# Shailesh Khandelwal v. State of U.P. & Ors

- **Citation:** (2023) 5 ILRA 1714
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-06
- **Case number:** Writ A No. 23693 of 2018
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shailesh-khandelwal-v-state-of-u-p-ors-50247
- **Pages:** 17

## Headnote

Service Law- U.P. Intermediate Education
Act, 1921-Government Order dated 21st
August, 2014 clarified it that the ban as
put up on the appointments of vacant
positions
in
recognized
Intermediate
Colleges under the Government Order
dated 15th March, 2012 would not apply
to the minority institution- Chapter-II
does not deal with the clerical cadre, the
stand taken by the District Inspector of
Schools that the position of clerk having
fallen vacant in 2011 and for three months
and
no
recruitment
drive
having
undertaken within three months, the post
would stand lapsed, is absolutely a case of
misreading of the provision and resultant
misapplication of law.

The District Inspector of Schools once
takes an objection and the objection has
been duly replied, he has to evaluate and
appreciate the reply- He cannot make out
third and fourth ground to reject the claim
5 All. Shailesh Khandelwal Vs. State of U.P. & Ors.
1715
of financial approval- From the order
impugned, it clearly transpires that he has
not dealt with reply of the Committee of
Management in its correct perspective and
has not cared to appreciate the legal
position. This act and conduct of the
District Inspector of Schools does not suit
to the position he holds because his order
would be causing serious prejudice career
of a person-Result petition allowed with
direction to DIOS to accord financial
approval to the appointment of the
petitioner
as
Assistant
Clerk
in
the
institution. (Para 23, 29, 33 & 42) (E-15)

List of Cases cited:

## Text

_Characters 0–39,553 of 57,200. This is a partial read: ask again with offset=39553 for what follows._

1714 INDIAN LAW REPORTS ALLAHABAD SERIES
2015, is absolutely misconceived. The
occasion before the Visitor to examine an
order passed by the governing body or an
authority or any other body of the institute
will arise only if the Visitor receives any
reference in respect of such an order or he
decides to entertain the reference suo motu.

37. In the instant case, the respondent
No.1-petitioner has not taken recourse to
Section 42 of the Act 2015, rather has
challenged the order of the President as
communicated to her by the Director of the
Institute by means of the order dated
22.02.2023. Thus, it cannot be said that the
order of dismissal from service could not
be challenged by filing writ petition under
Article 226 of the Constitution of India
unless it is given finality by the Visitor of
the Institute. The said submission of the
learned counsel for the appellant-Institute
in our opinion, merits rejection which is
hereby rejected.

38. Even otherwise it is not a case where
the writ petition filed by the respondent No.1petitioner can be said to be not maintainable.
As already pointed out above, there lies a
difference
between
entertainability
and
maintainability of a writ petition under
Article 226 of Constitution of India. If a writ
petition for any lawful reason is not
maintainable, such a situation has to be
viewed differently. However, in case of
objection regarding entertainability of a
petition under Article 226 of the Constitution
of India, if this Court for valid reasons
decides to exercise its discretion, in our
opinion, such an order cannot be faulted with.

39. For the reasons aforesaid, we do
not find any good ground to interfere with
the order passed by the learned Single
Judge dated 13.04.2023 in Writ-A No.2822
of 2023, which is under appeal herein.

40. Resultantly, the Special Appeal is
hereby dismissed.

41. However, there will be no order as
to costs.
----------
(2023) 5 ILRA 1714
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.04.2023

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ A No. 23693 of 2018

Shailesh Khandelwal ....Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Krishna Mohan Asthana

Counsel for the Respondents:
C.S.C., Sri Sanjay Kumar Dwivedi

Service Law- U.P. Intermediate Education
Act, 1921-Government Order dated 21st
August, 2014 clarified it that the ban as
put up on the appointments of vacant
positions
in
recognized
Intermediate
Colleges under the Government Order
dated 15th March, 2012 would not apply
to the minority institution- Chapter-II
does not deal with the clerical cadre, the
stand taken by the District Inspector of
Schools that the position of clerk having
fallen vacant in 2011 and for three months
and
no
recruitment
drive
having
undertaken within three months, the post
would stand lapsed, is absolutely a case of
misreading of the provision and resultant
misapplication of law.

The District Inspector of Schools once
takes an objection and the objection has
been duly replied, he has to evaluate and
appreciate the reply- He cannot make out
third and fourth ground to reject the claim
5 All. Shailesh Khandelwal Vs. State of U.P. & Ors.
1715
of financial approval- From the order
impugned, it clearly transpires that he has
not dealt with reply of the Committee of
Management in its correct perspective and
has not cared to appreciate the legal
position. This act and conduct of the
District Inspector of Schools does not suit
to the position he holds because his order
would be causing serious prejudice career
of a person-Result petition allowed with
direction to DIOS to accord financial
approval to the appointment of the
petitioner
as
Assistant
Clerk
in
the
institution. (Para 23, 29, 33 & 42) (E-15)

List of Cases cited:

1. Mohd.Faizan & anr. Vs St.of UP & ors., 2013
(5) ADJ 471

2. Nagar Panchayat Kithore, District Meerut Vs
Presiding Authority, Labout Court, UP, Meerut &
anr., (2007) 1 SAC 567

3. RamRameshwari Devi & ors.Vs Nirmala Devi
& ors., (2011) 8 SCC 249

4. Salem Advocate Bar Association, Tamil Nadu
Vs U.O.I.AIR 2005 SC 3353

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Shri Krishna Mohan Asthana,
learned counsel for the petitioner, Shri
Sanjay Kumar Dwivedi, learned counsel
for
respondent
No.4-Committee
of
Management and learned Standing Counsel
for the State-respondents.

2.
The
respondent-Committee
of
Management
that
runs
a
minority
institution in the name of Jain Inter
College, Chaurasi, Mathura (herein after
referred to as ''4th Respondent') proceeded
to fill up the vacant situations in the faculty
of the institution as well as in the clerical
cadre by issuing separate advertisements in
two
newspapers,
namely,
Kalpataru
Express and Indian Express having wide
circulation in the area and the region. While
advertisement in respect of Assistant
Teachers in the subject of Hindi, English,
Sanskrit, Arts, Mathematics, Science and
Sociology, was published in Kalpataru
Express News Daily on 24th August, 2015
and in the Indian Express News Daily on
24th August, 2015, the advertisement in
respect
of
vacant
positions
of
Clerk/Assistant Clerk was issued in News
Daily Kalpataru on 23rd July, 2015 and
Indian Express on 5th August, 2018. Two
separate
selection
committees
were
constituted to hold selection on the post of
Assistant Teachers in the faculty of the
institution and clerk in the clerical cadre of
the institution.

3. The petitioner having post-graduate
degree in Commerce being M.Com and
CCC certificate from National Institute of
Electronics and Information Technology
applied against the post of Assistant Clerk.
The selection committee adjudged the
petitioner to be the best candidate and,
accordingly,
recommended
him
for
appointment.

4. The Committee of Management
approved the recommendation of the
selection committee and sent papers to the
District Inspector of Schools vide covering
letter dated 21st July, 2016 of the Manager
of the institution for financial approval.
Likewise,
the
selection
committee
constituted for holding selection to various
positions of Assistant Teachers in subjects
advertised, selected Smt.Shweta Tiwari,
Smt.Babita, Shri Jitendra Singh, Shri Rajiv
Kumar, Dr.Hemant Chaudhari and one
other in the respective subjects against the
positions of Assistant Teachers advertised
and the papers were also forwarded to the
District Inspector of Schools for financial
approval.
1716 INDIAN LAW REPORTS ALLAHABAD SERIES

5.
In
respect
of
all
these
recommendations, the District Inspector of
Schools took up various objections and
rejected the claim for financial approval in
respect of Smt.Shweta Tiwari, Smt.Babita,
Shri Jitendra Singh and Shri Rajiv Kumar
in respect of these selections and to did not
proceed to pass any order.

6. Ultimately, out of all these selectees
four teachers, namely, Smt.Shweta Tiwari,
Smt.Babita, Shri Jitendra Singh and Shri
Rajiv Kumar filed Writ-A No.26403 of
2018 before this Court in which direction
was issued for the District Inspector of
Schools to dispose of their representation
for approval and payment of salary.
Mr.Krishna Pal Singh, District Inspector of
Schools rejected their claim on various
grounds as under:

(i) The post had lapsed so there
could not have been any appointment
without revival of these posts;

(ii)
There
was
no
valid
Committee
of
Management
in
the
institution
to
hold
selection
and
appointment;

(iii) The written test ought to
have been held and then on the basis of
marks obtained by the candidates the
selection should have been held.

7. This order came to be again
challenged before this Court by those very
writ petitioners being Writ-A No.7856 of
2019. The writ petition was allowed setting
aside the order of the District Inspector of
Schools vide judgment and order dated
17th May, 2019 remitting the matter for
decision afresh. Mr.Krishna Pal Singh,
District Inspector of Schools, again rejected
the claim vide order dated 11.11.2019
holding that the selection was done by an
invalid
Committee
of
Management.
Smt.Babita
and
Shri
Jitendra
Singh
challenged the said order again before this
Court vide Writ-A No.18983 of 2019 in
which this Court took exception to the
order passed by the District Inspector of
Schools and issued him a show-cause
notice as to why he should not be referred
to the contempt of court for appropriate
contempt proceedings to be drawn against
him. This order was passed on 3rd January,
2020. The operative portion of the order
dated 3rd January, 2020 is reproduced here
as under:

Be that as it may, this Court while
rendering judgement in the case of
petitioners in Writ Petition No.7856 of
2019 has already rejected the objection
taken by the respondent no.3 regarding
non-compliance of the procedure provided
in the Government Order dated 12.03.2018
in making selection and the selection of the
petitioners
on
the
non-existent
post,
therefore, the said objection taken by the
respondent
no.3
is
misconceived
as
judgement of this Court in Writ Petition
No.7856 of 2019 has become final between
the parties. Further, this Court while
deciding the issue in Writ Petition No.7856
of 2019 has granted liberty to the
respondent no.3 to examine the documents
in respect of election of committee of
management and this Court finds that
respondent
no.3
while
passing
the
impugned order has not adverted to any of
the documents filed by the petitioners to
verify the validity of the Committee of
Management, who initiated the selection
procedure. The respondent no.3 has placed
reliance upon the letter dated 08.12.2017 of
the then District Inspector of School in
paragraph 9 of the order which nowhere
mentions about the validity of committee of
management, and thus, facts of the case
clearly establishes that respondent no.3 has
5 All. Shailesh Khandelwal Vs. State of U.P. & Ors.
1717
completely ignored the orders of this Court
while passing the impugned order, and
thus, has wilfully flouted the orders of this
Court. In this view of the fact, this Court
finds substance in the argument of learned
Senior Counsel for the petitioners.

Thus, in view of above, let notice
be issued to respondent no.3, District
Inspector of Schools, District Mathura, to
show cause as to why the matter should
not be referred to the contempt Court for
initiating contempt proceedings against
him and why his personal responsibility in
the matter be not fixed. He shall remain
present personally on the next date along
with his reply.

Put up on 20.01.2020 in the
additional cause list.

(Emphasis added)

8. In order to avoid contempt, as the
District Inspector of Schools, Mr.Krishna
Pal Singh, had fallen in serious error of law,
passed an order on 23rd January, 2020
granting approval to the selection and
appointment of the petitioner, namely,
Smt.Babita and Shri Jitendra Singh. Shri
Rajiv Kumar citing the order of the District
Inspector of Schools dated 23rd January,
2020 also challenged the order dated
11.11.2019 vide Writ-A No.2039 of 2020.
This writ petition came to be allowed vide
detailed judgment and order dated 10th
February, 2020 in which this Court not only
noticed the order dated 23rd January, 2020
passed by the District Inspector of Schools
but also recorded a finding that the
petitioners'
case
deserves
to
be
reconsidered in the light of the decision
given in the case of Smt.Babita. Paragraphs
8, 9, 10, 11 and 12 relevant in the judgment
and order dated 10th February, 2020 passed
in Writ-A No.2039 of 2020 are reproduced
here as under:

"8. Pursuant to the same, the
respondent No.3 passed order dated
23.1.2020 granted selection/appointment of
the petitioners of writ petition filed by Smt.
Babita (supra) in L.T. Grade.

9. It is argued by learned senior
counsel that the case of the petitioner is
identical as the case of the petitioners of
the writ petition of Smt. Babita (supra). It is
argued that petitioner being identically
selected along with the petitioners of writ
petition of Smt. Babita (supra), he is also
entitled for the same relief of approval of
his selection/appointment in L.T. Grade.

After order dated 23.01.2020
passed by the respondent no.3 in favour of
the petitioners of writ petition of Smt.
Babita (supra), the petitioner has preferred
the present writ petition with the prayer to
quash the order dated 11.11.2019 passed by
the respondent No.3.

10. Heard learned counsel for the
petitioner and learned Standing Counsel
for the respondents. With the consent of
learned counsel for the parties, this writ
petition is disposed of finally.

11. It appears from perusal of
record that in terms of the orders passed by
this Court in Writ A No.7856 of 2019 (Rajiv
Kumar and others Vs. State of U.P. and
others) on 17.05.2019, an order dated
23.11.2019 was passed by the respondent
No.3 rejecting the claim of the petitioner
and others. By the aforesaid order, claim of
Rajiv Kumar, as Assistant Teacher in Hindi,
Smt. Babita as Assistant Teacher in Hindi
and Jitendra Singh as Assistant in Social
Science were rejected. The aforesaid order
was challenged before this Court by only
two persons namely Smt. Babita and
Jitendra by filing Writ A No. 18986 of
2019. In the said writ petition a detailed
order was passed by this Court on
03.01.2020 which has already been quoted
above. Pursuant to the same, a decision
1718 INDIAN LAW REPORTS ALLAHABAD SERIES
was taken by the respondent No.3 on
23.01.2020 by which the petitioners in Writ
Petition No.18986 of 2019 (Smt. Babita)
(supra) were granted approval in respect of
their selection/appointment as Assistant
Teachers. Insofar as the present petitioner
is concerned, no order was passed by the
respondent No.3.

12. In the facts and circumstances
of the case and without entering into the
merits of the case, this writ petition is
disposed of finally directing the respondent
no.3 to pass appropriate orders in the
matter of petitioner in accordance with law
as has been passed in the case of Smt.
Babita most expeditiously and preferably
within a period of two weeks from the date
of production of certified copy of this order
before him."

9. Dr. Hemant Chaudhari and one
another teacher were also selected in the
same selection to the faculty of the
institution and they also challenged the
order dated 11.11.2019 rejecting their claim
for grant of approval. This Court noticed
the order dated 13th February, 2019
initially passed in the case of Dr.Hemant
Chaudhari and also Smt.Shweta Tiwari in
Writ-A Nos.8069 of 2019 and 4791 of
2019 respectively, set aside the order dated
13th February, 2019 and issued a direction
for according fresh consideration to the
claim of the petitioners for grant of
approval. Writ petition was thus allowed
vide order dated 3rd March, 2020, holding
that the order passed by the District
Inspector of Schools was in utter disregard
to the judgment and order passed by this
Court in earlier proceedings that where
relating to the same selection in issue. The
operative portion of the judgment and
order dated 3rd March, 2020 as contained
in Paragraphs 44, 45 and 46 is reproduced
here as under:

"44) In view of the above, I am of
the view that the DIOS while passing the
impugned order has travelled beyond his
scope
of
consideration.
The
order
impugned is in utter disregard of the
judgment and order passed in earlier
proceeding by this court and teachers of the
same
selection
have
been
accorded
approval by the DIOS, therefore, refusal
vide impugned order is illegal and cannot
be sustained. Accordingly, the impugned
order dated 11.11.2019 is hereby set aside.

45) The writ petition succeeds
and is allowed.

46)
However,
the
DIOS
is
directed to pass appropriate reasoned and
speaking order of approval to the selection
of the petitioners on the post of assistant
teachers within a period of four weeks from
the date of production of a certified copy of
this order."

10. This above order was challenged
in special appeal being Special Appeal
No.179 of 2021, which came to be
dismissed on 3rd September, 2021 by
following order:

"By this appeal, a challenge is
made to the judgment dated 03.03.2020
whereby writ petition preferred by the
petitioners was allowed. The writ petition
was filed to assail the order dated
11.11.2019 passed by District Inspector of
Schools, Mathura by which the approval of
the appointment of the petitioners on the
post of Assistant Teachers was denied.

Learned Single Judge discussed
the issue elaborately and referring to the
earlier judgment in the writ petition
preferred by the non-appellant/petitioners,
it was held that the issue was not available
for reconsideration by District Inspector of
Schools when it was settled by the Court.
Once learned Single Judge dealt with the
5 All. Shailesh Khandelwal Vs. State of U.P. & Ors.
1719
issue in reference to denial of approval to
the
appointment
of
the
nonappellant/petitioners in the earlier writ
petition and appeal thereupon by the State
was dismissed, the District Inspector of
Schools could not have opened the same
issue.

The order dated 11.11.2019 was
passed in reference to an order dated
16.03.2018 by which the post in question
was revived and thereby, selections were
conducted.
The
approval
to
the
appointment was not given for the reason
that initiation of selection was not with
prior approval. The learned Single Judge
considered the said also.

Learned Single Judge found that
in regard to the same selection process, the
approval was denied to other employee but
the order was recalled on 11.11.2019 and
approval was accorded. The petitioners
were also selected in the same selection,
thus
could
not
have
been
given
discriminatory treatment. Their case was
required to be dealt with by maintaining
parity
between
the
similarly
placed.
Accordingly, the writ petition was allowed
to direct District Inspector of Schools to
pass
appropriate
speaking
order
for
approval to the selection of petitioners on
the post of Assistant Teacher.

The appeal has been pressed
mainly on the ground that after revival of
the post, selection could not have been
initiated without prior approval of the
competent Authority.

We
have
considered
the
submissions aforesaid and find that after
revival of the post and selection, if prior
approval to initiate selection was required
then there was no reason for District
Inspector of Schools to accord approval to
the
appointment
of
other
Assistant
Teachers selected out of the same
selection. The appointment on the post of
Assistant Teacher out of the same
selection was approved while denying it in
the case of the non-appellant/petitioners
causing discrimination.

We failed to understand why the
appeal has been preferred by the State. If
the appeal is allowed then we would be
endorsing discriminatory action of the
respondents.

At this stage, learned counsel for
the appellants submits that approval of the
appointment order in favour of the
similarly placed was given pursuant to the
order of this Court in their own writ
petition. If that is so, then no reason exists
to file the appeal rather judgment should
have been complied in the same manner as
was done in the case of similarly placed
Assistant Teachers.

For the reasons given above, the
appeal is dismissed finding no merit in
reference to only question urged before us
while not pressing any other ground.

At this stage, learned counsel for
the non-appellant/petitioners submits that
approval to the appointment has been given
pursuant to the judgment under challenge.
The fact aforesaid makes the appeal to be
infructuous and otherwise we have decided
it on merit."

(Emphasis added)

11. The writ petition of Smt.Shweta
Tiwari and one another selected candidate
being
Writ-A
No.2386
of
2020
challenging
the
same
order
dated
11.11.2019 came to be allowed vide
judgment and order dated 7th January,
2020 relying upon the judgment passed in
Writ-A Nos.1821 of 2020 and 18983 of
2019. The Court also referred to the order
of special appellate Bench. The operative
portion of the order passed in the case of
Smt.Babita and another is reproduced
here as under:
1720 INDIAN LAW REPORTS ALLAHABAD SERIES

"This order was challenged in a
Special Appeal being Special Appeal
No.179 of 2021 (State of U.P. & Ors. vs.
Hemant Chaudhary & Ors.) which came to
be dismissed on 3.9.2021. From the order
of the Special Appellate Court dated
3.9.2021, it is clear that the petitioners of
Writ-A No.1821 of 2020 had been given
approval.

In view of the fact that the order
of the District Inspector of Schools was
based absolutely on erroneous facts namely
that the advertisement was not valid after
the revival of the posts and that the
Committee of Management was not a duly
elected Committee of Management which
findings had already been set-aside in the
judgment of this Court dated 13.12.2018, I
am of the view of that the approval ought to
have been granted by the District Inspector
of Schools. More so, when approvals have
been granted to the petitioners in Writ-A
No.1821 of 2020 and the petitioners in
Writ-A No.18983 of 2019.

Under such circumstances, the
order dated 11.11.2019 viz.-a-viz. the
petitioners is quashed. The matter is
remitted back to the District Inspector of
Schools to pass approval orders after
looking into the qualifications of the
petitioners within a period of two weeks
from the date of presentation of a certified
copy of this order. Further, as and when the
approval is granted, salary shall be paid to
the petitioners from the date they had
joined their institutions.

For the reasons stated above, the
writ petition stands allowed."

12. Against this above order, Special
Appeal (Defective) No.34 of 2023 was
filed by the State of UP and others and the
Court while referring to various orders
passed in writ petitions and in an earlier
appeal (supra) dismissed the special appeal
on 13th March, 2023 discussing the law on
the point as well as the objection and the
grounds taken in appeal in following terms:

"Heard
Sri
Gyanendra
Srivastava,
learned
Standing
Counsel
appearing for the State-appellants and Sri
Krishna Mohan Asthana, learned Advocate
appearing for the respondents/petitioners.

The present appeal is directed
against the judgment and order dated
07.01.2022 passed by the learned Single
Judge whereby while setting aside the order
dated 11.11.2019 passed by the District
Inspector of Schools, Mathura, the matter
has been remitted back with the direction to
pass approval order after looking into the
qualifications of the petitioners herein
within a period of two weeks from the date
of presentation of the certified copy of the
said order. The further direction was to pay
salary to the petitioners after approval is
granted to their selection, from the date
they had joined their institutions. The
respondents/petitioners
herein
(two
in
number) were selected by the Committee of
Management of the institution concerned in
accordance with the provisions of Section
16-FF of U.P. Intermediate Education Act,
1921 read with Chapter-II of Regulation 17
of the Regulations framed thereunder. The
record indicates that a dispute arose with
regard to the disapproval of selection of the
petitioners herein along with the nine other
persons who were selected on the post of
L.T. Grade Teacher by order dated
13.02.2019. On a challenge made by one of
the respondents/petitioners herein in Writ-A
No. 4791 of 2019 to the order dated
13.02.2019 passed by the District Inspector
of Schools, declining to accord approval,
the writ petition was allowed on 11.04.2019
by quashing the order dated 13.02.2019,
with the direction to the District Inspector
of Schools to accord fresh consideration to
5 All. Shailesh Khandelwal Vs. State of U.P. & Ors.
1721
the claim of the petitioner for grant of
approval to their selection having regard to
the observation made therein.

A perusal of the judgment and
order dated 11.04.2019 passed by this
Court in the aforesaid writ petition
indicates that three grounds to decline
approval had been taken by the District
Inspector of Schools therein. The first
ground was that 11 posts of Assistant
Teachers in L.T. Grade in the institution
were revived by orders dated 10.11.2016
and 20.03.2017 and both these orders
were revoked by order dated 14.12.2017
and only 7 posts of Assistant Teachers
stood
revived.
The
Committee
of
Management of the Institution concerned
did not make selection pursuant to the
directions containing in the letter dated
14.12.2017. The second ground was that
the Committee of Management of the
institution concerned was not validly
elected and therefore, was not competent
to make selection. The appointment made
by the then Committee was invalid. The
third ground was that by the Government
Order Dated 12.03.2018, amendments
have been brought in Section 16-FF and
Chapter
2
Regulation
17
of
the
Regulations framed thereunder and the
procedure brought in place by way of
amendment had not been followed. These
three grounds, as is evident from the
perusal of the judgment and order dated
11.04.2019 were set aside by this Court
while holding that there was no infirmity
in
the
procedure
followed
by
the
Committee
of
Management
for
the
selection in question, in as much as, the
scope of inquiry to the selection made
under Section 16-FF of 1921 Act by the
District Inspector of Schools was confined
to the eligibility of the selected candidates.
The question of revival of the post in
question stood settled by the earlier order
passed by this Court in Writ-A N. 26403 of
2018 and Writ-A No. 25087 of 2018.

Having noted the above, we have
gone through the order dated 11.11.2019
passed
by
the
District
Magistrate,
Mathura which was the subject matter of
challenge before the learned Single Judge
in the writ petition, out of which the
present special appeal has arisen. A
perusal of the order of the District
Inspector of Schools further indicates that
same points which have been taken earlier
to decline the approval by the order dated
13.02.2019, quashed by the judgment and
order
dated
11.04.2019,
have
been
reiterated in the order dated 11.11.2019.
This aspect of the matter has been duly
considered by the learned Single Judge in
the judgment and order dated 07.01.2022,
subject matter of challenge herein.

Having noted the above, we
further find that the present special appeal
is delayed by 338 days and no plausible
explanation has been given in the affidavit
accompanying
the
delay
condonation
application.
In
similar
facts
and
circumstances with regard to the selection
subject matter of challenge herein, the
Special Appeal Defective No. 996 of 2020
and Special Appeal Defective No. 995 of
2020 filed by the State have been dismissed
vide judgment and order dated 24.11.2020
on account of the inordinate, unexplained
delay. Another Special Appeal No. 179 of
2021 challenging the judgment and order
dated 03.03.2020 passed by the learned
Single Judge, allowing the writ petition
filed by the persons similarly situated, has
been dismissed vide judgment and order
dated 03.09.2021 a copy of which is
appended along with the counter affidavit
filed on behalf of the respondents 1 and 2.
A perusal of the judgment and order dated
03.09.2021 indicates that the finding
returned by the learned Single Judge in
1722 INDIAN LAW REPORTS ALLAHABAD SERIES
setting aside the order dated 11.11.2019
passed by the District Inspector of Schools
for disapproval of the appointment of the
petitioners therein on the post of Assistant
Teacher in L.T. Grade, had been set aside.
The ground of challenge taken in the said
special appeal that after revival of the post,
selection could not have been initiated
without prior approval of the competent
authority, has been turned down.

We,
thus,
find
that
the
respondents
are
similarly
situated
Assistant Teacher selected in the same
selection
upheld
by
other
Special
Appellate benches of this Court.

Having noted that the order
dated 11.11.2019 passed by the District
Inspector of Schools is only reiteration of
the previous order dated 13.02.2019
passed by the District Inspector of
Schools, which has been set aside by this
Court in the judgment and order dated
11.04.2019, and for the additional facts
noted above, we do not find it a fit case for
interference. The present special appeal is
being dismissed both on the ground of
inordinate, unexplained delay on the part
of the appellants and on the merit,
accordingly."

(Emphasis added)

13. Now reverting to the facts of the
present case, I find that the District
Inspector of Schools after examining the
papers sent by the management took five
objections as short-comings in his letter
dated 19th August, 2016. These objections
were: (i) there was a ban operating under
the Government order dated 15th March,
2012 upon appointments in recognized
Intermediate Colleges; (ii) the petitioner
did not posses the requisite academic
qualification; (iii) the reservation quota had
not been certified; (iv) the post of clerk
having fallen vacant on 31st March, 2011
got lapsed and so there could not have been
any appointment and (v) no details of
working Class-3 and Class-4 employee was
furnished along with documents. It is
necessary to reproduce the letter of
objection written by the then District
Inspector of Schools, namely, Mr.Indra
Prakash Solanki dated 19.8.2016 and the
same is reproduced here as under:

"प्रेर्क,

स्जला स्वद्यालय स्िरीक्षक,

मिुरा।

सेवा में,

प्रबन्धक,

जैि इण्टर कालेज,

चौरासी, मिुरा।

पत्राुंकः मा०अ०सुं०/2880-81 /2016-17

 स्दिाुंकः 19-08-16

स्वर्यः सहायक स्लस्पक की कस्िि िवीि स्ियुस्क्त के सुंबुंध
में।

महोदय,

उपरोक्त स्वर्यक अपिे पत्र सुंख्याः स्ियु०/670/16-17
स्दिाुंक 21.07.2016 का सुंदभष ग्रहण करिे का कष्ट करें, स्जसके
द्वारा शैलेश खण्डेलवाल की सहायक स्लस्पक पर कस्िि िवीि
स्ियुस्क्त कर अिुमोदि हेिु पत्राजाि/पत्रावली इस कायाषलय को
प्रथिुि की है। पत्रावली के परीक्षणोपरान्ि स्िम्िवि कस्मयाुं पररलस्क्षि
हुई हैंः-

1-
शासिादेश
संख्याः20/1/91-का-2-2012
कानमयक अिुभाग-2 लखिऊ नदिांकः 15 मािय, 2012 के
द्वारा /नियुनक्त पर रोक/ प्रनतबन्ि है।

2- भती िवीितम शासिादेशािुसार नलनपक पद हेतु
शासि द्वारा नििायररत शैनिक योग्यता पूणय िहीं है।

3- आरिण कोटा के संबंि प्रमाण-पत्र िहीं है।

4- इस पद जो 31.03.2011 को ररक्त हुआ है इतिी
अवनि के बाद भरे जािे का औनित्य स्पष्ट िही है।

5- नवद्यालय में काययरत ितुथयश्रेणी कमयिारी व
नलनपक वगय का आरिण/ वगयवार नववरण संलग्ि िहीं है।

अिः िदिुसार उपरोक्त के फलथवरूप उक्त शैलेश
खण्डेलवाल की सहायक स्लस्पक पर कस्िि िवीि स्ियुस्क्त सुंबुंधी
5 All. Shailesh Khandelwal Vs. State of U.P. & Ors.
1723
पत्रावली इस पत्र के साि मूल रूप में सुंलग्ि कर आपको
प्रत्यावस्िषि/वास्पस की जािी है।

सुंलग्िकःउक्तवि मूल पत्रावली।

भवदीय

डॉ०(इन्र प्रकाश स्सुंह सोलुंकी)

स्जला स्वद्यालय स्िरीक्षक

मिुरा"

 (Emphasis added)

14. The Committee of Management
duly replied to the District Inspector of
Schools vide letter of the Manager of the
institution dated 19.8.2016 clarifying its
stand point-wise thus:

(i) The Government Order dated
15th March, 2012 itself clarifies that the
ban on appointments would not operate in
respect of minority institutions;

(ii) The selected candidate meets
the criteria of academic qualification as
prescribed by the State like CCC certificate
and those documents are appended;

(iii) There being only three posts
in the clerical cadre, reservation would not
apply, so there was no question of
furnishing any certificate regarding quota;

(iv) The documents appended and
the Government Order dated 29.10.2014
would clarify that no post in such
circumstances would laps and regarding
reservation to Class-3 and Class-4 posts;

(v) It was stated that this would
not apply to the recognized minority
institution.

15. This reply as was submitted is also
reproduced
here
as
under
for
its
appreciation:

"महोदय,

उपरोक्त पुंत्राक के सुंबुंध में स्िम्ि आधारों पर जबाब स्दया जा
रहा है-

1- आपके उपरोक्त पत्राुंक में िुं० 1 कमी शासिादेश
सुंख्याः20/1/91-का-2-2012 कास्मषक अिुभाग-2 लखिऊ
स्दिाुंक 15/03/2012 के द्वारा/स्ियुस्क्त पर रोक/ प्रस्िबन्ध है।

इस
संबंि
में
शासिादेश
पत्रांक
-
सा०(1)/नश०/5794-5868/2014-15)
नदिांक
29.10.2014 जो संलग्िक दो है। अशासकीय अल्पसंख्यक
नशिण संस्थाओं में की जािे वाली नियुनक्त के अिुमोदि के
नवषय में शासि द्वारा आदेश संख्या ररट -249/15-122012-1601(404)/2012, नदिांक 17 अक्टूबर 2012,
1964/15-12-1601(404)/2012 टी०सी०, नदिांक
17 अक्टूबर 2012 तथा 2032/15-12-20121601(404)/2012 टी०सी०, नदिांक 25 अक्टूबर 2012
से यह स्पष्ट है नक कानमयक नवभाग का शासिादेश संख्या-
20/1/91-का-2-2012, नदिांक 15 मािय 2012
अशासकीय सहायता प्राप्त अल्पसंख्यक संस्थाओं में प्रभावी
िहीं है।

2- आपके उपरोक्त पत्राुंक में िुं०2 कमी भिी िवीििम
शासिादेश अिुसार सहायक स्लस्पक पद हेिु शासिादेश द्वारा
स्िधाषररि शैस्क्षक योग्यिा पूणष िहीं है।

इस संबंि में आपको अवगत कराया जा रहा है नक
शासि द्वारा नििायररत शैनिक योग्यता पूणय है संलग्िक तीि
शैनिक योग्यता से संबंनित प्रमाण पत्रों की छायाप्रनतयााँ है।

3- आपके उपरोक्त पत्राुंक िुं० िीि कमी आरक्षण कोटा के
सुंबुंध में प्रमाण पत्र िहीं है।

इस संबंि में आपको अवगत कराया जा रहा है नक उक्त
भती में आरिण कोटा ि होिे के कारण प्रमाण पत्र होिा
आवश्यक िहीं है।

4- आपके उपरोक्त पत्राुंक में िुं० चार पर जो कमी दशाषयी
गयी है।

इस सम्बन्ि में संलग्िक दो द्वारा स्पष्ट है।

5- आपके उपरोक्त पत्राुंक में िुं० पाुंच पर कमी दशाषयी गयी
है।

इस सम्बन्ि में आपको अवगत करािा है नक
अल्पसंख्यक अशासकीय नशिण संस्थाओं में इसकी
आवश्यक्ता िहीं है।

अिः उपरोक्त पत्राुंक सुं० द्वारा उक्त श्री शैलेश
खण्डेलवाल की सहायक स्लस्पक पद पर िवीि स्ियुस्क्त स्ियमािुसार
की गई है।

अिः स्िवेदि है स्क उक्त स्ियुस्क्त को अिुमोस्दि स्कया
जावे।

भवदीय

(मुिीर् कुमार जैि )
1724 INDIAN LAW REPORTS ALLAHABAD SERIES

 प्रबुंधक"

 (Emphasis added)

16. Even thereafter, when no order
was passed at the end of District Inspector
of Schools, the Committee of Management
again wrote to the District Inspector of
Schools for granting approval to the
petitioners' appointment dated 21st July,
2016 on the post of Assistant Clerk.
However,
when
nothing
happened,
petitioners approached this Court vide
Writ-A No.9127 of 2018 and the Court
directed the District Inspector of Schools to
take decision within a period of 3 months
from the date of presentation of copy of the
order. The operative portion of the order
dated 3rd April, 2018 passed in Writ-A
No.9127 of 2018 is reproduced here as
under:

"Considering
the
facts
and
circumstances, this writ petition stands
disposed of with a direction upon the
respondent no.2 to accord consideration to
petitioner's claim for appointment to the
post of Assistant Clerk, in accordance with
law, by means of a reasoned order to be
passed, within a period of three months
from the date of presentation of certified
copy of this order."

17. The petitioners sent the certified
copy of the order of this Court vide
registered letter dated 7.8.2018 wrote to the
District Inspector of Schools and the
Manager of the institution and thereafter
the District Inspector of Schools vide letter
dated 25.8.2018 fixed 6th September, 2018
for hearing. On 6th September, 2018 both
the petitioners as well as Committee of
Management presented themselves and
reminded him of the previous removal of
defects and short-comings made by the
Committee of Management. Mr.Krishna
Pal Singh, District Inspector of Schools,
this time passed an order on 25.9.2018 in
the same line denying the financial
approval to the petitioners' appointment in
which as he had denied approval in respect
of Assistant Teachers, who were selected
and whose case he was also dealing with.

18. It is quite surprising to notice that
the objection taken this time were that prior
approval was not taken for advertising the
vacancy,
two
newspapers
in
which
advertisement was made had no circulation
in the region, the post in question had
lapsed for there being no appointment till
2011, triple ''C' certificate was not obtained
from DOEACC, there was no valid
Committee of Management and that there
was ban on appointments.

19. This order passed by the District
Inspector of Schools dated 25.9.2018 has
been challenged in this petition.

20. Learned counsel for the petitioner
has argued following points to assail the
order:

(i) Whatever the objections once
had been taken by the District Inspector of
Schools initially and those objections
having been duly replied by the Committee
of Management, it was not open for the
District Inspector of Schools to take out a
new objection to reject the claim of
financial approval. Further, when the
Government Order itself stated that there
was no ban on appointments of vacant
positions in respect of the minority
institution, the District Inspector of Schools
was not justified in taking a ground that
there
was
a
ban
under
that
very
Government Order;

(ii) The documents regarding
academic qualifications were duly supplied
5 All. Shailesh Khandelwal Vs. State of U.P. & Ors.
1725
by the petitioner, but they were not at all
looked into inasmuch as the DOEACC
organisation having changed its name as
National Institute of Electronics and
Information Technology, the triple ''C'
certificate, issued by it, would not be
rendered to be not akin to the certificate
earlier issued by the same organisation;

(iii) The District Inspector of
Schools having not taken any objection in
respect of the advertisements issued for
filling up faculty positions in the institution
qua two news dailies, namely, Kalpataru
Express and Indian Express, he could not
have taken it as an objection to deny the
approval now, more especially when in his
initial objection raised in his letter dated
19.8.2016, he did not object to the
newspapers in which advertisements were
made.

(iv) It has come in the judgments
of this Court in various writ petitions filed
by the faculty members that it is the same
Committee of Management that has been
disbursing salary to the employees of the
institution and, therefore, selection and
appointment made by it would not be bad.
Such Committee of Management would not
become incompetent in the matter of
selection and appointment of the petitioner.

21. Per contra, learned Standing
Counsel sought defend the order for the
reasons assigned therein.

22. Having heard learned counsel for
the respective parties and having perused
the pleadings and records and the order
impugned as well as various judgments
cited in the matters of faculty members
selected and appointed by the same
Committee
of
Management
and
the
arguments advanced across the Bar, I find
three main points in the present case to be
arising:

A. Whether the post in question
would be taken to have lapsed;

B. Whether petitioner possesses
requisite qualification; and

C. Whether the District Inspector
of Schools could have taken ground other
than those he had taken in his objection
after he received and examined the papers
sent by the management for financial
approval to the selection and appointment
of the petitioner.

23. Before I deal with the above three
points, it is worth mentioning here that
insofar as the ban is concerned, the
Government Order dated 21st August, 2014
clarified it that the ban as put up on the
appointments
of
vacant
positions
in
recognized Intermediate Colleges under the
Government Order dated 15th March, 2012
would not apply to the minority institution.
Relevant portion of the Government Order
dated 21st August, 2014 is reproduced here
as under: