Allahabad High Court
C/M Mahaveer Pandey Junior High ... vs State Of U P And 3 Others on 26 July, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 37
Case :- WRIT - A No. - 10721 of 2022
Petitioner :- C/M Mahaveer Pandey Junior High School And Another
Respondent :- State Of U P And 3 Others
Counsel for Petitioner :- Nagendra Nath Mishra,Nitya Nand Mishra
Counsel for Respondent :- C.S.C.
Hon'ble Manish Mathur,J.
Heard learned counsel for the petitioners and learned State Counsel for the respondents.
Petition has been filed challenging the order dated 08.04.2022 whereby permission being sought by the petitioner-Committee of Management to advertise the vacant post of Peon for recruitment has been rejected on the ground that the said post has been declared to be a dying cadre post in terms of Government Order dated 15.01.2019.
Learned counsel for the petitioners submits that the aforesaid Government Order had already been challenged in Writ - A No. 5418 of 2019 (C/M, Manorama Kanya Junior High School, Moradabad and another v. State of U.P. and 2 others) in which by means of judgment and order dated 24.09.2021, the Government Order dated 15.01.2019 in so far as it declares Class III and Class IV posts in Junior High School to be a dead cadre, was found to be arbitrary and, therefore the Government Order dated 15.01.2019 was quashed.
It is submitted that the aforesaid judgment and order dated 24.09.2021 was challenged in Special Appeal (Defective) No.30 of 2022 which is still pending before this Court and while the same has been admitted, no interim order has been passed in favour of the State.
Learned counsel for petitioner does not have any instructions with regard to the current status of the Special Appeal.
Considering the aforesaid submissions advanced by learned counsel for the parties and upon perusal of the material on record, it is evident that the Government Order dated 15.01.2019 which forms the basis of the present impugned order dated 08.04.2022 already stands quashed by judgment and order dated 24.09.2021 as indicated herein above. The relevant portion of the said judgement are as follows:-
"34. Consequently, the Government Order dated 15.01.2019, insofar as it declares Class-III and Class-IV posts in junior high schools to be a dead cadre, is found to be wholly arbitrary, irrational, suffering from non application of mind and violative of Articles 14 & 21-A of the Constitution of India as also in teeth of the Act of 2009. The Government Order to that extent, accordingly, stands quashed. All consequential orders passed in the present bunch of writ petitions passed on different dates, declining permission to fill up the posts of Clerks and Class IV employees following the said Government Order, under challenge in the present bunch of petitions, are also quashed.
35. As a consequence, the post in Class III and Class IV cadre, already sanctioned vide Government Order dated 2nd July, 1990, shall continue to exist and it shall be open to the private management to make appointments against it by following the procedure laid down in the Rules of 1984."
The aforesaid dispute was also considered by this Court in Writ - A No.1803 of 2022 (C/M Kanhaiya Junior High School and another v. State of U.P. and another) in which the following order was passed:-
"The record reflects that the said Special Appeal was admitted, but no interim order was passed in favour of the State and the appeal is likely to be listed for final hearing.
Under these circumstances, the respondent No. 2, District Basic Education Officer, Gorakhpur is directed to permit the petitioner to advertise the post of clerk vacant in the Institution w.e.f. 31.01.2021 within three weeks from the date of production of a copy of this order downloaded from the official website of Allahabad High Court is placed before him.
However, the appointment made on the post of clerk shall be subject to final outcome of Special Appeal (Defective) No. 30 of 2022.
The writ petition is accordingly disposed of. "
It is thus seen that the present dispute is covered completely by the aforesaid judgments. No distinction could be pointed out by the learned State Counsel for taking a divergent stand and as such it is found that the present dispute is already covered by the aforesaid directions issued by this Court.
Mere pendency of Special Appeal without any interim relief does not have effect of nullifying a judgment rendered by a Court of competent jurisdiction. As such, there is no occasion to keep the matter pending merely on account of pendency of the Special Appeal, particularly when it pertains to appointment on the vacant post of Peon in an Educational Institution, which if left vacant would hamper the smooth functioning of the said institution.
Considering aforesaid, respondent no.3, i.e. District Basic Education Officer, Gorakhpur is directed to permit the petitioner to advertise for the post of Peon in the institution within three weeks from the date a copy of this order is produced before him. Any appointment made on the post of Peon pursuant to this direction shall be subject to the final outcome of Special Appeal (Defective) No.30 of 2022. The appointment letter of any selected candidate shall specify that the appointment has been made subject to final outcome of the said appeal.
The petition as such stands finally disposed of.
Order Date :- 26.7.2022
Prabhat
