Court No. - 30
Case :- WRIT - A No. - 62953 of 2014 Petitioner :- Surendra Kumar Yadav Respondent :- State Of U.P. And 3 Ors Counsel for Petitioner :- Uma Nath Pandey,Pradeep Kumar Counsel for Respondent :- C.S.C.,Vijay Pratap Singh
Hon'ble Vivek Kumar Birla,J.
Heard Sri Pradeep Kumar, learned counsel assisted by Sri Uma Nath Pandey, learned counsel for the petitioner as well as Sri Ashok Kumar, learned Standing Counsel appearing for the State respondents and Sri Vijay Pratap Singh, learned counsel for the Committee of Management perused the record.
Pleading between the parties have been exchanged and with their consent, the present petition is being decided finally at the admission stage itself.
Present petition has been filed challenging the impugned order dated 20.10.2014 passed by the respondent no. 3- District Inspector of Schools, Basti. A further prayer in the nature of mandamus has been made to direct the respondents to pay regular salary of petitioner against the post of Assistant Clerk of Ramendra Vikram Krishi Inter College, Athdama, Basti.
By the impugned order, the District Inspector of Schools, Basti has refused to grant financial approval to the appointment of the petitioner on the post of Assistant Clerk in Ramendra Vikram Krishi Inter College, Athdama, Basti. It is not in dispute that the institute is a recognized and government aided and is governed by the provisions of Intermediate Education Act, 1921 (hereinafter referred to as the 'Act, 1921') and provisions of Act No. 24 of 1971. By the impugned order, approval has been refused on the ground that as per Regulations 101 to 107 of the Regulations framed under the Act, 1921, prior permission was required from the Director of Education (Secondary) and thereafter it should have been published in two daily newspapers and the Selection Committee should have been constituted as per departmental rules and thereafter approval is given by the Regional Committee. The ground taken is that the appointment made on Class III post is not in accordance with the departmental rules and directions and apart from that is contrary to the Government Order dated 6.1.2011 whereby a ban has been imposed on appointment of clerical grade in such government aided institutions.
Submission of the learned counsel for the petitioner is that the ground taken in the impugned order is not sustainable in the eye of law, inasmuch as Regulations 101 to 107 do not provide for constitution of Selection Committee to include the nominee of the District Inspector of Schools. It was further submitted that as a matter of fact an application dated 22.2.2013 was given to the District Inspector of Schools, Basti seeking permission to fill up the vacancy of Assistant Clerk after retirement of one Ram Milan Yadav as there is no other clerk available in the institution. The said application was duly received but no order was passed on the application, therefore, after about a gap of one and half years the Committee while facing the difficulty in day today affairs advertised the vacancy in two daily newspapers, namely, 'Swatantra Chetana' and 'Abhijeet Times' and proceeded to make selection. As such, it is clear that Committee of Management has made effort to seek permission for filling up the aforesaid vacancy and since the District Inspector of Schools was sitting tight over the matter, the Committee had no option but to proceed with the selection. It was further submitted that the post was duly advertised and there is nothing in Regulations 101 to 107 providing that there should be a nominee of the District Inspector of Schools in the Selection Committee for this purpose in case of a recognized government aided college. It was pointed out that such nominee, as per information of the petitioner, is required in Selection Committee of the government colleges only and the same is not provided in case of a government aided colleges. Insofar as the ban imposed by the Government Order dated 6.1.2011 is concerned, it is submitted that it is not in dispute that such ban has been quashed by this Court as the educational institutions are facing difficulty in their day today affairs. Submission, therefore, is that the impugned order is not sustainable in the eye of law and is liable to be quashed.
In support of his submissions, learned counsel for the petitioner has placed reliance on judgement of this Court rendered in the case of Abhishek Tripathi vs. State of U.P. and others, 2015 (2) UPLBEC 1271 (paras-9, 10, 11, 16, 17, 19, 20, 21 and 23); Principal, Adarsh Inter College, Umari, Bijnore vs. State of U.P. and others, 2010 (1) ADJ 403 and a judgement dated 16.8.2011 passed in Writ-C No. 37011 of 2011 (C/M Vivekanand Inter College and Another vs. State of U.P. & others).
Per contra, learned Standing Counsel appearing for the State respondents has supported the impugned order by reiterating the grounds taken in the impugned order. However, in the counter affidavit there is no mention of any specific provision relating to the issue involved in the present case except reference to Regulations 101 to 107.
I have considered the rival submissions and perused the record.
On perusal of the judgements placed before this Court, it is clear that it is prior approval before appointment is required after the selection process is over and the ban imposed by the Government Order dated 6.1.2011 has already been quashed by this Court. Under Regulations 101 and 102 applicable in the present case, there is no requirement of nominee of District Inspector of Schools in the Selection Committee. Regulations 103 to 107 relates to appointment on compassionate ground. Thus, none of the grounds as mentioned in the impugned order is sustainable in the eye of law.
Accordingly, present petition stands allowed. The impugned order dated 20.10.2014 passed by the respondent no. 3-District Inspector of Schools, Basti is quashed. The matter is remanded back to the respondent no. 3-District Inspector of Schools, Basti for passing fresh orders on the application of the petitioner for grant of financial approval, preferably within a period of two months from the date of production of certified copy of this order.
No order as to costs.
Order Date :- 29.3.2018 Abhishek