C/M S.M. National Inter College ... vs State Of U.P. And 2 Others
2023 Latest Caselaw 27971 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:195875
 
Court No. - 35
 

 
Case :- WRIT - A No. - 15137 of 2023
 

 
Petitioner :- C/M S.M. National Inter College And 2 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Sankalp Narain,Hritudhwaj Pratap Sahi,Samarath Singh,Srivats Narain
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Vikas Budhwar,J.

Heard Sri Samarath Singh, learned counsel for the petitioners who are three in number and Sri Saurabh learned Standing Counsel, who appears for respondents 1, 2 and 3.

The case of the writ petitioner is that there happens to be an institution by the name of S.M. National Inter College, Machchati, Ghazipur, petitioner no.1 which is a minority institution confirs with certain protection under Article 30 of the Constitution of India duly recognised and governed under the provisions of the U.P. Intermediate Education Act, 1921 and the provisions of U.P. Act No. 24 of 1971 stands applicable. As per the writ petitioner there are four sanctioned post in Clerical cadre, one post of Head Clerk and three post of Assistant Clerk.

In para 9 of the writ petition it is asserted that under Chapter III, Regulation-2 of the Intermediate Education Act, 1921 out of four posts of clerical cadre, 50% of the said post, two posts are filled up through promotion and two post by direct recruitment. According to the writ petitioner one post of Head Clerk was filled up by way of promotion of one Sri Abdul Kalim and one post of Assistant Clerk was filled up by direct recruitment i.e. Sri Abu Lais. Thus two posts of Assistant Clerk fell vacant which were to be filled one by direct recruitment and second by promotion. It is further the case of the writ petitioner that one Suhail Ahmad was appointed by way of compassionate appointment on 7.3.1994 and since there was no Class-IV employee eligible or qualified possessing CCC certificate for being accorded promotion so proceedings was undertaken by the Committee of Management of the institution to fill up the said post by direct recruitment. It is further the case of the writ petitioner that a letter dated 2/3.8/2021 was sent by the Committee of Management of the institution in question to the third respondent for according prior permission as envisaged under Chapter-III Regulation 101 of the Intermediate Education Act, 1921.

Since no prior permission was accorded so the institution in question proceeded to advertise the said post while publishing the advertisement in two news papers on 21.10.2021 and 22.10.2021 in Kashi Varta and the Pioneer.

According to the writ petitioner on 7.11.2021 was the date fixed for interview and on the basis of the recommendation of the selection committee an appointment order is being stated to be issued on 8.11.2021 in favour of the petitioner no.3, Nasir Alam and one Sri Ali Ahamad. Papers were forwarded by the Committee of Management of the institution in question to the third respondent, District Inspector of Schools, Ghazipur for according approval on 9.11.2021.

In the meantime according to the writ petitioner on 9.9.2022 one of the incumbents was absorbed on the vacant post of Assistant Clerk against the supernumerary post against dying in harness quota.

In para 21 of the writ petition it is further asserted that the writ petitioner, Committee of Management is not pressing his claim for second post of Assistant Clerk, the appointment of Ali Ahmad at this juncture. However, according to the writ petitioner on 30.12.2022 the third respondent, District Inspector of Schools, Ghazipur had proceeded to refuse financial sanction/approval of the petitioner no.3.

Challenging the said order the writ petitioner preferred Writ-A No.837 of 2023 which came to be disposed of on 23.2.2023 while quashing the order in question and remitting back to back to the third respondent, District Inspector of Schools, Ghazipur.

Post remand now the order impugned has been passed by the third respondent, District Inspector of Schools, Ghazipur on 27.6.2023 again negating the claim of writ petitioner.

Questioning the order dated 26.7.2023 the present writ petition has been preferred. This Court entertained the writ petition on 21.9.2023 while passing the following orders :-

"Heard Sri Sankalp Narain, learned counsel for the writ petitioners who are three in number as well as Sri Gaya Prasad Singh, learned Standing Counsel who appears for the respondents no. 1 to 3.

The contention of the learned counsel for the writ petitioner is that the order dated 27.6.2023 passed by the third respondent, District Inspector of Schools, Ghazipur proceeds on misconception of facts and law particularly in view of the fact that the writ petitioner, Committee of Management, S.M. National Inter College, Machchati, Ghazipur is a minority institution bestowed with certain protection under Article 30 of the Constitution of India. According to him in the said institution there are four sanctioned Class-III post one being of Head Clerk and three of Assistant Clerk and in view of the Chapter-III Regulation-2 of the Intermediate Education Act, 1921 when two posts are to be filled up by direct recruitment, two by promotion and so far as the post Head Clerk is concerned the same has been filled up by promotion of one Sri Abdul Kaleem and the post of Assistant Clerk has been filled up direct recruitment i.e. Sri Abu Lais, thus two posts were vacant however in between one Suhail Ahmad was appointed on 7.3.1994 on compassionate ground, thus the two posts earmarked for direct recruitment stood filled, however in the wake of the fact that none of the candidates were found eligible and suitable for being promoted to Class-III post in the wake of the fact that they did not possess CCC certificate so a resolution was passed on 2/3/.8.2021 by the Committee of Management of the petitioner no.1 in question resolving to accord appointment to the petitioner no.3 as Assistant Clerk while issuing advertisement in news paper.

On 30.12.2022 the District Inspector of Schools, Ghazipur proceeded to negate the claim of the writ petitioner on the ground that before issuing appointment to third respondent before making selection no prior permission under Chapter-III Regulations 101 of the U.P. Intermediate Act, 1921 and other issues with regard to the non filling up the posts while promotion was also taken so the writ petitioner preferred Writ-A No.837 of 2023 which came to be allowed on 23.2.2023 while setting aside the order remitting the matter back however now on 27.6.2023 against the said order has been passed on the ground that no prior permission was accorded and post in question was to be filled through promotion.

Sri Sankalp Narain, learned counsel for the writ petitioners seeks to rely upon the decision in Writ-A No.13182 of 2019, Manoj Kumar Jain vs. State of U.P. and 4 others in which the judgement in the case of Abhishek Tripathi vs. State of U.P. reported in 2016 Vol.1 ADJ Page 603 and other judgements have been considered whereby it has been held that non grant prior approval before making selection in pursuance of Chapter-III Regulations 101 is not fatal. He further submits that once there was no candidate available to be accorded promotion then the post cannot be said to be unfilled particularly when the functioning of the institution is being hampered.

Matter requires consideration.

Sri Gaya Prasad Singh, learned Standing Counsel who appears for the respondents no. 1 to 3 seeks time to obtain instructions/file affidavit. He shall file the response by 6.10.2023 and shall serve the copy of the response to the learned counsel for the writ petitioner by 6.10.2023. Rejoinder be filed by 10.10.2023.

Put up this case on 11.10.2023 as fresh."

Today, Sri Saurabh learned Standing Counsel who appears for the respondents has produced before this Court instructions under the signature of the third respondent, District Inspector of Schools, Ghazipur dated 29.9.2023. He has made a statement at bar that since the order which is subject matter of challenge is an order passed by the third respondent, District Inspector of Schools, Ghazipur and the said authority has even provided instructions thus he does not propose to file any response in view of the nature of the order proposed to be passed today.

Sri Samarath Singh, learned counsel for the petitioners while assailing the order dated 27.6.2023 passed by the third respondent, District Inspector of Schools, Ghazipur has sought to argue that the said order cannot be sustained even for single moment particularly in view of the fact that once the institution in question is minority institution then the provisions contained under Chapter-III Regulation 101 of the Intermediate Education Act, 1921, would not apply as no prior permission is to be accorded in this regard.

Learned counsel for the writ petitioners seeks to rely upon a recent judgement in the case of Manoj Kumar Jain vs. State of U.P., Writ A No.13182 of 2019 decided on 9.5.2022 wherein reliance has been placed upon the judgement in the case of Jagdish Singh vs. State of U.P. 2006(2) UPLBEC 1851. According to the writ petitioners the order in question though recites that there happens to be sanctioned post of one Head Clerk and three Assistant Clerk and one Sri Akhilesh Sidhqui had been appointed through direct recruitment on the post of Assistant Clerk and Sri Abdul Kalim was accorded promotion on the post of Head Clerk thus two posts became vacant and against one post on 30.6.2001 Sri Jaleeludin also stood retired. He thus submits that there exist already a vacancy which is to be filled up through direct recruitment as it is the consistent stand of the writ petitioner, Committee of Management that none of the Class-IV employees had staked their claim for being accorded promotion in the Class-III post probably on the ground that they did not possess the eligibility with regard to CCC certificate. He thus submits that the order in question skips and overlooks crucial aspects which are germane for deciding the issue in question.

Sri Saurabh learned Standing Counsel submits that the writ petitioner might be right in contending that there is a judgement in the case of Manoj Kumar Jain (Supra) that prior approval is not to be taken before making any exercise but according to him the matter be remitted back to the respondents to pass a fresh orders strictly in accordance with law after evaluating each and every aspect of the matter thereafter afresh order be passed.

To such a submission, learned counsel for the petitioners have no objection and he gracefully accepts the same.

Normally, in ordinary circumstances this Court would have undertaken the task on deciding the matter on merits but as rightly pointed out by Sri Saurabh learned Standing Counsel that the issues need redetermination by the third respondent, District Inspector of Schools, Ghazipur while giving a fresh look thus this Court is not venturing into the said aspect of the matter leaving it open to the third respondent, third respondent, District Inspector of Schools, Ghazipur to pass a fresh order.

Consequently, the writ petition stands decided in the following terms:-

(a) order dated 26.7.2023 passed by the third respondent, District Inspector of Schools, Ghazipur is set aside (b) post remand the writ petitioners shall approach the third respondent, District Inspector of Schools, Ghazipur along with the comprehensive representation and self-attested copy of the writ petition (c) third respondent, District Inspector of Schools, Ghazipur, who shall on the receipt of the same, proceed to decide the claim of the petitioner strictly in accordance with law within a period of three months from the date of presentation of the certified copy of the order bearing mind (i) the issue with regard to minority status so claimed by the writ petitioner as well as the judgment in Manoj Kumar Jain (Supra) and Jagdish Singh (Supra) (ii), availability of the vacancies (iii) the issue with regard to the claim of the none of the Class-IV employees were eligible or suitable.

Since this order has been passed on the concession of the parties thus the passing of this order may not be construed to be an expression that this Court has gone into the merits of the case.

With the aforesaid observation, the writ petition is disposed off.

Instructions filed today are taken on record and marked as Appendix-A.

Order Date :- 11.10.2023

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