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2017 DIGILAW 90 (ALL)

ABHENDRA ANAND SINGH v. STATE OF U. P.

2017-01-09

DEVENDRA KUMAR UPADHYAYA

body2017
JUDGMENT Hon’ble Devendra Kumar Upadhyaya, J.—Heard Sri H.G.S. Parihar, learned Senior Advocate, assisted by Sri Diwakar Singh Kaushik and Ms. Meenakshi Singh, Advocates for the petitioner and learned Standing Counsel representing the State-respondents. Sri Harendra Kumar Srivastava, learned counsel representing the respondent No. 4 has also been heard. 2. This petition seeks to challenge the order dated 20.10.2016, passed by the District Inspector of Schools, Hardoi whereby he has disapproved the selection/appointment of the petitioner made by the Committee of Management of the institution, namely, Sudarshan Shiksha Sadan Inter College, Majhiya, District Hardoi against Class-III post in the said institution citing two reasons. 3. The first reason indicated in the impugned order is that in view of the ban imposed by the State Government on recruitment/appointment by means of Government Orders dated 15.3.2012 and 18.4.2012, the Committee of Management of the Institution could not have proceeded with the appointment of the petitioner and secondly, in absence of prior permission for initiating the process of selection to be given by the competent authority (Director of Secondary Education, U.P.), the appointment of the petitioner could not be approved. 4. So far as the first reason of alleged ban on appointment/recruitment in Intermediate Institutions duly recognized under the U.P. Intermediate Education Act, 1921 is concerned, it appears that the District Inspector of Schools is either not aware of the judgment of this Court in the case of Vipin v. State of U.P. and others, 2013(7) ADJ 274 or he has ignored the said dictum of this Court. The issue relating to application of Government Order dated 15.3.2012 imposing ban on recruitment/appointment has been considered by this Court in the aforesaid judgment in the case of Vipin v. State of U.P. and other (supra) and after elaborate discussions, it has been concluded by this Court in the aforesaid judgment that there is no justification for applying such absolute ban and that ban imposed by the Government Order dated 15.3.2012 cannot operate in relation to either Class IV or Class III appointment in an Intermediate College or Institution governed by the U.P. Intermediate Education Act, 1921. This Court in the case of Vipin v. State of U.P. and others (supra) has also relied upon subsequent Government Order dated 23.5.2012 and has observed that the State Government realizing that such a ban would adversely affect the education of children studying in recognized institutions and consequently itself issued the Government Order dated 23.5.2012 exempting its applicability on the appointment of the teachers. The Court has, thus, concluded that the alleged ban imposed by the Government Order dated 15.3.2012 will have no application so far as the appointments against Class III and Class IV posts in the recognized institutions in the State of U.P. are concerned. 5. The District Inspector of Schools has completely ignored the aforesaid judgment of the Court and has passed the impugned order relying on the alleged ban which in terms of the judgment of this Court in the case of Vipin v. State of U.P. and others (supra) will have no application in this case. 6. The other reason cited in the impugned order declining to accord approval to the appointment of the petitioner is based on the provisions of Regulation 101 of Chapter III of the Regulations framed under Intermediate Education Act, 1921. The earlier Regulation 101 was amended by a Notification dated 31.12.2009 and in terms of the said amendment, vide Notification dated 31.12.2009, it exists as under: ^^101- 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 Hkjsxk] 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 djsaxs] f'k{kk funs'kd] ekè;fed ds 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 djsxkA** 7. The said regulation was amended by means of Notification dated 4.9.2013, however, the amendment was only in respect to the appointments to be made against the vacancies of Class IV posts. The said regulation was amended by means of Notification dated 4.9.2013, however, the amendment was only in respect to the appointments to be made against the vacancies of Class IV posts. The amended Regulation 101 introduced vide Notification dated 4.9.2013 is as under: ^^fofu;e&101- fu;qfDr izkf/kdkjh fujh{kd ds iwokZuqeksnu ds flok; fdlh ekU;rk izkIr] lgk;rk izkIr laLFkk ds f'k{k.ksRrj ¼fyfid oxZ½ 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 miyCèk djk;sxk rFkk laLFkk esa Nk= la[;k n'kkZrs gq;s inksa dks Hkjs tkus ds vkSfpR; dks Hkh Li"V djsaxkA f'k{kk funs'kd ls vkns'k izkIr gksus ij ftyk fo|ky; fujh{kd mDr fjfDr;ksa ¼prqFkZ Js.kh fjfDr;ksa dks NksMdj½ dks Hkjus gsrq fu;qfDr izkfèkdkjh 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 prqFkZ Js.kh dh fjfDr;ksa ds laca/k esa dsoy vkmVlksflZax ds ek/;e ls O;oLFkk dh tk;sxhA ijUrq mijksDr O;oLFkk v'kkldh; lgk;rk izkIr laLFkkvksa ds lsokdky esa e`r f'k{kd vFkok f'k{k.ksRrj deZpkfj;ksa ds vkfJrksa dh HkrhZ gsrq lqlaxr fu;ekoyh 1981] le;≤ ij ;Fkk la'kksf/kr] ds vUrxrZ prqFkZ Js.kh ds fjDr inksa ij dh tkus okyh fu;qfDr ds laca/k esa ykxw ugha gksxhA** 8. Regulation 101 as it exists today and which in the instant case would be applicable is in two parts. The first part contains prohibition on the Committee of Management to the effect that it shall not fill in any non-teaching post except with the ”prior approval’ of the District Inspector of Schools. Second part contains a provision and according to which the District Inspector of Schools shall make available the number of vacancies to the Director of Secondary Education and he shall also give justification for filling up the post in view of the strength of the students and will seek the order from the Director of Secondary Education and there upon he shall accord his permission to the appointing authority i.e. the Management for making appointment and while granting such approval the District Inspector of Schools shall also require that rules relating to reservation and the standard be followed. 9. From a perusal of Regulation 101, it is clear that ‘prior permission’ for proceeding ahead with the selection process is sine qua non for making any appointment. 9. From a perusal of Regulation 101, it is clear that ‘prior permission’ for proceeding ahead with the selection process is sine qua non for making any appointment. It also transpires from bare reading of the Regulation 101 that any selection process can be undertaken and proceeded with by the appointing authority i.e. Management of the institution only after permission for the said purpose is accorded by the District Inspector of Schools. Once the permission has been granted by the District Inspector of Schools, the Committee of Management will proceed with the selection process after following the prescribed and requisite rules for selection and once the selection is made, the appointing authority i.e. Committee of Management will not be entitled to make appointment by issuing appointment order except with the ‘prior approval’ to be accorded by the District Inspector of Schools. The scheme of Regulation 101, thus, is that once the selection proceeds with the ‘prior permission’ for the said purpose having been accorded by the District Inspector of Schools, the Management i.e. appointing authority shall send requisite papers including proceedings of the selection to the District Inspector of Schools with the request for seeking his approval before going ahead with the appointment by issuing appointment order to the candidate concerned. 10. The distinction here thus needs to be drawn between ‘prior permission’ and ‘prior approval’. These two phrases in Regulation 101 occurr in two different contexts. The ‘prior permission’ is required to be given by the District Inspector of Schools after obtaining order from the Director of Secondary Education before the selection process could be initiated by issuing advertisement for appointment to the post in question. The ‘prior approval’ is required to be given by the District Inspector of Schools to the Committee of Management before the Committee of Management becomes empowered to make appointment by issuing appointment order to the candidate who stands selected in the selection. There are certain requisites which are taken care of by the District Inspector of Schools while granting ‘prior permission’ to the appointing authority i.e. Committee of Management for initiating the process of selection/appointment. There are certain requisites which are taken care of by the District Inspector of Schools while granting ‘prior permission’ to the appointing authority i.e. Committee of Management for initiating the process of selection/appointment. The requirements which need to be fulfilled granting ‘prior permission’ for going ahead for selection are that the District Inspector of Schools shall intimate the number of vacancies to the Director of Secondary Education and he shall also intimate the students strength and then will seek necessary order from the Director of Secondary Education. It is only on the order of the Director of Secondary Education that the District Inspector of Schools shall accord his permission to go ahead with the selection process to the appointing authority i.e. Committee of Management with the further direction that while making the selection, rules of reservation shall be followed and the prescribed norms for the post shall also be followed. 11. Thus, in case in a institution any vacancy against Class III post occurs for any reason, the Committee of Management on its own without ‘prior permission’ of the District Inspector of Schools to be accorded by him in terms of the Regulation 101, cannot proceed with the selection process and any selection process or course of selection adopted in absence of the ‘prior permission’ of the District Inspector of Schools will not be in conformity with the Regulation 101. It is further to be noticed that as per scheme of Regulation 101, once the ‘prior permission’ to initiate the process of selection is given by the District Inspector of Schools, the Committee of Management will proceed with the selection and will also follow the prescribed rules for selection such as issue of advertisement in newspapers, consideration of the cases of all eligible candidates and preparation of merit list etc. Once the process of selection is completed by the Committee of Management, the District Inspector of Schools is required to accord his approval before any appointment can be made. 12. Once the process of selection is completed by the Committee of Management, the District Inspector of Schools is required to accord his approval before any appointment can be made. 12. What needs to be examined by the District Inspector of Schools at the time of according his approval to the selection before appointment is as to whether the rules relating to reservation have been followed, as to whether all eligible candidates who have applied were considered, as to whether the selection process has proceeded by issuing advertisement and further as to whether the selection conducted by the Committee of Management has been fair or not. On consideration of these and other relevant factors, the District Inspector of Schools is required to accord his approval and it is only on his approval accorded to the selection process that the Committee of Management will appoint the candidate concerned by issuing appointment letter and the candidate so appointed becomes entitled to work and discharge his functions in the institution concerned. He becomes entitled to salary from the State Exchequer only in case the entire selection process has been conducted firstly with the ‘prior permission’ to go ahead with the selection and secondly ‘prior approval’ to the selection has been accorded by the District Inspector of Schools. 13. So far as the facts of the instant case are concerned, the vacancy against which the appointment is said to have been made, occurred on 1.8.2013 on retirement of regular incumbent on his attaining the age of superannuation. The institution is said to have a strength of 1800 students and there is only one post of clerk in the institution. Hard pressed on account of non-availability of clerk in the institution, the Committee of Management appears to have moved an application to the District Inspector of Schools on 18.7.2015 informing him that Management needs to go ahead with the selection against the vacancy which had occurred on 1.8.2013 and sought his ‘prior permission’ for the selection process to be initiated by the Management. Thereafter another application appears to have moved by the Committee of Management on 2.4.2016 reiterating the request therein that the Committee of Management may be given permission for initiating the process of selection. Another reminder appears to have been sent by the Committee of Management for the said purpose to the office of District Inspector of Schools on 12.5.2016. Thereafter another application appears to have moved by the Committee of Management on 2.4.2016 reiterating the request therein that the Committee of Management may be given permission for initiating the process of selection. Another reminder appears to have been sent by the Committee of Management for the said purpose to the office of District Inspector of Schools on 12.5.2016. All these letters/applications which have been annexed by the petitioner have not been denied by the District Inspector of Schools while filing his counter-affidavit. Thus, despite repeated requests having been made, the District Inspector of Schools did not take any decision on the prayer/request made by the Committee of Management for according his ‘prior permission’ for the selection process to be initiated by the Management. 14. In the compelling circumstances, which had arisen on account of non-availability of clerk in the institution where the students strength is 1800, the Committee of Management proceeded to go ahead with the selection even in absence of the permission of the District Inspector of Schools as contemplated in Regulation 101. The advertisement for the post in question was issued in two newspapers, namely, ‘Swatantra Bharat’ and ‘The Pioneer’ published on 19.5.2016, pursuant to which 9 applicants moved their applications to the Committee of Management including the petitioner, out of which, 4 were absent and thus, cases of 5 applicants were considered by the selection committee which met on 17.6.2016. The Management of the institution accordingly sent requisite papers including the proceedings of the selection to the District Inspector of Schools on 18.6.2016, on which instead of examining the matter in the correct perspective in which the provisions under Regulation 101 have been made by the regulations making body, the District Inspector of Schools has mechanically passed the impugned order disapproving the appointment of the petitioner. 15. It is true that prior to proceeding with the selection process, the ‘prior permission’ of District Inspector of Schools, which is to be on the basis of the order of the Director of Secondary Education as contemplated in Regulation 101, was not accorded by the District Inspector of Schools, however, no justification has come forth in the counter-affidavit filed by the District Inspector of Schools as to why despite receiving several requests seeking ‘prior permission’ for initiating process of selection, no decision for quite a long time by the District Inspector of Schools was taken. 16. 16. It has also worth noticing that the institution where appointment of the petitioner is said to have been made has a large number of 1800 students and in such a situation in absence of a regular clerk available in the institution, it is only a matter of conjecture to understand as to how the administration of the institution could be smoothly run and managed. District Inspector of Schools as the highest level district officer in the secondary education department of the State of U.P. is duty bound to take into account various difficulties being faced by the recognized institutions and he should accordingly take appropriate steps to ensure smooth functioning of the recognized institutions. 17. In the instant case, it appears that District Inspector of Schools was not alive to the situation which was caused in the institution on account of occurrence of vacancy on the post of clerk. The District Inspector of Schools ought to have disposed of the application dated 18.7.2015 moved by the Management within some reasonable time as per requirement of the Regulation 101 of the Regulations. Instead of disposing of the application and taking a decision on the prayer made by the Committee of Management seeking prior permission for initiating the selection process, the District Inspector of Schools sat idle on the matter and passed impugned order on 20.10.2016 only once he received the requisite papers containing the selection proceedings held by the Management on 17.6.2016 and now the reason indicated in the impugned order is that ‘prior permission’ as required under Regulation 101 based on the order of Director of Secondary Education being absent, the petitioner’s appointment cannot be approved. 18. Such an approach and course taken and adopted by the District Inspector of Schools where instead of realizing the problem with which the institution was faced with on account of non-availability of regular clerk in the institution he sat quiet over the matter, cannot be appreciated. 19. It is true that as to whether there exists justification for initiating the process of selection is to be decided by the District Inspector of Schools on the criterian given in the Regulation 101. 19. It is true that as to whether there exists justification for initiating the process of selection is to be decided by the District Inspector of Schools on the criterian given in the Regulation 101. The decision on the issue relating to prior permission for selection has to be based on various factors such as availability of clear vacancy against the sanctioned post, the position of occupied and vacant posts in terms of the Rules of reservation, the factum of availability of any candidate in the district waiting appointment on compassionate grounds and other relevant factors and relevant aspects can be considered only by the District Inspector of Schools in terms of the provisions contained in Regulation 101 on the information to be supplied by the Management of the institution and after verification of such informations by the District Inspector of Schools with the records available in his office. Regulation 101 which has been amended in the year 2009 requires the District Inspector of Schools to send certain informations to the Director of Secondary Education and it is only on his order that he can accord his permission, however, all this exercise need to be done and conducted by the District Inspector of Schools with expedition as is expected from him so that education and studies of the students in the institution do not get hampered. 20. In absence of any reason attributable to non-availability of sanctioned post or vacancy, fulfillment norms and sanctioned strength of the students and other relevant information having been mentioned in the impugned order, it is difficult for this Court to arrive at the correct conclusion as to whether the facts and circumstances of this case warrant direction for approving the appointment of the petitioner. The Court, in any case, cannot take its own view of these facts which is sole preserve of the District Inspector of Schools in terms of the provisions contained in Regulation 101. 21. Having observed as above, the Court also cannot appreciate the manner in which this case the District Inspector of Schools has proceeded inasmuch as he, instead of moving ahead for taking a decision on the request made by the Committee of Management seeking ‘prior permission’ for selection, did not take any decision and sat idle over the said matter. 22. Having observed as above, the Court also cannot appreciate the manner in which this case the District Inspector of Schools has proceeded inasmuch as he, instead of moving ahead for taking a decision on the request made by the Committee of Management seeking ‘prior permission’ for selection, did not take any decision and sat idle over the said matter. 22. In overall facts and circumstances of the case, the Court feels that interest of justice would be served in case direction is issued to the District Inspector of Schools to examine the entire matter in terms of the provisions contained in Regulation 101 of Chapter III of the Regulations framed under U.P. Intermediate Education Act, 1921. He shall, thus, examine the issue concerning justification for appointment against the post in question in the institution on the parameters as given in the Regulation 101 and then intimate the Director of Secondary Education furnishing the informations as required in the aforesaid Regulation. The Director of Secondary Education will, thus, examine the matter and pass order in terms of the Regulation 101 on the issue as to whether the requisite criteria were fulfilled at the time when the Committee of Management had initiated the process of selection by issuing advertisement on 19.5.2016. In case the Director of Secondary Education is satisfied that there existed justification for the Management to have proceeded with the selection process by issuing advertisement on 19.5.2016, he will intimate the District Inspector of Schools accordingly, who will pass order according his permission for selection process and such order shall be treated to be ‘prior permission’ for initiating selection process in the instant case. 23. Once the Director of Secondary Education intimates his order to the District Inspector of Schools, he, as required above in this judgment, will examine as to whether the selection process adopted by the Committee of Management of the Institution was in terms of the provisions contained in the prescribed rules and as to whether the selection process has been fair and the most meritorious candidate has been selected. Based on determination of this issue, the District Inspector of Schools shall pass an order relating to ‘prior approval’ for appointment of the petitioner. Based on determination of this issue, the District Inspector of Schools shall pass an order relating to ‘prior approval’ for appointment of the petitioner. In case the ‘prior approval’ for appointment of the petitioner is accorded, the Committee of Management will thereafter appoint the petitioner by issuing appointment order and from the date of petitioner’s joining, if any, he shall be entitled to be paid salary from the State Exchequer. The entire exercise under this order shall be completed within a period of three months from the date of production of certified copy of this judgment. The Director of Secondary Education and District Inspector of Schools while taking decision in terms of this order, will be guided by the provisions contained in Regulation 101 and will be at liberty to call for any report or document from their subordinates as also from the Committee of Management of the Institution concerned. 24. The impugned order dated 20.10.2016, passed by the District Inspector of Schools, Hardoi, as is contained in Annexure No. 1 to the writ petition, is thus quashed and the writ petition is allowed in the aforesaid terms. There will be no order as to costs.