Allowed

Awanindra Kumar and 5 Others v. State of U.P. and 6 Ohers

Allahabad HC30 Jan 2019WRIA/3884/2016

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging the refusal of appointment and salary payment for Class IV employees. The Court set aside impugned orders relying on a government order mandating outsourcing, noting that a prior judgment had struck down the outsourcing mandate for Class IV posts. The matter was remitted for appropriate orders.

What did the court decide?

Impugned communication set aside. Petitioners to be appointed from date of joining. Respondent authority directed to pass orders for payment of salary including arrears within three months.

Awanindra Kumar and 5 Others Vs State of U.P. and… — Education and Admissions | Allahabad HC (2019)

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Court No. - 18

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Case :- WRIT - A No. - 3884 of 2016

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Petitioner :- Awanindra Kumar And 5 Others Respondent :- State Of U.P. And 6 Ohers Counsel for Petitioner :- Sanjeev Kumar Pandey,Nitinjay Pandey,Prashant Shukla,Rohit Nandan Pandey Counsel for Respondent :- C.S.C.,Achchhey Lal Tiwari,Ram Prakash Upadhyay

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Hon'ble Prakash Padia,J.

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Heard Sri Prashant Shukla, learned counsel for the petitioner, learned Standing Counsel who has accepted notices on behalf of respondent nos. 1 to 6 and Sri Achchhey Lal Tiwari, learned counsel for the respondent nos. 7 and 8.

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Affidavits have already been exchanged between the contesting parties. With the consent of the parties the case is being disposed of finally at the admission stage itself.

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The present writ petition is filed with the following prayer-

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“To issue a writ or direction in the nature of mandamus directing the District Inspector of Schools, Agra to ensure the payment of salary to the petitioners w.e.f. 12.5.2015 (the date of their joining).

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The facts in brief as contained in the writ petition are that in distinct Agra there is an intermediate college namely Smt. Singaribai Balika Inter College, Baluganj, Agra (hereinafter referred to as the Institution). The institution in question is a recognized educational institution under the provisions of Uttar Pradesh Intermediate Education Act, 1921 (hereinafter referred to as the Act of 1921). The teachers and employees of the institution are getting their salaries from the State Exchequer in terms of the provisions of U.P. High Schools and Intermediate Colleges (Payment of Salary to Teachers and other Employees) Act,. 1971.

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There are ten sanctioned post of Class IV employees in the institution. The aforesaid posts were sanctioned by the competent

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authority vide its order dated 6.2.1993. Out of the aforesaid ten posts only three class IV employees are working and remaining 7 post are laying vacant. In order to fill up the aforesaid vacant posts, application was submitted by the Principal of the institution to the District Inspector of Schools (II) Agra on 11.2.2014. The District Inspector of Schools (II) Agra wrote a letter dated 13.2.2014 to the Director, Secondary Education, Lucknow raising certain quarries. Since no action was taken in this regard by the District Inspector of Schools (II) Agra , the Principal of the institution again submitted an application on 8.8.2014 for permission to fill up the seven vacant posts of Class IV employees. A reply was given by the District Inspector of Schools (II) Agra on 26.8.2014, stating therein that in view of the Government Order dated 6.1.2011 Class IV posts are to be filled up by out sourcing. It is contented that the aforesaid Government Order dated 6.1.2011 has already been set aside by this Court in case of Committee of Management, Lala Babu Baijal Memorial Inter College Vs. State of U.P. Reported in 2012(4) ADJ 586. T he order dated 26.8.2014 passed by the District Inspector of Schools (II) Agra was challenged by the principal of the institution before this Court by filing Writ A No. 48662 of 2014 which was allowed by this Court vide its judgment dated 10.9.2014. The order dated 10.9.2014 passed in the writ petition, referred above is quoted below-

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“The petitioner is Principal of a recognised and aided educational institution, namely, Smt. Singaribai Balika Inter College, Baluganj, Agra (for short, the "Institution"). She has preferred this writ petition challenging the communication dated 26th August, 2014 of the District Inspector of Schools-II, Agra.

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It is stated that there are 10 sanctioned Class-IV posts in the Institution, out of which 7 posts are lying vacant. In order to fill up these posts, on 11th February, 2014 the petitioner

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submitted an application seeking permission of the District Inspector of Schools to start the selection process. On such request of the petitioner, the District Inspector of Schools by the impugned letter/communication dated 26th August, 2014 has informed the petitioner that as per the Government Order dated 06th January, 2011 appointment on Class-IV post is to be made through outsourcing and the matter with regard to grant of permission has been referred to the Director of Education (Secondary), U.P., Lucknow.

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Heard learned Counsel for the petitioners and learned Standing Counsel, who appears for all the respondents.

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In view of the fact that no factual controversy is involved in this case, there is no need to call for counter affidavit from the respondents. Hence, in view of the admitted fact, with the consent of learned Counsel appearing for the parties, this writ petition is being decided finally at this stage in terms of the Rules of the Court.

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From a perusal of the impugned letter it is evident that permission has not been granted only on the ground that as per the Government Order dated 06th January, 2011 the appointments are to be made through outsourcing and the matter has been referred to the Director of Education (Secondary).

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Learned Counsel for the petitioner has placed reliance on a judgment of this Court in the case of Committee of Management, Lala Babu Baijal Memorial Inter College, Lodipur, Ghaziabad and another v. State of U.P. and others, 2012 (4) ADJ 586, wherein paragraph-2 of the said Government Order dated 06th January, 2011 has been struck down in its application to Secondary Educational Institutions.

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This aforesaid judgment was passed on 21st March, 2013.

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Even then the State authorities are relying on the Government Order dated 06th January, 2011 and rejecting the approval on the same ground ignoring the law laid down by the High Court.

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It is a trite law that if a Government Order/ circular etc. is against the judgment, the authorities concerned shall follow the law laid down by the Court and not the Government Order/ circular, etc. which has been held to be illegal by the Court. Such action of the authorities is contemptuous and it reflects their casual approach in performing their duties.

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In view of the said facts, the impugned communication/letter dated 26th August, 2014 of the District Inspector of Schools, Agra is set aside. The matter is remitted to the District Inspector of Schools, Agra to pass the appropriate order. The petitioner shall file a xerox copy of the judgment of Committee of Management, Lala Babu Baijal Memorial Inter College, Lodipur, Ghaziabad and another (supra) along with the certified copy of this order before the District Inspector of Schools. The District Inspector of Schools is expected to be careful in future.

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With the said observations, the writ petition is allowed.

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No order as to costs.”

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Thereafter vacancies were advertised and selection proceedings were initiated by the Principal of the institution for filling up Class IV posts. Selections were made by the duly constituted Selection Committee. Selection proceedings were held on 16.11.2014 by the selection committee in which petitioners were found most suitable candidates for selection on Class IV posts. Thereafter, the District Inspector of Schools (II) Agra forwarded papers for financial approval before the Finance and Accounts Officer. The Finance and Accounts Officer accorded financial approval to the appointment of the petitioner on 18.2.2015. Subsequently approval for payment of salary

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to the petitioners was granted by the regional level committee. A copy of the decision taken by the regional level committee was communicated by the Chairman of the Regional Level Committee, i.e., the Joint Director of Education, Agra vide its communication dated 27.4.2015. The aforesaid decision was duly forwarded by the District Inspector of Schools (II) Agra to the Principal of the institution on 12.5.2015.

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Thereafter necessary appointment letters were issued to the petitioners by the competent authority, i.e. , Principal of the College on 12.5.2015. It is further contented that petitioners joined the institution on the same day i.e. on 12.5.2015 and started functioning on Class IV posts. Thereafter salary bills were duly forwarded by the institution in the office of the District Inspector of Schools (II) Agra for the purpose of payment of salary to the petitioners from the State Exchequer.

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Inspite of the facts, as narrated above, since salary bills were not passed by the District Inspector of Schools (II) Agra, petitioners have preferred the present writ petition before this Court.

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The writ petition was entertained and instructions were sought from the learned Standing Counsel vide order dated 29.1.2016. Subsequently, vide order dated 26.2.2016, learned Standing Counsel was granted six weeks time for filing counter affidavit. Counter affidavit was filed by the learned Standing Counsel.

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In paragraph 10 of the counter affidavit it is stated that there is no provision under the Act of 1921 in respect to regular appointment on Class IV posts. In this regard a copy of the communication dated 1.4.2016 sent by the Director of Education (Secondary)U.P., Lucknow to the District Inspector of Schools (II) Agra is appended as Annexure4 to the counter affidavit.

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It is contented by Sri Shukla, learned counsel for the petitioner that newly amended regulation 101 contained in chapter 3 of the Act of

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1921 was challenged before this Court in a bunch of writ petitions being leading Writ C No. 45060 of 2015 (Principal Abhay Nandan Inter College,Vishnu Mandir & Arn Vs. State of U.P. And 3 others) decided on 19.11.2018. In paragraph 12 of the aforesaid judgment Regulation 101 contained in Chapter 3 of the U.P. Intermediate Education Act was taken note of. Regulation 101 was first time inserted in Chapter 3 vide notification issued by the State Government dated 28.8.1992. Subsequently, aforesaid regulation was amended on 2.2.1995. Certain amendments were made in the aforesaid Regulation on 31.12.2009 and thereafter on 4.9.2013. In this regard paragraph 12 to 15 of the aforesaid judgment are reproduced below-

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Then comes Regulation 101. This was inserted vide Parishad 9/592 dated 28.8.92 Govt-Notification No.400/157-2(1)-90 dated 30-7-1992 and reads as under :

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^^fu;qfDr izkf/kdkjh] fujh{kd ds iwokZuqeksnu ds flok; fdlh ekU;rk izkIr] lgk;rk izkIr laLFkk ds f'k{k.Rrj LVkQ esa fdlh fjfDr dks ugha Hkjsxk A^^

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"Appointing Authority except with prior approval of Inspector shall not fill up any vacancy of non-teaching post of any recognised aided institution." (English Translation byCourt)

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Regulation 101 was substituted by Notification No.300/XV-7-2(1)/90, dated 2nd February, 1995 and substituted regulation reads as under: "Appointing Authority except with prior approval of Inspector shall not fill up any vacancy of non-teaching post of any recognised aided institution: Provided that filling of the vacancy on the post of Jamadar may be granted by the Inspector."

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Again Regulation 101 was amended vide Notification No. 9/898 dated 31.12.2009 and reads as under :

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^^fu;qfDr izkf/kdkjh] fujh{kd ds iwokZuqeksnu ds flok; fdlh ekU;rk

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izkIr] lgk;rk izkIr laLFkk ds f'k{k.ksRrj LVkQ esa fdlh fjfDr dks ugha Hkjsxk] izfrcU/k ;g gS fd ftyk fo|ky; fujh{kd leLr fjfDr;ksa dh la[;k f'k{kk funs'kd] ek/;fed dks miyC/k djk;sxk rFkk laLFkk esa Nk= la[;k n'kkZrs gq;s inksa dks Hkjs tkus ds vkSfpR; dks Hkh Li"V djsaxsA f'k{kk funs'kd] ek/;fed ls vkns'k izkIr gksus ij ftyk fo|ky; fujh{kd mDr fjfDr;ksa dks Hkjus gsrq fu;qfDr izkf/kdkjh dks vuqefr iznku djsxk vkSj vuqefr iznku djrs le; 'kklu }kjk fu/kkZfjr vkj{k.k fu;eksa ,oa inksa ds vkSfpR; ds fy;s fu/kkZfjr ekudksa dk ikyu djk;sxkA

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mDr fofue; la'kks/ku rRdkfyd izHkko ls ykxw gksxkA**

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"The appointing authority shall not fill any vacancy of the non-teaching staff of recognised aided institutions, except with the approval of Inspector, subject to a restriction that District Inspector of Schools shall make available total number of vacancies to Director of Education (Secondary Education), and showing the number of students put forth justification for the filling of the vacancies. On receipt of order from the Director of Education (Secondary Education), the District Inspector of Schools shall, for filling said vacancies, give permission to the appointing authority; and while giving such permission he shall ensure to follow the reservation rules specified by the government and the prescribed norms in justification for the posts.

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The aforesaid amendment in the Regulation shall come into force immediate effect." (English Translation by Court)

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Now, this Regulation 101 has been amended by State Government by Government Order dated 04.09.2013 and amended Regulations issued by State Government reads as under :

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^^fu;qfDr izkf/kdkjh fujh{kd ds iwokZuqeksnu ds flok; fdlh ekU;rk izkIr] lgk;rk izkIr laLFkk ds f'k{k.ksRrj ¼fyfid laoxZ½ in dh fjfDr dks ugha HkjsxkA izfrcU/k ;g gS fd ftyk fo|ky; fujh{kd leLr fjfDr;ksa dh la[;k f'k{kk funs'kd] ek/;fed dks miyC/k djk;sxk rFkk

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laLFkk esa Nk= la[;k n'kkZrs gq;s inksa dks Hkjs tkus ds vkSfpR; dks Hkh Li"V djsaxsA f'k{kk funs'kd ek/;fed ls vkns'k izkIr gksus ij ftyk fo|ky; fujh{kd mDr fjfDr;ksa ¼prqFkZ Js.kh fjDr;ksa dks NksM+dj½ dks Hkjus gsrq fu;qfDr izkf/kdkjh dks vuqefr iznku djsxk vkSj vuqefr iznku djrs le; 'kklu }kjk fu/kkZfjr vkj{k.k fu;eksa ,oa inksa ds vkSfpR; ds fy;s fu/kkZfjr ekudksa dk ikyu djk;sxkA

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prqFkZ Js.kh dh fjfDr;ksa ds lEcU/k esa dsoy vkmVlksflZax ds ek/;e ls O;oLFkk dh tk;sxhA ijUrq mijksDr v'kkldh; lgk;rk izkIr laLFkkvksa ds lsokdky esa e`r f'k{kd vFkok f'k{k.ksRrj deZpkfj;ksa ds ≤ vkfJrksa dh HkrhZ gsrq lqlaxr fu;ekoyh] 1981] le; ij ;Fkk la'kksf/kr ds vUrxZr prqFkZ Js.kh ds fjDRk inksa ij dh tkus okyh fu;qfDr ds lEcU/k esa ykxw ugha gksxhA**(emphasis added)

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"The appointing authority, except for the prior approval of the inspector, shall not fill any vacant post of non-teaching staff (clerical cadre) in any recognised or aided institution; with the restriction that the District Inspector of Schools shall make available the total number of vacancies to the Director of Education (Secondary Education) and also put forth justification for filling of the posts, showing the strength of the students in the institution. On receipt of the order from Director of Education (Secondary Education), the District Inspector of Schools shall give permission to the appointing authority for filling the said vacancies (except the vacancies of Class-IV posts) and while giving the permission, he shall ensure compliance of the reservation rules specified by the government as also of the prescribed norms in justification for the posts.

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With respect to the Class-IV vacancies, arrangements shall be made by way of outsourcing only; but the relevant rules, 1981, as amended from time to time, for recruitment of dependants of teaching or non-teaching staff of the nongovernment aided institutions dying in harness shall be applicable in relation to the appointments to be made on

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the vacant posts of Class-IV category."

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(English Translation by Court)

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Sri Shukla, learned counsel for the petitioner drawn attention of the Court regarding findings recorded by this Court in paragraph 93 and 94 of the aforesaid judgment. Paragraph 93 and 94 of the judgment are quoted below-

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“93. In the result, writ petitions are allowed. Regulation 101 of Regulations, framed under Act, 1921, as amended vide Government Order dated 04.09.2013, insofar as it provides that vacancies of Class IV shall be managed only by 'Outsourcing', is arbitrary, illegal and ultra vires, hence struck down and impugned Government Order dated 04.09.2013 to this extent is declared ultra vires.

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The orders impugned in all these writ petitions, which have been passed by concerned Educational Authorities in the light of Regulation 101, as amended by Government order dated 04.09.2013 whereby Class IV vacancies were only to be managed by Outsourcing, are hereby set aside. The said authorities are now directed to reconsider the matter and pass appropriate orders in accordance with law without any further delay and in any case, within two months from the date of production of a certified copy of this order.”

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From perusal of the aforesaid, it is clear that this Court vide order dated 19.11.2018 quashed the Government Order dated 4.9.2013 whereby Class IV employees were directed to be managed only way of out sourcing. It is further contented that the aforesaid judgment has become final as no special appeal has been filed till date by the State Government. Hence the present writ petition also deserves to be allowed.

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Accordingly, the writ petition is disposed of with a direction to

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the respondent-District Inspector of Schools (II), Agra to pass appropriate orders, in accordance with law, for payment of salary including arrears of salary to the petitioners within a period of three months from the date of communication of this order.

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Order Date :- 30.1.2019 M.A.Ansari

Awanindra Kumar and 5 Others v. State of U.P. and 6 Ohers

Case brief

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Awanindra Kumar and 5 Others v. State of U.P. and 6 Ohers

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