# Neel Kamal Pandey v. State of U.P. and others

- **Citation:** (2003) 3 ILRA 859
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-08-06
- **Case number:** Civil Misc. Writ Petition No. 42079 of 2001
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/neel-kamal-pandey-v-state-of-u-p-and-others-40217
- **Pages:** 5

## Headnote

Kanpur University-Section 21.03 first
statute
of
class
IV
employeeappointment to be made by Principal
after
obtaining
the
approval
from
Director who has to pass appropriate
order within 2 months.

Held: Para 21

As per the requirements of section 21.03
of the first statutes of Kanpur University,
prior
approval
is
necessary
before
appointment by the authority and no
illegality has been committed in denying
the approval to the selection of the
petitioner. Further the rejection of the
approval order has been issued after
giving full and proper opportunity to the
College authorities who were competent
to challenge the order in question. The
applicant is required to be appointed just
again the same category and the case of
the sweeper is of other than the S.C.
category. After enforcement of the Act
no. 4 of 1994, the G.O. has been
superceded as these facts are taken
cognizance by the Act itself, which is
also in conformity to schedule I annexed
along with Act of 1994, which is for the
backward class category.

## Text

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3 All] Neel Kamal Pandey V. State of U.P. and others
859
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 6.8.2003

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 42079 of 2001

Neel Kamal Pandey

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Dharmendra Kumar

Counsel for the Respondents:
Sri Krishna Kumar
Sri B.L. Shukla
Sri Anshu Chaudhary
S.C.

Kanpur University-Section 21.03 first
statute
of
class
IV
employeeappointment to be made by Principal
after
obtaining
the
approval
from
Director who has to pass appropriate
order within 2 months.

Held: Para 21

As per the requirements of section 21.03
of the first statutes of Kanpur University,
prior
approval
is
necessary
before
appointment by the authority and no
illegality has been committed in denying
the approval to the selection of the
petitioner. Further the rejection of the
approval order has been issued after
giving full and proper opportunity to the
College authorities who were competent
to challenge the order in question. The
applicant is required to be appointed just
again the same category and the case of
the sweeper is of other than the S.C.
category. After enforcement of the Act
no. 4 of 1994, the G.O. has been
superceded as these facts are taken
cognizance by the Act itself, which is
also in conformity to schedule I annexed
along with Act of 1994, which is for the
backward class category.

(Delivered by Hon'ble Rakesh Tiwari, J.)

Heard counsel for the parties and
perused the record.

2. This writ petition arises out of an
order-dated 29.9.2001 passed by the
Regional
Higher
Education
Officer,
Kanpur Nagar.

3. By the aforesaid impugned order
the approval to the appointment of the
petitioner as class IV employee (Book
Lifter) in the Laxmi Yadunandan Degree
College, Kayamganj, Farrukhabad has
been refused.

4. The Laxmi Yadunandan Degree
College, Kayamganj, Farrukhabad is a
non-government Aided Degree College,
affiliated and is governed by First Statute
of
Kanpur
University,
U.P.
State
Universities
Act,
1973
and
the
Government orders issued from time to
time.

5. As per the first statute of
University of Kanpur an appointment for
the post of Class IV in a college, is to be
made by the Principal of the College after
making selection, the principal of the
college is required to take approval of the
selection so made from the Director of
Higher Education or an officer authorized
by him. After verifying and satisfying the
facts that all the formalities of selection
have been complied by the principal in
fair
manner
and
rules
relating
to
reservation have been followed, order of
approval or disapproval is communicated.
The provisions of Section 21.02 and 21.03
are as follows:
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860 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
21.02 (1) Subject to the provisions of
these Statutes the appointment to the posts
referred to in Statute 21.03 shall be made
by the Management of the College and
appointment to the posts of Class IV
employees shall be made by the principal.

(1) The appointment authority referred
to in clause (1) shall have the power to
take
disciplinary
action
and
award
punishment against the class of employee
of which he is appointing authority.

(2) Every decision of the appointing
authority referred to in clause (2) shall,
before
it
is
communicated
to
the
employee, be reported to the District
Inspector of Schools and shall not take
effect unless it has been approved by him
in writing Provided that nothing in this
clause shall apply to any termination of
service on the expiry of the period for
which the employee was appointed;

Provided further that nothing in this
clause shall apply to an order of
suspension pending inquiry, but any such
order may be stayed, revoked or modified
by the District Inspector of Schools.

(3) An appeal against the order referred
to in clause (2) and (3) shall lie to the
regional Dy. Director of Education.

21.03
(1) Appointment to the post of
librarian, Deputy Librarian, Physical
Education Instructor, Pharmacist, Routine
Grade Clerk on any other post either in
the pay scale of, or in pay scale hi9gher
than that of, Routine Clerk other than the
posts mentioned in clause (2) or clause (3)
shall be made by direct recruitment of the
recommendation of Selection Committee
in the manner provided in clause (6) after
advertisement of the vacancy in the
newspaper:

Provided that the post of Librarian
shall be filled by promotion from the post
of Deputy Librarian if the incumbent of
the latter post possesses the prescribed
minimum qualification for the post of
Librarian;

(3) Appointment to the post of
Head Clerk cum Accountant, Head clerk,
officer superintendent and bursar shall be
made by promotion according to seniority
subject to suitability and fitness from
amongst the existing employees having
required qualification and appointment to
the posts of head clerk cum accountant,
Head Clerk, Officer superintendent and
bursar may be made by direct recruitment
on
the
basis
of
selection
after
advertisement
of
the
vacancy
in
newspapers.

(3) Appointment of employees shall be
subject to the approval of the Director of
Education (Higher Education), or an
officer authorized by him in this behalf. If
the approving authority does not within
two months from receiving the proposal
intimate its disapproval or does not sent in
respect of such proposal, any intimation.
To the appointing authority the-approving
authority shall be deemed to have
approved the appointment.

(4) (a) The selection committee for
appointment to the post of librarian,
Deputy Librarian or Physical Training
Instructor, Deputy Librarian or Physical
Training Instructor shall consists of :-
(i) The head of the management or a
member of the management nominated by
him, who shall be the chairman,
(ii) The principal of the College;
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3 All] Neel Kamal Pandey V. State of U.P. and others
861
(iii) One officer to be nominated by the
Direct of Education (Higher Education).
(b) The selection committee for the
appointment to the remaining posts
referred to in clause (1) or clause (3)
either by direct recruitment or by
promotion shall consist of:

6. A perusal of the statutes
aforesaid, shows, that once selection
process is completed and papers are sent
for approval, it is for the Regional Higher
Education Officer, respondent no. 2 to
pass appropriate order within two months
time.

7. It is submitted by the petitioner
that
though
quarry
was
made
on
24.5.2001 as has also been admitted by
the authority, but the orders disapproving
the appointment of the petitioner were not
passed within two months as required
under statute 21.07 of the Kanpur
University and as such the impugned
order dated 29.9.2001 is illegal and
without jurisdiction.

8. The facts of the case in brief are
that the post aforesaid occurred on
account of promotion of one-class IV
employees. On 17.1.2001 the sanction for
filling up the post was granted by
respondent no. 2 and a list of eligible
candidates was requisitioned from the
Employment Exchange in pursuance
thereof. Apart from above the post is also
said to have been advertised in daily
newspaper i.e. Aaj so as to get the best
candidate for the said post. The petitioner
was selected and his papers were sent by
the principal on 8.4.2001 for approval
from respondent no. 2.

9. Some objections were raised by
the respondent no. 2 that reservation of
Schedule Caste Quota was not filled. The
objections were replied by the principal
by means of letter dated 13.8.2001.
Respondent no. 2 vide letter dated
29.2.2001 disapproved the appointment of
the petitioner on the post of Class IV
employee. He also referred to G.O. dated
5.6.1987 in which sweeper was shown as
separate post to class IV post. This G.O.
appears to be applicable to corporation
only and not to Degree College.

10. In the impugned order dated
29.9.2001 respondent no. 2 also stated
about Government order dated 5.6.82 in
which sweeper is a Class IV employee.
This appears from Government Order
dated 14.3.1984 appended as annexure II
to the writ petition, which shows that the
post of Sweeper is included in the Class
IV employee in a college.

11. As per notification dated
29.3.1994 for the purpose of appointment
of Class III and IV posts, a roster list is
also to be prepared by the officer of the
appointing
authority
and
all
the
appointments
are
to
be
made
in
accordance with that roster system of
poster.

12. A perusal of roster-dated
29.3.1994 (annexure 12 to the writ
petition) shows that serial no. 12 is a nonreserved point, which is to be filled up by
the candidates of General Category. There
are eleven posts of class IV employees
sanctioned in the college out of three post
are for reserved categories and two for
General Category and 50 percents of the
seats are to be filled up by the reserved
category i.e. ST/SC/OBC etc by the
General Category candidates. In the
supplementary affidavit filed by the
petitioner it is averred that roster points
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862 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
available
for
General
category
are
6,8,10,12. Sri Shyam Lal, Class IV
employee belongs to Schedule Caste
category while seven others belong to
O.B.C. category. Sri Vivek Kumar and
Anil Kumar are working in the General
Category.

13. The attention of the Court is
drawn to the annexure 2 and 3 filed
alongwith supplementary affidavit perusal
of which shows that one vacancy of class
IV was advertised in the year 1999
against which one O.B.C. candidate was
appointed.

14. It is submitted that the petitioner
belonging to General Category has rightly
been selected and appointed against the
roster point number 12 under General
Category.

15. The counsel for the petitioner
states that papers for the approval of the
petitioner for the appointment of the of
Class IV employee were sent without
properly applying the reservation quota
and roster system. It is submitted on
behalf of the respondent that a query was
made by the Regional Higher Education
Officer
vide
letter
dated 24.5.2001
regarding approval of selection. The
principal vide letter dated 11.6.2001 sent
reply, that no General candidate was
available at that point of time. The reply
was found satisfactory by respondent no.
2 and again he made a query vide letterdated 1.8.2001 about the present position
of reservation quota and roster system
from the college. In response the college
by letter dated 13.8.2001 stated that there
were 11 class IV employees working in
the college and their present position was
as under:-

A. General - 06
B. O.B.C. - 03
C. S.C. - 03

16. These aforesaid posts do not
include post of Sweeper, as it is not
included in
reservation and
roaster
system. That on the basis of above
statement, against the 12th post of Class
IV, the implemented in accordance with
reservation Act, 1994. But the College has
proposed
the
appointment
in
the
following order of reservation quota.

General - 03
O.B.C. - 07
S.C. -
 01 (+1=2)
(Total 12 posts including the post of
Sweeper)

17. It is further submitted that the
post of sweeper is not included in
reservation and roaster system. On the
aforesaid basis it is submitted that the
order passed by the Regional Higher
Education Officer was fair and legal and
there is no violation in denying the
approval of the selection to the petitioner
as the 12th post in aforesaid circumstances
was to be filled by a candidate of S.C. and
the appointment of the petitioner against
the post of reserved category was not
proper.

18. The qualification and conditions
of services of non-teaching staff of the
College
of
Kanpur
University
are
contained in the first statute of the
University.

19. Counter affidavit has been filed
by
the
Regional
Higher
Education
Officer, Kanpur Nagar, in which it is
averred that the state Government, passed
U.P. Act No. 4 of 1994 for the upliftment
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863
of financial and social condition of the
weaker section of the society and also
order dated 15.11.1994 has also been
issued by the state Govt., providing that
all appointment in the Universities and
colleges, shall be made in accordance
with the aforesaid U.P. Act no. 4 of 1994.

20. Thus is in the nutshell, the
arguments of the respondent are that the
selection was not in contravention of the
provisions of U.P. Act No. 4 of 1994 and
notification dated 29.3.94 as well as read
with G.O. dated 15.11.94.

21. As per the requirements of
section 21.03 of the first statutes of
Kanpur University, prior approval is
necessary before appointment by the
authority and no illegality has been
committed in denying the approval to the
selection of the petitioner. Further the
rejection of the approval order has been
issued after giving full and proper
opportunity to the College authorities who
were competent to challenge the order in
question. The applicant is required to be
appointed just again the same category
and the case of the sweeper is of other
than the S.C. category. After enforcement
of the Act no. 4 of 1994, the G.O. has
been superceded as these facts are taken
cognizance by the Act itself, which is also
in conformity to schedule I annexed along
with Act of 1994, which is for the
backward class category.

22. From the record and the
contention of parties it is apparent that 12
posts are required to be filled as per roster
point no. 6. The averments made in
paragraph 15 of the writ petition are
uncontroverted. It is clear that the
authority had not given any opportunity to
the petitioner. Making an enquiry from
the University does no amount to giving
an opportunity to the person who was
being visited by civil consequences due to
illegal termination of his service, By the
impugned order dated 29.9.2001.

23. That the respondent no. 2
without any basis raised objection and
disapproved
the
selection
of
the
petitioner. The G.O. dated 5.6.82 only
states that list of class IV employee of the
schedule caste will be divided into two
parts firstly class IV employee in which
the sweepers are not included and
secondly class IV employee included in
only sweepers list. Shyam Lal belonged to
S.C.
category,
not
counting
the
candidature
of
sweeper
within
the
Scheduled caste. At the same time another
default is made, as sweeper has not been
shown in any other category. The
counting of roster in this manner is faulty
and deserves to be rejected.

24. In view of the aforesaid facts
and position of law, the writ petition is
allowed. The impugned order dated
29.9.2001 is quashed. Respondent no. 1 is
directed to approve considering of the
appointment of the petitioner within a
period of one month from the production
of a certified copy of the order No. order
as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.03.2003

BEFORE
THE HON'BLE R.B. MISRA, J.

Civil Misc. Writ Petition No. 1384 of 1999

Rajendra Singh Yadav
...Petitioner
Versus
Inspector General of Police, C.R.P.F.,
Lucknow and others
 ...Respondents