Allowed

C/M Junior High School Awawon-Sathiyaon Azamgarh and Anr. v. State of U.P. and Another

Allahabad HC20 Nov 2018WRIA/13015/2016

Case brief

AI extract

What is this about?

The High Court allowed the writ petition and quashed the order denying permission to the petitioner to fill Class-IV vacancies. Relying on a prior judgment, the Court held that the Government Order dated 06.01.2011 is ultra vires and inapplicable to institutions under the Intermediate Education Act, 1921. The Court directed authorities to proceed with recruitment per Rules, 1984.

What did the court decide?

Writ petition allowed; Government Order dated 06.01.2011 and consequential order dated 02.03.2016 quashed; authorities directed to grant permission for filling vacancies per Rules, 1984.

C/M Junior High School Awawon-Sathiyaon Azamgarh… — Service and Employment | Allahabad HC (2018)

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Court No. - 40

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Case :- WRIT - A No. - 13015 of 2016

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Petitioner :- C/M Junior High School, AwawonSathiyaon, Azamgarh And Anr. Respondent :- State Of U.P. And Another Counsel for Petitioner :- Hritudhwaj Pratap Sahi,Vijay Kumar Singh Counsel for Respondent :- C.S.C.,Bhanu Pratap Singh

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Hon'ble Ajit Kumar,J.

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Heard Sri V.K. Singh, learned counsel for the petitioners and the learned Additional Chief Standing Counsel representing the State respondents.

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This writ petition is directed against the order dated 02.03.2016, whereby, relying upon the Government Order dated 06.01.2011, the permission to fill up the class-IV positions in the Institution has been refused.

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The argument advanced by learned counsel for the petitioners is that the Institution is governed under the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Ministerial Staff and Group-D Employees), Rules, 1984 (hereinafter to be referred as 'Rules, 1984') and the process of appointment culminating from procedure prescribed for recruitment and selection to various positions have been duly prescribed for and by executive fiat in terms of Government Order in question, the provisions cannot be overridden by the respondents.

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Learned counsel for the petitioners has further placed reliance upon the judgment of this Court in

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Committee of Management Lala Babu Baijal Memorial Inter College and another v. State of U.P. and others 2012 (3) ESC 1616 (Ald) in which the same Government Order was struck down as against the provisions of the statute and has also been declared to be ultra vires the relevant provisions governing the field of recruitment inclusive of selection and appointment of recognized Institutions under the Intermediate Education Act, 1921 read with regulations framed thereunder.

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Learned counsel for the petitioners further contends that that the judgment in the case of Committee of Management, Lala Babu Baijal (supra) had not been appealed against and has attained finality.

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Per contra, the Additional Chief Standing Counsel has supported the impugned order for the reasons assigned therein, however, could not dispute that the very Government Order had been struck down in the judgment of this Court (supra) and that has attained finality qua the regulations framed under the Intermediate Education Act, 1921. Vide para 68 and 69 the Court finally held thus:

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"68. In the result, following writ petitions are decided in the following manner:

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(A) The Writ Petitions No. 11670 of 2011, 27387 of 2011, 27388 of 2011, 45111 of 2011, 33140 of 2011, 64630 of 2011, 68199 of 2011, 68591 of 2011, 68592 of 2011, 62476 of 2011, 63197 of 2011 and 1432 of 2012 are allowed to the extent that Para 2 of G.O. dated 06.01.2011 is struck down in its application to Secondary Educational Institutions recognised by the Board and governed by provisions of Act, 1921 and the Regulations framed thereunder, being illegal, arbitrary, unconstitutional and ultra

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vires.

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(B) Writ Petitions No. 62616 of 2011, 50905 of 2011, 8492 of 2012, 49269 of 2011, 63653 of 2011, 67140 of 2011, 61539 of 2011, 62465 of 2011, 631 of 2012 and 74197 of 2011 are allowed to the extent that orders impugned passed by State Government/educational authorities, pursuant to Para 2 of G.O. dated 06.01.2011, which has already been struck down, as above, are hereby set aside. They are directed to pass fresh order in accordance with law and in the light of the observations made above.

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(C) The Educational Authorities are also directed not to obstruct the process of selection and appointment on Class-IV posts in Secondary Educational Institutions only on the basis of Para 2 of G.O. Dated 06.01.2011.

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69. The Writ Petition No. 45708 of 2011 is disposed of directing the competent educational authorities to pass appropriate order on the matter of approval on selections made in educational institutions concerned for appointment on Class-IV posts expeditiously and in any case within a period of one month from the date of production of a certified copy of this order."

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Legal situation is no different either here in the case of Rules, 1984. I find myself in complete agreement with the ratio of the judgment (supra) as laid in paras 61 to 63 that are reproduced hereunder:

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"61. Moreover, in the context of what it has permitted to be done by educational institutions, there also I am of the view that this order is palpably arbitrary, discriminatory, exploitative in nature and, therefore, suffers the voice of contravening constitution provision under Article 14 and 16. It is not a case where requirement of ClassIV staffs in educational institutions has been done away. The existing sanctioned posts of Class-IV have not been abolished. It is nobody's case that henceforth educational institutions shall not require any Class-IV staffs in its functioning. What it suggests and try to endeavour is that the educational institutions shall not employ Class-IV

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staff directly on their own so as to function and discharge the duties of Class-IV staff under the administrative and otherwise control of institution, but, the work supposed to be performed by Class-IV staff would be required to be done through the staff made available by an outside agency and by that agency's staffs. In true sense though it is termed "outsourcing", but it does not satisfy the requirement of term "outsourcing", as discussed above.

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62. The normal functions of Class-IV staff in a secondary educational institution is ringing of bell, opening of class rooms, cleaning, providing stationary etc. from office to class teachers, taking files and other documents like examination copies etc. from one place to other and similar other menial job. All this work of Class-IV has to be performed by a person present in educational institution itself. It cannot be performed sitting outside the educational institution. Therefore, what the G.O. suggests is that for performing menial job of Class-IV, the workers shall be made available by a third party, by whatever name it may be called, may be a labour supplier, may be a Service Provider or else but in effect it amounts to introduction of a "middleman" for arranging Class-IV employees to perform the job of Class-IV in educational institutions for which the institutions shall pay the service charges which would include wages/salary of such person (ClassIV) and also the service charges of third party. This is nothing but a kind of contract labour arrangement.

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63. Introduction of a middlemen where the requirement is perennial, continuous and permanent has been deprecated time and again and many statutes enacted with an objective to exclude middleman have been held to be in public interest. This is really strange that herein the State Government intend to introduce a system of middleman when it is not already there. Learned Additional Advocate General also could not explain that besides wages/salary of the person who would be available to educational institution for performing the job of Class-IV employee, the service charges to third party would also be paid and in these circumstances how it can be an arrangement for saving the cost. To this query he could not reply at all."

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From the very perusal of order impugned, I find that the sole reason for declining permission to fill up the vacancy in question is that the Government Order dated 06.01.2011 does not permit appointments. It is not disputed by the learned counsel for the respondents that the service conditions in terms of recruitment, for which, selection is to be held on the Class-IV post, Rules, 1984 are fully applicable to the Institution in question and those rules do not stand superseded or amended in any manner so as to take away the power of Institution and provide for any appointment through outsourcing.

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In view of the above, therefore, the ratio of the judgment of Committee of Management, Lala Babu Baijal (supra) is applied to the present case as well and for the same, the Government Order dated 06.01.2011 and the consequential order dated 02.03.2016 declining the permission to the Committee of Management namely the petitioner to fill up the vacant positions of Class-IV in the Institution are hereby quashed. The consequences to follow. The authorities are directed to proceed in the matter strictly in accordance with law to consider the grant of permission for filing up vacancy as per the Rules, 1984.

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Writ petition is allowed with the aforesaid observations and directions, however, with no order as to cost.

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Order Date :- 20.11.2018 IrfanUddin

C/M Junior High School Awawon-Sathiyaon Azamgarh and Anr. v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

C/M Junior High School Awawon-Sathiyaon Azamgarh and Anr. v. State of U.P. and Another

Case brief

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What did the court decide?

What the court decided

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