Neutral Citation No.

- 2023:AHC:186581

Court No. - 35

Case :- WRIT - A No. - 17104 of 2022

Petitioner :- Pratyush Singh

Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Kushmondeya Shahi,Tanuj Shahi
Counsel for Respondent :- C.S.C.

:connected with:

Case :- WRIT - A No. - 13618 of 2023

Petitioner :- Sandhya Rao Alias Sandhya Singh

Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Kushmondeya Shahi,Tanuj Shahi
Counsel for Respondent :- CSC

Hon'ble Vikas Budhwar,J.

Since a common questions of law and facts are involved in both

the writ petitions, i.e. Writ-A No.17104 of 2022 (leading writ
petition) as well as Writ-A No. 13618 of 2023 (connected writ
petition), the same are being decided by a consolidated order.

Heard Sri Tanuj Shahi, learned counsel for the writ petitioner in
the leading as well as in the connected petition and Sri P.K. Shahi,
learned Addl. Chief Standing Counsel, who appears for
Respondent nos. 1 to 4 in the leading petition and for Respondent
nos. 1 to 3 in the connected petition and Sri Dinesh Kumar, who
appears for Respondent no.5 in the leading writ petition and for
Respondent no.4 in the connected writ petition.

A counter affidavit has been filed in the leading petition by

Respondent nos. 1 to 4 sworn by the District Inspector of Schools,
Deoria on 10.02.2023, to which a rejoinder affidavit has been filed.
A statement has been made by Sri P.K. Shahi, learned Addl. Chief
Standing Counsel who appears for the official respondents and Sri
Dinesh Kumar, who appears for the Committee of Management of
the Institution in question that they do not propose to file any
further affidavit and as such, the writ petitions are being decided at
the fresh stage.

The case of the writ petitioner in both the writ petitions are that
there is an institution Sri Hanuman Vidya Mandir Inter
College,Baraon, Deoria (in short 'the respondent-Institution'),
which is recognized under the provisions of U.P. Intermediate
Education Act, 1921 and the provisions of U.P. Act No.24 of 1971
stand applicable. It is further the case of the writ petitioner that
there are total four Class-III posts sanctioned in the respondent-
Institution; one being Head Clerk and three posts of the Assistant
Clerk, pursuant to the exercise undertaken by the State
Government in pursuance of the decision in one of the writ
petitions, whereby as many as four Class-III posts were
determined by virtue of the Government Order dated 22.02.2013.
According to the writ petitioner in the leading petition, the Head
Clerk, who was manning the post in question, stood retired, which
stood filled up on the promotion of Sri Krishna Murari Pandey
from the post of Assistant Clerk on 13.05.2013 creating a vacancy
on the post of Assistant Clerk. However, Sri Krishna Murari
Pandey, who was promoted as a Head Clerk, stood superannuated
on 31.08.2016 and thereafter Sri Mayank Pal Rao was promoted as
Head Clerk on 11.08.2019 creating two substantive vacancies on
the post of Assistant Clerk. In paragraph-6 of the writ petition, it is
further asserted that one Sri Mayank Pal Rao and Sri Raj Kumar
Yadav are working as Assistant Clerks under promotion quota and
in the said institution, 50% quota stands ear-marked from
promotion. Since there were vacancies lying vacant under direct
recruitment quota, therefore, the Committee of Management of the
Institution in question proceeded to prefer Writ-A No.11441 of
2019, seeking mandamus for permission for making appointment
on the post of Assistant Clerk, the said writ petition came to be
disposed of on 19.08.2019 with the direction to the concerned
authority to decide the claim of the Committee of Management in
question. It is the further case of the writ petitioner that pursuant to
the order of the Writ-Court dated 19.08.2019, the second
respondent, Director of Education (Secondary) passed an order
dated 18.12.2019 rejecting the claim of the Committee of
Management for making appointment on the post of Assistant
Clerk through direct recruitment. The order dated 18.12.2019 was
passed in compliance of the Government Order dated 30.10.2019.
Compelled with the the said situation, the Committee of
Management of the Institution in question preferred Writ-A
No.11361 of 2020, C/M Sri Hanuman Vidya Mandir Inter
College and others Vs. State of U.P. and others seeking to
challenge both the orders. The said writ petition came to be
disposed of on 15.12.2020 while passing the following orders:

"Impleadment application filed by Committee of Management, is taken on

record.

Impleadment application is allowed.

Petitioner is directed to implead the Committee of Management as respondent
no. 4 during the course of the day.

The present petition has been filed challenging the order dated 18.12.2019
whereby the request made at the instance of the petitioners for appointment to
Class-III posts, on being forwarded before the Director by the DIOS, has
been refused solely on the basis of the Government Order dated 30.10.2019.

Counsel for the petitioners argues that the order dated 18.12.2019 is wholly
arbitrary and illegal inasmuch as the recourse taken to the Government
Order dated 30.10.2019 was wholly unjustified. He has brought on record a
copy of the Government Order dated 30.10.2019 to demonstrate that the said
Government Order was confined only to the 26 Colleges named in the said
Government Order and the name of the petitioners' Institution does not find
place in the said Government Order, as such the Director could not have
taken recourse to the said Government Order dated 30.10.2019 while passing
the impugned order dated 18.12.2019.

Counsel for the petitioners has also drawn my attention to order dated
26.11.2020 passed in Writ-A No. 381 of 2020 (C/M Pandit Jawaharlal Inter
College Fatehpur, and Another Vs. State of U.P. and 2 Others), wherein a
submission of the learned Additional Advocate General was referred to to the
effect that the Government Order dated 30th October, 2019 is confined only to
the 26 Institutions mentioned therein.

A perusal of the impugned order reveals that the same has been passed solely
on the basis of the Government Order dated 30.10.2019. As the Government
Order has no applicability to the petitioners' Institution, the order dated
18.12.2019 is set aside and the matter is remanded to the Director
(Education) to consider the request as forwarded through the DIOS, in
accordance with law, without taking recourse to the Government Order dated
30th October, 2019. The said exercise shall be completed expeditiously,
preferably within a period of two months from the date of filing of a copy of
this order, by the Director (Education). It is clarified that the newly added
respondent shall also be heard by the Director Education while deciding the
issue as directed above.

The writ petition is disposed off in terms of the said order.

Copy of the order downloaded from the official website of this Court shall be
treated as certified copy of this order."

In paragraphs-11 and 12 of the writ petition, it is also asserted that

the claim of the Committee of Management of the respondent-
Institution again stood negated by virtue of the order dated
25.03.2021. The Committee of Management of the respondent-
Institution proceeded to challenge the said order while filing Writ-
A No.7365 of 2021, which came to be allowed on 21.09.2021. The
order passed therein is being quoted hereinunder:-

"After hearing learned counsel for the parties, detail order was passed on
18.08.2021, in Writ- A No. 10062 of 2021, which reads as under:-

"Pursuant to the order passed on 13 August 2021, Sri J.N. Maurya, learned
Chief Standing Counsel has placed for the perusal of the Court the
instructions received today. From those instructions, it is pointed out that the
order of the Court inadvertently refers to the communication of 19 January
2021 as a Government Order. It is pointed out that the aforesaid document
appended along with the writ petition was in fact merely instructions which
were provided to the Chief Standing Counsel. The Court notes in this behalf
that the order of 13 August 2021 proceeded on the basis of the recitals
contained in the order of the Director of Education (Secondary) dated 25
March 2021 and more particularly para V thereof which referred to that
communication as a Government Order. However this much is clear that the
communication of 19 January 2021 were merely instructions provided by the
respondents.

The issue which however still remains is whether the reasons assigned in the
impugned order of 25 March 2021 are in consonance with the statement of
the learned Advocate General which was noted by the Court in Writ-A No.927
of 2020.

To enable learned counsels to address submissions in this respect, include in

the list of fresh cases of 02 September 2021."

Learned Chief Standing Counsel has obtained instructions, according to

which the State Government has examined the matter and a direction has
been issued to the Director on 31st August, 2021 for deciding the matter on
merits and not to decide the claim on the basis of order dated 30.10.2019 and
19.01.2021.

In view of the subsequent order passed by the State Government, the order
passed by the Director dated 25.03.2021 cannot be sustained and is hereby
quashed. The Director shall revisit the issue in light of the Government Order
dated 31.08.2021, by passing a fresh order within a period of two months
from the date of presentation of a copy of this order.

The petition is allowed, accordingly."

Records further reveal that thereafter the Respondent-Institution

proceeded to advertise the posts in question on 18.10.2021, the
Committee of Management of the respondent-Institution thereafter
constituted a Committee for conducting selections and thereafter,
the Five-Member Committee conducted the selections and made
recommendations with regard to the appointment to be accorded to
the writ petitioners with due intimation to the District Inspector of
Schools, Deoria on 16.12.2021. However, now an order has been
passed by the District Inspector of Schools, Deoria, fourth
respondent on 16.03.2022 holding that the selections conducted by
the Committee of Management cannot be approved.

Questioning the order dated 16.03.2022 passed by the District

Inspector of Schools, Deoria, fourth respondent seeking to
disapprove the recommendations of the Selection Committee with
regard to approving the appointment on the post of Assistant Clerk
in question to the writ petitioner, the leading writ petition has been
filed.

This Court entertained the writ petition while passing the orders
dated 16.11.2022, which is quoted hereinunder:

"1. Written instructions have been received by learned Additional Chief

Standing Counsel are opposed to the claim made by the petitioner.

2. Issue notice to respondent no.5, fixing 01.02.2023.

3. All respondents may file counter affidavit within a period of six weeks.
Petitioner shall have two weeks' thereafter to file rejoinder affidavit.

4. List on the date fixed in top ten cases."

A vakalatnama has been filed by Sri Dinesh Kumar on behalf of

the respondent-Institution. A counter affidavit has also been filed
by the learned Standing Counsel, who appears on behalf of
Respondents 1 to 3 sworn by the District Inspector of Schools,
Deoria, dated 10.02.2023, to which a rejoinder affidavit has been
filed. A statement has been made by Sri Dinesh Kumar, who
appears for the fourth respondent that he does not propose to file
any response to the writ petition, as according to him, the writ
petition may be decided on the basis of the affidavits available on
record.

During the pendency of the leading writ petition, one Sandhya Rao
@ Sandhya Singh wife of Late Sampurnanand Rao has filed the
connected petition, wherein challenge has been made to the order
dated 16.03.2022 passed by the District Inspector of Schools,
Deoria, which is already subject matter of challenge in the leading
writ petition. The connected writ petition came up for
consideration on 18.08.2023, wherein the following orders were
passed: -

"The parties are in agreement that the present writ petition be tagged with the
record of Writ ? A No. 17104 of 2022 (Pratyush Singh vs. State of U.P. and 4
Others).

Put up this case on 25.08.2023, as fresh, along with the record of Writ - A No.
17104 of 2022 (Pratyush Singh vs. State of U.P. and 4 Others), showing the
case title of the parties and the counsels representing them on date fixed in
the said matter."
Today, both the writ petitions are before this Court. A specific
query has been made to the learned Standing Counsel, who
appears for the official respondents and Sri Dinesh Kumar, learned
counsel, who appears for the Committee of Management as to
whether they propose to file any response to the connected petition
or not, to which a statement has been made at Bar that since the
order challenged in the connected petition is the same and a
response has been filed in the leading writ petition, thus they do
not propose to file any response, however, the counter affidavit
filed in the leading petition be also read in the present case. In
view of the said statement, both the writ petitions, which are on
Board, are being disposed of by a composite order.

The learned counsel for the writ petitioners while assailing the
order dated 16.03.2022 passed by the District Inspector of Schools,
Deoria, has sought to contend that umpteen number of times, the
writ petitioners in both the writ petitions were compelled to knock
the doors of this Court and each and every point of time, the orders
which were passed were set aside and now a fresh ground is being
sought to be injected, which even otherwise is totally non-existent
and cannot be made a basis to denude the claim of the Committee
of Management of the respondent-Institution. In order to buttress
the submission, learned counsel for the writ petitioner submits that
there are virtually two grounds on which the claim of the writ
petitioners in both the writ petitions is being denuded. Firstly, the
Selection Committee has not been constituted as per the provisions
contained under the U.P. Procedure of Direct Recruitment for
Group "C" Posts (Outside the Purview of the Uttar Pradesh Public
Service Commission) Rules, 1998 and secondly, the selections
have been conducted in direct teeth of the statutory provisions.

Sri Tanuj Shahi, learned counsel for the writ petitioners submits
that the aforesaid grounds cannot be pressed into service to negate
the claim of the writ petitioners in both the writ petitions in the
wake of the fact that already there exists Regulations 100 and 101
of the Chapter III of the U.P. Intermediate Education Act, 1921,
which would govern the recruitment of Class-III posts in an
Institution recognized and aided under the provisions of U.P.
Intermediate Education Act, 1921. He thus submits that the
applicability of the U.P. Procedure of Direct Recruitment for
Group "C" Posts (Outside the Purview of the Uttar Pradesh Public
Service Commission) Rules, 1998 would apply in those
institutions, which are managed by the State Government or which
stands adopted in any automonous body or entity.

The submission is that in absence of any Government Order or the

policy of the State Government adopting the 1998 Rules, the same
would not apply as the provisions under the Regulations 100 and
101 of the Chapter III of the U.P. Intermediate Education Act,
1921 are self-contained Codes which would govern the procedure
and the manner, according to which the selection committee is to
be constituted and how recruitments have to be made. The learned
counsel for the writ petitioner seeks to rely upon the Full Bench
decision of this Court in Harpal Singh Vs. State of U.P., 2015 (3)
ADJ 236 (FB) following in Writ-A No. 6683 of 2022, C/M.
Mahatma Bharti Inter College and others Vs. State of U.P.
decided on 23.09.2023. Thus according to him, the order
impugned be set aside, the matter be remitted back to the District
Inspector of Schools, Deoria to pass fresh orders.

Sri P.K. Shahi, learned Addl. Chief Standing Counsel on the

strength of the assertions made in the counter affidavit filed by the
District Inspector of Schools, Deoria dated 10.02.2023 has sought
to submit that though the order impugned has negated the claim of
the Committee of Management of the respondent-Institution on the
premise that 1998 Rules stood applicable and selection process be
conducted by constituting a Selection Committee having a
nominee of District Magitrate and however, according to him, the
order is not happily worded and the crucial question, which stands
arisen here, has not been addressed too. He submits that the order
be set aside and the matter be remitted back to the District
Inspector of Schools, Deoria for passing a fresh order strictly in
accordance with law bearing in mind the judgment in the case of
Harpal Singh (supra) and C/M Bharti Inter College (supra). The
arguments of Sri P.K. Shahi, learned Addl. Chief Standing
Counsel, who appears for the official respondents, have been
adopted by Sri Dinesh Kumar, who appears for the Committee of
Management.

Normally, in ordinary circumstances, the Court would have

undertaken the task of deciding the issue on merits. However, in
view of the stand of the learned Addl. Chief Standing Counsel, as
well as Sri Dinesh Kumar, who appears for the respondents, which
has been acceded to by the learned counsel for the writ petitioner
that the issue needs determination at the first instance by the
District Inspector of Schools, Deoria, post setting aside of the
order and remitting the matter back to it, thus this Court is
abstaining itself while addressing the issue on merits leaving it
open to District Inspector of Schools, Deoria to consider the said
issue and to pass an appropriate order in this regard.

Accordingly the writ petition is decided in the following terms:-

 (a) the order dated 16.03.2022 passed by the District Inspector of
Schools, Deoria is set aside; (b) the matter stands remitted back to
the District Inspector of Schools, Deoria to decide the matter
afresh after giving opportunity of hearing to the petitioners in both
the writ petitions and the Committee of Management of the
respondent-Institution while fixing a date informing him in writing
in advance; (c) the District Inspector of Schools, Deoria while
deciding the matter afresh shall bear in mind the following
fundamental and core issues:- (i) the applicability of the provisions
of the U.P. Procedure of Direct Recruitment for Group "C" Posts
(Outside the Purview of the Uttar Pradesh Public Service
Commission) Rules, 1998; (ii) the applicability of the judgments in
the case of Harpal Singh (supra) and C/M Bharti Inter College
(supra); (iii) the total number of sanctioned strength of Class-III
posts; (iv) the total number of vacancies lying vacant; (v) the
suitability and eligibility of the writ petitioner and the deserving
candidate; (vi) the selection procedure adopted as per the Rules;
(vii) import and impact of non-grant of approval before conducting
selection; and (viii) any other ancillary and incidental issue.

The said exercise is to be completed within a period of three

months from the date of production of certified copy of the order
after putting to notice the writ petitioners in both the writ petitions
as well as the Committee of Management of the respondent-
Institution.

Needless to point out that passing of this order may not be

construed to an expression that this Court has adjudicated the
matter on merits.

With the aforesaid observations the writ petitions stand partly

allowed.

Order Date :- 26.9.2023

N.S.Rathour

Digitally signed by :-
NIPENDRA SINGH RATHOUR
High Court of Judicature at Allahabad