Heard counsel for the petitioner, learned Additional Chief Standing Counsel Sri Devendra Upadhyay on behalf of respondent no.1 and Sri Rahul Shukla on behalf of respondent no.2. With their consent, this writ petition is being disposed of finally, as the respondents state that they have already obtained instructions in the matter and do not wish to file formal counter affidavit.
The petitioner is the Committee of Management of a recognised Junior High School receiving grant-in-aid from the State Government. The provisions of the Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 and the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Ministerial Staff and Group 'D' Employees) Rules, 1984 (hereinafter referred to as '1984 Rules') are applicable to it. The petitioner is aggrieved by order dated 27.9.2014 passed by District Basic Education Officer, Barabanki-respondent no.2, whereby, he had refused to accord permission to the Management to advertise two vacant Class IV posts. The reasoning given in the order is that under Government Order dated 6.1.2011 there is a ban on appointment against Class IV posts. These posts, according to respondent no.2, would automatically come to an end after the retirement of incumbents working against these posts.
Learned counsel for the petitioner contended that the Government Order dated 6.1.2011 has been struck down as illegal, arbitrary and violative of Articles 14 and 16 of the Constitution vide judgment dated 21.3.2012 rendered in a bunch of writ petitions, leading case being Writ Petition No.11760 of 2011 C/M Lal Babu Baijal Memorial Inter college and another Vs. State of U.P. and others. It is submitted that against the said judgment, the State preferred Special Appeal (Defective) No.1023 of 2012, which is still pending and no interim order has been passed therein. Thus, according to him, the judgment dated 21.3.2012 in the case of C/M Lal Babu Baijal Memorial Inter college (supra) is binding on respondent no.2. It is further contended that in fact District Basic Education Officer was not authorised to withhold approval for advertising the posts, as no such power is conferred in his favour under Rules 1984, which governs the appointment on Class IV posts.
On the other hand, learned Additional Chief Standing Counsel and Sri Rahul Shukla appearing on behalf of the respondents contended that judgment in the case of C/M Lal Babu Baijal Memorial Inter college (supra) is applicable only in relation to the Intermediate Colleges and would not apply to the colleges governed by the Uttar Pradesh Basic Education Act, 1972. However, it is not disputed by them that the judgment rendered therein dated 21.3.2012 has not been stayed/set aside by any court. Sri Rahul Shukla further states that, infact, no permission was required by the Management from District Basic Education Officer, Barabanki for issuing the advertisement and they were only required to intimate the vacancies.
I have considered the submissions made by learned counsel for the parties and perused the record.
The Government Order dated 6.1.2011 places prohibition on appointment against Class IV posts in various educational institutions, receiving grant-in-aid.. It is provided that such posts in future shall be filled by 'outsourcing'. The Court, in the case of C/M Lal Babu Baijal Memorial Inter college (supra), examined the provisions of the Intermediate Education Act, 1921, the Regulations framed thereunder, and thereafter, came to the conclusion that Class IV posts are integral part of any educational institution and introduction of the scheme of appointment by outsourcing, is violative of Articles 14 and 16 of the Constitution of India. Relevant findings, in this regard, in the said judgment are as under:-
"61. Moreover, in the context of what it has permitted to be done by educational institutions, there also I am of the view that this order is palpably arbitrary, discriminatory, exploitative in nature and, therefore, suffers the voice of contravening constitution provision under Article 14 and 16. It is not a case where requirement of Class-IV staffs in educational institutions has been done away. The existing sanctioned posts of Class-IV have not been abolished. It is nobody's case that henceforth educational institutions shall not require any Class-IV staffs in its functioning. What it suggests and try to endeavour is that the educational institutions shall not employ Class-IV staff directly on their own so as to function and discharge the duties of Class-IV staff under the administrative and otherwise control of institution, but, the work supposed to be performed by Class-IV staff would be required to be done through the staff made available by an outside agency and by that agency's staffs. In true sense though it is termed "outsourcing", but it does not satisfy the requirement of term "outsourcing", as discussed above.
62. The normal functions of Class-IV staff in a secondary educational institution is ringing of bell, opening of class rooms, cleaning, providing stationary etc. from office to class teachers, taking files and other documents like examination copies etc. from one place to other and similar other menial job. All this work of Class-IV has to be performed by a person present in educational institution itself. It cannot be performed sitting outside the educational institution. Therefore, what the G.O. suggests is that for performing menial job of Class-IV, the workers shall be made available by a third party, by whatever name it may be called, may be a labour supplier, may be a Service Provider or else but in effect it amounts to introduction of a "middleman" for arranging Class-IV employees to perform the job of Class-IV in educational institutions for which the institutions shall pay the service charges which would include wages/salary of such person (Class-IV) and also the service charges of third party. This is nothing but a kind of contract labour arrangement.
63. Introduction of a middlemen where the requirement is perennial, continuous and permanent has been deprecated time and again and many statutes enacted with an objective to exclude middleman have been held to be in public interest. This is really strange that herein the State Government intend to introduce a system of middleman when it is not already there. Learned Additional Advocate General also could not explain that besides wages/salary of the person who would be available to educational institution for performing the job of Class-IV employee, the service charges to third party would also be paid and in these circumstances how it can be an arrangement for saving the cost. To this query he could not reply at all.
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.
Under the Rules 1984 framed under sub-section (1) of Section 19 of the Uttar Pradesh Basic Education Act, 1972, a wholesome procedure is prescribed for filling up Class IV posts. Rule 3(2) prescribes that if any vacancy occurs during an academic session, it shall be filled within two months from the date of occurrence of vacancy. Rule 13 provides that no vacancy shall be filled, except after its advertisement in at least one newspaper having adequate circulation in the locality and after intimation of such vacancy to the District Basic Education Officer. Under Rule 14, Selection Committee comprises of Manager, Headmaster of the recognised school in which the appointment is to be made and a specialist nominated by the District Basic Education Officer. The Selection Committee, after interviewing the candidates, forwards the list to the Management, who is enjoined with the duty to place the same before the District Basic Education Officer within one week. Thereafter, the District Basic Education Officer is conferred with power to accord approval to the recommendation made by the Selection Committee. Rule 15 (5) (iii) further states that in case the District Basic Education Officer does not communicate his decision within one month from the date of receipt of the papers under clause (4), he shall be deemed to have accorded approval to the recommendations made by the Selection Committee. Under Rule 16, the Management is authorised to issue appointment letter on receipt of approval or on expiry of period of one month provided under Clause (iii) of the Sub-Rule 5 of Rule 15.
Thus, considering the scheme relating to appointment on Class IV posts in a Junior High School, I am of the opinion that the reasoning given in the judgment rendered in the case of C/M Lal Babu Baijal Memorial Inter college (supra), would also apply to the institutions governed by the Uttar Pradesh Basic Education Act, 1972. The Management is under mandate of law to fill vacancies within two months of its occurrence and in accordance with the procedure prescribed under the Rules, which does not permit employing services of Class IV employees by 'outsourcing'.
As regards the contention of the respondents that special appeal is pending against the aforesaid judgment, it is admitted to both the parties that there is no stay in the special appeal and thus, the said judgment still holds the field and would be binding on the authorities. This is, however, subject to any contrary decision in special appeal, which is stated to be pending.
In view of the above, I am of the opinion that District Basic Education Officer, Barabanki was not justified in restraining the Management from advertising the posts.
There is another aspect of the matter. Under Rule 13, the Management is only required to intimate the vacancy to District Basic Education Officer and its approval for advertising the same in the newspaper was not required. The grant of approval to the selection made on Class IV post by the Management comes at a later stage under sub rule (5) of Rule 15. In view of this, there was no justification on part of District Basic Education Officer to pass the impugned order, refusing to accord approval for advertising the post. Sri Rahul Shukla appearing on behalf of Basic Education Officer also supported the submission made by the petitioner, in this regard.
Learned counsel for the petitioner submitted that there is apprehension that District Basic Education Officer, who has passed the impugned order, would not nominate the specialist in the Selection Committee and would thereby, scuttle the selection process. The aforesaid apprehension of the petitioner can be taken care of by providing that District Basic Education Officer shall nominate the specialist in case request is made to him by the petitioner, after due advertisement of the vacancies. However, after the Selection Committee makes recommendation, the District Basic Education Officer shall be empowered to take decision on its own merits, regarding grant of approval to such appointment.
In view of above discussion, this writ petition is allowed. The order dated 27.9.2014 passed by the District Basic Education Officer, Barabanki is quashed. The Management shall be free to advertise the vacancies. However, it is provided that the Management shall specifically mention in the advertisement that the selection would be held subject to decision of this Court in special appeal No.1023 of 2012 pending against the judgment of this Court dated 21.3.2012. The District Basic Education Officer, Barabanki is further directed to act in accordance with law and nominate a specialist in case any such request is made by the Management, after following the procedure prescribed for advertising the vacancies. These, directions are without prejudice to the power of the District Basic Education Officer to examine the validity of the selection at the stage of grant of approval under Rule 15 (5).
Subject to aforesaid observations/directions, writ petition stands allowed.
(Manoj Kumar Gupta, J.) Order Date :- 24.11.2014 SL