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Court No. - 40 Case :- WRIT - A No. - 1039 of 2016 Petitioner :- Gaurav Singh Yadav Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Yogesh Kumar Saxena Counsel for Respondent :- C.S.C.,Vinod Kumar Hon'ble Irshad Ali,J.
1: Heard learned counsel for the petitioner, learned Standing Counsel for respondent Nos.1 to 3 and to Sri Vinod Kumar, learned counsel for respondent No.4.
2: This writ petition was dismissed vide judgment and order dated 31.8.2018, against which, Special Appeal No.974 of 2018 was filed, which was allowed and the matter was remanded vide judgment and order dated 3.10.2018 before the learned Single Judge.
3: Brief fact of the case is that Vimla Devi Brijmohan Singh Inter College, Sarai Prayag, Kannauj is a recognized institution under the provisions of U.P. Intermediate Education Act, 1921. The institution is receiving grant in aid from the State Government, therefore, the provisions of U.P. Act No.24 of 1971 are applicable inasmuch as the provisions of U.P. Secondary Education Services Selection Board Act, 1982 as amended up to date are applicable.
4: The petitioner claims that in pursuance to an advertisement dated 11.6.2015 issued by the respondent No.4 against the vacancy which came into existence due to retirement of Sri Harish Chandra Upadhyay on 31.8.2011, applications were invited. The petitioner being fully eligible and qualified, applied for selection and appointment on Class-III post (Clerk) in the aforesaid institution.
5: The selection committee constituted, selected the petitioner and papers in regard to the selection were submitted before the District Inspector of Schools for the grant of approval as per the provisions contained under Regulation 101 of the Regulation framed under Chapter III of U.P. Intermediate Education Act,
1921.
Neutral Citation No. - 2020:AHC:25366
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6: The District Inspector of Schools vide order dated 28.12.2015, refused to accord approval to the selection and appointment of the petitioner. In the impugned order, it has been recorded that advertisement issued does not disclose the pay scale, nor the qualification prescribed under the government order dated 3.12.2014, therefore, selection proceeding is legally not sustainable. It has further been recorded that the candidate who has been selected does not have C.C.C. certificate, nor he has experience of speed of typing in Hindi/ English of 25/30 words per minute. It has further been recorded that the appointment is contrary to the U.P. Intermediate Education Act and Regulations framed thereunder as well as the government order issued from time to time.
7: Assailing the order passed by the District Inspector of Schools, submission of learned counsel for the petitioner is that prior approval required under Regulation 101 was considered by the Division Bench of this Court in the case of Jagdish Singh etc. Vs. State of U.P. & Others; 2006 (3) ESC 2055 (All) (DB), wherein it has been held that prior approval means approval after the selection and before the appointment, thus, the objection that no prior permission was taken before making selection, is legally not sustainable.
8: His next submission is that the government order which has been referred in the impugned order, requiring the qualification of knowledge of typing in Hindi and English of 25/30 words per minute, the petitioner is having knowledge and in this regard, he submitted certificate before the selection committee and after taking into consideration the material placed before it, the appointment of the petitioner has been made. He next submitted that in regard to the disclosure of pay scale in the advertisement, the provision of Chapter 2 Regulation 2 has been taken into consideration, which is not applicable to the case of the petitioner, in fact, it is in regard to the selection of a teacher. Even otherwise, in case the pay scale is not referred in the advertisement, that does not affect the selection proceeding initiated in pursuance to the advertisement issued in this regard.
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9: On the other hand, learned Standing Counsel submits that the District Inspector of Schools in passing the impugned order has committed no illegality and the order is just and valid. He submits that the provisions of the Regulations have not been followed in making selection of the petitioner, therefore, the order dated 28.12.2015 is just and valid. He submits that the proceeding of selection vitiates in law, therefore, the writ petition being misconceived, is liable to be dismissed.
10: Sri Vinod Kumar, learned counsel for respondent No.4 submits that an application was moved before the District Inspector of Schools for the grant of permission to initiate selection proceeding on the post of Clerk in the institution. The procedure, as required under the regulation was followed and papers were submitted to the District Inspector of Schools and when he did not pass any order, granting prior permission to initiate proceeding, the Committee of Management proceeded to issue advertisement and complete the selection as per the provision contained under the Act and Regulation, thus, his submission is that the District Inspector of Schools by recording perverse finding, has proceeded to reject claim of the selected candidate. He next submitted that the procedure prescribed under law was followed in making selection and the allegations levelled in the impugned order that the Members and Chairman of the selection committee belong to one caste, there is no prohibition in this regard under the Act, therefore, the finding returned on the point is illegal and denotes the perverse mind of the District Inspector of Schools.
11: He next submitted that the District Inspector of Schools while passing the impugned order, has committed manifest error of law in holding that the selected candidate does not have typing experience of 25/30 words per minute. In this regard, certificate was placed before the selection committee and upon examination of the same, selection committee recommended the name of petitioner.
12: I have considered the rival contention advanced by learned counsel for the parties and perused the material on record.
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13: To resolve the controversy, Regulation 101, amended up to date, is being quoted below :-
"101. fu;qfDr izkf/kdkjh fujh{kd ds iwokZuqeksnu ds flok; fdlh ekU;rk izkIr] lgk;rk izkIr laLFkk ds f'k{k.ksRrj (fyfid laoXkZ) in dh fjfDr dks ugha HkjsxkA izfrcU/k ;g gS fd ftyk fo|ky; fujh{kd leLr fjfDr;ksa dh la[;k f'k{kk funs'kd] ek/;fed dks miyC/k djk;sxk rFkk laLFkk esa Nk= la[;k n'kkZrs gq;s inksa dks Hkjs tkus ds vkSfpR; dks Hkh Li"V djsxkA f'k{kk funs'kd ek/;fed lss vkns'k izkIr gksus ij ftyk fo|ky; mDr fjfDr;ksa (prqFkZ Js.kh fjfDr;ksa dks NksM+dj) dks Hkjus gsrq fu;qfDr izkf/kdkjh dks vuqefr iznku djsxk vkSj vuqefr iznku djrs le; 'kklu }kjk fu/kkZfjr vkj{k.k fu;eksa ,ao inksa ds vkSfpR; ds fy;s fu/kkZfjr ekudksa dk ikyu djk;sxkA
prqFkZ Js.kh dh fjfDr;ksa ds lEcU/k esa dsoy vkmV lksflZax ds ek/;e ls O;oLFkk dh tk;sxhA ijUrq mijksDr O;oLFkk v'kkldh; lgk;rk izkIr laLFkkvksa ds lsokdky esa e`r f'k{kd vFkok f'k{k.ksRrj deZpkfj;ksa ds vkfJrksa dh HkrhZ gsrq lqlaxr fu;ekoyh] 1981 le;≤ ij ;Fkkla'kksf/kr ds vUrxZr prqFkZ Js.kh ds fjDr inksa ij dh tkus okyh fu;qfDr ds lEcU/k esa ykxw ugha gksxhA"
14: On perusal of above referred provision, it is evident that full fledged procedure has been prescribed in regard to initiation of selection proceeding. The selection is guided under the statutory provisions of law, which has been brought on the statute book. In pursuance to the amendment made on 4.9.2013, under Regulation 101, it is evident on the face of it that prior to initiation of selection proceedings, the relevant documents relating to existence of vacancies and other requirement is to be sent before the Director of Education (Secondary) through the District Inspector of Schools to obtain permission to initiate selection proceeding.
15: It is admitted case of the parties that at no point of time, endeavour was made to take prior permission to initiate selection proceeding as per amended provision incorporated in Regulation101 of Chapter III of the Regulation framed under U.P.
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Intermediate Education Act, 1921 vide notification dated
13.9.2013.
16: On the point, learned counsel for the petitioner as well as the respondent-Committee of Management tried to justify that prior permission in regard to initiation of selection proceeding is not required, as has been held in the case of Jagdish Singh (Supra). He placed reliance upon paragraph 22 of the said judgment, which is being quoted below :-
"22. In view of the aforesaid we are of the considered opinion that prior approval contemplated in Regulation 101 as prior approval by the District Inspector of Schools after completion of process and selection and before issuance of appointment letter by the selected candidate."
17: In this regard, it is relevant to point out that in the case of Jagdish Singh (Supra), the amended provision of Regulation 101 dated 4.9.2013 was not under consideration, therefore, the ratio of the judgment in the light of the amendment, is not applicable to the present facts and circumstances of the case. 18: Here in the present case, on the date of initiation of selection proceeding, amendment was incorporated in the statute book on 4.9.2013, which requires prior permission to be obtained from the District Inspector of Schools after submitting requisite papers to Director of Education (Secondary) to initiate proceeding of selection on the Class-III post in a recognized institution under the provisions of U.P. Intermediate Education Act, 1921 and regulations framed thereunder.
19: In view of the above, on short ground that the selection proceeding initiated to select the petitioner is contrary to the amended provisions of law, therefore, I am of the considered view that the selection proceeding vitiates in law on this ground alone, therefore, other questions, which have been placed before this Court are not required to be taken into consideration. 20: Accordingly, the writ petition lacks merit and is hereby dismissed.
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21: However, it is left open to the Committee of Management to initiate fresh selection proceeding in accordance with the provision referred hereinabove and to conclude the same within a period of three months from the date of production of certified copy of this order.
Order Date :- 6.2.2020
Gautam