Shoraj Singh v. State of U.P. Others) and the said writ petition was disposed of vide order

1. Heard Sri G.K. Singh, learned Senior Counsel assisted by Sri Sushil Kumar Tripathi, learned counsel for the petitioner and learned Standing Counsel.

2. The present writ petition has been filed by the petitioner for the following reliefs:- "A. Issue a writ, order or direction in the nature of certiorari quashing the impugned decision dated 22.01.2010 issued by the respondent no. 2. B. Issue a writ, order or direction in the nature of mandamus directing the respondents to immediately approve the appointment of the petitioner on the post of Assistant Clerk in Jawahar Inter College, VIII and post Buklana, District Bulandshahr."

3. There are three sanctioned posts of clerks exist in the 5th respondent's college, one being Head Clerk and the other two posts of Assistant Clerks. One Sri Meer Singh working as Head Clerk in the 5th respondent college had retired on attaining the age of superannuation on 31.03.2007. Consequently, Sohan Pal Singh, Assistant Clerk, was promoted to the said post. Accordingly, a vacancy of Assistant Clerk is pending in the 5th respondent's college. According to Regulation 2 of Chapter 3 of Secondary Education Act 1921, 50% posts goes to promotional avenue from Class 4 to Class 3. Including Head Clerk when there are three posts, two posts would go to promotional candidates but in the institution when there are no eligible 4th Class employees available for promotion to the post of Assistant Clerk, the Committee of Management has sent a letter to the District Inspector of School, Bulandshahr for approval of notification of posts. Accordingly, the District Inspector of Schools, Bulandshahr vide order dated 12.06.2008 had granted permission to fill up the posts of Assistant Clerk in general category by direct recruitment. Based on the said permission granted by the 4th respondent, the 5th respondent has made an advertisement in daily newspaper on 07.10.2008 inviting applications for the post of Assistant Clerk subject to the selection process. The committee selected the petitioner for the post of Assistant Clerk, and accordingly, sent a letter to the District Inspector of School, Bulandshahr for approving the selection of the petitioner on 20.02.2009. Despite repeated requests, the 4th respondents has not accorded permission to approve the appointment of the petitioner. The petitioner has approached this Hon'ble Court by filing a Writ A No. 52032 of 2009 (Shoraj Singh Vs. State of U.P. & Others) and the said writ petition was disposed of vide order dated 08.10.2009, which is reproduced hereinunder:- "Heard Sri Ashok Khare, learned Senior Advocate, assisted by Sri Swapnil Kumar, for the petitioner and learned Standing Counsel for Respondent Nos. 1 to 4. Keeping in view the nature of the submissions advanced, it is not necessary to issue notice to the respondent No.5. The petitioner claims that he was selected by the respondent No.5 - Committee for being appointed as an Assistant Clerk in Jawahar Inter College, Buklana, Bulandshahr. The contention is that the post was available for direct recruitment inasmuch there was no class-IV employee available for being promoted on the post in question. The papers were submitted before the competent authority, who transmitted it to the Joint Director of Education. The Joint Director of Education, being the Chair person of the Regional Level Committee, passed the impugned order on 16.9.2009 refusing to accept the proposal of the Committee of Management on the ground that the post in question being of the promotion quota, could not have been filled up by direct recruitment. Sri Khare contends that the fact that no other person was available in the institution for being promoted, had been categorically brought to the notice of the District Inspector of Schools and that there are documents to demonstrate that there is no other person available for being promoted. In such a situation, the order impugned is unsustainable as it proceeds without examining the aforesaid facts relating to non-availability of any class-IV employee in the institution for being promoted on the post in question. Having heard learned counsel for the parties, the impugned order nowhere indicates any inquiry or consideration relating to the aforesaid aspect of the matter as highlighted on behalf of the petitioner. Even otherwise, the impugned order appears to have been passed without putting the petitioner or the Committee of Management to notice. In this view of the matter, learned counsel for the represented parties agree that the matter be remitted back to the Regional Level Committee headed by the Joint Director of Education to re-consider the matter and pass fresh orders in accordance with law. Accordingly, the order dated 16.9.2009 is quashed and the writ petition is allowed with the direction to the Respondent No.3 to examine the claim as set up by the petitioner and thereafter proceed to pass an order after obtaining comments from the District Inspector of Schools as well as from the Committee of Management in this regard. The aforesaid exercise shall be completed within 8 weeks from the date of production of a certified copy of this order before the said respondent."

4. Consequent upon the, said direction, the respondent has passed the present impugned order rejecting the claim of the petitioner on the ground that management has irregularly appointed the petitioner through direct recruitment, which is meant for promotional quota and the same is contrary to Regulation 2 of Chapter 3 of the Secondary Education Act, 1921. The said action is assailed in the present writ petition.

5. Learned Senior Counsel appearing on behalf of petitioner has mainly contended that the 5th respondent has followed the procedure prescribed under the Regulations as there are no eligible qualified Class 4 employees in the institution for the promotion to the post of Class 3, he made a request to the 4th respondent vide a letter dated 04.06.2008 along with all records. On perusal of the record and also after enquiring into the issue, the 4th respondent, who is the competent authority as per the Regulations had approved the proposal made by 5th respondent and allowed to proceed with the selection process for appointment of Assistant Clerk. Without deviating any selection process, the Selection Committee, based on the merit of the petitioner, has selected him and sent the proposal for approval to the 4th respondent. When there is no deviation to the selection process and there are no complaints from any others, the respondent ought not to withhold the approval of the petitioner's appointment. Infact, earlier writ petition was disposed of taking the fact that no other person was available in the institution for being promoted and the said aspect was also brought to the notice of the concerned authority by the 5th respondent. Earlier when the 4th respondent has rejected the approval vide order dated 16.09.2009, the same has been assailed in the Writ Petition No. 52032 of 2009 (Shoraj Singh Vs. State of U.P. & Others).

6. But surprisingly, in the present impugned order the authority has not even verified the records and also stating that there are no availability of no objection letters from the Class 4 employees of the Institution. The facts remains that there are no objections from any Class 4 employees in the 5th respondent institution. So without ascertaining such fact, despite the specific directions and observations made while disposing of the earlier writ petition, the present impugned order has been passed.

7. Replying to the said contentions, learned State Counsel has submitted his arguments based on the counter affidavit filed by the second respondent, he submitted that for making direct recruitment on the post of Assistant Clerks same was necessary to considered the candidate of Class 4 employees under promotional quota but in the instant case, the 5th respondent without a valid reason and rules sought permission with the malafide intention to appoint the petitioner. The posts which is meant for promotional quota by way of direct recruitment. Hence, the appointment of the petitioner is contrary to Regulation 2 of Chapter 3 of Secondary Education Act 1921. For the above stated reasons, the 4th respondent has rightly disapproved the appointment of the petitioner.

8. Considering the submissions made by both the counsels and also perusal of the record, it transpires that the first disapproval order dated 16.09.2009 was interdicted by this Court in Writ A No. 52030 of 2009 with a specific observation that no other person was available in the institution for being promoted, accordingly, the impugned order passed therein is unsustainable as it proceeds without examining the aforesaid fact relating to non-availability of any Class 4 employee in the institution. Therefore, the order dated 16.09.2009 was quashed remanding the matter to the competent authority. But surprisingly, the reason given in the present impugned order dated 22.01.2010 has not been disclosed whether the authority has verified the records or has conducted any enquiry with regard to the availability of qualified and eligible Class 4 employees for consideration to promote as Assistant Clerk except saying that qualified Class 4 employees of all categories are available for promotion in the institution and no written representation was given by these employees that they do not want promotion for the post of Assistant Clerk. Infact, the petitioner has impleaded one senior most 4th class employee as 6th respondent in the present writ petition, who has filed his reply in paragraph no. 13 and he also accepted that there is no claim made by the 6th respondent for promotion.

9. Perusal of the impugned order clearly discloses that authority failed to inquire about the availability of eligible and qualified class 4 employees with regard to promotion as Assistant Clerk. No such observation is made. When earlier writ petition was disposed of only on the said ground, the authority ought to have conducted an inquiry based on the records. But surprisingly, in the instant case, even before granting approval for filling up the posts or before passing the present impugned order, no such inquiry was conducted by the respondent.

10. Fact remains that the 5th respondent has requested the competent authority vide his letter dated 14.01.2008 bringing to the notice about the non-availability of the eligible class 4 employees in the institution for being considered to the post of Assistant Clerk. After perusal of the record, it transpires only the 4th respondent has granted the permission and subject to the selection process, the petitioner being an eligible candidate, has considered his application and appointed as Assistant Clerk. When there are no allegations with regard to the selection process, the 4th respondent be estopped to take any technical objection to reject the claim of the petitioner.

11. In view of the reasons mentioned in the impugned order, which are totally contrary to the observation made by this Court in earlier Writ A No. 52032 of 2009 (Shoraj Singh Vs. State of U.P. & Others) the impugned order is set aside. The 4th respondent is directed to grant approval order based on the records within a period of two months from the date of receipt of this order.

12. Accordingly, the writ petition is disposed of. Order Date :- 2.5.2025 VS (Donadi Ramesh,J.) VIBHA SINGH High Court of Judicature at Allahabad

1. Heard Sri G.K. Singh, learned Senior Counsel assisted by Sri Sushil Kumar Tripathi, learned counsel for the petitioner and learned Standing Counsel.

2. The present writ petition has been filed by the petitioner for the following reliefs:- "A. Issue a writ, order or direction in the nature of certiorari quashing the impugned decision dated 22.01.2010 issued by the respondent no. 2. B. Issue a writ, order or direction in the nature of mandamus directing the respondents to immediately approve the appointment of the petitioner on the post of Assistant Clerk in Jawahar Inter College, VIII and post Buklana, District Bulandshahr."

3. There are three sanctioned posts of clerks exist in the 5th respondent's college, one being Head Clerk and the other two posts of Assistant Clerks. One Sri Meer Singh working as Head Clerk in the 5th respondent college had retired on attaining the age of superannuation on 31.03.2007. Consequently, Sohan Pal Singh, Assistant Clerk, was promoted to the said post. Accordingly, a vacancy of Assistant Clerk is pending in the 5th respondent's college. According to Regulation 2 of Chapter 3 of Secondary Education Act 1921, 50% posts goes to promotional avenue from Class 4 to Class 3. Including Head Clerk when there are three posts, two posts would go to promotional candidates but in the institution when there are no eligible 4th Class employees available for promotion to the post of Assistant Clerk, the Committee of Management has sent a letter to the District Inspector of School, Bulandshahr for approval of notification of posts. Accordingly, the District Inspector of Schools, Bulandshahr vide order dated 12.06.2008 had granted permission to fill up the posts of Assistant Clerk in general category by direct recruitment. Based on the said permission granted by the 4th respondent, the 5th respondent has made an advertisement in daily newspaper on 07.10.2008 inviting applications for the post of Assistant Clerk subject to the selection process. The committee selected the petitioner for the post of Assistant Clerk, and accordingly, sent a letter to the District Inspector of School, Bulandshahr for approving the selection of the petitioner on 20.02.2009. Despite repeated requests, the 4th respondents has not accorded permission to approve the appointment of the petitioner. The petitioner has approached this Hon'ble Court by filing a Writ A No. 52032 of 2009 (Shoraj Singh Vs. State of U.P. & Others) and the said writ petition was disposed of vide order dated 08.10.2009, which is reproduced hereinunder:- "Heard Sri Ashok Khare, learned Senior Advocate, assisted by Sri Swapnil Kumar, for the petitioner and learned Standing Counsel for Respondent Nos. 1 to 4. Keeping in view the nature of the submissions advanced, it is not necessary to issue notice to the respondent No.5. The petitioner claims that he was selected by the respondent No.5 - Committee for being appointed as an Assistant Clerk in Jawahar Inter College, Buklana, Bulandshahr. The contention is that the post was available for direct recruitment inasmuch there was no class-IV employee available for being promoted on the post in question. The papers were submitted before the competent authority, who transmitted it to the Joint Director of Education. The Joint Director of Education, being the Chair person of the Regional Level Committee, passed the impugned order on 16.9.2009 refusing to accept the proposal of the Committee of Management on the ground that the post in question being of the promotion quota, could not have been filled up by direct recruitment. Sri Khare contends that the fact that no other person was available in the institution for being promoted, had been categorically brought to the notice of the District Inspector of Schools and that there are documents to demonstrate that there is no other person available for being promoted. In such a situation, the order impugned is unsustainable as it proceeds without examining the aforesaid facts relating to non-availability of any class-IV employee in the institution for being promoted on the post in question. Having heard learned counsel for the parties, the impugned order nowhere indicates any inquiry or consideration relating to the aforesaid aspect of the matter as highlighted on behalf of the petitioner. Even otherwise, the impugned order appears to have been passed without putting the petitioner or the Committee of Management to notice. In this view of the matter, learned counsel for the represented parties agree that the matter be remitted back to the Regional Level Committee headed by the Joint Director of Education to re-consider the matter and pass fresh orders in accordance with law. Accordingly, the order dated 16.9.2009 is quashed and the writ petition is allowed with the direction to the Respondent No.3 to examine the claim as set up by the petitioner and thereafter proceed to pass an order after obtaining comments from the District Inspector of Schools as well as from the Committee of Management in this regard. The aforesaid exercise shall be completed within 8 weeks from the date of production of a certified copy of this order before the said respondent."

4. Consequent upon the, said direction, the respondent has passed the present impugned order rejecting the claim of the petitioner on the ground that management has irregularly appointed the petitioner through direct recruitment, which is meant for promotional quota and the same is contrary to Regulation 2 of Chapter 3 of the Secondary Education Act, 1921. The said action is assailed in the present writ petition.

5. Learned Senior Counsel appearing on behalf of petitioner has mainly contended that the 5th respondent has followed the procedure prescribed under the Regulations as there are no eligible qualified Class 4 employees in the institution for the promotion to the post of Class 3, he made a request to the 4th respondent vide a letter dated 04.06.2008 along with all records. On perusal of the record and also after enquiring into the issue, the 4th respondent, who is the competent authority as per the Regulations had approved the proposal made by 5th respondent and allowed to proceed with the selection process for appointment of Assistant Clerk. Without deviating any selection process, the Selection Committee, based on the merit of the petitioner, has selected him and sent the proposal for approval to the 4th respondent. When there is no deviation to the selection process and there are no complaints from any others, the respondent ought not to withhold the approval of the petitioner's appointment. Infact, earlier writ petition was disposed of taking the fact that no other person was available in the institution for being promoted and the said aspect was also brought to the notice of the concerned authority by the 5th respondent. Earlier when the 4th respondent has rejected the approval vide order dated 16.09.2009, the same has been assailed in the Writ Petition No. 52032 of 2009 (Shoraj Singh Vs. State of U.P. & Others).

6. But surprisingly, in the present impugned order the authority has not even verified the records and also stating that there are no availability of no objection letters from the Class 4 employees of the Institution. The facts remains that there are no objections from any Class 4 employees in the 5th respondent institution. So without ascertaining such fact, despite the specific directions and observations made while disposing of the earlier writ petition, the present impugned order has been passed.

7. Replying to the said contentions, learned State Counsel has submitted his arguments based on the counter affidavit filed by the second respondent, he submitted that for making direct recruitment on the post of Assistant Clerks same was necessary to considered the candidate of Class 4 employees under promotional quota but in the instant case, the 5th respondent without a valid reason and rules sought permission with the malafide intention to appoint the petitioner. The posts which is meant for promotional quota by way of direct recruitment. Hence, the appointment of the petitioner is contrary to Regulation 2 of Chapter 3 of Secondary Education Act 1921. For the above stated reasons, the 4th respondent has rightly disapproved the appointment of the petitioner.

8. Considering the submissions made by both the counsels and also perusal of the record, it transpires that the first disapproval order dated 16.09.2009 was interdicted by this Court in Writ A No. 52030 of 2009 with a specific observation that no other person was available in the institution for being promoted, accordingly, the impugned order passed therein is unsustainable as it proceeds without examining the aforesaid fact relating to non-availability of any Class 4 employee in the institution. Therefore, the order dated 16.09.2009 was quashed remanding the matter to the competent authority. But surprisingly, the reason given in the present impugned order dated 22.01.2010 has not been disclosed whether the authority has verified the records or has conducted any enquiry with regard to the availability of qualified and eligible Class 4 employees for consideration to promote as Assistant Clerk except saying that qualified Class 4 employees of all categories are available for promotion in the institution and no written representation was given by these employees that they do not want promotion for the post of Assistant Clerk. Infact, the petitioner has impleaded one senior most 4th class employee as 6th respondent in the present writ petition, who has filed his reply in paragraph no. 13 and he also accepted that there is no claim made by the 6th respondent for promotion.

9. Perusal of the impugned order clearly discloses that authority failed to inquire about the availability of eligible and qualified class 4 employees with regard to promotion as Assistant Clerk. No such observation is made. When earlier writ petition was disposed of only on the said ground, the authority ought to have conducted an inquiry based on the records. But surprisingly, in the instant case, even before granting approval for filling up the posts or before passing the present impugned order, no such inquiry was conducted by the respondent.

10. Fact remains that the 5th respondent has requested the competent authority vide his letter dated 14.01.2008 bringing to the notice about the non-availability of the eligible class 4 employees in the institution for being considered to the post of Assistant Clerk. After perusal of the record, it transpires only the 4th respondent has granted the permission and subject to the selection process, the petitioner being an eligible candidate, has considered his application and appointed as Assistant Clerk. When there are no allegations with regard to the selection process, the 4th respondent be estopped to take any technical objection to reject the claim of the petitioner.

11. In view of the reasons mentioned in the impugned order, which are totally contrary to the observation made by this Court in earlier Writ A No. 52032 of 2009 (Shoraj Singh Vs. State of U.P. & Others) the impugned order is set aside. The 4th respondent is directed to grant approval order based on the records within a period of two months from the date of receipt of this order.

12. Accordingly, the writ petition is disposed of. Order Date :- 2.5.2025 VS (Donadi Ramesh,J.) VIBHA SINGH High Court of Judicature at Allahabad