Aditya Kumar Singh vs State Of U.P. And 4 Others
2024 Latest Caselaw 15809 ALL

Allahabad High Court

Aditya Kumar Singh vs State Of U.P. And 4 Others on 7 May, 2024

Author: Piyush Agrawal

Bench: Piyush Agrawal

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2024:AHC:81204
 

 
Reserved
 
Court No. - 36
 

 
Case :- WRIT - A No. - 8612 of 2022
 
Petitioner :- Aditya Kumar Singh
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Prakash Chandra Pathak, Shikha Pathak
 

 
HON'BLE PIYUSH AGRAWAL, J. 

1. Heard Shri Prakash Chandra Pathak, learned counsel for the petitioner and Ms. Shruti Malviya, learned Brief Holder for the State-respondents.

2. By means of this writ petition, the following prayer has been made:-

"(i) Issue a writ, order or direction in the nature of Mandamus commanding the respondent no.3 to accord the approval of appointment of the petitioner as Assistant Clerk in Janta Junior High School, Sohni, Kerakat, Jaunpur and pay the salary to the petitioner as Assistant Clerk along with other teaching and non-teaching staff of the institution.

(ii) Issue a writ, order or direction in the nature of Mandamus commanding the respondent no.3 to take into consideration the representation of petitioner (Annexure NO.15 to the writ petition) in accordance with law and keeping in mind the judgment and order dated 24.09.2021 passed by this Hon'ble Court in Writ-A No. 5418 of 2019.

(iii) ......

(iv) ......"

3. Brief facts of the case are that the the Janta Junior High School Sohani (in short "the institution"), Kerakat, District- Jaunpur is a recognized institution under the provision of U.P. Basic Education Act, 1972. The petitioner has been selected on non-teaching post as an Assistant Clerk in the institution. Vide order dated 14.12.1978, one post of clerk has been sanctioned. On 31.07.2016, one Mahendra Pratap Singh completed the age of superannuation and got retired. Thereafter, on 08.11.2016, respondent no.5 moved an application for permission to fill the vacant post and afterwards, reminders were sent on 17.04.2018 with regard to the same, but nothing was done. Thereafter, the Committee of Management preferred Civil Misc. Writ Petition No. 11709/2018, which was disposed of by order dated 14.05.2018, directing the respondent no.3 to accord consideration to committee of management claim within two months, but nothing was done. Therefore, the Committee of Management moved Contempt Application (Civil) No.413/2019 in which notices were issued. Thereafter, vide order dated 02.03.2019, the claim of the petitioner has been rejected against the said order the Committee of Management again preferred Civil Misc. Writ Petition No. 4951 of 2019, which was allowed by order dated 02.04.2019 giving certain directions therein and the order dated 02.03.2019 was quashed, but still the issue did not resolved by the authority concerned. Thereafter, the Committee of Management again preferred Contempt Application (Civil) No. 7346 of 2019 in which noticed were issued on 03.12.2019 directing the respondents to appear for framing of charges, but only compliance affidavit was filed. Again on 20.01.2020, compliance affidavit was filed annexing the same impugned order dated 16.01.2020. Thereafter, the Committee of Management of the institution preferred the Writ A No. 2593/2021, which was connected with the Writ A No. 5418 of 2019 (leading) and other writ petitions and this Court passed the order dated 24.09.2021 in the said bunch of cases and the Government Order dated 15.01.2019 was quashed and the institution was permitted to appoint Class-II and Class IV employees. Thereafter, the Committee of Management has issued advertisement in two newspapers namely Pioneer on 09.12.2021 and Aaj on 09.12.2021 having wide curculation in the vicinity of the institution. After due process, a letter was sent on 18.12.2021by the Committee of Management to the BSA in regard to appointment of clerk, but nothing was done, then again sent a letter on 01.01.2022. Thereafter, after completion of all procedures of appointment, selection was made of the petitioner. In pursuance thereof, a letter was sent on 12.04.2022 to the BSA for approval of the appointment of the petitioner, but nothing was done by the respondent no.3, then the petitioner moved application 25.04.2022 and 02.05.2022 to the respondent no.3 in regard to his approval of appointment and salary, but the respondents are sitting tight over the matter. Hence, the present writ petition.

4. Learned counsel for the petitioner submits that in the earlier round of litigation, the claim of the petitioner was rejected only on the ground of Government Order dated 15.01.2019. The said Government Order has ben set aside by this Court in Bunch of cases (learding Writ-A No.5418 of 2019), Writ-A No.5293 of 2021 was also allowed in same terms. Counsel for the petitioner prays that a mandamus be issued directing the respondents to accord approval of appointment of the petitioner as an Assistant Clerk in the institution and pay salary along with arrears. He prays for allowing the present writ petition.

5. Per contra, learned Standing Counsel submits that the post of clerk has been declared as dying cadre, therefore, no permission can be granted. He further submits that authorities have acted in accordance with law. He prays for dismissal of the writ petition.

6. After hearing the parties, the Court has perused the records.

7. It is not in dispute that one clerk post was sanctioned as non-teaching staff. From the said post, Mahendra Pratap Singh retired on 31.07.2016 and thereafter, the Committee of Management was continuously pursuing for appointment of suitable candidate on the vacant post, but in vain. The record further reveals that the Government Order dated 15.01.2019 was issued declaring Class-III and Class- IV for the institution in the State as Dying Cadre. The Said G.O, was challenged by the various institutions and on 24.09.2021,in bunch of cases; leading Writ A No. 5418 of 2019, the same was quashed. The relevant paragraphs i.e. 34 & 35 of order dated 5418 of 2019 are reads 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"

8. In pursuance thereof, record reveals that advertisements were issued in two local newspapers namely; Pioneer and Aaj having wide circulation in the vicinity of the institution. Thereafter, the appointment has been made by the Committee of Management, but in spite of being letter sent for approval of the appointment, respondents chose not to grant approval. In the counter affidavit, in various paragraphs have been recorded that the G.O. dated 15.01.2019 has already been declared as arbitrary, irrational, suffering from non application of mind and violative of Articles 14 & 21-A of the Constitution of India. Therefore, once the G.O. dated 15.01.2019 has been set aside, and no material has been placed before this Court to show otherwise i.e. that the order passed in Writ -A No.5418 of 2019 (C/M, Manorama Kanya Junior High School, Moradabad, and Another Vs. State of U.P. And 2 Others) has not been set aside, reversed or modified by the Competent Court. Further, the counsel for the respondents neither in the counter affidavit nor at the time of hearing, have brought any material, rule or G.O. to show otherwise.

9. In view of the above, the impugned orders cannot sustain in the eye of law and is hereby quashed. The Writ petition is allowed, accordingly.

10. A mandamus is issued to the respondent no.3 to accord the approval of the appointment of the petitioner as Assistant Clerk forthwith and pay the salary to the petitioner.

Order Date :- 07.05.2024

Pravesh Mishra/-