High Court · 2025

1. The writ petition has been filed questioning the impugned order dated 15.10.2019 passed by respondent no.1-Regional Committee through its Chairman Joint Director Of Education, 7th Region, Gorakhpur and further direction to consider for grant of approval to the selection and appointment of the petitioner no.2 on the post of Assistant Clerk in the petitioner no.1 institution namely, Amar Singh Uchchtar Madhyamik Vidyalaya, Badhya Chauk, Gorakpur.

2. Petitioner no.1 is running an institution namely, Amar Singh Uchchtar Madhyamik Vidyalaya, Badhya Chauk, Gorakpur and the same was recognized under the U.P. Intermediate Education Act, 2021 (hereinafter referred to as the Act) and receiving grant- in-aid from State Government. There were certain vacancies arose in Class-III and Class-IV cadre. More particularly in Class-III cadre, post of clerk fell vacant on account of retirement of Sri Bechan Yadav on 31.07.2013. Despite repeated request made by the institution, respondent no.3- District Inspector of Schools, Gorakhpur has passed an order on 25.07.2018 decline to grant permission to the management of the institution on the ground of existence of Government Order dated 18.4.2012 imposing ban on recruitment in aided institutions.

3. The said proceedings were assailed by the Management by filing Writ A No.24277 of 2018. And the said writ petition was disposed of by this Court with certain directions by order dated 16.11.2018. Based on the said directions of this Court, the Director of Education (Secondary), U.P., Lucknow passed an order on 5.7.2019 for granting permission. Pursuant to the said permission, the District Inspector of Schools, who is the competent authority, issued proceedings on 26.07.2019 granting permission to the management of the institution for filing up the post of Assistant Clerk by way of direct recruitment. Accordingly, the Management has advertised the said post in two daily newspapers namely, 'Swatantra Bharat' and 'Aaj' by inviting applications from eligible and qualified candidates by fixing date of interview on 18.08.2019. Pursuant to the said notification, the petitioner, who was having qualification of Intermediate, CCC from NIELIT, Diploma in Computer Application and typing certificate, has participated in the selection process.

4. Based on the permission granted by respondent no.3 dated 26.07.2019, the petitioner no.1-Committee of Management has requested the competent authority for participation of the nominee in the selection process. Accordingly, the Associate District Inspector of Schools has been nominated on 09.08.2019 to supervise the selection proceedings. Management has constituted a five member selection committee, including the Associate District Inspector of Schools, Gorakhpur as a nominee of respondent no.3. Based on the qualifications and oral interview, the Committee has selected the petitioner to the post of Assistant Clerk in the institution and on 18.8.2019, the same was forwarded to respondent no.3 i.e. District Inspector of Schools vide proceedings dated 18.08.2019. The first respondent has rejected the selection of the petitioner made by the Committee by order dated 15.10.2019. The said proceedings were assailed in the instant writ petition. Subsequently,

5. After notice, the respondent no.3 has filed his counter affidavit, wherein he has specifically denied in paragraph 7 to 9 about the procedure adopted by the Management for filing up of the said post.

6. Based on the above averments, learned counsel for the petitioners has submitted that as per the directions issued by this Court in Writ A No.24277 of 2018, the second respondent has considered the application made by the petitioner based on Chapter-3 Regulation 101 of U.P. Intermediate Education Act, 1921, which reads as under: ननययनक पपधधकपरर ननररकक कक पपरपरनयममदन कक धसरपय नकसर मपनयतप पपप, "(101). नशकणकतर पद कक ररनक कम नहह भरकगप। पनतबनध यह हह नक धजलप सहपयतप पपप सससथप कक नरदपलय ननररकक समसत ररनकयय कक ससखयप नशकप ननदकशक, मपधयनमक कम उपलबध करपयकगप तथप सससथप मम छपत ससखयप दशपरतक हहए पदय कम भरक जपनक कक औनचतय कम भर सपष करमगक। नशकप ननदकशक मपधयनमक सक आदकश पपप हमनक पर धजलप नरदपलय ननररकक उक ररनकयय कम भरनक हकतय ननययनक पपधधकपरर कम अनयमनत पदपन करकगप और अनयमनत पदपन करतक धलयक ननधपरररत मपनकय समय शपसन दपरप ननधपरररत आरकण ननयमय एरस पदय कक औनचतय कक कप पपलन करपयकगप। पनतबनध यह हह नक जमपदपर कक पद कक ररनक कम ननररकक दपरप भरनक कक अनयमनत दर जप सकतर हह।"

7. As per the above regulation, the Director has issued mandatory permission to the District Inspector of Schools for filling up of the vacancy as requested by the petitioner no.1. Accordingly, the Management has requested the respondent no.3 for nomination of the person. And as nominated by the District Inspector of Schools, the selection committee has been constituted with the nominee of the respondent no.3, who is Associate District Inspector of Schools. The said selection committee conducted the interview of eligible candidates and the petitioner has been selected based on merit.

8. Surprisingly, without considering the recommendations made by the selection committee, the respondent no.1 has rejected the case of the petitioner vide proceedings dated 15.10.2019 on the sole ground that petitioner no.1 has not followed the conditions imposed by respondent no.3 in his proceedings dated 26.07.2019. Hence, the respondent no.1 has rejected the appointment of the petitioner for violation of conditions as it vitiates the entire selection process.

9. Learned counsel for the petitioner has submitted that the Management has not violated any of the conditions imposed in the proceedings dated 26.07.2019, in fact, as directed by the respondent no.3, the Committee has notified the vacancy and the said notification clearly mentioned that the qualifications, which are prescribed by the Government from time to time are eligible to make an application. It is further submitted that there is no specific format prescribed by the statute while notifying the vacancies by the Management. The Government would change the qualifications as well as the minimum and maximum age criteria time and again. In such circumstances, the Management has categorically notified the vacancies by requesting eligible candidates, who have qualifications as prescribed by the Government from time to time. Hence, the Management has fully complied with the conditions prescribed in the letter dated 26.07.2019. Apart from the above, based on the said notification, a request was made by the Management to the respondent no. 3, and the third respondent has nominated Associate District Inspector of Schools as a member of the selection committee and the nominee has not raised any objection nor any third party has made any objection with regard to the notification or selection process. He further submitted that respondent no. 1 has not rejected the application of the petitioner for appointment on the ground of not following the procedure prescribed in the selection process. Hence, the objection raised in the rejection is only hyper-technical, which is beyond the scope of respondent no. 1 powers.

10. Replying to the said contentions, learned Standing Counsel appearing on behalf of State-respondents has contended that as per the averments made in paragraphs 8 and 9 of the counter affidavit, the respondent no. 5 has not followed the conditions imposed in the letter dated 26.7.2019, more specifically condition nos. 5 and 6, which are as under: "5. नरजपपन मम पद कप नपम, रकतनकम, भरनक कक अननतम नतधथ कप उलकख हमगप। 6. कम नयपनतम आयय कक गणनप कक जपयकगर।" ननययनक ररर/ नरनहत नयपनतम यमगयतप, नयपनतम आयय, आरकदन पत नशकप ररर धजसमम नरजपपन ननकपलप जपयक, आगपमर नशकप ररर कक पथम अपहल

11. Despite the specific direction of respondent no. 3 while granting permission, the petitioner no.1 has not prescribed the required qualifications of the participants in the notification and also not described the minimum and maximum age of the candidates in the said notification. In view of the same, all eligible candidates, who are having age and qualifications are not able to participate in the selection process and vitiates the selection process. Accordingly, the respondent no.1 has rejected the claim of the petitioner as per the provision of the Act.

12. Considering the submissions of learned counsel for the parties and perusal of the record, both the counsels have agreed and translated the said proceedings in English. According to same, the notification issued by the petitioner no.1 on 28/29.07.2019 has mentioned the qualifications, which are prescribed by the Government time and again are eligible/entitle to apply. Hence, respondent no.1 cannot take the stand that petitioner no.1 has deviated the conditions imposed by respondent no. 3 in his letter dated 26.07.2019. Apart from that, the fixation of minimum and maximum age limit should be flexible and that cannot be wrong for specific selection process.

13. Except these two conditions in the counter affidavit filed by respondent no.3, there is no other allegation made against the petitioner no.1. Apart from the above, it is not in dispute that as per the requirements of the statute, petitioner no.1 has requested the respondent no.2 for permission as per Chapter-3 Regulation 101 of the Act. Accordingly, respondent no. 2 has granted permission. Based on the above permission, respondent no. 3 issued proceedings on 26.07.2019 granting permission to petitioner no.1 to proceed with selection of candidate for Assistant Clerk. It is also not in dispute that the member nominated by respondent no.3 and who also participated in the selection process. Taking facts into consideration, it is not the case of the first respondent that petitioner no.1 has indulged any fraud in selection process. At the most, not prescribing the specific qualification and age in the notification might be irregularity. On perusal of the averments made in the counter affidavit clearly disclosed that the rejection of the appointment of the petitioner based on irregularity committed by petitioner no.1 and there is no illegality in the selection process as pointed out by the respondent no. 1. It is settled principle of law that illegality cannot be cured but irregularity can be condoned.

14. In such circumstances, as objection taken by the respondent no.1 that the notification is not in accordance with the letter dated 26.07.2019 is only a irregularity, the same can be ratified. In view of the same, the impugned proceedings dated 15.10.2019 are set aside and direction is issued to respondent no.1 to issue fresh order by considering the selection process/recommendations made by respondent no. 3 and pass appropriate order within a period of eight weeks from the date of receipt of the instant order after hearing all affected parties.

15. The writ petition stands allowed. Order Date :- 12.5.2025 (Donadi Ramesh, J.) RAKESH KUMAR GAUTAM High Court of Judicature at Allahabad

1. The writ petition has been filed questioning the impugned order dated 15.10.2019 passed by respondent no.1-Regional Committee through its Chairman Joint Director Of Education, 7th Region, Gorakhpur and further direction to consider for grant of approval to the selection and appointment of the petitioner no.2 on the post of Assistant Clerk in the petitioner no.1 institution namely, Amar Singh Uchchtar Madhyamik Vidyalaya, Badhya Chauk, Gorakpur.

2. Petitioner no.1 is running an institution namely, Amar Singh Uchchtar Madhyamik Vidyalaya, Badhya Chauk, Gorakpur and the same was recognized under the U.P. Intermediate Education Act, 2021 (hereinafter referred to as the Act) and receiving grant- in-aid from State Government. There were certain vacancies arose in Class-III and Class-IV cadre. More particularly in Class-III cadre, post of clerk fell vacant on account of retirement of Sri Bechan Yadav on 31.07.2013. Despite repeated request made by the institution, respondent no.3- District Inspector of Schools, Gorakhpur has passed an order on 25.07.2018 decline to grant permission to the management of the institution on the ground of existence of Government Order dated 18.4.2012 imposing ban on recruitment in aided institutions.

3. The said proceedings were assailed by the Management by filing Writ A No.24277 of 2018. And the said writ petition was disposed of by this Court with certain directions by order dated 16.11.2018. Based on the said directions of this Court, the Director of Education (Secondary), U.P., Lucknow passed an order on 5.7.2019 for granting permission. Pursuant to the said permission, the District Inspector of Schools, who is the competent authority, issued proceedings on 26.07.2019 granting permission to the management of the institution for filing up the post of Assistant Clerk by way of direct recruitment. Accordingly, the Management has advertised the said post in two daily newspapers namely, 'Swatantra Bharat' and 'Aaj' by inviting applications from eligible and qualified candidates by fixing date of interview on 18.08.2019. Pursuant to the said notification, the petitioner, who was having qualification of Intermediate, CCC from NIELIT, Diploma in Computer Application and typing certificate, has participated in the selection process.

4. Based on the permission granted by respondent no.3 dated 26.07.2019, the petitioner no.1-Committee of Management has requested the competent authority for participation of the nominee in the selection process. Accordingly, the Associate District Inspector of Schools has been nominated on 09.08.2019 to supervise the selection proceedings. Management has constituted a five member selection committee, including the Associate District Inspector of Schools, Gorakhpur as a nominee of respondent no.3. Based on the qualifications and oral interview, the Committee has selected the petitioner to the post of Assistant Clerk in the institution and on 18.8.2019, the same was forwarded to respondent no.3 i.e. District Inspector of Schools vide proceedings dated 18.08.2019. The first respondent has rejected the selection of the petitioner made by the Committee by order dated 15.10.2019. The said proceedings were assailed in the instant writ petition. Subsequently,

5. After notice, the respondent no.3 has filed his counter affidavit, wherein he has specifically denied in paragraph 7 to 9 about the procedure adopted by the Management for filing up of the said post.

6. Based on the above averments, learned counsel for the petitioners has submitted that as per the directions issued by this Court in Writ A No.24277 of 2018, the second respondent has considered the application made by the petitioner based on Chapter-3 Regulation 101 of U.P. Intermediate Education Act, 1921, which reads as under: ननययनक पपधधकपरर ननररकक कक पपरपरनयममदन कक धसरपय नकसर मपनयतप पपप, "(101). नशकणकतर पद कक ररनक कम नहह भरकगप। पनतबनध यह हह नक धजलप सहपयतप पपप सससथप कक नरदपलय ननररकक समसत ररनकयय कक ससखयप नशकप ननदकशक, मपधयनमक कम उपलबध करपयकगप तथप सससथप मम छपत ससखयप दशपरतक हहए पदय कम भरक जपनक कक औनचतय कम भर सपष करमगक। नशकप ननदकशक मपधयनमक सक आदकश पपप हमनक पर धजलप नरदपलय ननररकक उक ररनकयय कम भरनक हकतय ननययनक पपधधकपरर कम अनयमनत पदपन करकगप और अनयमनत पदपन करतक धलयक ननधपरररत मपनकय समय शपसन दपरप ननधपरररत आरकण ननयमय एरस पदय कक औनचतय कक कप पपलन करपयकगप। पनतबनध यह हह नक जमपदपर कक पद कक ररनक कम ननररकक दपरप भरनक कक अनयमनत दर जप सकतर हह।"

7. As per the above regulation, the Director has issued mandatory permission to the District Inspector of Schools for filling up of the vacancy as requested by the petitioner no.1. Accordingly, the Management has requested the respondent no.3 for nomination of the person. And as nominated by the District Inspector of Schools, the selection committee has been constituted with the nominee of the respondent no.3, who is Associate District Inspector of Schools. The said selection committee conducted the interview of eligible candidates and the petitioner has been selected based on merit.

8. Surprisingly, without considering the recommendations made by the selection committee, the respondent no.1 has rejected the case of the petitioner vide proceedings dated 15.10.2019 on the sole ground that petitioner no.1 has not followed the conditions imposed by respondent no.3 in his proceedings dated 26.07.2019. Hence, the respondent no.1 has rejected the appointment of the petitioner for violation of conditions as it vitiates the entire selection process.

9. Learned counsel for the petitioner has submitted that the Management has not violated any of the conditions imposed in the proceedings dated 26.07.2019, in fact, as directed by the respondent no.3, the Committee has notified the vacancy and the said notification clearly mentioned that the qualifications, which are prescribed by the Government from time to time are eligible to make an application. It is further submitted that there is no specific format prescribed by the statute while notifying the vacancies by the Management. The Government would change the qualifications as well as the minimum and maximum age criteria time and again. In such circumstances, the Management has categorically notified the vacancies by requesting eligible candidates, who have qualifications as prescribed by the Government from time to time. Hence, the Management has fully complied with the conditions prescribed in the letter dated 26.07.2019. Apart from the above, based on the said notification, a request was made by the Management to the respondent no. 3, and the third respondent has nominated Associate District Inspector of Schools as a member of the selection committee and the nominee has not raised any objection nor any third party has made any objection with regard to the notification or selection process. He further submitted that respondent no. 1 has not rejected the application of the petitioner for appointment on the ground of not following the procedure prescribed in the selection process. Hence, the objection raised in the rejection is only hyper-technical, which is beyond the scope of respondent no. 1 powers.

10. Replying to the said contentions, learned Standing Counsel appearing on behalf of State-respondents has contended that as per the averments made in paragraphs 8 and 9 of the counter affidavit, the respondent no. 5 has not followed the conditions imposed in the letter dated 26.7.2019, more specifically condition nos. 5 and 6, which are as under: "5. नरजपपन मम पद कप नपम, रकतनकम, भरनक कक अननतम नतधथ कप उलकख हमगप। 6. कम नयपनतम आयय कक गणनप कक जपयकगर।" ननययनक ररर/ नरनहत नयपनतम यमगयतप, नयपनतम आयय, आरकदन पत नशकप ररर धजसमम नरजपपन ननकपलप जपयक, आगपमर नशकप ररर कक पथम अपहल

11. Despite the specific direction of respondent no. 3 while granting permission, the petitioner no.1 has not prescribed the required qualifications of the participants in the notification and also not described the minimum and maximum age of the candidates in the said notification. In view of the same, all eligible candidates, who are having age and qualifications are not able to participate in the selection process and vitiates the selection process. Accordingly, the respondent no.1 has rejected the claim of the petitioner as per the provision of the Act.

12. Considering the submissions of learned counsel for the parties and perusal of the record, both the counsels have agreed and translated the said proceedings in English. According to same, the notification issued by the petitioner no.1 on 28/29.07.2019 has mentioned the qualifications, which are prescribed by the Government time and again are eligible/entitle to apply. Hence, respondent no.1 cannot take the stand that petitioner no.1 has deviated the conditions imposed by respondent no. 3 in his letter dated 26.07.2019. Apart from that, the fixation of minimum and maximum age limit should be flexible and that cannot be wrong for specific selection process.

13. Except these two conditions in the counter affidavit filed by respondent no.3, there is no other allegation made against the petitioner no.1. Apart from the above, it is not in dispute that as per the requirements of the statute, petitioner no.1 has requested the respondent no.2 for permission as per Chapter-3 Regulation 101 of the Act. Accordingly, respondent no. 2 has granted permission. Based on the above permission, respondent no. 3 issued proceedings on 26.07.2019 granting permission to petitioner no.1 to proceed with selection of candidate for Assistant Clerk. It is also not in dispute that the member nominated by respondent no.3 and who also participated in the selection process. Taking facts into consideration, it is not the case of the first respondent that petitioner no.1 has indulged any fraud in selection process. At the most, not prescribing the specific qualification and age in the notification might be irregularity. On perusal of the averments made in the counter affidavit clearly disclosed that the rejection of the appointment of the petitioner based on irregularity committed by petitioner no.1 and there is no illegality in the selection process as pointed out by the respondent no. 1. It is settled principle of law that illegality cannot be cured but irregularity can be condoned.

14. In such circumstances, as objection taken by the respondent no.1 that the notification is not in accordance with the letter dated 26.07.2019 is only a irregularity, the same can be ratified. In view of the same, the impugned proceedings dated 15.10.2019 are set aside and direction is issued to respondent no.1 to issue fresh order by considering the selection process/recommendations made by respondent no. 3 and pass appropriate order within a period of eight weeks from the date of receipt of the instant order after hearing all affected parties.

15. The writ petition stands allowed. Order Date :- 12.5.2025 (Donadi Ramesh, J.) RAKESH KUMAR GAUTAM High Court of Judicature at Allahabad