Court No. - 6
Case :- WRIT - A No. - 10170 of 2021 Petitioner :- National Post Graduate College Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Rahul Agarwal,Chandan Sharma Counsel for Respondent :- C.S.C.
Hon'ble Pankaj Bhatia,J.
Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents.
The present petition has been filed challenging the order dated 20.5.2021, whereby the Regional Higher Education Officer, Gorakhpur had declined to grant permission to fill up the post in the petitioner's Institution placing reliance on the Government Order dated 15.3.2012 as well as a subsequent Government Order dated 11th July, 2013.
The contention of learned counsel for the petitioner, in brief, is that the petitioner's Institution is a recognized Institution affiliated to Deen Dayal Upadhyay University, Gorakhpur established under the U.P. State Universities Act. A request letter was sent by the petitioner on 24.8.2015 informing that the post of Lab Assistant has fell vacant on account of the retirement of the incumbent and permission was sought for filling up the said vacancy. It is also pleaded that several other posts were also vacant, for which permission was sought, however, as the permission was not being granted, the petitioner approached this Court by filing Writ-A No. 2625 of 2021, which was disposed off vide order dated 22.3.2021 directing the respondents to consider the claim of the petitioner in accordance with law within two months.
In pursuance to the said liberty granted on 22.3.2021, the order impugned has been passed on 20th May, 2021 denying the permission to the petitioner to make appointments, in view of the said two Government Orders as referred above.
Learned counsel for the petitioner Shri Chandan Sharma argues that this question with regard to the two Government Orders was considered in detailed by this Court in Writ-A No. 26271 of 2018, judgment dated 9.1.2019, whereby this Court after interpreting the two Government Orders has held as under:-
"8. The Government Order dated 11.7.2013 is categorical inasmuch as State Government in para-3 of the Government Order has taken note of difficulties that are arising in the functioning of educational institutions on account of ban imposed. It was in that context that while lifting the ban, the State Government clarified that 1043 posts which had fallen vacant till then would be open to be filled. The difficulty created in the institution on account of Government Order dated 15.3.2012 was notied and the ban was lifted, accordingly. It can not be construed that notwithstanding the subsequent Government Order dated 11.7.2013, the previous Government Order imposing ban would continue to apply. In case such contention is accepted, the ban imposed vide Government Order dated 11.7.2013 alone would be lifted while for all vacancies created, thereafter the ban would continue to apply.
9. There is absolutely no justification for any such distinction to be drawn based upon the date specified i.e. 11.7.2013. Such a categorization/ classification can not be construed as a reasonable classification inasmuch as it would have no intelligible differentia or object which is sought to be achieved. The same Government Order dated 15.3.2012was pressed as being the ground for denial of permission for filling up vacancies in Intermediate institution also. The Government Order on 15.3.2012, was also followed by subsequent Government Order dated 23.5.2013. After taking note of both the Government Orders, this Court in Vipin Vs. State of U.P. and others, 2013 (7) ADJ 274, has been pleased to hold that ban would not be available for the purposes of denying institution to fill up the post itself. No specific provision has otherwise been shown to the Court under the applicable statutory scheme which could have been invoked for the purposes of issuance of Government Order dated 15.3.2012. The said Government Order, otherwise, is general in nature and its applicability upon the institutions of higher leaving stands lifted under the Government Order dated 11.7.2013. In that view of the matter, the order passed by the Director of Education dated 4.9.2018 cannot be sustained and is accordingly quashed."
The said judgment was challenged in special appeal. The Division Bench of this Court upheld the said judgment in Special Appeal No. 198 of 2020 (State of U.P. and others Vs. Committee of Management Mahatma Gandhi Shanti Samarak Degree College and Another), judgment dated 5.2.2021 and while dismissing the appeal recorded its additional findings to the following effect:-
"9. A perusal of the letter does not show reference of Section 66A of the Act of 1973. If it is assumed that non reference of the provision would not nullify the order, the question for our consideration would be as to whether the letter aforesaid has been addressed to the University so as to make it under Section 66A of the Act of 1973. We don't find letter to the University or as even endorsement of it.
10. How letter dated 15.03.2012 can be made applicable on the University in reference to the post of clerk. It is to be filled as per the statute of the Purvanchal University and not under the Rules applicable to the service under the State.
11. At this stage, it would be necessary to clarify that the posts of Lecturers in teaching cadre is filled by the Government after selection by the Commission. For the post to be filled by the Government, the letter dated 15.03.2012 may be applicable. It cannot be for a post to be filled as per the statute of the University. The approval of the Director may be required. The imposition of ban is on filling of the posts and not on the approval. We are not going on the fact that how a college can manage its affairs without sufficient staff.
12. It is otherwise an admitted fact that no ban on the appointment of teachers was imposed. If that is so then how an Institution can run without Class III and Class IV staff is another issue to be debated but we are deliberately not touching this issue as the order dated 15.03.2012 is not under Section 66A of the Act of 1973."
In view of the said two judgments as referred above, it is clear that the respondents have no authority to restrain the Colleges from filling the vacancies and the permission cannot be denied only on the basis of the Government Orders, as referred to in the impugned order.
Accordingly, the impugned order dated 20th May, 2021 is set aside. The respondents are directed to grant permission as sought by the petitioner without taking into consideration the Government Orders dated 15.3.2012 and 11th July, 2013, in accordance with law. The said exercise shall be completed expeditiously, preferably within a period of two months from the date of production of a copy of this order before the respondent no. 3.
The writ petition is allowed in terms of the said order.
Copy of the order downloaded from the official website of this Court shall be treated/accepted as certified copy of this order.
Order Date :- 13.8.2021 S. Rahman