C/M Sri Shanker Ji Inter College ... vs State Of U.P. And Others
2023 Latest Caselaw 23121 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:171595
 
Court No. - 35
 

 
Case :- WRIT - A No. - 44258 of 2010
 

 
Petitioner :- C/M Sri Shanker Ji Inter College And Another
 
Respondent :- State of U.P. and Others
 
Counsel for Petitioner :- J. P. Singh,Gautam Baghel,P. Singh,R.S. Singh,Ram Pravesh Pandey
 
Counsel for Respondent :- C. S. C.,Adarsh Singh,Indra Raj Singh,Kedar Nath Mishra,Neeraj Pandey,R.S. Singh,Samarath Singh 
 
With
 
Case :- WRIT - A No. - 10614 of 2023 (Connected-I)
 

 
Petitioner :- C/M Sri Shanker Ji Inter College And Another
 
Respondent :- State Of U.P. And 9 Others
 
Counsel for Petitioner :- Ram Pravesh Pandey
 
Counsel for Respondent :- C.S.C.,Anand Prakash Srivastava,Sugendra Kumar Yadav
 
With
 
Case :- WRIT - A No. - 10838 of 2023 (Connected-II)
 

 
Petitioner :- Rajesh Kumar And 4 Others
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Kedar Nath Mishra,Samarath Singh,Sr. Advocate
 
Counsel for Respondent :- C.S.C.
 
Hon'ble Vikas Budhwar,J.

1. Writ A No. 44258 of 2010 (C/M Sri Shankar Ji Inter College Azamgarh & Others Vs. State of U.P. & 9 Others), Writ A No. 10614 of 2023 (C/M & Others Vs. State of U.P. & 9 Others (Connected-1), Writ Petition No. 10838 of 2023 (Rajesh Kumar & Others Vs. State of U.P. & Others) (Connected-2)

2. Since common question of fact and law are involved in all the three writ petitions, thus, they have been consolidated together and with the consent of the parties, the same are being decided by common order.

3. Heard Sri Prabhakar Awasthi along with Sri Ram Pravesh Pandey, learned counsel for the writ petitioners in the leading, connected-1, learned Standing Counsel who appears for the official respondent as well as Sri V.K. Singh learned Senior Counsel assisted by Sri K.M. Mishra, learned counsel for the private respondents/employees.

4. The brief facts of the case case shorn off unnecessary details are that there is an institution by the name and style of Sri Shankar Ji Inter College, Pushpnagar, Azamgarh which is recognized under the provisions of U.P. Intermediate Education Act, 1921 and the provisions of the U.P. High School and Intermediate College (Payment of Salaries of Teachers and other Employees) Act, 1971 are applicable.

5. The writ petitioners in the leading writ petition claim to be the validly elected Committee of Management of the institution in question authorized and competent to put the motion before this Court by means of the present writ petition.

6. Pleadings reveal that in the institution in question commensurate to the sanctioned strength of the fourth class employees as many as five posts of class employees was vacant and as per the reservation policy so applicable there dated 11.08.2008 two posts were earmarked for Scheduled Caste Category and three post of General Category. In the impugned order, it has been recited that prior approval of the District Inspector of Schools, Azamgarh was obtained and thereafter as per the parties in question an advertisement was published in widely circulated newspapers on "Aaj" and "Dainik Dewal" pursuant whereto a selection committee was constituted and the private respondents in the leading and the connected-1 writ petition and the petitioners in the connected-2 writ petition appeared in the selection. It is further the case of the parties that the employees who claim to have been selected in pursuance of the said selection were not accorded approval of their appointments so they preferred writ petition no. 27549 of 2010 (Rajesh Kumar & Others Vs. State of U.P.) which came to be decided on 14.05.2010 whereby the following orders were passed.-

"Heard Sri Saroj Yadav, learned counsel for the petitioner and learned Standing Counsel for the State-respondents.

The petitioners were duly selected on the post of Class IV/Peon in the College after approval of the District Inspector of Schools, the appointment letter were issued to the petitioners. They are working from the date of appointment but the salary has not been paid to them. The petitioner has drawn the attention of this Court to the letter dated 20.7.2009 as contained in Annexure-8 to the writ petition, wherein the principal has requested the District Inspector of Schools to take decision regarding the approval of the petitioner's appointment but nothing has been done.

The matter needs no adjudication from the Court.

The learned Standing Counsel does not have any objection, if the petition is finally disposed of today itself.

Accordingly, District Inspector of Schools is directed to look into the matter and pass appropriate order on the application sent by the principal dated 20.7/2009 within a period of one month from the date of production of certified copy of this order before him.

The writ petition is finally disposed of."

7. Pursuant to the same now the order impugned dated 22.06.2010 has been passed by the DIOS, Azamgarh, third respondent in the leading writ petition whereby approval has been accorded to the appointment of the private respondents being the class IV employees who claim to have been appointed pursuant to the said selection.

8. Questioning the order dated 22.06.2010 passed by the third respondent, District Inspector of Schools, Azamgarh, the Committee of Management of the institution in question preferred writ petition no. 44258 of 2010 (leading writ petition) in which on 29.07.2020 the following orders were passed.-

"Learned Standing Counsel represents respondent nos. 1 to 4.

Issue notice to respondent nos. 5 to 10 fixing 6th August, 2010 as the date.

Petitioner to take steps within a week.

All the respondents may file counter affidavit by the next date fixed.

List on the date fixed.

Order impugned in the present writ petition passed by the District Inspector of Schools dated 22nd June, 2010 does not record any finding with regard to the compliance of the procedure prescribed in the mater of selection committee as explained by thsi Court in the case of Principal, Adarsh Intermediate College, Umari, Bijnor vs. State of U.P. & others reported in 2010 (1) ADJ 403, which has since been affirmed by the Division Bench of this Court under judgement and order dated 3rd December, 2009 passed in Special Appeal No. 1851 of 2009 (Principal, Adarsh Intermediate College Umari vs. State of U.P. & others). Consequently prima facie the order of the District Inspector of Schools approving the appointment dated 22nd June, 2010 papers to be illegal.

Petitioner has made out a prima facie case for grant of an interim order.

Till the next date of listing, operation of the impugned order passed by the District Inspector of Schools dated 22nd June, 2010 shall remain stayed."

9. Though interim protection was accorded to the Committee of Management in the said writ petition, however, it appears that on 22.11.2022 the writ petition was dismissed in default pursuant whereto a restoration application No. 36 of 2023 was also preferred by the Committee of Management (writ petitioners). Since there was no interim order existing at that relevant point of time so the DIOS Azamgarh thereafter proceeded to pass an order dated 26.04.2023 entitling the private respondent (employees) who claim to have been appointed on class IV post the salary and the other benefits. The same led to filing of writ petition no. 10614 of 2023 at the instance of the Committee of Management questioning the order dated 26.04.2023.

10. As the employees who claim to have been appointed in pursuance of the said selections were not being extended the benefit of the salary so they also preferred writ petition no. 10838 of 2023 (connected-2 writ petition) for a mandamus commanding the DIOS as well as the Management of the institution in question to ensure payment of current as well as arrears of salary. The aforesaid writ petitions got consolidated together and the same is before this Court. Since there was no opposition to the restoration application seeking recall of the order dated 22.11.2022 passed in the leading writ petition so the same was allowed on 16.08.2023 and the amendment application was allowed.

11. As already discussed above, all the three writ petitions relate to the same issue though at different stages, thus, with the consent of the parties the same are being decided compositely as a statement has been made by the learned counsel for the parties that they do not propose to file any further response.

12. Sri Prabhakar Awasthi along with Sri Ram Pravesh Pandey, learned counsel who appear for the Committee of Management have sought to argue that the order dated 22.06.2010 passed by the DIOS Azamgarh proceeds on misconception of facts and law and it is a classic case of illegality perpetuated to its optimum.

13. The submission is that the said order even completely omits and overlooks the minimum basic requirement which was to be undertaken at the end of the DIOS Azamgarh before proceeding to approve the appointment of the class IV employees. He in order to buttress his submission has sought to argue that with respect to the modalities on the basis whereof selection of class IV is to be conducted there exist a Governemtn Order dated 11.05.2001 which provides for the constitution of the selection committee which obviously includes one of the nominees of the District Magistrate and the said aspects of the matter even in fact is contemplated in the provisions of U.P. Direct Recruitment to Group-D Rules, 1986 which stand applied. He submits that there is already a judgment in the case of Principal, Adarsh Inter College, Umari, Bijnor Vs. State of U.P. 2010 (1) ADJ 403 which even in fact mandates that the selection committees to be constituted as per the 1986 rules and the Government Order dated 11.05.2001 which obviously comprises of the nominee of the District Magistrate, he submits that the said aspects of the matter has not been even touched by the DIOS Azamgarh while approving the selections as he has been completely swayed away on the considerations which are of least importance and relevance. Learned counsel for the writ petitioners in the leading writ petition has also invited the attention of the Court towards the judgment and order dated 09.12.2009 passed in Special Appeal No. 1851 of 2009 (Principal, Adarsh Inter College Umari Vs. State of U.P.) wherein the view of the learned Single Judge was affirmed. Learned counsel for the Committee of Management has also relied upon the full bench decision in the case of Harpal Singh Vs. State of U.P. reported in 2015 (3) ADJ 236 wherein the view taken in the case of Principal, Adarsh Inter College Umari (supra) was affirmed and the contrary view in the case of Smt. Shikha Sharma & Others Vs. State of U.P. 2008 (3) ESC 1584 was disapproved.

14. The submission is that the order in question be set aside and the matter be remitted back to the authorities to pass a fresh order in that regard.

15. Sri V.K. Singh, learned Senior Counsel who appears for the employees, on the other hand, submits that no doubt now there is a full bench of this Court in the case of Harpal Singh (supra) which has put the controversy to rest, however, in the present case the selection stood commenced on 11.08.2008 and at that point of time there was already a judgment in the case of Shikha Sharma (supra) which was governing the field and, thus, the selections of the employees were conducted as per the law so laid down at that point of time, thus, the selections cannot be said to be invalid on the ground that subsequently another view has been endoresed by the full bench of this Court. He further submits that the order in question is loud and clear which takes into account the total number of vacancies of class IV posts as well as the number of the candidates and of the categories to whom they belong.

16. Sri Shailendra Singh, learned Standing Counsel who appears for the official respondents seeks to support the stand taken by Sri V.K. Singh, learned Senior Advocate who appears for the employees. He submits that he has nothing to add as already the specific stand has been taken in the counter affidavit filed by the State respondents.

17. I have heard the learned counsel for the parties and perused the record.

18. Undisputedly, the institution in question where at the employees seek employment and have been engaged and selected is an institution governed under the provisions of U.P. Intermediate Education Act, 1921. The controversy with regard to the applicability of the 1986 Rules and the Government Order dated 11.05.2001 was at one point of time under cloud as there were two different views, in the case of Principal, Adarsh Inter College (supra) and Shikha Sharma (supra), however the same stood clarified and the issue was laid to rest in the case of Harpal Singh (supra). Now a question arises as to whether the High Courts under Article 226 can lay down any law have prospective operation or not. The said issue is no more res integra as the Hon'ble Apex Court in the case of I.C. Golaknath Vs. State of Punjab 1967 AIR SC 1643 has propounded the law that the doctrine of prospective ruling is only available to the Hon'ble Apex Court and the judgments of the High Courts are retrospective. Though the Government Order dated 11.05.2001 as well as the 1986 Rules as mandated by this Court has been held to be applicable while making selections to the class IV employees in the institution in question but as to whether the same has been adhered to or not needs adjudication. Though, this Court in normal circumstances, ordinarily the Court would have undertaken the task of deciding the issue on merits but as rightly stated by Sri Prabhakar Awasthi and Sri Pandey, learned counsel who appears for the Committee of Management, Sri V.K. Singh, learned Senior Counsel assisted by Sri Mishra, learned counsel for the employees as well as Sri Shailendra Singh, learned Standing Counsel the matter be considered at the first instance by the Education Authorities in that regard. According to them, a finding in black and white is to be returned in the order passed by them with regard to the selection procedure and the constitution of the selection committee vis-a-vis the eligibility and suitability of the employees in that regard.

19. Consequently, this Court is abstaining itself from delving into the said issue leaving it open for the DIOS Azamgarh to decide the issue. At this juncture, Sri Prabhakar Awasthi, who appears for the Committee of Management of the institution in question has submitted that the issue be decided by the Regional Level Committee in view of the Government Order dated 09.12.2000, however the same is being sought to be resisted by Sri V.K. Singh, learned Senior Counsel on the premise that there is already a direction by this Court pursuant whereto the order was passed whereby the DIOS Azamgarh was directed to consider the issue.

20. Considering the submission of the rival parties as well as the stand taken by them, the writ petition is being decided in the following terms; (a) the order dated 22.06.2010 passed by the DIOS Azamgarh is set aside; (b) the matter stands remitted back to the DIOS Azamgarh to pass a fresh order; (c) the DIOS Azamgarh shall fix a date on 19.09.2023; (d) on that date the Committee of Management of the institution in question and the employees shall appear before the DIOS Azamgarh; (e) it is open for the respective parties to put forward their submission based upon legal and factual issues and the same be exchanged between the parties; (f) on that date a date be fixed in the fourth week of September, 2023 for hearing of the matter; (g) hearing be done on that date; (h) orders be passed not later by the third week of October, 2023, the DIOS Azamgarh while proceeding to decide the controversy shall address the following fundamental and core issues; (i) the adherence of the Government Order dated 11.05.2001; (ii) the compliance of the provisions contained under the U.P. Direct Recruitment to Group-D post Rules, 1986; (iii) the constitution of the selection committee; (iv) the conduction of the selection at the hand of the selection committee (v) the eligibility and suitability of the incumbents who have claimed to be selected (vi) the continuance of the employees in the institution, in case, they are entitled for salary; (vii) any other incidental or ancillary issue attached to the controversy in question. The entire exercise is to be conducted strictly in accordance with law bearing in mind the observations made hereinabove and the directions contained in the judgment.

21. Since the leading writ petition (writ petition no. 44258 of 2010) has been allowed and the order of the District Inspector of Schools, Azamgarh dated 22.06.2010 has been quashed, thus, by all practical purposes virtually the connected writ petitions (writ petition no. 10614 of 2023 & writ petition no. 10838 of 2023) have rendered infructuous, no orders need to be passed in that regard.

22. With the aforesaid observations, the leading writ petition stands allowed and connected writ petitions are rendered infructuous.

Order Date :- 24.8.2023

Rajesh