State Of U.P. And 2 Others vs Jai Prakash Uttam And Another
2021 Latest Caselaw 6288 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Chief Justice's Court
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 41 of 2021
 

 
Appellant :- State Of U.P. And 2 Others
 
Respondent :- Jai Prakash Uttam And Another
 
Counsel for Appellant :- Subhash Rathi
 
Counsel for Respondent :- Siddharth Khare
 

 
Hon'ble Sanjay Yadav, Chief Justice
 
Hon'ble Prakash Padia,J.

Per Hon'ble Prakash Padia,J.

1. The matter is taken up through video conferencing.

2. Heard learned counsel for the parties.

3. The present Special Appeal has been filed by the appellant State challenging the judgement and order dated 03.03.2020 passed by the learned Single Judge in Writ A No.1228 of 2015.

4. It appears from perusal of the record that at Prem Puri Badagaon District Kanpur Nagar, there is an educational institution namely Jan Shikshan Inter College (In short "Institution"). The said Institution is governed by the U.P. Intermediate Education Act, 1921 and U.P. High Schools And Intermediate Colleges (Payment Of Salaries Of Teachers And Other Employees) Act, 1971 (hereinafter referred to as "Act, 1921 and Act, 1971" respectively). The Institution in question received grant in aid upto High School level. In the Institution in question, there is only one sanctioned post of clerk which was held by one Raj Kumar Uttam. He retired from service after attaining the age of superannuation on 30.05.2006. In the Institution in question, there is huge strength of the students and in order to discharge the proper work as well for disposal disposal of official work, certain computers were purchased by the Colleges Authorities. In order to fill up the post of clerk, a decision was taken by the Management to fill up the aforesaid post by way of direct recruitment by a person having full knowledge of operation of computer. In this regard an application was submitted by the Institution before the District Inspector of Schools (In short "D.I.O.S.) for grant of permission in order to fill up the aforesaid post by direct recruitment. The permission was granted by the D.I.O.S. vide its order dated 19.10.2007. Pursuant to the same, advertisement was published in two daily newspapers namely Swatantra Bharat and Times of India on 24.10.2007 and 27.10.2007 respectively. Pursuant to the aforesaid advertisement, the petitioner-respondent as well as various other candidates applied for the aforesaid post. The petitioner-respondent was found most suitable candidates by the Selection Committee. Subsequently, the papers of petitioner-respondent were transmitted before the D.I.O.S. for obtaining prior approval which is mandatory requirement as per Regulation 101 contained in Chapter III of the Act, 1921.

5. Before the aforesaid approval granted, one Narendra Singh, Class IV employee preferred Writ Petition No.57689 of 2007. In the aforesaid writ petition, interim order was granted by the learned Single Judge. Since the petitioner-respondent was not implemented in the aforesaid writ petition, he filed an application for his impleadment which was allowed. Apart from the petitioner-respondent, another class IV employee namely Virendra Kumar also filed impleadment which was also allowed. After hearing counsel for the parties, the learned Single Judge allowed the writ petition filed by one Narendra Singh vide its judgment and order dated 21.09.2010. The learned Single Judge was pleased to cancel the advertisement dated 24.10.2007 and 27.10.2007 as well as consequential action as has been taken by the Committee of Management for Direct Appointment of Class III employee and the appointment of petitioner-respondent. Further directions were given to the Regional Level Committee headed by Regional Joint Director of Education to examine the claim of Narendra Singh as well as respondent no.6 (Virendara Kumar) and other candidates. The aforesaid order is reproduced below:-

"Heard Sri Alok Dwivedi learned counsel for the petitioner, learned Standing Counsel for the respondents no. 1, 2 and 3, Sri Arun Kumar Tiwari for the respondent no. 4, Sri R.K. Ojha for the newly impleaded respondent no. 5 and Sri Agnihotri holding brief of Sri Neeraj Kumar Pandey for the newly impleaded respondent no. 6 Virendra Kumar.

This writ petition questions the selections on the solitary sanctioned post of clerk in Jan Shikshan Intermediate College Prempur, Badagaon, District Kanpur Nagar.

The petitioner claims promotion on the said post being a Class IV employee under the provisions of Chapter II Regulation 2 of the Regulations framed under the U.P. Intermediate Education Act 1921. The committee of management has proceeded to select the respondent no. 5 by direct recruitment under the impugned advertisement dated 24.10.2007/27.10.2007.

The respondent no. 6 Virendra Kumar has come up with a prayer that he is the senior most of the institution and therefore he should be promoted and even otherwise the claim of the petitioner deserves to be rejected.

Affidavits have been exchanged between the parties and the learned Standing Counsel has also filed a counter affidavit on behalf of the State respondent.

The submission raised is that the impugned action of the committee is in violation of the provisions of Chapter II Regulation 2 coupled with the decision of this Court in the case of Jai Bhagwan Singh Vs. District Inspector of Schools, Gautam Budh Nagar and others, reported in 2006 (3) U.P.L.B.E.C. Pg. 2391. In essence the contention is that it there is a solitary post which should be filled up by way of promotion and it cannot be filled by way of direct recruitment.

The second submission of Sri Dwivedi is that the committee of management has illegally refused to consider the claim of promotion of the petitioner inspite of the fact that the petitioner is duly qualified and further the respondent no. 6 Virendra Kumar who is senior to the petitioner has already refused to claim promotion.

The respondents have taken a stand that the selections have been held in accordance with the regulations and further the same is pending approval before the District Inspector of Schools. They submit that the claim of the petitioner even otherwise cannot be considered inasmuch as the petitioner is not the senior most Class IV employee entitled for promotion.

The aforesaid issue need not detain this court inasmuch as under the Government Order dated 19.12.2000 the Regional Level Committee headed by the respondent no. 2 has to examine such claims and process the appointments keeping in view the provisions of Regulations 101 to 107 of Chapter III of the regulations framed under the U.P. Intermediate Education Act 1921. The claim of promotion on the post in question by the petitioner and also of the respondent no. 6 will therefore have to be examined before approval is granted to the selections held by the committee of management in favour of the respondent no. 5.

It is however to be noted that so far as the position of law is concerned the decision in the case of Jai Bhagwan Singh holds the field clearly laying down that if there is a single post of Class III in the Institution it has to be filled up by way of promotion. In view of this, it is only the claim of promotion which has to be considered and not the claim of direct recruitment.

So far as the inter-se claim between the petitioner and respondent no. 6 is concerned the issue as to whether the respondent no. 6 had refused to accept promotion or not will still have to be examined by the Regional Level Committee.

Accordingly, the advertisement dated 24th October 2003 and all consequential action taken by the committee of management for the selection and appointment of the respondent no. 5 being in teeth of judgment in the case of Jai Bhagwan Singh (supra) is hereby quashed and Regional Level Committee headed by respondent no. 2 shall now proceed to examine the claim of the petitioner and the respondent no. 6 after calling for comments from the committee of management and the District Inspector of Schools as expeditiously as possible but not later than eight weeks from the date of presentation of a certified copy of this order before the said authority.

Partly allowed."

6. Pursuant to the same, matter was placed before the Regional Level Committee. It is submitted in paragraph 15 of the writ petition that all class IV employees of the writ petition submitted their notorial affidavits by which they submitted their unwillingness for promotion on the post of clerk.

7. The Regional Level Committee after hearing all the parties concerned rejected the claim set up by the petitioner-respondent vide its order dated 21.5.2013. Aggrieved against the aforesaid order as well as the order dated 21.09.2010 passed by the learned Single Judge in Writ Petition No.57689 of 2007, Special Appeal (Defective) No.1207 of 2011 was preferred by the petitioner-respondent. The aforesaid appeal was dismissed by the Co-ordinate Bench of this Court vide its judgement and order dated 27.3.2014 while dismissing the writ petition direction was given that any person aggrieved by the order of Regional Level Committee dated 21.05.2013, he can file a separate writ petition challenging the same. The order dated 27.03.2014 is reproduced below:-

"1. We have heard Sri Vinod Kumar Singh for the appellant. Learned standing counsel appears for State respondents. Sri Alok Dwivedi appears for respondent No.6 - the petitioner in the writ petition.

2. The appeal is reported to be beyond time by one year and 48 days. Learned counsel appearing for petitioner-respondent and learned standing counsel have no objection in condoning the delay. The grounds for condonation of delay are good and sufficient. The delay is accordingly condoned, and the appeal was heard.

3. The appellant was selected by the Committee of Management of Jan Shiksha Intermediate College, Prempur, Badagaon, District Kanpur Nagar for appointment on a vacant Class III post.

4. Sri Nagendra Singh - the petitioner, who was serving as a Class IV employee in the institution, had filed a Writ Petition No. 57689 of 2007, in which a direction was given to the Regional Level Committee headed by Joint Director of Education, to examine the claim of petitioner Sri Nagendra Singh and Sri Virendra Kumar - the respondent No.6 in the writ petition, another class-IV employee for promotion, in the light of judgment of the Court in Jai Bhawan Singh Vs. District Inspector of Schools, Gautam Budh Nagar and others [2006 (3) UPLBEC 2391], in which it was held that if there is a single post of Class III in the institution, it has to be filled up by way of promotion, and not by direct recruitment.

5. The Joint Director considered the matter of promotion, and by his order dated 21.05.2013, in pursuance to the directions issued by the Court on 21.09.2010, decided the representation directing promotion of Sri Nagendra Singh - the petitioner in Writ Petition No. 57689 of 2007, on the vacant class-III post.

4. Learned counsel appearing for the appellant states that the observation of the learned Single Judge in the judgment dated 21.09.2010, that the single post of Clerk could be filled by promotion of Class IV employee is not correct in law. All the class-IV employees who were eligible to be considered for promotion refused to be promoted by giving undertaking on notary affidavit, and in the circumstances the Regional Level Committee was also required to consider the appointment of appellant.

5. This Special Appeal is directed against order dated 21.09.2010, by which the Joint Director was required to consider the representation of petitioner - Sri Nagendra Singh in accordance with decision of the Court in Jai Bhagwan Singh. Learned Single Judge has not decided the rights of the petitioner. If the right of any aggrieved person has been affected by the order of the Regional Level Committee dated 21.05.2013, they can file a separate writ petition challenging the orders, and in which they may raise all the grounds, which are available to them in accordance with law.

6. The Special Appeal is dismissed."

8. Pursuant to the aforesaid, another writ petition was filed by the petitioner-respondent being Writ A No.23371 of 2014. After hearing learned counsel for the parties, learned Single of this Court was pleased to dispose of the writ petition vide order dated 28.04.2014 directing the Regional Level Committee to consider the case of the petitioner also for approval the selection against Class III post. It is important to note here that while giving the aforesaid directions, the earlier order passed by the Regional Level Committee dated 25.1.2013 was not interfered. The order dated 28.4.2014 passed in the aforesaid writ petition is reproduced below:-

"Heard learned counsel for the petitioner, learned Standing Counsel for the respondent nos.1, 2 & 3, Sri Arvind Upadhyay, learned counsel representing Committee of Management (respondent no.4) and Sri Alok Dwivedi, learned counsel representing respondent nos.5 to 8 who are class IV employees in the institution in question.

Jan Shiksha Inter College, Frempur Badagaon, district Kanpur Nagar is a recognised and aided institution up to Intermediate. There is one post of clerk in the institution and there are four Class IV employees working in the institution. The Committee of Management appointed the petitioner by way of direct recruitment as clerk. Initially two of the Class IV employees objected to the Selection of the petitioner on the ground that single post of clerk is to be filled up by way of promotion. The matter came up before this Court and was remitted to the Regional Level Committee for taking appropriate decision with regard to the two candidates viz Nagendra Singh, respondent no.5 and Birendra Kumar, respondent no.6 regarding their seniority and further claim for promotion to the post of Assistant Clerk. Before Regional Level Committee all the four Class IV employees working in the institution filed their affidavits stating that they were not interested for being promoted to the post of Assistant Clerk which ultimately would result into the filling up of the said post by way of direct recruitment and for consideration of the claim of the petitioner. The Regional Level Committee after considering their respective claims vide order dated 21.05.2013 has recorded that all the Class IV employees have relinquished their claim for promotion including two contesting candidates i.e. Narendra Singh and Birendra Kumar. It further records that as the direction of the High Court was only to consider the claim of the contesting Class IV employees it would not be in a position to consider the claim of the petitioner for being approved on the post of Assistant Clerk pursuant to the selection made by the Committee of Management. In the meantime against the order of the learned Single Judge directing the Regional Level Committee to take a decision the petitioner had filed an intra Court appeal being Special Appeal Defective No.1207 of 2011. During the pendency of the appeal the Regional Level Committee passed the order dated 21.05.2013. The Division Bench while deciding the aforementioned intra Court appeal filed by the petitioner has granted liberty to the petitioner to file separate writ petition challenging the order of the Regional Level Committee. As such the present petition has been filed.

The relief prayed for by means to this petition is that the order dated 21.05.2013 passed by the Regional Level Committee be quashed and further direction be issued to the Regional Level Committee to consider the claim of the petitioner for its approval on the post of Assistant Clerk in accordance with law.

Learned counsel for the Committee of Management Sri Arvind Upadhyay and the learned counsel for the Class IV employees Sri Alok Dwivedi have submitted that they have no objection if such a direction be issued.

In the opinion of the Court it is not necessary to quash the order dated 21.05.2013 but appropriate direction can be issued to the Regional Level Committee to consider the claim of the petitioner for approval on the selection against Class III posts duly made by the Committee of Management.

Accordingly this petition is disposed of with a direction to the Regional Level Committee to take an appropriate decision in the aforesaid matter in accordance with law within a period of two months from the date of production of certified copy of this order."

9. Pursuant to the aforesaid order, matter was again placed before the Regional Level Committee and the Regional Level Committee again rejected the claim set up by the petitioner-respondent vide its order dated 05.12.2014. Aggrieved with the aforesaid order, the petitioner-respondent filed Writ Petition with the prayer to set aside the order dated 05.12.2014 passed by the Regional Level Committee with a further prayer to direct the Regional Level Committee to reconsider the claim of the petitioner-respondent and pass appropriate orders. The aforesaid writ petition filed by the petitioner-respondent was allowed by the learned Single Judge vide its judgment and order dated 03.03.2020. Aggrieved against the aforesaid order, the State-appellant filed the present Special Appeal before this Court.

10. It is argued by learned Standing Counsel appearing on behalf of the appellant that the advertisements issued by the Institution as well as all consequential actions taken by the Committee of Management for selection and appointment of petitioner-respondent was quashed by this Court. It is further argued that the aforesaid findings were not set aside in the Special Appeal filed by the petitioner-respondent and this aspect of the matter was not considered by the learned Single while passing the impugned order in Writ Petition, therefore, no relief could be granted to the petitioner-respondent. It is further argued that in view of the law laid by this Court in the case of Jai Bhagwan Singh v. District Inspector of Schools, Gautambudh Nagar and others, (2006) 3 UPLBEC 2391, a single post of Class-III employee in the institution, could only be filled up by promotion. In view of this,it is only the claim of promotion which has to be considered and not the claim of direct recruitment which has been done by the learned Single Judge in the present case. It is argued that in Jai Bhagwan Singh (supra) case, following question was placed before the Larger Bench by the learned Singh Judge for consideration:-

"Whether a single post of Class III available in the Intermediate College governed by the 1921 Act can be filled by way of promotion and whether the case of Palak Dhari Yadav, reported in (1999) 3 UPLBEC 2315, has been correctly decided keeping in view the opinion expressed by another Single Judge in Writ petition No.4165 of 2004 as also the pronouncement of the Apex Court in the cae of B. Badami Vs. State of Mysore and All India Fedration V. Union of India."

11. The aforesaid question has been answered by a Division Bench, as under:

"19. In view of the foregoing discussions, we answer the reference in the following words.

(i) A single post of Class III available in an Intermediate college governed by 1921 Act can be filled up by way of promotion, and the case of Palak Dhari Yadav (supra) has not been correctly decided.

12. From the aforesaid law laid down by Coordinate Bench of this Court it is clear that the single post of Class III employee in Intermediate College has to filled up by promotion.

13. This Court, while deciding the writ petition no. 57896 of 2007 has quashed the advertisement dated 24.10.2003 and all the consequential action taken by the Committee of Management for selection and appointment of petitioner/ respondent being in teeth of the judgment in case of Jai Bhawan Singh.

14. The aforesaid judgment of this Court dated 21.9.2010 passed in Writ Petition No. 57869 of 2007 has not been set aside in any subsequent proceedings including special appeal (defective) no. 1207 of 2011 filed by the petitioner/respondent.

15. Once the advertisement and all the consequential actions were quashed by this Court, there was no lawful process of selection of petitioner/respondent. The entire appointment process of petitioner/respondent was set aside by this Court, thus in absence of lawful selection process, the order impugned in the special appeal is not tenable in law and is liable to be set aside.

16. Although the Regional Level Committee while passing the order dated 5.10.2014 has not taken into consideration the fact that the entire selection process of petitioner/respondent has already been set aside by this Court and has proceeded to examine the claim of petitioner as the petitioner/respondent was appointed after following the procedure prescribed under the Act & Regulations framed there under. The reason given in the order dated 5.12.2014, which was impugned in the writ petition, although are not tenable in law, but since the selection process for the post of clerk was quashed by this Court by order dated 21.9.2010, the order impugned in the present appeal dated 3.3.2020 is not tenable and is hereby set aside.

17. It is well settled that the powers in writ jurisdiction should not be exercised to set aside one illegal order to restore another illegal order, as has been held by Division Bench of this Court in the case of Ashok Kumar Pandey and others Vs. Basic Shiksha Adhikari, Mau and others, reported in 1992 (3) AWC 1389. The Court has held as under:

"14. As regards the last contention of Mr. Singh that before the impugned order was passed, the Appellants were not given an opportunity of being heard, it must be said that, in the facts of the instant case, it has no sub-stance. It has already been found that the concerned Appellants were not appointed as teachers. They were therefore not being deprived of any right, for which they were entiled to a prior opportunity of being heard. We hasten to add that even if we had found that they were entitled to such an opportunity and failure on the part of the Adhikari to provide them with the same made the order under challenge bad, we would not have been justified in quasffing the same for that would have amounted to putting premium upon and giving judicial imprimatur to another wrong, namely, conferment of a right upon certain persons who were not entitled to it. To put it differently, powers in writ jurisdiction should not be exercised to set aside one illegal order to restore another illegal order. In making these observations, we have drawn sustenance from the Division Bench judgment of this Court in the case of S.K.J.P.K. Inter College v. District Inspector of Schools 1988 UP LB EC 739."

18. This Court further in case of Raghunath Vs. Deputy Director of Consolidation, reported in 1998 (1) AWC 776 has held as under:

"13. In its decision in the case of Ashok Kumar Pandey and others D. Basic Shiksha Adhikari, Mau and others. Special Appeal No. 127 of 1992, decided on 22.4.1992. a Division Bench of this Court had observed that powers in writ jurisdiction should not be exercised to set aside one illegal order to restore another illegal order reiterating the view of another Division Bench of this Court in its decision in the case of SKJPK Inter College v. District Inspector of Schools 1988 U.P.L.B.E.C. 739. pointing out that quashing of an order which amounted to putting premium upon and giving Judicial imprimatur to another wrong, namely conferment of a right upon certain persons who were not entitled to it cannot be justified.

19. The appointment of petitioner/respondent, if allowed, will amount allowing a person to be appointed without following procedure of law as the selection process of the petitioner/respondent has already been quashed by this Hon'ble Court. This is not permissible in exercise of power conferred under Article 226 of the Constitution of India.

20. In view of the above discussions, the order of learned Single Judge dated 3.3.2020 passed in Writ-A No. 1228 of 2015 (Jai Prakash Uttam Vs. State of U.P. & others) is set aside.

21. Consequently, the special appeal is allowed.

 
Order Date :- 16.06.2021/saqlain 
 

 

 

 
			(Prakash Padia, J.)                       (Sanjay Yadav, .C.J.)