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Allahabad High Court · body

2004 DIGILAW 784 (ALL)

Shanker Dayal Nigam v. Director, Higher Education

2004-04-09

SUNIL AMBWANI

body2004
SUNIL AMBWANI, J. ( 1 ) HEARD Sri R. K. Nigam for petitioner and learned Standing Counsel. Sri P. Padia appears for the College. ( 2 ) THE petitioner has prayed for quashing the order dated 13. 1. 2004 of the Joint Director of education (Higher Education), Allahabad by which he has refused to relax the maximum age of the petitioner and to give approval to the irregular appointment of petitioner made in April, 2003, after four years of the advertisement dated 26. 3. 1999. The petitioner has also prayed for regularising of his services the petitioner as Stenographer in the grade of Rs. 4500-7000 from retrospective effect giving him all the consequential benefits as per selection proceedings already drawn and approved. ( 3 ) THE facts giving rise to this petition are that the petitioner was engaged as Stenographer in bundelkhand College, Jhansi on daily wages since 1995. The post was advertised for selection on 26. 3. 1999. The selections were required to be made under Statutes 19. 3 (c) and (d) of the First statute of the University made under U. P. State Universities Act, 1973. Statute 19. 3 (4) provides that the salary shall not be paid until the selection is approved by the Director of Education (Higher Education) or any officer authorised by him in this behalf. It is contended that an advertisement was made in the newspaper pioneer on 26. 3. 1999 inviting applications for the post. The advertisement prescribed the minimum and maximum age as 18 years and 40 years respectively. The selections were pending for about 4 years. The reasons for delay have not been explained in the writ petition. In Para 15 it is stated that the selection proceedings were finalized by the Committee and the final panel was drawn on 20. 3. 2003 in which the petitioner was placed at SI. No. 1. In Para 18 it is stated that since the college was not having its management, the powers of approval were vested in the Authorised Controller to approve the panel vide Office order dated 20. 3. 2003. Thereafter the panel was required to be submitted to the Regional Higher education, Jhansi for approval. No. 1. In Para 18 it is stated that since the college was not having its management, the powers of approval were vested in the Authorised Controller to approve the panel vide Office order dated 20. 3. 2003. Thereafter the panel was required to be submitted to the Regional Higher education, Jhansi for approval. The Regional Higher Education Officer, Jhansi has found that the petitioner is 43 years and 6 months old, whereas the maximum age for appointment of a clerk is 35 years, and that the power of relaxation is only available with the Director of Education (Higher Education), U. P. , Allahabad. ( 4 ) THE Principal of the College sent a letter to the Regional Higher Education Officer, Jhansi on 20. 6. 2003 stating that the maximum age should be counted with reference to 1st July of the year of advertisement, and that as per Statute 19. 07 (1), the maximum age provided is 40 years, which could be relaxed with the prior sanction of the Director of Education (Higher Education ). The principal also requested for relaxation of age under Statute 19. 07. The Regional Higher education Officer by his order dated 6. 11. 2003 disapproved the selection on the ground that the maximum age provided in the Statute for a clerk is 35 years and that the advertisement dated 26. 3. 1999 in pioneer and swatantra Bharat is misleading. The Director of Education (Higher education), U. P. by the impugned order dated 13. 1. 2004, has found that the appointment in april, 2003 in pursuance of advertisement dated 26. 3. 1999 was irregular and that the request for relaxation of age after the selection not permissible. He has held that such a power can only be exercised in special circumstances before selections are made, for which the College must made recommendations giving special reasons. He has also found Court that there is a ban prevalent on fresh appointment. ( 5 ) DURING the course of arguments, Sri R. K. Nigam informed the Court that petitioner had filed a writ petition for regularising his service, which became infructuous after the selections and thus an application was filed by him for dismissing the writ petition as not pressed. The application was allowed and the Writ Petition No. 4875 of 2002 praying for regularising of the services was dismissed on 12. 2. 2004. The application was allowed and the Writ Petition No. 4875 of 2002 praying for regularising of the services was dismissed on 12. 2. 2004. ( 6 ) THE record of Writ Petition No. 4875 of 2002, was summoned. A perusal of the averments in the writ petition, supported by the affidavit of petitioner dated 27. 1. 2002 shows that he had claimed regularization on the strength of his appointment dated 5. 9. 1995 on daily wages. There was no averment in the writ petition that the posts were advertised for selection in the year 1999. A counter affidavit of Dr. Sanwat Singh, Assistant Director in the Directorate of Higher education, U. P. , Allahabad was filed in reply to he Writ Petition No. 4875 of 2002 on 3. 12. 2003 in which it was stated that the vacancy must be advertised under the Statutes 19. 03 (c), (d) and the names should also be called from relevant Employment Exchange, and that the Statute 19. 03 (4) provides that salary cannot be paid unless the selections held in accordance with statutes are approved. A letter of the Principal of Bundelkhand College, Jhansi dated 13. 2. 2003 sent to the Director of Education (Higher Education), U. P. , Allahabad annexed as Annexure-1 to the counter affidavit, states that the petitioner was appointed on the permanent vacancy of stenographer on the suspension of Rakesh Nigam on 5. 9. 1995 as daily wager at Rs. 40/- per day without following any procedure of selection by the Principal as well as by Sri Bhuvnendu arjaria, who was a Chairman of the Committee of Management. They had no right to appoint a class-III employee. There was a dispute between the Chairman and the Manager of the College at the relevant time and that no appointment could be made by the Committee of Management. There is no-resolution with regard to petitioners appointment in the records of the College. In para 2 it was stated that the petitioner Sri Nigam was not an employee appointed under the Rules and that the Principal Sri J. P. Agnihotri had engaged him on the request of Sri Bhuvnendu arjaria. There is no-resolution with regard to petitioners appointment in the records of the College. In para 2 it was stated that the petitioner Sri Nigam was not an employee appointed under the Rules and that the Principal Sri J. P. Agnihotri had engaged him on the request of Sri Bhuvnendu arjaria. He informed that at present there are 25 sanctioned posts of Class-Ill employees in the college out of 22 are regular employees and 4 employees, including the petitioner, are on daily wages out of which 2 have obtained interim orders from the High Court. All the Work in the college is being performed on computer and any fresh candidate to be employed must be a computer trained employee. ( 7 ) THE Court finds that the letter of the Principal dated 13. 2. 2003, counter affidavit of Dr. Sanwat singh as well as the averments made in the Writ Petition No. 4875 of 2002, do not refer to any advertisement dated 26. 3. 1999 made by the Principal of the College to fill up the post of stenographer. Dr. V. N. Pandey, Principal of the College in his information given to Director of education (Higher Education), U. P. , Allahabad did not mention about the pendency of any selection proceedings. In fact he opposed the appointment on the ground that he requested a computer trained person to be appointed. The present writ petition refers to some selection proceedings dated 20. 3. 2003 attended by Dr. V. N. Pandey, Principal of Bundelkhand University, jhansi as a Member of the Committee and Professor Sadan Ram Authorised Controller as chairman and 2 other Members. According to petitioner, the Regional Higher Education Officer, jhansi had rejected the approval on 18. 6. 2003. There is no reference of such selection, or rejection in the counter affidavit of Dr. Sanwat Singh, Assistant Director in the Directorate of (Higher Education), U. P. Allahabad on 23. 12. 2003. The Court, therefore, has strong doubts over the genuineness of the proceedings of the selection committee. ( 8 ) THE petitioner was required to explain, the details. In the supplementary affidavit of Sri S. D. Nigam, a list of dates has been given in which it is stated that permission was granted to fill up the post on 25. 2. 1999. A notification was issued on 26. 3. 1999 and a Shorthand/typing test was taken on 2. 5. 1999. In the supplementary affidavit of Sri S. D. Nigam, a list of dates has been given in which it is stated that permission was granted to fill up the post on 25. 2. 1999. A notification was issued on 26. 3. 1999 and a Shorthand/typing test was taken on 2. 5. 1999. On 31. 7. 2000 the District Magistrate appointed Sri R. C. Pandey as his nominee, and the file was held up in the office of Nominee from July, 2000 to November, 2001. The supplementary affidavit refers to some letter written by Dr. S. P. Pathak, Principal of the college to the District Magistrate, stating that where proceeding of selection have not been held for about four years the post is to be treated to be a dead post. The latter dated 22. 1. 2002 shows that the proceedings of selections were concluded but interviews were not held. ( 9 ) THERE is no mention of these facts either in this writ petition or in the previous writ petition and in the counter affidavit of Dr. Sanwat Singh. ( 10 ) ON the facts taken out from the records of both the writ petition, 1 find that the advertisement, even if it was issued in the year 1999, could not be proceeded with and that the selection alleged to be held on 20. 3. 2003 could not be held in pursuance of the advertisement made four years ago. The petitioner has crossed the maximum age for direct recruitment. He was not given any exemption and there was no prior approval obtained for such selection from the director of Higher Education. In the facts and circumstances of the case, I find that the entire selection process, even if it was held, was illegal and that the petitioner has crossed the maximum age for direct recruitment. The writ petition is, accordingly, dismissed. . .