Allahabad High Court
Abhishek Kumar Yadav vs State Of U.P. And 3 Others on 30 April, 2020
Equivalent citations: AIRONLINE 2020 ALL 814
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 07.01.2020
Delivered on 30.04.2020
Case :- WRIT - A No. - 16182 of 2019
Petitioner :- Abhishek Kumar Yadav
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Prabhakar Awasthi,Harendra Yadav
Counsel for Respondent :- C.S.C.,Syed Nadeem Ahmad
Hon'ble Saral Srivastava,J.
1. Heard Sri Prabhakar Awasthi, learned counsel for the petitioner, Sri V.K. Singh, learned counsel for respondent no.6 and Sri I.S. Tomar, learned Additional Chief Standing Counsel for the State.
2. The petitioner by means of the present petition has prayed for quashing of the order dated 26.09.2019 passed by District Basic Education Officer, Mau, respondent no.3 whereby respondent no.3 has refused to accord approval to the appointment of petitioner as Clerk.
3. The brief facts of the case are that there is an institution known as D.A.V. Balika Purva Madhyamik Vidyalaya (hereinafter referred to as 'institution') duly recognized under U.P. Basic Education Act, 1972. Provisions of U.P. Junior High School (Payment of Salary to Teachers and Other Employees) Act, 1971 are applicable to the teaching and non-teaching staff of the institution.
4. A substantive vacancy of Clerk came into existence in the institution due to retirement of one Digvijay Nath on 30.04.2015. The committee of management of the institution, respondent no.6, passed a resolution on 26.03.2016 to make recruitment on the said post. Pursuant to the said resolution, respondent no.6 sought permission from respondent no.3, District Basic Education Officer, Mau, by letter dated 31.03.2016 for making appointment on the post of Clerk. The respondent no.3 accorded permission to respondent no.6 to make appointment on the said post on 12.07.2016. Pursuant to the permission of respondent no.3, respondent no.6 notified the post of Clerk in two newspapers namely, Aaj and Ranturya' on 15.07.2016. The last date for submitting the application was 27.07.2016 and date of interview was fixed on the same date i.e. 27.07.2016. However, a corrigendam was issued extending the last date for submission of the application upto 29.07.2016 and interview was to be held on 30.07.2016.
5. According to the petitioner, respondent no.3 appointed nominee to participate in the selection process. The selection committee made selection on the basis of quality point marks on 30.07.2016 in which petitioner secured highest marks. Accordingly, selection committee recommended the name of the petitioner for being appointed as Clerk in the institution. The committee of management pursuant to the recommendation of the selection committee forwarded the papers of the petitioner to respondent no.3 for according approval.
6. When despite repeated reminders, respondent no.3 did not accord approval to the appointment of petitioner, respondent no.6 issued appointment letter in favour of petitioner on 29.04.2017. The petitioner pursuant to the said appointment letter joined the institution on 09.05.2017. The petitioner, thereafter, preferred a Writ Petition No.9815 of 2018 praying for a direction to the respondent no.3 to accord approval to the appointment of the petitioner. This Court by judgement and order dated 12.04.2018 directed the respondent no.3 to take appropriate decision in accordance with law with respect to according approval to the appointment of the petitioner.
7. Pursuant to the direction of this Court dated 12.04.2018, respondent no.3 refused to accord approval to the appointment to the petitioner by order dated 26.05.2018 on the grounds that there was ban on the appointment on the post of Clerk by Government Order dated 06.11.2015 and 27.03.2018.
8. The order dated 26.05.2018 of respondent no.3 was challenged by the petitioner in Writ A No.27066 of 2018 which was allowed by this Court by judgement and order dated 17.04.2019. The relevant extract of the order dated 17.04.2019 is reproduced hereinbelow:-
"...
At the very outset, the Court notes that by a Government Order dated 15 September 2014, the temporary ban and restraint with respect to the recruitment of Assistant Teachers and Clerks was lifted. The subsequent Government Orders which are alluded to in the impugned order and dated 6 November 2015 and 27 March 2018 stand restricted in their application to the appointment of Head Masters and Assistant Teachers. Both these orders do not relate to appointments on the post of Clerks nor do they whittle down or modify the directions which stand encapsulated in the Government Order dated 15 September 2014. Since the two Government Orders in question stand restricted in their application to recruitment to the posts of Head Masters and Assistant Teachers and are clearly not applicable to a recruitment to the post of Clerk, the stand as taken in the impugned order cannot sustain.
Accordingly, this writ petition shall stand allowed. The impugned order dated 26 May 2018 is hereby quashed. The District Basic Education Officer is directed to process the selection which was undertaken by the institution in accordance with the observations made hereinabove and communicate a final decision within a period of two months from the date of presentation of a certified copy of this order."
9. Pursuant to the order of this Court dated 17.04.2019, the respondent no.3 passed another order on 26/27.06.2019 whereby he again refused to accord approval to the appointment of petitioner almost on same grounds on which he had earlier refused to accord approval to the petitioner by order dated 26.05.2018.
10. The order dated 26/27.06.2019 was challenged by the petitioner in Writ A No.10691 of 2019 in which learned counsel for the State on 26.09.2019 made statement before the Court that the order impugned dated 27.06.2019 shall be withdrawn and fresh order shall be passed. Consequently, order dated 27.06.2019 was withdrawn by respondent no.3 and a fresh order on 26.09.2019 was passed whereby he again refused to accord approval to the petitioner on following grounds:-
(i). There is no order of District Basic Education Officer appointing nominee for selection process on the post of Clerk, and in absence of any nominee of the department, the selection proceeding was bad.
(ii). All selections made in district on the post of Clerk without following the selection procedure have been cancelled by Circular dated 04.11.2015, and further, Divisional Assistant Education Director (Basic) have been directed by letter no. सामान्य-1 (बे)/523-42/2017-18 dated 19.05.2017 & letter no. सामान्य-1/बेसिक/2810-29/2017-18 dated 19.09.2017 issued by the Directorate to cancel all the appointments of the Clerk made during the period of ban.
(iii). By Government order dated 15.01.2019, the post of Clerk has been declared dying cadre, accordingly, approval cannot be accorded on the post of Clerk.
11. This Court on 06.11.2019, after noticing several contentions of the counsel for the petitioner, directed the Standing Counsel to seek instructions in the matter and directed the matter to be listed on 15.11.2019 on which date the Court passed the following order :-
"Pursuant to order dated 6.11.2019, learned Standing Counsel has produced instruction dated 8.11.2019 and also produced letter dated 7.11.2019 of one Birbal Ram, Block Education Officer, District Deoria (The then Block Education Officer, Kopaganj, Mau) written to Basic Education Officer, Mau in which it has been stated that on telephonic conversation with respondent no. 3 he has informed that he had never appeared as Supervisor/Nominee in selection of the petitioner held on 30.7.2016. It is very surprising that he has written letter without verifying the record about the interview of the petitioner which had taken place on 30.7.2016 around more than three years earlier only after having telephonic conversation.
Sri Prabhakar Awasthi, learned counsel for the petitioner submitted that selection proceeding is also having signature of Birbal Ram, then then Block Education Officer, Kopaganj, Mau. He further submitted that in another attempt to circumvent the order of this Court dated 17.4.2019 passed in Writ-A No. 27066 of 2018 (Abhishek Kumar Yadav Vs. State of U.P. and 2 others) as well as law laid down by this Court in the case of Smt. Kalawati Vs. State of U.P. and another reported in 2017 (1) ESC 184 (All) LB). Such letter of Birbal Ram also creates doubt upon the intention of respondent no. 3.
Sri Prabhakar Awasthi, learned counsel for the petitioner is permitted to implead Birbal Ram, Block Education Officer, District Deoria (The then Block Education Officer, Kopaganj, Mau) as respondent no. 5 during course of day.
The respondent nos. 3 and 4 are directed to file their personal affidavit pursuant to query made by this Court vide order dated 6.11.2019. The respondent no. 3 shall also produce all the relevant records with regard to selection of petitioner. The newly respondent no. 5 is directed to explain in the affidavit that on what basis he has written letter dated 7.11.2019 for selection which had taken place on 30.7.2016 after having telephonic conversation on same date i.e. 7.11.2019.
Put up on 27.11.2019 in the additional cause list"
12. Pursuant to the order passed by this Court, respondent no.5 Birbal Ram, Block Education Officer, District Deoria and respondent no.3 filed their personal affidavit. The respondent no.5 denied his participation in the selection process. Paragraphs 7, 8 and 9 of the affidavit of respondent no.5 are being extracted hereinbelow:-
"7. That the deponent, for the first time came to know the alleged selection/appointment of the petitioner on the post of clerk in D.A.V. Balika Purva Madhyamik Vidayalaya, Paligarh Ranipur, Mau (in short-the institution) on 07.11.2019 when the District Basic Education Officer, Mau- Sri Om Prakash Tripathi via telephone asked deponent about his participation as supervisor/nominee of B.S.A., Mau in the instant selection while per records there is no such order of the then BSA to appoint you as nominee/supervisor. The District Basic Education Officer, Mau also stated that as per records produced by the manager about the instant selection, you have participated as member of the alleged selection committee being nominee/supervisor and there is your signature as such.
8. That the deponent then immediately wrote a letter dated 07.11.2019 and sent it at his level to the District Basic Education Officer, Mau. By this letter, the deponent has informed the District Basic Education Officer, Mau that he had not ever been appointed as supervisor/nominee by the then Basic Education Officer, Mau for participation in the instant selection on the post of clerk in the institution and thus there is no question of selection on the post of clerk in the institution in his supervision. He had never appeared in the instant selection at any point of time. The photocopy of the letter dated 07.11.2019 is being filed herewith and marked as Annexure No.1 to this personal affidavit.
9. That the deponent being on leave went to the office of District Basic Education Officer, Mau on 23.11.2019 and saw the records and came to know that the records are manufactured/prepared by making his forged signatures. He had never appeared in the selection of the petitioner held on 30.07.2016 and thus, no question of his signatures arose on the papers so prepared. The alleged signatures of the deponent on the papers pertaining to selection of petitioner dated 30.07.2016 are forged and manufactured."
13. Pursuant to the order dated 27.11.2019 of this Court, petitioner was permitted to implead committee of management of the institution as respondent no.6.
14. The respondent no.6 filed counter affidavit contending inter alia that petitioner in Writ Petition No.27066 of 2018 had made categorical statements in paragraphs 11 and 17 of the writ petition that respondent no.3 has appointed Sri Birbal Ram, Block Education Officer, Kopaganj, Mau as his nominee/observer in the selection proceeding which fact has not been denied by the State in the counter affidavit. Further, the respondent no.6 has supported the case of the petitioner.
15. Pursuant to the order of this Court dated 15.11.2019, original record was also placed before the Court.
16. Leaned counsel for the petitioner has made threefold submission in challenging the impugned order. He submits that rejection of claim of petitioner on the ground that no nominee was appointed by respondent no.3 to participate in the selection in terms of Rule 14 of U.P. Recognized Basic School (Junior High Schools) (Recruitment and Conditions of Service of Ministerial Staff and Group-D Employees) Rules, 1984 (hereinafter referred to as 'Rules, 1984') is wrong and against the record. Secondly, He submits that the rejection of claim of petitioner on the basis of Government Orders dated 04.11.2015 and circular dated 19.05.2017 & 19.09.2017 is also not sustainable inasmuch as this Court in Writ A No.27066 of 2018 has already held the said objection to be illegal. Thirdly, he submits that the Government Order dated 15.1.2019 is not applicable as petitioner has been selected in a selection held prior to date of promulgation of the Government order dated 15.01.2019. Thus, the submission is that the Government Order dated 15.01.2019 is not applicable retrospectively, therefore, the respondent no.3 cannot refuse to accord approval taking shelter of Government Order dated 15.1.2019.
17. Per contra, learned Additional Chief Standing Counsel would contend that respondent no.3 has correctly refused to accord approval inasmuch as there was no nominee of the B.S.A. in terms of Rule 14 of Rules, 1984 in the selection proceeding and, therefore, selection was illegal, hence, petitioner cannot claim any financial approval on the basis of selection which was not as per Rules, 1984. He further submits that there was ban imposed by Government Order dated 06.11.2015 and 27.03.2018, therefore, no selection could have been made on the post of Clerk, and further, by Government Order dated 15.01.2019, the post of Clerk has been declared dying cadre.
18. I have considered the rival submission of the parties and perused the record.
19. This Court will first proceed to deal with the second and third submission of the learned counsel for the petitioner.
20. A perusal of judgement of this Court passed in Writ A No.27066 of 2018, relevant portion of which has already been extracted above, clearly reveals that this Court has already held that Government Orders dated 06.11.2015 and circular dated 19.05.2017 & 19.09.2017 are not applicable, and therefore, the approval to the appointment of the petitioner cannot be denied on the ground that a ban was imposed by the aforesaid government orders from making any appointment on the post of clerk. Accordingly, this court finds that the respondent no.3 has erred in refusing to accord approval to the appointment of the petitioner taking shelter of the government orders dated 06.11.2015 and circular dated 19.05.2017 & 19.09.2017.
21. The other reason assigned in the impugned order that the post of Clerk has been declared as dying cadre by Government order dated 15.1.2019 is also misconceived and not sustainable inasmuch as in the instant case, vacancy arose on 30.04.2015 and selection process had commenced in the year 2016 as the post was notified on 15.07.2016. Thus, in view of the judgement of this Court in Writ A No.3975 of 2019, the Government Order dated 15.01.2019 cannot be applied retrospectively in respect of posts on which selection has been initiated prior to the promulgation of Government Order dated 15.01.2019 .
22. Now, I proceed to examine first contention of learned counsel for the petitioner. According to the petitioner, the respondent no.5, Birbal Ram, Block Education Officer, District Deoria was appointed as nominee to participate in the selection proceeding. This Court, accordingly, passed an order on 15.11.2019 permitting the petitioner to implead Birbal Ram, Block Education Officer, District Deoria as respondent no.5 in the writ petition. Pursuant to the order of this Court dated 15.11.2019, Birbal Ram, Block Education Officer has filed his personal affidavit denying the fact that he was appointed as nominee to participate in the selection process for the post of Clerk. Relevant extract of the affidavit of Birbal Ram has already been extracted above.
23. In view of the assertions made in the affidavit of Birbal Ram, this Court directed the authorities to produce record of the selection proceeding from the office of respondent no.3. The record of the selection proceeding was placed before the Court which reveals that there is no order of District Basic Education Officer, respondent no.3 appointing Birbal Ram as nominee to participate in the selection proceeding. The committee of management, who is also arrayed as party in the writ petition, has not produced any letter of respondent no.3 appointing respondent no.5, Birbal Ram as nominee.
24. Learned counsel for the petitioner has contended that in fact, the letter of respondent no.3 appointing Birbal Ram as nominee has been removed from the original record only with a purpose to deny approval to the appointment of the petitioner. He submits that the record reveals that respondent no.5, Birbal Ram, was also appointed nominee for selection for the recruitment of teacher which was held on the same day and Birbal Ram had participated in the selection of Assistant Teacher and has also signed the selection proceeding in respect of selection of teacher. He has further placed selection proceeding of Clerk, Annexure 6 to the writ petition, to contend that Birbal Ram had participated in the selection proceedings of Clerk and had put his signature.
25. The contention of learned counsel for the petitioner that letter appointing Birbal Ram as nominee to participate in the selection of the Clerk has been removed from the original record is not sustainable and is misconceived inasmuch if there was letter of respondent no.3 appointing the respondent no.5 as nominee, the said letter must have been communicated to the committee of management, respondent no.6 and the committee of management could have easily brought on record such letter appointing respondent no.5 as nominee.
26. Learned counsel for the committee of management instead of producing any letter appointing the respondent no.5 as nominee has placed reliance upon the averments made by the petitioner in paragraph nos.11 & 17 in Writ A No.27066 of 2018 and reply of the respondent-state wherein respondent-state has not denied the averments made with regard to appointment of respondent no.5 as nominee.
27. Since, respondent no.5 in his personal affidavit has denied the fact of his appointment as nominee to participate in the selection of Clerk, and the committee of management, who is supporting the cause of the petitioner, could have produced the said letter, therefore, in this view of the fact, the Court does not find merit in the submission of learned counsel for the petitioner that letter of appointing respondent no.5 as nominee has been removed from the original record.
28. Further, as the respondent no.5 has filed his personal affidavit categorically stating that he was never appointed as nominee which fact has been denied by the petitioner and also by committee of management, therefore, the question as to whether respondent no.5 was appointed as nominee is a question of fact which can be adjudicated only on the basis of evidence led by the parties. Since, the aforesaid issue is a question of fact, this Court in exercise of power under Article 226 of Constitution of India cannot decide such an issue.
29. It is relevant to mention that as per Rule 14 of Rules, 1984, a selection committee should consist of the nominee appointed by the District Basic Education Officer. In the present case, the record reflects that there was no letter of respondent no.3 appointing the respondent no.5 as nominee to participate in the selection proceedings, thus, the selection committee which recommended the name of the petitioner for appointment on the post of Clerk was not a proper and valid selection committee in terms of Rule 14 of Rules, 1984, consequently, any recommendation made by such selection committee is not valid. Hence, no approval to the appointment of the petitioner can be accorded pursuant to recommendation of a selection committee not constituted as per Rule 14 of Rules, 1984.
30. Thus, for the reasons above, the writ petition lacks merit and is accordingly, dismissed. There shall be no order as to costs.
31. The Registry is directed to handover the original record in the office of the Chief Standing Counsel after obtaining the endorsement of receiving from the concerned person.
Order Date :- 30.04.2020 Sattyarth