Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 17 (ALL)

Sampurna Nand Dikshit v. D. I. O. S. , Deoria

2019-01-02

ASHOK KUMAR

body2019
JUDGMENT : Ashok Kumar, J. 1. Heard Sri R.C. Dwivedi, learned counsel for the petitioner and Sri Sriprakash Singh, learned standing counsel. 2. The instant writ petition is filed by the petitioner by which the petitioner has challenged the order dated 27.1.2000 passed by the District Inspector of Schools, Deoria (In short 'DIOS'). The DIOS has observed in his order that from the perusal of the documents available on records it is transpired that in the institution there were 14 posts of Class-IV employees whereas 13 posts were found filled and one post was found vacant. The DIOS has also observed in its order that an illegal order of appointment of the petitioner was issued by the principal of Shahid Madhuban Karamad Inter College, Khori Bari, District Deoria and the order of appointment was found without authority of law therefore the DIOS has rejected the request of the principal to grant the permission of appointment and the financial assistance. 3. The brief facts of the case are that the brother of the petitioner namely Vivekanand Dixit was studying in the institution namely, Shahid Madhuban Karamad Inter College, in Class-12. An unfortunate incident took place in between two groups of the students of the college on 2.11.1996 in which the brother of the petitioner Vivekanand Dixit sustained serious injuries and ultimately he died. 4. The petitioner approached the principal of the college for his appointment on Class-IV post. The principal of the college and the committee of management of the college has decided to appoint the petitioner as Class-IV employee after considering the fact that the real elder brother of the petitioner died on account of unfortunate incident which took place in the institution therefore the claim of the petitioner on humanitarian ground was accepted. 5. The principal had issued a letter dated 16.3.1999 (Annexure 1 to the writ petition) by which the petitioner was appointed as Parichalak (Peon) and it was directed that if the petitioner will fail to join on the post of Parichalak within a period of ten days the letter of appointment will be null and void. 6. According to the petitioner's counsel the petitioner has joined on the post of Parichalak/peon on 21.3.1999 and thereafter a certificate was issued by the principal of the institution describing the date of joining being 21.3.1999 (Annexure 2 to the writ petition). 7. 6. According to the petitioner's counsel the petitioner has joined on the post of Parichalak/peon on 21.3.1999 and thereafter a certificate was issued by the principal of the institution describing the date of joining being 21.3.1999 (Annexure 2 to the writ petition). 7. Annexure 3 to the writ petition is a letter issued by the principal of the institution, respondent no.2, addressed to the respondent no.3 the DIOS, Deoria dated 15.3.1999 and the contents of the said letter indicates that one Ram Keshav Vishwakarma who was the peon in the institution has been appointed as assistant teacher on 9.11.1990 and with effect from that date Sri Ram Keshav Vishwakarma is getting the salary of assistant teacher therefore, one post of peon is vacant. 8. In this background vide his letter dated 15.3.1999 it was requested by the principal of the institution to the DIOS that there is requirement/necessity of one more peon in the institution and since one post of Class-IV employee is vacant he has appointed the petitioner on the post of Parichalak/Peon vide his appointment letter dated 15.3.1999. 9. In tern the DIOS, Deoria has replied to the principal by issuing a letter dated 4.12.1999 by which he has informed that on the date of appointment of the petitioner the order of the State Government was exist not to appoint any one on the post of Class IV whereas the petitioner was wrongly appointed on the post of peon ignoring the order of State Government. The DIOS has further indicated in his letter that the principal has acted illegally while issuing the appointment letter to the petitioner and appointing the petitioner on Class-IV post. 10. In pursuance of the letter dated 4.12.1999 the principal has issued a letter dated 13.12.1999 addressed to the DIOS, Deoria admitting therein that the restriction was issued by State Government of appointment on Class-IV post however in special circumstances with the prior permission of the DIOS the vacant post of Class-IV employee can be filled up. 10. In pursuance of the letter dated 4.12.1999 the principal has issued a letter dated 13.12.1999 addressed to the DIOS, Deoria admitting therein that the restriction was issued by State Government of appointment on Class-IV post however in special circumstances with the prior permission of the DIOS the vacant post of Class-IV employee can be filled up. The principal has mentioned/accepted in his reply that he has committed an illegality while issuing the appointment letter in favour of the petitioner but that was because of some peculiar circumstances as due to said demise of elder brother of the petitioner the appointment letter in favour of the petitioner was issued, which was with the consent of the committee of management as such the same was a sympathetical attitude of the institution. The principal has reiterated his request for financial assistance and the approval. 11. The DIOS vide his impugned order dated 27.1.2000 has refused to provide any financial assistance and has categorically observed that the act of the principal of the institution was wholly illegal and against the provisions of law as well as against the decision of the State Government. 12. The petitioner has challenged the order dated 27.1.2000 passed by the DIOS on the ground that the order impugned dated 27.1.2000 is bad and further prayed for issuance of a mandamus directing the respondents to pay the arrears of salary and future salary and to permit him to work as Class-IV employee in the institution. 13. This Court has passed an interim order in favour of the petitioner on 29.3.2000 permitted the petitioner to work on Class-IV post in case if the petitioner is already working. 14. A counter affidavit is filed by one Sri Manoj Kumar Dwivedi, the then DIOS, Deoria and the contents of the said affidavit clearly indicates that the issuance of the appointment letter in favour of the petitioner was wholly illegal as such was issued without authority of law and against the provisions of Regulation 100 to 107 of Chapter 3 of U.P. Intermediate Education Act, 1921. 15. Surprisingly, no stay vacation application was filed by the State therefore, the interim order passed by this Court dated 29.3.2000 is still continuing and the petitioner may be working on the post of Class-IV employee since last about 18 and half years. 16. 15. Surprisingly, no stay vacation application was filed by the State therefore, the interim order passed by this Court dated 29.3.2000 is still continuing and the petitioner may be working on the post of Class-IV employee since last about 18 and half years. 16. Admittedly, the institution where the petitioner is working as Class-IV employee is a recognised aided institution of U.P. Intermediate Education Act, 1921. 17. The issue in hand is confined whether the appointment of the petitioner on the post of Class-IV employee is valid or not. 18. Learned counsel for the petitioner has placed reliance of the provisions of Regulation 100 and 101. 19. Regulation 100 provides the procedure of appointment of clerk which includes the librarian. It further provides the appointment of Class-IV employee temporarily for the period of one year. The contents of Regulation 100 stipulates, so far as Class-IV employees are concerned that the same will be governed by the Regulation 77 to 82 whenever the State Government issues the instructions in this regard. 20. Regulation 101 before its amendment provides as follows: “101. Appointing Authority except with prior approval of Inspector shall not fill up any vacancy of non-teaching post of any recognised aided institution. Provided that filling of the vacancy on the post of Jamadar may be granted by the Inspector.” 21. 20. Regulation 101 before its amendment provides as follows: “101. Appointing Authority except with prior approval of Inspector shall not fill up any vacancy of non-teaching post of any recognised aided institution. Provided that filling of the vacancy on the post of Jamadar may be granted by the Inspector.” 21. By the amended notification the Regulation 101 was amended w.e.f. 4th of September 2013, which provides as follows: ^^101- fu;qfDRk izkf/kdkjh fujh{kd ds iwokZuqeksnu ds flok; fdlh ekU;rk izkIr lgk;rk izkIr laLFkk ds f'k{k.ksŸkj ¼fyfid laoxZ½ in dh fjfDr dks ugh 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, 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 vkSj vuqefr iznku djrs le; 'kklu }kjk fu/kkZfjr vkj{k.k fu;eksa ,oa inks ds vkSfpR; ds fy;s fu/kkZfjr ekudks dk ikyu djk;sxkA prqFkZ Js.kh dh fjfDr;ksa ds lEca/k esa dsoy vkmVlksflZx ds ek/;e ls O;oLFkk dh tk;sxhA ijUrq mijksDr v'kkldh; lgk;rk izkIr laLFkkvks ds lsokdky esa e`r f'k{kd vFkok f'k{k.ksŸkj deZpkfj;ksa ds vkfJrksa dh HkrhZ gsrq lwalxr fu;ekoyh] 1981] le;≤ ij ;Fkk la'kksf/kr ds varZxr prqFkZ Js.kh ds fjDr inksa ij dh tkus okyh fu;qfDr ds lEca/k esa ykxw ugh gksxhA^^ (Translation of Hindi Text) The appointing authority shall not fill any vacancy of the non-teaching staff of recognised aided institutions, except with the approval of Inspector, subject to a restriction that the District Inspector of Schools shall make available total number of vacancies to Director of Education (Secondary Education), putting forth justification for the filling of the vacancies. On receipt of order from the Director of Education (Secondary Education), the District Inspector of Schools shall, for filling said vacancies, give permission to the appointing authority; and while giving such permission he shall ensure to follow the reservation rules specified by the government and the prescribed norms in justification for the posts. With respect to the Class-IV vacancies, arrangements shall be made by way of outsourcing only; but the relevant rules, 1981, as amended from time to time, for recruitment of dependants of teaching or non-teaching staff of the non-government aided institutions dying in harness shall not be applicable in relation to the appointments to be made on the vacant posts of Class-IV category.” (Translation by the order of Court) 22. From perusal of the aforesaid original Regulation 101 and amended Regulation 101 it is clear that no post of Class-IV employee of any recognised aided institution can be filled up without the permission of the DIOS. The amended Regulation further provides that while granting the permission The DIOS is required to consider the rules related to the post of reserved category. It further provides that to fill up Class-IV post the procedure for out sourcing based to be applied. Amended Regulation 101 further provides that the recognised aided institution has to comply with the provisions related to the members of the family of the deceased employee while applying the procedure as so provided under Regulation 1981. 23. In the instant case while issuing the appointment letter in favour of the petitioner the principal has not applied any procedure and in fact he has issued the appointment letter dated 16.3.1999 whereas the request letter for grant the permission for appointment was issued by the principal a day before issuing the letter of appointment i.e. on 15.3.1999. 24. Admittedly, the appointment of the petitioner has not been approved by the DIOS and in fact the same was rejected vide impugned order dated 7.1.2000. 25. Learned counsel for the petitioner has placed reliance of a division bench judgment of this Court in the case of Jagdish Singh S/o Dildar Singh vs. State of U.P. and others reported in 2006(6) AWC 6481. Learned counsel for the petitioner placed reliance on para 21 of the said judgment which is quoted hereinbelow : “The observation "of the learned single Judge in Ram Dhani's case (supra) that previous approval under Regulation 101 is required to be taken before issuing advertisement for filling up vacancy does not lay down correct law. We, however, make it clear that although prior approval is required from the District Inspector of Schools after completion of process of selection but there is no prohibition in the Principal/Management to seek permission of the District Inspector of Schools for filling up vacancy by direct recruitment. The permission may or may not be granted by the District Inspector of Schools but even if such permission to start the selection process or to issue advertisement is granted that is not akin to prior approval as contemplated under Regulation 101.” 26. The permission may or may not be granted by the District Inspector of Schools but even if such permission to start the selection process or to issue advertisement is granted that is not akin to prior approval as contemplated under Regulation 101.” 26. On the other hand learned standing counsel has placed reliance on paragraphs 8, 9, 18, 20 and 21 of the said judgment of Jagdish Singh (Supra). 27. Learned standing counsel has submitted that admittedly the case in hand is not a case by which the petitioner can claim for an entitlement for compassionate appointment. He has submitted that the petitioner is younger brother of the deceased who had sustained severe injuries in college on account of the incident which took place between two groups of the students, but that cannot be a ground for appointment. He has therefore submitted that the petitioner is not entitled for compassionate appointment and therefore the appointment of the petitioner was totally illegal and is liable to be cancelled. 28. I have heard the counsel for the petitioner and considered the submissions of the counsel for the parties and perused the judgment relied by both the counsels and I found that in the instant case admittedly no procedure was applied by the respondents to appoint the petitioner on the post of Class-IV employee (Peon), hence no relief can be granted to the petitioner. 29. The writ petition has no merit as such is dismissed. Interim order dated 29.3.2000 is vacated.