JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri R.C. Dwivedi, learned counsel for petitioner and learned Standing Counsel for respondents. 2. It is simple matter but, as usual, the respondents, who are the authorities of State Government, due to their inaction and apathy to the Court cases, which has been noticed and commented upon time and again by the Courts in a large number of matters, has made complicated resulting in exchange of various affidavits etc. on peripheral issues. 3. Petitioner No. 1 is Principal of Intermediate College, Jaura Bazar, District Kushinagar (hereinafter referred to as “College”). It is an Intermediate College recognized by Board of High Schools and Intermediate (hereinafter referred to as the “U.P. Board”) under the provisions of U.P. Intermediate Education Act, 1921 (hereinafter referred to as “Act, 9121”) and being in grant-in-aid, responsibility of payment of salary to its staff is governed by the provisions of U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as “Act, 1971”). There are eleven sanctioned posts of Class IV employees out of which two were lying vacant due to retirement of two Class IV employees. Petitioner No. 1 being Principal of the College is the appointing authority of Class IV employees under the Regulations framed under Act, 1921. Though for the purpose of making selection/recruitment of Class IV employees, no prior permission by District Inspector of Schools (hereinafter referred to as “DIOS) is required and such requirement is only before making appointment, as held by Division Bench of this Court in Jagdish Singh v. State of U.P. and others, 2006 (3) ESC 2055 , while interpreting Regulation 101 Chapter-III of the Regulations framed under Act, 1921 but the Principal of the College, in his own wisdom, may be on account of lack of knowledge of difference in the two stages, made a request by letter dated 28.8.2010 to DIOS to grant prior permission for proceeding to make appointment on Class IV post. It is said that papers were forwarded by DIOS to the Director of Education (Secondary), U.P., Lucknow (hereinafter referred to as “DE(S)”) for prior permission referring to some general circular of DE(S) No. lkekU; ¼1½ f’kfoj@14304&404@2009&10 dated 16.2.2010. It is said that since thereafter the DE(S) did not take any further action, though petitioner made representations dated 3.1.2011 and 7.9.2011 which also remained un-replied. It is said that since thereafter the DE(S) did not take any further action, though petitioner made representations dated 3.1.2011 and 7.9.2011 which also remained un-replied. Petitioner thereafter met DE(S) himself in the first week of December’ 2011 and requested to grant permission. He was told by DE(S) that in view of Government Order dated 6.1.2011, no permission for making appointment by direct recruitment on a Class IV post can be granted since it has been banned. Now the Class IV employees have to be arranged by outsourcing. Contending that the Government Order being subsequent having been issued on 6.1.2011 would have no application to the vacancies which were already existing and process of selection had already started, the present writ petition has been filed seeking following reliefs: “i. to issue a writ, order or direction in the nature of mandamus directing the respondent No. 2 to pass appropriate order on the recommendation made by the respondent No. 3 vide letter dated 1.9.2010 (Annexure. 1 to the writ petition) for granting prior permission for making appointment on the post of class-IV employees in Intermediate College, Jaura Bazar District Kushinagar ignoring the Government Order dated 6.1.2011, within the period to be specified by this Hon’ble Court; ii. to issue a writ, order or direction in the nature of mandamus directing the respondent No. 2 to pass appropriate order on the representations dated 3.1.2011 and 7.9.2011 made by the petitioner No. 2 (Annexures 2 and 3 to the writ petition) within the period to be specified by this Hon’ble Court; iii. to issue a writ, order or direction in the nature of mandamus declaring the Government Order dated 6.1.2011 (Annexure 4 to the writ petition) as ultra vires;” 4. Learned counsel for petitioner on the very first day i.e. 9.2.2012 when this matter came up before this Court for admission referred to a decision in Writ Petition No. 36249 of 2011 (Lav Kush Pandey v. State of U.P. and others) decided on 14.10.2011 holding that the Government Order dated 6.1.2011 shall not apply to the vacancies occurred before issuance of the said order but would cover only future vacancies, and, contended that approach of DE(S) is clearly in contravention of law laid down therein and is illegal. This Court, in the circumstances, directed learned Standing Counsel to seek instructions and passed following order or 9.2.2012: “As prayed, put up on 14.2.2012 to enable learned Standing Counsel to seek instructions and inform as to why the matter of approval relating to selection made by petitioner No. 1 for Class-IV appointment has been kept pending by respondent No. 2 for the last more than one and half years.” 5. No instructions were given by respondents to learned Standing Counsel and on 14.2.2012 when the matter came up, learned Standing Counsel made a statement at the bar that he has not received any instruction and sought further time. Since it was a short matter and could have been decided only on the information given by respondents as to why no decision has been taken on petitioner’s application for such a long time, this Court passed following order: “Despite this Court’s order dated 9.2.2012, learned Standing Counsel ha no instructions and seeks further time. Let respondent No. 2 shall appear before this Court on 1.3.2012 alongwith entire record to show as to why matter of approval relating to selection made by the respondents for class IV post has been kept pending for such a long time i.e. for last more than one and a half years. A copy of this order shall be made available to learned Standing Counsel for information to the concern respondent and compliance.” 6. On 1.3.2012 respondent No. 2 did not appear and Sri K.K. Chand, learned Standing Counsel informed the Court that having met an accident, DE(S) is unable to attend the Court. The matter was examined and when it was found that on the one hand DE(S) is said to be on leave and on the other hand attending his Office and discharging duties, this Court passed the following order while accepting statement of learned Standing Counsel that matter may be taken on 2.3.2012: “Sri K.K. Chand, learned Standing counsel informed this Court that respondent No. 2, Director of Education (Secondary) has suffered a fracture on 26.2.2012 and, therefore, is not able to attend this Court as directed by order dated 14.2.2012. He has placed before this Court a letter dated 29.2.2012 sent by Director of Education (Secondary), U.P. Lucknow stating that he has sustained an injury causing fracture in his leg on 26.2.2012 due to which he is not in position to appear before this Court. It is appended with a medical certificate issued by Dr. Shishir R. Rastogi on 26.2.2012. The Medical Certificate shows an advice of five days’ rest but from the letter sent by respondent No. 2, it is evident that he is not on leave but still attending his Office. This fact is not disputed by learned Standing Counsel. That being so, it is evident that Officer concerned is not on medical leave, but capable to attend the office and, thus, this Court intend to issue non-bailable warrant considering the excuse taken by respondent No. 2 flimsy. However, learned Standing Counsel, at this stage requested that this matter may be taken up tomorrow. As prayed, put up tomorrow.” 7. Again on 2.3.2012 none appeared and a letter sent by DE(S) was placed before the Court to inform that respondent No. 2 is unable to attend the Court and has been advised one month’s rest. When the Court was further informed that he is not on leave but regularly attending his Office, the following order was passed on 2.3.2012: “Today also, none has appeared. Learned Standing Counsel Sri K.K. Chand has produced another letter dated 1st March 2012 wherein the Director of Education (Secondary) has informed that on account of plaster administered on his leg, he is not in a position to walk at all and Doctor has advised him one month’s rest and therefore, he is not able to attend the Court. Learned Standing Counsel could not dispute that the aforesaid officer is not on leave but is regularly attending his office. That being so, the very averment that he is not capable to walk, is clearly false and amounts to a statement made to mislead this Court. It is contemptuous also. Let Non-bailable warrant be issued as already noted in my earlier order dated 1st March 2012 but the same was deferred in view of persistent request made by learned Standing Counsel and the indulgence granted by this Court while keeping the matter for today. Let NBW be executed through the Chief Judicial Magistrate, Lucknow. It is contemptuous also. Let Non-bailable warrant be issued as already noted in my earlier order dated 1st March 2012 but the same was deferred in view of persistent request made by learned Standing Counsel and the indulgence granted by this Court while keeping the matter for today. Let NBW be executed through the Chief Judicial Magistrate, Lucknow. The officer concerned shall be produced before this Court on 22nd March 2012. List on 22.3.2012 for further orders. 8. On 22.3.2012, Sri Chandrika Prasad Tiwari, holding office of DE(S), U.P. Allahabad appeared and filed an affidavit sworn on 21.3.2012 at 11.00 a.m at Allahabad alongwith an application for recall of orders dated 1.3.2012 and 2.3.2012 and also to exempt his personal appearance on future dates. Learned Standing Counsel also pointed out that an application has been filed on behalf of petitioner through another counsel Sri Saroj Kumar Singh, requesting for dismissal of writ petition as not pressed and the said affidavit was sworn by Sri Hari Shankar Upadhyay, petitioner No. 2 on 20.2.2012 at 11.00 a.m. 9. Sri R.C. Tiwari, Advocate appeared for the petitioner and stated that aforesaid application was got filed by respondent No. 2 from petitioner No. 2 under duress through another counsel Sri Saroj Kumar Singh, who was not present and Sri R.C. Tiwari Stated that he has been instructed to request the Court to permit petitioner not to press this application and the same may be rejected as not pressed. The permission as sought is granted and the application is rejected as not pressed. 10. Respondent No. 2 in his affidavit has stated that on 29.2.2012 he instructed learned Standing counsel to contest petitioner’s writ petition on the ground that in view of ban imposed by Government Order dated 6.1.2011, Class IV appointment by direct recruitment cannot be made as the same has to be resorted to by outsourcing. It is also said that on 26.2.2012 respondent No. 2 suffered fracture in right leg and after consulting an Orthopaedic medical practitioner, who advised for bed rest for five days, respondent No. 2 proceeded on casual leave after intimating Secretary, Secondary Education, U.P. Allahabad. It is also said that on 26.2.2012 respondent No. 2 suffered fracture in right leg and after consulting an Orthopaedic medical practitioner, who advised for bed rest for five days, respondent No. 2 proceeded on casual leave after intimating Secretary, Secondary Education, U.P. Allahabad. Copy of medical certificate dated 1.3.2012 as also a note dated 27.2.2012 requesting for casual leave from 27.2.2012 to 5.3.2012, whereupon an order was passed by Secretary, Secondary Education on 27.2.2012 that in absence of Sri Chandrika Prasad Tiwari, Special Secretary (P) shall look after his work, has been placed on record. Respondent No. 2 also submitted that on 1.3.2012 complete bed rest for one month was advised by his Doctor i.e. from 26.2.2012 to 25.3.2012. It is in these circumstances respondent No. 2 did not attend the Court. It is also said that DIOS’s letter dated 1.9.2010 has not been received in the Office of respondent No. 2, hence, no decision thereon could have been taken and in the meantime on 6.1.2011 State Government imposed ban on direct recruitment of Class IV employee hence nothing could be done. 11. In the entire affidavit there is not even a single averment at all that after suffering the alleged fracture and till the date affidavit in question was filed by respondent No. 2, he was performing or not his official duties at Lucknow either in capacity of Director, Secondary Education or in the capacity of Special Secretary, Secondary Education (since he was holding both the charges as informed by learned Standing Counsel). When pointed out this aspect of the matter, learned Standing Counsel sought adjournment and on the next date filed another affidavit sworn on 26.3.2012 stating that Sri Tiwari was earlier working as District Magistrate, Lalitpur since 2.2.2011 wherefrom he was transferred on 14.1.2012 as Special Secretary, U.P. Government, Secondary Education. Pursuant thereto he joined on 18.1.2012. Thereafter he was conferred additional charge of Director, Secondary Education vide order dated 9.2.2012 pursuant whereto he took additional charge on 10.2.2012 and since then is discharging duties of both Offices. On 26.2.2012 he slipped from stairs in his house and suffered fracture in his right leg as a result whereof he was tendered medical advice for bed rest for five days. On 26.2.2012 he slipped from stairs in his house and suffered fracture in his right leg as a result whereof he was tendered medical advice for bed rest for five days. Sri Tiwari sent application for casual leave from 27.2.2012 to 5.3.2012 to Secretary, Secondary Education through his official Driver who handed over application to Assistant Private Secretary of Special Secretary (Secondary Education). The said application was endorsed and despatched on 27.2.2012 at Sl.No. 514 vide Despatch Register of the Office of Special Secretary (Secondary Education). The Secretary (Secondary Education) sanctioned leave and directed Special Secretary (P) Mr. F.M. Pradhan to discharge duties in absence of respondent No. 2. 12. Petitioner after availing casual leave upto 5.3.2012 joined Office on 6.3.2012 and since then he is regularly discharging duties. He also said that if an Officer is on casual leave, he is not supposed to hand over charge and during this period of casual leave, he is treated on duty. On account of ensuing High School and Intermediate examinations of Board, as also the financial year at the verge of closure, respondent No. 2 was under bounden duty to submit financial requirement to Department before closure of financial year, hence despite casual leave, he continued to discharge duties from the residence, in the interest of department. This para 11 in which he has said that he continued to discharge duties in the interest of department has been sworn on the basis of record. 13. Learned Standing Counsel did not seek any further time to file parawise reply to the writ petition inasmuch he simply relied on the Government Order dated 6.1.2011 to show that there was no occasion for respondent No. 2 to grant permission and hence writ petition deserves to be dismissed. 14. Learned counsel for petitioner, however, submitted that official respondents have simply tried to hush-up the matter on one or the other pretext though they are admittedly guilty of total inaction for the last more than one and half year and are illegally not permitting petitioners in making appointment on sanctioned class IV posts which are admittedly lying vacant for the last more than two years causing serious hardship and inconvenience in smooth functioning of College. He submitted that judgment of this Court in Lav Kush Pandey (supra) having been delivered on 14.10.2011 wherein the order of Director of Education dated 20.5.2011 has already been quashed and it has been held that Government Order dated 6.1.2011 shall not bar direct recruitment for the vacancies occurred prior thereto, yet recourse is to take the said Government Order in the present case and it is nothing but an unfounded and frivolous pretext to cover up inaction and apathy on the part of respondents in regard to petitioner’s request for permission. The explanation is unfounded and patently shallow. It does not explain the conduct as bona fide and genuine ground but a pretext to their stand justifying inaction on their part. It is said that the approach of respondent No. 2 is patently erroneous, whimsical and caprice and deserves to be viewed very seriously. 15. Learned Standing Counsel when confronted with the judgment of this Court in Lav Kush Pandey (supra) could not dispute that the aforesaid judgment is binding on the department so long as it is not upset by superior Courts in appeal etc. (no such order till date is shown to have been issued by higher Court in appeal etc.). In fact no appeal appears to have been filed against this judgment. In the circumstances reliance placed by respondent No. 2 on Government order dated 6.1.2011 in the present case is patently false, incorrect and misconceived. On the one hand, it has not been disputed that a binding decision has been delivered by this Court several months ago holding that the Government Order dated 6.1.2011 would not apply to the vacancies which occurred before issuance of the said Government Order which shall be allowed to be filled in accordance with procedure already laid down therein yet reliance has been placed on the Government Order dated 6.1.2011 in the present case where the vacancies are of earlier period and the said judgment in Lav Kush Pandey (supra) apply with full force. No distinction could be drawn or pointed out by learned Standing Counsel or the respondent No. 2 present in the Court during the course of argument and also it could not be explained as to why despite the aforesaid judgment, respondent No. 2 placed reliance on Government Order dated 6.1.2011 which has been made inapplicable to the vacancies occurred before issuance of said Government Order. The defence of respondents and in particular respondent No. 2 is clearly unfounded, untenable. It appears to be a flimsy attempt to cover up a wholly indefensible inaction on the part of respondents. 16. Moreover, this Court enquired, why instructions could not be given to learned Standing Counsel when it was so permitted to be obtained by this Court’s order dated 9.2.2012 and 14.2.2012 was fixed. Initially learned Standing Counsel after receiving instructions said that notice from Office of Chief Standing Counsel about the aforesaid order and writ petition was not received by respondent No. 2 but when this Court required him to produce despatch register of the office of Chief Standing Counsel of the relevant period and the matter was deferred to be taken up after lunch, learned Standing Counsel after lunch appeared and admitted that notice has actually been sent to respondent No. 2 and the earlier statement was not correct. Thereafter also from 14.2.2012 till 26.2.2012 if what is stated by respondent No. 2 is taken to be correct, nothing has been placed on record to show why instructions could not be communicated to learned Standing Counsel so that this summary matter could have been decided expeditiously. 17. It is also not disputed that during the entire period respondent No. 2 claims to have proceeded on leave, he has actually performed duties of his Office with respect to both the charges and there is no averment in two affidavits filed by respondent No. 2, otherwise. 18. Learned counsel for petitioner also pointed out that against the order dated 2.3.2012, respondent No. 2 filed Special Appeal No. 518 of 2012 and therein also it was not disputed before the Division Bench that at no point of time during the so called period of leave, respondent No. 2 was actually out of Office and was not discharging regular duties of both the Offices i.e. Director of Education and Special Secretary, Secondary Education. The Division Bench disposed of the Special Appeal on 20.3.2012 declining to interfere with order except to the extent of issuance of non-bailable warrant and instead permitted respondent No. 2 to appear before Single Judge and explain the matter. 19. The Division Bench disposed of the Special Appeal on 20.3.2012 declining to interfere with order except to the extent of issuance of non-bailable warrant and instead permitted respondent No. 2 to appear before Single Judge and explain the matter. 19. Even today when matter was heard no attempt was made by respondents in regard to the real issue of inaction on its part since respondents adhered to its defence that after Government Order dated 6.1.2011, no direct recruitment of Class IV post can be made. This is apparently irrespective of what has been said by this Court in Lav Kush Pandey (supra). The attitude of defiance on the part of respondents therefore appears to be as if it is the Government Order which is more sacrosanct and prevail over a judgment of this Court wherein some decision has been taken otherwise and it is open to respondent No. 2 to disobey law and direction of this Court in respect to the same Government Order whereupon he placed reliance and founded his defence. This attitude and approach really deserves to be deprecated and condemned. 20. During the course of argument it was also pointed out that para 2 of Government Order in a subsequent decision in Writ Petition No. 11760 of 2011 (C/M Lala Babu Baijal Memorial Inter College and Another v. State of U.P. and others) decided on 21.3.2012 has already been struck down and, therefore, on 27.3.2012 when the matter was being argued, even the Government Order relating to ban was legally not in existence, yet respondent No. 2 stuck to his defence. The attitude is not only offending including defying and disobeying binding judgments of this Court but also show an attitude of adhering to executive orders ignoring judicial orders so as to give all pervasive and overriding authority to executive orders. Apparently this conduct is also contemptuous as it amounts to obstruction in administration of justice inasmuch it undermines the authority of this Court besides the fact that even otherwise in law the approach, act and attitude of respondents is highly derogatory. Apparently this conduct is also contemptuous as it amounts to obstruction in administration of justice inasmuch it undermines the authority of this Court besides the fact that even otherwise in law the approach, act and attitude of respondents is highly derogatory. In totality this Court finds that virtually having no defence at all, casualness on the part of respondents and in particular respondent No. 2 is writ large from the following: (a) The District Inspector of Schools, though there was no requirement in the statute or otherwise, yet referred petitioner’s request for permission for direct recruitment on Class IV post by his letter dated 1.9.2010 (Annexure 1 to writ petition). Though in this regard, respondent No. 2 says that he has not received aforesaid letter till 21.3.2012 but the petitioner claims to have sent two representations dated 3.1.2011 and 7.9.2011 (Annexures 2 and 3 to writ petition) and has made averments in this regard in para 11 of the writ petition and there is no denial that these representations of petitioner also have not been received. (b) No attempt was made to find out from DIOS as to when and in what manner latter dated 1.9.2010 was sent by him and why it has not been received in the Office of DE(S). Both the affidavits of respondent No. 2 are silent on this aspect. In fact for the period subsequent to Government Order dated 6.1.2011, the defence is totally founded on the ban imposed therein hence permission could not have been granted, as is evident from para 12 of affidavit dated 21.3.2012 filed by respondent No. 2 ignoring completely the judgment in Lav Kush Pandey (supra). (c) Notice on behalf of respondent No. 3, DIOS, was also accepted by Chief Standing Counsel but he did not attempt to place on record as to in what manner the letter dated 1.9.2010 was sent. Before this Court no attempt was made to give instructions to learned Standing Counsel so as to enable the Court to decide the matter at the earliest but a flimsy, defying and delaying attitude was adopted and that too on imaginary and superficial grounds. Before this Court no attempt was made to give instructions to learned Standing Counsel so as to enable the Court to decide the matter at the earliest but a flimsy, defying and delaying attitude was adopted and that too on imaginary and superficial grounds. (d) When faced with two judgments of this Court in Lav Kush Pandey (supra) and C/M Lala Babu Baijal Memorial Inter College (supra), no reply could be given by learned Standing Counsel or DE(S) who himself was present in the Court and kept silence over the matter. In fact no argument has been advanced on this aspect. 21. In these peculiar facts and circumstances, I find that here is a case where considering totality of circumstances and discussion made above, this Court must take a stringent view of the matter. 22. Writ petition, in the circumstances, is allowed with the following directions: (i) Since for recruitment and selection process for Class IV employees, no prior permission is needed as held by this Court in Jagdish Singh (supra), petitioners are at liberty to proceed with recruitment process. (ii) Para 2 of the Government Order dated 6.1.2011, for the reasons contained in judgment dated 21.3.2012 in C/M Lala Babu Baijal Memorial Inter College (supra), is struck down being ultra vires and violative of Articles 14 and 16 of Constitution and the directions contained in the above judgment in C/M Lala Babu Baijal Memorial Inter College (supra) shall be read in this case also. (iii) After selection and recruitment, appointments can be made only after referring the documents for prior approval as contemplated in Regulation 101 Chapter-III of the Regulations framed under Act, 1921 Therefore, the petitioner shall forward documents to District Inspector of Schools in accordance with the procedure prescribed who shall proceed accordingly. (iv) Process of selection/recruitment and appointment shall not be obstructed by respondents on the ground of alleged ban in view of Government Order dated 6.1.2011 and they shall abide by the law laid down by this Court in Lav Kush Pandey (supra) and C/M Lala Babu Baijal Memorial Inter College (supra). (iv) Process of selection/recruitment and appointment shall not be obstructed by respondents on the ground of alleged ban in view of Government Order dated 6.1.2011 and they shall abide by the law laid down by this Court in Lav Kush Pandey (supra) and C/M Lala Babu Baijal Memorial Inter College (supra). (v) The approach and conduct of the present incumbent, Sri Chandrika Prasad Tiwari, respondent No. 2 shall also be examined by the Chief Secretary, U.P. Government or such authority as authorized by him who shall consider whether the present incumbent (on the post of Director of Education (Secondary) is competent enough to hold office of such high responsibility in the light of discussions made above and shall pass necessary order accordingly within one month from the date of receipt of copy of this judgment. (vi) Petitioners shall be entitled to cost which is quantified to Rs. 20,000/- against respondents 1 and 2 which at the first instance shall be paid by respondent No. 1 but it would be at liberty to recover the said amount from respondent No. 2 after making such enquiry as permissible in law. 23. Registrar General is directed to send a copy of this order forthwith to Chief Secretary, U.P. Government for communication, information and compliance of directions as above. ———————