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2019 DIGILAW 1967 (ALL)

Santosh Singh v. State of U. P.

2019-08-19

SAURABH SHYAM SHAMSHERY

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ORDER : Saurabh Shyam Shamshery, J. 1. Petitioners in the present writ petition have earlier approached this Court by way of filing Writ A No. 12642 of 2007 (Santosh Singh and others Vs. State of UP), challenging the order dated 13.12.2006 whereby the financial approval to the selection of the petitioners as Class-IV employees at the respondent's college was declined. The said writ petition was disposed of with the following observation and directions:- "I further find from the discussion part coming in the impugned order that the District Inspector of Schools has not been able to give any cogent and convincing finding as to how 13 vacancies come to be recorded as sanctioned strength of Group D positions even as per the financial Survey 1988-89 if in the subsequent report of the year 2008, the District Inspector of Schools has come to record that there were 14 posts sanctioned. Such findings by District Inspector of Schools must have been after due verification. However, in the present impugned order he does not state as to what is the source of the verification. It is clearly established that the financial survey is not ultimate verdict on the question of the sanctioned strength. Sanctioned strength means is the strength sanctioned by the State Government or by the Competent Authority. The financial survey subsequently carried out is only relating to the strength of the students and requirement but by that the real sanctioned strength cannot be washed away and the District Inspector of Schools is hide bound in law to record categorical findings of fact regarding sanctioned strength. Apart from this, the District Inspector of Schools has come to consider that there were at least 6 sanctioned posts available then the entire selection cannot go. On the date of consideration of approval, he has to consider whether the persons who have been selected and whose appointment is proposed can be appointed in the Institution or not unless and until he comes to record a finding that there were serious procedural flaw in the selection procedure and that selection process was do hors the rules and that selection was violating the procedure in matter of public employment being offered to the principles authorized under Article 14 and 16 of the Constitution. In absence of any such findings being recorded, the District Inspector of Schools ought to have considered the present strength of Group-'D' positions in the Institutions even going by the factor of 13 as determined by him in the impugned order. In view of the fact that the subsequent report, 2008 records that there were only class-III employee working in the Institution, I am of the considered opinion that the District Inspector of Schools while considering the question of approval shall take pragmatic view of the entire circumstances of the case prevailing at present. The question of prior approval for the purposes of recruitment in selection and the constitution of Selection Committee having been answered in affirmative in favour of the petitioners, I am while quashing the order of the District Inspector of Schools dated 13th December, 2006 remitting the matter for the limited consideration on the issue of sanctioned strength only. The District Inspector of Schools shall reconsider the matter and shall verify the records as to what is the exact sanctioned strength of the Group-D employees in the Institution. He will also consider as to what number of employee is actually working in the Institution. In case, he finds that there are sufficient vacancies, he shall consider the question of granting approval to the petitioners from that angle as well. With the aforesaid observations and directions the writ petition is allowed." (emphasis supplied) 2. In compliance of above-mentioned order dated 21.05.2018, the District Inspector of Schools, Azamgarh vide order dated 26.10.2018 declined to grant approval of the petitioners as well as of three other persons (Petitioners in the connected Writ Petition No. 6048 of 2019, Santosh Kumar Singh vs. State of U.P. and others) on the post of Class IV employees. The said order is under challenge in both the writ petition. 3. Shri Anil Bhushan, learned Senior Advocate assisted by Shri Arun Kumar Singh, Advocate and Shri Vinod Kumar Singh Parmar, Advocate on behalf of the petitioners submitted that this Court vide order dated 21.05.2018 has directed the District Inspector of Schools to reconsider the matter only on the limited issue to verify the record as to what is the exact strength of the Group D employees in the Institution. However, the respondent - DIOS has travelled beyond the said direction and declined the approval of petitioners and others on the ground that the appointment on the post of Class-IV in such colleges have to be made only by way of outsourcing. The other ground for rejection is Janshakti (Student-Teacher ratio) dated 22.02.2013. 4. Learned counsel further submitted that the maters was remanded back to the DIOS for reconsideration only on the limited issue to verify the record as to what is the sanctioned strength of the Group D employees in the Institution. The DIOS has also wrongly considered the effect of pendency of Writ Petition No. 15913 of 2018 (Ajesh Soni Vs. State of UP) which was relating to the appointment made in the year 2016 on the post of Class-IV employees. The further submission made by learned Senior Counsel is that presently 9 vacant posts of Class-IV employees are available in the college. 5. Learned Senior Counsel also submitted that this Court in the judgment passed in the matter of Principal Abhyanand College and another Vs. State of UP and others reported in 2018 Law Suit (LSS) 4099 wherein it has held that the order of the Government to the effect that Class IV posts can be filled only by way of outsourcing is bad in law and further ratio of strength of students to availability of posts (Janshakti) which was determined in the year 2013 cannot be made applicable retrospective as the appointments in the present matter are of the year 2006. On the basis of these submissions, learned counsel submitted that impugned order is illegal, arbitrary and is liable to be rejected. 6. Shri R.P. Dubey, Additional Chief Standing Counsel appearing on behalf of respondents No. 1 to 3 has relied upon the counter affidavit filed on behalf of the said respondents and relied upon contention of para 8 of the counter affidavit that "That the contents of paragraph-12 and 13 of the Writ Petition are not admitted as stated, hence denied. In reply thereto it is submitted that in absence of any clarity in respect of availability of vacant posts of Class IV Employees in the Institution in question, therefore, it was not legally permissible to grant approval to the appointment of alleged 7 Peons in the Institution." 7. Learned counsel further stated that at present only 5 posts are vacant. In reply thereto it is submitted that in absence of any clarity in respect of availability of vacant posts of Class IV Employees in the Institution in question, therefore, it was not legally permissible to grant approval to the appointment of alleged 7 Peons in the Institution." 7. Learned counsel further stated that at present only 5 posts are vacant. Therefore, financial approval to 7 posts cannot be granted. Learned counsel further submitted that as per the Janshakti of 2013, only 5 posts are vacant. 8. Shri Satya Prakash Mishra, learned counsel appearing on behalf of respondent no. 4 - College has relied upon a communication made by the College to the concerned DIOS wherein it has been specifically mentioned that in the year 2004, in all 7 Class IV employees were superannuated and as such in the year 2007, there were 7 clear vacancies. Learned Counsel further submitted that this communication was not taken note of by the DIOS in the impugned order. 9. Considered the submissions, short notes filed on behalf of the parties and perused the record. It is clear from the order dated 21.05.2018 passed in the Writ A No. 12642 of 2007 that the matter was remanded to the District Inspector of Schools for reconsideration only on the issue of verification of the records in order to verify the exact sanctioned strength of Group D employees in the Institution and in case of sufficient vacancies, the DIOS was directed to consider the question of granting of approval to the petitioners. The DIOS while considering the above-mentioned issue has travelled beyond the direction of this Court and taken note of the other issues such as pendency of another writ petition, appointment by outsourcing only and Janshakti 2013 in order to reject the claim of the petitioners. Though the DIOS has come to the specific conclusion that presently 5 posts of Class IV employees are vacant, however, the DIOS has not considered to grant approval to at least five petitioners out of seven petitioners of the two writ petitions. This approach of the DIOS is not correct. 10. Though the DIOS has come to the specific conclusion that presently 5 posts of Class IV employees are vacant, however, the DIOS has not considered to grant approval to at least five petitioners out of seven petitioners of the two writ petitions. This approach of the DIOS is not correct. 10. The stand taken by State in their counter affidavit filed in the present writ petition that there was absence of clarity in respect of the availability of vacant list of Class IV employees in the Institution-in-question is contrary to the decision taken by the DIOS vide impugned order that at present, 5 posts are vacant on the basis of the record available. Therefore, the ground of not granting approval for at least 5 posts by the DIOS is unsustainable. The DIOS has travelled beyond the direction given by this Court. As per the case of the respondent's college in the year 2004, there were seven posts of Class IV employees and the DIOS vide impugned order has come to the conclusion that there are five vacant posts of Class IV in the Institution. Learned counsel for the petitioners has not able to point out any error in the finding arrived by the DIOS on the number of vacant posts. Therefore, substantial justice will be granted at least to the five petitioners out of total seven petitioners in the writ petitions, who are raising their cause since 2004, if they are adjusted against the said five vacant posts. 11. The details of the 7 writ petitioners in both the writ petitions according to their marks obtained in the interview are as follows:- Sl. No. Names of selected candidates Marks in interview Qualifying Category 1. Dharamraj Jaiswara 25 S.C. 2. Ramesh Yadav 28 O.B.C. 3. Ram Sevak Yadav 34 General 4. Jaya Singh 33.5 General 5. Abhishek Singh 33 General 6. Santosh Singh 32 General 7. Santosh Kumar Singh 31.5 General 12. In view of the above discussion, this writ petition is partly allowed by setting aside the impugned order 26.10.2018 to the extent that DIOS after coming to the conclusion that there are five vacant posts but has not opted to pass order for approval to any of the petitioners. Accordingly, the DIOS is directed to grant approval to petitioners at serial nos. Accordingly, the DIOS is directed to grant approval to petitioners at serial nos. 1 to 5 (chart mentioned above) towards the five vacant post of Class IV employees within a period of four weeks from the date of a certified copy of this order is produced before him. The appointed petitioners shall be granted salary from the date of grant of approval. In case, any of the above-mentioned five writ petitioners failed to join the post of Class IV employees in terms of directions passed by the DIOS, the DIOS shall grant the appointment to the remaining two writ petitioners namely at serial No. 6 and 7 as per the merit towards the post which remain vacant due to non-joining of any of the petitioners mentioned in paragraph no. 11. 13. Accordingly, the writ petition is partly allowed with the aforesaid directions.