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Allahabad High Court · body

2017 DIGILAW 1608 (ALL)

PRADEEP KUMAR v. STATE OF U. P.

2017-07-05

P.K.S.BAGHEL

body2017
JUDGMENT Hon’ble P.K.S. Baghel, J.—The petitioners have preferred this writ petition for issuance of a writ of Certiorari to quash the order passed by the Regional Level Committee dated 13.7.2009 whereby it has declined to grant approval to the appointment of the petitioners on class-IV posts in a recognized Institution. 2. A brief reference to the factual aspects would suffice. 3. Kunwar Daya Shankar E.M. Inter College, Bareilly (for short, “the Institution”) is a recognized institution. The State Government has enlisted the institution for financial aid. It is run and managed by a Committee of Management. The Institution’s affairs are conducted under the provisions of the U.P. Intermediate Education Act, 1921 (U.P. Act No. II of 1921) and the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (U.P. Act No. 24 of 1971). 4. It is stated that vacancies arose in two posts of class-IV employees due to retirement of Sri Ram Bahadur and Sri Ram Lal who were superannuated on 31.12.2007 and 31.7.2007 respectively. The Principal of the Institution, who is the appointing authority of class-IV employees, sought permission from the District Inspector of Schools to fill up the aforesaid vacancies. 5. On 2.2.2009 the District Inspector of Schools granted permission for the recruitment against the said vacancies. Pursuant thereto the Principal issued a public notice in two daily newspapers, namely, ‘Janmorcha’ and ‘Divyaprakash’, both are published from Bareilly. It was published on 4.2.2009. It is stated that in response to the said notice 26 applications were received and 40 names were forwarded by the Employment Exchange, Bareilly. A Selection Committee was constituted, which selected the petitioners. The Selection Committee considered 60 applicants and it placed the first petitioner at Sl. No. 2 and the second petitioner at Sl. No. 1. 6. The committee of management accepted the recommendation of the Selection Committee. The necessary papers were sent to the District Inspector of Schools, who forwarded it to the Regional Level Committee. 7. It appears that respondent Nos. 7 and 8 challenged the said selection by way of Civil Misc. Writ Petition No. 26805 of 2009 for quashing the entire selection process amongst other grounds that the Court on 22.5.2009 directed the Regional Level Committee to consider the objections against the selection and take a decision. The Court has further directed that the said decision shall be filed alongwith the counter-affidavit. Writ Petition No. 26805 of 2009 for quashing the entire selection process amongst other grounds that the Court on 22.5.2009 directed the Regional Level Committee to consider the objections against the selection and take a decision. The Court has further directed that the said decision shall be filed alongwith the counter-affidavit. 8. It appears that the Regional Level Committee, after considering the objections, has turned down the selection of the petitioners amongst other on the following grounds: (i) the advertisement was not made in widely circulated newspapers; (ii) the selected candidates, the petitioners, are relatives of Principal of another institution, namely, Satishchandra Vishnu Inter College where a relative of the Principal of this college has been selected; and, (iii) there was an allegation of extraneous consideration also. 9. Dissatisfied with the order of Regional Level Committee the petitioners have filed this writ petition. 10. Affidavits have been exchanged between the parties. 11. Learned counsel for the petitioner Dr. H.N. Tripathi submits that all the three grounds, on which the selection of the petitioners has been set aside, are non-existent and flimsy. He submits that as regards the first ground that the advertisement was made in the newspapers which have no wide circulation, the petitioners have averred in paragraph-24(a) of the writ petition that in the same newspapers the advertisement of another institution was made and the same Regional Level Committee has approved the appointment of those persons who have been selected pursuant to the advertisement made in Janmorcha and Divyaprakash. He has drawn my attention to the reply filed by the Joint Director, wherein the said statement has not been denied. 12. As regards the second ground Dr. Tripathi submits that the allegations are totally vague and general. There is no prohibition under the provisions of the U.P. Act No. II of 1921 or the Regulations framed thereunder that a relative of the Principal of another institution is disqualified for selection. He further submits that both the petitioners have been selected on the basis of their merits hence this ground cannot be sustained. Lastly, he urged that the allegations of extraneous consideration are general, vague and sweeping. No evidence or material fact in support of any illegality has been pointed out in the impugned order. 13. He further submits that both the petitioners have been selected on the basis of their merits hence this ground cannot be sustained. Lastly, he urged that the allegations of extraneous consideration are general, vague and sweeping. No evidence or material fact in support of any illegality has been pointed out in the impugned order. 13. Sri A.K. Yadav, learned Standing Counsel has drawn the attention of the Court to paragraphs-14 & 15 of the counter-affidavit, wherein the grounds mentioned by the Regional Level Committee have been simply reiterated. No new fact has been mentioned in the counter-affidavit. 14. I have heard learned counsel for the petitioner, learned Standing Counsel and Sri P.N. Ojha, learned counsel for respondent Nos. 7 & 8, who has adopted the arguments of the learned Standing Counsel and has vehemently urged that the appointment of the petitioners is illegal and contrary to law. 15. I have considered the rival submissions and perused the record. The following facts are not in dispute: (i) two vacancies occurred in the institution on account of retirement of regular employees; (ii) the advertisements have been issued after obtaining necessary permission from the District Inspector of Schools, who had accorded it on 2.2.2009; and, (iii) The advertisement was issued in two newspapers. 16. As regards the finding of the Regional Level Committee that both the newspapers are not well known newspapers, the petitioners in paragraph-24 (a) & (b) of the writ petition have categorically stated that in the same newspapers another institution, namely, Vishnu Inter College, Bareilly also issued advertisement. It is also stated that the appointment of the employees, who have been appointed in Vishnu Inter College, pursuant to the advertisement published in the same newspapers, has been duly approved by the Regional Level Committee. A copy of the their approval order has been brought on record as annexure-5 to the writ petition. 17. A perusal of the reply of the counter-affidavit would show that this fact has not been referred or denied and an evasive reply has been given in paragraphs 14 & 15 of the counter-affidavit hence the fact that the newspapers are not widely circulated newspapers is not correct. It is a well-settled law that the fact which is not specifically denied is deemed to be admitted. 18. It is a well-settled law that the fact which is not specifically denied is deemed to be admitted. 18. It is a common experience that on identical ground that the institution has published advertisement in such newspapers which have no wide circulation, the approvals are denied by Regional Level Committees and District Inspector of Schools. These matters not only waste precious judicial time but also affect the functioning of the institution and study of the students due to shortage of teachers. Generally its takes years together to settle the dispute. Hence, in my view, to hold fair selection, the District Inspector of Schools in each district should shortlist widely circulated newspapers according to its circulation. The District Inspector of Schools may seek necessary information from the office of the Information Department of the State Government which have offices also in most of districts. The office of the DIOS should notify those shortlisted newspapers on its notice board and the same be also circulated to all the recognised institutions in the district. The DIOS shall pay regard to the fact that in the list prepared by him there shall be two categories of newspapers: (i) widely circulated newspaper in the State; and, (ii) a newspaper which has wide circulation in the District. 19. If a Management publishes the advertisement in a newspaper of its choice ignoring the list of the DIOS, it will be open to challenge the selection on the ground that there was no proper notice to candidates. 20. In the instant case, there is no material on the record to record a finding that newspapers, namely, Janmorcha and Divyaprakash were not widely circulated, hence no opinion is expressed on this issue. The direction is given in later part of this judgment. 21. As regards the second ground that the petitioners are close relatives of the principal of another institution, is totally vague. The Second Schedule under Section 16-GG of the U.P. Act No. II of 1921 provides the list of relatives who cannot be appointed in the same institution. It does not lay down that a teacher’s relative mentioned under the Second Schedule cannot be appointed in another institution also. Moreover, the relationship has also not been specified in the order as it is stated that one of the petitioners is close relative (Sage Sambandhi) of the principal of another institution. 22. It does not lay down that a teacher’s relative mentioned under the Second Schedule cannot be appointed in another institution also. Moreover, the relationship has also not been specified in the order as it is stated that one of the petitioners is close relative (Sage Sambandhi) of the principal of another institution. 22. Insofar as the third ground of the Regional Level Committee that complaints have been received about extraneous consideration in the selection, is totally vague and general and hence such sweeping allegation, in support of which no material has been brought before the Regional Level Committee, cannot be considered. It was not proper for the Regional Level Committee to accept the general and sweeping allegations and reject the selection of the petitioners without any material before it. 23. For all the reasons mentioned above, I find that all the three grounds mentioned in the impugned order dated 13.7.2009 are unsustainable, hence the order of the Regional Level Committee is set aside. The matter is remitted to the Regional Level Committee to pass a fresh order in the light of the observations made herein-above after furnishing opportunity to the petitioners expeditiously, preferably within two months from the date of communication of this order. The Regional Level Committee shall also consider the fact whether the aforementioned two newspapers have wide circulation or not. 24. With the aforesaid observations the writ petition stands allowed. 25. No order as to costs. 26. Registry of this Court is directed to send a copy of this judgment to the Secretary of Education (Madhyamik), U.P., Lucknow, the first respondent to issue a circular to the Joint Directors of Education and District Inspectors of Schools to comply with the directions issued in this order.