RKMishra_33753 of 2018

Note: Government Orders dt. 06.01.2011 and 04.09.2013 contrary to act and rules applicable to
employees of an institution duly recognized under provisions of U.P. Intermediate Education Act, 1921
and Payment of Salaries Act, 1971
Appointment — Approval — Rejection — Illegality/Legality — Appointment on Class IV post in
Intermediate College — Approval to, rejected by DIOS on ground that there is rider in view of
Government Orders dt. 06.01.2011 and 04.09.2013 — However aforesaid two government orders
have been declared to be contrary to act and rules applicable to employees of an institution duly
recognized under provisions of U.P. Intermediate Education Act, 1921 and Payment of Salaries Act,
1971 — Order passed by DIOS rejecting approval to appointment illegal set aside (Para 15 and 18)
Cases referred: Writ-A No.8834 of 2015 dated 20.03.2015; para 10; 2011 9 ADJ 591 para 11
Court No. - 23
Case :- SERVICE SINGLE No. - 33753 of 2018
Petitioner :- Deepak Bhadauria
Respondent :- State Of U.P Thru Prin Secy Secondary
Education & Ors
Counsel for Petitioner :- Surendra Pratap Singh
Counsel for Respondent :- C.S.C
with
Case :- SERVICE SINGLE No. - 33754 of 2018
Petitioner :- Ravi Kant Mishra
Respondent :- State Of U.P Thru Prin Secy Secondary
Education & Ors
Counsel for Petitioner :- Surendra Pratap Singh
Counsel for Respondent :- C.S.C
with
Case :- SERVICE SINGLE No. - 33755 of 2018
Petitioner :- Rajesh Kumar Singh
Respondent :- State Of U.P Thru Prin Secy Secondary
Education & Ors
Counsel for Petitioner :- Surendra Pratap Singh
Counsel for Respondent :- C.S.C
with
Case :- SERVICE SINGLE No. - 33756 of 2018
Petitioner :- Ajay Kumar
Respondent :- State Of U.P Thru Prin Secy Secondary
Education & Ors
Counsel for Petitioner :- Surendra Pratap Singh
Counsel for Respondent :- C.S.C
with
Case :- SERVICE SINGLE No. - 35532 of 2018
Petitioner :- Samrendra Kumar Mishra
Respondent :- State Of U.P. Thru. Prin. Secy. Secondary
Education & Ors.
Counsel for Petitioner :- Surendra Pratap Singh
Counsel for Respondent :- C.S.C.
Hon'ble Irshad Ali,J.
(1) Heard Sri S.P. Singh, learned counsel for the
petitioners and to the learned Standing Counsel on behalf
of respondent Nos.1 to 4.
(2) Sri Surya Prakash Singh, learned Advocate has today
filed Vakalatnama on behalf of respondent No.5 in the
Court. The same may be taken on record.
(3) This bunch of writ petitions is being decided by
means of a common order treating Writ Petition No.33753
(SS) of 2018 to be leading writ petition.
(4) Vide order dated 26.11.2018, the DIOS was directed
to file his personal affidavit that once the Government
Order dated 06.04.2018 and 04.09.2013 were finally
adjudicated by this Court in the case of Committee of
Management-Babu Baijal Das, then under what
circumstances the impugned order has been passed.
(5) Taking into consideration the amendment
incorporated subsequent to the appointment of the
petitioner, the DIOS filed his personal affidavit today in the
Court in Writ Petitions No.33753 (SS) of 2018, 33754 (SS)
of 2018, 33755 (SS) of 2018 and 33756 (SS) of 2018. The
same may be taken on record.
(6) The factual matrix of the case is that there is an
institution in the name of Janta Intermediate College,
Bharawan, District Hardoi, which is a recognized institution
under the provisions of U.P. Intermediate Education Act,
1921 and is receiving aid from the State Government,
therefore, the provisions of U.P. Act No.24 of 1971 in as
much as the provisions of U.P. Secondary Education
Services Selection Board Act, 1982 is applicable to the said
institution.
(7) There are 8 posts of Class IV employees lying vacant
in the said institution, out of which, six posts belong to the
General Category, one post to OBC Category and one post
to SC Category.
(8) The petitioner in the leading writ petition No.33753
(SS) of 2018 belongs to General Category. The Principal of
the institution vide applications dated 07.03.2013,
02.09.2013 and 23.11.2013 requested to the District
Inspector of Schools (DIOS) to grant prior permission to
initiate selection proceeding for selection and appointment
against the vacant posts. When no permission was
accorded, the Principal of the institution issued
advertisement in the daily newspapers Rashtriya Sahara
and Gramin Sahara inviting applications from the open
market from eligible and qualified candidates to appear in
the selection and the Selection Committee selected the
petitioner on Class IV post. The petitioner was issued
appointment letter on 11.01.2014 on the said post and in
pursuance thereto, he joined duties in the institution on
13.01.2014 and since then, he is discharging his duties.
Papers were submitted before the DIOS for grant of
financial concurrence / approval to the selection and
appointment of the petitioner. Reminder letters were also
issued to the same effect. When no order was passed, the
petitioner filed Writ Petition No.1538 (SS) of 2014 before
this Court, which was finally disposed of with a direction to
the DIOS to take decision regarding approval of
appointment of the petitioner. The DIOS passed an order
on 14.03.2018, whereby the claim of the petitioner for
grant of approval has been rejected on the ground that
there is a rider on appointment on Class IV post vide
Government Order dated 06.01.2011 and amendment has
been incorporated by issuing Government Order on
04.09.2013 in as much as further objection has been taken
that Regulation 101 has been amended by issuing a
notification on 26.04.2014, which is subject matter of
challenge in Special Appeal No.266 of 2015. Therefore, the
claim of the petitioner was rejected.
(9) In this matter, under the judgment in the case of
Dhruv Narayan Singh, the sanctioned strength of the
institution was duly examined and thereafter, the order was
passed by the DIOS on 01.12.2012 determining the
sanctioned strength of Class IV employees of the
petitioner’s institution and it was held that there are 17
duly sanctioned posts in the institution. The purpose of
prior approval is to ensure the correctness of the strength
of the sanctioned posts in the institution and to verify that
whether the post is vacant or not. Once the material was
placed before the DIOS in regard to sanctioned strength of
the institution vide letter dated 01.12.2012, therefore,
there was no dispute in regard to the sanctioned strength
of Class IV employees in the institution.
(10) Assailing the impugned order dated 14.03.2018,
submission of learned counsel for the petitioner is that the
controversy of prior approval was taken into consideration
in the case of Abhishek Tripathi decided vide judgment
and order dated 20.03.2015 in Writ-A No.8834 of 2015,
wherein this Court while examining the material on record
had taken notice to the effect that in case the sanctioned
strength has been determined in compliance of the
judgment passed in the case of Dhruva Narayan Singh,
there would be no further requirement for referring the
matter again before the Director of Education (Secondary),
as contemplated in Regulation 101, as it would be futile
exercise and would further delay the appointment and
would impede the daily functioning of the institution.
(11) He further placed reliance on the judgment in the
case of Preet Kumar Srivastava Vs. State of U.P. and
others; 2011 9 ADJ 591 on the point of prior approval
and made submission that prior approval of the DIOS is not
required to be granted prior to initiation of the process for
making appointment. He further submitted that the
Government Order dated 06.01.2011 and 04.09.2013 have
been set aside by this Court in the case of Committee of
Management of Babu Baijal Das. Therefore, the ground
taken in the impugned order is not sustainable in law. He
further submitted that the appointment of the petitioner
has been made prior to the amendment made in
Regulation 101 by issuing notification dated 26.04.2014.
The process of appointment of the petitioner was initiated
and ended on 11.01.2014, on which date the petitioner
was issued appointment letter, therefore, the amended
provision is not applicable to the present facts and
circumstances the case.
(12) On the other hand, learned counsel for the
respondents submitted that there is no illegality in the
order dated 14.03.2018 and the same is a just and valid
order. They next submitted that the ratio of the judgment
passed in the above referred cases are not disputed but the
same is not applicable to the case of the petitioner.
(13) Having heard the rival contentions advanced by
learned counsel for the parties, I perused the material on
record.
(14) On perusal, it is reflected that in the entire impugned
order, there is no dispute that the selection proceeding was
initiated by following the procedure prescribed under the
law by inviting applications from eligible and qualified
candidates by issuing advertisement in the newspapers
having wide circulation in the area. It has also not been
disputed that the Selection Committee constituted has
selected the petitioner by following the procedure. The only
objection in regard to the appointment of the petitioner has
been raised that in view of the Government Order dated
06.01.2011, there was rider to make appointment on Class
IV posts and by issuing Government Order dated
04.09.2013, Regulation 101 was amended by providing
appointment through outsourcing.
(15) The DIOS has failed to take into consideration that
Government Orders dated 06.01.2011 and 04.09.2013
were subject matter of challenge in the case of Committee
of Management-Babu Baijal Das. This Court after
consideration of the entire facts and circumstances of the
case, held the aforesaid two government orders to be
contrary to the act and rules applicable to the employees of
an institution duly recognized under the provisions of U.P.
Intermediate Education Act, 1921 and Payment of Salaries
Act, 1971.
(16) The DIOS has also failed to consider that the
amendment was incorporated in the statute book vide
notification issued on 26.04.2014 and prior to making
amendment in Regulation 101, the petitioner was selected
and was granted appointment in the institution. Therefore,
the amended provision is not applicable to the case of the
petitioner.
(17) This Court in the above referred judgments held that
in regard to the appointment on Class IV post, prior
approval is not required in case there is sufficient material
to establish that there is sanctioned strength in the
institution and the vacancies are available to make
selection.
(18) On overall consideration of the material on record,
this Court has no hesitation to hold that the order of the
DIOS dated 14.03.2018 suffers from manifest error of law
due to non consideration of the aforesaid aspect of the
matter and therefore, cannot be sustained. Accordingly, the
impugned order dated 14.03.2018 is hereby set aside.
(19) The Writ Petition No.33753 (SS) of 2018 succeeds
and is allowed.
(20) The DIOS, District Hardoi is directed to reconsider the
matter and to afford opportunity of hearing to the Principal
of the institution as well as to the petitioner and to pass a
fresh appropriate reasoned and speaking order in
accordance with law within a period of six weeks from the
date of production of a certified copy of this order.
(21) Similar controversy is involved in Writ Petition
Nos.33754 (SS) of 2018, 33755 (SS) of 2018, 33756 (SS)
of 2018 and 35532 (SS) of 2018.
(22) Therefore, the aforesaid writ petitions are also
succeed and allowed in terms of the judgment passed in
Writ Petition No.33753 (SS) of 2018.
Dated:- 10.12.2018
Adarsh K Singh