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2020 DIGILAW 1371 (ALL)

Amarsen v. State Of U. P.

2020-11-25

J.J.MUNIR

body2020
JUDGMENT : 1. Counter affidavits, one on behalf of respondent nos.1 and 2 and the other on behalf of respondent no.3 have been filed. There is no rejoinder affidavit to either of the two counter affidavits. 2. Admit. 3. Heard forthwith. 4. It seems that it is difficult for the District Inspector of Schools, Basti, if not altogether impossible, to understand that a Government Order, once struck down by this Court, is wiped out of existence. He seems to think that notwithstanding the Government Order dated 06.01.2011 being struck down by this Court, it still survives. It is this misconception of the District Inspector of Schools, that has led to this writ petition being instituted. 5. Heard Mr. H.R. Mishra, learned Senior Advocate assisted by Mr. Gopal Das Srivastava, learned Counsel for the petitioners and Mr. Sharad Chandra Upadhyay, learned State Law Officer appearing on behalf of respondent nos.1 and 2. No one appears on behalf of respondent no.3, though the name of Mr. Rajesh Kumar, learned Advocate appearing on behalf of the said respondent, is shown in the cause list. 6. Amarsen and Krishna Kumar Verma, who are the first and the second petitioners in that order, have been appointed as peons with Shri Deshraj Narang Dayanand Inter College, Govind Nagar, Walterganj, District Basti (for short, ‘the College’). Though appointed way back in the year 2014, their appointments have not received approval of the District Inspector of Schools. In consequence, both the petitioners are going without their salary. It is this deprivation of rights for the petitioners that has compelled them to move this Court. 7. The College is located at Govind Nagar in the district of Basti. It is a recognized and aided institution. The College is governed by the provisions of the Uttar Pradesh Intermediate Education Act, 1921 (for short, ‘the Act of 1921’) and the regulations framed thereunder. The salaries to teachers and other employees of the College are paid in accordance with The Uttar Pradesh High Schools And Intermediate Colleges (Payment Of Salaries Of Teachers And Other Employees) Act, 1971 (for short, ‘the Act of 1971’). 8. Two substantive posts of peons fell vacant. According to the reservation profile of incumbents in the Class-IV cadre, these posts would go to the Other Backward Class (O.B.C.) quota. 8. Two substantive posts of peons fell vacant. According to the reservation profile of incumbents in the Class-IV cadre, these posts would go to the Other Backward Class (O.B.C.) quota. It seems that shortage of hands had adversely affected dispatch of work and, therefore, the College took a decision to fill up both these posts. The Principal of the College is the appointing authority of employees in the Class-IV cadre. He addressed memorandum dated 10.02.2014 with a follow up dated 19.03.2014 to the District Inspector of Schools, Basti, seeking the latter’s permission to fill up the two vacant posts of peons with the College under the O.B.C. quota. It appears that no decision was taken on the Principal’s request for a permission as aforesaid by the District Inspector of Schools. The Principal caused an advertisement to be published in two dailies, to wit, Swatantra Chetna and Dainik Prabhat issues, dated 20.06.2014, advertising the two posts of peons, available with the college. 9. In due course, applications were received and a Selection Committee was convened. The Selection Committee made recommendations to the Principal, favouring the petitioners’ candidature. Accepting those recommendations, the Principal of the College appointed the petitioners, issuing both of them letters of appointment, both dated 10.07.2014. The petitioners, on receipt of letters of appointment, put in their respective joining reports in the office of the Principal on 11.07.2014. Ever since, the petitioners are discharging their duties as peons with the College. 10. The Principal for his part, after going through the entire selection process, forwarded papers pertaining to selection and appointment of the petitioners to the District Inspector of Schools, for his approval. These papers for approval were forwarded by the Principal to the District Inspector of Schools through a forwarding memo dated September the 2nd, 2014. 11. It is asserted on behalf of the petitioners that the District Inspector of Schools has received the entire papers relating to their selection and appointment, but he has not taken any decision for the approval of these appointments. He has neither approved or disapproved. 12. This writ petition, in substance, complains about this inaction by the District Inspector of Schools. The petitioners’ cause of action, however, foretells the reason for the District Inspector of Schools’ inaction. In paragraph nos.13 to 18 of the writ petition, reasons are indicated for the complained inaction by the District Inspector of Schools. He has neither approved or disapproved. 12. This writ petition, in substance, complains about this inaction by the District Inspector of Schools. The petitioners’ cause of action, however, foretells the reason for the District Inspector of Schools’ inaction. In paragraph nos.13 to 18 of the writ petition, reasons are indicated for the complained inaction by the District Inspector of Schools. It is said there that the State Government had issued a Government Order dated 06.01.2011, prohibiting appointment to Class-IV posts in aided educational/ technical institutions. It was also provided that in substitution of the existing mechanism of recruitment by the institution in accordance with Rules, services of Class-IV personnel required, would be secured through outsourcing. This stipulation was carried in paragraph no.2 of the Government Order dated 06.01.2011. This Government Order was put to challenge in Writ – C No.11760 of 2011 and a host of other petitions. All the writ petitions were consolidated, heard together and decided by a common judgment and order dated 21.03.2012. Writ – C No.11760 of 2011 was decided as the leading petition. 13. This Court, by its judgment and order dated 21.03.2012 rendered in Writ – C No.11760 of 2011, allowed the writ petitions and struck down paragraph no.2 of the Government Order dated 06.01.2011. A special appeal, from the judgment and order dated 21.03.2012, was carried by the State, being Special Appeal No.1023 (D) of 2012, but no interim order was granted there. It is then pleaded that in order to override and undo the effect of the judgment and order dated 21.03.2012, the State Government issued a Government Order dated 04.09.2013. The said Government Order amends Regulation 101, occurring in Chapter III of the Regulations framed under the Act of 1921 to provide that the District Inspector of Schools would grant permission to the Management to fill up posts in the clerical cadre, after securing permission from the Director of Education (Secondary), but would leave out from this regime of permission, Class-IV posts. It is further provided by the amended Regulation that for the Class-IV vacancies with an intermediate institution, arrangement for hiring hands shall be made through outsourcing. 14. The petitioners plead that the Government Order dated 04.09.2013 has been challenged in Writ – A No.62544 of 2013, wherein an interim order dated 08.12.2013 has been passed. It is further provided by the amended Regulation that for the Class-IV vacancies with an intermediate institution, arrangement for hiring hands shall be made through outsourcing. 14. The petitioners plead that the Government Order dated 04.09.2013 has been challenged in Writ – A No.62544 of 2013, wherein an interim order dated 08.12.2013 has been passed. Details of this challenge in the order interim made by this Court are pleaded in paragraph no.17 of the writ petition. It is asserted that the Principals of the Intermediate Colleges and High Schools are still empowered to make selection and appointment of Class-IV Employees under the existing system. 15. It may be remarked that the interim order passed in Writ – A No.62544 of 2013 had stayed the operation of the order dated 04.09.2013, amending Regulation 101 and further ordered that no recruitment, by way of outsourcing, shall be made. It was also provided that further recruitment shall be made according to the process existing prior to the amendment, which shall remain in force. It is this part of the interim order passed by this Court on 18.12.2013 in Writ – A No.62544 of 2013 that has inspired the petitioners to plead the way they have done in paragraph no.18 of the writ petition. 16. During the course of hearing, Mr. H.R. Mishra, learned Senior Advocate appearing for the petitioners points out that the challenge to the Government Order dated 04.09.2013, amending Regulation 101, came up for hearing before a Division Bench of this Court along with a group of other writ petitions, involving the same question. The Division Bench proceeded to hear Writ – C No.45060 of 2015, Principal, Abhay Nandan Inter College, Vishnu Mandir & anr. as the leading case. Their Lordships, by the judgment and order dated 19.11.2018 rendered in Writ – A No.45060 of 2015 (supra) and connected matters, have held Regulation 101 of the Regulations framed under the Act of 1921, as amended vide Government Order dated 04.09.2013 ultra vires and struck down the same insofar it provided that vacancies of Class-IV in Intermediate Institutions, shall be filled up by an ‘outsourcing’ arrangement. By the said judgment, the Educational Authorities have been ordered to consider the matter of pending appointments and pass orders in accordance with law. By the said judgment, the Educational Authorities have been ordered to consider the matter of pending appointments and pass orders in accordance with law. A copy of the judgment of the Division Bench in Writ – C No.45060 of 2015 (supra) was placed before the Court by Mr. Mishra, during the course of the hearing. This Court has perused the same. 17. The stand of the State, represented by the Secretary, Secondary Education, Government of U.P. and the District Inspector of Schools, Basti, who have filed a joint counter affidavit, is encapsuled in paragraph no.3, which reads: “B. That the Principal, Sri Deshraj Narang Dayanand Inter College Walterganj, Basti vide his letters dated 10.2.2014 and 19.3.2014 requested from the District Inspector of Schools, Basti to give permission for filling the two vacant posts of Peon under the OBC category. It is stated that in the institution in question, there are 15 posts of Class IV employees are sanctioned. Against which, 6 peons of General Category, 3 peons of OBC category and 4 peons of Scheduled Caste Category are working in the institution. Thereafter, the State Government vide government orders dated 6.1.2011 and 15.3.2012 imposed ban on appointment on the Class IV posts. Even the ban imposed by the State Government vide government orders dated 6.1.2011 and 15.3.2012, the Principal of the institution shown the appointment of Sri Amarsen and Sri Krishna Kumar Verma on the post of Peon. In view of the aforesaid government orders, the appointment made by the Principal of the institution is illegal and null and void and the petitioners are not entitled for any benefit. Aggrieved by the aforesaid, the petitioners have filed the present writ petition before this Hon’ble Court, which is liable to be dismissed with costs.” 18. A counter affidavit has been filed on behalf of respondent no.3 as well, but there is no stand there, contesting the petitioners’ claim. 19. Mr. Sharad Chandra Upadhyay, learned State Law Officer has argued in tandem with the State’s stand that in view of the Government Order dated 06.01.2011 and the subsequent amendment to Regulation 101 of Chapter III of the Regulations framed under the Act of 1921, there is no scope left for a Class-IV employee to be appointed by any intermediate institution on the posts sanctioned in their establishment. He submits that under the new regime against the sanctioned posts of Class-IV employees, hands have to be hired through outsourcing. It is submitted by Mr. Upadhyay further that striking down of the Government Order dated 06.01.2011 and the subsequent Government Order dated 04.09.2013, effecting amendment to Regulation 101 (supra) cannot affect the State’s right to stand by its policies, embodied in those amendments. He submits that since the State has to bear costs of employing personnel appointed to aided private educational institutions, the Authorities cannot be compelled to pay employees, recruited to posts, where the State have forbidden tenure appointment on the sanctioned posts. 20. This Court has keenly considered the submissions made and perused the record. Class-IV posts, in an intermediate institution, are governed by Section 16-G of the Act of 1921, like other posts in such an institution. Regulations providing for conditions of service are framed in exercise of delegated powers. Regulations, in fact, have been framed relating to service conditions, both of Class-III and Class-IV employees, of which Regulation 101 is a part. Amendment made to Regulation 101, as regards condition of service, has been upheld by this Court as a valid exercise of legislative powers by the State Government, but the part of paragraph no.2 of the amendment, that provides for engagement of hands against existing Class-IV posts through outsourcing, has been held to be ultra vires the powers of the State Government. This is so because that part of the amendment is no part of conditions of service of a Class-IV employee. It is simply an impingement or restraint on the powers of the Management to appoint against a sanctioned post. 21. The amended part of the Regulation 101, forbidding appointment of regular staff against sanctioned posts of Class-IV alone, has also been held to be discriminatory by this Court. In Principal, Abhay Nandan Inter College, the amendment forbidding appointment by an intermediate institution to a sanctioned Class-IV post and instead introducing a regime, where hands have to be engaged through outsourcing, has been held ultra vires the powers of the State Government and the Government Order dated 04.09.2013 to that extent has been struck down. The relevant part of amended Regulation 101 has, a fortiori, also been struck down as ultra vires. The relevant part of amended Regulation 101 has, a fortiori, also been struck down as ultra vires. Likewise, paragraph 2 of the earlier Government Order dated 06.01.2020, on the strength of which the respondents seek to resist the petitioners’ claim for a financial approval to their appointment by the District Inspector of Schools, has also been struck down by this Court in Writ – C No.11760 of 2011, C/M Lala Babu Baijal Memorial Inter College and another vs. State of U.P. and others, decided on 21.03.212. In C/M Lala Babu Baijal Memorial Inter College, it has been held: “64. In my view, therefore, though the concept of making available the staff to perform Class-IV job by outside agency though termed "Outsourcing" but it is nothing but a system of supply of work force through a contractor or a person who satisfy the term "contractor" for all purposes though termed as "outsourcing". Hence the system as contemplated in Para 2 of impugned G.O. is evidently exploitative, arbitrary, unreasonable, irrational, illogical, hence violative of Article 14 and 16 of the Constitution.” 22. In C/M Lala Babu Baijal Memorial Inter College, the following order was passed: “68. In the result, following writ petitions are decided in the following manner: (A) The Writ Petitions No. 11670 of 2011, 27387of 2011, 27388 of 2011, 45111 of 2011, 33140 of 2011, 64630 of 2011, 68199 of 2011, 68591 of 2011, 68592 of 2011, 62476 of 2011, 63197 of 2011 and 1432 of 2012 are allowed to the extent that Para 2 of G.O. dated 06.01.2011 is struck down in its application to Secondary Educational Institutions recognised by the Board and governed by provisions of Act, 1921 and the Regulations framed thereunder, being illegal, arbitrary, unconstitutional and ultra vires. (B) Writ Petitions No. 62616 of 2011, 50905 of 2011, 8492 of 2012, 49269 of 2011, 63653 of 2011, 67140 of 2011, 61539 of 2011, 62465 of 2011, 631 of 2012 and 74197 of 2011 are allowed to the extent that orders impugned passed by State Government/educational authorities, pursuant to Para 2 of G.O. dated 06.01.2011, which has already been struck down, as above, are hereby set aside. They are directed to pass fresh order in accordance with law and in the light of the observations made above. They are directed to pass fresh order in accordance with law and in the light of the observations made above. (C) The Educational Authorities are also directed not to obstruct the process of selection and appointment on Class-IV posts in Secondary Educational Institutions only on the basis of Para 2 of G.O. dated 06.01.2011. 69. The Writ Petition No. 45708 of 2011 is disposed of directing the competent educational authorities to pass appropriate order on the matter of approval on selections made in educational institutions concerned for appointment on Class-IV posts expeditiously and in any case within a period of one month from the date of production of a certified copy of this order.” 23. It has not been brought to this Court’s notice that the decisions in Principal, Abhay Nandan Inter College and C/M Lala Babu Baijal Memorial Inter College have not been set aside or stayed by the Supreme Court. It is also not the respondents’ case that some Government Order or amendment has been issued that may, in effect, reintroduce the regime envisaged under the Government Order dated 06.01.2011 or Regulation 101, as amended vide Government Order dated 04.09.2013, to the extent these Government Orders/ amended Regulations have been struck down by this Court in Principal, Abhay Nandan Inter College and C/M Lala Babu Baijal Memorial Inter College. 24. The contention put forth by Mr. Upadhyay that notwithstanding the Government Orders/ amendments being struck down, it is the State’s policy to hire hands to Class-IV posts in private aided institutions, who cannot, therefore, appoint employees against sanctioned posts in their establishment, is hollow, if not preposterous. Once a Government Order or more so an amendment effected through a Government Order to statutory regulations, that serves as the basis to refuse financial approval, is struck down by this Court as ultra vires, the position as it stood prior to those invalidated Government Orders/ amendments, revives. Under Regulation 101, occurring in Chapter III of the Regulations framed under the Act of 1921, the position that obtains for the present is that a private and aided intermediate institution, governed by the Act of 1921 and Act of 1971, is entitled to appoint Class-IV employees against sanctioned post; and if such employees have been appointed in accordance with law, the competent Authority is bound to grant financial approval to their appointment. 25. 25. Here, the petitioners’ claim to grant a financial approval is substantially resisted by respondent nos.1 and 2 on ground that it is contrary to the Government Order dated 06.01.2011 and some other Order dated 15.03.2012. That Government Order and the subsequent Government Order dated 04.09.2013 effecting certain amendment to Regulation 101 (supra) being struck down, the District Inspector of Schools, Basti or any Authority of the State superior to him and competent, cannot refuse financial approval to the petitioners, on the strength of provisions and Government Orders, that stand effaced by judgments of this Court. 26. In the result, this writ petition succeeds and is allowed in part. A mandamus is issued to the District Inspector of Schools, Basti ordering him to consider and decide the petitioners’ case for grant of financial approval to their respective appointment as Class-IV employees with the College, strictly in accordance with law, after hearing the petitioners within a period of one month of date of receipt of copy of this order. Costs easy. 27. Let this order be communicated to the District Inspector of Schools, Basti by the Joint Registrar (Compliance) within a week.