Allahabad High Court
The Committee Of Management Dr. ... vs State Of U.P. And 2 Others on 19 May, 2022
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 32
Case :- WRIT - A No. - 7617 of 2022
Petitioner :- The Committee Of Management Dr. Ambedkar Shiksha And Another
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Nagendra Nath Mishra
Counsel for Respondent :- C.S.C.
Hon'ble Siddharth,J.
Heard Shri Nagendra Nath Mishra, learned counsel for petitioners, learned Standing Counsel for respondent Nos. 1 to 3 and perused the record.
The instant writ petition under Article 226 of Constitution of India has been filed by the petitioner, Committee of Management, Dr. Ambedkar Shiksha Niketan Junior High School, Basharatpur, Gorakhpur and its manager for a direction to the respondent No. 2, District Basic Education Officer, Gorakhpur to permit the petitioner to advertise the post for selection and appointment on the post of clerk, which fell vacant w.e.f. 31.01.2021 due to retirement of one Chandi Prasad .
Learned counsel for the petitioner in support of his contention has relied upon the judgment of this Court dated 24.09.2021 passed in Writ A No. 5418 of 2019 (C/M, Manorama Kanya Junior High School, Moradabad and another vs State of U.P. and others) and submits that in pursuance of the aforesaid judgment, the petitioner is entitled to fill up the post of clerk. The relevant portion of aforesaid judgment i.e. paragraph Nos. 34 and 35 are quoted as under:
"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."
Learned Standing Counsel on the basis of instructions submits that in view of the Government Order dated 15.01.2019, the post of clerk is reserved under dying cadre and cannot be filled up by way of direct recruitment.
The Government Order dated 15.01.2019 has already been quashed by this Court in the case of C/M, Manorama Kanya Junior High School, Moradabad (supra) vide order dated 24.09.2021.
Learned Standing Counsel further submits that the said judgment dated 24.09.2021 passed by the Single Judge has been challenged in Special Appeal (Defective) No. 30 of 2022, which is pending before this Court.
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. 1.4.2016 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.
Order Date :- 19.5.2022
Atul kr. sri.
