Harish Chandra Rai vs State Of U.P. And 2 Others
2023 Latest Caselaw 27207 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:191217
 
Court No. - 35
 

 
Case :- WRIT - A No. - 11626 of 2023
 

 
Petitioner :- Harish Chandra Rai
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Yashpal Yadav,Lalji Yadav
 
Counsel for Respondent :- C.S.C.,Shilpa Singh Sikarwar
 

 
Hon'ble Vikas Budhwar,J.

Heard Sri Yashpal Yadav, learned counsel for the petitioner, Sri Shailendra Singh, the learned Standing Counsel, who appears for Respondent nos. 1 and 2 and Ms. Shilpa Singh Sikarwar, who appears for the third respondent.

The case of the writ petitioner is that there is an Institution by the name of Panchayat Inter College, Khanpur, Saraymeer, Azamgarh, which is an institution recognized under the provisions of U.P. Intermediate Education Act, 1921 and the provisions of U.P. Act No.24 of 1971 are applicable. As per the writ petitioner, in the Institution in question, one Sri Chandrika Yadav, a regular Class-IV employee superannuated on 31.07.2022 on attaining the age of superannuation followed by Sri Ram lal, a regular Class-IV employee on 31.03.2013. Owing to arising out of two substantive vacancies of Class-IV posts, the Principal of the Institution in question sought permission from the District Inspector of Schools, Azamgarh seeking approval in that regard. In paragraph-5 of the writ petition, it is further asserted that though the approval was sought, but no order in writing granting approval was passed, but on the oral permission of the District Inspector of Schools, Azamgarh, the third respondent proceeded to publish an advertisement in daily newspapers 'Swatantra Chetra' and 'Pioneer' on 03.03.2013 and thereafter the writ petitioner claims to have been selected. An appointment order was also issued in favour of the writ petitioner on 17.03.2013 and the writ petitioner further claims to have joined on 19.03.2013 and thereafter according to the third respondent transmitted the entire papers to the second respondent, the District Inspector of Schools, Azamgarh on 20.03.2013. However, the file, which was sent for approval, was returned back on 02.05.2023 by the District Inspector of Schools, Azamgarh on the grounds that in the wake of Government Order dated 06.01.2011, the selections on the Class-IV post was forbidden.

Questioning the order dated 02.05.2013, the writ petitioner along with others preferred Writ-A No.27056 of 2013, Harish Chandra Rai and others vs. State of U.P., which came to be decided on 14.05.2023 by setting aside the order in question remitting the matter back to the District Inspector of Schools, Azamgarh to pass fresh orders in the light of the fact that the Government Order dated 06.01.2011 had already been set aside. As per the writ petitioner, he kept on representing the matter before the District Inspector of Schools, while making communications, however, now an order has been passed on 24.04.2023 by the District Inspector of Schools, Azamgarh, whereby the claim of the writ petitioner for being accorded approval on the post in question has been negated.

Sri Yashpal Yadav, learned counsel for the writ petitioner while assailing the order submits that there are virtually two grounds on which the claim of the petitioner has been negated; firstly, that there existed a Government Order dated 06.01.2011 whereby the selections on the Class-IV posts could not have been made and, secondly, as per the stand of the Principal of the Institution in question the writ petitioner had never performed any duties in the Institution and further nobody is even aware about the face of the writ petitioner.

This Court entertained the writ petition on 21.07.2023 while passing the following orders:

"Sri Yashpal Yadav, learned counsel for the writ petitioner submits that the order dated 24.04.2023 passed by Respondent no.2, District Inspector of Schools, Azamgarh proceeds on misconception of facts and law, particularly in view of the fact that as per the writ petitioner, pursuant to the superannuation of the Class-IV employees, namely Chandrika Yadav on 31.07.2002 and Ram Lal on 31.03.2013, two vacancies fell vacant against which, the third respondent-institution conducted selections while advertising the said vacancies in widely circulated newspapers.

It is further the case of the writ petitioner that the selections were conducted and the writ petitioner obtained highest quality point marks and the papers were sent to the District Inspector of Schools for seeking approval, then on 02.05.2013, the latter did not accord financial approval or transmitted the same to the Director of Education, U.P. on the pretext that there is already a Government Order dated 06.01.2011 forbidding the appointments on Class-IV posts as the same are to be filled through outsourcing.

Learned counsel for the writ petitioner submits that as per the validity of the Government Order dated 06.01.2011 is concerned, the same is subject matter of challenge of Writ-C No. 11760 of 2011 along with the connected writ petition, which came to be allowed on 21.03.2012 quashing the said Government Order and the writ petitioner faced with these circumstances, also filed Writ-A No. 27056 of 2013, Harishchandra Rai and another vs. State of U.P., in which the order dated 02.05.2023 of the District Inspector of Schools, Azamgarh was set aside and the matter was remitted back to it to pass fresh orders. It is further the case of the writ petitioner that though the order passed by the Writ-Court was of the year 2013 but the respondents slept over the matter. However, now, by virtue of the order dated 24.04.2023, the claim of the writ petitioner has been non-suited on the premise that first of all in the wake of the Government Order dated 06.01.2011, the selections could not have been accorded and secondly, as per the saying of the writ petitioner, that he has never discharged the duties on the said post in the institution in question.

Submission of the learned counsel for the writ petitioner is that now the ground with relation to the Government Order dated 06.01.2011 is no more available, as the same has been set aside by this Court that too in the writ petition of the writ petitioner and with regard to the fact that the writ petitioner was not allowed to perform the duties in question is concerned, it is the fault of the management of the institution in question for which the writ petitioner cannot be penalized and further the core issues ought to have been decided by the District Inspector of Schools as to whether the selection of the writ petitioner was in right perspective or not.

Matter requires consideration.

Sri Santosh Kumar, learned Standing Counsel appears for Respondent nos. 1 and 2.

Issue notice to Respondent no.3 by both ways. Steps be taken by 25.07.2023.

All the respondents shall file their respective counter affidavits within three weeks. Rejoinder, if any, may be filed within three days thereafter.

Before the next date fixed, the petitioner shall file the affidavit of service.

Put up on 21.08.2023 as fresh."

On notice, the third respondent has put in appearance through its counsel, Ms. Shilpa Singh Sikarwar, who has made a statement at Bar that she does not propose to file any response to the writ petition. A counter affidavit has been filed by the Associate District Inspector of Schools, Azamgarh dated 23.08.2023, to which a rejoinder affidavit has been filed.

So far as the issue with regard to the rejection of the claim of the writ petitioner for being accorded approval on Class-IV post is concerned referable to the Government Order dated 06.01.2011, it is the submission the learned counsel for the writ petitioner is that in the writ petition preferred by the writ petitioner, Writ-A No.27056 of 2013, this Court vide order dated 14.05.2013 had set aside the order dated 02.05.2023 while holding that the said ground is not available, as the Government Order dated 06.01.2011 has been set aside in the case of Committee of Management of Lala Baijal Memorial School, Lodhipur, Ghaziabad Vs. State of U.P. reported in 2012(4) ADJ 586. Thus any subsequent decision would not take away the right as the said judgment inter se parties has attained finality. Further the second ground, which is being sought to be put to service in order to negate the claim of the writ petitioner is with regard to the fact that the writ petitioner claims to have been working in the Institution in question without there being any approval, but the respondent-Institution denies work to writ petitioner, thus the writ petitioner's claim has been negated.

On a pointed query, being raised to the learned counsel for the writ petitioner, as to whether he was allowed to function on the post in question, he submits that he used to regularly approach the Principal of the Institution and remained present in the Institution, but he was not allowed to work and his signatures were not effected in the Attendance Register.

Ms. Shilpa Singh Sikarwar, who appears for the third respondent submits that it is the consistent stand of the Principal of the Institution in question, who is the appointing authority of the Class-IV employees, that the writ petitioner never performed duties and less to say that nobody even recognized the face of the writ petitioner.

Be that as it may, since disputed questions of fact are involved in the present writ petition, thus this Court is not in a position to either make roving enquiry, record evidences or to make a deeper scrutiny as insisted by the writ petitioner.

Accordingly, this Court declines to interfere with the order impugned in the writ petition, leaving it open to the writ petitioner to approach the competent Court of Law for redressal of his grievances in this regard.

With the aforesaid observations, the writ petition stands consigned to record.

Order Date :- 5.10.2023

N.S.Rathour