Allahabad High Court
Shailesh Khandelwal vs State Of U.P. And 3 Others on 6 April, 2023
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 34 Case :- WRIT - A No. - 23693 of 2018 Petitioner :- Shailesh Khandelwal Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Krishna Mohan Asthana Counsel for Respondent :- C.S.C.,Sanjay Kumar Dwivedi Hon'ble Ajit Kumar,J.
1. Heard Shri Krishna Mohan Asthana, learned counsel for the petitioner, Shri Sanjay Kumar Dwivedi, learned counsel for respondent No.4-Committee of Management and learned Standing Counsel for the State-respondents.
2. The respondent-Committee of Management that runs a minority institution in the name of Jain Inter College, Chaurasi, Mathura (herein after referred to as ''4th Respondent') proceeded to fill up the vacant situations in the faculty of the institution as well as in the clerical cadre by issuing separate advertisements in two newspapers, namely, Kalpataru Express and Indian Express having wide circulation in the area and the region. While advertisement in respect of Assistant Teachers in the subject of Hindi, English, Sanskrit, Arts, Mathematics, Science and Sociology, was published in Kalpataru Express News Daily on 24th August, 2015 and in the Indian Express News Daily on 24th August, 2015, the advertisement in respect of vacant positions of Clerk/Assistant Clerk was issued in News Daily Kalpataru on 23rd July, 2015 and Indian Express on 5th August, 2018. Two separate selection committees were constituted to hold selection on the post of Assistant Teachers in the faculty of the institution and clerk in the clerical cadre of the institution.
3. The petitioner having post-graduate degree in Commerce being M.Com and CCC certificate from National Institute of Electronics and Information Technology applied against the post of Assistant Clerk. The selection committee adjudged the petitioner to be the best candidate and, accordingly, recommended him for appointment.
4. The Committee of Management approved the recommendation of the selection committee and sent papers to the District Inspector of Schools vide covering letter dated 21st July, 2016 of the Manager of the institution for financial approval. Likewise, the selection committee constituted for holding selection to various positions of Assistant Teachers in subjects advertised, selected Smt.Shweta Tiwari, Smt.Babita, Shri Jitendra Singh, Shri Rajiv Kumar, Dr.Hemant Chaudhari and one other in the respective subjects against the positions of Assistant Teachers advertised and the papers were also forwarded to the District Inspector of Schools for financial approval.
5. In respect of all these recommendations, the District Inspector of Schools took up various objections and rejected the claim for financial approval in respect of Smt.Shweta Tiwari, Smt.Babita, Shri Jitendra Singh and Shri Rajiv Kumar in respect of these selections and to did not proceed to pass any order.
6. Ultimately, out of all these selectees four teachers, namely, Smt.Shweta Tiwari, Smt.Babita, Shri Jitendra Singh and Shri Rajiv Kumar filed Writ-A No.26403 of 2018 before this Court in which direction was issued for the District Inspector of Schools to dispose of their representation for approval and payment of salary. Mr.Krishna Pal Singh, District Inspector of Schools rejected their claim on various grounds as under:
(i) The post had lapsed so there could not have been any appointment without revival of these posts;
(ii) There was no valid Committee of Management in the institution to hold selection and appointment;
(iii) The written test ought to have been held and then on the basis of marks obtained by the candidates the selection should have been held.
7. This order came to be again challenged before this Court by those very writ petitioners being Writ-A No.7856 of 2019. The writ petition was allowed setting aside the order of the District Inspector of Schools vide judgment and order dated 17th May, 2019 remitting the matter for decision afresh. Mr.Krishna Pal Singh, District Inspector of Schools, again rejected the claim vide order dated 11.11.2019 holding that the selection was done by an invalid Committee of Management. Smt.Babita and Shri Jitendra Singh challenged the said order again before this Court vide Writ-A No.18983 of 2019 in which this Court took exception to the order passed by the District Inspector of Schools and issued him a show-cause notice as to why he should not be referred to the contempt of court for appropriate contempt proceedings to be drawn against him. This order was passed on 3rd January, 2020. The operative portion of the order dated 3rd January, 2020 is reproduced here as under:
Be that as it may, this Court while rendering judgement in the case of petitioners in Writ Petition No.7856 of 2019 has already rejected the objection taken by the respondent no.3 regarding non-compliance of the procedure provided in the Government Order dated 12.03.2018 in making selection and the selection of the petitioners on the non-existent post, therefore, the said objection taken by the respondent no.3 is misconceived as judgement of this Court in Writ Petition No.7856 of 2019 has become final between the parties. Further, this Court while deciding the issue in Writ Petition No.7856 of 2019 has granted liberty to the respondent no.3 to examine the documents in respect of election of committee of management and this Court finds that respondent no.3 while passing the impugned order has not adverted to any of the documents filed by the petitioners to verify the validity of the Committee of Management, who initiated the selection procedure. The respondent no.3 has placed reliance upon the letter dated 08.12.2017 of the then District Inspector of School in paragraph 9 of the order which nowhere mentions about the validity of committee of management, and thus, facts of the case clearly establishes that respondent no.3 has completely ignored the orders of this Court while passing the impugned order, and thus, has wilfully flouted the orders of this Court. In this view of the fact, this Court finds substance in the argument of learned Senior Counsel for the petitioners.
Thus, in view of above, let notice be issued to respondent no.3, District Inspector of Schools, District Mathura, to show cause as to why the matter should not be referred to the contempt Court for initiating contempt proceedings against him and why his personal responsibility in the matter be not fixed. He shall remain present personally on the next date along with his reply.
Put up on 20.01.2020 in the additional cause list.
(Emphasis added)
8. In order to avoid contempt, as the District Inspector of Schools, Mr.Krishna Pal Singh, had fallen in serious error of law, passed an order on 23rd January, 2020 granting approval to the selection and appointment of the petitioner, namely, Smt.Babita and Shri Jitendra Singh. Shri Rajiv Kumar citing the order of the District Inspector of Schools dated 23rd January, 2020 also challenged the order dated 11.11.2019 vide Writ-A No.2039 of 2020. This writ petition came to be allowed vide detailed judgment and order dated 10th February, 2020 in which this Court not only noticed the order dated 23rd January, 2020 passed by the District Inspector of Schools but also recorded a finding that the petitioners' case deserves to be reconsidered in the light of the decision given in the case of Smt.Babita. Paragraphs 8, 9, 10, 11 and 12 relevant in the judgment and order dated 10th February, 2020 passed in Writ-A No.2039 of 2020 are reproduced here as under:
"8. Pursuant to the same, the respondent No.3 passed order dated 23.1.2020 granted selection/appointment of the petitioners of writ petition filed by Smt. Babita (supra) in L.T. Grade.
9. It is argued by learned senior counsel that the case of the petitioner is identical as the case of the petitioners of the writ petition of Smt. Babita (supra). It is argued that petitioner being identically selected along with the petitioners of writ petition of Smt. Babita (supra), he is also entitled for the same relief of approval of his selection/appointment in L.T. Grade.
After order dated 23.01.2020 passed by the respondent no.3 in favour of the petitioners of writ petition of Smt. Babita (supra), the petitioner has preferred the present writ petition with the prayer to quash the order dated 11.11.2019 passed by the respondent No.3.
10. Heard learned counsel for the petitioner and learned Standing Counsel for the respondents. With the consent of learned counsel for the parties, this writ petition is disposed of finally.
11. It appears from perusal of record that in terms of the orders passed by this Court in Writ A No.7856 of 2019 (Rajiv Kumar and others Vs. State of U.P. and others) on 17.05.2019, an order dated 23.11.2019 was passed by the respondent No.3 rejecting the claim of the petitioner and others. By the aforesaid order, claim of Rajiv Kumar, as Assistant Teacher in Hindi, Smt. Babita as Assistant Teacher in Hindi and Jitendra Singh as Assistant in Social Science were rejected. The aforesaid order was challenged before this Court by only two persons namely Smt. Babita and Jitendra by filing Writ A No. 18986 of 2019. In the said writ petition a detailed order was passed by this Court on 03.01.2020 which has already been quoted above. Pursuant to the same, a decision was taken by the respondent No.3 on 23.01.2020 by which the petitioners in Writ Petition No.18986 of 2019 (Smt. Babita) (supra) were granted approval in respect of their selection/appointment as Assistant Teachers. Insofar as the present petitioner is concerned, no order was passed by the respondent No.3.
12. In the facts and circumstances of the case and without entering into the merits of the case, this writ petition is disposed of finally directing the respondent no.3 to pass appropriate orders in the matter of petitioner in accordance with law as has been passed in the case of Smt. Babita most expeditiously and preferably within a period of two weeks from the date of production of certified copy of this order before him."
9. Dr. Hemant Chaudhari and one another teacher were also selected in the same selection to the faculty of the institution and they also challenged the order dated 11.11.2019 rejecting their claim for grant of approval. This Court noticed the order dated 13th February, 2019 initially passed in the case of Dr.Hemant Chaudhari and also Smt.Shweta Tiwari in Writ-A Nos.8069 of 2019 and 4791 of 2019 respectively, set aside the order dated 13th February, 2019 and issued a direction for according fresh consideration to the claim of the petitioners for grant of approval. Writ petition was thus allowed vide order dated 3rd March, 2020, holding that the order passed by the District Inspector of Schools was in utter disregard to the judgment and order passed by this Court in earlier proceedings that where relating to the same selection in issue. The operative portion of the judgment and order dated 3rd March, 2020 as contained in Paragraphs 44, 45 and 46 is reproduced here as under:
"44) In view of the above, I am of the view that the DIOS while passing the impugned order has travelled beyond his scope of consideration. The order impugned is in utter disregard of the judgment and order passed in earlier proceeding by this court and teachers of the same selection have been accorded approval by the DIOS, therefore, refusal vide impugned order is illegal and cannot be sustained. Accordingly, the impugned order dated 11.11.2019 is hereby set aside.
45) The writ petition succeeds and is allowed.
46) However, the DIOS is directed to pass appropriate reasoned and speaking order of approval to the selection of the petitioners on the post of assistant teachers within a period of four weeks from the date of production of a certified copy of this order."
10. This above order was challenged in special appeal being Special Appeal No.179 of 2021, which came to be dismissed on 3rd September, 2021 by following order:
"By this appeal, a challenge is made to the judgment dated 03.03.2020 whereby writ petition preferred by the petitioners was allowed. The writ petition was filed to assail the order dated 11.11.2019 passed by District Inspector of Schools, Mathura by which the approval of the appointment of the petitioners on the post of Assistant Teachers was denied.
Learned Single Judge discussed the issue elaborately and referring to the earlier judgment in the writ petition preferred by the non-appellant/petitioners, it was held that the issue was not available for reconsideration by District Inspector of Schools when it was settled by the Court. Once learned Single Judge dealt with the issue in reference to denial of approval to the appointment of the non-appellant/petitioners in the earlier writ petition and appeal thereupon by the State was dismissed, the District Inspector of Schools could not have opened the same issue.
The order dated 11.11.2019 was passed in reference to an order dated 16.03.2018 by which the post in question was revived and thereby, selections were conducted. The approval to the appointment was not given for the reason that initiation of selection was not with prior approval. The learned Single Judge considered the said also.
Learned Single Judge found that in regard to the same selection process, the approval was denied to other employee but the order was recalled on 11.11.2019 and approval was accorded. The petitioners were also selected in the same selection, thus could not have been given discriminatory treatment. Their case was required to be dealt with by maintaining parity between the similarly placed. Accordingly, the writ petition was allowed to direct District Inspector of Schools to pass appropriate speaking order for approval to the selection of petitioners on the post of Assistant Teacher.
The appeal has been pressed mainly on the ground that after revival of the post, selection could not have been initiated without prior approval of the competent Authority.
We have considered the submissions aforesaid and find that after revival of the post and selection, if prior approval to initiate selection was required then there was no reason for District Inspector of Schools to accord approval to the appointment of other Assistant Teachers selected out of the same selection. The appointment on the post of Assistant Teacher out of the same selection was approved while denying it in the case of the non-appellant/petitioners causing discrimination.
We failed to understand why the appeal has been preferred by the State. If the appeal is allowed then we would be endorsing discriminatory action of the respondents.
At this stage, learned counsel for the appellants submits that approval of the appointment order in favour of the similarly placed was given pursuant to the order of this Court in their own writ petition. If that is so, then no reason exists to file the appeal rather judgment should have been complied in the same manner as was done in the case of similarly placed Assistant Teachers.
For the reasons given above, the appeal is dismissed finding no merit in reference to only question urged before us while not pressing any other ground.
At this stage, learned counsel for the non-appellant/petitioners submits that approval to the appointment has been given pursuant to the judgment under challenge. The fact aforesaid makes the appeal to be infructuous and otherwise we have decided it on merit."
(Emphasis added)
11. The writ petition of Smt.Shweta Tiwari and one another selected candidate being Writ-A No.2386 of 2020 challenging the same order dated 11.11.2019 came to be allowed vide judgment and order dated 7th January, 2020 relying upon the judgment passed in Writ-A Nos.1821 of 2020 and 18983 of 2019. The Court also referred to the order of special appellate Bench. The operative portion of the order passed in the case of Smt.Babita and another is reproduced here as under:
"This order was challenged in a Special Appeal being Special Appeal No.179 of 2021 (State of U.P. & Ors. vs. Hemant Chaudhary & Ors.) which came to be dismissed on 3.9.2021. From the order of the Special Appellate Court dated 3.9.2021, it is clear that the petitioners of Writ-A No.1821 of 2020 had been given approval.
In view of the fact that the order of the District Inspector of Schools was based absolutely on erroneous facts namely that the advertisement was not valid after the revival of the posts and that the Committee of Management was not a duly elected Committee of Management which findings had already been set-aside in the judgment of this Court dated 13.12.2018, I am of the view of that the approval ought to have been granted by the District Inspector of Schools. More so, when approvals have been granted to the petitioners in Writ-A No.1821 of 2020 and the petitioners in Writ-A No.18983 of 2019.
Under such circumstances, the order dated 11.11.2019 viz.-a-viz. the petitioners is quashed. The matter is remitted back to the District Inspector of Schools to pass approval orders after looking into the qualifications of the petitioners within a period of two weeks from the date of presentation of a certified copy of this order. Further, as and when the approval is granted, salary shall be paid to the petitioners from the date they had joined their institutions.
For the reasons stated above, the writ petition stands allowed."
12. Against this above order, Special Appeal (Defective) No.34 of 2023 was filed by the State of UP and others and the Court while referring to various orders passed in writ petitions and in an earlier appeal (supra) dismissed the special appeal on 13th March, 2023 discussing the law on the point as well as the objection and the grounds taken in appeal in following terms:
"Heard Sri Gyanendra Srivastava, learned Standing Counsel appearing for the State-appellants and Sri Krishna Mohan Asthana, learned Advocate appearing for the respondents/petitioners.
The present appeal is directed against the judgment and order dated 07.01.2022 passed by the learned Single Judge whereby while setting aside the order dated 11.11.2019 passed by the District Inspector of Schools, Mathura, the matter has been remitted back with the direction to pass approval order after looking into the qualifications of the petitioners herein within a period of two weeks from the date of presentation of the certified copy of the said order. The further direction was to pay salary to the petitioners after approval is granted to their selection, from the date they had joined their institutions. The respondents/petitioners herein (two in number) were selected by the Committee of Management of the institution concerned in accordance with the provisions of Section 16-FF of U.P. Intermediate Education Act, 1921 read with Chapter-II of Regulation 17 of the Regulations framed thereunder. The record indicates that a dispute arose with regard to the disapproval of selection of the petitioners herein along with the nine other persons who were selected on the post of L.T. Grade Teacher by order dated 13.02.2019. On a challenge made by one of the respondents/petitioners herein in Writ-A No. 4791 of 2019 to the order dated 13.02.2019 passed by the District Inspector of Schools, declining to accord approval, the writ petition was allowed on 11.04.2019 by quashing the order dated 13.02.2019, with the direction to the District Inspector of Schools to accord fresh consideration to the claim of the petitioner for grant of approval to their selection having regard to the observation made therein.
A perusal of the judgment and order dated 11.04.2019 passed by this Court in the aforesaid writ petition indicates that three grounds to decline approval had been taken by the District Inspector of Schools therein. The first ground was that 11 posts of Assistant Teachers in L.T. Grade in the institution were revived by orders dated 10.11.2016 and 20.03.2017 and both these orders were revoked by order dated 14.12.2017 and only 7 posts of Assistant Teachers stood revived. The Committee of Management of the Institution concerned did not make selection pursuant to the directions containing in the letter dated 14.12.2017. The second ground was that the Committee of Management of the institution concerned was not validly elected and therefore, was not competent to make selection. The appointment made by the then Committee was invalid. The third ground was that by the Government Order Dated 12.03.2018, amendments have been brought in Section 16-FF and Chapter 2 Regulation 17 of the Regulations framed thereunder and the procedure brought in place by way of amendment had not been followed. These three grounds, as is evident from the perusal of the judgment and order dated 11.04.2019 were set aside by this Court while holding that there was no infirmity in the procedure followed by the Committee of Management for the selection in question, in as much as, the scope of inquiry to the selection made under Section 16-FF of 1921 Act by the District Inspector of Schools was confined to the eligibility of the selected candidates. The question of revival of the post in question stood settled by the earlier order passed by this Court in Writ-A N. 26403 of 2018 and Writ-A No. 25087 of 2018.
Having noted the above, we have gone through the order dated 11.11.2019 passed by the District Magistrate, Mathura which was the subject matter of challenge before the learned Single Judge in the writ petition, out of which the present special appeal has arisen. A perusal of the order of the District Inspector of Schools further indicates that same points which have been taken earlier to decline the approval by the order dated 13.02.2019, quashed by the judgment and order dated 11.04.2019, have been reiterated in the order dated 11.11.2019. This aspect of the matter has been duly considered by the learned Single Judge in the judgment and order dated 07.01.2022, subject matter of challenge herein.
Having noted the above, we further find that the present special appeal is delayed by 338 days and no plausible explanation has been given in the affidavit accompanying the delay condonation application. In similar facts and circumstances with regard to the selection subject matter of challenge herein, the Special Appeal Defective No. 996 of 2020 and Special Appeal Defective No. 995 of 2020 filed by the State have been dismissed vide judgment and order dated 24.11.2020 on account of the inordinate, unexplained delay. Another Special Appeal No. 179 of 2021 challenging the judgment and order dated 03.03.2020 passed by the learned Single Judge, allowing the writ petition filed by the persons similarly situated, has been dismissed vide judgment and order dated 03.09.2021 a copy of which is appended along with the counter affidavit filed on behalf of the respondents 1 and 2. A perusal of the judgment and order dated 03.09.2021 indicates that the finding returned by the learned Single Judge in setting aside the order dated 11.11.2019 passed by the District Inspector of Schools for disapproval of the appointment of the petitioners therein on the post of Assistant Teacher in L.T. Grade, had been set aside. The ground of challenge taken in the said special appeal that after revival of the post, selection could not have been initiated without prior approval of the competent authority, has been turned down.
We, thus, find that the respondents are similarly situated Assistant Teacher selected in the same selection upheld by other Special Appellate benches of this Court.
Having noted that the order dated 11.11.2019 passed by the District Inspector of Schools is only reiteration of the previous order dated 13.02.2019 passed by the District Inspector of Schools, which has been set aside by this Court in the judgment and order dated 11.04.2019, and for the additional facts noted above, we do not find it a fit case for interference. The present special appeal is being dismissed both on the ground of inordinate, unexplained delay on the part of the appellants and on the merit, accordingly."
(Emphasis added)
13. Now reverting to the facts of the present case, I find that the District Inspector of Schools after examining the papers sent by the management took five objections as short-comings in his letter dated 19th August, 2016. These objections were: (i) there was a ban operating under the Government order dated 15th March, 2012 upon appointments in recognized Intermediate Colleges; (ii) the petitioner did not posses the requisite academic qualification; (iii) the reservation quota had not been certified; (iv) the post of clerk having fallen vacant on 31st March, 2011 got lapsed and so there could not have been any appointment and (v) no details of working Class-3 and Class-4 employee was furnished along with documents. It is necessary to reproduce the letter of objection written by the then District Inspector of Schools, namely, Mr.Indra Prakash Solanki dated 19.8.2016 and the same is reproduced here as under:
"प्रेषक, जिला विद्यालय निरीक्षक, मथुरा।
सेवा में, प्रबन्धक, जैन इण्टर कालेज, चौरासी, मथुरा।
पत्रांकः मा०अ०सं०/2880-81 /2016-17 दिनांकः 19-08-16 विषयः सहायक लिपिक की कथित नवीन नियुक्ति के संबंध में। महोदय,
उपरोक्त विषयक अपने पत्र संख्याः नियु०/670/16-17 दिनांक 21.07.2016 का संदर्भ ग्रहण करने का कष्ट करें, जिसके द्वारा शैलेश खण्डेलवाल की सहायक लिपिक पर कथित नवीन नियुक्ति कर अनुमोदन हेतु पत्राजात/पत्रावली इस कार्यालय को प्रस्तुत की है। पत्रावली के परीक्षणोपरान्त निम्नवत कमियां परिलक्षित हुई हैंः-
1- शासनादेश संख्याः20/1/91-का-2-2012 कार्मिक अनुभाग-2 लखनऊ दिनांकः 15 मार्च, 2012 के द्वारा /नियुक्ति पर रोक/ प्रतिबन्ध है।
2- भर्ती नवीनतम शासनादेशानुसार लिपिक पद हेतु शासन द्वारा निर्धारित शैक्षिक योग्यता पूर्ण नहीं है।
3- आरक्षण कोटा के संबंध प्रमाण-पत्र नहीं है।
4- इस पद जो 31.03.2011 को रिक्त हुआ है इतनी अवधि के बाद भरे जाने का औचित्य स्पष्ट नही है।
5- विद्यालय में कार्यरत चतुर्थश्रेणी कर्मचारी व लिपिक वर्ग का आरक्षण/ वर्गवार विवरण संलग्न नहीं है।
अतः तदनुसार उपरोक्त के फलस्वरूप उक्त शैलेश खण्डेलवाल की सहायक लिपिक पर कथित नवीन नियुक्ति संबंधी पत्रावली इस पत्र के साथ मूल रूप में संलग्न कर आपको प्रत्यावर्तित/वापिस की जाती है।
संलग्नकःउक्तवत मूल पत्रावली। भवदीय डॉ०(इन्द्र प्रकाश सिंह सोलंकी) जिला विद्यालय निरीक्षक मथुरा" (Emphasis added)
14. The Committee of Management duly replied to the District Inspector of Schools vide letter of the Manager of the institution dated 19.8.2016 clarifying its stand point-wise thus:
(i) The Government Order dated 15th March, 2012 itself clarifies that the ban on appointments would not operate in respect of minority institutions;
(ii) The selected candidate meets the criteria of academic qualification as prescribed by the State like CCC certificate and those documents are appended;
(iii) There being only three posts in the clerical cadre, reservation would not apply, so there was no question of furnishing any certificate regarding quota;
(iv) The documents appended and the Government Order dated 29.10.2014 would clarify that no post in such circumstances would laps and regarding reservation to Class-3 and Class-4 posts;
(v) It was stated that this would not apply to the recognized minority institution.
15. This reply as was submitted is also reproduced here as under for its appreciation:
"महोदय, उपरोक्त पंत्राक के संबंध में निम्न आधारों पर जबाब दिया जा रहा है-
1- आपके उपरोक्त पत्रांक में नं० 1 कमी शासनादेश संख्याः20/1/91-का-2-2012 कार्मिक अनुभाग-2 लखनऊ दिनांक 15/03/2012 के द्वारा/नियुक्ति पर रोक/ प्रतिबन्ध है।
इस संबंध में शासनादेश पत्रांक -सा०(1)/शि०/5794-5868/2014-15) दिनांक 29.10.2014 जो संलग्नक दो है। अशासकीय अल्पसंख्यक शिक्षण संस्थाओं में की जाने वाली नियुक्ति के अनुमोदन के विषय में शासन द्वारा आदेश संख्या रिट -249/15-12-2012-1601(404)/2012, दिनांक 17 अक्टूबर 2012, 1964/15-12-1601(404)/2012 टी०सी०, दिनांक 17 अक्टूबर 2012 तथा 2032/15-12-2012-1601(404)/2012 टी०सी०, दिनांक 25 अक्टूबर 2012 से यह स्पष्ट है कि कार्मिक विभाग का शासनादेश संख्या-20/1/91-का-2-2012, दिनांक 15 मार्च 2012 अशासकीय सहायता प्राप्त अल्पसंख्यक संस्थाओं में प्रभावी नहीं है।
2- आपके उपरोक्त पत्रांक में नं०2 कमी भर्ती नवीनतम शासनादेश अनुसार सहायक लिपिक पद हेतु शासनादेश द्वारा निर्धारित शैक्षिक योग्यता पूर्ण नहीं है।
इस संबंध में आपको अवगत कराया जा रहा है कि शासन द्वारा निर्धारित शैक्षिक योग्यता पूर्ण है संलग्नक तीन शैक्षिक योग्यता से संबंधित प्रमाण पत्रों की छायाप्रतियाँ है।
3- आपके उपरोक्त पत्रांक नं० तीन कमी आरक्षण कोटा के संबंध में प्रमाण पत्र नहीं है।
इस संबंध में आपको अवगत कराया जा रहा है कि उक्त भर्ती में आरक्षण कोटा न होने के कारण प्रमाण पत्र होना आवश्यक नहीं है।
4- आपके उपरोक्त पत्रांक में नं० चार पर जो कमी दर्शायी गयी है।
इस सम्बन्ध में संलग्नक दो द्वारा स्पष्ट है।
5- आपके उपरोक्त पत्रांक में नं० पांच पर कमी दर्शायी गयी है।
इस सम्बन्ध में आपको अवगत कराना है कि अल्पसंख्यक अशासकीय शिक्षण संस्थाओं में इसकी आवश्यक्ता नहीं है।
अतः उपरोक्त पत्रांक सं० द्वारा उक्त श्री शैलेश खण्डेलवाल की सहायक लिपिक पद पर नवीन नियुक्ति नियमानुसार की गई है।
अतः निवेदन है कि उक्त नियुक्ति को अनुमोदित किया जावे।
भवदीय (मुनीष कुमार जैन ) प्रबंधक"
(Emphasis added)
16. Even thereafter, when no order was passed at the end of District Inspector of Schools, the Committee of Management again wrote to the District Inspector of Schools for granting approval to the petitioners' appointment dated 21st July, 2016 on the post of Assistant Clerk. However, when nothing happened, petitioners approached this Court vide Writ-A No.9127 of 2018 and the Court directed the District Inspector of Schools to take decision within a period of 3 months from the date of presentation of copy of the order. The operative portion of the order dated 3rd April, 2018 passed in Writ-A No.9127 of 2018 is reproduced here as under:
"Considering the facts and circumstances, this writ petition stands disposed of with a direction upon the respondent no.2 to accord consideration to petitioner's claim for appointment to the post of Assistant Clerk, in accordance with law, by means of a reasoned order to be passed, within a period of three months from the date of presentation of certified copy of this order."
17. The petitioners sent the certified copy of the order of this Court vide registered letter dated 7.8.2018 wrote to the District Inspector of Schools and the Manager of the institution and thereafter the District Inspector of Schools vide letter dated 25.8.2018 fixed 6th September, 2018 for hearing. On 6th September, 2018 both the petitioners as well as Committee of Management presented themselves and reminded him of the previous removal of defects and short-comings made by the Committee of Management. Mr.Krishna Pal Singh, District Inspector of Schools, this time passed an order on 25.9.2018 in the same line denying the financial approval to the petitioners' appointment in which as he had denied approval in respect of Assistant Teachers, who were selected and whose case he was also dealing with.
18. It is quite surprising to notice that the objection taken this time were that prior approval was not taken for advertising the vacancy, two newspapers in which advertisement was made had no circulation in the region, the post in question had lapsed for there being no appointment till 2011, triple ''C' certificate was not obtained from DOEACC, there was no valid Committee of Management and that there was ban on appointments.
19. This order passed by the District Inspector of Schools dated 25.9.2018 has been challenged in this petition.
20. Learned counsel for the petitioner has argued following points to assail the order:
(i) Whatever the objections once had been taken by the District Inspector of Schools initially and those objections having been duly replied by the Committee of Management, it was not open for the District Inspector of Schools to take out a new objection to reject the claim of financial approval. Further, when the Government Order itself stated that there was no ban on appointments of vacant positions in respect of the minority institution, the District Inspector of Schools was not justified in taking a ground that there was a ban under that very Government Order;
(ii) The documents regarding academic qualifications were duly supplied by the petitioner, but they were not at all looked into inasmuch as the DOEACC organisation having changed its name as National Institute of Electronics and Information Technology, the triple ''C' certificate, issued by it, would not be rendered to be not akin to the certificate earlier issued by the same organisation;
(iii) The District Inspector of Schools having not taken any objection in respect of the advertisements issued for filling up faculty positions in the institution qua two news dailies, namely, Kalpataru Express and Indian Express, he could not have taken it as an objection to deny the approval now, more especially when in his initial objection raised in his letter dated 19.8.2016, he did not object to the newspapers in which advertisements were made.
(iv) It has come in the judgments of this Court in various writ petitions filed by the faculty members that it is the same Committee of Management that has been disbursing salary to the employees of the institution and, therefore, selection and appointment made by it would not be bad. Such Committee of Management would not become incompetent in the matter of selection and appointment of the petitioner.
21. Per contra, learned Standing Counsel sought defend the order for the reasons assigned therein.
22. Having heard learned counsel for the respective parties and having perused the pleadings and records and the order impugned as well as various judgments cited in the matters of faculty members selected and appointed by the same Committee of Management and the arguments advanced across the Bar, I find three main points in the present case to be arising:
A. Whether the post in question would be taken to have lapsed;
B. Whether petitioner possesses requisite qualification; and C. Whether the District Inspector of Schools could have taken ground other than those he had taken in his objection after he received and examined the papers sent by the management for financial approval to the selection and appointment of the petitioner.
23. Before I deal with the above three points, it is worth mentioning here that insofar as the ban is concerned, the Government Order dated 21st August, 2014 clarified it that the ban as put up on the appointments of vacant positions in recognized Intermediate Colleges under the Government Order dated 15th March, 2012 would not apply to the minority institution. Relevant portion of the Government Order dated 21st August, 2014 is reproduced here as under:
"शासन के आदेश संख्या-रिट-116/15-12-7-1600(574)/2007 दिनांक 12 फरवरी 2014 में यह स्पष्ट किया गया है कि अल्पसंख्यक शिक्षण, संस्थाओं में नियुक्ति प्रधानाचार्य/अध्यापकों के संबंध में माध्यमिक शिक्षा अधिनियम -1921 की धारा-18 चच प्रभावी है। जिसके अनुसार अशासकीय सहायता प्राप्त अल्पसंख्यक विद्यालयों में नियुक्ति किये जाने के लिए पूर्वानुमति दिये जाने का कोई प्राविधान नहीं है। अल्पसंख्यक शिक्षण संस्थाओं में नियुक्ति पर रोक नहीं है। अशासकीय अल्पसंख्यक शिक्षण संस्थाओं में की जाने वाली नियुक्ति के अनुमोदन के विषय में शासन द्वारा आदेश संख्या रिट-240/15-12-2012-160(404)/2012 नियुक्ति 17 अक्टूबर 2012, 1964/15-12-2012-1601(404)/2012 टी०सी०, दिनांक 17 अक्टूबर 2012 तथा 2032/15-12-2012-1601(404)/2012 टी०सी०, दिनांक 25 अक्टूबर 2012 से यह स्पष्ट है कि कर्मिक विभाग का शासनादेश संख्या-20/1/91-का-2-2012 दिनांक 15 मार्च 2012 अशासकीय सहायता प्राप्त अल्पसंख्यक संस्थाओं में प्रभावी नहीं है।"
(Emphasis added)
24. This Government Order was very much within the knowledge of the District Inspector of Schools and, therefore, the finding to the contrary in the order impugned is per se bad in law.
25. Similarly again, this Court has already held in the case of Mohd.Faizan and another vs. State of UP and others, 2013 (5) ADJ 471 that no prior permission is required from the District Inspector of Schools in respect of appointments in minority institutions. Vide paragraph 4 of the said judgment, the Court has noticed the arguments and then expressed the view as under:
"4. Both these grounds have been challenged on the basis of the provisions contained in the UP Intermediate Education Act, 1921 to contend that no prior permission is required insofar as appointments in Minority Institutions are concerned. The second ground is that the relationship with the Members of the General Body of the Society is not the prohibition as contained in Chapter 3 Regulation 4 of the Regulations framed under the 1921 Act. The complaint, made through a representation alleges that the advertisement was not in accordance with law which fact has also been disputed even though no finding has been recorded by the District Inspector of Schools on that ground. It is alleged that the entire procedure was adopted in accordance with the Rules that are applicable, and in absence of any illegality in the selection procedure, the impugned order dated 6.8.2012 deserves to be quashed.
6. Having heard Sri J.J.Munir learned counsel in two of the Writ Petitions and Sri Yatindra in Writ Petition No.60172 of 2002, and the learned Standing Counsel for the State respondents in all the writ petitions, the order of the District Inspector of Schools cannot be sustained, inasmuch as, firstly there is no specific provision for applying Regulation 101 to Minority Institutions but assuming that it is regulatory, permission does not mean prior approval as envisaged under the Rules, which has already been explained in the Division Bench Judgment of Jagdish Singh vs. State, 2006 (2) UPLBEC 1851."
26. Thus the view taken by the District Inspector of Schools that prior approval was not taken for advertising the vacancy and holding the selection by the Committee of Management is not at all tenable. Furthermore, on the aspect of valid Committee of Management, in respect of selection to faculty positions in the institution, this Court has already brushed aside this objection raised in their respect and those judgments have been referred herein above in the earlier part of this judgment. Thus the finding on this aspect is also untenable.
27. Now coming to the first issue, it is worth referring here the title of Chapter-II of the Intermediate Education Act, which is quoted as such herein under:
"Appointment of Heads of Institutions and Teachers"
28. Regulation 1 deals with the qualifications for appointments of head of the institution and teachers as per Appendix-A then Regulation 2 talks of appointment of head of the institution by direct recruitment after reference to the selection committee. Regulation 3 and 3A deal with seniority. Regulation 4 deals with the status of teachers working in Junior High School upgraded as High School. Regulation 5 and 6, both deal with promotion. Regulation 7 has been repealed/deleted. Regulation 8 refers to right of representation in the event a teacher is aggrieved by decision of the Committee of Management taken under Regulations 5, 6 and 7. Regulation 9A deals with confirmation on promotion. Regulation 10 deals with the recruitment on the post of head of the institution and teachers by direct recruitment. Section 11 deals with scrutiny of documents submitted by the candidates for direct recruitment. Regulations 12, 13, 14, 15, 16, 17 and 18 deal with the selection and appointment through direct recruitment on the post of head of the institution and teachers. Regulation 19 empowers the District Inspector of Schools to deny payment of salary if the appointment of teachers and head of the institution is de hors the procedure prescribed under the Chapter and then Section 20 provides that if the management has failed to advertise any sanctioned post, which has fallen vacant in accordance with regulations contained in this very chapter then such vacancy would be deemed to have been surrendered and before any fresh drive of recruitment its creation is to be sanctioned by the Director. Regulation 20 is reproduced here as under:
"20. Where the Committee of Management has failed to advertise any sanctioned post which has fallen vacant in accordance with the regulations contained in this Chapter within a period of three months from the date of occurrence of the vacancy, such post shall be deemed to have been surrendered and shall not be filled up unless its creation is sanctioned afresh by the Director"
(Emphasis added)
29. Thus upon perusal of the aforesaid provision and what I have discussed above, qua various regulations contained in Chapter-II, it is clear that Regulation 20 of Chapter-II of the Intermediate Education Act, 1921 is meant for vacant positions of teachers and head of the institutions. Since, Chapter-II does not deal with the clerical cadre, the stand taken by the District Inspector of Schools that the position of clerk having fallen vacant in 2011 and for three months and no recruitment drive having undertaken within three months, the post would stand lapsed, is absolutely a case of misreading of the provision and resultant misapplication of law. Thus the post against which petitioner has been selected, namely post of assistant clerk cannot be said to have been lapsed.
30. Now coming to the second issue of requisite qualification, the petitioner possesses post-graduate degree in M.Com., Bachelor of Law and also the Computer Course Concept Certificate to be called as CCC certificate from the National Institute of Electronics and Information Technology. It is to be always seen what the rule was and what the qualification was prescribed for at that point of time. The Government Order dated 3rd November, 2015 prescribed a qualification for Assistant Clerk that a candidate should be Intermediate with CCC certificate and typing with speed of 25-30 words per minute.
31. Petitioner in this case having obtained post-graduate degree is certainly Intermediate pass-out besides the fact that he had annexed the mark-sheet of the requisite minimum academic qualifications. So far as the CCC certificate is concerned, he had annexed the certificate of National Institute of Electronics and Information Technology (NIELIT). In the official website of NIELIT, its status has been given as under:
"NIELIT Imphal Centre is cerntre of NIELIT New Delhi, which is an autonomous body of Department of Electronics and Information Technology, Ministry of Communication and Information Technology, Government of India. The centre is located in the capital city of Imphal and is having two extension centres at Churachandpur and Senapati District.
The centre was established as Centre for Electronics Design & Technology (CEDT) in the year 1987 and was renamed as DOEACC in December 2002. The Centre adopted its current name NIELIT since 2011. The campus of NIELIT Centre Imphal is located at Akampat about 5 kms in the south-east direction from the heart of the city. Spread over an area of more than 20 acres, it houses the main Institute Building consisting of Administrative wing, Lecture Halls, Faculty Rooms, Computer Labs, Mechanical Workshop. Electromedical Laboratory, PCB Lab, Servicing cell and other laboratories. Besides the main institute building, the campus houses the staff quarters, students' hostels, electrical substation and other host of essential facilities.
NIELIT Imphal specializes in development of skill in the fields of Electronics and Communication Engineering and Information Technology through various long term and short term courses."
(Emphasis added)
32. In view of the above, therefore, once the institute DOEACC has come to be renamed as NIELIT since the year 2011, the CCC certificate issued by it, would be a valid CCC certificate. It is not the case that this institute that has issued the certificate is not recognized institute, the District Inspector of Schools appears to have pre-decided to reject the financial approval and that is why he did not get verification done of the certificate so produced. Furthermore, there is no objection as such taken in the letter of the District Inspector of Schools dated 19.8.2016 (supra) that petitioner did not know typing at all or did not posses the requisite speed of typing.
33. Insofar as the third issue is concerned, in my considered view, the District Inspector of Schools once takes an objection and the objection has been duly replied, he has to evaluate and appreciate the reply. He cannot make out third and fourth ground to reject the claim of financial approval. From the order impugned, it clearly transpires that he has not dealt with reply of the Committee of Management in its correct perspective and has not cared to appreciate the legal position. This act and conduct of the District Inspector of Schools does not suit to the position he holds because his order would be causing serious prejudice career of a person.
34. Still further I find that in matters of selection and appointments of faculty members of the same college, more or less similar grounds were taken by the District Inspector of Schools, who happened to be the same person, namely, Mr.Krishna Pal Singh, to reject the claim of financial approval, which has been set aside by various orders passed by this Court and all those teachers have been consequently accorded financial approval.
35. In paragraphs 15-16 of the writ petition in which appointment order and consequential joining of the petitioner has been referred to and his continuous functioning, which has not been denied in paragraph 18 of the counter affidavit sworn by Mr. Krishna Pal Singh, the then District Inspector of Schools as in paragraph 18, he has simply stated that "contents of paragraphs 15 and 16 of the writ petition need no comment as these paragraphs under reply being no concerned with the answering respondent" and the Committee of Management in the counter affidavit has admitted appointment order and joining of the petitioner as Assistant Clerk in the institution.
36. The administrative exercise of power is never vested with any unchecked exercise of discretion. The authorities exercising power are required to be reasonable and at the same time, responsible also. They cannot be permitted to be whimsical. A public office entails behind it a very high sense of moral and responsibility in officers occupying such office in discharge of their official duties attached to the office. The act and that too deliberate one to put in leaves to make one fall, is very unfortunate and cannot be approved. The manner in which the District Inspector of Schools approved two newspapers for their being advertisements for selection and appointments of teachers in the same institution, could not have questioned those very newspapers in the matter of advertisement in case of petitioner's post of clerk. Similarly issue of ban should not have been raised once the Government Order itself made it inapplicable to the minority institutions. Rejection of claim of the petitioner in this case only appears to be for rejection sake. We are a rule of law society with a wholly book of governance called ''Constitution of India'. The State/Executive being an important organ under the Constitution must school its officers to conform to the rule of law in their actions. Forcing a party to an unnecessary litigation causes both wastage of public money and public time. Thus, every wrong apparent on the face of record is a serious dent to the rule of law and not only to be remedied by striking down such act or action, but a poor litigant is equally required to be adequately compensated with cost for such unnecessary litigation forced upon him.
37. Under Chapter XXI, Rule 11 of the Allahabad High Court Rules, 1952, there is an ample provision for award of cost. The provision runs as under:
"11. Costs. - In disposing of an application under this Chapter the Court may make such order as to costs as it may consider just."
38. In order to do justice, therefore, rules (supra) provide for the imposition of the cost while disposing of the matter, as may be considered just and proper by the Court. While in the case of Nagar Panchayat Kithore, District Meerut vs. Presiding Authority, Labout Court, UP, Meerut and another, (2007) 1 SAC 567, the Court held that imposition of exemplary costs taking into account of the circumstances of the case as justified. Supreme Court in the case of Salem Advocate Bar Association, Tamil Nadu vs. Union of India, AIR 2005 SC 3353 has held that "so far as awarding of costs at the time of judgment is concerned, awarding of costs must be treated generally as mandatory inasmuch as the liberal attitude of the Courts in directing the parties to bear their own costs had led the parties to file a number of frivolous cases in the Courts or to raise frivolous and unnecessary issues. Costs should invariably follow the even. Costs must be appropriately apportioned. Special reasons must be assigned if costs are not being awarded. Costs should be assessed according to the rule in force".
39. Apart from above, in a catena of the decisions, Supreme Court has held that the Court can award exemplary costs to the litigants who have approached the Court for commission and omission of State authorities. While no litigants can derive any benefit on account of pendency while protection of interim order has been there, the litigants can also not be prejudiced for non-consideration of their case for a service benefit, which is otherwise guaranteed to them as condition of service under the rules, just for wrongful action or inaction on the part of respondent authorities.
40. In the case of RamRameshwari Devi and others vs. Nirmala Devi and others, (2011) 8 SCC 249, the Court observed that "in order to curb uncalled for and frivolous litigation, the courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that court's otherwise scarce and valuable time is consumed or more appropriately, wasted in a large number of uncalled for cases".
41. However, taking lenient view in the matter with the hope that State would do the needful to ensure that its officers are reasonable and logical while dealing with matters in discharge of their administrative duties, I quantify the cost as Rs.25,000/- only to be paid to the petitioner within two months from today. It will be open for the State to recover the cost from the erring officials.
42. In view of the above, writ petition succeeds and is allowed with cost as quantified and directed above. The order passed by the District Inspector of Schools dated 25.9.2018 (Annexure-15 to the writ petition) is hereby quashed. The District Inspector of Schools is directed to accord financial approval to the appointment of the petitioner as Assistant Clerk in the institution, who has already been appointed by the Committee of Management under its order dated 27.7.2016 pursuant to which petitioner submitted his joining on 1.8.2016 and has continuously been working in the institution as such.
43. The financial approval to the appointment of the petitioner will relate back to the date 27.7.2016 and petitioner would be entitled to salary with effect from 1.8.2016.
44. The Committee of Management shall calculate the entire arrears of salary after the approval is accorded. The District Inspector of Schools will ensure that current salary is paid to the petitioner forthwith and the arrears of salary shall also cleared within three months of such approval order.
Order Date :- 6.4.2023 LN Tripathi