Allowed

Shailesh Kumar Dubey v. State of U P and 5 Others

Allahabad HC24 Nov 2022WRIA/10466/2021

Case brief

AI extract

What is this about?

Petitioner challenges dismissal of his appointment as Assistant Clerk. Court allows petition, setting aside impugned order to the extent it affected the petitioner's selection on merit for the one approved vacancy, dismissing objections regarding advertisement venue, applicant numbers, and second appointment.

What did the court decide?

Impugned order dated 09.06.2021 set aside to the extent it relates to the petitioner; consequential orders to be passed within one month.

Shailesh Kumar Dubey Vs State of U P and 5… — Pension and Retirement Benefits | Allahabad HC (2022)

¶1

Court No. - 36

¶2

Case :- WRIT - A No. - 10466 of 2021

¶3

Petitioner :- Shailesh Kumar Dubey Respondent :- State Of U P And 5 Others Counsel for Petitioner :- J.P.N. Singh Counsel for Respondent :- C.S.C., Anil Kumar Mishra, Girish Kumar Singh,Shailendra Sharma

¶4

Hon'ble Saumitra Dayal Singh,J.

¶5

Heard Shri J.P.N. Singh, learned counsel for the petitioner and learned Standing Counsel for the State-respondents.

¶6

Present petition has been filed to challenge the order dated 09.06.2021 passed by Regional Level Committee, Azamgarh, whereby the said Committee has rejected the approval sought by respondent no.6/Committee of Management Maniyar Intermediate College, Maniyar, Ballia to the appointment of the petitioner Shailesh Kumar Dubey on the post of Assistant Clerk at above named institution. The case has a checkered history.

¶7

Relevant to the present facts, one post of Assistant Clerk at the institution fell vacant on 31.10.2013 upon the retirement of one Lallan Upadhyay. It was to be filled through direct recruitment. On 01.08.2018, the Committee of Management sought approval to fill the post through direct recruitment. The Director of Education (Secondary) did not take appropriate action on that representation made by Committee of Management. On 28.09.2018, this Court issued direction to the DIOS, Ballia in Writ - A No. 16392 of 2018 (C/M Maniyar Intermediate College & Anr. vs. State of U.P. & 2 Ors.) . In compliance of that direction, on 24.05.2019, the Director of Education (Secondary) required the DIOS Ballia to consider the claim of Committee of Management against the current student teacher ratio as approved in the latest Jan Shakti. Later, by order

¶8

dated 03.06.2019, the Director put on hold all selections. That order was challenged by Committee of Management of the above named institution in Writ - A No. 14219 of 2019 . It was disposed of by below quoted order dated 17.09.2019:

¶9

"Heard Sri J.P.N. Singh, learned counsel for the petitioners and learned Standing Counsel for the State-Respondents.

¶10

The institution in question is an aided Intermediate college which is governed by the provisions of U.P. Intermediate Education Act, 1921; .P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees ) Act, 1971 and U.P. Act No. 5 of 1982. There are five posts of Class-III in the institution. One post has to be filled by direct recruitment for which permission was sought from the authorities. The District Inspector of Schools forwarded the papers to the Director and Director granted permission by order dated 24.05.2019 but before selection could be held Director has stopped all selection for "unforceable reason" by order dated 03.06.2019, which is challenged in this writ petition.

¶11

the Writ petition is disposed of with a direction to the District Inspector of Schools as well as the Director that in case there is a vacancy that has to be filled by the direct recruitment, the permission earlier granted by the Director could not be withheld pursuant to the subsequent order passed by the Director on 03.06.2019, if there is no other legal impediments. Let a fresh order be passed by the concerned authority within one month from the date a certified copy of this order is presented before the authority concerned."

¶12

Then, upon issuance of the Government Order dated 30.10.2019, Director of Education (Secondary) passed another order dated 21.10.2020 and consequently, an order dated 11.06.2020 was passed by the DIOS Ballia, seeking to put a hold fresh appointments on clerical grade at private aided institutions. Those orders were challenged by the Committee of Management of the institution at Writ - A No. 6406 of 2020 (C/M Maniyar Intermediate College & Anr. vs. State of U.P. & 3 Ors.). That writ petition was allowed by order dated 21.09.2020 with the following observation:

¶13

"In such view of the matter, the order passed by the District Inspector of Schools, Ballia dated 11.6.2020 cannot be sustained and is hereby quashed. Since the Director has already granted permission vide his order dated 24.5.2019, the Inspector shall pass consequential orders within a period of four weeks from the date of presentation of a copy of this order.

¶14

Writ petition stands allowed."

¶15

In compliance of the above order, DIOS Ballia vide his order dated 11.11.2020, granted approval to the appointment to be made by the Committee of Management in compliance of the

¶16

earlier order of the Director of Education (Secondary) dated 24.05.2019. Thus approval was granted to the proposal of the Committee of Management to make appointment on the post of Assistant Clerk.

¶17

At that stage, the Committee of Management of the above named institution made publication in the two newspapers - 'Amar Ujala' & 'Aaj', on 24.11.2020 seeking to fill up two posts of Assistant Clerk. Apparently, 12 applications were received pursuant whereto interviews were conducted on 15.12.2020. Present petitioner Shailesh Kumar Dubey and petitioner in Writ - A No. 10548 of 2021 - Satish Kumar Pathak were declared successful by the Committee of Management, at merit positions no.1 and 2 respectively.

¶18

At that stage, the matter reached the Regional Level Committee. It has disapproved both selections by the impugned order dated 09.06.2021.

¶19

Having heard learned counsel for the parties and having perused the record, in the first place, there is no defect in the approval granted by the DIOS to fill up one post of Assistant Clerk through direct recruitment at the above named institution. Here, it may be noted, the Director of Education (Secondary) vide his earlier order dated 24.05.2019, had not granted approval to fill up two posts through direct recruitment. In fact, while considering the merits of the claim, it was clearly observed by him as under:

¶20

" स स थथममकननषसहथयककक 02 पदररकहह, जजसमम 01 ससधसभरररथथ 01 पददननरकदटककथहह।अरत स स थथममसहथयकजलनपककक 01 पदकदससधसभररककमथधयमसकभरकजथनकककअननमनरपदथननकयथजथनथ औनचतयपपररहह।

¶21

Therefore, to begin with, the Director of Education (Secondary) was clearly of the view, only one of the two vacant

¶22

post was filled up through direct recruitment. Even then, that discussion and conclusion was made subject to revised strength of the institution - to be determined against fresh Jan Shakti exercise. Undisputedly, no further post has come into existence as a result of such exercise.

¶23

Then, according to the Committee of Management itself, only five posts of Clerk (one post of Head Clerk and four post of Clerk) existed at the institution as per the document dated 07.08.2019 (annexed by the petitioner as Annexure no.6 to the writ petition). Then, while disposing of the Writ - A No. 14219 of 2019 vide order dated 17.01.2019, this Court also took note of only one existing vacancy to be filled up through direct recruitment. That observation is clearly made as has been noted above. Further, bare perusal of the order reveals, the Committee of Management had also represented to this Court - the existence of only one post to be filled up through direct recruitment.

¶24

There is no material existing on record as may remotely suggest, another post became available to the Committee of Management to be filled up through direct recruitment. More critically, Committee of Management does not appear to have made any representation to the statutory authorities to approve filling up of such other post/vacancy through direct recruitment.

¶25

Seen in that light, the order of the DIOS Ballia dated 11.11.2020 has to be read as granting approval to the Committee of Management of the institution to fill up one post of Assistant Clerk through direct recruitment. That order having been passed solely in compliance of the earlier order of the Director of Education (Secondary) dated 24.05.2019, there did not exist any other, further discretion or occasion to the DIOS to consider grant of approval to fill up any other post of

¶26

Assistant Clerk through direct recruitment.

¶27

Seen in that light, the use of word 'पदद' does not and it could never give rise to any authority of the Committee of Management of the institution to fill up more than one post of Assistant Clerk through direct recruitment.

¶28

As to the one post filled up by the Committee of Management through direct recruitment, the same cannot be faulted solely because the Committee of Management went on to fill up two posts through direct recruitment, though approval had been granted only to fill up one post.

¶29

In such fact, the second appointment of person lower in merit, according to the Committee of Management, would remain contrary to law. However, the person selected on merit position no.1 would remain entitled to appointment as the post was not reserved, both candidates having participated in the same selection process.

¶30

Here, there is no dispute that the present petitioner was selected at seniority position no.1 by the Committee of Management of the aforesaid institution. There is no challenge raised to his merit position by Satish Kumar Pathak (petitioner in Writ - A No. 10548 of 2021) .

¶31

Therefore, all that is to be seen is, whether the reasoning offered in the impugned order is sustainable in law viz a viz Satish Kumar Pathak. To that end, it is found, other than the vague suspicions raised by the Regional Level Committee, there is no cogent or objective material or legally sustainable ground raised to the appointment of the present petitioner Shailesh Kumar Dubey.

¶32

The publication of advertisement was made vide two

¶33

newspapers having wide publication. There is no challenge as to that. In absence of any requirement to publish the advertisement in national newspapers, the objection raised by Regional Level Selection Committee to that extent is extraneous and not based on any material. Further, in face of own finding of the Regional Selection Committee, the publication of the advertisement was made in newspapers - 'Amar Ujala' and 'Aaj', both published from Varanasi. It was proper.

¶34

Therefore, the further objection raised that such publication was not made is self-conflicted and perverse. Copy of the publication has also been annexed. It is not doubted. Similarly, merely because 12 persons had applied for interview may never be a ground to disapprove the selection. Neither, the Committee of Management nor the state authorities nor any other agency may have any control over the number of applicants who may seek employment at the particular private institution.

¶35

In absence of prescription of any minimum number of applications required to be made for the purpose of a valid selection, the objection raised is nothing more than a suspicion. Unless cogent material had been found to further conclude that the selection was a sham selection, the conclusion drawn on the said document cannot be sustained. As to the participation of 12 applicants in the interview, there is no dispute. Merely because candidates at serial nos. 6, 7 and 11 may not have held valid eligibility and had therefore been screened out by the Committee of Management (after the interviews have been held), cannot itself be a ground to disapprove the selections made.

¶36

In such cases, it is possible, certain ineligible persons may have applied. So long as their ineligibility was not ignored and

¶37

they were screened out for that reason, the selection process cannot be faulted merely because they were allowed to participate in the interview.

¶38

Insofar as the objection has been raised by certain Class IV employees to the post of Assistant Clerk having been filled up through direct recruitment, that cannot be a ground to disapprove the selection on one post of Assistant Clerk that was required to be filled up through direct recruitment. That objection is sustained only, qua the second appointment through direct recruitment.

¶39

In face of the earlier findings recorded, the appointment made on the second post of Assistant Clerk through direct recruitment alone is found to be contrary to law. Therefore, that part of the impugned order is not being disturbed.

¶40

Insofar as the impugned order refers to earlier advertisement issued by the Committee of Management on 24.05.2019 and the selection process undertaken thereunder, the same is plainly unsustainable. On the own showing of the State respondents, that selection process was stopped in its tracks owing to various orders passed by statutory authorities, some of which have been taken note of above. Once the State authorities had interviewed and stopped the selection process, there is no law to compel resumption of that selection process, after approval was finally granted by the DIOS, vide his communication dated 11.11.2020.

¶41

Accordingly, it is concluded, the impugned order insofar as it set aside the selection of both posts of Assistant Clerk completed through direct recruitment process, cannot be sustained. There was no defect in the conduct of the Committee of Management in selection on one post of Assistant Clerk

¶42

through direct recruitment as that was done wholly in accordance with law and upon due approval by the Director of Education (Secondary) vide communication dated 24.05.2019 and the order of the DIOS Ballia dated 11.11.2020.

¶43

Inasmuch as the present petitioner Shailesh Kumar Dubey was selected at merit position no.1 in that selection process, he is entitled to all benefits arising therefrom. Insofar as the other petitioner Satish Kumar Pathak (petitioner in Writ - A No. 10548 of 2021 ) is concerned, his selection was made contrary to the rules. Since that post was to be filled up through promotion, Committee of Management could never have advertised that post contrary to the approval granted by the Director of Education (Secondary) read with the order of Director of Education (Secondary) dated 24.05.2019 and the order of the DIOS Ballia dated 11.11.2020. No circumstance exists to consider approval of such an appointment.

¶44

Accordingly, the present petition is allowed . The impugned order dated 09.06.2021 passed by Regional Level Committee, Azamgarh, is set aside to the extent it relates to the present petitioner. The Regional Level Committee may pass consequential order, as expeditiously as possible, preferably within a period of one month from today. All consequential relief may flow to the petitioner within a period of three months from today. Failing which, the admitted amount due and payable to the petitioner shall attract interest @ 8%.

¶45

Order Date :- 24.11.2022 Prakhar

¶46

Digitally signed by PRAKHAR SRIVASTAVA Date: 2022.11.29 10:24:38 IST Reason: Location: High Court of Judicature at Allahabad

Shailesh Kumar Dubey v. State of U P and 5 Others

Case brief

What is this about?

What did the court decide?

Shailesh Kumar Dubey v. State of U P and 5 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Rohitashva Kumar Vs State of U.P. and 3 Others

Abhishek Kumar Dwivedi Vs State of U.P. and 3 Others

Chandra Bhan Vs U.P. Madhyamik Shiksha Sewa Chayan Board and 3 Others

Sanjay Kumar Sriwastaw Vs State of U.P. and 3 Others

Badruddin Vs State of U.P. and Another

Chandra Rathore Vs State of U P and 2 Others