Allahabad High Court
C/M Sanjay Laghu Madhyamik Vidyalaya, ... vs State Of U.P. Thru. Prin. Secy. Basic ... on 27 August, 2020
Author: Manish Kumar
Bench: Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 22 Case :- MISC. SINGLE No. - 13556 of 2020 Petitioner :- C/M Sanjay Laghu Madhyamik Vidyalaya, Thru. Manager Respondent :- State Of U.P. Thru. Prin. Secy. Basic Edu. Lko & Others Counsel for Petitioner :- Gaurav Mehrotra,Akber Ahmad Counsel for Respondent :- C.S.C.,Prashant Arora Hon'ble Manish Kumar,J.
1. Heard Sri Gaurav Mehrotra, learned counsel for the petitioner, Sri Pankaj Srivastava, learned Additional Chief Standing Counsel for the respondent nos. 1 and 2 and Sri Rahul, holding brief of Sri Prashant Arora, learned counsel for respondent no. 3.
2. The petitioner has preferred the present writ petition with the the following prayers-
i) To issue a writ, order or direction in the nature of Certiorari quashing the order dated 29.01.2019 issued by Respondent no. 3, copy whereof is contained as Annexure-1 to this Writ Petition.
ii) To issue a writ, order or direction in the nature of Mandamus commanding the respondents to accord approval for making selections on the post of Clerk in the Petitioner's Institution in accordance with the Uttar Pradesh Recognized Basic School (Junior High School) (Recruitment and Condition of Service of Ministerial Staff and Group D Employees) Rules, 1984.
iii) To pass such other writ, order or direction as the Hon'ble Court may deem it and proper so as to protect the rights and interests of the Petitioner.
iv) Award the costs of the Writ Petition to the Petitioner.
3. The facts in brief as contained in the writ petition are that the institution in question viz. Sanjay Laghu Madhyamik Vidyalaya, Jorawarpur, Jamo, Amethi is a recognized institution. The same is run and controlled under the provisions of U.P. Basic Education Act, 1972 and all its teachers and employees are getting their salaries from the State Exchequer. It is contented that on the retirement of one Shri Murlidhar on 01.11.2017 one post of Clerk had fallen vacant in the institution in question. In order to fill up that post, the Manager of the Institution wrote a letter to the District Basic Education Officer, Amethi on 22.09.2018 to permit the institution to make advertisement in order to fill up the said post of Clerk. However, the request was rejected by the District Basic Education Officer, Amethi vide Order dated 27.09.2018, which was challenged before this Hon'ble Court by means of a Writ Petition which was registered as Writ Petition No.31711(S/S) of 2018 (C/M Sanjay Laghu Madhyamik Vidhyalaya, Jorawarpur, Amethi thru its Manager v/s State of U.P. and Ors., operative part of which was finally decided vide Order dated 01.11.2018 which is reproduced below-
"Having heard learned counsel for the parties and perused the material on record.
On perusal of the impugned order, the sole ground of declining to grant permission to initiate selection proceeding is that there is ban on appointment of non teaching post in junior high school, therefore, no permission can be granted. The submission advanced by the learned counsel for the petitioner is that the controversy in this regard was considered in Writ Petition No.14691 (M/S) of 2017 (Committee of Management, Muneshwar Prasad Poorva Madhyamik Vidyalay Vs. State of U.P. & others), wherein this Court has recorded that against the non teaching post in junior high school, there is no ban.
The Government Orders relied upon by the learned Standing counsel were taken into consideration while passing the judgment by this Court in above referred writ petition and held that there is no ban on non-teaching staff of an aided recognized junior high school. Therefore, the controversy of ban was resolved vide judgment and order dated 12.7.2017. Thus, the impugned order dated 27.9.2018 denying to grant permission to initiate proceeding for making selection and appointment is illegal being contrary to law laid down by this Court in the above referred judgment.
Accordingly, the impugned order is hereby set aside.
The writ petition succeeds and is allowed.
However, the respondent No.3 is directed to consider and pass appropriate order on the application of the petitioner, which is pending in regard to grant of permission to initiate selection proceeding on the post of Clerk, within a period of 3 weeks from the date of production of certified copy of this order in accordance with the observation made by this Court in the case of Committee of Management, Muneshwar Prasad Poorva Madhyamik Vidyalay Vs. State of U.P. & others."
4. It is contented that after the aforesaid order was passed the claim of the petitioner was rejected by respondent No 3 - District Basic Education Officer, Amethi vide its order dated 29.01.2019 on the basis of the Government Order dated 15.1.2019 issued by the State Government according to which Class III and Class IV post are now declared as dying cadre. A copy of the said Government Order is appended as Annexure-25 to the writ petition.
5. It is contented by Sri Gaurav Mehrotra, learned counsel for the petitioner that once the proceedings were initiated in order to fill up the post of Clerk the same cannot be denied only in terms of the Government order dated 15.1.2019 more specially the Government Order in question will not apply retrospectively. Learned counsel for the petitioner relied upon the judgment of this Court given in case of C/m Karwal Devi Kanya Lathu Madhyamik Vidyalaya, Gorakhpur and Another Vs. State of U.P. and 2 others decided on 26.3.2019. Paragraphs 5, 6 and 7 of the said judgment is reproduced below-
"5. Learned counsel for the petitioners relied upon a judgement delivered by coordinate Bench of this Court in the case of Writ A No.2569 of 2019 (Committee of ManagementSeth Teerath Prasad Rameshwar And Another Vs. State Of U.P. And 4 Others). The order passed in the aforesaid case is reproduced hereinbelow:-
"Heard Mr. Pradeep Kumar Upadhyay, learned counsel for the petitioner, the learned Standing Counsel appearing for the respondent nos. 1, 2, 3 and 5 and Mr. Rajesh Khare, the learned counsel appearing for the opposite party no.4.
The issue raised in the present writ petition lies in a narrow compass.
It is an undisputed fact that the proceedings for selection for the post of principal commenced in the year 2017 and ultimately, culminated in the year 2018, i.e., on 06.12.2018, where-after, the proceedings of the Selection Committee were transmitted to the respondent no.4, the District Basic Education Officer, Chitrakoot vide letter dated 10.12.2018. Upon receipt of the aforesaid letter alongwith recommendation of the Selection Committee, an objection was raised by the respondent no. 4 that the papers relating to the educational qualification of the empanelled candidate has not been appended alongwith the same. This objection raised by the respondent no.4 was redressed vide letter dated 11.01.2019 sent by the petitioner no.1 appending alongwith the same the record pertaining to the Educational qualification of the empanelled candidates. It is at this juncture that the respondent no.4 has now passed an order dated 25.01.2019 whereby a request has been sent to the Director, Basic Education, U.P. Lucknow, respondent no.2, for seeking his guide lines in the matter as to whether the approval should be granted or a decision should be taken in the light of the Government Order dated 15.01.2019 (Annexure 9 to the writ petition). The Government Order dated 15.01.2019 stipulates that as per the policy decision taken by the State Government, the post of principal can be sanctioned only in such institution where the number of students exceeds hundred. The applicability of the Government Order dated 15.01.2019 to the selection proceedings to the institution is also disputed by the learned counsel for the petitioners on the ground that since the selection proceedings had commenced already in the year 2017 and came to an end on 06.12.2018, the Government Order dated 15.01.2019 shall not apply. It is further urged that old vacancies are governed by old rules and new vacancies are governed by new rules. Since, the policy decision formulated vide Government Order dated 15.01.2019 is prospective in nature, therefore, the same shall not apply with retrospective effect to the institution in question.
On the aforesaid factual premise, it is thus urged that the respondent no.4, the District Basic Education Officer, Chitrakoot, is liable to be directed by this Court to decide the issue regarding the grant of approval for the post of principal in question. Admittedly, the respondent no.4 has not taken any decision till date. The matter requires to be adjudicated by the respondent no.4 at the first instance.
Having heard the learned counsel for the petitioner, the learned Standing Counsel appearing for the respondent nos. 1, 2, 3 and 5 and Mr. Rajesh Khare, the learned counsel appearing for the opposite party no.4, this Court is of the considered view that in case a direction is issued to the respondent no.4, the District Basic Education Officer, Chitrakoot to decide the issue qua the grant of approval/applicability of the Government Order dated 15.01.2019.
Consequently, this writ petition stands finally disposed of with a direction to the respondent no.4 to take a decision on the aforesaid issues within a period of two months from the date of production of a certified copy of this order.
It is made clear that this Court has not expressed any opinion on the merits of the matter."
6. From perusal of the Government Order dated 15.1.2019 it is clear that the policy decision formulated vide Government Order dated 15.01.2019 is prospective in nature, therefore, the same shall not apply with retrospective effect to the institution in question.
7. Learned counsel for the petitioner further relied upon a judgement of the Supreme Case in the case of A.A. Carton Vs. Director of Education reported in LAWS (SC) 1983 3 15 :: 1983 AWC 368 SC. He relied upon paragraph 5 of aforesaid judgement, which is quoted hereinbelow:-
"....But it is equally well settled that no retrospective effect should be given to any statutory provision so as to impair or take away an existing right, unless the statute either expressly or by necessary implication directs that it should have such retrospective effect."
6. The learned counsel for Opposite Parties were unable to dispute the submissions made by the learned counsel for the petitioner and applicability of judgements of this court relied hereinabove.
7. Since the controversy involved has already been decided by this Court in case of C/m Karwal Devi Kanya Lathu Madhyamik Vidyalaya, Gorakhpur (Supra) the Court think it proper to decide the present case also in terms of the law laid down in the aforesaid case.
8. In view of the aforesaid, the order passed by the respondent no. 3 - District Basic Education Officer, Amethi dated 29.01.2019 is liable to set aside and the same is hereby quashed. The respondent no. 3-District Basic Education Officer, Amethi is directed to decide the aforesaid issue afresh in terms of the observations made here-in-above within a period of two months from the date of production of a certified copy of this order.
9. With the aforesaid observations, this writ petition stands disposed of.
10. It is made clear that this Court has not expressed any opinion on merits of the case and the authority concern shall pass order independently, in accordance with law.
Order Date :- 27.8.2020 Zafar