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2012 DIGILAW 218 (ALL)

SATYA NARAIN YADAV v. STATE OF U. P.

2012-01-24

DEVENDRA KUMAR ARORA

body2012
JUDGMENT Hon’ble Devendra Kumar Arora, J.—Notice on behalf of opposite parties No. 1 to 4 has been accepted by learned Chief Standing Counsel. 2. In view of the order, proposed in this writ petition, the issuances of notices to opposite parties No. 5 and 6 is dispensed with. 3. By means of present writ petition, the petitioner has prayed for a writ in the nature of certiorari for quashing of the Government Order dated 6.1.2011 (Annexure 1) as well as the impugned order dated 30.11.2011, passed by opposite party No. 3, as contained in Annexure 2 to the writ petition whereby selection of the petitioner on class IV post has been disapproved. Petitioner has also prayed for a writ in the nature of mandamus commanding the opposite parties to make payment of salary to the petitioner of the post of Class IV regularly. 4. Submission of learned counsel for petitioner is that Madan Mohan Malviya Post Graduate College, Kalakankar, district Pratapgarh (hereinafter referred to as ‘Institution’) is affiliated with Dr. Ram Manohar Lohiya Avadh University, Faizabad (hereinafter referred to as ‘University’) and the provisions of U.P. State Universities Act, statutes of the University and U.P. state Universities (Affiliated and Associated Colleges Non-teaching Staff Qualifications and Service Conditions) First Statutes, 1977 are applicable on the institution. The appointments of class III and IV posts in the colleges affiliated with the University are made as per the provisions contained in First Statutes, 1977. As per para 3 of the First Statutes, 1977, the Appointing Authority of class IV posts is the Principal of the institution. Para 4 (4) of the Statutes further provides that appointment of employees shall be subject to the approval of the Director of Education (Higher Education), or an officer authorised by him in this behalf. It further provides that if the approving authority does not within two months from receiving the proposal for approval intimate its disapproval to the Appointing Authority, the Approving Authority shall be deemed to have approved the appointment. 5. Further submission is that one Sri Maiku Lal Gupta, Routine Grade Clerk retired on 30.6.2009 and Sri Shiv Ram, class IV employee of the institution was promoted to the post of Daftari. 5. Further submission is that one Sri Maiku Lal Gupta, Routine Grade Clerk retired on 30.6.2009 and Sri Shiv Ram, class IV employee of the institution was promoted to the post of Daftari. Consequently, one post of Routine Grade Clerk and another post of class IV post fell vacant and, as such, the Management of the institution wrote letters dated 5.4.2010 and 24.8.2010 to the Director of Education seeking his permission to fill up the vacancies and in response to the aforesaid letter, the Director of Education vide letter dated 20.1.2011 (Annexure 3) granted permission to make appointments on the aforesaid posts. As such, the vacancies were advertised in two daily newspapers i.e. ‘Amrit Prabhat’ and ‘Northern India Patrika’ on 7.2.2011.as per advertisement dated 7.2.2011 (Annexure 4). As the petitioner was having qualification of 8th class pass, and his date of birth is 19.5.1985 and he belongs to OBC category. The petitioner applied for class IV post and was duly selected by the Selection Committee. Petitioner was appointed on class IV post in the institution vide order dated 29.7.2011 (Annexure 5) and since then he is continuously working on his post. 6. On 13.9.2011 the petitioner sent entire papers relating to appointment of the petitioner to the Director of Education for his approval. When no action was taken on behalf of the Director of Education, the principal sent reminders dated 10.10.2011 and 11.11.2011 to the Director of Education thereby making request for approval to the appointment of petitioner. However, after lapse of two and half months the Director of Education passed the impugned order dated 30.11.2011 (Annexure 2) mentioning therein that the case of petitioner is covered by the Government Order dated 6.1.2011, as such, the approval cannot be granted for payment of salary to the petitioner. 7. Learned counsel for petitioner submits that so far as Government Order dated 6.1.2011 is (Annexure 1) concerned, it has been issued by the Principal Secretary, Finance, Government of U.P. in which it has been provided that in future no appointment on class IV post be made and only arrangement be made through outsourcing. 8. 7. Learned counsel for petitioner submits that so far as Government Order dated 6.1.2011 is (Annexure 1) concerned, it has been issued by the Principal Secretary, Finance, Government of U.P. in which it has been provided that in future no appointment on class IV post be made and only arrangement be made through outsourcing. 8. Further submission is that the said Government Order dated 6.1.2011 was challenged before this Court in Writ Petition No. 11760 of 2011 and vide order dated 13.4.2011 (Annexure 8), the operation of the Government Order dated 6.1.2011 was stayed by observing that prima facie a Government Order cannot overrule the provisions of the Statute. Further, in a similar matter where the appointment on class IV posts was refused on the ground of Government Order dated 6.1.2011, this Court passed interim order on 20.6.2011, in Writ Petition No. 3468 (SS) of 2011 and stayed the operation of the order of disapproval with further directions for payment of current salary. 9. In support of his submissions, learned counsel for petitioner has placed reliance upon a case in Lav Kush Pandey v. State of U. P. and others, 2012(1) ADJ 414 , in which this Court while considering the G.O. dated 6.1.2011, pleased to observe that outsourcing not being a matter of recruitment under Act and Regulations, could not have been introduced by means of a Government Order. 10. The relevant para 13 of the said decision reads as under: “13. The outsourcing, not being a matter of recruitment under the Act and the Regulations, could not have been introduced by means of a Government Order. It is also to be taken note of that in the instant case the vacancy had occurred on 28.2.2010, i.e. much before the issuance of Government Order dated 6.1.2011. Prior permission was granted by the Director of Education on 21.12.2010, i.e. before issuance of the aforesaid Government Order. The appointment, however, was made after issuance of the Government Order dated 6.1.2011. the vacancy having occurred prior to the Government Order dated 6.1.2011, cannot be taken to be a future vacancy so as to restrain the Principal from filling up the post for both the reasons aforesaid, viz. The appointment, however, was made after issuance of the Government Order dated 6.1.2011. the vacancy having occurred prior to the Government Order dated 6.1.2011, cannot be taken to be a future vacancy so as to restrain the Principal from filling up the post for both the reasons aforesaid, viz. (1) the restraint order could not have been issued for banning the appointment on a clear vacancy of class IV post through regular process of appointment and substituting it by a new method of appointment which is not envisaged under the Act and the Regulations framed thereunder and also for the reason that the aforesaid ban, if at all is to be upheld then it has to be read down for appointments on future the issuance of the Governments Order dated 6.1.2011 and not for the vacancies which had occurred earlier.’ 11. I have considered the submissions of learned counsel for parties and gone through the record. 12. Admittedly, the post in question fell vacant in July, 2010 and the Management sought permission for filling up the post the from the Director of Education vide letter dated 5.4.2010 and 24.8.2010 and the Director of Education vide letter dated 20.1.2011 granted permission to make appointments on the aforesaid posts. Thereafter on 30.11.2011, the Director of Education (Opposite Party No. 3) passed the impugned order thereby disapproving the selection of petitioner on class IV post on the ground that case of petitioner is covered by the Government Order dated 6.1.2011. 13. So far as Government Order dated 6.1.2011 is concerned, firstly by the said Government Order the procedure prescribed under the Statutes cannot be substituted, modified or amended and secondly, the post had fallen vacant much before the issuance of the Government Order dated 6.1.2011. As such, on the ground of issuance of the said Government Order dated 6.1.2011, the petitioner’s appointment cannot be disapproved. 14. Further, the appointments of class III and IV posts in the affiliated colleges of the University are made in accordance with the provisions of First Statutes, 1977. As per para 3 of the First Statutes, 1977, the Appointing Authority of class IV posts is the Principal of First Statutes, 1977. As per para 3 of the First Statutes, 1977, the Appointing Authority of class IV posts is the Principal of the institution. As per para 3 of the First Statutes, 1977, the Appointing Authority of class IV posts is the Principal of First Statutes, 1977. As per para 3 of the First Statutes, 1977, the Appointing Authority of class IV posts is the Principal of the institution. Para 4 (4) of the Statutes further provides that appointment of employees shall be subject to the approval of the Director of Education (Higher Education), or an officer authorised by him in this behalf. It further provides that if the Appointing Authority does not within two months from receiving the proposal for approval intimate its disapproval to the Appointing Authority, the Approving Authority shall be deemed to have approved the appointment. 15. Argument of learned counsel for petitioner is that so far as the First Statutes, 1977 is concerned, the same has been framed in exercise of powers under Clause ‘O’ of Section 49 readwith Section 50 of the U. P. State Universities Act and, as such, the approval contained under the First Statutes, 1977 cannot be superseded by the executive order/ Government order dated 6.1.2011. 16. In the instant case, the principal of the institution sent the entire papers regarding appointment of petitioner to the Director of Education for approval on 13.9.2011 and also sent reminders on 10.10.2011 and 11.11.2011, and no intimation regarding approval or disapproval was sent by the opposite party No. 3 to the principal of the institution even after expiry of two and half months. The opposite party No. 3 passed the impugned order disapproving the selection and appointment of the petitioner on the ground of Government Order dated 6.1.2011 which is in utter violation of the statutory provisions. 17. On due consideration, this Court comes to the conclusion that the impugned order is not sustainable in the eyes of law. 18. Writ Petition is, therefore, allowed. The impugned order 30.11.2011, passed by opposite party No. 3, as contained in Annexure No. 2 to the writ petition, is hereby quashed. The Opposite Party No. 3 is directed to re-consider the issue of appointment of petitioner on class IV post and pass appropriate orders in accordance with law within one month from the date of receipt of certified copy of this order ignoring the Government Order dated 6.1.2011. ———————