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Allahabad High Court · body

2010 DIGILAW 1470 (ALL)

RAM BHAWAN YADAV v. STATE OF U. P.

2010-05-05

A.P.SAHI

body2010
JUDGMENT Hon’ble A.P. Sahi, J.—The seven petitioners before this Court have prayed for quashing of the order dated 21.8.2008 passed by the Regional Level Committee headed by the respondent No. 3 whereby the selections in which the petitioners were selected as class IV employees in the institution in question has been set aside and directions have been issued for holding fresh selections after applying the reservation policy. 2. The dispute in short relates to selections against class IV posts in Lala Ram Lal Agrawal Inter College, Sirsa, District Allahabad. It is an institution governed by the provisions of U.P. Intermediate Education Act 1921 and the regulations framed thereunder. Chapter III of the Regulations contains the procedure prescribed for the purpose of selection on class IV posts of such an institution. The dispute arose when the selections were proceeded with by the Principal of the institution who is the appointing authority under Chapter I Regulation 10 of the Regulations. The permission was sought from the District Inspector of Schools (hereinafter referred to as the ‘D.I.O.S.’) under Regulation 101 of Chapter III. This permission was sought on the basis that twenty three sanctioned posts existed in the institution and the employees who were appointed since the institution was brought under the Payment of Salaries Act, were continuing to get salary from the State Exchequer. The claim of the institution was thus founded on the strength of payment of salary to twenty three class IV employees in the institution which continued upto the year 1985. With the passage of time and the retirement of class IV employees, the Principal of the institution proceeded to make a request to the D.I.O.S. to allow him to advertise the posts. This request of the Principal of the institution was granted by the D.I.O.S. vide letter dated 31.10.2005. (Annexure-2 to the rejoinder affidavit filed by the petitioners) A perusal of the said letter indicates that a permission was granted for holding the selection against sixteen posts after complying with the provisions of the Uttar Pradesh Group ‘D’ Employees Rules 1985. This request of the Principal of the institution was granted by the D.I.O.S. vide letter dated 31.10.2005. (Annexure-2 to the rejoinder affidavit filed by the petitioners) A perusal of the said letter indicates that a permission was granted for holding the selection against sixteen posts after complying with the provisions of the Uttar Pradesh Group ‘D’ Employees Rules 1985. Later on it appears that after the selections were held and the matter was placed before the D.I.O.S. for approval, the D.I.O.S. vide letter dated 28th November, 2006 returned back the papers to the Principal of the institution indicating therein that the selections do not appear to be in accordance with the norms fixed under the Government Order dated 20th November, 1977 and therefore, the selections should be accordingly modulated in accordance with the said Government Order. The D.I.O.S. also pointed out that there are seven employees still working in the institution and therefore, according to the D.I.O.S. a total number of eighteen sanctioned posts were only available in terms of the norms as prescribed under the Government Order dated 20.11.1977. The Principal of the Institution appears to have forwarded the selection papers under the letter dated 4.12.2006 whereafter the D.I.O.S. has referred the entire matter to the Regional Level Committee in view of the Government Order dated 19.12.2000. The recommendations were forwarded vide letter dated 20.12.2007. 3. The Regional Level Committee thereafter proceeded to process the claim of the petitioners as well as the other recommendations that had been made. The Committee vide order dated 9.4.2008 indicated that only fifteen posts would be available to the institution in terms of the Government Order dated 20.11.1977 and therefore out of the remaining eight vacant posts on which appointments could be made, the D.I.O.S. shall proceed to process the claim of seven class IV employees. After having received the said communication, the D.I.O.S. approved the appointment of the seven petitioners vide order dated 15.5.2008 which orders have been appended as Annexure-4 to the writ petition. 4. It appears that some complaint was made in respect of these selections and the payment of salary of the petitioners was stopped. The matter was again enquired into and the D.I.O.S. passed an order for withholding the payment of salary till the matter is not decided by the Joint Director of Education. 4. It appears that some complaint was made in respect of these selections and the payment of salary of the petitioners was stopped. The matter was again enquired into and the D.I.O.S. passed an order for withholding the payment of salary till the matter is not decided by the Joint Director of Education. The said order of the D.I.O.S. dated 14th July, 2008 was challenged by the petitioners in Writ Petition No. 36696/08 which was disposed of on 28th July, 2008 directing the Joint Director of Education to decide the representation of the petitioners. It is in this context that the Joint Director of Education proceeded to examine the matter. The impugned order dated 21st August, 2008 has been passed in pursuance of the aforesaid directions which is under challenge in the present writ petition. 5. The finding recorded by the Regional Joint Director of Education is that the calculation in accordance with the norms prescribed in the Government Order dated 20.11.1977 is wrong and only fourteen posts, in total, of class IV post are available in the institution. For this the Joint Director of Education has offered an explanation that since the institution does not run any classes in Agriculture Science therefore, it is only entitled to retain fourteen posts. Accordingly the Regional Joint Director of Education has found the calculation earlier made to the extent of fifteen posts and eighteen posts to be wrong. The impugned order further records that the reservation policy has not been correctly followed and the Principal has proceeded to make the appointments which is in violation of the norms fixed. No other finding has been recorded. 6. A counter-affidavit has been filed on behalf of the respondent District Inspector of Schools wherein it has been stated that the selections are also invalid on account of an incorrect advertisement and non compliance of the 1985 Rules. It may be recorded that these two reasons are not recorded in the impugned order and are in addition to the same which has been taken as a ground in the counter-affidavit for the first time. 7. It may be recorded that these two reasons are not recorded in the impugned order and are in addition to the same which has been taken as a ground in the counter-affidavit for the first time. 7. Sri K. Shahi, learned counsel for the petitioner assisted by Smt. Renu Srivastava contends that the impugned order proceeds on wrong assumptions of law and fact and the same is liable to be set aside inasmuch as the selections to the extent of seven posts is valid and secondly the principle of reservation as provided for has been wrongly applied. It is further contended that there has been compliance of 1985 Rules and the amended Rules which came into force w.e.f. 3rd July, 2008, would not apply as the selections are of the year 2005. It is further submitted that a specific ground was taken before the Joint Director of Education in regard to the publication of the advertisement in two widely circulated news papers, namely, Swatantra Bharat and Amrit Prabhat. Learned counsel contends that this aspect of the matter has not been found to be erroneous in the impugned order but the counter-affidavit wrongly contends otherwise. It is further submitted that such grounds are not available to be supplemented through the counter-affidavit keeping in view the law laid down by the Supreme Court in the case of Mohinder Singh Gill v. Chief Election Commissioner, 1978 AIR SC 851. 8. Countering the said submissions learned Standing Counsel contends that the entire selections are faulty inasmuch as the selections have not been held in accordance with the procedure prescribed in law and the proceedings were initiated on the basis of a totally wrong calculations of posts against the provisions of the Government Order dated 20.11.1977. Learned Standing Counsel further submits that once the selections are vitiated on account of such irregularities which are serious in nature then the entire selection should be set aside and fresh selection should be held as directed in the impugned order. He submits that even otherwise in law if it is found that the 1985 Rules have not been complied with, the selection cannot be upheld. 9. Heard learned counsel for the parties. The first issue is in relation to the applicability of the Government Order dated 20.11.1977. He submits that even otherwise in law if it is found that the 1985 Rules have not been complied with, the selection cannot be upheld. 9. Heard learned counsel for the parties. The first issue is in relation to the applicability of the Government Order dated 20.11.1977. Sri K. Shahi has relied on a decision of learned Single Judge of this Court dated 23rd July, 2009 in Writ Petition No. 33436/09, Prem Narain Sharma v. State of U.P. and others. He submits that the interpretation given therein clearly indicates that the second paragraph of the Government Order dated 20.11.1977 saves such appointments which have been made in excess of the norms prescribed. I have perused the said judgement which categorically holds that no appointment could be made in excess of the Government Order dated 20.11.1977. In case there are existing appointments in excess to the norms prescribed then it is open to the authorities to adjust such excess appointments in other institutions. In the case of Prem Narain Sharma (Supra) it was found as a matter of fact which emerged on the pleadings of that case that the D.I.O.S. and the Educational Authorities had not undertaken any exercise for pointing out the norms which are to be observed under the order dated 20.11.1977. This fault on the part of the educational authorities was made the basis for allowing the reliefs to the appointees who had approached this Court. It is therefore, evident that it was on these peculiar facts where the Educational Authorities had failed to perform their duty that the Court made an observation in favour of the employees. In my view the ratio of the said decision is clearly distinguishable inasmuch as the facts that emerge in the present case clearly raise a different issue for consideration. In the instant matter the D.I.O.S. according to the petitioners themselves had written a letter to the Principal of the institution on 28.11.2006 itself, much prior to the grant of approval or consideration of the Regional Level Committee that the selections have to be modulated in accordance with the G.O. Dated 20.11.1977. It is therefore, clear that in the instant case the Educational Authorities had pointed out the existence of the said Government Order and applications thereof before approval of selection. 10. It is therefore, clear that in the instant case the Educational Authorities had pointed out the existence of the said Government Order and applications thereof before approval of selection. 10. Apart from this, it is also evident that there is no dispute with regard to the norms fixed under the Government Order dated 20.11.1977. The aforesaid Government Order is not under challenge. The Government order categorically prescribes that no appointment should be made in excess of the norms as indicated therein. Merely because the Principal of the institution has initiated the proceeding and the D.I.O.S. erroneously granted the permission, the same would not crystallize any right conferred on the Principal to make appointment in excess of the norms. The Government Order therefore, lays down a blanket ban on future appointments in excess of the norms prescribed. In my opinion the Principal committed a manifest error by seeking an approval of selections in respect of posts which were in excess of the norms of the Government Order dated 20.11.1977 and to that extent the impugned order cannot be faulted with. The finding recorded by the Joint Director of Education therefore, fixing the number of posts available to the institution as fourteen, is absolutely correct and is a calculation made in accordance with the norms prescribed in the Government Order dated 20.11.1977. 11. The selections which have proceeded indicate that the petitioners were part of a selection in which sixteen appointments were allegedly proceeds. From a perusal of the impugned order it appears that the candidates proposed in the selection proceedings submitted by the Principal of the institution were in three categories. This is evident from the facts which have been recorded in the impugned order and is not disputed. The District Inspector of Schools was informed by the Principal through the letter dated 15.9.2006 that three candidates have been selected in the schedule caste category and five candidates in the O.B.C. Category. Similarly eight candidates were selected in the general category. The selections therefore, proceeded category wise applying the reservation policy. The selections therefore, were held under the impression that there were sixteen posts available and accordingly, the distribution was made category wise. It is thus evident that the selections which have been held are under an erroneous impression inasmuch as only seven posts were available whereas the selections have been held against sixteen posts in different categories. 12. The selections therefore, were held under the impression that there were sixteen posts available and accordingly, the distribution was made category wise. It is thus evident that the selections which have been held are under an erroneous impression inasmuch as only seven posts were available whereas the selections have been held against sixteen posts in different categories. 12. The question is whether the selection could have been held in the different categories provided the posts were available for each of the said category. The impugned order records that there are seven persons already working in the institution. Those who are admittedly working belong to the reserved categories. The break up which has been given in the impugned order is to the effect that out of seven working employees, five are of the O.B.C. category, one is a Sweeper who is also of the S.C. category and one other employee is of the S.C. Category. If the total number of posts is taken to the fourteen in the entire cadre of class IV employees then applying the provisions of reservation under the 1994 Act, the number of posts which are available to the O.B.C. out of fourteen comes to three and to the Scheduled Caste comes to two. The rests of the posts have to go to the general category and therefore, there cannot be reservation in excess of the norms prescribed. To that extent the calculation made in the impugned order in respect of the balance of the seven posts is absolutely wrong and therefore, the order dated 21.8.2008 is liable to be quashed to that extent. However, even otherwise if a calculation is made, there cannot be reservation in excess to 50%. The entire reservation quota is also full. The balance of the seven posts have therefore, to be offered to the candidates of the general category and not to any specified reserved category. Accordingly, if this is the correct position then the selection committee also proceeded to hold the selections against the prescribed norms of reservation. The selection could not have been held by providing reservation to the S.C. Category or to the other Backward category. This therefore vitiates the selection which has been set up by the Principal of the institution and which is being relied upon by the petitioners. The selection could not have been held by providing reservation to the S.C. Category or to the other Backward category. This therefore vitiates the selection which has been set up by the Principal of the institution and which is being relied upon by the petitioners. The petitioners claim benefit of a selection which in view of the conclusions drawn herein above is in-valid for having applied the reservation policy incorrectly. Accordingly the entire selection which has been proposed by the Principal is contrary to the aforesaid norms and cannot be sustained. 13. Having regard to the conclusions drawn hereinabove, the impugned order dated 21.8.2008 insofar as it incorrectly calculates reservation, is quashed. The selections which have been set aside by the Joint Director of Education is upheld but for reasons different than that as given in the impugned order. In view of the fact that the selections are invalid, the other questions relating to the publication in the news papers or compliance of Rules 1985 need not be gone into. 14. The writ petition is partly allowed to the aforesaid extent with a direction to the Principal of the Institution to seek permission afresh and thereafter proceed to hold selection against the posts available in accordance with the provisions of the Government Order dated 20.11.1977. 15. No order as to costs. ————