Allahabad High Court
C/M Janta Purva Madhyamik Vidyalaya And ... vs State Of U.P. And 3 Others on 30 October, 2019
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 39 Case :- WRIT - A No. - 12174 of 2019 Petitioner :- C/M Janta Purva Madhyamik Vidyalaya And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Adarsh Singh,Indra Raj Singh Counsel for Respondent :- C.S.C.,Syed Nadeem Ahmad Hon'ble Neeraj Tiwari,J.
Sri Adarsh Singh, learned counsel for the petitioners submitted that he is not pressing for quashing of the Government Order dated 15th January, 2019 as it is not applicable in the case of petitioners.
On 6.8.2019, Court has passed the following order:-
"Heard learned counsel for the petitioners, learned Standing Counsel for respondent nos. 1, 2 and 3 and Sri Syed Nadeem Ahmad, learned counsel for the respondent no. 4.
Learned counsel for the petitioners submitted that there is an institution namely Janta Purva Madhyamik Vidyalaya, Chhichhor, Karaundi, District Mau and one post of clerk was sanctioned on 15.3.1978 and petitioner has attempted to fill up the said post, but the same was denied by the Basic Shiksha Adhikari, Mau vide order dated 12.7.2017. The said order was challenged before this Court by filing Writ-A No. 33579 of 2017 which was allowed and the matter was remanded back to the Basic Shiksha Adhikari for passing afresh order. Now the impugned order dated 9.7.2019 has been passed relying upon the Government Order dated 15.1.2009. He next submitted that the Government Order dated 15.1.2019 was challenged before this Court by filing Writ-A No. 3975 of 2019 (C/M Karwal Devi Kanya Laghu Madhyamik Vidhayalaya, Gorakhpur and another) and this Court vide judgment dated 26.3.2019 has held that the said Government order shall not be given retrospective effect. Paragraph 6 of the said judgment is quoted below:-
"6. From perusal of the Government Order dated 15.1.2019, it is clear that he 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."
He lastly submitted that under such facts and circumstances of the case, the impugned order is bad in law and liable to be set aside.
Sri Syed Nadeem Ahmad, learned counsel for the respondent no. 4 prays for and is granted one week time to seek instruction in the matter and go through the aforesaid judgment relied upon by learned counsel for the petitioner and inform the Court whether the case of the petitioner is covered by said judgment or not Put up on 16.8.2019 in the additional cause list."
Pursuant to that, Sri Syed Nadeem Ahmad, learned counsel for the respondent no.4 has been provided certain instructions on 13.9.2019.
On 13.9.2019, Court has passed the following order:-
"Pursuant to the order of this Court dated 6.8.2019, Sri Syed Nadeem Ahmad, learned counsel for the respondent no.4 has produced the instruction dated 10.08.2019, which is taken on record. He further submitted that petitioner has made advertisement contrary to Rules and without obtaining prior permission, therefore, judgment and order passed in Writ- A No.3975 of 2019 (Committee of Management Karwal Devi Kanya Laghu Madhyamik Vidhayalya, Gorakhpur and another Vs. State of U.P. and others) shall not be applicable in case of petitioner.
Learned counsel for the petitioners submitted that appointment of Class-IV employee is governed by the provisions of U.P. Recognized Basic Schools (Junior High School) (Recruitment of Condition of Service of Ministerial Staff) Rules, 1984 and as per that, there is no requirement to obtain prior permission. He next submitted that even in the impugned order only one ground is taken that in light of Government Order dated 15th January, 2019, nominee cannot be appointed, therefore, by sending instruction or filing affidvait, he can improve the impugned order.
Sri Syed Nadeem Ahmad, learned counsel for the respondent no.4 prays for and is granted three days time to seek instructions and also produce the Rules applicable in the case of petitioner.
Put up this case on 18th September, 2019 in the additional cause list."
On 18th September, 2019, Mr. Syed Nadeem Ahmad, learned counsel for the respondent no.4 submitted that in light of order of Court dated 16.9.2019 passed in Writ-C No.22632 of 2019 (Kartik and 4 others Vs. State of U.P. and 3 others) now learned standing counsel shall also appear on behalf of respondent no.4.
Today, learned standing counsel fairly submitted that once the Court has held that Government Order dated 15.1.2019 shall be given only prospective effect, same shall not be applicable in the case of petitioners and further in light of judgment of Mohinder Singh Gill and another vs. The Chief Election Commissioner, New Delhi & others reported in 1978 AIR 851, impugned order cannot be improved by filing affidavit. He next submitted that Court may quash the order with liberty to pass fresh order in accordance with law considering the facts of the case.
Under such facts and circumstances of the case, order dated 9.7.2019 is hereby quashed with direction to respondent no.4 to pass fresh order on the application of the petitioner dated 9.7.2019 in accordance with Rules as well as considering the facts of the case maximum within four weeks from the date of production of certified copy of this order.
Accordingly, the writ petition is allowed. No order as to costs.
Order Date :- 30.10.2019 Junaid