# Santosh Singh &Ors v. State of U.P. &Ors

- **Citation:** (2019) 1 ILRA 773
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-19
- **Case number:** Writ-A No. 1513 of 2019
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/santosh-singh-ors-v-state-of-u-p-ors-44474
- **Pages:** 5

## Headnote

C.S.C., Sri Satya Prakash Mishra

A. Refusal by the D.I.O.S, Azamgarh to
grant approval to the appointment of
petitioners on Class IV Posts.

Held:-In Writ A No.12642 of 2007 the matter
was remanded to the District Inspector of
Schools for reconsideration only on the issue of
verification of the records in order to verify the
exact sanctioned strength of Group D employees
in the Institution and in case of sufficient
vacancies, the DIOS was directed to consider the
question of granting of approval to the
petitioners. The DIOS while considering the
above-mentioned issue has travelled beyond the
direction of this Court and taken note of the
other issues such as pendency of another writ
petition, appointment by outsourcing only and
Janshakti 2013 in order to reject the claim of the
petitioners.

 The DIOS vide impugned order has come to
the conclusion that there are five vacant posts
of Class IV in the Institution. Therefore,
substantial justice will be done to five
petitioners out of total seven petitioners, who
are raising their cause since 2004, if they are
adjusted against the said five vacant posts.
Petition partly allowed to that extent. (E-3)

## Text

1 All. Santosh Singh & Ors. Vs. State of U.P. & Ors.
773
Chancellor and the Chancellor are not
orders of administrative nature but quasijudicial
orders
adjudicating
valuable
rights of the parties.

59. In view of the aforesaid facts
and circumstances, in our opinion, the
order of the Chancellor as well as that of
the Vice Chancellor are unsustainable in
law and the petitioner is entitle to her
seniority from the date of her substantive
appointment i.e. 20.06.1991 whereas the
contesting private respondents No. 8 to 11
are entitle to their seniority from the date
of the regularization of their services i.e.
28.06.1992 and not with any other interior
date as their regularization was not under
Section 31 (3) (b) of the Act so as to
attract Statute 15.08 (e) of the Statute.

60. All the respondents are accordingly
directed to amend the seniority list qua the
petitioner and contesting private respondents No.
8 to 11 only and to proceed accordingly for the
purposes of seniority and for ancillary purposes.

61. The writ petition is allowed with
no order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.08.2019

BEFORE
THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ-A No. 1513 of 2019
with Writ-A No. 6048 of 2019

Santosh Singh &Ors. ...Petitioners
Versus
State of U.P. &Ors. ...Respondents

Counsel for the Petitioners:
Sri Arun Kumar Singh, Sri Vinod Kumar
Singh Parmar
Counsel for the Respondents:
C.S.C., Sri Satya Prakash Mishra

A. Refusal by the D.I.O.S, Azamgarh to
grant approval to the appointment of
petitioners on Class IV Posts.

Held:-In Writ A No.12642 of 2007 the matter
was remanded to the District Inspector of
Schools for reconsideration only on the issue of
verification of the records in order to verify the
exact sanctioned strength of Group D employees
in the Institution and in case of sufficient
vacancies, the DIOS was directed to consider the
question of granting of approval to the
petitioners. The DIOS while considering the
above-mentioned issue has travelled beyond the
direction of this Court and taken note of the
other issues such as pendency of another writ
petition, appointment by outsourcing only and
Janshakti 2013 in order to reject the claim of the
petitioners.

 The DIOS vide impugned order has come to
the conclusion that there are five vacant posts
of Class IV in the Institution. Therefore,
substantial justice will be done to five
petitioners out of total seven petitioners, who
are raising their cause since 2004, if they are
adjusted against the said five vacant posts.
Petition partly allowed to that extent. (E-3)

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. Petitioners in the present writ
petition have earlier approached this
Court by way of filing Writ A No.12642
of 2007 (Santosh Singh and others Vs.
State of UP), challenging the order dated
13.12.2006
whereby
the
financial
approval to the selection of the petitioners
as Class-IV employees at the respondent's
college was declined. The said writ
petition was disposed of with the
following observation and directions :-

"I further find from the discussion
part coming in the impugned order that
774 INDIAN LAW REPORTS ALLAHABAD SERIES
the District Inspector of Schools has not
been able to give any cogent and
convincing finding as to how 13 vacancies
come to be recorded as sanctioned
strength of Group D positions even as per
the financial Survey 1988-89 if in the
subsequent report of the year 2008, the
District Inspector of Schools has come to
record
that
there
were
14
posts
sanctioned. Such findings by District
Inspector of Schools must have been after
due verification. However, in the present
impugned order he does not state as to
what is the source of the verification. It is
clearly established that the financial
survey is not ultimate verdict on the
question of the sanctioned strength.
Sanctioned strength means is the strength
sanctioned by the State Government or by
the Competent Authority. The financial
survey subsequently carried out is only
relating to the strength of the students and
requirement
but
by
that
the
real
sanctioned strength cannot be washed
away and the District Inspector of
Schools is hide bound in law to record
categorical findings of fact regarding
sanctioned strength. Apart from this, the
District Inspector of Schools has come to
consider that there were at least 6
sanctioned posts available then the entire
selection cannot go. On the date of
consideration of approval, he has to
consider whether the persons who have
been selected and whose appointment is
proposed can be appointed in the
Institution or not unless and until he
comes to record a finding that there were
serious procedural flaw in the selection
procedure and that selection process was
do hors the rules and that selection was
violating the procedure in matter of
public employment being offered to the
principles authorized under Article 14
and 16 of the Constitution. In absence of
any such findings being recorded, the
District Inspector of Schools ought to
have considered the present strength of
Group-'D' positions in the Institutions
even going by the factor of 13 as
determined by him in the impugned order.

In view of the fact that the
subsequent report, 2008 records that
there were only class-III employee
working in the Institution, I am of the
considered opinion that the District
Inspector of Schools while considering
the question of approval shall take
pragmatic
view
of
the
entire
circumstances of the case prevailing at
present. The question of prior approval
for the purposes of recruitment in
selection and the constitution of Selection
Committee having been answered in
affirmative in favour of the petitioners, I
am while quashing the order of the
District Inspector of Schools dated 13th
December, 2006 remitting the matter for
the limited consideration on the issue of
sanctioned strength only. The District
Inspector of Schools shall reconsider the
matter and shall verify the records as to
what is the exact sanctioned strength of
the Group-D employees in the Institution.
He will also consider as to what number
of employee is actually working in the
Institution. In case, he finds that there are
sufficient vacancies, he shall consider the
question of granting approval to the
petitioners from that angle as well.

With the aforesaid observations and
directions the writ petition is allowed."
(emphasis supplied)

2.

In
compliance
of
abovementioned order dated 21.05.2018, the
District Inspector of Schools, Azamgarh
vide order dated 26.10.2018 declined to
grant approval of the petitioners as well as
1 All. Santosh Singh & Ors. Vs. State of U.P. & Ors.
775
of three other persons (Petitioners in the
connected Writ Petition No.6048 of 2019,
Santosh Kumar Singh vs. State of U.P.
and others)on the post of Class IV
employees. The said order is under
challenge in both the writ petition.

3. Shri Anil Bhushan, learned Senior
Advocate assisted by Shri Arun Kumar
Singh, Advocate and Shri Vinod Kumar
Singh Parmar, Advocate on behalf of the
petitioners submitted that this Court vide
order dated 21.05.2018 has directed the
District Inspector of Schools to reconsider
the matter only on the limited issue to
verify the record as to what is the exact
strength of the Group D employees in the
Institution. However, the respondent -
DIOS has travelled beyond the said
direction and declined the approval of
petitioners and others on the ground that
the appointment on the post of Class-IV
in such colleges have to be made only by
way of outsourcing. The other ground for
rejection is Janshakti (Student-Teacher
ratio) dated 22.02.2013.

4. Learned counsel further submitted
that the maters was remanded back to the
DIOS for reconsideration only on the limited
issue to verify the record as to what is the
sanctioned strength of the Group D employees
in the Institution. The DIOS has also wrongly
considered the effect of pendency of Writ
Petition No.15913 of 2018 (Ajesh Soni Vs.
State of UP) which was relating to the
appointment made in the year 2016 on the
post of Class-IV employees. The further
submission made by learned Senior Counsel
is that presently 9 vacant posts of Class-IV
employees are available in the college.

5. Learned Senior Counsel also
submitted that this Court in the judgement
passed in the matter of Principal
Abhyanand College and another Vs.
State of UP and others reported in 2018
Law Suit (LSS) 4099 wherein it has held
that the order of the Government to the
effect that Class IV posts can be filled
only by way of outsourcing is bad in law
and further ratio of strength of students to
availability of posts (Janshakti) which
was determined in the year 2013 cannot
be made applicable retrospective as the
appointments in the present matter are of
the year 2006. On the basis of these
submissions, learned counsel submitted
that impugned order is illegal, arbitrary
and is liable to be rejected.

6. Shri R.P. Dubey, Additional Chief
Standing Counsel appearing on behalf of
respondents No. 1 to 3 has relied upon the
counter affidavit filed on behalf of the said
respondents and relied upon contention of
para 8 of the counter affidavit that

"That the contents of paragraph12 and 13 of the Writ Petition are not
admitted as stated, hence denied. In
reply thereto it is submitted that in
absence of any clarity in respect of
availability of vacant posts of Class IV
Employees
in
the
Institution
in
question, therefore, it was not legally
permissible to grant approval to the
appointment of alleged 7 Peons in the
Institution."

7. Learned counsel further stated
that at present only 5 posts are vacant.
Therefore, financial approval to 7 posts
cannot be granted. Learned counsel
further submitted that as per the Janshakti
of 2013, only 5 posts are vacant.

8. Shri Satya Prakash Mishra,
learned counsel appearing on behalf of
respondent no. 4 - College has relied upon
776 INDIAN LAW REPORTS ALLAHABAD SERIES
a communication made by the College to
the concerned DIOS wherein it has been
specifically mentioned that in the year
2004, in all 7 Class IV employees were
superannuated and as such in the year
2007, there were 7 clear vacancies.
Learned Counsel further submitted that
this communication was not taken note of
by the DIOS in the impugned order.

9. Considered the submissions, short
notes filed on behalf of the parties and
perused the record. It is clear from the
order dated 21.05.2018 passed in the Writ
A No.12642 of 2007 that the matter was
remanded to the District Inspector of
Schools for reconsideration only on the
issue of verification of the records in order
to verify the exact sanctioned strength of
Group D employees in the Institution and
in case of sufficient vacancies, the DIOS
was directed to consider the question of
granting of approval to the petitioners. The
DIOS while considering the abovementioned issue has travelled beyond the
direction of this Court and taken note of
the other issues such as pendency of
another writ petition, appointment by
outsourcing only and Janshakti 2013 in
order to reject the claim of the petitioners.
Though the DIOS has come to the specific
conclusion that presently 5 posts of Class
IV employees are vacant, however, the
DIOS has not considered to grant approval
to at least five petitioners out of seven
petitioners of the two writ petitions. This
approach of the DIOS is not correct.

10. The stand taken by State in their
counter affidavit filed in the present writ
petition that there was absence of clarity
in respect of the availability of vacant list
of Class IV employees in the Institutionin-question is contrary to the decision
taken by the DIOS vide impugned order
that at present, 5 posts are vacant on the
basis of the record available. Therefore,
the ground of not granting approval for at
least
5
posts
by
the
DIOS
is
unsustainable. The DIOS has travelled
beyond the direction given by this Court.
As per the case of the respondent's college
in the year 2004, there were seven posts
of Class IV employees and the DIOS vide
impugned
order
has
come
to
the
conclusion that there are five vacant posts
of Class IV in the Institution. Learned
counsel for the petitioners has not able to
point out any error in the finding arrived
by the DIOS on the number of vacant
posts. Therefore, substantial justice will
be granted at least to the five petitioners
out of total seven petitioners in the writ
petitions, who are raising their cause since
2004, if they are adjusted against the said
five vacant posts.

11. The details of the 7 writ
petitioners in both the writ petitions
according to their marks obtained in the
interview are as follows :-
Sl.
No.
Names of selected
candidates
Marks
in
intervie
w
Qualifying
Category
1.
Dharamraj
Jaiswara
25
S.C.
2.
Ramesh Yadav
28
O.B.C.
3.
Ram
Sevak
Yadav
34
General
4.
Jaya Singh
33.5
General
5.
Abhishek Singh
33
General
6.
Santosh Singh
32
General
7.
Santosh
Kumar
Singh
31.5
General

12. In view of the above discussion,
this writ petition is partly allowed by
1 All. Anupati Ram Yadav Vs. State of U.P. & Ors.
777
setting
aside
the
impugned
order
26.10.2018 to the extent that DIOS after
coming to the conclusion that there are five
vacant posts but has not opted to pass order
for approval to any of the petitioners.
Accordingly, the DIOS is directed to grant
approval to petitioners at serial nos.1 to 5
(chart mentioned above) towards the five
vacant post of Class IV employees within a
period of four weeks from the date of a
certified copy of this order is produced
before him. The appointed petitioners shall
be granted salary from the date of grant of
approval. In case, any of the abovementioned five writ petitioners failed to join
the post of Class IV employees in terms of
directions passed by the DIOS, the DIOS
shall grant the appointment to the remaining
two writ petitioners namely at serial No.6
and 7 as per the merit towards the post
which remain vacant due to non-joining of
any of the petitioners mentioned in
paragraph no.11.

13. Accordingly, the writ petition is
partly
allowed
with
the
aforesaid
directions.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.07.2019

BEFORE
THE HON'BLE PANKAJ MITHAL , J.
THE HON'BLE PRAKASH PADIA, J.

Writ-A No. 29607 of 2013

Anupati Ram Yadav ...Petitioner
Versus
State of U.P. &Ors. ...Respondents

Counsel for the Petitioner:
Sri Prem Prakash, Sri Arvind Kumar Yadav

Counsel for the Respondents:
C.S.C., Sri Manish Goyal
A. Article 235 and Rule 4 of Chapter III
of the High Court Rules, 1952- Rule 3 of
the U.P. Government Servants Rule,
1956- Judicial Officer-Adverse RemarksRepresentation
Rejected-Compulsory
Retirement.
Not
punishment.
No
requirement of opportunity of hearing.

Compulsory retirement not a punishment and
involves no penal consequences - In regard to
judicial
officers,
power
of
compulsory
retirement can be exercised at any time by
Administrative Judge by invoking Article 235 of
the Constitution of India which is not
circumscribed by any Rule or Order- Awarding
annual entries either by the District Judge or
the Administrative Judge, the principles of
natural justice have no place at all- Delay in
recording annual entry by the Administrative
Judge is merely an administrative work and
would not vitiate the entry- Delay in deciding
the representation of the petitioner would
have no adverse impact upon the order of his
compulsory retirement inasmuch as it was
decided prior to the meeting of the Screening
Committee -U.P. Government Service Rules,
1995, are not applicable upon judicial officers-
Shifting of the entry from one particular year
to another would not wipe off its vigour or
sting so long as it remains to be in the zone of
the
consideration
for
the
purposes
of
compulsory retirement.

Writ Petition Dismissed.

Case Law discussed/relied upon: -

1. (1992) 2 SCC 299, Baikuntha Nath Das v.
Chief Medical Officer, Baripada & another.

2. (1998) 4 SCC 92, State of Punjab v. Gurdas
Singh.

3. (2011) 10 SCC 1, Rajendra Singh Verma
(Dead) thru LRS. & Ors v. Lt. Governor (NCT
of Delhi) &Ors.

4. (2002) 3 SCC 641, State of U.P and Others
v. Vijay Kumar Jain.

5. (2010) 10 SCC 693, Pyare Mohan Lal v.
State of Jharkhand and Others (E-3)