Court No. - 58
Case :- WRIT - A No. - 24923 of 2018 Petitioner :- Manisha Jain Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Divakar Rai Sharma Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
Petitioner's claim to have been appointed on the post of Lecturer (Eduction) in Sri Udai Singh Jain Kanya Inter College, Aligarh, which is a recognized minority institution. The process of recruitment started with issuance of advertisement on 22.7.2017. The interview was conducted on 14.3.2018. The appointment process was concluded and papers were sent to the District Inspector of Schools for grant of approval on 19.3.2018. It is this letter of the Committee of Management which has been disapproved by the order impugned dated 13.6.2018. Three reasons are assigned for denying approval to petitioners' appointment i.e. (i) that in view of the amendment notified on 24.3.2018, the process of recruitment has been altered and the same has not been complied with; (ii) that original newspapers in which vacancy was advertised has not been provided to the Inspector concerned and; (iii) that the vacancy had lapsed and a fresh approval had not been granted.
Learned Senior Counsel for the petitioner submits that all three reasons cannot be sustained on the grounds that (i) notification introducing amendment in the regulation was published on 24.3.2018 by when the recruitment was concluded and the amendment introduced subsequently cannot be given retrospective effect; (ii) the newspapers in which publication was made i.e. 'Times of India' & 'Amar Ujala' are available and could have been demanded, but it could not be a ground to reject plea of financial approval; (iii) the substantive vacancy in the institution had arisen on account of retirement of Lecturer on 30.6.2015 and the justification for revival of the post could have been examined by the competent authority while considering the issue of financial approval, and that could not be a ground to reject the petitioner's claim.
Sri V.D. Dubey, learned Additional Chief Standing Counsel submits that reasons are absolutely valid and no case is made out to interfere with the order impugned.
I have heard learned counsel for the parties and have perused the materials brought on record.
So far as the first ground of challenge to the order impugned is concerned, it is settled that an amendment made in the service rules cannot be given retrospective application especially when the vacancy itself was advertised prior to amendment being made in the regulations itself. In the present case, the vacancy was advertised on 22.7.2017 while the amendment has been introduced on 24.3.2018. The Inspector, therefore, is not justified in denying financial approval on the ground of amendment introduced in the regulations.
So far as the second plea of not providing original newspapers are concerned, this issue could have been sorted out by the Inspector calling upon the Committee of Management to produce the original newspapers. The copy of newspapers otherwise were annexed with the resolution, and therefore, the appropriate course for the Inspector to have called upon the Committee of Management to produce the original newspapers. The approach on part of the Inspector in rejecting petitioners' claim by not calling upon the original newspaper seems too harsh and technical to be approved. It otherwise serves no purpose.
It would, therefore, be appropriate to observe that the petitioners shall furnish original newspapers before the authority alongwith certified copy of this order within a period of two weeks from today and the order impugned would not stand in the way of consideration of petitioners' claim for grant of financial approval for such reason.
So far as the issue relating to making of appointment without existence of vacancy is concerned, the provisions of regulations clearly provide that in case appointments are not made within a period of three months from the date of accrual of vacancy, the post itself would be deemed to have been surrendered. Chapter II regulation 20 is clearly applicable in the facts of the present case and is extracted hereinafter:-
"20. Where the Committee of Management has failed to advertise any sanctioned post which has fallen vacant in accordance with the regulations contained in this Chapter within a period of three months from the date of occurrence of the vacancy, such post shall be deemed to have been surrendered and shall not be filled up unless its creation is sanctioned afresh by the Director."
The Committee of Management in the present case had clearly furnished justification for revival of post for making of appointment against the post. Once the vacancy had lapsed consequent upon deemed surrender by virtue of regulation, the Inspector ought to have forwarded the claim for grant of financial approval to the Director, who would be competent authority to consider grant of permission to fill the post. This would be the appropriate court inasmuch institution itself is a minority institution and the right of institution to make appointment is subjected to limited restrictions only. A post facto approval could have served the purpose in such a case.
In the facts and circumstances, noticed above, it would therefore be appropriate to dispose off this petition permitting the petitioner to represent in the matter before the Inspector, alongwith certified copy of this order, within a period of two weeks from today. Petitioners shall produce the original newspapers as also the copy of communication sent by the Committee of Management for revival of post. The Inspector shall transmit the papers to the Director alongwith his comments within a period of six weeks thereafter. The Director concerned shall thereupon take a decision with regard to grant of approval to fill the post, and consequential orders would be passed by the Inspector within a further period of six weeks thereafter from the date of receiving of communication from the Director. The order impugned shall remain subject to fresh decision to be taken by the authority concerned, as indicated above.
Writ petition is, accordingly, disposed off.
Order Date :- 27.11.2018 n.u.