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2019 DIGILAW 274 (ALL)

D. N College Meerut v. State of U. P.

2019-02-01

ASHWANI KUMAR MISHRA

body2019
JUDGMENT : ASHWANI KUMAR MISHRA, J. 1. This writ petition is directed against an order dated 1.12.2018, contained in Annexure-4 to the writ petition, whereby the Regional Higher Education Officer, Meerut has denied grant of permission to the Committee of Management of petitioner institution to fill up the post of Stenographer in the institution. The order states that the ban initially imposed on 15th March, 2012 is still operative and has not been revoked vide Government Order dated 11th July, 2013. 2. The issue as to whether the ban imposed on 15th March, 2012 continues to subsist or not has been examined by this Court in Writ Petition No.26271 of 2018 (C/M of Mahatma Gandhi Shati Smarak Degree College, Ghazipur and Another Vs. State Of U.P. and Others, vide following orders passed on 9.1.2019:- “1. Heard Sri Samarth Singh, learned counsel for the petitioner and learned Standing Counsel for the State. 2. Petitioner is the Committee of Management of 'Mahatma Gandhi Shati Smarak Degree College, Garua Maqsoodpur, District Ghazipur' wherein education is being imparted upto graduation level. The institution is affiliated to Veer Bahadur Singh Purvanchal University, Jaunpur. The appointment of teaching and non teaching staff in the college is regulated by provisions of the U.P. State Universities Act, 1973 as well as the Statute of Veer Bahadur Singh Purvanchal University, Jaunpur. It appears that a vacancy arose on a sanction post of Class-III employee in the institution on account of retirement of one Mahendra Kumar Rai on 30.6.2014. The Committee of Management of the Institution made an application for grant of permission to the Regional Higher Education Officer for filling up of the post. It is alleged that on account of dispute in the office of officiating Principal in the institution, post itself could not be filled immediately. However, attempt was made to fill up the post again in the year 2018 and permission was sought for the purposes from the concerned educational authorities. The Director of Education (Higher Education) by his order dated 4.9.2018 has refused permission to fill up the post by relying upon Government Order dated 15.3.2012, as per which, a ban was imposed to fill up all Class-III posts in such institutions. It was also stated that description of posts have also not been given by the petitioner committee of management. 3. It was also stated that description of posts have also not been given by the petitioner committee of management. 3. The order dated 4.9.2018 is assailed on the ground that initial ban imposed on 15.3.2012 was revoked by subsequent Government Order dated 11.7.2013 and, therefore, refusal by the Director to permit petitioner to fill up the post, is wholly arbitrary. 4. Taking cognizance of the aforesaid contention, following orders were passed in the matter on 12.12.2018: "This writ petition is directed against an order dated 4.9.2018, whereby request of the Committee of Management to make appointment on Class-III post in the degree college has been refused. Perusal of the order would go to show that the reason assigned for passing the order impugned is a ban imposed on 15.3.2012 by the State Government. Attention of the Court has been invited to a subsequent order dated 11th July, 2013, whereby in respect of the degree college, the ban has already been lifted. Submission is that the reason assigned for declining the petitioner to fill the post is arbitrary. Learned Standing Counsel may obtain instructions. Put up as fresh on 2.1.2019". 5. Learned Standing Counsel has obtain instructions, according to which the State Government vide Government Order dated 11.7.2013 has lifted the ban only in respect of posts which had fallen vacant till 11.7.2013, and that the vacancy, in the present case, since has arisen after 11.7.2013, therefore, ban imposed earlier vide order dated 15.3.2012 would continue to remain invoked. 6. Government Order dated 15.3.2012, which is made the basis by the concerned authorities for declining grant of permission to fill up the post is extracted hereinafter: ^^la[;k&20@1@91&dk&2012 ^^izs"kd] jktho dqekj] izeq[k lfpo] mRrj izns'k 'kkluA lsok esa] leLr izeq[k lfpo@lfpo] mRrj izns'k 'kkluA dkfeZd vuqHkkx&2 y[kuÅ% fnukad 15 ekpZ 2012 fo"k;&HkrhZ@fu;qfDr ij izfrcU/kA egksn;] lE;d fopkjksijkUr m'kklu }kjk lHkh izdkj dh HkfrZ;ks dks ¼yksd lsok vk;ksx ds ek/;e ls dh tkus okyh HkrhZ rFkk ek0 U;k;ky; ds vkns'kks ds vuqikyu esa dh tkus okyh HkrhZ dks NksM+dj½ rkRdkfyd izHkko ls izfrcaf/kr fd;s tkus dk fu.kZ; fy;k x;k gSA 2- mi;qZDr ds dze esa eq>s ;g dgus dk funs'k gqvk gS fd d`i;k mijksDrkuqlkj fy;s x;s fu.kZ; dk dMkbZ ls vuqikyu lqfuf'pr djrs gq, vius v/khuLFk leLr fu;qfDr izkf/kdkfj;ksa dks Hkh rnuqlkj funsZf'kr djus dk d"V djsA Hkonh; g0 v0 jktho dqekj izeq[k lfpoA 7. The aforesaid Government Order is general in nature and does not specifically refer to any particular category or class of institution. The aforesaid Government Order is followed with a subsequent Government Order on 11.7.2013, which is also reproduced hereinafter: ^^la[;k&885@lRrj&2&2013&16¼99½@2012 ^^izs"kd] nsos'k prqosZnh lfpo] mRrj izns'k 'kkluA lsok esa] funs'kd] mPp f'k{kk m0iz0 bykgkcknA mPp f'k{kk vuqHkkx&2 y[kuÅ% fnukad% 11 tqykbZ] 2013 fo"k;&HkrhZ@fu;qfDr ij yxs izfrcU/k ls NwV ds laca/k esaA egksn;] mi;ZqDr fo"k; esa vius i=kad&fMxzh vFkZ&1@375@2012&13 fnukad 22-4-2013 dk d`i;k lanHkZ xzg.k djsa] ftlds }kjk izns'k ds lgk;rk izkIr egkfo|ky;ksa esa lewg&^x^ rFkk lewg&^?k^ ds fjDr inksa dks Hkjs tkus dk vkSfpR; Li"V fd;k x;k gSA 2- lwP; gS fd dkfeZd vuqHkkx&2 ds 'kklukns'k fnukad 20@1@dk&2&2012 fnukad 15-3-2012 }kjk lHkh izdkj dh HkfrZ;ksa dks yksd lsok vk;ksx ds ek/;e ls dh tkus okyh HkfrZ;ksa rFkk ek0 U;k;ky; ds vkns'kksa ds vuqikyu esa dh tkus okyh HkrhZ dks rkRdkfyd izHkko ls izfrcfU/kr fd;k x;k gSA 3- 'kklu ds laKku esa vk;k gS fd izR;sd o"kZ egkfo|ky;ksa esa Nk=@Nk=kvksa dh la[;k esa vfHko`f} gksus ds lkFk gh lkFk fyfidksa@iz;ksx'kkyk lgk;dksa dh lsokfuo`fRr gks jgh gS] ftuds lkis{k fu;qfDr okafNr gSA vr% vf/kdka'kr% lgk;rk izkIr egkfo|ky;ksa esa dk;kZy;h@iz;ksx'kkyk ls lacaf/kr ikB~;dzeksa ,oa fo"k;ksa esa rFkk dk;kZy; dk dk;Z ckf/kr gksus dh fLFkfr esa mDr fjDr inksa dks Hkjk tkuk vfr vko';d gSA 4- mi;qZDr ds n`f"Vr lE;d fopkjksijkUr 'kklu }kjk mPp f'k{kk foHkkx esa lewg&^x^ ds dfu"B fyfid@iz;ksx'kkyk lgk;d ds 1043 inksa dks Hkjs tkus gsrq dkfeZd foHkkx ds mijksDr lanfHkZr 'kklukns'k fnukad 15-3-2012 ftlesa HkfrZ;ksa ij jksd yxkbZ xbZ gSA ls NwV iznku djus dk fu.kZ; fy;k x;k gSA 5- bl lEcU/k esa ;g funsZf'kr fd;k tkrk gS fd izns'k ds lgk;rk izkIr egkfo|ky;ksa esa lewg ^x^ ds fjDr inksa ij p;u dh dk;Zokgh ij vuqeksnu ls iwoZ ;g lqfuf'pr dj fy;k tk;s fd iz'uxr p;u dh dk;Zokgh fo'ofo|ky; ifjfu;ekofy;ksa esa fofgr O;oLFkk o vU; lqlaxr fu;eksa rFkk vkj{k.k vkfn fu;eksa dk v{kj'k% vuqikyu djrs gq, iw.kZ ikjnf'kZrk ds vk/kkj ij dh x;h gSA mDr p;u esa vfu;ferrk ik;s tkus ij iw.kZ nkf;Ro p;u vuqeksfnr djus okys vf/kdkjh dk gksxkA 6- mDr ds dze esa eq>s ;g dgus dk funsZ'k gqvk gS fd d`i;k 'kklu dk mi;qZDr fu.kZ; dk vuqikyu lqfuf'pr djus dk d"V djsaA Hkonh;] g0 v0 ¼nsos'k prqosZnh½ lfpoA** 8. The Government Order dated 11.7.2013 is categorical inasmuch as State Government in para3 of the Government Order has taken note of difficulties that are arising in the functioning of educational institutions on account of ban imposed. It was in that context that while lifting the ban, the State Government clarified that 1043 posts which had fallen vacant till then would be open to be filled. The difficulty created in the institution on account of Government Order dated 15.3.2012 was noticed and the ban was lifted, accordingly. It can not be construed that notwithstanding the subsequent Government Order dated 11.7.2013, the previous Government Order imposing ban would continue to apply. In case such contention is accepted, the ban imposed vide Government Order dated 11.7.2013 alone would be lifted while for all vacancies created, thereafter the ban would continue to apply. 9. There is absolutely no justification for any such distinction to be drawn based upon the date specified i.e. 11.7.2013. Such a categorization/ classification can not be construed as a reasonable classification inasmuch as it would have no intelligible differentia or object which is sought to be achieved. The same Government Order dated 15.3.2012was pressed as being the ground for denial of permission for filling up vacancies in Intermediate institution also. The Government Order on 15.3.2012, was also followed by subsequent Government Order dated 23.5.2013. After taking note of both the Government Orders, this Court in Vipin Vs. State of U.P. and others, 2013 (7) ADJ 274 , has been pleased to hold that ban would not be available for the purposes of denying institution to fill up the post itself. No specific provision has otherwise been shown to the Court under the applicable statutory scheme which could have been invoked for the purposes of issuance of Government Order dated 15.3.2012. The said Government Order, otherwise, is general in nature and its applicability upon the institutions of higher leaving stands lifted under the Government Order dated 11.7.2013. In that view of the matter, the order passed by the Director of Education dated 4.9.2018 cannot be sustained and is accordingly quashed. 10. The petitioner committee of management shall submit details of posts of the institution alongwith certified copy of this order within a period of two weeks from today. In that view of the matter, the order passed by the Director of Education dated 4.9.2018 cannot be sustained and is accordingly quashed. 10. The petitioner committee of management shall submit details of posts of the institution alongwith certified copy of this order within a period of two weeks from today. The Director concerned shall pass a fresh order keeping in view the observations made above within a period of six weeks from the date of presentation of certified copy of this order. 11. With the aforesaid observations, writ petition stands disposed of.” 3. In view of the order dated 9.1.2019 passed in Writ Petition No. 26271 of 2018, the order impugned cannot be sustained. 4. Writ petition, consequently, succeeds and is allowed. The order dated 1.12.2018 stands quashed. The authority concerned is directed to take a fresh decision, in light of the observations made above.