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2013 DIGILAW 503 (ALL)

RAJ PAL v. DISTRICT INSPECTOR OF SCHOOLS

2013-02-12

A.P.SAHI

body2013
JUDGMENT Hon’ble A.P. Sahi, J.—Heard Sri Indra Raj Singh, learned counsel for the petitioner, Sri Prabhakar Awasthi, learned counsel for the respondent No. 4 and the learned Standing Counsel for the Respondent No. 1 and 2. 2. The contest in this petition is in relation to post of a clerk (class 3 post) in an Intermediate College governed by the provisions of the U.P. Intermediate Education Act, 1921 and the regulations framed thereunder. 3. The petitioner is a Class-IV employee who is seeking promotion on the said post in terms of Chapter 3 Regulation 2 of the Regulations framed under the 1921 Act. 4. He is aggrieved by the direction of the District Inspector of Schools ordering appointment of the respondent No. 4 against the post available in the institution on compassionate basis in terms of the regulation aforesaid. The petitioner contends that there is only one post of Class-III available in the institution which has to be filled up by way of promotion keeping in view the law laid down by this Court in the case of Jai Bhagwan Singh v. District Inspector of Schools, Gautambudh Nagar and others, 2006 (9) ADJ 292 . 5. It is further his contention that a post of promotion cannot be filled up by way of direct recruitment and, therefore, the recommendation of the Respondent No. 4 for being appointed on compassionate basis being one under the direct recruitment process, cannot be permitted as per the law laid down in the case of Hiraman v. State of U.P. and others, AIR 1997 SC 3288 . 6. The petitioner contends that while his claim is still under consideration before the committee of management, the District Inspector of Schools straight away passed an order on 19th September, 2012 appointing the respondent No. 4 on compassionate basis. Aggrieved the petitioner filed writ petition No. 57563 of 2012 that was disposed of by this Court on 5th November, 2012. A copy of the judgment is Annexure-7 to the writ petition. The District Inspector of Schools was called upon to take a fresh decision in the matter. 7. Aggrieved the petitioner filed writ petition No. 57563 of 2012 that was disposed of by this Court on 5th November, 2012. A copy of the judgment is Annexure-7 to the writ petition. The District Inspector of Schools was called upon to take a fresh decision in the matter. 7. Accordingly, the District Inspector of Schools by the impugned order dated 26th January, 2013 has proceeded to hear the parties including the committee of management and has passed the impugned order non-suiting the petitioner on the ground that the petitioner does not possess the knowledge of typing in terms of Group-D Employees Service Rules in the Uttar Pradesh Subordinate Offices, 2001. The District Inspector of Schools has relied on the Government order dated 22nd December, 2001 to record the said finding. 8. Sri Indra Raj Singh, learned counsel for the petitioner, submits that the said rules are not applicable inasmuch as they have been framed under Article 309 of the Constitution of India which is meant for Government servants and the same have not been applied either by way of reference or through any statutory provision in the case of Class-III employees of privately managed institutions covered under the 1921 Act. Sri Singh has invited the attention of the Court to Chapter III Regulation 2 as also the provision of qualification required for the said purpose and dealt with by a learned Single Judge of this Court in the case of M.P. Chaukidar Sardar Ballabh Bhai Junior High School v. District Basic Education Officer, Fatehpur and others, 2000 (1) LBESR 969. He has further relied on the Division Bench judgment in the case of Rajiv Kumar and others v. State of U.P., 2011 (2) ESC 820, to substantiate the submission that the 2001 Rules as relied upon by the District Inspector of Schools is not applicable. 9. Replying to the aforesaid submission Sri Prabhakar Awasthi for the respondent No. 4 states that he does not propose to file any counter affidavit and the matter be disposed of on merit inasmuch as the respondent No. 4 is otherwise also entitled for appointment, if not in this institution, then in some other institution of the District as per the regulations contained in Chapter-III. 10. Learned standing counsel also does not propose to file any counter affidavit as the issue involved is purely legal. 10. Learned standing counsel also does not propose to file any counter affidavit as the issue involved is purely legal. In the aforesaid circumstances, it is not necessary to issue notice to the Respondent No. 3, Committee of Management, at this stage inasmuch as the matter will have to be considered by the District Inspector of Schools once again in view of the nature of the order that is proposed to be passed. 11. Having examined the provisions as relied upon by the learned counsel for the parties and having considered the submissions raised as well as the decisions applicable to the controversy, the post had to be filled by way of promotion as already observed by the learned Single Judge in the judgment dated 5.11.2012. The decision in the case of Jai Bhagwan Singh (supra) was binding on the District Inspector of Schools. 12. The District Inspector of Schools has, however, non suited the petitioner on the ground of not possessing the qualification of typing. For this reliance has been placed by the District Inspector of Schools on the notification dated 22.12.2001 which has been placed by Sri Awasthi before this Court. I have perused the same and it is more than clear that the said notification is in relation to Group-D employees of the subordinate offices of the State Government. The said rules are, therefore, in relation to such employees and covered by Article 309 of the Constitution of India. 13. The institution where the appointment or promotion is being claimed by the petitioner is a privately managed institution governed by the U.P. Intermediate Education Act, 1921 where Government Service Rules have not been made applicable to this extent as opined by the District Inspector of Schools. In the absence of any provision enforcing the Government order dated 22.12.2001 in privately managed institutions, the District Inspector of Schools clearly fell into error by invoking the same for the purpose of adjudicating the qualification the petitioner. In the considered opinion of the Court the District Inspector of Schools could not have borrowed the qualifications in relation to Government servants for the purpose of adjudicating the eligibility conditions as involved in the present controversy. To that extent the Division Bench judgment in the case of Rajiv Kumar (supra) clearly comes to the aid of the petitioner. 14. In the considered opinion of the Court the District Inspector of Schools could not have borrowed the qualifications in relation to Government servants for the purpose of adjudicating the eligibility conditions as involved in the present controversy. To that extent the Division Bench judgment in the case of Rajiv Kumar (supra) clearly comes to the aid of the petitioner. 14. Sri Awasthi submits that the correctness of the said decision has been referred for an authoritative pronouncement by a Larger Bench. A merely reference to a Larger Bench will not take away the impact of the Division Bench judgment aforesaid which is binding on me. 15. In the aforesaid circumstances, the District Inspector of Schools has travelled beyond his authority in invoking the rules meant for subordinate services of the state Government for the purpose of qualification to the extent as indicated in the impugned order which is unjustified. The order, therefore, having proceeded on an erroneous assumption of law cannot be sustained. 16. Accordingly, the order dated 26.1.2012 is quashed. The writ petition is allowed. The post which is being claimed by the petitioner has to be filled up by way of promotion as observed hereinabove. Accordingly, the claim of the petitioner will now be considered against the said post in accordance with the observations made hereinabove. The District Inspector of Schools shall pass an order within six weeks of the date of presentation of a certified copy of this order before him. So far as the respondent No. 4, Sri Ajai Pal Singh is concerned, his appointment by the District Inspector of Schools through the order dated 19.9.2012 cannot be sustained insofar as it relates to appointment on the post in question in Lala Hariram Inter College, Khudaganj, Shahjahan. The same is accordingly set aside with a direction that the claim of the respondent No. 4 shall be considered by the District Inspector of Schools for being appointed in some other institution where the vacancy is available in accordance with the provisions of Regulation 101 to 107 of the U.P. Intermediate Education Act contained in Chapter III thereof. 17. The writ petition is accordingly allowed. ——————