Allahabad High Court
Ratnesh Kumar Sagar vs State Of U.P. And 3 Others on 6 February, 2020
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 5 Case :- WRIT - A No. - 1845 of 2020 Petitioner :- Ratnesh Kumar Sagar Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Kushmondeya Shahi,Rajeev Kumar Rai Counsel for Respondent :- C.S.C. Hon'ble Surya Prakash Kesarwani,J.
1- Heard learned counsel for the petitioner and the learned standing counsel for the State-respondents.
2- This writ petition has been filed praying to quash the impugned order dated 14.01.2019 passed by the District Basic Education Officer, Mau, respondent no.3.
3- Briefly stated facts of the present case are that to fill up the vacancy of clerk in the respondent no.4 institution, prior approval was granted by the respondent no.3 vide letter No.5300/2012-13 dated 21.01.2013. Pursuant to the aforesaid prior approval, the respondent no.4 published an advertisement inviting application for recruitment on the post of clerk. The process of recruitment was completed on 7.1.2013 and the relevant papers were forwarded by the respondent no.4 to the respondent no.3 for approval of appointment of the petitioner. By letter No.6043/2012-13 dated 8/02/2013, the respondent no.3 granted approval of appointment of the petitioner with the condition that the joining shall be given to the petitioner after the general ban on appointments made by the State Government is lifted. The ban was lifted by the State Government by Government Order No.917/79-6-2014 dated 15.09.2014.
4- Thereafter, the petitioner was given joining on 25.5.2015 on the post of clerk in the respondent no.4 institution, but the respondent no.3 has not allowed payment of salary to the petitioner. Therefore, the petitioner filed Writ-A No.50511 of 2017 (Ratnesh Kumar Sagar v. State of U.P. and others), which was disposed of by order dated 31.10.2017 directing the District Basic Education Officer, Mau, to consider and redress the grievance of the petitioner in accordance with law, by a reasoned and speaking order. Thereafter, the respondent no.3 passed an order dated 24.7.2018 mainly on the ground that the advertisement inviting application for recruitment was not properly made by the respondent no.4 and in the said advertisement the maximum age was published as 30 years, while the maximum age was enhanced by the State Government and there was ban on appointment and yet the approval was made by the District Basic Education Officer, Mau.
5- Aggrieved with the aforesaid order dated 24.7.2018, petitioner filed Writ-'A' No.22322 of 2018 (Ratnesh Kumar Sagar v. State of U.P. and others), which was disposed of by order dated 4.12.2018, whereby the order of the District Basic Education Officer, Mau, dated 24.7.2018, was quashed and the matter was remitted to him to pass an order afresh after affording reasonable opportunity of hearing to the petitioner and the respondent no.4 herein.
6- Pursuant to the aforesaid order dated 4.12.2018 passed in Writ-A No.223221 of 2018, the respondent no.3 has passed the impugned order dated 14.1.2019 exactly on the same ground on which he had earlier passed the order dated 24.7.2018.
7- Now, aggrieved with the order dated 14.1.2019, the petitioner has filed the present writ petition.
8- With the consent of the learned counsel for the parties, this writ petition is being finally heard without calling for a counter affidavit.
9- There is no dispute that the post of clerk was advertised against a substantive vacancy which occurred due to retirement of the Clerk Sri Awadhesh Kumar Rai on 31.1.2011. Before advertising the post, prior approval was granted by the District Basic Eduction Officer on 1.1.2013. The advertisement was made on 22.1.2013 and after completion of the selection process, the papers for approval of appointment was forwarded by the respondent no.4 to the respondent no.3 by letter dated 7.2.2013. The amendment in the rule enhancing the maximum age from 30 years to 40 years was made by notification dated 23.8.2013. Thus, the maximum age was made much after the entire selection process was completed and the papers were forwarded to the respondent no.3, who granted the approval on 8.2.2013 with the condition that joining shall be given after the ban on appointments is lifted. Thus, as on the date of advertisement, the maximum age provided under the Statute for applying for the post of Clerk was 30 years. Therefore, the ground taken in the impugned order for rejecting approval of the petitioner was wholly unsustainable. The other ground taken in the impugned order with regard to ban is also wholly unsustainable, inasmuch as two approval orders dated 1.1.2013 and 8.2.2013 were granted by the concerned authorities following due procedure which still exist.
10- That apart, in Civil Misc. Writ Petition No.31348 of 2013 (Vipin Kumar v. State of U.P. and others), reported in (2013) 7 ADJ 274, a Coordinate Bench of this Court considered the question of ban on appointment of Class III and Class IV staff in an educational institution and held as under:
"It is thus clear that the State Government in relation to teachers has taken a clear stand and has withdrawn the Government Order declaring it to be inapplicable in respect of such appointments. This must have been done in view of the paramount nature of the job of teachers as a ban on appointment of teachers would put the entire educational system in jeopardy. The State rightly did so as to impart education is its sovereign function. The U.P. Intermediate Education Act, 1921 has been framed by the State Legislature and falls within the concurrent list of Entry 25 (List 3) in the 7th Schedule to the Constitution of India. Thus the importance of service regulations of teachers and other employees of educational institutions stands on a different pedestal then government servants whose rules and regulations are governed by the provisions of Article 309 of the Constitution of India.
The ban which has been imposed therefore appears to be in relation to service matters throughout the State which has in its background Article 309 of the Constitution of India. However, the said government order dated 15.3.2012 does not specify its applicability in terms of Section 9(4) of the 1921 Act. The question is, can such a government order be read as a ban to be employed flatly in the institutions thereby forestalling of appointments of Class IV employees. As stated hereinabove, it is not only the role of teachers which is important, but it is equally important to have some permanent Class III and Class IV employees in an educational institution. It is for this reason that the norms provided for in the government order of 1977 deserves reference.
A perusal thereof would indicate that at the High School Level a provision for 10 Class IV employees has been made coupled with the additional Class III employees, and in addition thereto 7 Class IV employees are provided for at the Intermediate level subject to the number of students and the courses of study that are being pursued. The number has to be adjusted accordingly keeping in view the requirement of the institution.
The norms therefore fixed have to be observed for the purpose of running an institution. The idea of placing a ban that too even a complete ban in respect of Intermediate Colleges therefore does not appear to be reflected in the government order dated 15.3.2012.
The decisions relating to temporary ban imposed for appointment of teachers in the case of Dr. Ramji Dwivedi Vs. State of U.P., 1982 U.P.L.B.E.C 137 and the decision in the case of Durgesh Kumari (supra) therefore has to be read in that context where the State Government found justification for placing only a temporary ban keeping in view the new legislation that was to be introduced. Here there is no such occasion or any reason given in the government order dated 15.3.2012. No other legislation or any such provision has been pointed out that may be contemplated so as to justify such a ban.
Such an absolute prohibitory ban therefore becomes inconsistent with the mandate of the 1921 Act that contemplates institutions running continuously to impart education. The forbidding by way of a proclamation, amounts forfeiture of the powers that are conferred for a specific purpose under the Act. The ban therefore works against the provisions under the 1921 Act and the Regulations framed thereunder. This sort of prevention or a bar on a permanent basis is therefore not comprehended and would be inconsistent with the object and purpose of the Act. It cannot be presumed that the Government order stands adopted by way of reference which in the case of teachers has already been clarified and lifted as noted hereinabove. This compulsion, which is driving institutions to a wall, is placing the institution in a helpless situation where it is unable to resist the said ban and is being driven to do something which otherwise is a necessity for the institution.
In the opinion of the Court, had the State Government applied its mind to these aspects it was quite possible that it could have issued a clarification as has been done in the case of teachers vide government order dated 23.5.2012. It is for this additional reason that I find myself in complete agreement with the view expressed by the learned Single Judge in Committee of Management, Lala Babu Baijal Memorial Inter College (supra) which reasoning is also applies in respect of this direct ban said to have been imposed by the State Government.
It can be said that the State Government by way of a policy decision has proceeded to do so. A question is that can a policy be adopted to stop the discharge of statutory duties as well which is the obligation of the State under the discharge of its sovereign functions. Education being undoubtedly a sovereign function, the running of educational institutions without any impediment and with reasonable regulations is the obligation of the State. There cannot be a closure of institutions or shutting down of such colleges that are imparting secondary education. The State Government cannot sweep all employees with the same broom as all grains do not have the same weight. The manner of ban cannot be such as if it is a declaration of a lay off in an industrial unit. It is like a "sovereign firman" for which no reasons are discernible in the government order dated 15.3.2012. The court may not enter upon the reasonableness of such subordinate legislation but at the same time if the same appears to be not in consonance with a legislated act, the same cannot be supported in law. No amendments have been brought about either in the Act or the Regulations as per the procedure provided for. The question is can such an executive instruction in the shape of a government order be traced back to the provisions of Section 9(4) of the Act.
In the background as indicated hereinabove there does not appear to be any application of mind by the State Government and which fact becomes more obvious when the State Government itself in respect of teachers immediately withdrew the said ban. The same logic applies to the other employees as well and it is for this reason that the court in the case of Committee of Management Vs. State of U.P., writ petition no. 24401 of 2013 held that the ban would not apply in relation to Class III appointments in an Intermediate College governed by the 1921 Act.
For the reasons aforesaid and the fact that the service conditions of Class IV employees are not governed under any rule framed under Article 309 of the Constitution of India, the ban would not apply in the instant case as well."
11- Thus, the ground taken in the impugned order to deny payment of salary to the petitioner is not based on any relevant material. Consequently, the impugned order dated 14.1.2019 is quashed. Matter is remitted back to respondent no.3 to pass an order afresh strictly in accordance with law, within six weeks from the date of presentation of a certified copy of this order.
12- The writ petition is allowed to the extent indicated above.
Order Date :- 6.2.2020 Ak/