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2017 DIGILAW 2179 (ALL)

SATYENDRA KUMAR UPADHYAY v. STATE OF U. P.

2017-09-15

ASHWANI KUMAR MISHRA

body2017
JUDGMENT Hon’ble Ashwani Kumar Mishra, J.—Heard Sri S.B. Singh for the petitioner, learned Standing Counsel for the State and Sri Surendra Singh holding brief of Sri Rajesh Kumar Tiwari, learned counsel appearing for the Committee of Management. 2. This petition is directed against an order dated 22nd February, 2014 passed by District Inspector of Schools, Varanasi, refusing to grant of financial approval to petitioner’s appointment on the post of Assistant Teacher. Facts giving rise to filing of this petition are that their exists a minority recognized aided institution imparting education upto senior secondary level, known as Cutting Memorial Inter College, Varanasi. An assistant teacher in L.T grade, namely Sanjay Philip was promoted to the post of Lecturer vide resolution dated 12th July, 2003. The post against which Sanjay Philip got promoted had fallen vacant due to superannuation of previous incumbent on 30th June, 2003. The Committee of Management, in accordance with the procedure contemplated under Section 16-FF of the U.P. Intermediate Education Act, 1921 proceeded to advertise the post on 9th July, 2003, and the Selection Committee of five members was constituted. The petitioner, alongwith larger number of other persons are stated to have applied and the interview was held by the selection committee on 24th August, 2003. As the petitioner scored the highest quality point marks in the interview, as such, he was selected, and papers were forwarded to District Inspector of Schools for grant of financial approval on 5th September, 2003. The papers are reported to have remained pending, and no order specifically approving or disapproving the appointment was passed. It was in this circumstance that petitioner approached this Court earlier by filing Writ Petition No. 21260 of 2007 (Satyendra Kumar Upadhyay v. State of U.P. and 3 others), which was disposed of on 30th April, 2007, directing the District Inspector of Schools, Varanasi to take a final decision in the matter within a period of eight weeks, keeping in view the provision of Section 16-FF, as well as Regulation 17 of Chapter-II of the Regulations framed under the U.P. Intermediate Education Act, 1921. 3. It is on record that despite such direction and service of copy of the order, no decision was taken. 3. It is on record that despite such direction and service of copy of the order, no decision was taken. It appears that thereafter a contempt petition was filed being Contempt Petition No. 715 of 2014 (Saytendra Kumar Upadhyay v. Chandra Jeet Yadav, Dios), and directions were issued on 31.1.2014, reiterating the earlier direction for taking a decision in the matter. It is thereafter that petitioner’s claim has been examined and financial approval has been denied by the impugned order. The order assigns following reasons to deny financial approval to the petitioner’s appointment : (i) That the post against which the petitioner is stated to have been appointed came into existence on 12th July, 2003, whereas advertisement was issued in Hindi Newspaper on 9th July, 2003, which was impermissible. (ii) The approval to the promotion of Sanjay Philip was granted on 20.11.2006, and therefore the appointment process of petitioner could not have been started on 9th July, 2003. (iii) That there are 210 students in the institution, against which 17 teachers are already working, and there is no justification to grant financial approval. (iv) The publication of advertisement in newspapers ‘Kashivarta’ and ‘Nispaksha Bharat Doot’ does not meet the requirement of publication in terms of regulations. (v) That in accordance with the reports of the management, petitioner is not working. 4. In the writ petition filed before this Court, Committee of Management of institution has filed a counter-affidavit. The appointment of petitioner is supported by the institution concerned. A counter-affidavit has also been filed by the State, in which reasons stated in the impugned order have been reiterated. 5. A rejoinder-affidavit has been filed denying the averments so made in the counter-affidavit. 6. Sri S.B.Singh, learned counsel for the petitioner, makes following submission : (i) Since the vacancy on the post of lecturer came into existence on 30th June, 2003, and the Committee of Management was in the process of making promotion, as such, against the anticipated vacancy, the committee could advertise the post, and once approval to the promotion was granted, then it would relate back to the date of order of promotion itself. Reliance in that regard is placed upon a judgement of this Court in 15780 of 2004 (Zeeshan Alam and another v. State of U.P.). Reliance in that regard is placed upon a judgement of this Court in 15780 of 2004 (Zeeshan Alam and another v. State of U.P.). (ii) It is contended that the appointment was not only made but was duly intimated to the Inspector concerned, but no decision was taken in the matter. Reliance is placed upon regulation 17 (G) of the Regulations framed under Chapter-II of the U.P. Intermediate Education Act, in order to contend that in case no disapproval is made within a period of six months, then by virtue of operation of law, the approval would be deemed to be granted, and it was impermissible for the authorities to take a contrary view. (iii) It is also contended that appointment of the petitioner was validly made in accordance with the Section 16-FF, and the ground to non suit the petitioner are unsustainable in law. 7. Learned Standing Counsel has reiterated the stand taken in the counter-affidavit, and in the order impugned, in opposition to the submissions of Sri S.B. Singh, learned counsel for the petitioner. 8. Appointment to the post of Assistant Teacher in the recognized Intermediate Institution is to be made under Section 16 FF of the U.P. Intermediate Education Act. Section 16 (FF) reads as under : “16-FF. Savings as to minority institutions.—(1) Notwithstanding anything in sub-section (4) of Section 16-E, and Section 16-F, the Selection Committee for the appointment of a Head of Institution or a teacher of an institution established and administered by a minority referred to in Clause (1) of Article 30 of the Constitution shall consist of five members (including its Chairman) nominated by the Committee of Management : Provided that one of the members of the Selection Committee shall - (a) in the case of appointment of the Head of an Institution, be an expert selected by the Committee of Management from a panel of experts prepared by the Director; (b) in the case of appointment of a teacher, be the Head of the Institution concerned. (2) The procedure to be followed by the Selection Committee referred to in sub-section (1) shall be such as may be prescribed. (2) The procedure to be followed by the Selection Committee referred to in sub-section (1) shall be such as may be prescribed. (3) No person selected under this section shall be appointed, unless, - (a) in the case of the Head of an Institution the proposal of appointment has been approved by the Regional Deputy Director of Education; and (b) in the case of a teacher such proposal has been approved by the Inspector. (4) The Regional Deputy Director of Education or the Inspector, as the case may be, shall not withhold approval for the selection made under this section where the person selected possesses the minimum qualifications prescribed and is otherwise eligible. (5) Where the Regional Deputy Director of Education or the Inspector, as the case may be. does not approve of a candidate selected under this section, the Committee of Management may, within three weeks from the date of receipt of such disapproval, make a representation to the Director in the case of the Head of Institution, and to the Regional Deputy Director of Education in the case of a teacher. (6) Every order passed by the Director or the Regional Deputy Director of Education on a representation under sub-section (5) shall be final.” 9. Regulations have also been framed under Chapter-II and by virtue of regulations 17 (g), a provision is made that in case the proposal for grant of approval is duly intimated to the Inspector, upon which no decision is taken within a period of six months, then such proposal would be deemed to have been granted by the Inspector. 10. In the facts of the present case, it is to be seen that a vacancy on the post of lecturer had fallen vacant on account of retirement of previous incumbent. The Committee of Management appears to have proceeded with steps to fill up the post by way of promotion, and also to advertise the resultant vacancy on the post of Assistant Teacher in LT grade. On 12th July, 2003, Sanjay Philip was promoted by specific resolution passed by Committee of Management. Admittedly, this resolution has been approved by District Inspector of Schools on 27.11.2006, and in view of the law settled the grant of approval would relate back to the date of approval itself. On 12th July, 2003, Sanjay Philip was promoted by specific resolution passed by Committee of Management. Admittedly, this resolution has been approved by District Inspector of Schools on 27.11.2006, and in view of the law settled the grant of approval would relate back to the date of approval itself. This aspect of the matter, in the context of a minority aided Intermediate Institution was the subject-matter of consideration in Zeeshan Alam (supra). The observations made in that regard reads as under : “The facts are not disputed, and as such, with the consent of the parties, the matter was heard for final decision at this stage. In the present case, the District Inspector of Schools approved the promotion of L.T. grade teachers in lecturers grade. The approval given by the District Inspector of Schools will relate back to the date of resolution for promotion. In U.P. Avas Evam Vikas Parishad v. Friends Corp. Housing Society Ltd., (1995 Supp. (3) SCC. 456), relying upon L.I.C. of India v. E cort Ltd., (1986) 1 SCC 264 , it was held that once approval is given, all the previous acts done or actions taken in anticipation of the approval get validated. In the present case, the approval validated the promotions, and thus the vacancies arose in L.T. grade on the date of resolution and not on the date of approval. I am not inclined to accept the submission regarding deemed approval inasmuch as sub-section (4) of Section 16-FF mandates that the Inspector to satisfy himself if the person selected is eligible and holds minimum qualifications. It is contended that the selections were made after following the due procedure and that the petitioner are eligible and qualified. I find that the District Inspector of Schools, Azamgarh has committed gross error in refusing the approval on the ground that vacancies arose only after the approval of promotions. For the aforesaid reasons, the writ petition is allowed. The impugned orders dated 7.4.2004 are set aside. The District Inspector of Schools, Azamgarh shall consider the matter of approval of appointments of petitioners Zeeshan Ali and Tariq Moh. Khan as L.T. grade teachers within six weeks of production of certified copy of this order.” 11. In such circumstances, the appointment of the petitioner would not be vitiated, only on the ground that the promotion has been accorded approval by the Inspector subsequent in point of time. Khan as L.T. grade teachers within six weeks of production of certified copy of this order.” 11. In such circumstances, the appointment of the petitioner would not be vitiated, only on the ground that the promotion has been accorded approval by the Inspector subsequent in point of time. The fact that the Committee had proceeded to permit the incumbent on the post of lecturer, awaiting approval of promotion from the inspector, is otherwise not disputed. It is further not in dispute that the intimation of petitioner’s selection and regularization for grant of approval was communicated to the Inspector vide letter dated 5th September, 2003. No decision for a period of more than six months was taken even thereafter. A Writ Petition No. 21260 of 2007 was filed, which was disposed of on 30.4.2007, requiring the authority concerned to take a decision within eight weeks. It is after expiry of more than seven years of this order, particularly when a contempt petition was also filed, and entertained, that the authority concerned has proceeded to pass an order. It is not in issue that petitioner possesses the requisite qualification, and no decision was taken within a period of six months, granting or disapproving the proposal. 12. In the matter of grant of financial approval to the recognized minority institution, the legislature has not left it to the discretion of the educational authorities to withhold the grant of approval for an indefinite period. 13. Sub-Section (4) of Section 16-FF clearly mandate the authority concerned not to withhold the approval for selection in case the person selected possesses the minimum qualification prescribed and is otherwise eligible. There is no issue on factual proposition that petitioner possesses the minimum qualification prescribed for appointment to the post, inasmuch as he possesses M.A. and B.Ed qualification, and is otherwise eligible. Position is further clarified by regulation 17 (g) of the regulations framed under the U.P. Intermediate Education Act, as per which in case no approval is granted or refused within a period of six months, then the deeming fiction is contemplated in law, as per which such appointment would be deemed to have been approved. 14. In the facts of the present case, as no decision has been taken within six months of submission of papers for approval as such the deeming fiction had come into play. 14. In the facts of the present case, as no decision has been taken within six months of submission of papers for approval as such the deeming fiction had come into play. Even otherwise, in view of the statutory scheme, authorities were not justified in withholding the matter for grant of financial approval indefinitely. Once the deeming fiction had come into play and the conditions contemplated under Section 16 (4) of the Act were otherwise met, the authorities could not have non suited the petitioner by the order passed after six months. 15. The denial of benefit of deeming clause in the facts and circumstances, is wholly arbitrary. Even otherwise, this Court finds that reason assigned to non suit the petitioner in that regard are not sustainable, inasmuch as mere reduction in the number of students was not a relevant consideration to deny grant of financial approval, when the requisite number of posts had already been sanctioned and were subsisting. The post was also published and selection proceedings had been furnished before the authority concerned. For such reasons, the order dated 22.2.2014 cannot be sustained, and is set aside. The District Inspector of Schools is directed to pass a fresh order, within a period of two months from the date of presentation of certified copy of this order, keeping in view the observations made above.