Ajay Kumar Mishra vs State Of U.P.Thru Secy And Ors.
2022 Latest Caselaw 5281 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                                       RESERVED ON 11.5.2022
 
                                                                                                       DELIVERED ON 20.6.2022
 
Case :- WRIT - A No. - 8958 of 2013 
 
Petitioner :- Ajay Kumar Mishra 
 
Respondent :- State Of U.P.Thru Secy And Ors. 
 
Counsel for Petitioner :- Alok Dwivedi 
 
Counsel for Respondent :- C.S.C.,Arvind Upadhyay 
 

 
Hon'ble Siddharth,J. 

Heard Shri Alok Dwivedi, learned counsel for the petitioner and learned Standing Counsel.

This writ petition has been filed praying for quashing of the order dated 8.11.2012 passed by the respondent no.2,Regional Level Committee headed by Joint Director of Education, Kanpur Region, Kanpur.The direction has been sought against the respondent authorities to treat the selection of the petitioner as deemed to be approved as per Regulation 17 (g), Chapter II of U.P. Intermediate Education Act, 1921 and Circular dated 18.7.1981 and Government Order dated 17.10.2012 on class IV post in the institution and pay his salary forthwith. Alternative prayer has been made for directing the respondent authorities to grant approval to the selection and appointment of the petitioner on class IV post and pay his salary forthwith.

There is minority institution, namely, Sri Guru Nanak Vidalaya Girls Inter College, Latoos Road, Kanpur Nagar (hereinafter referred to as "institution only) a duly recognized and aided institution also covered under Article 30 of the Constitution of India.On account of promotion of an incumbent from class IV post to class III post, a substantive vacancy on class IV post arose in the institution. Being minority institution no prior permission was required from the District Inspector of Schools, IInd, Kanpur Nagar, respondent no.4 for filling the post and the Principal after publication of of advertisement in two dailies, "Aaj" and "Hindustan" conducted interview and petitioner was duly selected. After selection of the petitioner the papers of his selection were forwarded on 3.7.2009 to the respondent no.4, District Inspector of Schools, IInd, Kanpur Nagar, for granting approval to the selection and appointment of the petitioner on class IV post in the institution and respondent no.4, District Inspector of Schools, IInd, Kanpur Nagar, forwarded the same to the respondent no.3, Joint Director of Education, Kanpur Region, Kanpur, who returned the papers on 7.5.2010 stating that the process mentioned in the Circular dated 16.4.2010 was not followed in the selection and appointment of the petitioner. The Principal of the institution again sent letters to the respondent aforesaid for granting approval for selection and appointment of the petitioner and the Joint Director of Education, aforesaid again refused the same relying upon the Government Order dated 6.1.2011 by his letter dated 10.3.2011. The aforesaid order was challenged before this court by the petitioner vide Writ Petition No. 23867 of 2011, which was allowed on 25.4.2012 and the Joint Director of Education, Kanpur Region, Kanpur was directed to reconsider the case of the petitioner but by the impugned order dated 8.11.2012, the respondent no.2, Regional Level Committee, headed by Joint Director of Education, Kanpur Region, Kanpur again passed the order of refusal , hence petitioner is before this court.

Counter affidavit has been filed on behalf of the respondent nos. 2 to 4, wherein it has been stated that as per Regulation-101 of Intermediate Education Act, 1921, the principal cannot fill any post of non teaching staff without prior approval of the District Inspector of Schools. According to Government order dated 6.1.2011 there were restrictions on the appointments of class IV employees in government aided Intermediate Colleges. As per Government Order dated 19.12.2010, the Regional Level Committee was constituted for granting appointment. It has been further objected that applications from only male candidates were invited for appointment in the girls institution on the disputed post.

In the counter affidavit filed on behalf of respondent nos. 5 and 6, Principal and the manager of the committee of the management of the institution respectively, it has been stated that one male employee, namely, Mikky Chawala, was promoted from class-IV to class III post and since male candidate was required to perform physical work in the institution therefore post was advertised for male candidate only. The advertisements were duly published and names of 23 candidates were forwarded by the Employment Exchange and 20 candidates applied directly. Thereafter petitioner was selected. As per Regulation 17(g) Chpater II of U.P. Intermediate Education Act, 1921 as well as Circular dated 18.7.1981 and Government order dated 17.10.2012, if no decision is taken by competent authority regarding approval of appointment within one month from the submission of the papers then after one month the approval is deemed to be granted in the minority institution . Respondents have illegally denied the approval to the appointment of the petitioner.

After hearing the rival contentions, this court finds that there was substantive vacancy created on class IV post in the institution. The post was duly advertised in two newspapers "Aaj" and "Hindustan' and selection proceedings were held wherein petitioner was declared successful. The approval to the selection and appointment of the petitioner has been denied on the ground that no prior permission was taken from respondent no.4,District Inspector of Schools, IInd, Kanpur Nagar, before inviting the application for appointment. This court while deciding the Writ-A No. 238767 of 2011 which was filed challenging the order date 7.5.2010 of Joint Director of Education, Kanpur Region, Kanpur and consequential order dated 5.6.2010 passed by the District Inspector of Schools, set aside the order on the ground of refusal of grant of approval of the appointment of the petitioner by the following findings:-

"On two grounds, there has been refusal to accept the claim set up by the petitioner. The first ground is that the process mentioned in the circular dated 16.04.2010 has not been followed in making selection and appointment of the petitioner. This Court in the case of Rajeev Kumar and others vs. State of U.P. and others, 2011 (1) ADJ page 615, has taken the view that communication dated 11.05.2001 on facts as admitted by the State Government and in view of the law as explained above was not a Government Order at all much less an order issued under Sub-section (4) of Section 9 of the Act. It has been mentioned that communication dated 11.05.2001 has been wrongly projected by the State Government to be a Government Order. Circular dated 16.04.2010 is based on communication dated 11.05.2001, as is evident from Annexure-8 to the writ petition. Once Circular dated 16.04.2010 is based on the communication dated 11.05.2001, which has not been held to be a Government Order, then to say that for appointment of non-teaching staff under U.P. Act No. 2 of 1921, the provisions for appointment qua Group D posts have to be complied with, cannot be accepted. The aforesaid Division Bench judgment of this Court in the case of Rajeev Gupta and others (supra) still holds the field, and accordingly, in the matter of selection and appointment on class IV post the provisions qua Group D Employees in the State Departments is not at all to be adhered to.

The second objection, which has been so taken, is in regard to the fact that there had been ban on such appointments. In this regard reliance has been placed on the Government Order dated 06.01.2011. This Court had the occasion to consider the aforementioned Government Order in writ petition No.11760 of 2011, Committee of Management, Lala Babu BaijalMemorial Inter College and another vs. State of U.P. and others, decided on 21.03.2012, wherein this Court has deprecated the objections and has held that the system as contemplated in paragraph 2 of the impugned Government Order is evidently exploitative, arbitrary, unreasonable, irrational, illegal and ultra vires the provisions of Articles 14 and 16 of the Constitution.

Once the two objections, as mentioned above, have been held to be unsustainable, then the impugned orders are liable to be quashed. Consequently, writ petition succeeds and the same is allowed. The order dated 07.05.2010 passed by the Joint Director of Education, Kanpur Region, Kanpur, consequential order dated 05.06.2010 passed by the District Inspector of Schools and the order dated 10.03.2011 passed by the Joint Director of Education are hereby quashed and set aside, and the Joint Director of Education, Kanpur Region, Kanpur is directed to reconsider the case of the petitioner and decide the same in accordance with law and in the light of observations made in the body of the judgment, within a period of two months from the date of receipt of a certified copy of this judgment".

Now the impugned has been passed on absolutely new grounds that only male candidates were called for interview and the advertisements were published by the manager/principal of the institution when manager has no role in appointment of class IV post. New ground has been taken that 36 persons were informed about the interview and registered letter to only 23 of them were sent. Nothing has been mentioned about reason for rejection of candidature of other candidates and petitioner has been selected.This court finds that in the earlier impugned order these objections were not taken by the respondents. From the perusal of the order impugned this court finds that earlier objection was taken that process mentioned in the Circular dated 16.4.2010 was not followed which was disapproved by this court. It was not open to the respondents to travel beyond earlier impugned order passed by them and reject the claim of the petitioner on frivolous grounds. The conduct of the respondent is tainted by malafides and also amounts to contempt. Their conduct also amounts to misconduct in service since deliberate and wilful attempt has been made to negate the order of this court passed earlier.

The first ground that the advertisement was issued by Manager/Principal while the Principal is the appointing authority is incorrect. In fact the advertisement was issued by the Principal on 15.2.2009 in daily news paper ''Aaj and by the Principal/Manager on 18.2.2009 in newspaper ''Hindustan. The principal of the institution is the appointing authority and accordingly he completed the entire selection proceedings.

The next objection that the application was invited only from male candidates while the institution is girls institution is also without substance. In fact due to requirement of physical work in the institution,the application was invited from the male candidates which is permissible to minority institution. There is no bar for appointment of male Class-IV employee in girls institution,if there is requirement of work of a male employee. It is for the management to decide their requirement.

The next objection is that from employment exchange the names of 20 candidates were sent and 23 candidates applied directly.Against 20 candidates whose name were sent by the employment exchange only 7 candidates were called. The aforesaid ground has been stated to be factually incorrect in the writ petition.

The next objection is that the selection committee constituted only of Principal of the institution. In Intermediate Education Act, 1921 there is no mention of any committee for selection of Calss-IV employee. The Principal of the institution is the appointing authority and accordingly he completed the entire selection proceedings. There is no requirement of prior permission for filling up the post of Class-IV employee in the institution. In case of Jagdish Singh Vs. State of U.P. and others reported in 2006 (4) ADJ (ALL) (D.B.)it was held that prior approval contemplated under Regulation 101 of Chapter-3 made under Intermediate Education Act, 1921 is prior approval by the District inspector of Schools after completion of process of selection and before the issuance of appointment letter.

The minority institution has right to select and appoint a person who is having prescribed qualification. Section16 FF of the Intermediate Education Act specifically provides that the District Inspector of Schools shall not withhold the approval of a teacher if the person selected possesses the minimum qualification prescribed. The aforesaid provision is for teachers and principal of the minority institution. There is no provision which talks about class-IV employee in minority institution. The principle of the aforesaid provision is duly applicable upon class-IV employee of minority institution also.

The impugned order dated 8.11.2012 passed by the respondent no.2, Regional Level Committee headed by Joint Director of Education, Kanpur Region, Kanpur is hereby quashed.

The petitioner is held entitled to grant of salary and other benefits from the date of illegal return of his papers for approval of his appointment on 7.5.2010 by the respondent no.2, Regional Level Committee headed by Joint Director of Education, Kanpur Region, Kanpur. His salary and other benefits shall be calculated and paid to him within eight weeks from today from the aforesaid date.He shall be paid his regular salary w.e.f.. 1.8.2022.

In case the order is not complied within time 7% interest shall be payable to the petitioner on the total amount due to paid to him.

In view of the above the writ petition is allowed with costs..

Order Date :- 20.6.2022

Atul kr. sri

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