Allahabad High Court
Vipin Kumar Mishra vs State Of U.P.Through Secy.Deptt.Of ... on 4 December, 2018
Equivalent citations: AIRONLINE 2018 ALL 5376
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 23 A.F.R. Case :- SERVICE SINGLE No. - 28705 of 2017 Petitioner :- Vipin Kumar Mishra Respondent :- State Of U.P.Through Secy.Deptt.Of Secondary Edu.Lko.& Ors. Counsel for Petitioner :- Saurabh Shankar Srivastav Counsel for Respondent :- C.S.C.,Amarendra Kumar Bajpai Hon'ble Irshad Ali,J.
1: Heard learned counsel for the petitioner, learned Standing counsel on behalf of the respondent No.1 to 4 and to Sri A.K. Bajpai, learned Advocate who appeared alleging himself to be representing the Committee of Management of Lucknow Christian College, Lucknow.
2: In the writ petition, an amendment application was filed for adding certain facts, grounds and prayer in the writ petition and to file the amended writ petition. In pursuance thereof, amended writ petition was filed before this Court and the application is allowed.
3: Factual matrix of the case is that Lucknow Christian Inter College is an institution recognized under the provisions of U.P. Intermediate Education Act, 1921. The institution is receiving aid from the State Government, therefore, the provision of U.P. Act No.24 of 1971 is applicable to the said institution. The institution is a minority institution, therefore, in view of the embargo under Section 30 of the U.P. Act No.5 of 1982, the provisions of U.P. Secondary Education Services Selection Board Act, 1982 are not applicable.
4: A vacancy on the post of Lecturer (Hindi) came into existence due to retirement of one Dr. Tuka Ram Verma on 30.6.2009.......
5: The Committee of Management resolved to make regular selection on the post of Lecturer (Hindi) in the aforesaid institution in its meeting held on 23.10.2013. The Committee of Management of the College authorized the Manager of the institution to take prior permission to initiate selection proceeding on the post of Principal. The Manager of the institution requested to the Regional Joint Director of Education to grant prior permission to initiate selection on the aforesaid post.
6: The District Inspector of Schools vide order dated 25.10.2011 accorded permission to initiate proceeding by issuing advertisement as per the regulations, inviting applications from the eligible and qualified candidates against the existing vacancies.
7: Thereafter, after the prior permission to initiate selection process by advertising the vacancies in one Hindi newspaper and one English newspaper, the Manager of the institution published advertisement in Aaj (Hindi) and The Pioneer (English) on 8.11.2014, whereby applications were invited from the eligible and qualified candidates to apply for selection on the post of Lecturer (Hindi).
8: In pursuance to the advertisement issued, the petitioner along with the other candidates applied, being fully eligible and qualified for the selection and appointment on the post of Lecturer (Hindi) of the institution.
9: A selection committee was constituted in accordance with the provisions contained under the regulations framed under U.P. Intermediate Education Act, 1921 governing the minority institution recognized under the aforesaid provision. The selection committee selected the petitioner on the post of Lecturer (Hindi).
10: The Manager of the Committee of Management of the institution vide letters dated 3.8.2014 and 5.12.2014 forwarded the relevant papers in regard to the selection of the petitioner to the District Inspector of Schools, Lucknow for the grant of approval as required under Section 16-FF of the U.P. Intermediate Education Act, 1921.
11: In spite of best efforts made by the petitioner, no order whatsoever was passed by the District Inspector of Schools on the papers submitted by the Manager of the Committee of Management for the grant of approval then he filed writ petition alleging therein that in view of the provisions contained under Regulation 17(g), on submission of papers before the District Inspector of Schools, more than 1 month expired, thus, his appointment is deemed approved in view of the deeming provision contained under the aforesaid regulation.
12: Even thereafter, when no payment was made, he filed representation before the District Inspector of Schools.
13: Thereafter, after the expiry of period of 1 month, taking shelter of deeming clause, the Committee of Management issued appointment letter to the petitioner on 12.12.2014 to join on the post of Lecturer (Hindi).
14: In pursuance to the appointment letter issued to the petitioner, he joined in the institution and started discharging duties on the post of Lecturer (Hindi) but no payment of salary whatsoever was made to him.
15: Feeling aggrieved, the petitioner filed Writ Petition No.10753 (S/S) of 2016 before this Court which was finally disposed of vide judgment and order dated 16.5.2016, which is being quoted below:
"Heard learned counsel for the parties.
The petitioners claim to have been appointed as Lecturers in minority educational institution. According to them the papers have been sent to the District Inspector of Schools for approval under Section 16-FF of the U.P. Intermediate Education Act, 1921.
If it is so, let the District Inspector of School take a decision as per law within a period of two months from the date of receipt of a certified copy of this order after giving opportunity of hearing to the Committee of Management of Lucknow Christian College, Golaganj, Lucknow.
The writ petition is disposed of in the aforesaid terms."
16: The copy of the order passed by this Court was served upon the District Inspector of Schools and thereafter the petitioner was ensured payment of salary till the month of December, 2016.
17: In pursuance to an order of District Inspector of Schools, directing single hand operation of the salary account and directed to ensure payment of salary to the petitioner and one Sri Vishal Kumar Yadav.
18: Salary of the petitioner from the month of January, 2017 onwards has not been paid to him for the reason best known to the respondents, therefore, the present writ petition has been filed on the prayer that the respondents be directed to release the salary of the petitioner from the month of January, 2017 along with interest.
19: For ensuring the payment of salary from the month of January, 2017, the petitioner has represented his claim before the District Inspector of Schools which is lying pending consideration and no order whatsoever has been passed till date.
20: On perusal of the order of single hand operation dated 28.5.2016, it has further been transpired that the Committee of Management with Dr. R.R. Lyall as Manager was recognized on 3.2.2015 by the Registrar, Firms, Societies and Chits. It has further been recorded in the order of single hand operation that on 27.9.2014, the Committee of Management of Dr. R.R. Lyall was not in existence, thus, the letter of the Bishop dated 4.3.2014 is wholly without jurisdiction.
21: In compliance of the order passed by the District Inspector of Schools of single hand operation, the petitioner was paid salary till the month of December, 2016 and thereafter, w.e.f. the month of January, 2017, the salary of the petitioner has been withheld.
22: In the counter affidavit filed on behalf of the respondent Nos.1 to 3, only objection has been raised that the Committee of management has initiated selection proceeding without taking fresh sanction of the vacancy after the expiry of 3 months from the date of occurrence of vacancy, thus, post is deemed to have been surrendered and shall not be filled up unless its creation is sanction afresh by the Director.
23: The vacancy of Lecturer (Hindi) came into existence on 1.7.2009, which was advertised on 8.11.2014, thus, the entire selection proceeding vitiated in law due to non grant of sanction afresh by the Director. The Committee of Management (respondent No.5) has also filed counter affidavit, wherein, it has been stated that the Committee of Management of Dr. S.W. Prasad was not competent to initiation selection on the post of Lecturer (Hindi), thus, the selection committee constituted by him does not have valid sanctity in the eyes of law.
24: It has further been stated that the Chairman of the Committee of Management, who is the Bishop, his nominee was also not called/included in the selection committee constituted for the interview of the candidate for selection and appointment.
25: Further recital has been made in regard to the cancellation of appointment of Principal and filing of Writ Petition before this Court being Writ Petition No.298 (S/S) of 2015, Writ Petition No.2594 (S/S) of 2015 and Writ Petition No.3422 (S/S) of 2015, which were withdrawn on 15.9.2017 with the liberty to approach the State Government under Section 16-E(10) for his redressal and at subsequent point of time, State Government constituted a special committee comprising of Regional Joint Director of Education, District Inspector of Schools and District Inspector of Schools-II to consider and pass appropriate order and in this regard, an order was passed on 3.1.2017, which has been disputed by the Regional Joint Director of Education that he has not passed any order on the said date, therefore, deciding the issue of appointment of Principal, the matter has been redeligated to the State Government to pass a fresh order in accordance with the provisions contained under Section 16-E(10) within a period of 2 months from the date of production of certified copy of the order.
26: It has further been recorded in regard to the several other appointments made by the committee headed by Dr. S.W. Prasad.
27: On perusal of the contents of the counter affidavit filed by respondent Nos.1 to 3, main objection is that the Committee of Management headed by Dr. S.W. Prasad was not competent to constitute a selection committee and to make selection against the existing vacancy in the institution.
28: In rebuttal, the petitioner has denied the allegations of the counter affidavit with the recital that the respondent No.5 has concocted a malicious story to mislead this Court, in fact, the Committee of Management was duly elected and recognized Committee of Management at the time of initiation of proceeding of selection.
29: To resolve the controversy involved in the present writ petition, certain facts of the case in regard to the post of Principal is necessary to be the part of this judgment, which has been decided by means of the same date judgment.
30: On perusal of the record of the writ petition filed by the Principal of the institution in regard to the constitution of Committee of Management with Dr. S.W. Prasad as Manager, which was decided vide order dated 9.10.2014 by the Deputy Registrar, Firms, Societies and Chits whereby the Committee of Management of Dr. S.W. Prasad was held to be the valid Committee of Management. The order of the Deputy Registrar, Firms, Societies and Chits holding the Committee of Management of Dr. S.W. Prasad to be valid, has never been challenged before any Forum, thus, has attained finality in the eyes of law, therefore, the Regional Joint Director of Education while proceeding to review the earlier order would have considered that whether Dr. R.R. Lyall was Manager of the Committee of Management or Dr. S.W. Prasad under the relevant provisions of law. In this regard, there is no finding at the level of Regional Joint Director of Education to that effect. In absence of such finding, the application for review of the earlier order on the behest of Dr. R.R. Lyall, alleging himself to be Manager was not entertainable on the ground that the appointment of the petitioner has been made by a Committee of Management duly elected and recognized. On perusal of the order dated 9.10.2014 of the Deputy Registrar, Firms, Societies and Chits, it is well established that the Committee of Management of Dr. S.W. Prasad who has made selection of the petitioner is duly elected and recognized Committee of Management.
31: To decide the merit of the selection of the petitioner, it is relevant to look into the provisions governing the initiation of selection proceeding in a recognized minority institution under the Act of 1921. The provisions of Section 16-FF of U.P. Intermediate Education Act, 1921 and Regulation 17 of Chapter-II of the Regulations framed under U.P. Intermediate Education Act, 1921 are relevant provision to be taken into consideration in making selection and appointment on the post of Principal, Lecturer and Assistant Teacher in a recognized institution under U.P. Intermediate Education Act, 1921.
32: To resolve the controversy involved in the present writ petition, the provision of Regulation 17 of Chapter-II of the Regulations framed under U.P. Intermediate Education Act, 1921 is quoted below:
"17. The procedure for filling up the vacancy of the head of institution and teachers by direct recruitment in any recognised institution referred to in Section 16-FF, shall be as follows:
(a) After the management has determined the number of vacancies to be filled up by direct recruitment, the posts shall be advertised by the manager of the institution in at least one Hindi and one English newspaper having adequate circulation in the State giving particulars as to the nature (i.e., whether temporary/permanent) and number of vacancies, descriptions of post (i.e., Principal or Headmaster, Lecturer or L.T., C.T. or J.T.C./B.T.C. grade teacher including the subject or subjects in which the lecturer or teacher is required), scale or pay and other allowances, experience required minimum qualification and age prescribed, if any, for the post and prescribing a date which should not ordinarily be less than two weeks from the date of advertisement) by which the applications shall be received by the Manager. A copy of the advertisement shall be simultaneously sent to the Inspector concerned.
Notes-(1) All vacancies in the posts of teachers and the head of institution existing at the time of advertisement shall be advertised.
(2) No new post shall be advertised unless sanction of the appropriate authority for the creation thereof has been received by the management.
(b) All applications shall be made in the form prescribed by the management and shall contain all necessary particulars about qualifications, teaching experience and other activities and be accompanied by certified copies of all the necessary certificates and testimonials. The management may charge cost of the application form not exceeding the amount referred to in Clause (2) of Regulation 10.
(c) An application by a person employed in an institution and applying for a post elsewhere or in the same institution shall not be withheld by his employer but shall be forwarded to the authority concerned immediately.
(d) All applications received from the candidates shall be serially numbered and entered in a register and particulars of the candidates noted under appropriate columns. The candidates to be called for interview shall be seven for each post (the number of applicants, permitting). The Manager shall intimate by registered post all the members of the Selection Committee as well as all such candidates as are called for interview, the date, time and place of selection at least ten days before it is held. The Selection Committee will hold the selection accordingly. If on account of any unavoidable reason, the expert selected by the Committee of Management under Clause (a) of the proviso to sub-section (1) of Section 16-FF is unable to attend the selection on the date fixed the meeting of the Selection Committee shall be postponed.
(e) The provisions of Clauses (e) and (f) of Regulation 10 and those of Regulations 11, 12 and 16 shall mutatis mutandis apply to selections made under this regulation.
(f) A panel of experts consisting of fifteen or more persons selected from category (a) referred to in Regulation 14 shall be drawn by the Director for each region and be sent to the Regional Deputy Director of Education concerned, The Regional Deputy Director of Education shall out of the said panel communicate the names of three experts in a sealed cover to the management through its Manager as soon as he receives any request for supply of names of experts from him. The regional panel of experts shall, however, remain valid until it is replaced by a new one.
(g) किसी पद के लिए समस्त अभ्यर्थियों का साक्षात्कार कर लिए जाने के पश्चात चयन समिति का सभापति किये गए चयन की कार्यवाहियों पर दो प्रतियों में एक टिप्पणी तैयार कराएगा जिसमे चुने गए अभ्यर्थी का नाम तथा प्रतीक्षा सूचि के दो अन्य अभ्यर्थियों के नाम उल्लिखित किये जायेंगे, इस प्रकार तैयार के गई टिप्पणी पर चयन समिति के सभापति तथा अन्य सदस्य हस्ताक्षर करेंगे और अपना अपना पूर्ण नाम, पद नाम और पता तथा दिनांक उल्लिखित करेंगे, सभापति इस टिप्पणी की एक प्रति तथा विनियम 10 के खंड (च) में निर्दिष्ट विवरण की एक प्रति धारा 16 - चच के अधीन यथा अपेक्षित अनुमोदन के लिए, यथास्थिति, संभागीय उप-शिक्षा निदेशक या निरीक्षक को तुरंत अग्रसारित करेगा, सम्बंधित अभिलेखों के प्राप्त होने के दिनांक के एक माह के भीतर यथास्थिति संभागीय उप शिक्षा निदेशक या निरीक्षक, उन पर अपना निर्णय दे देंगे और ऐसा न करने पर अनुमोदन प्रदान कर दिया गया समझा जायेगा"
33: On perusal of the provisions contained under the aforesaid regulation, the existing vacancy is to be advertised in two newspapers one in Hindi and other in English.
34: In the present case, the vacancy was advertised in daily newspaper Aaj (Hindi) and The Pioneer (English) on 8.11.2014, which are widely circulated newspapers.
35: The candidates, eligible and qualified, including the petitioner, applied for and a selection committee constituted under the Act of 1921 on the basis of quality point marks, selected the petitioner and recommended for the appointment. Papers were duly submitted to the District Inspector of Schools for the grant of approval as required under Section 16-FF, which is being quoted below:
""16-FF. Savings as to minority institutions.-(1) Notwithstanding anything in sub-section (4) of Section 16-E, and Section 16-F, the Selection Committee for the appointment of a Head of Institution or a teacher of an institution established and administered by a minority referred to in Clause (1) of Article 30 of the Constitution shall consist of five members (including its Chairman) nominated by the Committee of Management :
Provided that one of the members of the Selection Committee shall-
(a) in the case of appointment of the Head of an institution, be an expert selected by the Committee of Management from a panel of experts prepared by the Director;
(b) in the case of appointment of a teacher, be the Head of the Institution concerned.
(2) The procedure to be followed by the Selection Committee referred to in sub-section (1) shall be such as may be prescribed.
(3) No person selected under this section shall be appointed, unless-
(a) in the case of the Head of Institution the proposal of appointment has been approved by the Regional Deputy Director of Education; and
(b) in the case of a teacher such proposal has been approved by the Inspector.
(4) The Regional Deputy Director of Education or the Inspector, as the case may be, shall not withhold approval for the selection made under this section where the person selected possesses the minimum qualification prescribed and is otherwise eligible.
(5) Where the Regional Deputy Director of Education or the Inspector, as the case may be, does not approve of a candidate selected under this section the Committee of Management may, within three weeks from the date of receipt of such disapproval, make a representation to the Director in the case of the Head of Institution, and to the Regional Deputy Director of Education in the case of teacher.
(6) Every order passed by the Director or the Regional Deputy Director of Education on a representation under sub-section (5) shall be final.""
36: On perusal of Section 16-FF, it is evident on the face of it that without approval of the District Inspector of Schools, no appointment on the post of Lecturer or Assistant Teacher in L.T. Grade can be made in the institution recognized under the Act of 1921. It is further clarified that on submission of papers in case the District Inspector of Schools do not pass any order within a period of 1 month, then the selection is deemed to have been approved.
37: Here in the present case, the papers were submitted by the Manger of the Committee of Management vide letter dated 3.8.2014 and 5.12.2014 and even on expiry of more than 1 month, no order whatsoever was passed, thus, there is no hesitation to hold to this Court that on expiry of one month period, the selection of the petitioner is deemed approved, thus, the Committee of Management issued an appointment letter to the petitioner on 12.12.2014 and in pursuance thereof, the petitioner joined in the institution and is working since then.
38: Under the direction issued by this Court in a writ petition filed by the petitioner and other similarly situated Lecturers and Teachers of the institution, an order was passed by the District Inspector of Schools, directing single hand operation of salary and in pursuance thereof, the petitioner has been paid salary till December, 2016.
39: In regard to the objection raised by the respondent Nos.1 to 3 that in view of the provision contained under Regulation 20 of Chapter-II of the Regulations framed under the Act of 1921, there is a rider that in case from the date of occurrence of vacancy, 3 months period has expired then the selection can be made with the prior concurrence to sanction the post afresh from the Director of Secondary Education.
40: In this regard, learned counsel for the petitioner placed reliance in the case of C/M, St. John's Girls' Inter College Vs. Joint Director of Education passed in Writ-A No.29428 of 2017. Relevant paragraphs are being quoted below:
"Indisputably, the institution is a minority institution. There is no dispute that the post on which the petitioner has made appointment is a sanctioned post and one regular teacher Smt. V. Ivan was working on the said post and she attained her age of superannuation on 30th June, 2015. It is also not disputed that the Committee of Management of the institution has sent three successive communications to the District Inspector of Schools seeking his permission to make the advertisement. This fact has been admitted in pargraph-13 of the counter affidavit. Section 16-FF(4) of the Act, 1921 came to be considered in a large number of cases by this Court. A simple reading of Section 16-FF(4) would show that the District Inspector of Schools has been empowered to withhold the selection only on the ground of lack of qualification of teachers. As regards Regulation 20 of Chapter II of the Regulations framed under the Act, 1921, it came to be considered in the above mentioned three cases. The consistent view taken by this Court is that the Regulations are merely guidelines in view of the explicit statutory provision, which has used the words that the District Inspector of Schools can withhold the approval only on the ground of lack of qualification.
In view of the above, I am of the opinion that the view taken by the District Inspector of Schools-II, Agra, the second respondent, declining approval is unsustainable. Accordingly, the impugned order dated 05th December, 2016 passed by the second respondent is set aside. The matter is remitted to the second respondent to take afresh decision in the light of the observations made herein-above within two months from the date of communication of this order.
Thus, the writ petition is allowed. No order as to costs."
41: Likewise in the present case, on the request made by the Manager of the institution to initiate selection proceeding, permission was accorded by the District Inspector of Schools vide order dated 25.10.2011, which has not been disputed by either of the parties in the pleading, thus, the ratio of the judgment referred hereinabove is fully applicable to the facts and circumstances of the case.
42: As regards Regulation 20 of Chapter-II of the Regulations framed under the Act of 1921, it came to be considered in three cases [Karunesh Kumar Singh Vs. State of U.P. and others, (2005) 3 UPLBEC 2361; Mukesh Singh Chauhan and others Vs. State of Uttar Pradesh and others, 2006 LawSuit (All) 769; and Anjana Kumar Vs. State of Uttar Pradesh and others, 2006 LawSuit (All) 952]. The consistent view taken by this Court is that the Regulations are merely guidelines in view of the explicit statutory provision, which has used the words that the District Inspector of Schools can withhold the approval only on the ground of lack of qualification.
43: In view of the facts and circumstances narrated above, the District Inspector of Schools, Lucknow is directed to consider and pass appropriate reasoned speaking order in regard to the payment of salary to the petitioner w.e.f. January, 2017 after affording an opportunity of hearing to the affected parties within a period of 2 months from the date of production of certified copy of this order in the light of the observation made above.
44: It is however made clear that in case the District Inspector of Schools, Lucknow finds the case of the petitioners in the four-corners of the finding recorded above, he shall release the payment of salary inasmuch as the arrears of salary to the petitioners within a further period of 3 weeks from the date of passing of order by him.
45: With the aforesaid observations and direction, the writ petition is finally disposed of.
Order Date :- 04.12.2018 Gautam