# C/M Vikas Madhyamik Vidyalay Tindola v. State of U.P. & Anr

- **Citation:** (2014) 3 ILRA 1347
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-11-24
- **Case number:** Service Single No. 6488 of 2014
- **Bench:** Manoj Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-vikas-madhyamik-vidyalay-tindola-v-state-of-u-p-anr-43133
- **Pages:** 5

## Headnote

U.P. Basic Education Act 1972-Section
3(2),
14,
15(5)-Ban
imposed
on
appointment of class IV employee by G.O.
06.01.2011-in
recognized
institutionsheld-arbitrary,discriminatory
exploitative
in
nature-taking
away
provision
of
appointment
contrary
to
statutory
provisions-and engagement
outsourcing
nothing but a system of supply of work
force through contractor-already quashed
being violative of Art. 14 and 16 of
Constitution-same being adopted in Basic
Education also-order impugned quashedwith follow up direction.
Held: Para-8 & 13

## Text

3 All].
C/M Vikas Madhyamik Vidyalay Tindola Vs. State of U.P. & Anr.
1347
as plea of alibi and the trial court after
giving opportunity to adduce evidence to
the prosecution will decide the plea of
alibi taken by the petitioners Arjun Singh
alias Natthu Singh Yadav, Amar Singh
Yadav, Shailendra Yadav and Sonu
Yadav. In case the plea of alibi fails then
the trial shall proceed against them in
accordance with law.
3.That trial court will decide the
defence plea of alibi taken by the
aforesaid petitioners within four months
from the date of communication of this
order.
19. Interim order granted by this
court in both these petitions stand
vacated.
20. In view of the above, these two
petition are disposed of finally.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.11.2014
BEFORE
THE HON'BLE MANOJ KUMAR GUPTA, J.
Service Single No. 6488 of 2014
C/M Vikas Madhyamik Vidyalay Tindola
...Petitioner
Versus
State of U.P. & Anr.
...Respondents
Counsel for the Petitioner:
Sri G.C. Verma, Sri Arvind Kumar Mishra
Counsel for the Respondents
C.S.C., Sri Rahul Shukla
U.P. Basic Education Act 1972-Section
3(2),
14,
15(5)-Ban
imposed
on
appointment of class IV employee by G.O.
06.01.2011-in
recognized
institutionsheld-arbitrary,discriminatory
exploitative
in
nature-taking
away
provision
of
appointment
contrary
to
statutory
provisions-and engagement
outsourcing
nothing but a system of supply of work
force through contractor-already quashed
being violative of Art. 14 and 16 of
Constitution-same being adopted in Basic
Education also-order impugned quashedwith follow up direction.
Held: Para-8 & 13
8. Thus, considering the scheme relating
to appointment on Class IV posts in a
Junior High School, I am of the opinion
that the reasoning given in the judgment
rendered in the case of C/M Lal Babu
Baijal Memorial Inter college (supra),
would also apply to the institutions
governed by the Uttar Pradesh Basic
Education Act, 1972. The Management is
under mandate of law to fill vacancies
within two months of its occurrence and
in
accordance
with
the
procedure
prescribed under the Rules, which does
not permit employing services of Class
IV employees by 'outsourcing'.
13. In view of above discussion, this writ
petition is allowed. The order dated
27.9.2014 passed by the District Basic
Education Officer, Barabanki is quashed.
The
Management
shall
be
free
to
advertise the vacancies. However, it is
provided that the Management shall
specifically mention in the advertisement
that the selection would be held subject
to decision of this Court in special appeal
No.1023 of 2012 pending against the
judgment of this Court dated 21.3.2012.
The District Basic Education Officer,
Barabanki is further directed to act in
accordance with law and nominate a
specialist in case any such request is
made
by
the
Management,
after
following the procedure prescribed for
advertising
the
vacancies.
These,
directions are without prejudice to the
power of the District Basic Education
Officer to examine the validity of the
selection at the stage of grant of
approval under Rule 15 (5).
Case Law discussed:
W.P. No. 11760 of 2011
1348
 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Manoj Kumar
Gupta, J.)
1. Heard counsel for the petitioner,
learned
Additional
Chief
Standing
Counsel Sri Devendra Upadhyay on
behalf of respondent no.1 and Sri Rahul
Shukla on behalf of respondent no.2. With
their consent, this writ petition is being
disposed of finally, as the respondents
state that they have already obtained
instructions in the matter and do not wish
to file formal counter affidavit.
2. The petitioner is the Committee of
Management of a recognised Junior High
School receiving grant-in-aid from the
State Government. The provisions of the
Uttar Pradesh Junior High Schools
(Payment of Salaries of Teachers and
other Employees) Act, 1978 and the Uttar
Pradesh
Recognised
Basic
Schools
(Junior High Schools) (Recruitment and
Conditions of Service of Ministerial Staff
and Group 'D' Employees) Rules, 1984
(hereinafter referred to as '1984 Rules')
are applicable to it. The petitioner is
aggrieved by order dated 27.9.2014
passed by District Basic Education
Officer,
Barabanki-respondent
no.2,
whereby, he had refused to accord
permission
to
the
Management
to
advertise two vacant Class IV posts. The
reasoning given in the order is that under
Government Order dated 6.1.2011 there is
a ban on appointment against Class IV
posts.
These
posts,
according
to
respondent no.2, would automatically
come to an end after the retirement of
incumbents working against these posts.
3. Learned counsel for the petitioner
contended that the Government Order
dated 6.1.2011 has been struck down as
illegal, arbitrary and violative of Articles
14 and 16 of the Constitution vide
judgment dated 21.3.2012 rendered in a
bunch of writ petitions, leading case being
Writ Petition No.11760 of 2011 C/M Lal
Babu Baijal Memorial Inter college and
another Vs. State of U.P. and others. It is
submitted that against the said judgment,
the
State
preferred
Special
Appeal
(Defective) No.1023 of 2012, which is
still pending and no interim order has
been passed therein. Thus, according to
him, the judgment dated 21.3.2012 in the
case of C/M Lal Babu Baijal Memorial
Inter college (supra) is binding on
respondent no.2. It is further contended
that in fact District Basic Education
Officer was not authorised to withhold
approval for advertising the posts, as no
such power is conferred in his favour
under Rules 1984, which governs the
appointment on Class IV posts.
4. On the other hand, learned
Additional Chief Standing Counsel and
Sri Rahul Shukla appearing on behalf of
the respondents contended that judgment
in the case of C/M Lal Babu Baijal
Memorial
Inter
college
(supra)
is
applicable
only
in
relation
to the
Intermediate Colleges and would not
apply to the colleges governed by the
Uttar Pradesh Basic Education Act, 1972.
However, it is not disputed by them that
the judgment rendered therein dated
21.3.2012 has not been stayed/set aside by
any court. Sri Rahul Shukla further states
that, infact, no permission was required
by the Management from District Basic
Education Officer, Barabanki for issuing
the advertisement and they were only
required to intimate the vacancies.
5. I have considered the submissions
made by learned counsel for the parties
and perused the record.
3 All].
C/M Vikas Madhyamik Vidyalay Tindola Vs. State of U.P. & Anr.
1349
6. The Government Order dated
6.1.2011
places
prohibition
on
appointment against Class IV posts in
various educational institutions, receiving
grant-in-aid.. It is provided that such posts
in future shall be filled by 'outsourcing'.
The Court, in the case of C/M Lal Babu
Baijal Memorial Inter college (supra),
examined
the
provisions
of
the
Intermediate Education Act, 1921, the
Regulations
framed
thereunder,
and
thereafter, came to the conclusion that
Class IV posts are integral part of any
educational institution and introduction of
the
scheme
of
appointment
by
outsourcing, is violative of Articles 14
and 16 of the Constitution of India.
Relevant findings, in this regard, in the
said judgment are as under:-
"61. Moreover, in the context of
what it has permitted to be done by
educational institutions, there also I am of
the view that this order is palpably
arbitrary, discriminatory, exploitative in
nature and, therefore, suffers the voice of
contravening constitution provision under
Article 14 and 16. It is not a case where
requirement
of
Class-IV
staffs
in
educational institutions has been done
away. The existing sanctioned posts of
Class-IV have not been abolished. It is
nobody's case that henceforth educational
institutions shall not require any Class-IV
staffs in its functioning. What it suggests
and try to endeavour is that the
educational institutions shall not employ
Class-IV staff directly on their own so as
to function and discharge the duties of
Class-IV staff under the administrative
and otherwise control of institution, but,
the work supposed to be performed by
Class-IV staff would be required to be
done through the staff made available by
an outside agency and by that agency's
staffs. In true sense though it is termed
"outsourcing", but it does not satisfy the
requirement of term "outsourcing", as
discussed above.
62. The normal functions of Class-IV
staff in a secondary educational institution
is ringing of bell, opening of class rooms,
cleaning, providing stationary etc. from
office to class teachers, taking files and
other documents like examination copies
etc. from one place to other and similar
other menial job. All this work of ClassIV has to be performed by a person
present in educational institution itself. It
cannot be performed sitting outside the
educational institution. Therefore, what
the G.O. suggests is that for performing
menial job of Class-IV, the workers shall
be made available by a third party, by
whatever name it may be called, may be a
labour supplier, may be a Service
Provider or else but in effect it amounts to
introduction
of
a
"middleman"
for
arranging Class-IV employees to perform
the job of Class-IV in educational
institutions for which the institutions shall
pay the service charges which would
include wages/salary of such person
(Class-IV) and also the service charges of
third party. This is nothing but a kind of
contract labour arrangement.
63. Introduction of a middlemen
where the requirement is perennial,
continuous and permanent has been
deprecated time and again and many
statutes enacted with an objective to
exclude middleman have been held to be
in public interest. This is really strange
that herein the State Government intend to
introduce a system of middleman when it
is not already there. Learned Additional
Advocate General also could not explain
that besides wages/salary of the person
who would be available to educational
institution for performing the job of
1350
 INDIAN LAW REPORTS ALLAHABAD SERIES
Class-IV employee, the service charges to
third party would also be paid and in these
circumstances
how
it
can
be
an
arrangement for saving the cost. To this
query he could not reply at all.
64. In my view, therefore, though the
concept of making available the staff to
perform Class-IV job by outside agency
though termed "Outsourcing" but it is
nothing but a system of supply of work
force through a contractor or a person
who satisfy the term "contractor" for all
purposes though termed as "outsourcing".
Hence the system as contemplated in Para
2
of
impugned
G.O.
is
evidently
exploitative,
arbitrary,
unreasonable,
irrational, illogical, hence violative of
Article 14 and 16 of the Constitution.
7. Under the Rules 1984 framed
under sub-section (1) of Section 19 of the
Uttar Pradesh Basic Education Act, 1972,
a wholesome procedure is prescribed for
filling up Class IV posts. Rule 3(2)
prescribes that if any vacancy occurs
during an academic session, it shall be
filled within two months from the date of
occurrence of vacancy. Rule 13 provides
that no vacancy shall be filled, except
after its advertisement in at least one
newspaper having adequate circulation in
the locality and after intimation of such
vacancy to the District Basic Education
Officer.
Under
Rule
14,
Selection
Committee
comprises
of
Manager,
Headmaster of the recognised school in
which the appointment is to be made and
a specialist nominated by the District
Basic Education Officer. The Selection
Committee,
after
interviewing
the
candidates, forwards the list to the
Management, who is enjoined with the
duty to place the same before the District
Basic Education Officer within one week.
Thereafter, the District Basic Education
Officer is conferred with power to accord
approval to the recommendation made by
the Selection Committee. Rule 15 (5) (iii)
further states that in case the District Basic
Education Officer does not communicate
his decision within one month from the date
of receipt of the papers under clause (4), he
shall be deemed to have accorded approval
to the recommendations made by the
Selection Committee. Under Rule 16, the
Management
is
authorised
to
issue
appointment letter on receipt of approval or
on expiry of period of one month provided
under Clause (iii) of the Sub-Rule 5 of Rule
15.
8. Thus, considering the scheme
relating to appointment on Class IV posts
in a Junior High School, I am of the
opinion that the reasoning given in the
judgment rendered in the case of C/M Lal
Babu Baijal Memorial Inter college
(supra),
would
also
apply
to
the
institutions governed by the Uttar Pradesh
Basic
Education
Act,
1972.
The
Management is under mandate of law to
fill vacancies within two months of its
occurrence and in accordance with the
procedure prescribed under the Rules,
which does not permit employing services
of Class IV employees by 'outsourcing'.
9. As regards the contention of the
respondents that special appeal is pending
against the aforesaid judgment, it is
admitted to both the parties that there is
no stay in the special appeal and thus, the
said judgment still holds the field and
would be binding on the authorities. This
is, however, subject to any contrary
decision in special appeal, which is stated
to be pending.
10. In view of the above, I am of the
opinion that District Basic Education
3 All].
Phool Singh Vs. State of U.P. & Ors.
1351
Officer, Barabanki was not justified in
restraining
the
Management
from
advertising the posts.
11. There is another aspect of the
matter. Under Rule 13, the Management
is only required to intimate the vacancy to
District Basic Education Officer and its
approval for advertising the same in the
newspaper was not required. The grant of
approval to the selection made on Class
IV post by the Management comes at a
later stage under sub rule (5) of Rule 15.
In view of this, there was no justification
on part of District Basic Education
Officer to pass the impugned order,
refusing
to
accord
approval
for
advertising the post. Sri Rahul Shukla
appearing on behalf of Basic Education
Officer also supported the submission
made by the petitioner, in this regard.
12. Learned counsel for the
petitioner
submitted
that
there
is
apprehension
that
District
Basic
Education Officer, who has passed the
impugned order, would not nominate the
specialist in the Selection Committee and
would thereby, scuttle the selection
process. The aforesaid apprehension of
the petitioner can be taken care of by
providing that District Basic Education
Officer shall nominate the specialist in
case request is made to him by the
petitioner, after due advertisement of the
vacancies. However, after the Selection
Committee makes recommendation, the
District Basic Education Officer shall be
empowered to take decision on its own
merits, regarding grant of approval to
such appointment.
13. In view of above discussion, this
writ petition is allowed. The order dated
27.9.2014 passed by the District Basic
Education Officer, Barabanki is quashed.
The Management shall be free to
advertise the vacancies. However, it is
provided that the Management shall
specifically mention in the advertisement
that the selection would be held subject to
decision of this Court in special appeal
No.1023 of 2012 pending against the
judgment of this Court dated 21.3.2012.
The District Basic Education Officer,
Barabanki is further directed to act in
accordance with law and nominate a
specialist in case any such request is made
by the Management, after following the
procedure prescribed for advertising the
vacancies. These, directions are without
prejudice to the power of the District
Basic Education Officer to examine the
validity of the selection at the stage of
grant of approval under Rule 15 (5).
14.

Subject
to
aforesaid
observations/directions,
writ
petition
stands allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.11.2014
BEFORE
THE HON'BLE SUNEET KUMAR, J.
Civil Misc. Writ Petition No. 36130 of 2014
Phool Singh
...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri A.C. Tiwari
Counsel for the Respondents
C.S.C., Sri Jagdish Pathak, Sri Anil Tiwari
(A) U.P. Municipalities Act 1916, read
with U.P. Municipal Board Servants
(Inquiry Punishment and Termination of