Allahabad High Court
Amar Singh And Another vs State Of U.P. And 4 Others on 21 January, 2021
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 33
Case :- WRIT - A No. - 47765 of 2015
Petitioner :- Amar Singh And Another
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Vikas Budhwar
Counsel for Respondent :- C.S.C.,Ram Sagar Ram
Hon'ble Ashwani Kumar Mishra,J.
Despite grant of repeated opportunity and passing of stop order, no counter affidavit has been filed by the State.
Averments made in the writ petition are treated to be correct by applying the doctrine of non-traverse.
This petition is directed against the order dated 13/14.05.2015, whereby petitioners' claim for grant of financial approval to their appointment on class IV posts has been declined on the ground that the post ought to have been reserved for compassionate appointment and that appointment otherwise could be made only by outsourcing in view of the Government Order dated 06.01.2011.
The legality of the provisions introduced vide Govt. Order dated 4.9.2013 relating to outsourcing of class IV vacancy has been examined by a Division Bench of this Court in a bunch of writ petitions with leading Writ Petition No.45060 of 2015 (Principal, Abhay Nandan Inter College, Vishnu Mandir and another vs. State of U.P. and others). The Division Bench in its judgment dated 19.11.2018 has been pleased to observe as under in para 92 to 94:-
"92. Since the wider issue of validity has not been decided therein, it cannot be said that except to the extent the amended Regulation has been read down by this Court, rest Regulation stands affirmed by aforesaid judgment. A judgment is a binding precedent to the extent an issue is raised, argued and decided therein. It is not to be read as a statute. It cannot be read to cover something to which it has made no adjudication. We, therefore, find no obstruction in proceeding to consider validity of amended Regulation vide G.O. dated 04.09.2013 in these sets of writ petitions where this issue has been specifically raised, argued and Court has been called upon to adjudicate thereon.
93. In the result, writ petitions are allowed. Regulation 101 of Regulations, framed under Act, 1921, as amended vide Government Order dated 04.09.2013, insofar as it provides that vacancies of Class IV shall be managed only by 'Outsourcing', is arbitrary, illegal and ultra vires, hence struck down and impugned Government Order dated 04.09.2013 to this extent is declared ultra vires.
94. The orders impugned in all these writ petitions, which have been passed by concerned Educational Authorities in the light of Regulation 101, as amended by Government order dated 04.09.2013 whereby Class IV vacancies were only to be managed by Outsourcing, are hereby set aside. The said authorities are now directed to reconsider the matter and pass appropriate orders in accordance with law without any further delay and in any case, within two months from the date of production of a certified copy of this order."
In that view of the matter the objection of the respondents that the class IV post has to be outsourced cannot be sustained.
The writ petition, consequently, succeeds and is allowed. Order dated 13/14.05.2015 stands quashed. Respondents are directed to consider petitioner's claim for grant of financial approval in accordance with the applicable rules in existence on the date of publication of vacancy. Requisite decision will be taken within a period of three months from the date of presentation of a copy of this order.
Order Date :- 21.1.2021
Atul
