Allowed

Pradeep Kumar and Others v. State of U.P. and Others

Allahabad HC7 May 2018WRIA/55074/2010

Case brief

AI extract

What is this about?

Single Judge High Court examined appointment of Group D staff in an aided college. Upholding selection validity, the Court quashed the Director of Education's order annulling appointments, noting the Magistrate's previous finding confirmed correct procedure and the orders lacked reasoning on reservation or rules.

What did the court decide?

Impugned orders dated 08.07.2010 and 09.07.2010 by the Director of Education and District Inspector of Schools quashed.

Pradeep Kumar and Others Vs State of U.P… — Pension and Retirement Benefits | Allahabad HC (2018)

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Court No. - 13 A.F.R.

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Case :- WRIT - A No. - 55074 of 2010

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Petitioner :- Pradeep Kumar And Others Respondent :- State Of U.P. And Others Counsel for Petitioner :- N. L. Pandey,Babu Ram Yadav,Surendra P.Singh Counsel for Respondent :- C. S. C.,Uma Nath Pandey

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Hon'ble Ajit Kumar,J.

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Heard learned counsel for the petitioners, learned Chief Standing Counsel and learned counsel for the respondents.

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The petitioners who were appointed on Group D position in the institution, namely, National Intermediate College, Harraiya, Basti, after facing selection as per the procedure prescribed under Regulation 101 of Chapter III of the Intermediate Education Act, 1921 read with the Government Notification dated 11.05.2001, and the Rules for appointment of recruitment of U.P. Group D Recruitment Rules, 1985, and thereafter, they were also granted approval on 05.02.2009 by the District Inspector of Schools, however, the appointments came to be annulled by the order passed by the Director of Education Secondary U.P. dated 08.07.2010 and consequential order by the District Inspector of Schools dated 09.07.2010 annexures 19 and 20 to the writ petition respectively.

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The facts of the case are that there are 14 sanctioned of posts in the category of Group D in the institution namely, National Intermediate College, Harraiya, Basti, which is recognized and aided institution under the Intermediate Education Act. The vacancies as many as six in number fell vacant by the year 2008 as has come to be notified by the principle himself being the Appointing Authority vide letter dated 10.08.2008 and accordingly, the permission was sought

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for making recruitment on the aforesaid vacancies. Initially the permission was granted for two posts to be filled in from amongst the candidates of the other backward class and the selections were made against the two vacancies of the candidates belonging to other backward class (hereby O.B.C.). For the remaining four vacancies the permission was further sought by the principal of the institution vide letter dated 09.08.2008 and the District Inspector of Schools vide letter dated 30.08.2009, accorded permission to advertise the vacancies for making regular selection. Consequently, principal advertised the vacancies in the daily newspaper as per requirement of the regular Rules, and thereafter, also intimated the same, the District Employment Officer, Basti seeking reference of candidates as per 1985 Recruitment Rules and the interview was schedule for 05.10.2009. The District Magistrate also vide letter dated 05.03.2008 directed one Shri Shashi Bushan Singh, The District Employment Officer, Basti to be his nominee to participate in the selection to be conducted in the institution for filling up the vacancies in Group D position as per the advertisement made. The selection proceeded accordingly by the Selection Committee consisting of the nominee of the District Magistrate. It needs to be mentioned that interview was earlier scheduled for 05.10.2008 was shifted to 30.10.2008 and in that regard necessary notification was also issued in the newspaper. The Selection Committee after holding the selection of the various candidates who participated in the interview before it adjudged the petitioners to be the best candidates and accordingly recommended for their appointment. As the regulations under the Intermediate Education required, the papers were

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forwarded on 26.12.2008 to the District Inspector of Schools for according his approval to the selection made to the petitioners against the Group D position in his institution. The approval was accorded by the District Inspector of Schools vide order dated 05.02.2009 and in terms of financial approval to the appointment of the petitioners, it appears petitioners have continuously been working in the institution.

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One Narendra Bahadur Singh claiming himself to the Manager of the Institution raised serious charge of regularities in the matter of selection and accordingly for disposal of his grievance, he filed a writ petition no. 50590 of 2009 which was disposed of with a direction dated 18.09.2009 to the Director of Education Secondary to take decision on the representation of the petitioner of that writ petition. In compliance of the order passed by this Court which was only to the effect that the consideration of his representation shall be done by the Director in accordance with law by a reasoned and speaking order and after affording opportunity to Committee of Management, respondent nos. 6 to 12, namely, the petitioners, including the petitioners herein, the Director of Education Secondary passed a detailed order on 30.04.2010 wherein he has recorded a categorical finding of fact to the effect that there were four posts of Group 'D' category in respect of which prior permission was sought for making recruitment, the prior permission was accorded vide order dated 30.08.2008 pursuance to which the advertisement was duly issued and the Selection committee was duly constituted. It is also recorded as a finding of fact that the interview was held after

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seeking nomination of candidates also from the District Employment Office and in all 19 applications were received and after due selection through interview, four candidates namely petitioners herein were duly selected and the District Inspector of Schools had granted due approval to their selection. As the matter got received by Regional Committee, the Joint Director of Education, Basti vide letter dated 04.02.2009 had approved the appointment of the four candidates namely, the petitioners herein, pursuant to which the financial approval was granted and that these very petitioners ever since then, have been working.

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Thus a finding of the fact has come to be recorded after conducting detailed enquiry into the matter at the end of the Joint Director of Education (Secondary), U.P. that the matter of selection and appointment due procedure was followed by the Selection Committee and Appointing Authority, the necessary approval was also granted after verifying the records and it is thereafter the financial approval also stood accorded and thus all petitioners were drawing salary in accordance with law. 6. In view of the above, the selection and appointment and the working of the petitioners have not been doubted in any manner whatsoever by the Joint Director of Education (Secondary) in his order dated 30.04.2010 which has been filed as annexure 17 to the writ petition. It appears that the aforesaid order came be challenged before this Court by Narendra Bahadur Singh through Writ Petition No. 27579 of 2010 in which following order was passed as given below:

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“Notices on behalf of respondents 1 to 3 have been accepted by theStanding Counsel.

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Issue notice to respondent no.5 to 12 fixing 24.5.2010. Let the Director of Education U.P. appear before this Court on Monday i.e. on 24.5.2010 along with his personal affidavit categorically stating;

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a) As to whether the reservation can be applied against 4 posts sanctioned for the Institution when a Division Bench of this Court in the case of Dr. Vishwajeet Singh & others Vs. State of U.P. & others reported in 2009(3) ESC 1652 , has held that for reservation to schedule caste being provided at least 5 posts in the cadre are necessary.

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b) as to whether he has examined as to whether the procedure of selection was in accordance with law as held by this Court in the case of Principal, Adarsh Inter College, Umari, Bijnore vs. State of U.P. & others reported in 2010 (1) ADJ, 403 .

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Prima facie it may be recorded that there is complete non application of mind by the Director to the law so explained by the High Court.

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Copy of this order be issued to the Standing counsel within 3 days.”

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The Director of Education thus was required to appear in this Court and satisfy as to whether the prescribed norms were followed in matter of selection and appointment against the Class IV posts and also the Rules of reservation as per judgement of Division Bench of this Court in the case of Principal, Adarsh Inter College, Umari, Bijnore (Supra). It appears that the Joint Director of Education after he was summoned to explain the position before this Court passed a fresh order on 07.07.2010 in which he has completely ignored the findings earlier recorded by him and has held the entire selection and appointment of the petitioners to be null and void on the ground that procedure as discussed in the case of Principal, Adarsh Inter College, Umari, Bijnore (Supra) referred by this Court earlier was not followed.

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Having heard learned counsel for the parties and having perused the record, I am of the opinion that for consideration before this Court in the present case two points

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require determination:

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Point (A) - what procedure is required to be followed in matters of selection and appointment against Group D positions in recognized aided institution under the Intermediate Education Act; and

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Point (B) - what Rules of reservation were to be followed in the matters of such selection and appointment in question and whether such rules have been violated in matter of appointments in this case.

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Shri N.L. Pandey, learned counsel for the petitioners has urged that the Division Bench which has been referred to in the impugned order (supra) deals with the aspect of application of Rules in matter of selection and appointment as far as the procedure part is concerned against Group D positions in recognized institution. The relevant Regulation of Chapter III [Regulation 2(1)] framed under the Intermediate Education Act, 1921 reads as under:-

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2-¼1½ fdlh laLFkk esa fu;qfDr gsrq fyfid ,oa prqFkZ oxhZ; deZpkfj;ksa dh U;wure 'kSf{kd ;ksX;rk ogh gksxh tks jktdh; mPprj ek/;fed fo| ky;ksa ds led{kh; deZpkfj;ksa ds fy, le;≤ ij fu/kkZfjr dh xbZ gksA

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¼2½ iz/kku fyfid ,oa fyfid Js.kh ds Lohd`r inksa dh dqy la[;k dk ipkl izfr'kr laLFkk esa dk;Zjr fyfidksa ,oa prqFkZ Js.kh deZpkfj;ksa esa ls inksUufr }kjk Hkjk tk;sxk ;fn deZpkjh in gsrq fu/kkZfjr vgZrk j[krk gks rFkk og vkxs in ij 5 o"kZ dh vfojy ekSfyd lsok dj pqds gksa rFkk mudk lsok vfHkys[k vPNk gks inksUufr vuqi;qDr dks NksM+dj T;s"Brk ds vk/kkj ij dh tk;sxhA

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bl lEcU/k esa ;fn dksbZ deZpkjh izcU/k lfefr ds fdlh fu.kZ; ;k vkns'k ls O;fFkr gks rks og mlds fo:)] ,sls fu.kZ; ;k vkns'k ds fnukad ls nks lIrkg ds Hkhrj fujh{kd dks vH;kosnu dj ldrk gS fujh{kd ,sls vH;kosnu ij ,sls vkns'k ns ldrk gS ftUgs og mfpr le>sA fujh{kd fu.kZ; vfUre gksxk vkSj izcU/kkf/kdj.k }kjk 'kh?kz dk;kZfUor fd;k tk;sxkA

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fVIi.kh & ipkl izfr'kr inksa dh lax.kuk djus esa vk/ks ls de Hkkx dks NksM fn;k tk;sxk vkSj vk/ks ;k vk/ks ls vf/kd dks ,d le>k

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tk;sxkA

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In view of the above, only the minimum qualification as far as the eligibility criteria is concerned is to be borrowed from the Rules framed by Government in respect of appointment of Group 'D' positions under the Government. As far as the procedure part is concerned there is nothing in the regulation. Accordingly, on 11.05.2001 the State Government issued notification to the effect that in matters of appointment of Class IV category in the recognized institutions under the Intermediate Education Act, 1921, the Group “D” Employee Service Rules, 1985 would be applicable as amended in 1986. It is worth noticing that these Rules as far as the constitution of Selection committee concerned came to be amended in the year 2006, whereby it was made necessary to have a nominee of the District Magistrate as a constituent member of the Selection Committee. The parties have no quarrel about that, the question of application of 1985 Rules has been matter of litigation before this Court but ultimately the full Bench judgement in the case of Harpal Singh and Others Vs. State of of U.P. and Others, 2015 (3) ADJ, 236, it was finally held that though the Government notification dated 11.05.2001 may not be termed as Government Order in terms of purported exercise of power under Section 9(4) under the Intermediate Act, yet there being a vaccum in respect of procedure to be followed in matters of appointment of its Group 'D' positions in recognized High School and Intermediate Colleges, these Rules are to be read as executive instructions. The subsequent circular issued by the Deputy Director of Education in compliance of the earlier notification of Government Notification dated 11.05.2001

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was also treated as an executive instruction and in view of this, the full Bench held that the Rules of 1985 as prescribed procedure to be followed in the matters of selection and appointment of Group 'D' positions in recognized institution. Mr. Pandey urges that in view of the above legal position having stood settled, it has to be seen as to whether the procedure as prescribed for under the 1985 Rules have been followed in the instant case or not. He has drawn the attention of the Court towards the prior permission letter, the permission granted by the District Inspector of Schools and thereafter the constitution of the Selection Committee, the letter of the District Magistrate nominating the District Employment Officer as a member of the Selection Committee and it is thereafter the selection was held as per procedure. Mr. Pandey points out that these very procedure are indicative of the fact that the Rules as prescribed for under the 1985 Rules were fully followed. He has further drawn the attention of the Court towards the the Relevant Rule 19 of the Group 'D' Employees Service rules, 1985 Rules which reads as under:-

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“ [19. Procedure for Selection. – (1) The appointing authority shall determine the number of vacancies to be filled during the course of the year as also the number of the vacancies to be reserved for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories. The vacancies shall be notified to the Employment Exchange. The appointing authority may also invite application directly from the persons who have their names registered in the Employment Exchange. For this purpose, the appointing authority shall issue an advertisement in a local daily newspaper besides pasting the notice for the same on the notice board. All such applications shall be placed before the Selection Committee.

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(2) When the names both of the General Candidates and Reserve Candidates (for whom vacancies are required to be reserved under the orders of the Government) have been received by the Selection Committee it shall interview and select the candidate for the various posts.

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(3) In making selection the Selection Committee shall give weight-

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age to the retrenched employees awarding marks in the following manner :

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(I)For the first complete year : 5 marks. (ii)For the next and every completed year of service : 5 marks.

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Provided that the maximum marks awarded to a retrenched employee under this sub-rule shall not exceed. 15 marks.

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(4) The number of the candidates to be selected will be larger (but not larger by more than 25 per cent) than the number of vacancies for which the selection has been made. The names in the select list shall be arranged according to the marks awarded at the interview.]”

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From the perusal of various documents available undisputably on record, Mr. Pandey has rightly argued that the entire procedure as prescribed for, was followed. The argument that as far as inviting application through registered post is concerned, there is no such procedure prescribed under Rule 19 of the 1985 Rules carries substance. It is rightly argued that advertisement of vacancies inviting application by itself conforms to the principles enshrined under Article 14 & 16 of the Constitution. In the absence of any such rule to the contrary, in the opinion of the Court, inviting application through registered post is no thumb rule to hold the entire selection and appointment as null and void . The irregularity should be writ large on the face of record and should be to the tune of impunity to hold the selection and appointment as bad, which is quite missing in the present case.

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In so far as the reservation aspect is concerned, the full Bench in the case of Heera Lal Vs. State of U.P. And others reported in 2010(6) ADJ 1 (F.B.) has held: “ It is undisputed that Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (hereinafter referred to as the U.P. Act No. 4 of 1994) applies in relation to appointment on posts in Institution recognized and governed by the 1921 Act

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receiving grant-in-aid from the state funds .”

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Full Bench has further observed in the case ( supra ) that:- “The magnum opus on the issue of reservation by our courts is the case of Indira Sawhney Vs. Union of India, reported in 1992 Supplement (3) SCC Pg. 217. It has been categorically laid down that overall reservation should not be allowed to exceed 50%”.

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Thus according to the settled legal position only 50% of the total vacancies can only be reserved for Scheduled Castes and Scheduled Tribes and other Backward classes. I find that the statement of vacancies that were made on 10.08.2018, it is clear that there were six vacancies in Group 'D' category which were vacant. Six persons were working in the reserved category of O.B.C. and there was one person working in the Scheduled Caste Category. The question, therefore, according to Mr. Pandey, learned Advocate that whether the positions were advertised four in number would have been filled in by General Category or not, as the rule of reservation stands applicable to the recognized institution, stands answered in favour of general candidate by applying the statistics that out of 14 vacancies at least seven were to go to the General Category and on the date of advertisement there was only one candidate who was working in the General Category. The argument, therefore, put the finding recorded by the Director of Education that the reservation Rule was not applied and these appointment of the petitioners were de hors the rules of reservation are absolutely untenable. It is worth noticing that Shri Narendra Bahadur Singh who had filed the earlier writ petition before this Court Bearing No. 27579 of 2010 in which an interim

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direction was passed on 18.05.2010, pursuant to which the impugned order was passed, has already withdrawn his writ petition today itself and he is, therefore, no more contesting the matter. Now only contesting respondent is the State that has passed the impugned order. Learned Standing Counsel has tried to defend the order but on a repeated quarry being made as to what mere the procedures that were not followed and what was norm laid down by the Division Bench Judgment qua the procedure were not followed, learned Standing Counsel could not explain to defend the order. I also find from the perusal of the entire order that there is no whisper as to in what manner the procedure prescribed or the norms and standards laid down in the Division Bench judgment were not followed.

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It appears that after the interim direction was issued by this Court dated 18.05.2010 in Writ Petition No. 27579 of 2010, the Director of Education Secondary passed an order simpliciter disapproving all the appointments keeping his hands off the controversy. It is totally unfortunate state of affairs on part of the Education Authorities to completely by pass the earlier stand that they had taken after due consideration of the material placed before them. Once the Regional Committee had come to approve the selection and appointment of the petitioners and the detailed order was passed by Director of Education Secondary himself rejecting the representation of Narendra Kumar Singh vide order dated 30.04.2010, it was duty cast upon him that while passing the second order he would address all these issues and to record his finding as to why he arrived at a different conclusion regarding the factum of approval of appointment in the

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earlier order. I find that the order impugned in the present case is absolute silent on this aspect of the matter. Even with respect to rules of reservation that have been alleged in the impugned order, to have not been followed, the order does not disclose in what manner the rules of reservation were not followed. The order is not only cryptic in terms of recording of facts but also silent absolutely with regard to the application of laws in the matter concerned.

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In the entire counter affidavit there is reiteration what has been stated in the impugned order dated 08.07.2010. Learned Standing counsel though tried to defend the order of the 2^nd respondent but could not answer the quarry of the Court as to what was wrong in the earlier order dated 30.04.2010 and as to why those findings could be permitted to be upset at the whims of the Director.

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In view of the above, the order passed by Director of Education Secondary dated 02.07.2010 and the consequential order passed by the District Inspector of Schools dated 09.07.2010 are held absolutely unsustainable, the authorities have manifestly erred both in law and onfacts in passing the above two orders. I do not find any procedural flaw in matter of selection and appointment of the petitioners and their approval against the vacancies on which they are working. They are fully entitled to continue in service and also entitled to be paid salary regularly as when falls due and as admissible to Group 'D' posts in recognized institution under the Intermediate Education Act, 1921. The impugned orders, therefore, dated 08.07.2010 passed by Director of Education Secondary and dated 09.07.2010 passed by the District Inspector of Schools (annexure 19 and 20 respectively) are

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hereby quashed with all consequential effects as directed above.

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The writ petition is allowed with cost.

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Order Date :- 7.5.2018 M/A.

Pradeep Kumar and Others v. State of U.P. and Others

Case brief

What is this about?

What did the court decide?

Pradeep Kumar and Others v. State of U.P. and Others

Case brief

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