Allahabad High Court
Smt. Rajeshwari vs State Of U.P. And 2 Others on 24 May, 2024
Author: Piyush Agrawal
Bench: Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:94202
Date of judgment Reserved: 20.5.2024
Date of Delivery: 24. 5.2024
Court No. - 36
Case :- WRIT - A No. - 68388 of 2013
Petitioner :- Smt. Rajeshwari
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- D.K. Singh,Saurabh Yadav,Shivam Yadav,V.K. Singh
Counsel for Respondent :- C.S.C.,Pranshu Gupta,Virendra Chaubey
Hon'ble Piyush Agrawal,J.
1. Heard Sri Shivam Yadav, learned counsel for the petitioner and learned standing counsel for the respondents.
2. By means of the present writ petition, the petitioner has prayed the following reliefs:'
(i) Issue a writ, order or direction in the natue of certiorari quashing the impugned order passed by the District Basic Education Officer (Annexure 11 to the writ petition).
(ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents to approve the appointment of the petitioner on the post of Headmistress.
3. The facts of the case are that the Institution in question is on the grant-in-aid list of the State Government as per the provisions of Payment of Salary Act, 1978. The Institution, namely, Durga Mandir Kanya Junior High School, Kutesara, Muzaffarnagar is a senior basic school and recognized under the provisions of Basic Education Act and the regulations framed thereunder. One post of Headmistress in the Institution was lying vacant on account of retirement of Headmistress Smt. Kusum Lata. For filling up the said vacancy the Institution moved an application before the District Basic Education Officer, Muzaffarnagar for making advertisement. By order dated 19.5.2010 the District Basic Education Officer, Muzaffarnagar granted permission for making advertisement to fill up the post. In pursuance thereof advertisment was issued in two newspapers, namely, 'Muzaffarnagar Bulletin' and 'Dainik Jagran'. In pursuance thereof selection process was completed and a resolution was passed by the Selection Committee of the Management in whch the petitioner was shown at Sl. No. 1. Thereafter relevant papers in respect of selection of the petitoner were forwarded to the District Basic Education Officer, Muzaffarnagar for approval vide letter dated 30.6.2010. Since the approval was not accorded, as per provisions and the Rules after one month the Committee of Management of the Institution issued appointment letter in favour of the petitioner on 3.8.2010. In the meantime some complaint regarding the appointment was filed, whereas the District Magistrate, Muzaffarnagar sommoned the original record. Thereafter by order dated 21.8.2010 the District Basic Education Officer, Muzaffarnagar held that the appointment letter should not have been issued to the petitioner without there being any approval of the same.
4. The petitioner, being aggriered with the order dated 21.8.2010 approached this Court by way of filing Civil Misc. Writ Petition No. 57376 of 2010 which was allowed by order dated 30.7.2013. In pursuance thereof the impugned order has been passed rejecting the claim of the petitioner. Hence the present writ petition.
5. Counsel for the petitioner submits that in pursuance of the aforesaid advertisement the petitioner possessed the due qualification and had participated in the selection process. After completion of the selection process the petitioner was selected at serial no.1 by the Selection Committee and relevant papers were forwarded to the Basic Shiksha Adhikari for approval but as contemplated under the Act after expiry of one month when no approval was granted, the Committee of Management issued appointment letter to the petitioner, which was cancelled by the District Basic Education Officer, Muzaffarnagar by order dated 21.8.2010 against which the petitioner filed a writ petition which was allowed by this Court by order dated 30.7.2013. He futther submits that the matter was remanded but an order was passed rejecting the claim of the petitioner on the ground that the advertisement had not been properly made as held by this Court in Civil Misc. Writ Petition No. 44682 of 2010 (Smt. Abha Rani vs. State of U.P. and others). He further submits that there may be some fault in the advertisement but the appointment of the petitioner should not be said to be procedurally illegal when on the basis of the advertisement the petitioner having possessed the due qualification appeared for interview and she was selected as serial no.1. He further sbumits that it is not the case of the respondents that the ptitioner has done any malpractice in connivance with the respondent. In support of his contention he has relied upon the judgments of Apex Court in Civil Appeal No. 7841 of 2011 (Man Singh vs. State of U.P. & Ors) decided on 31.3.2022; in Civil Appeal No. .. of 2024 (Arising out of SLP (C) No. 22241-42 of 2016 (Vinod Kumar & Ors vs. Union of India & Ors) decided on 31.1.2024 and in Radhey Shyam & Others vs. State of U.P. & othres (AIR 2024 SC 260) and prays for allowing the writ petition.
6. Per contra, learned counsel for the respondents supports the impugned order.
7. After hearing the learned counsel for the parties the Court has perusal the record.
8. In pursuance of the advertisement issued, the petitioner having possessed the due qualification applied for appointment on the post of Headmistress. Thereafter the selection process was undertaken and after interview the petitoner was selected. It is also not in dispute that the writ petition filed by Smt. Abha Rani (supra) was disposed holding that there was procedural irregularity in the advertisement and on the basis of the said observation the claim of the petitioner has been rejected. It is not the case of the respondents that the petitoner does not possess the requisite qualification for being appointed on the post of Headmistress. It is also not the case of the responent that the petitoner has colluded with the respondent and has committed malpractice for getting her appointment. The Apex Court in the case Radhey Shyam (supra) has held that in absence of any proof of commission of any malpractice by the appellant therein the appointment cannot be said to be illegal. Further the Apex Court in Man Singh (supra) has held as follows:
We find that the High Court has failed to consider the fact that even if the appointment was irregular, the appellant had discharged the duties and in lieu of duties, he had to be paid. The State cannot take any work from any employee without payment of any salary.
Consequently, we find the order passed by the State Government dated 24.12.1998 is wholly illegal and untenable. The High Court should have been appreciated the facts in the proper perspective and should have set aside the same. It appears that after the order was passed on 24.12.1998, the appellant was not working on the post of Principal.
Therefore, we set aside the order dated 24.12.1998 and direct the respondents to treat appellant as retired on the date of the order i.e. 24.12.1998 and to pay pensionary benefits, if any, due to him for the services rendered.
9. Recently the Apex Court in Vinod Kumar (supra) has held as under:-
7. The judgement in the case Uma Devi (supra) also distinguished between "irregular" and "illegal" appointments underscoring the importance of considering certain appointments even if were not made strictly in accordance with the prescribed Rules and Procedure, cannot be said to have been made illegally if they had followed the procedures of regular appointments such as conduct of written examinations or interviews as in the present case. Paragraph 53 of the Uma Devi (supra) case is reproduced hereunder:
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N. Nanjundappa [(1972) 1 SCC 409 :
(1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."
8. In light of the reasons recorded above, this Court finds merit in the appellants' arguments and holds that their service conditions, as evolved over time, warrant a reclassification from temporary to regular status. The failure to recognize the substantive nature of their roles and their continuous service akin to permanent employees runs counter to the principles of equity, fairness, and the intent behind employment regulations.
9. Accordingly, the appeals are allowed. The judgment of the High Court is set aside, and the appellants are entitled to be considered for regularization in their respective posts. The respondents are directed to complete the process of regularization within 3 months from the date of service of this judgment.
10 In the case in hand the appointment of the petitioner was cancelled on the allegation that certain irregulairty have been committed in the advertisement but the appointment of the petitioner cannot be held to be illegal as held by the Apex Court in the foregoing paragraphs.
11. In view of the above, the impugned order (Annexure 11 to the writ petition) cannot be sustained in the eye of law and is hereby quashed. The writ petition succeeds and is allowed. Mandamus is issued to the respondents not to disturb the petitioner from discharging her duties in the Institution as Headmistress and pay her all consequential dues in accordance with the rules.
Order Date :- 24.5.2024.
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