Allahabad High Court
Committee Of Management Of Shri Gandhi, ... vs District Inspector Of Schools And Anr. on 5 January, 2004
Equivalent citations: 2004(1)AWC801, (2004)1UPLBEC979
Author: R.K. Agrawal
Bench: R.K. Agrawal
JUDGMENT R.K. Agrawal, J.
1. Christening an organisation or an institution after national or internationally reputed personalities, whether they are political leaders or religious persons, does imply that the aims and objectives for which such person had struggled and lived, would be followed by the persons who are at the helm of affairs of that organisation or institution. But, these days it has become a fashion to name the institution or the organisation after such reputed persons without caring to follow their lifestyle and work. The case in hand is one such glaring example. Even though the petitioners have given the name of the father of the nation to their college who devoted his entire life for the upliftment of a class of society who were at that time treated by the society as untouchables and whom Bapu lovingly called Harijan, the petitioners with all their might have been resisting to give appointment on the post of the Assistant Clerk to a person who belongs to reserved category and that too whose appointment is being made on compassionate ground. It is being done on the flimsy ground that the post is unreserved and cannot be filled up by a person belonging to a reserved category. What a paradox?
2. By means of the present writ petition filed under Article 226 of the Constitution of India, the committee of management of Shri Gandhi Inter College, Mangroo, district Mahamaya Nagar through its Manager, Ajai Singh Rana and he in his personal capacity seek a writ, order or direction in the nature of certiorari quashing the orders dated 21.12.2002 and 11.2.2003, passed by the District Inspector of Schools, Mahamaya Nagar, respondent No. 1, filed as Annexures-1 and 2 to the writ petition and other consequential reliefs.
3. Briefly stated the facts giving rise to the present petition are as follows :
In the district of Mahamaya Nagar there is an intermediate college in the name and style of Shri Gandhi Inter College, situate at Mangroo, (hereinafter referred to as 'the College'). It is recognised under the provisions of the U. P. Intermediate Education Act, 1921 (hereinafter referred to as 'the Act') and the Regulations framed thereunder. The salary of the teachers and employees of the college is being paid by the State Government under the provisions of the U. P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971. In the college there are two posts of Assistant Clerk out of which one post has been filled up by way of promotion of Jogendra Singh from amongst the class IV employees, who belongs to the reserved category. The other post is lying vacant. It appears that father of the respondent No. 2 who was working as Principal in Saidabad Inter College, Saidabad, district Mahamaya Nagar died while in service. The respondent No. 2 applied for appointment on compassionate grounds. The Selection Committee, constituted for that purpose, selected the respondent No. 2 on the post of Assistant Clerk and allocated him Saidabad Inter College, Saidabad, district Mahamaya Nagar. The District Inspector of Schools directed the Committee of Management, Saidabad Inter College, Saidabad to give appointment to the respondent No. 2 on the post of Assistant Clerk. It appears that there was no vacancy on the post of Assistant Clerk in the said College whereupon the District Inspector of Schools vide order dated 1st June, 2002, allocated M. L. Inter College, Sahpau, district Mahamaya Nagar. The Manager of M. L. Inter College also intimated that there was no vacancy on the post of Assistant Clerk. The District Inspector of Schools vide order dated 21st December, 2002, allotted/adjusted the respondent No. 2 in the College as a post of Assistant Clerk was lying vacant in the said College. The petitioners did not issue the appointment letter to the respondent No. 2. Vide order dated 11th February, 2003, the District Inspector of Schools directed the petitioners to issue the appointment letter to the respondent No. 2 within 15 days and also to submit the salary bills falling which recommendation would be made under Section 3 (3) of the Payment of Salaries Act for appointment of an Authorised Controller. The orders dated 21st December, 2002 and 11th February, 2003 are under challenge in the present writ petition.
4. I have heard Sri V. K. Agarwal, learned counsel for the petitioner and the learned standing counsel and Sri K. P. Shukla, who represents respondent No. 2.
5. Learned counsel for the petitioner submitted that under Regulation 102 of the Regulations contained in Chapter III of the Regulations framed under the Act, the appointing authority is required to intimate the vacancy occurring on account of retirement, death, resignation or on account of any other reason on the post of clerk and peon in the college to the District Inspector of Schools within a specified period. According to him, under Regulation 103, if a Teacher or employee dies during service, one member of the family of the deceased is entitled to be appointed on the post of teacher or clerk or peon, according to his qualification. Under Regulation 105, the matter is to be considered by the Committee which will give its recommendation and follow up action is to be taken thereupon. According to him, under Regulation 106, such compassionate appointment has to be made in the school/college where the deceased was working/employed and if there is no vacancy in the said college then the appointment can be made in a school/college in the district and if there is no vacancy in the schools/colleges in the district then appointment should be made in the college where the deceased was working by creating a supernumerary post. According to the learned counsel for the petitioners, in the present case the committee has not selected the respondent No. 2 for the college of the petitioners. On the other hand he was specifically selected for Saidabad Inter College, Saidabad and if there was no vacancy in the said college a supernumerary post ought to have been created for adjusting respondent No. 2 in the said college. Thus, he submitted that the order dated 21st December, 2002, is wholly illegal and without jurisdiction.
6. He further submitted that the post which is lying vacant in the college of the petitioners is to be filled up by way of direct recruitment. The other post which has been filled up by way of promotion is occupied by a candidate belonging to the reserved category. As the respondent No. 2 also belongs to the reserved category if he is appointed both the posts of clerk would be filled up by the candidates belonging to the reserved category whereas the said post is to be filled up from amongst the general candidates. Thus, he submitted that the respondent No. 2 cannot be appointed on the vacant post of clerk in the college in question.
7. Learned counsel for the petitioners further submitted that if there is any vacancy to be filled up by way of direct recruitment no appointment can be made under Dying-in-Harness Rules as it excludes the open competition.
8. Sri K. P. Shukla, learned counsel appearing for the respondent No. 2, however, submitted that the respondent No. 2 has been selected by a duly constituted Selection Committee as provided under Regulation 105 and if there is no vacancy in Saidabad Inter College, Saidabad, district Mahamaya Nagar, under the Government orders issued by the State Government the District Inspector of Schools is fully empowered to allocate any other institution where there is a vacancy. He, thus, submitted that the allocation of the petitioners' college cannot be questioned on this ground. He further submitted that a person belonging to the reserved category can be appointed under the provisions of Dying-in-Harness Rules on the post which is to be filled up by way of direct recruitment. Merely because a person from reserved category has been appointed on an unreserved post, does not mean that the said post has been reserved.
9. Having heard the learned counsel for the parties, I find that it is not in dispute that the post of clerk which was lying vacant in petitioners' college is to be filled up by way of direct recruitment. The provisions of Payment of Salaries Act, 1971, are applicable to the petitioner's college. The appointment on the post of clerks and peons is governed by Regulations 101 to 107 of the Regulations contained in Chapter III of the Act. Thus, the committee of management of the petitioners' college have no absolute right to make appointment on a post of clerk. It is governed by the aforesaid Regulations. Respondent No. 2 has been selected by the Selection Committee constituted under Regulation 105 and in cases there is no vacancy in the college for which he has been selected, the District Inspector of Schools is well within his powers to allocate another college where a vacancy exists. If a vacancy exists in the petitioners' College, the District Inspector of Schools is well within his right to allocate the said College to the respondent No. 2. So far as the question that the respondent No. 2 belongs to the reserved category and if he is appointed on the vacant post of clerk, both the posts would be occupied by the persons belonging to the reserved category is concerned, suffice it to mention that there is no prohibition for persons belonging to the reserved category to be appointed on the posts which are meant for general category, if he fulfils the requisite qualification. Merely a person belonging to the reserved category has been appointed on an unreserved post, does not mean that the post has been filled up by the reserved category or stands reserved. The submission made in this behalf is misconceived.
10. It may be mentioned here that the provisions of Regulations 103 to 107 have an overriding effect on the general powers of the committee of management to make appointment as it has been specifically introduced to tide over the sudden and unforeseen crisis which the family of a deceased may have to face. The Regulations being statutory in nature cannot be ignored. The contention that the post is to be filled up by way of open competition is also misconceived as the aforesaid Regulations will have to be taken into consideration before making appointment on a post meant for being filled up by way of direct recruitment inasmuch as on the posts which are to be filled up by way of promotion, no appointment on compassionate grounds can be made.
11. The writ petition lacks merit and is dismissed.