Cm Swami Devanand Pg College vs State Of Up And 2 Others
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Allahabad High Court

Cm Swami Devanand Pg College vs State Of Up And 2 Others on 2 February, 2024

Author: Ajit Kumar

Bench: Ajit Kumar

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:17988
 
Court No. - 34
 

 
Case :- WRIT - A No. - 1197 of 2024
 

 
Petitioner :- Cm Swami Devanand Pg College
 
Respondent :- State Of Up And 2 Others
 
Counsel for Petitioner :- Chandan Sharma,Alok Yati
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ajit Kumar,J.
 

1. Learned counsel for the petitioner is permitted to implead Deen Dayal Upadhyay Gorakhpur University, Gorakhpur as fourth respondent.

2. Heard Sri Chandan Sharma, learned counsel for the petitioner, Sri Vivek Rai, learned counsel for the respondent no.4 and learned Standing Counsel for the respondent nos.1, 2 and 3.

3. The petitioner who is Post Graduate College, affiliated to the fourth respondent, is aggrieved by non-action on part of respondent no.2 upon request already made by the petitioner for permitting it to make necessary appointments on different categories of post like Stenographer, one post of Library Clerk, one post of Lab Assistant (Physics).

4. The attention of this Court in the above regard has been drawn to the letters written on 19.09.2023, 11.10.2023 and 18.12.2023. It is submitted by learned counsel for the petitioner that the petitioner is entitled to make necessary appointments being the appointing authority as per statute 24.01 of the first statute of the University. Further the appointments to be made in tune with the provisions as contained in Statute 25.01 and following the procedure laid down in statute 25.06 (1,2,3,4,5,6). It is submitted further by learned counsel for the petitioner that it appears that on account of earlier ban being imposed by the State Government under the Government Order dated 15.3.2012 and clarified by further Government Order issued on 11.7.2013, the respondent authority has not been acting upon the request made by the petitioner. In this regard he further submitted that earlier also Principal of an institution namely, National Post Graduation College, Badhalganj, Gorakhpur had to approach this Court and it was after intervention of this Court that the authorities granted permission to fill up the vacancies lying vacant in that institution. It is further submitted by learned counsel for the petitioner that the issue/ controversy as to ban raised on account of the Government Order (supra) is no more res integra as in the case of C/M, Mahatama Gandhi Shanti Smarak Degree College and another vs. State of U.P. and two others in Writ A No.26271 of 2018 decided on 9.1.2019 the Court has held that the ban would not be taken to be operating any further in respect of the vacancies that has arisen subsequent to it and had been lying vacant. Reliance has been placed upon paragraph no.9 of the judgment which is reproduced hereunder:

"9. There is absolutely no justification for any such distinction to be drawn based upon the date specified i.e. 11.7.2013. Such a categorization/ classification can not be construed as a reasonable classification inasmuch as it would have no intelligible differentia or object which is sought to be achieved. The same Government Order dated 15.3.2012was pressed as being the ground for denial of permission for filling up vacancies in Intermediate institution also. The Government Order on 15.3.2012, was also followed by subsequent Government Order dated 23.5.2013. After taking note of both the Government Orders, this Court in Vipin Vs. State of U.P. and others, 2013 (7) ADJ 274, has been pleased to hold that ban would not be available for the purposes of denying institution to fill up the post itself. No specific provision has otherwise been shown to the Court under the applicable statutory scheme which could have been invoked for the purposes of issuance of Government Order dated 15.3.2012. The said Government Order, otherwise, is general in nature and its applicability upon the institutions of higher leaving stands lifted under the Government Order dated 11.7.2013. In that view of the matter, the order passed by the Director of Education dated 4.9.2018 cannot be sustained and is accordingly quashed."

5. It is further submitted that the said judgment was further appealed against in Special Appeal No.198 of 2020 which came to be dismissed by this Court vide detailed order dated 5.2.2021 and the judgment of the learned Single Judge therefore stood affirmed.

6. While affirming the order passed by the learned Single Judge, the Division Bench expressed the view that the appointments are made under the rules framed by the University and are not governed by any rules of State Government. Vide Paragraph 10, 11 and 12, the Court held thus:

"10. How letter dated 15.03.2012 can be made applicable on the University in reference to the post of clerk. It is to be filled as per the statute of the Purvanchal University and not under the Rules applicable to the service under the State.

11. At this stage, it would be necessary to clarify that the posts of Lecturers in teaching cadre is filled by the Government after selection by the Commission. For the post to be filled by the Government, the letter dated 15.03.2012 may be applicable. It cannot be for a post to be filled as per the statute of the University. The approval of the Director may be required. The imposition of ban is on filling of the posts and not on the approval. We are not going on the fact that how a college can manage its affairs without sufficient staff.

12. It is otherwise an admitted fact that no ban on the appointment of teachers was imposed. If that is so then how an Institution can run without Class III and Class IV staff is another issue to be debated but we are deliberately not touching this issue as the order dated 15.03.2012 is not under Section 66A of the Act of 1973."

7. Learned counsel for the petitioner thus submits that the said judgment of Special Appeal was also unsuccessfully challenged in Special Leave to Appeal No.8194 of 2021 which came to be dismissed on 9.7.2021 summarily. It is further submitted that even thereafter the authorities have not shown any inclination in granting necessary permission to fill up the posts. Therefore, the colleges approach this Court and this Court pass orders one in the case of National Post Graduate College vs State of U.P. and two others passed in Writ A No.10170 of 2021 and also in the case of Prayag Mahila Vidyapith Degree College vs. State U.P. and others vide Writ A No.1703 of 2022 in which the judgment of learned Single Judge and that of the Special Appeal have been relied upon.

8. Learned counsel for the petitioner further submits that subsequently the Director of Education has accorded permission and on the basis of that one such letter issued by the Director of Higher Education dated 13.01.2022 has been brought on record as annexure 7 to the petition.

9. Learned Standing Counsel appearing for the State-respondents could not dispute the authorities cited by the learned counsel for the petitioner.

10. Learned counsel for the University has also no objection in the event direction is issued to the competent authority to grant necessary permission in the light of the relevant laws laid down by this Court.

11. Having heard learned counsel for the respective parties and their argument raised across the bar I find substance in the argument advanced by learned counsel for the petitioner that the vacancies upon which the appointments have to be made either by direct recruitment or by permission, the procedure has been laid down in the first statute of the University.

12. Looking to the first statute, I find that the Statute 24.01 (1) provides the Committee of Management to be the appointing authority and Statute 25.06 (1) & (2) provides for Selection Committee to be constituted for the purposes of appointment to be made on the post in question regarding which permission is being sought.

13. Thus the entire procedure as has been laid down and the selection and appointments have to be made in tune with procedures prescribed for under First Statute of the University.

14. Looking to the total circumspect of the case in the light of the authorities cited before me, I find no justification for the second respondent to withold permission as sought by the present petitioner.

15. In the circumstances, this petition is disposed of with direction to the Director of Higher Education, Prayagraj, namely, the second respondent should immediately consider the case of the petitioner for grant of permission as per the request letter made by the petitioner-institution as back as on 6.12.2021, in the light of observations made above and the authorities discussed above.

16. The necessary order shall be passed by the Director of Higher Education, Prayagraj within a maximum period of 30 days of production of certified copy of this order.

Order Date :- 2.2.2024

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