Virendra Pratap Singh And 2 Ors. vs State Of U.P.& 3 Ors.
2018 Latest Caselaw 1740 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 16
 

 
Case :- WRIT - A No. - 62712 of 2013
 

 
Petitioner :- Virendra Pratap Singh And 2 Ors.
 
Respondent :- State Of U.P.& 3 Ors.
 
Counsel for Petitioner :- R.C.Dwivedi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

(Oral)

(1) This writ petition has been filed by the petitioners, challenging the order dated 14.8.2013, passed by the District Inspector of Schools, Deoria and for issuance of mandamus to the respondent to pay the petitioners the current salary on the post of Class IV employees in Bakhra Inter College, Bakhra, District Deoria as and when it false due.

(2) It has been submitted on behalf of the petitioners by Mr. R.C.Dwivedi that in Bakhra Inter College, Bakhra, District Deoria (hereinafter referred to as the college concerned) three posts of Class IV employees fell vacant on retirement of three employees. The principal of the college concerned made an application to the District Inspector of Schools for prior permission for making selection under Regulation 101-107 of Chapter III of the Regulations appended to the Intermediate Education Act, 1921. The District Inspector of Schools, Deoria by an order dated 12.5.2008  had granted prior permission to the Principal of the aforesaid college. The petitioners were appointed after selection held on the said post and the District Inspector of Schools, Deoria also by his order dated 6.2.2010 gave approval to the appointment of the petitioners as Class IV employees. The order dated 6.2.2010 was recalled when one Sandeep Kumar Yadav filed Civil Misc. Writ Petition No. 23278 of 2010 challenging the said order.

(3) After this, approval was recalled by the District Inspector of Schools on 17.5.2010, again an advertisement was issued by the Principal of the aforesaid college on 15.12.2010 for the aforesaid vacancies in daily newspapers 'Hindustan Ka Swaroop' and 'Voice of Lucknow' two widely circulated newspapers from the State of U.P. Twenty two candidates applied for the aforesaid post and appeared for interview held on 2.1.2011. The Selection Committee found the petitioners most suitable and the Principal of the college transmitted all papers relating to their selection to the District Inspector of Schools, Deoria on 4.1.2011. The District Inspector of Schools did not take any decision in the matter.

(4) The petitioners therefore, approached this Court by filing Writ Petition No. 5297 of 2012 and this Court disposed of the writ petition by its order dated 10.1.2012 directing the District Inspector of Schools, Deoria to pass appropriate order regarding the prior approval to the petitioners' selection on the post of Class-IV employees. When no decision taken by the District Inspector of Schools again petitioners approached this Court by filing a contempt petition and this Court disposed of the contempt petition giving one more opportunity to the District Inspector of Schools, Deoria to comply with the order dated 10.10.2012 passed by this Court in writ petition no. 1897 of 2013.

(5) The District Inspector of Schools now by his order impugned dated 14.8.2015 rejected representation of the petitioners in respect of granting approval to their selection. Several grounds have been mentioned by the District Inspector of Schools for rejecting the representation of the petitioners for grant of approval.

(6) The first ground taken in the order impugned according to the petitioners counsel is that at the time of second selection of the petitioners, the District Inspector of Schools was not empowered to grant prior permission for making selection on the post of Class-IV employees as it could be granted only by the Regional Level Committee.

(7) The second ground relates to ban being imposed by Court order dated 6.1.2011. No doubt a Government Order had been issued on 6.1.2011 prohibiting all appointments in Group D posts, but This Court in the judgment rendered in the case of Committee of Management Vs. Lala Babu Baijal Memorial Inter College, Lodipur, Ghaziabad and another vs. State of U.P. and another decided on 21 March 2012 had set aside the Government Order dated 6.1.2011. The Special Appeal against the said judgment was filed with delay and is still pending before the Division Bench of this Court. On the date when the order impugned was passed by the District Inspector of Schools, the Law as settled by the Hon'ble Single Judge Bench in the case of Committee of Management Vs. Lala Babu Baijal Memorial Inter College, Lodipur, Ghaziabad and another held the field. If the District Inspector of Schools in ignorance of the law as settled by this Court on 21 March 2012, placed reliance on the Government Order dated 6.1.2011 to deny the approval to the petitioners appointment his order can only be said to be vitiated and should be set aside by this Court. 

(8) The learned counsel for the petitioners submitted that no prior permission was required after the law was settled by this Court in a Division Bench judgment in Jagdish Singh Vs. State of Uttar Pradesh 2006 (3) UPLBEC 2765.

(9) This Court in the aforesaid cited judgment held that before issuance of advertisement for holding the selection for Class IV employees under Regulation 101-107, the Principal is not required to take prior permission of the District Inspector of Schools. It is only after holding the selection, and before issuance of the appointment letters to the selected candidates, prior approval of the District Inspector of Schools is required.

(10) The learned counsel for the petitioner further submitted that in the impugned order the District Inspector of Schools has said that newspapers 'Hindustan Ka Swaroop' and 'Voice of Lucknow' are not widely circulated newspapers in District Deoria and Purvanchal. He has moreover observed that no nominee of the District Magistrate was present in the Selection Committee for holding the said selection was held.

This Court in the case of Rajeev Kumar and others Vs. State of U.P. and others 2011 (2) ESC, page 820 has held that the 1985 Group D Employees Service Rules 1985 for the State Government employees, shall not apply as the Regulation framed under U.P. Intermediate Education Act shall be considered as a special provisions and so long as the procedure as permitted in the Regulations is not amended for Group D employees the said Rules cannot be read into the Regulations. The service of Class IV employees in an Aided Education Institutions falls outside the purview of Article 309 of the Constitution of India.

(11) It has been submitted by the learned counsel for the petitioners that both the grounds taken therefore, relating to procedure prescribed under the Group D employees Rules 1985 meant for Government Servants would not apply and are no longer valid ground. 

(12) The Learned Standing Counsel has pointed out that now an amendment had been carried out in regulations and the ground taken by the Hon'ble Single Judge in Committee of Management Vs. Lala Babu Baijal Memorial Inter College, Lodipur, Ghaziabad and another for setting aside the Government Order dated 6.1.2011 is not available.

(13) This Court is aware that the Regulations appended to the Intermediate Education Act, have thereafter been amended by the State Government and now no appointment of Group D posts can be made and all such work meant to be taken from Group D Employees, is being out outsourced. The amendment has been challenged before this Court but the writ petitions are pending and no final orders have yet been passed by this Court.

(14) Coming to the order impugned the first three grounds taken by the District Inspector of Schools for non approval of the petitioners appointment cannot be said to be a valid grounds. However, the fourth ground taken by the District Inspector of Schools to the effect that Principal after holding the selection on 2.1.2011 had forwarded papers to the office of the District Inspector of Schools and by the time the said papers were received, the Government Order dated 6.1.2011 had already been issued, therefore, no decision could be taken with regard to the approval of the selection by the District Inspector of Schools seems to be plausible. 

(15) The learned counsel for the petitioner says that the amendment has not been made in the Regulations with retrospective effect.

This matter may be sent to the District Inspector of Schools to take an appropriate decision by a reasoned and speaking order in accordance with law.

(16) The order dated 14 August 2013 passed by the District Inspector of Schools is set aside. The matter is remanded to the District Inspector of Schools to take a fresh decision strictly in accordance with law within three months from the date a certified copy of this order produced before him.

(17) This writ petition is partly allowed to this extent.

Order Date :- 27.7.2018

A. Tripathi