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2015 DIGILAW 2703 (ALL)

Ramji Sharma v. State of U. P.

2015-09-01

MAHESH CHANDRA TRIPATHI

body2015
JUDGMENT Mahesh Chandra Tripathi, J. – Heard Shri J.J. Munir, learned counsel for the petitioner, learned Additional Chief Standing Counsel for the State respondent Nos. 1 to 5 and Shri Hemant Kumar appearing for respondent Nos. 6 and 7. 2. By means of present writ petition, the petitioner has prayed for direction in the nature of mandamus, declaring the provisions of impugned amended Regulation 101 of Chapter-III of U.P. Act No.2 of 1921 as ultra vires the provisions of Articles 14 and 30 (1) of Constitution of India. He has further prayed for direction to the respondent nos. 4 and 5 to pass orders for grant of financial approval to his appointment in Public Balika Inter College, Baramadpur, Mohammadabad Gohna, District Mau on the basis of selection papers submitted to respondent no.4 by respondent no.6. 3. Brief facts giving rise to the present writ petition are that 'Public Balika Inter College, Baramadpur, Mohammadabad Gohna, District Mau' (hereinafter referred to as institution) is a minority Intermediate Girls College. It is a recognised institution and receiving grant-in-aid from the State Government. The provisions of U.P. Intermediate Education Act, 1921 and U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers & other Employees) Act, 1971 are applicable to the institution. The salaries to the teachers and other employees are being paid from the State exchequer. The institution had issued an advertisement in daily newspaper 'Hindustan Times' (English) dated 29.5.2013 published from Lucknow, inviting applications for one post of Lecturer (Urdu) only for Female, 5 posts of Assistant Teacher L.T. Grade only for Female, one post of Teacher in BTC Pay Scale for attached Primary Section only for Female, and one post of Assistant Clerk. The petitioner possesses the requisite educational qualifications. He applied for appointment on the post of Assistant Clerk in the institution. The petitioner appeared before the Selection Committee and faced the interview on 20.6.2013 along with other candidates in which the petitioner was recommended for selection on the said post. Subsequently, the requisite papers were transmitted to the District Inspector of Schools, Mau on 28.6.2013 for granting financial approval but the District Inspector of Schools did not take any step in the matter. The Manager of Committee of Management of the institution sent reminders to the District Inspector of Schools on 31.7.2013, 7.8.2013, 20.8.2013 and 11.9.2013. 4. Subsequently, the requisite papers were transmitted to the District Inspector of Schools, Mau on 28.6.2013 for granting financial approval but the District Inspector of Schools did not take any step in the matter. The Manager of Committee of Management of the institution sent reminders to the District Inspector of Schools on 31.7.2013, 7.8.2013, 20.8.2013 and 11.9.2013. 4. Learned counsel for the petitioner submits that the institution is admittedly a minority institution. The selection was held after advertising the posts in accordance with law and following the entire procedures prescribed for the selection. The Selection Committee interviewed all the rival candidates and recommended the name of the petitioner for appointment on the post of Assistant Clerk. He has placed reliance on a Division Bench judgment of this Court in Jagdish Singh, etc. v. State of U.P. and others 2006 (3) ESC 2055 (All) (DB). The relevant paragraph-7 of the judgment is reproduced herein under: - “7. Sri. R.K. Ojha also submitted that the Rules, namely, The Group 'D' Employees Service (U.P.) Rules, 1985 are not applicable with regard to the appointment of Class IV employees in a recognised aided institution under the U.P. Intermediate Education Act, 1921 and the learned Single Judge committed error in relying on the said Rules. Sri. Ojha further submitted that the advertisement was made in one newspaper, which was sufficient. A number of applications received were there and the selection being fair, the District Inspector of Schools committed error in rejecting the candidature of the appellant.” 5. Shri J.J. Munir has also relied upon the judgment passed by this Court in Abhishek Tripathi v. State of UP and others 2015 (4) ADJ 270 . The relevant paragraphs of the judgment are reproduced herein below: - “4. Shri J.J. Munir has also relied upon the judgment passed by this Court in Abhishek Tripathi v. State of UP and others 2015 (4) ADJ 270 . The relevant paragraphs of the judgment are reproduced herein below: - “4. In the case of Preet Kumar Srivastava (supra), Regulation 101 as existed prior to the amendment made on 31.12.2009, was under consideration which reads as under: - "The appointing authority shall not fill up any vacancy on a nonteaching staff of a recognised aided institution except with the prior approval of the Inspector." Whereas the amended Regulation 101 vide notification dated 31.12.2009 is as follows: - fu;qfDr izkf/kdkjh fujh{kd ds iwokZuqeksnu ds flok; fdlh ekU;rk izkIr] lgk;rk izkIr laLFkk ds f'k{k.ksRrj in dh fjfDr dks ugha HkjsxkA izfrcU/k ;g gS fd ftyk fo|ky; fujh{kd leLr fjfDr;ksa dh la[;k f'k{kk funs'kd] ek/;fed dks miyC/k djk;sxk rFkk laLFkk esa Nk= la[;k n'kkZrs gq;s inksa dks Hkjs tkus ds vkSfpR; dks Hkh Li"V djsaxsA f'k{kk funs'kd ek/;fed ls vkns'k izkIr gksus ij ftyk fo|ky; fujh{kd mDr fjfDr;ksa dks Hkjus gsrq fu;qfDr izkf/kdkjh dks vuqefr iznku djsxk vkSj vuqefr iznku djrs le; 'kklu }kjk fu/kkZfjr vkj{k.k fu;eksa ,oa inksa ds vkSfpR; ds fy;s fu/kkZfjr ekudksa dk ikyu djk;sxkA 5. A perusal of Regulation 101 as amended on 31.12.2009 indicates that by way of amendment, in the existing provision it was added that before filling up the vacancy, the District Inspector of Schools shall intimate the vacancy position (in the institution in question) to the Director of Education (Madhyamik) and also justify the number of sanctioned post considering the strength of students in the said institution. The approval to fill up the vacant post shall be granted by the District Inspector of Schools after receipt of the order/direction of the Director of Education (Madhyamik). While granting permission to fill up the post, the District Inspector of Schools was to ensure that the reservation rules and the sanctioned strength in the institution as determined by the State Government shall be strictly adhered to. 9. In view thereof, it was not open for the District Inspector of Schools to reject the proposal for grant of financial approval to the appointment of the petitioner on the ground mentioned in the impugned order as the information regarding sanctioned post and vacancy position has been given to the District Inspector of Schools. 9. In view thereof, it was not open for the District Inspector of Schools to reject the proposal for grant of financial approval to the appointment of the petitioner on the ground mentioned in the impugned order as the information regarding sanctioned post and vacancy position has been given to the District Inspector of Schools. It is categorically stated that the management vide letter dated 2.2.2014 had informed about the vacancy position and prior approval has been obtained strictly as per provisions of Regulation 101 from the District Inspector of Schools, Jaunpur. However, the District Inspector of Schools did not pass any order and kept the matter pending despite reminder sent on 26.5.2014. As only post of Assistant Clerk was vacant in the institution, the management was facing difficultly in the day to day working in the institution and hence an advertisement dated 7.6.2014 was issued without waiting for further approval of the District Inspector of Schools to initiate the selection process. The petitioner was appointed by a duly constituted Selection Committee and papers were forwarded to the District Inspector of Schools on 30.6.2014. The order dated 13.11.2014 is nothing but an arbitrary exercise of power by the District Inspector of Schools without adverting itself to the object and purpose of the requirement of intimation of vacancy/sanctioned strength as per Regulation 101. 10. Placing reliance upon the case of Preet Kumar Srivastava (supra), submission is that the controversy as to what would be the stage for grant of approval by the District Inspector of Schools has been set at rest. In Preet Kumar Srivastava (supra), the words "fill up any vacancy except with the prior approval of the Inspector" as contained in Regulation 101 of Chapter III were interpreted. These words are very much there in the amended Regulation 101 and have not been replaced. A reading of the amended Regulation 101 also indicates that prior approval of the District Inspector of Schools is to be obtained before "filling up the vacancy" that means the approval is to be obtained at the time of appointment and not at the time of initiation of selection process for making appointment as held in Preet Kumar Srivastava (supra) wherein reliance has been placed upon the Division Bench judgement of this Court in the case of Jagdish Singh, etc. v. State of U.P. and others, reported in 2006 (4) ADJ, 162 (All) (DB). v. State of U.P. and others, reported in 2006 (4) ADJ, 162 (All) (DB). It was held therein that what is contemplated in Regulation 101 is approval after the selection is held and before appointment. 11. The amended Regulation 101 also contemplates the same stage that is after the selection process is over but before making appointment to the post. Only addition is that the District Inspector of Schools shall ensure that there exist sanctioned post in the institution in question at the time of initiation of the selection process and sufficient information of the said position be given to the Director of Education and his order be obtained.” 6. A counter affidavit of Shri Sunil Dutt, District Inspector of Schools, District Mau has been filed on behalf of respondent nos.1 to 5 stating that the institution is a minority institution and the provisions of the U.P. Intermediate Education Act, 1921 and the regulations framed thereunder and the orders/directions issued by the Government from time to time are applicable to the institution. In the said institution, two posts of Assistant Clerk have been created by the Government. The financial approval of the petitioner's appointment on the vacant post of Assistant Clerk was not granted on the ground that the institution had not taken any prior approval from the Director of Education (Secondary), U.P. Allahabad under Regulation 101 of Chapter-III of the U.P. Intermediate Education Act 1921 and by means of Government Order dated 15.3.2012, a ban was imposed on the appointment of Class-III and Class-IV employees in the State of UP. 7. I have carefully considered the submissions advanced by the learned Counsel for the parties. 8. It is suffice to indicate that reliance has been placed on the judgment passed by this Court in Preet Kumar Srivastava v. State of U.P. and others, 2011 (9) ADJ 591 . The Regulation 101 has been interpreted by this Court and it was held that looking to the language of Regulation 101, which says that no appointment shall be made on a non-teaching post without there being approval of the District Inspector of Schools, the prior approval is required between selection and appointment of the incumbent against the vacant post. No prior approval is required before making selection for filling up the vacancy. 9. No prior approval is required before making selection for filling up the vacancy. 9. As per the law laid down in Abhishek Tripathi's case (supra) it can be safely concluded that before appointment of an incumbent on a non-teaching post, information is required to be given to the District Inspector of Schools concerned regarding the sanctioned strength. The District Inspector of Schools is under obligation to examine the sanctioned strength in the institution and report the same to the Director of Education (Madhyamik). Only after satisfying itself to the sanctioned strength and the vacancy position, the District Inspector of Schools can grant approval for filling up the vacancy. In case, sanctioned strength has already been determined by the Director of Education (Madhyamik), there would be no further requirement for referring the matter again to the Director of Education (Madhyamik) as contemplated in Regulation 101 as it would be a futile exercise and would further delay the appointments and impede the daily functioning of the institution and as such, the first objection raised by the respondents cannot sustain. The second objection, raised relying upon the Government Order dated 15.3.2012, would also not be sustainable on the ground that the same Government Order dated 15.03.2012 has already been quashed by this Court in Vipin v. State of U.P. and others, Writ Petition No. 31348 of 2013 decided on 31.05.2013 with regard to secondary institutions holding that where aided institutions have separate service rules providing for selection and appointment, the Government could not put up ban. 10. In the aforesaid facts and circumstances, both the objections raised by the respondents cannot be sustained and are rejected. 11. The writ petition is allowed and a direction is issued to the District Inspector of Schools, District Mau to pass a reasoned and speaking order strictly in accordance with the provisions as contained in Regulation 101 of Chapter-III of the Regulations framed under the U.P. Intermediate Education Act, 1921 and the observations made herein above, within a period of two months from the date of production of a certified copy of this order before him. Petition allowed.