Court No. - 36
Case :- WRIT - A No. - 7215 of 2020
Petitioner :- Ram Narain
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Virendra Singh,Dinesh Tiwari
Counsel for Respondent :- C.S.C.
Hon'ble Neeraj Tiwari,J.
Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents.
This Court vide orders dated 17.9.2020 & 2.12.2020 granted time to file counter affidavit, but no counter affidavit has been filed. Lastly, this Court vide order dated 11.8.2021 granted four weeks and no more time to file counter affidavit, but even though, counter affidavit has not been filed.
Learned counsel for the petitioner submitted that as per settled position of law if the counter affidavit has not been filed, averments made in the writ petition to be treated correct and accordingly, petition may be allowed.
Learned Standing Counsel could not dispute the aforesaid legal argument raised by the learned counsel for the petitioner.
Present petition has been filed for quashing the impugned order dated 20.2.2020 passed by District Inspector of Schools, Fatehpur- respondent no.2.
Brief facts of the case are that there is an educational institution in the name of Ashok Inter College, Sankha, District Fatehpur-respondent no.4 duly recognized under the provisions of U.P. Intermediate Education Act, 1921. The said institution is also governed by the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as Act, 1971). He next submitted that after obtaining permission from D.I.O.S.- respondent no. 2 vide letter dated 13.1.2009 to fill up the vacancies, respondent no.4 issued advertisement for recruitment of Class-IV employees in daily newspapers, namely, Dainik Aaj and Rashtriya Sahara on 14.1.2009. Pursuant to that, petitioner being fully eligible as OBC category candidate, filled up the application form. Petitioner was called for interview on 30.1.2009. Accordingly, he appeared in interview and declared successful for the post of Class-IV employee under the OBC category. Respondent no. 4 vide resolution dated 30.1.2009 accepted the selection of petitioner as well as one Mr. Sanjay Kumar and sent entire papers of selection to D.I.OS.-respondent no.2 vide letter dated 31.1.2009 for financial approval, but no action was taken in the matter of petitioner.
Some other Class-IV posts were vacant in the year 2009 in the same institution i.e. respondent no.4 for which separate advertisement was made. One Mahesh Kumar Gupta was selected on the said post and his proposal for financial approval was rejected by the D.I.O.S.- respondent no.2 on the ground that prescribed age for Class-IV employee was advertised 18 to 35 years whereas SC candidates should have been given the age relaxation upto 40 years. Thereafter, Mahesh Kumar Gupta has filed Writ-A No. 35302 of 2011 challenging the order dated 14.1.2011, which was allowed vide order dated 5.9.2011 with the observation that there is no provision for age relaxation for S.C. candidate provided in the Intermediate Education Act as well as regulation framed thereunder and ultimately D.I.O.S. had given financial approval for appointment of Mahesh Kumar Gupta on 14.3.2012.
So far as financial approval about the proposal of petitioner's selection is concerned, no decision was taken by the D.I.O.S.-respondent no.2, therefore, petitioner has filed Writ-A No. 65931 of 2012, which was disposed of vide order dated 18.12.2012 with direction to respondent no.2 to take final decision in the matter. Petitioner served the copy of order dated 18.12.2012 to D.I.O.S.-respondent no.2 upon which D.I.O.S.-respondent no.2 has rejected the proposal on the very same ground which was taken in the matter of Mahesh Kumar Gupta vide order dated 28.2.2013. Petitioner again filed Writ-A No. 24604 of 2013 challenging the order dated 28.2.2013, which was allowed vide order dated 9.1.2020 by quashing the order dated 28.2.2013 with direction to respondent no.2 to consider the claim of petitioner for appointment afresh. Now, D.I.OS.-respondent no.2 has passed the impugned order rejecting the claim of petitioner only on a new ground that in light of Government Orders dated 6.1.2021 and 4.9.2013, provision has been made to engage the persons through outsourcing therefore, no financial approval can be granted to appointment of petitioner.
Learned counsel for the petitioner submitted that first of all in the matter of Mahesh Kumar Gupta, approval was granted by the D.I.O.S.- respondent no.2 vide order dated 14.3.2012 i.e. after issuance of Government Order dated 6.1.2011 and further any order issued subsequent to selection procedure cannot be given retrospective effect, therefore, Government Orders dated 6.1.2011 and 4.9.2013 cannot be applicable in the matter of petitioner, therefore, order is bad in law and passed with malafide intention, which is liable to be quashed.
Learned counsel for the petitioner further submitted that Government Order dated 6.1.2011 was subject matter of Writ Petition No. 36249 of 2011 (Lav Kush Pandey Vs. State of U.P. and others) in which Court has held that it has to be read down for appointments on future vacancies i.e. which had occurred after the issuance of the Government Order dated 6.1.2011 and not for the vacancies which had occurred earlier.
He further placed reliance upon the judgment of this Court in the matter of C/M Purvanchal Prachya Ved Vidyaly, Bharauli Vs. State of U.P. And 4 others passed in Writ-C No. 27118 of 2018 decided on 2.9.2021 and submitted that respondents have no liberty to take a new ground on every occasion, but while passing the first impugned order it is required upon them to take all grounds which was available at that point of time.
Learned Standing Counsel could not dispute the aforesaid facts as well as arguments raised by learned counsel for the petitioner, but submitted that petitioner is only a selected candidate, therefore, he has no right for his appointment on the post in question and selection process may be withdrawn at any stage.
I have considered the rival submissions advanced by the learned counsel for the parties and perused the record. Considering this fact that counter affidavit has not been filed, fact raised in this petition cannot be disputed. In the matter of Mahesh Kumar Gupta, D.I.O.S.-respondent no.2 has granted financial approval vide order dated 14.3.2012 ignoring the Government Order dated 6.1.2011, therefore, he cannot be given liberty to take a different stand in the matter of petitioner as it would be in gross violation of Article 14 of the Constitution of India.
Further, there is no dispute on the point that selection process was started in the year 2009 and petitioner has approached this Court on two occasions earlier and impugned order was set aside by the Court and matter was remanded back for reconsideration. Now it has been rejected on the ground of issuance of certain new government orders which are not in existence at the time of completion of selection process coupled with this fact that in the matter of Mahesh Kumar Gupta, financial approval was granted. Even in the present case, permission for filling up the vacancies granted by the DIOS vide order dated 13.1.2009. Selection process was completed on 30.1.2009 and matter was sent for financial approval on 31.1.2009, therefore, same cannot be rejected on the ground of Government Orders dated 6.1.2011 and 4.9.2013, which were issued much after the completion of selection process. The very same view was also taken up by this Court in the matter of Lav Kush Pandey Vs. State of U.P. and others passed in Writ Petition No. 36249 of 2011. Relevant paragraph of the said judgment are quoted hereinbelow:-
“The outsourcing, not being a matter of recruitment under the Act and the Regulations, could not have been introduced by means of a Government Order. It is also to be taken note of that in the instant case the vacancy had occurred on 28.2.2010, i.e. much before the issuance of Government Order dated 6.1.2011. Prior permission was granted by the Director of Education on 21.12.2010, i.e. before issuance of the aforesaid Government Order. The appointment, however, was made after issuance of the Government Ord0.79"er dated 6.1.2011. The vacancy having occurred prior to the Government Order dated 6.1.2011, cannot be taken to be a future vacancy so as to restrain the Principal from filling up the post for both the reasons aforesaid, viz. (1) the restraint order could not have been issued for banning the appointment on a clear vacancy of class IV post through regular process of appointment and substituting it by a new method of appointment which is not envisaged under the Act and the Regulations framed thereunder and also for the reason that the aforesaid ban, if at all is to be upheld then it has to be read down for appointments on future vacancies i.e. which had occurred after the issuance of the Government Order dated 6.1.2011 and not for the vacancies which had occurred earlier.”
In the present matter, this fact is also not disputed that earlier approval was rejected on a different ground and after matter being remanded back by the Court for a fresh consideration, rejection order has been passed on a new ground, which cannot be permitted. It is not open for the respondents on every occasion to take a new ground in case matter is remanded back. In fact, it is required on their part to take every grounds available to them while rejecting the application.
This Court in the matter of C/M Purvanchal Prachya Ved Vidyaly, Bharauli (supra) has also taken the same view. Relevant portion of the said judgment is being quoted hereinbelow:-
“Further, once an application is rejected on one or more grounds by the Competent Authority. After challenge, rejection order is set aside by the Appellate Authority/Court and matter is remanded back to pass fresh order. Competent Authority would have no right to reject the same again on a different ground/grounds which were available at the time of first rejection order. It is required on the part of Competent Authority to take all such grounds of rejection in its rejection order available at the time of passing rejection order, otherwise it would be unending process resulting into the harassment of applicant.”
Therefore, under such facts and circumstances as well as law laid by the Court, order dated 20.2.2020 passed by D.I.O.S.-respondent no. 2 is hereby quashed. The matter is remanded back to the D.I.O.S. for reconsideration for granting approval to the appointment of petitioner on Class-IV post within a period of six weeks from the date of computer generated copy of this order after verifying the same from official website of Allahabad High Court in light of observation made by the Court.
With the aforesaid observations, the writ petition is allowed.
Order Date :- 29.9.2021 Junaid