Ram Naresh Yadav vs State Of U.P. Through Its ...
2022 Latest Caselaw 22678 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 25
 

 
Case :- WRIT - A No. - 3447 of 2012
 

 
Petitioner :- Ram Naresh Yadav
 
Respondent :- State Of U.P. Through Its Secy.Secondary Edu.Lucknow
 
Counsel for Petitioner :- Manoj Kumar Tiwari,Anu Pratap Singh,L.P.Singh,Mahendra Singh Rathore
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajan Roy,J.

Heard Sri Utsav Bajpai, Advocate holding brief of Sri Anu Pratap Singh, learned counsel for the petitioner and Sri Pratul Kumar Srivastava, learned counsel for the State.

Notices have not been issued to Management which has not been impleaded as an opposite party herein and only the Principal of the Institution has been impleaded.

The petitioner herein is said to have applied for being considered for selection and appointment on the post of Class-IV post of Chowkidar in Raj Singh Intermediate College, Belhari, District-Sultanpur issued vide Advertisement dated 06.10.2011. The petitioner was appointed on the said post on 31.10.2011. The case of the Institution as evidenced from document annexed by the petitioner himself is that inspite of records having been sent for prior approval the same was not granted by the D.I.O.S. under Regulation 101 of Chapter-III of the Regulations framed under the U.P. Intermediate Education Act, 2021.

In these circumstances, as the petitioner was not being paid his salary, he filed this petition seeking a writ of mandamus commanding opposite parties to pay salary to the petitioner of the aforesaid Class-IV post each and every month including arrears w.e.f. 04.11.2011. 04.11.2011 is the date on which the petitioner claims to have joined on the post in pursuance to the appointment order. An interim order was passed on 15.06.2022 by this Court which reads as under:-

"Heard Sri Manoj Kumar Tiwari, learned counsel for the petitioner and learned Standing counsel for the opposite parties.

It is submitted that the petitioner was selected on class-IV posts by the Principal of the respective institute. Prior approval from the concerned District Inspector of Schools is required under the Rules. The petitioner says that the post is available. There is no violation of reservation clauses but prior approval with respect to his appointment is not being given by the District Inspector of Schools only to harass the petitioner.

Learned Standing counsel shall file counter affidavit within four weeks. Rejoinder affidavit may be filed within a week after that. List thereafter.

Meanwhile, the opposite parties are directed to make payment of current salary to the petitioners if his appointment has been made against sanctioned post. "

It appears that salary was not paid to the petitioner though it is not very clear as to whether it was initially paid and then stopped or it was never paid. Nevertheless, this led to filing of a contempt petition before this Court bearing No.108/2013 which is pending. It is not out of place to mention that vide Government Order dated 08.09.2010, the State Government circulated a direction that fresh appointments be not made on Class-IV post as there was a proposal to fill-up the same through outsourcing. Thereafter, a Government Order was issued on 06.01.2011 placing an embargo on appointment on Class-IV post to the earlier procedure and providing that they would be filled only by outsourcing. These Government Orders were put to challenge before the High Court and some decisions were taken that this could not be done by means of government order. Consequent to it, Regulation 101 was amended vide Notification dated 04.09.2013 which was published in Gazette on 24.04.2014. This Regulation was put to challenge before the High Court and a Division Bench of this Court struck down the same as being unconstitutional. Against the said judgment of the Division Bench dated 19.11.2018, Civil Appeal No.865 of 2021 [The State of Uttar Pradesh & Ors vs. Principal Abhay Nandan Inter College & Ors] and other appeals were filed. These appeals have been decided vide judgment dated 27.09.2021. Hon'ble the Supreme Court has set aside the Division Bench judgement dated 19.11.2018. It has opined that the Government has the power under Section 9(4) of the Act, 2021 to issue such Government Orders dated 08.09.2010 and 06.01.2011 and amendment of Regulation 101 has also been upheld as within its power and otherwise also permissible in law. Having held as above, Hon'ble the Supreme Court has opined as under:-

"54. We have one more issue to be considered before our conclusion. That is, whether the institutions should be held responsible, with respect to the interest of those who were recruited though contrary to the Impugned Regulation or not. These persons are innocent civilians who got embroiled in the legal battle initiated by the management and made to fight as front-line soldiers. It is the management which found these persons suitable to hold the post. Therefore, this court will have to apply the theory of justice and adopt a problem-solving approach. Having appointed persons and found them suitable, while creating a situation which could have been avoided, the managements will have to take up their responsibility. If imparting education is seen to be in public interest, such institutions have duties to their employees as well. Certainly, the appellants cannot be made to continue them by making a contribution towards their salary by way of aid.

55. We may also note that even the Division Bench in its own wisdom has observed that the impugned Regulation can only be applied to the aided institutions alone. This finding has not been challenged seriously before us. We are conscious of the legal position governing equity when pitted against law. Though both can travel in the same channel, their waters do not mix very often.

56. Having found that the appellants are justified in passing the relevant Government Order followed by the impugned Regulation, we do not wish to impose any further liability on them. On the contrary, we do feel that institutions should be held responsible for the judicial adventurism undertaken.

57. However, we would also like to observe that the appellants will have to seriously consider paragraph 3.72 and 3.83 of the Seventh Central Pay Commission. We expect the appellants to create an adequate mechanism to see to it that the persons employed by the process of "Outsourcing" are not exploited in any manner.

58. Accordingly, we have no difficulty in setting aside the judgment of the Division Bench dated 19.11.2018 and the consequential orders passed while upholding the impugned Regulation. The appeals are allowed with the following directions:

(i) The respondents/writ petitioners in Civil Appeal No 2753 of 2021 are directed to be confirmed by granting adequate approval as Class "IV" employees, having given prior approval.

(ii) The respondents/writ petitioners and similarly placed persons who are recruited by the institutions including the respondents shall be continued with the same scale of pay as if they are recruited prior to 08.09.2010 for which the entire disbursement will have to be made by the institutions alone.

(iii) The appellants shall undertake the necessary exercise to see to it that there is a mechanism available for the proper implementation of "Outsourcing" with specific reference to the conditions of service of those who are employed while taking note of the recommendations made in the Seventh Central Pay Commission."

The petitioner's appointment was admittedly made on 31.10.2011 without prior approval of D.I.O.S. and this was made after issuance of the Government Orders dated 08.09.2010 and 06.01.2011. Therefore, it was in the teeth of the said policy decisions as held by Hon'ble the Supreme Court. However, considering the operative portion of the decision rendered by Hon'ble the Supreme Court, the petitioner is at liberty to claim benefit of paragraph no.58(ii) against the Management of the Institution but the State will not be liable to pay salary to the petitioner for any period he may have worked since his appointment in view of decision of Hon'ble the Supreme Court. It is open for the petitioner to raise a claim of salary, if he has worked for any period since his appointment vis-a-vis the Management but not the State, by filing a separate writ petition.

With these observations, the writ petition is disposed of.

(Rajan Roy,J.)

Order Date :- 23.12.2022

Shanu/-