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2022 DIGILAW 1395 (ALL)

Shivaji Inter College v. State of U. P.

2022-09-02

ASHUTOSH SRIVASTAVA

body2022
JUDGMENT : 1. Heard Sri Pradeep Kumar Upadhyay, learned counsel for the petitioners and the learned Standing Counsel for the State respondents. 2. The writ petitioners who are the Committee of Management of Shivaji Inter College, Sahson Prayagraj (Allahabad) and its Manger, initially approached this Court seeking the issuance of mandamus commanding the District Inspector of Schools, Prayagraj/respondent No.3 to consider and accord approval to the selection of one Sri Sudhir Kumar Dwivedi S/o Late Rajmadhi Dwivedi as Assistant Clerk in the Institution in question and ensure the payment of admissible salary alongwith other service benefits to him. During the pendency of the writ petition an order dated 23.3.2022 came to be passed by the District Inspector of Schools, Prayagraj whereby disapproving the appointment and selection of Sri Sudhir Kumar Dwivedi as Assistant Clerk in the Institution. The said order has now been impugned in the writ petition by amending the writ petition. 3. The facts necessary for the adjudication of the controversy involved in the instant writ petition briefly stated are that there is an educational Institution in the name and style of Shivaji Inter College, Sahson, Prayagraj duly recognised and aided. The petitioner No.1 is its Committee of Management while the petitioner No.2 is its Manager. The Institution has an approved teaching / non teaching strength of 01 Principal, 12 lecturers, 25 Assistant Teachers, 01 Head Clerk, 03 Assistant Clerks and 13 peons. The Institution is recognised and duly permitted to run Science and Art streams upto Intermediate level and has a total student strength of 1652 which includes boys and girls. The details of the number of students in each class for the current session have been stated in para-7 of the writ petition. Two posts of Assistant Clerks in the Institution fell vacant on 31.1.2013 and 30.11.2014 on the retirement of Sri Shiyaram Singh and Sri Raj Bahadur Singh. The vacancies were intimated to the respondents vide letters dated 2.3.2019, 2.4.2019 and 15.9.2019 (Annexure-2 to the writ petition). The petitioner Committee of Management also resolved to fill up the post of Assistant Clerk and sought permission to fill up at least 01 post vide letters dated 1.10.2021 and 20.10.2021 (Annexure-3 to the writ petition). The vacancies were intimated to the respondents vide letters dated 2.3.2019, 2.4.2019 and 15.9.2019 (Annexure-2 to the writ petition). The petitioner Committee of Management also resolved to fill up the post of Assistant Clerk and sought permission to fill up at least 01 post vide letters dated 1.10.2021 and 20.10.2021 (Annexure-3 to the writ petition). No response having been received from the Competent Authorities and considering the emergent situation, the petitioners proceeded to advertise 01 post of the Assistant Clerk in the interest of the Institution and the students in widely circulated Newspaper namely "Hindustan" and "Aaj" on 16.11.2021. The District Inspector of Schools, Prayagraj, respondent No.3 was also intimated about the advertisement vide letter dated 26.11.2021 (Annexure-5 to the writ petition). Thereafter, a duly constituted Committee undertook the selection process and 08 eligible candidates appeared and underwent the selection process which comprised of typing test and computer knowledge test. On the basis of the quality point marks obtained by the candidates one Sri Sudhir Kumar Dwivedi was placed at Serial No.1 with total quality point marks of 139.3, Sri Indra Prakash Tiwari was placed at Serial No.2 with 137.45 quality point marks and Sri Naresh Kumar Nishad was placed at Serial No.3 with 135.10 quality point marks. The petitioner Committee of Management accepted the select panel of the Selection Committee and the requisite papers were forwarded to the respondent No.3 vide letter dated 11.12.2021. When nothing was heard for considerable time from the office of the respondent No.3, the petitioners sent reminders on 30.12.2021, 10.1.2022 and 18.1.2022. Since no response was received from the office of the District Inspector of Schools, Prayagraj / respondent No.3 and the requisite papers submitted with the respondent No.3 on 11.12.2021 was still pending decision, the petitioners were constrained to approach this Court by filing the instant writ petition. During the pendency of the instant writ petition the District Inspector of Schools, Prayagraj / respondent No.3 has proceeded to pass the impugned order declining to accord approval to the selection of Sri Sudhir Kumar Dwivedi for the post of Assistant Clerk in the Institution on the ground that the procedure prescribed for selection of clerical category / non teaching posts in recognized unaided Inter Colleges by Government Order dated 25.11.2021 has not been followed. Besides the above certain other shortcomings in the process adopted has been pointed out. 4. Besides the above certain other shortcomings in the process adopted has been pointed out. 4. Learned counsel for the petitioners has assailed the impugned order on the following grounds that:- (i) the approval to the selection process could not have been denied on the ground that prior permission had not been obtained by the Committee of Management before proceeding with the recruitment as has been held by this Court in the case of Abhishek Tripathi vs. State of U.P. and others, reported in 2015 (4) ADJ 270 and in the case of Jagdish Singh vs. State of U.P. & others, reported in 2006 (4) ADJ 162 ; (ii) the objection that the procedure prescribed by Government Order dated 25.11.2021 had not been followed is misconceived inasmuch as the process of selection had commenced with Advertisement dated 16.11.2021 and as such there was no occasion to follow the procedure laid down under the Government Order dated 25.11.2021; (iii) the impugned order has been passed behind the back of the petitioners without giving them any opportunity to explain and substantiate their case; (iv) the impugned order dated 23.3.2022 bearing official index No. 13371/-72 is ante dated inasmuch as by another order dated 23.3.2022 bearing official index No. 13370 the petitioners were required to furnish certain information which order was received on 31.3.2022 and the petitioners in response thereto submitted their reply on 2.4.2022. 5. Learned counsel for the petitioner thus prays that the impugned order is liable to be set aside and the writ petition is liable to be allowed. 6. Learned Standing Counsel appearing for the respondents No. 1 to 3 has resisted the writ petition by submitting that the Government Order dated 25.11.2021 provides for constitution of Selection Committee but the appointing authority did not adopt the proper procedure after constitution of the Selection Committee and hence the selection of Sudhir Kumar Dwivedi as Assistant Clerk is not liable to be approved. The permission was not taken from the Department nor the typing examination was conducted under the supervision of typing specialist of State Industrial Training Centre. The permission was not taken from the Department nor the typing examination was conducted under the supervision of typing specialist of State Industrial Training Centre. In para-7 of the counter affidavit in response to para-14 of the writ petition it has been stated that for transparent and clear selection of clerical grade and non-teaching staff (Class-IV Employees) for a selection and appointment under the selection procedure was under consideration before the competent authority and hence no permission was granted to fill up the post of Assistant Clerk in the Institution. It is also stated that the Advertisement dated 16.11.2021 is bad being issued in contravention of Chapter III Regulation 101 of the U.P. Intermediate Education Act, 1921. 7. Rival contentions fall for consideration. 8. Learned counsel for the petitioners submits that the vacancy was advertised on 16.11.2021 and as such the selection process was to be governed by the Rules and Government Orders in existence on the date on which the process was initiated. Reliance is placed upon the decision of the Apex Court in the case of N.T. Devin Katti vs. Karnataka Public Service Commission, reported in 1990 (3) SCC 157 in which it has been held as follows:- "Where proceedings are initiated for selection by issuing advertisement, the selection should normally be regulated by the then existing rules and Government Orders and any amendment of the rules or the Government Order pending the selection should not affect the validity of the selection made by the selecting authority or the Public Service Commission unless the amended rules or the amended Government orders issued in exercise of its statutory power either by express provision or by necessary intendment indicate that amended Rules shall be applicable to the pending selections. See P. Mahendra & Ors. v. State of Karnataka & Ors., [1989] 4 Judgment Today SC 459." 9. Reliance is also placed upon the decision of the Apex Court in the case of The Assam Public Service Commission & others vs. Pranjal Kumar Sarma & others, reported in 2019 0 Supreme (SC) 1302 where in para-13 it has been held as under:- "13. The law with regard to applicability of the Rules which are brought anew during the selection process have been crystalized by this Court. The law with regard to applicability of the Rules which are brought anew during the selection process have been crystalized by this Court. It has been held that the norms selection existing begins, alteration process to the will the unless on control norms the date the would new when process selection not Rules the affect are and the to of the ongoing be given retrospective effect. (See State of Bihar and Others vs. Mithilesh Kumar & Others). Similarly Karnataka in Public N.T. Devin Service Katti and Commission and Others, this Court held that a candidate has a limited right of with the being Rules considered as they for selection existed in on accordance the date of advertisement and he cannot be deprived of that limited right by amendment of the Rules during the pendency of the selection, unless the Rules are to be applied retrospectively." 10. Learned counsel for the petitioner contends that the vacancy occurred on 30.11.2014 and was advertised on 16.11.2021 and as such the Regulation 101 Chapter III of the Intermediate Education Act, 1921 existing on that date would govern the field and not the Government Order dated 25.11.2021 as being suggested by the respondents and also made basis of the impugned order. Placing reliance upon the decision in the case of Preet Kumar Srivastava vs. State of U.P. and others ( 2011 (9) ADJ 591 ), it is contended that the controversy as to what would be the stage of grant of approval by the District Inspector of Schools has been set at rest and it has been held that approval is to be accorded after selection is held and before appointment. The Regulations 101 also contemplate the same stage that is after the selection process is over but before making appointment to the post. A coordinate Bench of this Court has also reiterated the proposition argued by the learned counsel for the petitioner in the case of Abhishek Tripathi vs. State of U.P. & others, reported in 2015 (4) ADJ 270 . Thus, the Court finds force in the submission of the learned counsel for the petitioner that prior approval was not required for holding the selection from the District Inspector of Schools and the selection process cannot be held to be illegal on the score that prior approval had not been obtained. 11. Thus, the Court finds force in the submission of the learned counsel for the petitioner that prior approval was not required for holding the selection from the District Inspector of Schools and the selection process cannot be held to be illegal on the score that prior approval had not been obtained. 11. The Court also finds substance in the contention of the counsel for the petitioners that the procedure prescribed by the Government Order dated 25.11.2021 which had admittedly been issued after the commencement of the selection process was not liable to be followed in view of the law laid down by the Apex Court in 1990 (3) SCC 157 and 2019 0 Supreme (SC) 1302 referred to hereinbefore. 12. The Court further finds that the order has been passed behind the back of the petitioners and appears to be ante dated inasmuch as by an order of even date i.e. 23.3.2022 bearing official index No. 13370 the petitioners were required to furnish certain information and the petitioners also submitted their reply on 2.4.2022 but the impugned order dated 23.3.2022 was passed without considering the reply called for. 13. It is not borne out from the recitals of the impugned order that any other infirmity was found in the selection process adopted by the petitioners for filling up the vacancy in question. 14. Consequently, in view of the above, the order passed by the District Inspector of Schools dated 23.3.2022 cannot be sustained and is accordingly quashed. The matter is remitted back with a direction to the District Inspector of Schools, Prayagraj to pass a reasoned and speaking order strictly in accordance with the provisions contained in Regulation 101 Chapter III, Intermediate Education Act, 1921 and the observations made herein above, expeditiously preferably within a period of 45 days from the date of service of this order. 15. The writ petition stands allowed, accordingly.