High Court · 2010

1. Heard Shri Narendra Kumar, learned counsel for the petitioner and Ms. Tanu Roopanwal, learned Standing Counsel for the State- respondents.

2. The present writ petition is filed questioning the order dated 01.11.2012 passed by the second-respondent directing the respondents to approve the appointment of the petitioner and pay salaries.

3. The petitioner was appointed after the Management has notified the vacancy of Class-IV employees in August 2006 and after the selections on 26.02.2007 and subsequently the papers were sent to the District Inspector of Schools for approval and in fact the respondents have not passed any order on the said approval, therefore, the petitioner has approached this Court vide Writ A No.2453 of 2011. The said writ petition was disposed of with the following directions:- "Heard learned counsel for the parties and with their consent, this petition is being finally disposed off. It is pleaded that on occurrence of a vacancy of a Class IV post in August 2006 as a result of the retirement of the incumbent in B.N.B. Inter College, Madiyahoon, Jaunpur, a duly recognised and aided institution, the Management after obtaining permission of the DIOS vide order dated 6th of February 2007, advertised the said post and on the basis of quality point marks, the petitioner was selected and appointment letter dated 26th of February 2007 was issued and the entire papers were sent to the DIOS, who in turn, referred the matter to the Joint Director of Education vide covering letter dated 12.12.2009. However, the Joint Director of Education by the impugned order dated 9th of August 2010, has returned the papers on the ground that the procedure provided under Group 'D' Employees Service Rules, 1985, as amended, have not been followed with the observation that the rules have to be followed. However, learned counsel for the petitioner claims that the rules would not apply in view of the Division Bench decision of this Court rendered in the case of Rajiv Kumar vs. State of U.P. & others (Special Appeal (D) no. 970 of 2010] decided on 9th December 2010. Since the claim has not been rejected, but has merely been returned for compliance under rules, the petitioner and the Committee of Management may approach the Joint Director of Education alongwith the decision of this Court, who may take a reasoned decision thereon within a period of six weeks from the date of submission of a certified copy of the order. It is clarified that the Court has not examined the merits of the claim of the petitioner. "

4. Based on the above said order, the respondents have passed the present impugned order dated 01.11.2012. Aggrieved by the same, the present writ petition is being filed. Learned counsel for the petitioner has contended that the impugned order is contrary to the observations made by this Court in (Rajeev Kumar Vs. State of U.P. and Others) in Special Appeal Defective No.970 of 2010, wherein the division bench of this Court has categorically held that for filling up the post of Class-IV (Group-D) posts the employees Rules, 1985 would not apply. Further, the observation of the respondents that only 17 posts were sanctioned is also contrary to the record, though he has specifically contended in paragraph-20, but proper reply has not been given in the counter affidavit.

5. Further, learned counsel has submitted that while passing the impugned order the respondents have not specifically made any averment with regard to Rule and Reservation. In fact before filling up of the post, the fifth-respondent has obtained the permission from the District Inspector of Schools and after the said posts were advertised and selection was made, as the petitioner who participated in the selection process and appointed in the post advertised as per the permission granted by the District Inspector of Schools, now respondents cannot reject on the ground that the selection is contrary to the Rules and Regulations.

6. Learned counsel appearing on behalf of the State has made submissions based on the averments made in the counter affidavit that the appointment was not in accordance with the Rules, by following Rule of Reservation. The appointment is also beyond the sanctioned posts as per the Government vide order dated 21.11.1991. According to the said Government Order the maximum 17 posts of Class-IV employees are available to the recognized Institution of Intermediate College. Hence, the present appointment is more than the said Government Order, accordingly, the impugned order dated 01.11.2012 have been passed rejecting the approval orders which are in accordance with the Government Orders.

7. Considering the submissions and perusal of the record, though, the petitioner has specifically contended that this Court in Writ A No.2453 of 2011 directed the respondents to consider the claim of the petitioner, in view of the observations made by the division bench in (Rajeev Kumar Vs. State of U.P. and Others) in Special Appeal Defective No.970 of 2010, but the respondents have not considered the said judgment while passing the impugned order dated 01.11.2012. Apart from that it is also made clear that in the counter affidavit no specific averment has been made with regard to excess posts, as how many posts are sanctioned and how may persons are working in the Institution and the permission granted for filling up of the posts is also not denied by the respondents, hence they ought to have consider the appointment of the petitioner based on the observations made by this Court in the above referred division bench order.

8. Having considered the said submissions, the impugned order dated 01.11.2012 is set aside, remanding the matter to the third- respondent to pass order, once again after issuing notice to the petitioner as well as to the fifth-respondent. This exercise should be completed within a period of two months from the date of a receipt of a copy of this order.

9. Accordingly, the present writ petition is disposed of. Order Date :- 28.7.2025 AdityaG (Donadi Ramesh,J.) ADITYA GAUTAM High Court of Judicature at Allahabad

1. Heard Shri Narendra Kumar, learned counsel for the petitioner and Ms. Tanu Roopanwal, learned Standing Counsel for the State- respondents.

2. The present writ petition is filed questioning the order dated 01.11.2012 passed by the second-respondent directing the respondents to approve the appointment of the petitioner and pay salaries.

3. The petitioner was appointed after the Management has notified the vacancy of Class-IV employees in August 2006 and after the selections on 26.02.2007 and subsequently the papers were sent to the District Inspector of Schools for approval and in fact the respondents have not passed any order on the said approval, therefore, the petitioner has approached this Court vide Writ A No.2453 of 2011. The said writ petition was disposed of with the following directions:- "Heard learned counsel for the parties and with their consent, this petition is being finally disposed off. It is pleaded that on occurrence of a vacancy of a Class IV post in August 2006 as a result of the retirement of the incumbent in B.N.B. Inter College, Madiyahoon, Jaunpur, a duly recognised and aided institution, the Management after obtaining permission of the DIOS vide order dated 6th of February 2007, advertised the said post and on the basis of quality point marks, the petitioner was selected and appointment letter dated 26th of February 2007 was issued and the entire papers were sent to the DIOS, who in turn, referred the matter to the Joint Director of Education vide covering letter dated 12.12.2009. However, the Joint Director of Education by the impugned order dated 9th of August 2010, has returned the papers on the ground that the procedure provided under Group 'D' Employees Service Rules, 1985, as amended, have not been followed with the observation that the rules have to be followed. However, learned counsel for the petitioner claims that the rules would not apply in view of the Division Bench decision of this Court rendered in the case of Rajiv Kumar vs. State of U.P. & others (Special Appeal (D) no. 970 of 2010] decided on 9th December 2010. Since the claim has not been rejected, but has merely been returned for compliance under rules, the petitioner and the Committee of Management may approach the Joint Director of Education alongwith the decision of this Court, who may take a reasoned decision thereon within a period of six weeks from the date of submission of a certified copy of the order. It is clarified that the Court has not examined the merits of the claim of the petitioner. "

4. Based on the above said order, the respondents have passed the present impugned order dated 01.11.2012. Aggrieved by the same, the present writ petition is being filed. Learned counsel for the petitioner has contended that the impugned order is contrary to the observations made by this Court in (Rajeev Kumar Vs. State of U.P. and Others) in Special Appeal Defective No.970 of 2010, wherein the division bench of this Court has categorically held that for filling up the post of Class-IV (Group-D) posts the employees Rules, 1985 would not apply. Further, the observation of the respondents that only 17 posts were sanctioned is also contrary to the record, though he has specifically contended in paragraph-20, but proper reply has not been given in the counter affidavit.

5. Further, learned counsel has submitted that while passing the impugned order the respondents have not specifically made any averment with regard to Rule and Reservation. In fact before filling up of the post, the fifth-respondent has obtained the permission from the District Inspector of Schools and after the said posts were advertised and selection was made, as the petitioner who participated in the selection process and appointed in the post advertised as per the permission granted by the District Inspector of Schools, now respondents cannot reject on the ground that the selection is contrary to the Rules and Regulations.

6. Learned counsel appearing on behalf of the State has made submissions based on the averments made in the counter affidavit that the appointment was not in accordance with the Rules, by following Rule of Reservation. The appointment is also beyond the sanctioned posts as per the Government vide order dated 21.11.1991. According to the said Government Order the maximum 17 posts of Class-IV employees are available to the recognized Institution of Intermediate College. Hence, the present appointment is more than the said Government Order, accordingly, the impugned order dated 01.11.2012 have been passed rejecting the approval orders which are in accordance with the Government Orders.

7. Considering the submissions and perusal of the record, though, the petitioner has specifically contended that this Court in Writ A No.2453 of 2011 directed the respondents to consider the claim of the petitioner, in view of the observations made by the division bench in (Rajeev Kumar Vs. State of U.P. and Others) in Special Appeal Defective No.970 of 2010, but the respondents have not considered the said judgment while passing the impugned order dated 01.11.2012. Apart from that it is also made clear that in the counter affidavit no specific averment has been made with regard to excess posts, as how many posts are sanctioned and how may persons are working in the Institution and the permission granted for filling up of the posts is also not denied by the respondents, hence they ought to have consider the appointment of the petitioner based on the observations made by this Court in the above referred division bench order.

8. Having considered the said submissions, the impugned order dated 01.11.2012 is set aside, remanding the matter to the third- respondent to pass order, once again after issuing notice to the petitioner as well as to the fifth-respondent. This exercise should be completed within a period of two months from the date of a receipt of a copy of this order.

9. Accordingly, the present writ petition is disposed of. Order Date :- 28.7.2025 AdityaG (Donadi Ramesh,J.) ADITYA GAUTAM High Court of Judicature at Allahabad