Allahabad High Court
C/M Janta Inter College And Another vs State Of U.P. And 4 Others on 30 May, 2022
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 33 Case :- WRIT - A No. - 8292 of 2022 Petitioner :- C/M Janta Inter College And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Nand Lal Pandey,Suyash Pandey Counsel for Respondent :- C.S.C. Hon'ble Mrs. Manju Rani Chauhan,J.
Counsel for the parties agree that the writ petition may be disposed of finally at this stage without calling for a counter affidavit specifically in view of the order proposed to be passed today.
Heard Mr. Nand Lal Pandey, learned counsel for the petitioners and Mr. Shailendra Singh, learned Standing Counsel for the State-respondents.
This writ petition has been filed by the petitioner with the following prayer:-
"i. to issue a writ, order or direction in the nature of mandamus commanding the respondent no.4 to consider for making payment of salary to Mr. Vikas s/o Ravish Kumar who has been selected and appointed on the post of Class-III employee in the institution namely, Janta Inter College, Pilua, District Etah, taking into consideration that his paper has already been forwarded to him by the petitioner no.2 vide letter dated 07.02.2022 (Annexure no.22 to the writ petition), but no decision has been taken by the respondent no.4 within the period as prescribed under Chapter II Regulation 17 (g) of the regulations framed under the U.P. Intermediate Education Act, 1921 in view of deemed approval within reasonable period to be stipulated by this Hon'ble Court;
ii. to issue any such other and further writ, order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case; and ........."
Brief facts of the case are that an institution in the name and style of Janta Inter College, Pilua, District-Etah (hereinafter referred to as the "Institution") is recognized by the Board of High School and Intermediate and receives grant-in-aid from the State of U.P., as such, the provision of High School and Intermediate Colleges (payment of salaries to the teachers and other employees) Act, 1971 is applicable on it. The aforesaid institution is minority institution established by the Jain Community and is being administered by the same community, as such, the aforesaid institution has all privileges as provided under Article 29 and 30 of the Constitution of India.
The petitioner no.2 sought permission from the Director of Education (Madhyamik) to fill up the post of Class-III employee and when no decision was taken, the petitioner no.2 filed writ petition no.1263 of 2019 (Mohit Jain vs. State of U.P. and Ors.), which was disposed of by this Court vide order dated 24.01.2019 directing the respondent no.2 to take an appropriate decision in the matter in the light of recommendations made by the District Inspector of Schools, Etah on 17.12.2018. Pursuant to the aforesaid order dated 24.01.2019, the Director of Education (Secondary) by his order dated 05.07.2019 permitted for filling up vacant post of Class-III employee by direct recruitment. The petitioner no.2 has informed about the aforesaid by his letters dated 26.03.2021, 12.04.2021 and 04.06.2021 to the District Inspector of Schools, Etah requesting him to permit the petitioners' institution to advertise the post for filling up the same by way of direct recruitment. The District Inspector of Schools, Etah did not pay any attention on the request of petitioner no.2 and has verbally informed that in view of the Government Order dated 30.10.2019 as well as letter of the Director of Education (Secondary) dated 04.11.2019, permission cannot be granted to the petitioner no.2 to advertise the said post. The virus of the Government Order dated 30.10.2019 has been assailed by filing a number of writ petitions, one being writ petition no. 927 of 2020, in which final order has been passed by this Court on 14.12.2020 whereby it has been held that there is no impediment in making appointment on the post of Class-III employee in the institution in question whose names are not mentioned in the list of 26 institutions as mentioned in the Government Order dated 30.10.2019. It was the responsibility of the educational authority to give approval to the appointment made by the committee of management on the said post, as the petitioners' institution does not fall in the list of 26 institutions whose names have been mentioned in Government Order dated 30.10.2019 as also keeping in mind the letter dated 04.11.2019 issued by the Director of Education (Secondary). The writ petitions bearing Writ-A No. 3382 of 2020 and Writ-A No.8741 of 2021 have been filed by the other institutions, which were disposed of by this Court vide order dated 20.01.2021 in terms of order dated 14.12.2020 passed in Writ-A No.927 of 2020 dealing with similar controversy.
Pursuant to the aforesaid order dated 20.01.2021, the committee of management of the petitioners' institution has advertised the post of Class-III employee in two widely circulated newspapers, namely, Dainik Rajpatra and Hindustan on 05.08.2021. The applications were invited from the eligible candidates for being selected on the post of Assistant Clerk. A selection committee was constituted on 28.08.2021 in which the Manager, Principal from backward class, Sri Jaypal Singh (Lecturer) belonging to scheduled caste candidate, Smt. Reeta Saxena, Member, Janta Inter College, Pilua, Etah were the members. Mr. Vipin Kumar Yadav, District Employment Officer was nominated as the nominee of the District Magistrate. The selection committee on 05.09.2021 has considered the eligibility and other academic qualification of the candidates, who appeared before the selection committee and found that the candidate existing at serial no.6, namely, Mr. Vikas s/o Ravish Kumar was found validly selected. After the said selection, the selection committee has sent the papers to the committee of management to be sent to the District Inspector of Schools, Etah on 14.09.2021 requesting for granting financial approval of the selected candidate. The aforesaid letter of the committee of management has been received by the D.I.O.S., Etah on 15.09.2021 and a reminder has also been sent in this regard by petitioner no.2. Instead of granting approval to the selected candidate, the D.I.O.S., Etah has proceeded to sent the papers before regional level committee vide letter dated 04.10.2021 for granting financial approval to Mr. Vikas.
The Joint Director of Education, Aligarh Region, Aligarh, on receiving the letter from the D.I.O.S., Etah, has informed the petitioner no.2 that the matter will be heard on 14.12.2021 for granting financial approval to the selected candidate. It appears some was query made by the regional level committee regarding illegalities in the selection proceedings, reply for which has been submitted by the petitioner no.2 on 14.09.2021, but no decision has been taken till date with respect to financial approval to the appointment of Mr. Vikas on Class-III post in the petitioners' institution.
Learned counsel for the petitioner submits that as per Section 16FF of the U.P. Intermediate Education Act, 1921, the power has been vested with the District Inspector of Schools in case of teachers and with regard to principal, power is vested with the Joint Director of Education of the region with respect to grant of financial approval, but no decision has been taken by the D.I.O.S., Etah or regional level committee, which is not justified. He further submits that as per Chapter II Regulation 17(g) of the regulations framed under the U.P. Intermediate Education Act, 1921, in case, no decision has been taken within one month, it will be deemed to have been approved. Thus as the papers of the duly selected candidate, Mr. Vikas on the post of Class-III, has already been sent before the D.I.O.S., Etah as well as regional level committee and also the Joint Director of Education of the region, therefore, it was the duty of the aforesaid authorities to consider the case of Mr. Vikas, who has been appointed on Class-III post in the petitioners' institution and grant him financial approval.
He further submits that the documents with respect to the appointment of Mr. Vikas on Class-III post have already been sent on 07.02.2022, but no decision has been taken by the concerned authorities. Hence in view of Chapter II regulation 17(g) of the regulations framed under the U.P. Intermediate Education Act, 1921, it is a case of deemed approval, therefore, salary should be paid to the duly selected candidate Mr. Vikas. Hence, the present writ petition has been filed.
On the other hand, Mr. Shailendra Singh, learned Standing Counsel has raised preliminary objection that the petitioners being committee of management of the institution have no locus to file the present petition, as in case, deemed financial approval was in favour of appointment of Mr. Vikas on Class-III post, it is he, who should have approached the Court for a direction for payment of his salary. To the aforesaid preliminary objection, no satisfactory reply has been given by the learned counsel for the petitioner. He further submits that the Director of Education (Secondary) has passed the order dated 05.07.2019 in compliance of the order passed in Writ-A No.1263 of 2019 (Mohit Jain vs. State of U.P. and Ors.) whereby one vacant post of Assistant Teacher is to be filled by direct recruitment only in case, vacancy exists after adjusting appointment made on compassionate ground on the said post. Thus as no vacancy was in existence, therefore, there is no question of granting permission to fill up Class-III post on which the vacancy does not exist.
He further submits that when neither any permission has been granted to fill up the post of Class-III in the petitioners' institution by the competent authority in view of the order dated 05.07.2019 of Director of Education (Secondary), therefore, all the proceedings carried out for the selection of Mr. Vikas is per se illegal. He, therefore, submits, that the provisions as relied upon by the learned counsel for the petitioners are not applicable in the present case. The orders passed in other writ petitions also cannot be of any help to the petitioners as the same relates to appointment on the post of Class-III employees in the institutions, whose names are not mentioned in 26 institutions as mentioned in the Government Order dated 30.10.2019, thus, though there was no legal impediment in making appointment on the post of Class-III employees in view of the Government order dated 30.10.2019, but there is no vacancy in the petitioners' institution, therefore, no appointment on Class-III post could have been made by the petitioners. Thus, this writ petition is liable to be dismissed being misconceived.
Having heard the learned counsel for the parties and scanned the records, the Court finds that the petitioners do not have locus to file the present petition as in case of deemed approval for appointment of Mr. Vikas, it is he, who has the right toapproach the Court for payment of his salary. Perusal of the record goes to show that no permission was granted by the competent authority for advertising of Class-III post in the petitioners' institution, hence there is no question of direction for payment of salary to such a person, who has not been appointed after following proper procedure as required under the law. When there is no vacancy available in a minority institution, the question of prior permission of Regional Joint Director of Education or District Inspector of Schools under Section 16FF of the U.P. Intermediate Education Act, 1921 to fill the vacancy of the said institution by direct recruitment, does not arise.
This Court also finds that there is no point in looking into the powers of the D.I.O.S., Etah as well as Joint Director of Education of the region as dealt in Section 16FF of the UP Intermediate Education Act, 1921 as well as Chapter II regulation 17(g) of the regulations framed under the said Act, when there is no vacancy, no permission by the competent authority to fill up the vacancy hence no question of power of deemed approval arises, therefore, the relief as prayed by the petitioners cannot be granted. Hence, the petition is liable to be dismissed being misconceived.
Accordingly, this writ petition is dismissed being misconceived.
Order Date :- 30.5.2022 Jitendra/-