been threatened with an action under Section 16-D of the U.P. Intermediate Education Act on account of an appointment having been attempted by the Management against a class-III post which according to the District Inspector of Schools is not in conformity with the regulations and contrary to the Government Order dated 15.3.2012.

The impugned order rests additionally on the Government Order dated 15.3.2012 where it is recited that all appointments except those covered by the Public Service Commission have been banned with immediate effect and that the said Government Order should be followed strictly. It is relevant to point out that the said Government Order later on was modified in relation to privately managed and State aided Intermediate Colleges exempting appointment against the post of teaching staff which fact is also undisputed.

This matter relates to appointment against a class-III post i.e. a clerk in the institution. The impugned order recites that the appointment has been processed without taking prior permission of the District Inspector of Schools and is contrary to the mandate of the Government Order dated 15.3.2012.

The first issue that has to be considered is as to whether the Government Order dated 15.3.2012 is applicable in relation the appointments against class-III posts of Intermediate Colleges, which are under the grant-in-aid list of the State Government or not.

A similar ban had been imposed in the year 1989 banning appointments on the post of Teachers and this Court in the case of Kumari Prabhabati Dikshit Vs. U.P. Madhyamic Shiksha Sewa Ayog, Allahabad, and others, reported in (1992) 1 UPLBEC 582, proceeded to hold that the Government Order banning selection and appointment was not applicable in relation to the Intermediate Colleges inasmuch as the State Government had no power to ban selection which had to be carried out through the U.P. Secondary Education Services Selection Board. This dispute relating to imposition of ban was further followed by a learned Single Judge in the case of Chandrabhan Kanaujiya Vs. Joint Director of Education, VIth Region, Lucknow, and others, 2010 (4) ADJ 809 (LB). The aforesaid judgments are, however, in relation to teaching posts and as indicated above, the Government Order dated 15.3.2012 is not applicable in relation to teaching posts.

However, with regard to appointments against class-IV posts, a ban, in the shape of allowing only appointment through outsourcing, came to be considered in the case of Committee of Management, Lala Babu Baijal Memorial Inter College, Lodipur, Ghaziabad, and another Vs. State of U.P. and others, 2012 (4) ADJ 586. In paragraph No.60, the following observations were made by the learned single Judge:-

"60. Even otherwise, Para 2 of G.O. to my mind would be contrary to certain regulations which provides the procedure and manner in which appointment shall be made by Secondary Educational Institutions on Class-III and Class-IV posts. There is no prohibition in making appointment on Class-IV posts against sanctioned posts available in recognised educational institutions. The G.O. in question cannot be said to be a regulation framed under Act, 1921. It also does not satisfy the condition precedents so as to partake the nature of an order issued by State Government under Section 9(3) and (4) of Act, 1921. The G.O. is basically a general order issued to various departments with respect to revision of pay and in that context it has been issued in reference to Secondary Educational Institutions also. "

The question, therefore, is can the Government Order dated 15.3.2012 be read as a Government Order under Section 9 (4) of the U.P. Intermediate Education Act, 1921. The provisions of Sub-section (4) of Section 9 are extracted hereunder:-

"(4) Whenever, in the opinion of the State Government, it is necessary or expedient to take immediate action, it may, without making any reference to the Board under the foregoing provisions, pass such order or to take such other action consistent with the provisions of this Act as it deems necessary, and in particular, may, by such order modify or rescind or make any regulation in respect of any matter and shall forthwith inform the Board accordingly."

A perusal of the aforesaid power as conferred on the State Government clearly indicates that such a power can be exercised provided the action is consistent with the provisions of the Act. The Regulations framed under Chapter III of the U.P. Intermediate Education Act makes a provision for appointment of class-III and IV employees. There is no amendment in the 1921 Act or the Regulations framed thereunder of banning any such appointments. In the absence of any such specific provision being made, the Government Order dated 15.3.2012 would not survive the test of the ingredients of Section 9 (4) of the 1921 Act. The said Government Order nowhere discusses as to why and why not is it necessary, to proceed, not to make appointments against class-III posts in Intermediate and High Schools governed by the 1921 Act.

It is to be noted as an illustration that most of the aided Institutions have only one post of Clerk and in such circumstances, a total ban would really amount to abrogating the provision under the 1921 Act which makes a provision for a class-III post. It is further to be noted that a clerk is required in the College for preparing salary bills and all other clerical jobs including the communication with the education department with a further assistance to the office of the Principal in maintaining accounts and records like the scholar register, fee-register etc. Thus, an institution cannot be envisaged or imagined without a clerk keeping in view the nature of duties and the function which is required to be performed by such an employee. The office of the Manager and the Principal is a secretarial set up for the processing of the administrative transaction of the institution.

In the aforesaid circumstances, the Government Order dated 15.3.2012 cannot be read as a ban in relation to class-III post as well in Intermediate Colleges. It is for this reason that when the matter of outsourcing came to be challenged before this Court, it was held that such a ban or restrain on aided Intermediate Colleges cannot be countenanced keeping in view the observations that have been made. Consequently, the Government Order dated 15.3.2012 cannot amount to a ban in relation to appointment against class-III posts in an aided Inter College governed by the provisions of U.P. Intermediate Education Act, 1921.

Apart from this, the question of seeking prior permission or approval has already been explained by the Division Bench of this Court in the case of Jagdish Singh Vs. State of U.P. and others, (2006) 2 UPLBEC 1851. This aspect also has not been considered by the District Inspector of Schools in accordance with the law explained in the judgment.

Coming to the question of issuing of a notice threatening the Committee to be superseded on this count, suffice it to say that the notice proceeds on an erroneous assumption of law.

Since the aforesaid facts are borne out from the impugned order itself, therefore, this Court does not find it necessary to await any affidavits on behalf of the respondents. The judgment is being delivered after hearing the learned Standing Counsel on all legal and factual issues on record.

In the circumstances, the impugned order dated 30.3.2012 cannot survive on any count. The writ petition is allowed. The order dated 30.3.2013 is quashed.

The District Inspector of Schools shall now proceed to pass appropriate orders in accordance with law in the light of the observations made herein above within 3 weeks from the date of production of a certified copy of this order before him.

Dt. 1.5.2013

Irshad