Court No. - 58
Case :- WRIT - A No. - 902 of 2019 Petitioner :- Smt. Sunita Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Amit Kumar Srivastava,Anil Bhushan, Sr. Advocate Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
1. Following orders were passed in the matter on 31.1.2019:-
"Petitioner had earlier approached this Court by filing Writ Petition No.15095 of 2018, which was disposed of vide following orders passed on 17.7.2018: "Pursuant to the orders passed by this Court on 17.7.2018 in Writ Petition No. 15095 of 2018, petitioner's claim for grant of approval to the appointment in the attached primary section has been declined by the Regional Level Committee vide order dated 26th October, 2018. The order records that the procedure contemplated in the Government Order dated 3rd January, 2017 has not been followed.
The Government Order dated 3rd January, 2017 provides that a prior permission from the Director would have to be obtained before the Inspector proceeds to grant permission to make appointment.
Submission is that the procedure warranted in law has been followed and petitioner has been appointed against a vacant post. According to petitioner's counsel the appointment of petitioner would not become bad only for the reason that prior approval of Director had not been obtained by the Inspector. Submission is that at the time of approval this deficiency could be cured and the Regional Level Committee was not justified in declining petitioner's claim. Even otherwise, submission is that Director's permission can be taken at this stage also.
Learned Standing Counsel may obtain instructions. Put up as fresh once again on 31.1.2019."
Pursuant to such orders passed, the Regional Level Committee has rejected petitioner's claim for grant of approval on the ground that the Directorate has passed an order dated 27.10.2017, as per which further proceedings are pending at the level of the State Government for amending the procedure for appointment. The order of the Regional Level Committee is, therefore, assailed in this petition.
Pursuant to the order passed on previous occasion, learned Standing Counsel has obtained instructions wherein reference is made to the order of the Director dated 27.10.2017.
Perusal of materials placed on record would go to show that the process of recruitment in attached primary has been kept in abeyance for an indefinite period only because the State Government intends to amend the appointment procedure. The Regional Level Committee for such reasons has refused approval to petitioner's appointment notwithstanding the fact that permission had been granted by the District Inspector of Schools to fill up the post.
As the matter in issue is likely to have importance for large number of other similarly situated institutions, it would be appropriate to direct the Principal Secretary of the department concerned to examine the issue at the first instance. An affidavit would be filed clearly explaining as to whether there would be any justification for the authorities to keep the appointment process in abeyance on the ground that a change in procedure is contemplated at the level of the State Government. Even otherwise, it would be a matter to be examined by the State whether merely for the reasons that some change in procedure is contemplated, it would be prudent to stall all selection proceedings in the State. The State Government shall also examine that a similar Government Order issued earlier in the year 2012 was recalled.
Required affidavit would be filed after examining the issue by the next date fixed.
Let this matter appear once again, as fresh, on 12.2.2019."
2. A compliance affidavit has been filed in the matter by Joint Secretary, Department of Secondary Education, stating that a notification has been issued by the Department of Secondary Education on 18.2.2019 amending U.P. Secondary Education Service Selection Board Rules, 1998 by way of Fifth Amendment Rules, 2019. As per the amended provisions, the posts of Assistant Teacher in a primary institution would be filled by way of direct recruitment to be made through the Board. So far as claim of promotion is concerned, the same is required to be considered after holding of a written test. This is sought to be contended on behalf of respondents that in view of the amended rules, referred to above, the appointment of petitioner being inconsistent with the procedure laid down, the appointment cannot be approved.
3. On behalf of petitioner, it is contended that the notification dated 18.2.2019 can only have a prospective application and appointments already made cannot be nullified by giving retrospective application to the Amended Rules, 2019. It is also submitted that the Government Order dated 3.1.2017 was issued with the object of ascertaining that appointments are not made in excess of sanctioned post, or that appointments be not made in excess of number of teachers required in the institution itself.
4. I have heard Sri Anil Bhushan, learned Senior Counsel assisted by Sri Amit Kumar Srivastava for the petitioner and Sri Neeraj Tripathi, learned Additional Advocate General assisted by Sri Shashank Shekhar Singh for the State.
5. Perusal of the compliance affidavit filed today would go to show that a Government Order was issued on 19th April, 2003 by the State Government, which recorded that it came to the notice of the State that appointments were being made without the post itself being sanctioned in the institution concerned. A decision, consequently, was taken to ban all appointments except on a specific prior approval obtained from the State Government. Para 3 of this Government Order also provided that details of students, post sanctioning order etc. had to be informed to the State Government and only thereafter a decision would be taken regarding grant of permission to fill up the post. This Government Order was subsequently modified vide Government Order dated 25th May, 2012. The Government Order of 25th May, 2012 took note of the fact that on account of ban imposed by the Government Order dated 19th April, 2003 the cause of education is getting adversely affected. Consequently, a decision was taken to lift the ban while laying procedure for appointment of teachers in such institutions. It was this Government Order dated 25.5.2012 which has been substituted with the Government Order dated 3.1.2017. Relevant portion of the Government Order dated 3.1.2017 is reproduced hereinafter:-
"vr% lE;d fopkjksizkUr izns'k ds v'kkldh; lgk;rk izkIr mPprj ek/;fed fo|ky;ksa b.Vj dkystksa@vYila[;d fo|ky;ksa ls lEc} izkbejh vuqHkkx esa fjDr inksa dks Hkjs tkus gsrq fuEuor dk;Zokgh dh tk;sxh%& ¼d½ 'kklukns'k la[;k&8125@15&8&3086&14 fnukad 20-11-1976 ds vuqlkj izR;sd layXu izkbejh fo|ky; esa d{kk&1 ls 5 ds fy;s ,d v/;kid izfr d{kk vuqeU; fd;k tk;] rkfd foRrh; vuq'kklu cuk jgs vkSj fcuk vko';drk vkSj vkSfpR; ds f'k{kdksa ds fu;qfDr u dh tk;A ¼[k½ lEc} izkbejh vuqHkkx esa f'k{kdks ds lsokfuo`Rr@inksUUkfr ;k e`R;q ls gq, fjDr in ds izfr Nk= la[;k@vko';drk dks /;ku esa j[krs gq, ftyk fo|ky; fujh{kd }kjk izLrko laLrqfr lfgr f'k{kk funs'kky; dks miyC/k djk;k tk;sxk] ftls f'k{kk funs'kky; }kjk 'kklu dks ,d ekg ds Hkhrj ijh{k.kksijkUr izsf"kr fd;k tk;sxkA ¼x½ 'kklu }kjk fjDr inksa dh iwfrZ djus lEcU/kh vuqefr i= lEcfU/kr ftyk fo|ky; fujh{kd@lEcfU/kr izcU/kd dks nh tk;sxhA ¼?k½ izcU/kd 'kklu ls vuqefr izkIr gksus ds i'pkr lgk;d v/;kid ds in ij fu;qfDr ds lEcU/k esa fjfDr ls lEcfU/kr foKkiu ,sls nks lekpkj i=ksa esa izdkf'kr djk;sxk ftlesa ,d dk izpyu izns'k Lrj ij gksA foKfIr esa 'kSf{kd vgZrk] vk;q] osrueku ,oa vkj{k.k vkfn dk iw.kZ fooj.k fn;k tk;sxkA vkosnu&i= izkIr gksus ds i'pkr ek/;fed f'k{kk vf/kfu;e&1921 dh /kkjk&16 p¼2½ ds vuqlkj lgk;d v/;kid ds fy, fu/kkZfjr p;u lfefr xfBr dj p;u dh dk;Zokgh dj vuqeksnu gsrq i=tkr ftyk fo| ky; fujh{kd dks miyC/k djk;k tk;sxkA ftyk fo|ky; fujh{kd vYila[;d laLFkkvksa ds lUnHkZ esa fu;ekuqlkj vuqeksnu iznku djsxkA rFkk vU; lgk;rk izkIr laLFkkvksa ds lUnHkZ esa e.Myh; lfefr dks izdj.k vuqeksnukFkZ izsf"kr djsxkA e.Myh; lfefr ,d i{k ds vUnj ml ij fu;ekuqlkj fu.kZ; ysdj lEcfU/kr ftyk fo|ky; fujh{kd ,oa izcU/kd dks voxr djk;sxhA 2& izns'k ds v'kkldh; lgk;rk izkIr ek/;fed fo|ky;ksa ls lEc} izkbejh izHkkx esa v/;kidks dh fu;qfDr gsrq fuxZr 'kklukns'k la[;k&15¼l½@15&12&2012 fnukad 25&05&2012 dh O;oLFkk lekIr dh tkrh gSA"
6. A direction has been issued thereafter by the Director of Education on 27.10.2017, stating that recruitment procedure since is likely to be amended by the State Government, as such fresh appointments be made only after new procedure is prescribed.
7. From a perusal of the aforesaid Government Orders, it is apparent that State has realized the need to allow appointments to be made in the primary institutions by following a fair procedure. Advertisement is required to be made in two newspapers, one of which would be of State level. It has also been clarified that the minimum qualification, requirement of age, reservation and other relevant considerations are also required to be specified in the advertisement itself. The norms for creation of post specified in the Government Order dated 20th November, 1976 has also been enforced. It is, therefore, abundantly clear that there exists no ban imposed by State in making of appointment in the attached primary institution and the limited scrutiny required is regarding availability of post and following of fair procedure, so that unnecessary financial burden is not imposed upon the State. Moreover, no provision is shown in the applicable provision conferring jurisdiction upon the Director to stall all recruitment when the Government Order dated 3.1.2017 provides for a different course.
8. The Regional Level Committee, in the facts and circumstances of the present case, has declined to grant approval to petitioner's appointment, primarily on the ground that such appointment was impermissible in view of the subsequent direction issued by the Director on 27th October, 2017, and that such an appointment could have been made only after the appointment procedure got amended.
9. In view of what has been discussed above, this Court finds that the Government Order dated 3.1.2017 had not imposed any blanket ban in making of appointment, and therefore the validity of petitioner's appointment was open to be examined in terms of the procedure laid down in the Government Order dated 3.1.2017. This aspect does not appear to have been examined by the Regional Level Committee.
10. An additional aspect, which needs to be clarified at this stage, would be the non-obtaining of permission from the State Government in the matter. It is admitted on record that District Inspector of Schools had granted permission on 4th May, 2017 to make appointment in the attached primary institution concerned. This order was issued in accordance with the Government Order dated 25th May, 2012. The Inspector had apparently failed to notice the subsequent Government Order dated 3.1.2017, by which the previous Government Order dated 25th May, 2012 stood substituted with the Government Order dated 3.1.2017. A specific permission was required to be obtained from the State Government. This requirement, however, looses much of its purpose, in view of the fact that pursuant to the directions issued by this Court in Writ Petition No.26307 of 2010 (Dhruv Narain Singh Vs. State of U.P. and others) on 26.10.2010, the posts of teaching and non-teaching staff in an educational institution stands determined and such aspects can be examined by the competent authority while granting approval to such appointment. Law in that regard has been settled in Abhishek Tripathi Vs. State of U.P. and others, reported in 2015(4) ADJ 270. Though the respondents would be justified in saying that the District Inspector of Schools, Firozabad, had not taken note of the relevant Government Order, but in the assessment of the Court that alone would not be a ground to deny consideration to petitioner's claim. The consideration for examining the legality of appointment would be the existence of post as also following of the procedure laid down in the Government Order dated 3.1.2017. In the facts and circumstances of the present case, a transparent procedure appears to have been followed with publication of advertisement as well as preservation of records relating to holding of selection etc. Posts are also alleged to exist in the institution. So far as amendment of the Rules of 1998 vide notification dated 18.2.2019 is concerned, the same would have no retrospective application. The appointment of petitioner, already made, would have to be examined with reference to the law then existing, and not any subsequent amended procedure.
11. Since petitioner's appointment has already been made, it would be appropriate to permit the State Government to examine as to whether the appointment itself is liable to be approved in terms of the criteria and considerations stipulated in the Government Order dated 3.1.2017 or not? It would be open for the State Government to examine as to whether sufficient number of posts are in existence in the institution concerned and whether a fair procedure required in terms of the Government Order dated 3.1.2017 had been followed or not? If it is found that relevant parameters laid down in the applicable Government Order are satisfied, the appointment would not be disapproved only for not obtaining of prior approval of the State Government.
12. In view of the above, this writ petition stands disposed of with a direction upon the State Government to examine the legality of petitioner's appointment and also to consider grant of financial approval to it, in light of the observations made above, by passing a reasoned order, within a period of three months from the date of presentation of certified copy of this order. The order passed by the Regional Level Committee, which is impugned in the writ petition, shall remain subject to the orders to be passed by the State Government, in that regard.
Order Date :- 25.2.2019 Anil