Heard Sri H.P. Sahi, learned counsel for the petitioners and Learned Standing Counsel for respondents.
Pleadings have been exchanged between the parties. With the consent of parties, writ petition is being decided at the admission stage itself.
The petitioners are challenging the impugned order dated 23.9.2011 passed by District Inspector of Schools, Etawah by which list of selected candidate was not approved on six grounds, which are quoted below;
"(i) No prior permission from the District Inspector of Schools had been taken by the management to fill up the post in question as required under Regulation 101;
(ii) Despite order dated 18.8.2011, the other post of Assistant Clerk has not been filled up by the committee of management by promoting Shri Shiv Dutt Mishra;
(iii) The post in question ought to have been filled up by appointing a scheduled caste category candidate.
(iv) Section 16-GG has got no application in the case of appointment of an Assistant Clerk: the Manager should file a Notary affidavit categorically stating therein that the person selected is not related to him.
(v) The news papers in which the advertisement was issued has got no circulation in District Etawah and that it was not mentioned in the news paper that the post was reserved or not. The institution was aided or not;
(vi) The entire selection proceedings were in teeth of the Government Orders issued from time to time."
So far as first ground is concerned, learned counsel for the petitioners submitted that application for prior permission was pending before respondent no. 2, therefore, he has filed Civil Misc. Writ Petition No. 14630 of 2011, which was disposed of vide order dated 15.3.2011 with a direction to Director of Education (Madhyamik), U.P. Lucknow to decide the application in accordance with law. This order was not assailed by the State. Pursuant to order of this Court dated 15.3.2011, prior approval was granted to petitioner by Director of Education (Madhyamik), U.P. Lucknow vide order dated 5.7.2011. So far as second ground is concerned, learned counsel has invited attention of the Court to order dated 16.8.2010 passed in Writ A No. 48198 of 2010 (Shiv Dutt Mishra Vs. State of U.P. and others) by which the petition for promotion of Shiv Dutt Mishra was dismissed and against which a Special Appeal was filed and same is still pending before this Court, therefore, on this ground, proposal for approval cannot be rejected. So far as third ground is concerned, he submitted that there are only three posts and in light of judgement of this Court reported in the cases of Smt. Pholpati Devi Vs. Smt. Asha Jaiswal and others; 2009 (2) ESC 1011 (All)(DB) and Heera Lal Vs. State of U.P. and others; 2010 (6) ADJ 1 (FB), no reservation can be granted for scheduled caste category. So far as fourth ground is concerned, learned counsel submitted that selection of Shri Anshu Dubey was not hit by Regulation 4 of Chapter III of conditions of service, which provides the list of relations, who cannot be appointed and relation of Anshu Dubey does not come within the ambit of prohibited category. With regard to the next ground, learned counsel for the petitioners submitted that advertisement was published in two widely circulated news papers, namely, 'Swatantra Bharat and Aaj' and apart from that a request had also been sent to Employment Exchange by the management for sending the names, therefore, it cannot be said that selection made by the petitioners committee is violative of Articles 14 and 16 of Constitution of India. He further submitted that no person had made any complaint before District Inspector of Schools that he could not apply for the reason that post was not properly advertised. With regard to mentioning this fact in advertisement that posts are reserved or not and institution was aided or not, learned counsel for the petitioners submitted that post was for general category, therefore, this objection is baseless and further there is no statutory requirement to publish this fact that the institution is aided or not. So far as last ground is concerned, he submitted that there is a vague assertion in impugned order that Government Orders are violated as there is no reference of any Government Order in the impugned order, which are said to be violated. In support of arguments, he has made specific assertion from para 35 to 41 of the writ petition.
Learned Standing Counsel has filed counter affidavit and argued that there is statutory requirement to obtain prior approval from District Inspector of Schools, therefore, prior approval granted by Director of Education cannot be treated the fulfillment of statutory requirement. He further argued that no affidavit has been given with regard to Anshu Dubey, who happens to be cousin (mausera) brother of petitioner no. 2. He also invited attention to the notification dated 31.12.2009 with regard to amendment in Regulation 101 and according to which, prior approval is required only from DIOS, which is statutory requirement. But so far as other grounds are concerned, he could not defend the same and only relied over the facts mentioned in impugned order.
I have considered the submission of learned counsel for the parties and have perused the record carefully.
From perusal of para 16, 17 and 19 of the counter affidavit, which is reply of para 35 to 41 of the writ petition, it is clear that there is no specific denial supported with the documents. In fact, pursuant to order of this Court dated 15.3.2011 passed in Civil Misc. Writ Petition No. 14630 of 2011, there is approval granted by Director of Education (Madhyamik), U.P. Lucknow. Therefore, considering this fact that order dated 15.3.2011 is not assailed, it cannot be said that there is no prior approval. After dismissal of Writ A No. 48198 of 2010 filed by Shiv Dutt Mishra for promotion, no promotion can be made by the committee of management, therefore, this ground is also not sustainable. This fact is also not disputed that there are total three posts, therefore, in light of judgements of this Court in the cases of Smt. Pholpati Devi Vs. Smt. Asha Jaiswal and others; 2009 (2) ESC 1011 (All)(DB) and Heera Lal Vs. State of U.P. and others; 2010 (6) ADJ 1 (FB), there is no illegality in not providing the reservation to SC/ST. For ready reference, para 34 of the judgement of Heera Lal (supra) is being quoted below:-
"34. In view of the reasons in support of the conclusions drawn herein above our answer to the questions posed are as follows:-
1. Question No. 1 is answered in the negative holding that either in cases of promotion or direct recruitment, the rule of reservation providing for 21% reservation to scheduled castes under U.P. Act No. 4 of 1994 as applicable to aided educational institutions cannot be pressed into service where the number of posts in the cadre is less than five.
2. The decision in the case of Mahendra Kumar Gond Vs. State of U.P. reported in 2009 (6) ADJ 674 having been rendered without taking notice of the two Division Bench judgments in the case of Dr. Vishwajeet Singh (supra) and Smt. Pholpati Devi (supra) is not approved. The Judgments of Dr. Vishwajeet Singh is hereby approved as laying down the law correctly on the issue raised herein."
It is also clear from the record that relation of Anshu Dubey does not come within the ambit of prohibited category as provided in Regulation 4 of Chapter-III conditions of service, which is being quoted herein below;
"dksbZ Hkh v/;kid] tks izcU/k lfefr ds fdlh lnL; vFkok iz/kkuk/;kid vFkok vkpk;Z dk laca/kh gS] laLFkk esa vLFkk;h Li"V fjDr Lfkku ij ugha fu;qDr fd;k tk;sxk vkSj u laLFkk esa fdlh dks iz/kkuk/;kid vFkok vkpk;Z fu;qDr fd;k tk;sxk tks izca/k lfefr ds fdlh lnL; dk laca/kh gksA bl fofu;e ds iz;kstu ds fy, "laca/kh" esa fuEufyf[kr dk rkRi;Z gS%&firk] ckck] llqj] pkpk] ;k ekek] iq=] ikS=] nkekn] HkkbZ] iq=h] ikS=h] iRuh] nknh] Hkrhtk] ppsjk ;k eesjk HkkbZ] lkyk] cguksbZ] ifr] nsoj] T;s"B] uUn] lkyh] iq=&c/kw] cfgu] Hkkot] ppsjk HkkbZ dh iRuh] ekWa] lkl] pkph ;k ekSlhA"
It is also clear from the record that no doubt two news papers, namely, Swatantra Bharat and Aaj are widely circulated and letter was also sent to Employment Exchange by the management, photocopy of advertisement and letter have also been annexed as Annexure Nos. 9 and 11 to the writ petition respectively. Therefore, it cannot be said that proper advertisement has not been made and further once the post is of open category, there is need to mention the fact whether the posts are reserved or not. Learned Standing Counsel could not point out any statutory provision to mention this fact in advertisement that the institution is grant-in-aid or not. There is also no reference of any Government Orders either in impugned order or counter affidavit, which are violated while making selection, therefore, I am of the view that the order impugned is bad in law and not sustainable.
Considering the aforesaid facts and circumstances of the case as well as law laid down by the Court, the impugned order dated 23.9.2011 passed by District Inspector of Schools, Etawah is bad in law and liable to be set aside. The impugned order dated 23.9.2011 is hereby quashed and the matter is remanded back to District Inspector of Schools, Etawah (respondent no. 3) to reconsider the case of the petitioners in light of order passed by this Court within a period of four weeks from the date of production of certified copy of the order after providing opportunity of hearing to concerned parties.
With the aforesaid observation, the writ petition is allowed.
No order as to costs.
Order Date :- 6.9.2018 Arvind