Uday Pratap Rai vs State Of U.P. And 5 Others
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Allahabad High Court

Uday Pratap Rai vs State Of U.P. And 5 Others on 30 May, 2024

Author: Piyush Agrawal

Bench: Piyush Agrawal

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


1
 
Neutral Citation No. - 2024:AHC:98702
 
RESERVED
 
Court No. - 36
 
Case :- WRIT - A No. - 3062 of 2019
 
Petitioner :- Uday Pratap Rai 
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Kailash Singh Kushwaha
 
Counsel for Respondent :- C.S.C., Mohammad Ali Ausaf
 

 
HON'BLE PIYUSH AGRAWAL, J. 

1. Heard Sri Kailash Singh Kushwaha, learned counsel for the petitioner, Mohammad Ali Ausaf, learned counsel for the respondent no.6 and Sri L.M. Singh, learned Standing Counsel 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 Certiorari quashing the order dated 14.01.2019 passed by the District Basic Education Officer, Varanasi/respondent no.4 (Annexure No.9 to this writ petition)

(ii) Issue a writ, order or direction in the nature of Mandamus commanding the respondent no.6 not to cancel the appointment of the petitioner in compliance of the order dated 14.01.2019 passed by the respondent no.4.

(iii) Issue a writ, order or direction in the nature of Mandamus commanding the respondent no.5 not to stop the salary of the petitioner in compliance of the order dated 14.01.2019 passed by respondent no.4.

(iv) Issue a writ, order or direction in the nature of Mandamus restraining the respondents from interfering in peacefully working of the petitioner on the post of clerk in Junior High School Janta Junior High School, Fattepur Katauna, Varanasi.

(v) ...........

(vi) .........."

3. Brief facts of the case are that the Manager of the Janta Junior High School, Fattepur Katauna, Varanasi (in brevity 'the institution') by letter dated 24.06.2019, sought permission from respondent no.4 for for advertising the post of Clerk, which was granted on 03.09.2015. In pursuance thereof, advertisement was issued in two daily newspapers having wide circulation namely; Rashtriya Sahara and Jan Varta on 24.06.2014 and 26.06.2016 respectively; wherein it was specifically mentioned that the interview will be held on 27.09.2015. Since the respondent no.4 nominated an observer by order dated 21.06.2016, therefore, the date fixed for interview was postponed for 03.07.2016. Thereafter, the interview was held on 03.07.2016 and thereafter, Selection Committee forwarded the list for approval to respondent no.4- District Basic Education Officer and the same was accorded by order dated 18.07.2016. In pursuance thereof, the appointment letter was issued on 18.07.2016 to the petitioner and the petitioner joined his services on 21.07.2016. Further, on some complaint against the petitioner, during pendency of enquiry, the salary of the petitioner was withheld by the respondent no.4. Thereafter, by order dated 06.08.2018, the approval of selection of the petitioner was cancelled by the respondent no.4 directing the Committee of Management to cancel the appointment of the petitioner. Being aggrieved by the said order, Writ-A No. 19012 of 2018 was filed by the petitioner, which was disposed of by order dated 07.09.2018 and the matter was remanded for deciding afresh. In pursuance of the said order, notices were issued to the petitioner, Committee of Management as well as alleged complainant namely Mohan Pandey and after hearing the parties, the impugned order has been passed. Hence, the present writ petition.

4. Learned counsel for the petitioner submits that after due approval granted by the respondent no.4-District Basic Education Officer, the advertisement was duly issued and thereafter, the interview was held in presence of nominee appointed by the District Basic Education Officer. Thereafter, on grant of approval from the District Basic Education Officer, the appointment letter was duly issued to the petitioner. In pursuance thereof, the petitioner joined his services and since then the petitioner has been discharging his services diligently. He further submits that in pursuance of the order of this Court in the aforesaid writ petition, the impugned order has been passed on three counts; firstly that the expert of typing was not there as well as there is no valuation of the typing speed of the petitioner; secondly, there is violation of Rule 4 (1) the U.P. Recognised Basic Schools (Junior High Schools) (Recruitment And Conditions Of Service Of Ministerial Staff And Group 'D' Employees) Rules, 1984 (for short "the Rules, 1984") and thirdly, on the ground that there is violation of Article 16 of the Constitution of India as well as the Selection Committee was not legally formed.

5. Counsel for the petitioner further submits that the petitioner possesses the due qualification of typing i.e 35 WPM and the certificate of the same has been issued by the recognized typing institute which was filed along with application, which has not been disputed, a copy of the same has been annexed as Annexure- 10 to the writ petition. He further submits that Rule-4 (1) reads with Rule 14 does not contemplate the presence of any typing expert during typing test and therefore, the ground no.1 taken in the impugned order, is not valid. He further submits that due to the unavailability of appointed nominee by the BSA, on the date mentioned in the advertisement, the interview was postponed for 3rd July, 2016, but before fixing the next date, the registered notice was sent to all candidates, copy of the same has been annexed as Annexure No.3 to the writ petition. He further submits that once the notices have been sent through registered post, fixing the next date, it cannot be any violation of either of the Rule 4 (1) of the Rules, 1986 or Article 16 of the Constitution of India. He further submits that the formation of the Committee as prescribed under Rule 4(1) of the Rules, 1984, consisting of Manager and the Principal as well as one nominee appointed by the BSA, cannot said to be illegally formed. In the case in hand, all the above three persons of the Committee was present in the interview so, the committee has been instituted as per the provision, therefore, the impugned order is illegally passed. He prays for allowing the present writ petition.

6. Per contra, learned Standing Counsel supports the impugned order by submitting that after grant of approval for advertisement, the advertisement was issued, which is not in dispute, but as per the provision, the age which has been prescribed is up to 14 years, whereas in the advertisement, only the upper limit age was fixed for 35 years. Once the advertisement issued is faulty as the same was not as per the requirement of law, therefore, any appointment made in pursuance thereof, cannot sustain in the eye of law. He further submits that the date of interview in the advertisement was fixed for 27.09.2015 and Since the nominee was not appointed till date by the BSA, but the same was appointed by order dated 21.06.2016, therefore, the date for interview was fixed for 3rd July, 2016 about which the notices were only sent by registered post, which is less than ten days for the date fixed. Further, for the appointment of Clerk, there is no physical examination/test of the petitioner having speed of 30 WPM, as required under Rule 4 (1) of the Rules, 1984, therefore, he tried to justify the impugned order. He prays for dismissal of the writ petition

7. On the contrary, counsel for the petitioner rebutted the said submission by stating that this Court in the case of Bhavga Srivastava and others Vs. State of U.P., and Others, 2001 (2) UPLBEC 1705 has held that the selection cannot be held illegal, if the committee has not properly been constituted. He prays for allowing the present writ petition.

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

9. It is not in dispute that the advertisement was issued after approval from the competent authority. It is also not in dispute that the petitioner has submitted his certificate of typing dated 11.06.2012 having 32 WPM in Hindi and 25 WPM in English. Further, the grounds taken in the impugned order regarding Rule 4 (1) of the Rules, 1984 i.e. there is no valuation of the speed and no typing expert was present during typing test, the Rule 4 (1) reads as under:-

"4. Minimum Qualification. - (1) The minimum qualifications for the post of clerk shall be Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh, or equivalent examination (with Hindi) and a minimum speed of 30 words per minute in Hindi typewriting."

10. On perusal of the afore-quoted rule, it only shows that the person should be possessed the speed of 30 WPM in Hindi and further, it does not contemplate about any typing expert as a member of the Committee, therefore, this ground cannot be justified. Further, the ground taken regarding violation of Article 16 of the Constitution of India to which the respondent has taken a ground that there was some defect with regard to the higher age limit as 35 years instead of 40 years. The record further reveals that there is no allegation against the petitioner for wrongly been appointed on the said post of Clerk; whereas, the petitioner has no control over the advertisement or approval. The Hon'ble Apex Court in paragraph no.34 of the case of Radhey Shyam Yadav and Ors. Vs. State of U.P. and Ors., AIR 2024 SC 260, has held as under:-

"34. We feel that the appellants were not at fault and the State could not have abruptly stopped their salaries. Accordingly, we set aside the judgments of the High Court dated 15.09.2021 in Special Appeal Nos.1435/2013 and 1445/2013 and direct that the State shall pay the salaries of the Appellants for the period from 25.06.1999 till January, 2022 in full. We also direct that in sofar as the period October, 2005 till today is concerned, the State shall pay the Appellants 50% of the backwages. Since the appointment order and the approval order are still in force, we declare that the Appellants have always been and are deemed to be in service. Apart from 50% backwages, as ordered above, we direct that all consequential benefits, including seniority, notional promotional, if any, and fitment of salary and other service benefits due, be granted to the Appellants. We direct the State to comply with these directions within four weeks from today. We also direct that the Appellants be allowed to commence work within the said period of four weeks."

11. In view of the facts and circumstances of case as well as judgment of Radhey Shyam Yadav (supra), no illegality so on the part of the petitioner is considered, can be attributed. Further, constitution of the Committee, as prescribed under Rule 14 of the Rules, 1984, suggests for the members to be Manager, Principal of the institution and Nominee of the BSA and the same was constituted as per the law and therefore, it is incorrect holding that the Committee was not competent for selection.

12. In view of the above, the impugned order cannot sustain in the eye of law and the same is hereby quashed.

13. Accordingly, the writ petition is allowed.

14. A mandamus is issued to the respondents concerned not to stop the petitioner from discharging his services and salary shall be paid to him month to month basis.

15. The petitioner is directed to be reinstated with all consequential benefits forthwith.

Order Date :-30.05.2024

Pravesh Mishra/-