# Udai Singh & Anr v. State of U.P. & Ors

- **Citation:** (2024) 4 ILRA 515
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-19
- **Case number:** Writ A No. 59654 of 2015
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/udai-singh-anr-v-state-of-u-p-ors-51829
- **Pages:** 23

## Headnote

A. Service Law - Intermediate Education
Act, 1921 - Appointment - Class IV post in
private aided college - On complaint, the
District Magistrate directed to conduct
enquiry on validity of appointment -
Authority of District Magistrate questioned -
Held, there is a complete hierarchy of
officers in the Department of Secondary
Education to take care of such matters - All
of them are answerable to the Principal
Secretary
- One
finds
it
difficult to
understand why the District Magistrate
entertained a complaint regarding a private
aided college and asked the DIOS to inquire
- We disapprove this practice of District
Magistrates intermeddling in the affairs of
other departments and autonomous bodies,
where, by the law, they have no say or
jurisdiction. (Para 7, 8 and 9)

B. Service Law - Intermediate Education
Act, 1921 - Ch. III, Reg. 101 of the
Regulations - Appointment - Class IV post -
Financial
approval
-
Arising
out
of
complaint, matter went U.P.to High Court
and after remand back, the Regional Level
Committee rejected the approval - Validity
challenged - Amendment was made in Reg.
101 on 31.12.2009 - Prior to amendment,
DIOS can permit to fill U.P. a Class IV post,
but after amendment, it is only after order
of Director of Education, DIOS can do it -
DIOS granted permission on 10.07.2008 and
recruitment was made on 10.01.2009 -
Applicability of Amendment - Held, when
Regulation 101 was finally amended to give
effect to the policy, it would not affect a
recruitment process already initiated before
the earliest introduction of the policy
through GOs, with due permission of the
DIOS, that had already been granted and
the process of selection completed on
27.02.2009 and appointment letters issued
on 01.03.2009. (Para 7, 12, 13, 31 and 32)

C. Service Law - Appointment - Class IV
post in private aided college - Financial
approval - Selection, appointment and
joining was made U.P.to 01.03.2009 -
Subsequently policy of engagement through
outsourcing was brought - After declaration
of
GO
dated
06.11.2011
providing
engagement
through
outsourcing
as
unconstitutional by the High Court, Reg. 101
was amended on 24.04.2014 providing
filling U.P. of Class IV vacancies through
outsourcing, which was declared valid by
the SU.P.reme Court in Principal, Abhay
Nandan's case - Effect on the validity of the
appointment already made - Held, any
process of recruitment commenced before
08.09.2010 would have to be carried to its
logical conclusion, irrespective of the policy
decision taken on 08.09.2010, the GO dated
06.01.2011 or the ultimate amendment
made to Regulation 101 with effect from
24.04.2014. (Para 32, 34 and 43)

Writ petition allowed. (E-1)

List of Cases cited:

## Text

_Characters 0–39,602 of 79,640. This is a partial read: ask again with offset=39602 for what follows._

4 All. Udai Singh & Anr. Vs. State of U.P. & Ors.
515
communication to the Principal Secretary,
Basic Education, Government of U.P.,
Lucknow and the Secretary (Personnel),
Government of U.P., Lucknow by the
Registrar (Compliance).
----------
(2024) 4 ILRA 515
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.03.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 59654 of 2015

Udai Singh & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Yogesh Kumar Saxena

Counsel for the Respondents:
Ms. Monika Arya (Addl. C.S.C.)

A. Service Law - Intermediate Education
Act, 1921 - Appointment - Class IV post in
private aided college - On complaint, the
District Magistrate directed to conduct
enquiry on validity of appointment -
Authority of District Magistrate questioned -
Held, there is a complete hierarchy of
officers in the Department of Secondary
Education to take care of such matters - All
of them are answerable to the Principal
Secretary
- One
finds
it
difficult to
understand why the District Magistrate
entertained a complaint regarding a private
aided college and asked the DIOS to inquire
- We disapprove this practice of District
Magistrates intermeddling in the affairs of
other departments and autonomous bodies,
where, by the law, they have no say or
jurisdiction. (Para 7, 8 and 9)

B. Service Law - Intermediate Education
Act, 1921 - Ch. III, Reg. 101 of the
Regulations - Appointment - Class IV post -
Financial
approval
-
Arising
out
of
complaint, matter went U.P.to High Court
and after remand back, the Regional Level
Committee rejected the approval - Validity
challenged - Amendment was made in Reg.
101 on 31.12.2009 - Prior to amendment,
DIOS can permit to fill U.P. a Class IV post,
but after amendment, it is only after order
of Director of Education, DIOS can do it -
DIOS granted permission on 10.07.2008 and
recruitment was made on 10.01.2009 -
Applicability of Amendment - Held, when
Regulation 101 was finally amended to give
effect to the policy, it would not affect a
recruitment process already initiated before
the earliest introduction of the policy
through GOs, with due permission of the
DIOS, that had already been granted and
the process of selection completed on
27.02.2009 and appointment letters issued
on 01.03.2009. (Para 7, 12, 13, 31 and 32)

C. Service Law - Appointment - Class IV
post in private aided college - Financial
approval - Selection, appointment and
joining was made U.P.to 01.03.2009 -
Subsequently policy of engagement through
outsourcing was brought - After declaration
of
GO
dated
06.11.2011
providing
engagement
through
outsourcing
as
unconstitutional by the High Court, Reg. 101
was amended on 24.04.2014 providing
filling U.P. of Class IV vacancies through
outsourcing, which was declared valid by
the SU.P.reme Court in Principal, Abhay
Nandan's case - Effect on the validity of the
appointment already made - Held, any
process of recruitment commenced before
08.09.2010 would have to be carried to its
logical conclusion, irrespective of the policy
decision taken on 08.09.2010, the GO dated
06.01.2011 or the ultimate amendment
made to Regulation 101 with effect from
24.04.2014. (Para 32, 34 and 43)

Writ petition allowed. (E-1)

List of Cases cited:

1. Writ A No. 26307 of 2010; Dhruv Narain
Singh Vs St. of U.P. & ors. decided on
13.01.2017
516 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Mohindhr Singh Gill & anr. Vs The Chief
Election Commissioner, New Delhi & ors.;
(1978) 1 SCC 405

3. Committee of Management, Lala Babu Baijal
Memorial Inter College, Lodipur, Ghaziabad &
anr. Vs St. of U.P. & ors.; 2012 (4) ADJ 586

4. St. of U.P.& ors. Vs Principal, Abhay Nandan
Inter College & ors.; (2021) 15 SCC 600

5. Santosh Kumar Singh Vs St. of U.P. & ors.;
2015 (7) ADJ 179 (FB)

(Delivered by Hon'ble J.J. Munir, J.)

This writ petition is directed against an
order dated 15.09.2015 passed by the
Regional
Level
Committee,
Kanpur
Region, Kanpur, rejecting the petitioners'
claim for grant of financial approval to the
petitioners' selection and appointment as
Class IV employees with the Janta Inter
College, Ajitmal, Auraiya.

2. The petitioners, who are a thirteen
strong, have moved this Court, saying that
though selected to Class IV posts in
accordance with rules at the Janta Inter
College, Ajitmal, Auraiya1 way back on
27.02.2009, the Regional Level Committee,
Kanpur Region, Kanpur have denied
sanction to their selection and appointment,
leading them to go without their salaries.
They say that they have joined the
Institution and are discharging their duties
regularly.

3. The petitioners' case has somewhat
of a chequered history. The Institution is a
recognized intermediate college under the
Uttar Pradesh Education Act, 19212. The
provisions of U.P. Act No. 5 of 1982 as
well as U.P. Act No. 24 of 1971, including
the rules and regulations framed under all
these
statutes
are
applicable
to
the
Institution. According to the petitioners,
prior to the year 1970, there were 18 posts
of Class IV employees sanctioned for the
Institution. With an increase in the strength
of scholars, a minimum of 20 Class IV
posts were required. This requirement went
with the number of sanctioned sections for
each class that the Institution had. By an
order of 2nd November, 1970, 30 extra
Class IV posts were sanctioned. On the
14th August, 1981, the then District
Inspector of Schools3 issued a notice to the
Institution, calling upon them to justify the
strength of teachers and employees, going
by the strength of scholars enrolled. The
notice dated 14.08.2021 was replied to,
whereafter, it is said that it was withdrawn
by an order dated 21.09.1981. It is the
petitioners' case that the strength of Class
IV employees in the Institution, duly
sanctioned, is a figure of 31. The
petitioners say that according to the
Government Order dated 10.02.2005, a
copy whereof has been annexed, it is
provided that the posts that were sanctioned
prior to 09.12.1986 shall not be abolished
by any officer, except under orders issued
by the Director of Education, Madhyamik,
U.P., Lucknow. The said order dated
10.02.2005, this Court may notice, is not a
Government order4, but an order issued by
the Director of Education aforesaid. In the
year 2008, the Principal of the Institution
applied for permission to fill up 13 posts of
Class IV employees that were lying vacant.
The DIOS granted permission vide order
dated 05.05.2008, but in an action soon to
follow,
stayed
his
order
granting
permission on 28.05.2008. He again
granted permission to fill up these Class IV
posts on 20.07.2008. The petitioners assert
that there were objections by outsiders to
these
posts
being
filled
up,
which
compelled the Institution to clarify their
staff position by submitting all documents
relevant to the issue.
4 All. Udai Singh & Anr. Vs. State of U.P. & Ors.
517

4. This done, an advertisement was
issued in Hindi dailies Swatantra Bharat
and Desh Dharam issues dated 10.01.2009
and 09.01.2009, respectively. In response to
the advertisement aforesaid, the petitioners
made an application for consideration of their
candidature against one or the other Class IV
posts in the Institution. The date of interview
was scheduled as 01.02.2009. A duly
constituted Selection Committee sat and held
interviews. It found the petitioners to be
eligible and suitable for appointment to Class
IV posts with the Institution. All papers after
selection were submitted to the education
authorities
for
their
approval.
The
management of the Institution waited for the
requisite
period
of
time,
whereafter,
appointment letters were issued to the
petitioners, subject to orders of approval by
the DIOS. All the appointment letters were
issued by the Principal of the Institution on
the same day, that is to say, 27th February,
2009.

5. Acting on the letters of appointment,
the petitioners joined the Institution on
01.03.2009. They were permitted by the
Principal to join. It is the petitioners' case that
since 1st March, 2009, they are continuously
working with the Institution on whatever
posts in Class IV they have respectively been
appointed. The petitioners say that they have
rendered
unblemished
and
satisfactory
service. It is their further case that they were
appointed after following the due procedure
prescribed by law. The process to select the
petitioners
had
commenced
with
the
permission of the DIOS and after due
advertisement, completing all formalities, the
petitioners were selected by a validly
constituted Selection Committee.

6. There was some strife amongst
members of the Committee of Management
of the Institution, which led to false
complaints
being
addressed
to
the
education authorities. These complaints led
the education authorities to dither in
granting
sanction
to
the
petitioners'
appointment. The petitioners say that
though the Committee of Management
have nothing to do with the appointment of
a Class IV employee, but complaints were
addressed
about
the
petitioners'
appointment, because, as already said, there
was strife amongst members of the
Committee of Management.

7. An inquiry into the validity of the
petitioners' appointment seems to have
been ordered by the District Magistrate,
Auraiya. Here, this Court may remark, as
we have often found to our dismay, that the
District Magistrates in this State have
assumed the role of busy bodies, almost
knight errants, who are all too willing to
intermeddle
in
the
affairs
of
any
department of the government at the drop
of a hat. Little do they ponder about their
jurisdiction to interfere in a matter relating
to a department or an autonomous statutory
body set up by law or a local body, where,
they may not have the slightest of business
to interfere.

8. Here also, the matter pertains to a
privately managed and aided intermediate
institution regarding employment of their
Class IV employees, with the sanction of
the DIOS. There is a complete hierarchy of
officers in the Department of Secondary
Education to take care of such matters. At
the helm of affairs in the district relating to
secondary education is the DIOS. He
functions under a hierarchy of officials,
including the Deputy Director of Education
(Secondary),
the
Joint
Director
of
Education (Secondary) and the Director of
Education (Secondary). All of them are
answerable to the Principal Secretary or the
518 INDIAN LAW REPORTS ALLAHABAD SERIES
Additional
Chief
Secretary
to
the
Government
in
the
Department
of
Secondary Education. It goes without
saying that the Secretary too is not a
sovereign functionary and works under the
command of the Hon'ble Minister of this
Department.

9. In this set up of things, one finds it
difficult to understand why the District
Magistrate
entertained
a
complaint
regarding a private aided college and asked
the DIOS to inquire. All the more
intriguing is the fact that the DIOS
complied with the District Magistrate's
order and submitted a report to him, dated
15.02.2010. All that is relevant is that
copies of this report by the DIOS were
addressed to the Director of Education,
Madhyamik, Allahabad and the Joint
Director of Education, Kanpur Region,
Kanpur. It was, again, quite irrelevantly
marked for a copy to the Divisional
Commissioner of the Revenue Division of
Kanpur. It seems that the DIOS submitted a
report to the District Magistrate by an act
of habitual obedience. We disapprove this
practice
of
District
Magistrates
intermeddling in the affairs of other
departments
and
autonomous
bodies,
where, by the law, they have no say or
jurisdiction.

10. Still, since a copy of this report
was marked to some of the education
authorities, including the Director of
Education
(Secondary),
it
would
be
relevant to note that the report, a very
detailed one, on all aspects of the
complaint, clearly said that the petitioners'
appointments
were
made
against
substantive and vacant posts, after due
permission by the education authorities,
due advertisement and selection done by a
competent
selection
committee,
transparently done. No irregularity was
found in the selection process. The
petitioners point out that a further report
dated 15.03.2010 was submitted by the
DIOS, Auraiya to the Joint Director of
Education,
Kanpur
Region,
Kanpur,
carrying all details of the sanctioned posts,
how each post was created and how many
of these posts were duly sanctioned. This
report was submitted in answer to some
complaint. It was specifically said in the
report of the DIOS dated 15.03.2010 that
the petitioners were appointed against
substantive and vacant posts advertised
after
permission
by
the
competent
education
authority
and
selected
in
accordance with rules. So, there was no
irregularity about their appointment.

11. It appears that nothing moved for
the petitioners regarding financial sanction
to their appointments for a considerable
period of time. The petitioners, therefore,
instituted Writ - A No. 5294 of 2010 before
this Court. This Court, by an order dated
02.02.2010 made in the aforesaid writ
petition, directed the Joint Director of
Education to take a decision relating to the
petitioners' appointment and payment of
salary by a reasoned and speaking order, in
accordance with law, on the basis of the
recommendations made by the DIOS
within a period of three weeks of the date
of production of a certified copy of the
order. The Joint Director of Education, in
compliance with the orders of this Court
dated 02.02.2010 last mentioned, passed an
order dated 16.03.2010, rejecting the
petitioners' claim for approval of their
appointments. The petitioners impugned
the said decision of the Joint Director of
Education by means of Writ - A No. 35208
of 2010, wherein, an interim order was
passed on 16.03.2010, directing that the
petitioners' services shall not be terminated.
4 All. Udai Singh & Anr. Vs. State of U.P. & Ors.
519
However, this Court said that the order
shall not entitle the petitioners to
payment of salary till a final decision of
the writ petition. Pending this petition,
the Government carried out an exercise to
verify
the
sanctioned
strength
of
employees in private aided institutions
across the State. This was done under the
directions of this Court made in Dhruv
Narain Singh v. State of U.P. and
others5. To comply with the order, a
committee
was
constituted
by
the
Government on 15.06.2012, dedicated to
the task of determining the sanctioned
strength of teachers and other employees
in private aided intermediate institutions,
like the Institution. This Committee was
headed by the Additional Director of
Education (Secondary). The Committee
submitted a report dated 22.02.2013. In
their inquiry report with regard to the
institutions in District Auraiya, the
sanctioned strength was determined for
all private aided institutions. It was
reported that the sanctioned strength of
Class IV employees for the Institution
was 31. It is asserted by the petitioners
that the name of the Institution finds
place at Serial No. 33 of the list for the
District of Auraiya. Whether the report
submitted by the committee was just a
report or something more would be
alluded to a little later in this judgment.

12. Writ - A No. 35208 of 2010,
which was earlier filed by the petitioners,
was heard and allowed by a judgment and
order dated 18.05.2015, setting aside the
order dated 16.03.2010 passed by the Joint
Director of Education and the matter was
remanded to the said officer to consider and
pass
fresh
orders.
In
reaching
the
conclusion that the order of the Joint
Director of Education deserves to be set
aside, there are certain remarks of this
Court in the judgment and order dated
15.05.2015 last mentioned, which are
relevant. These will be referred to a little
later in this judgment.

13. This is how the matter came up
before the Regional Level Committee
headed by the Joint Director of Education,
Kanpur Region, Kanpur and comprising,
besides that officer, the Deputy Director of
Education, Kanpur Region, Kanpur and the
DIOS, Auraiya. The Regional Level
Committee again proceeded to reject the
petitioners' claim. The reasons assigned are
more than one. These too would be
enumerated a little afterwards, when testing
the petitioners' challenge to the impugned
order.

14. Aggrieved by the order dated
15.09.2015 passed by the Regional Level
Committee, Kanpur Region, Kanpur, who
are impleaded as respondent No. 3 to this
petition, this writ petition has been
instituted.

15. A supplementary affidavit was
filed alongside the writ petition. A counter
affidavit dated 23.12.2015 was filed by the
DIOS, Auraiya, respondent No. 4 on behalf
of the Joint Director of Education, Kanpur
Region, Kanpur, respondent No. 2. A
rejoinder affidavit dated 18.01.2016, to the
aforesaid counter affidavit, was filed. In
compliance
with
the
order
dated
26.10.2015, by which notice was issued,
Rajendra Prasad, the then Joint Director of
Education, Kanpur Region, Kanpur, filed
his personal affidavit. A counter affidavit to
the aforesaid personal affidavit was filed on
behalf of the petitioner. This is an affidavit
dated 24.01.2015. It was on this state of
pleadings that this petition was admitted to
hearing on 21.09.2023 and heard forthwith.
Judgment was reserved.
520 INDIAN LAW REPORTS ALLAHABAD SERIES

16. Heard Mr. Yogesh Kumar Saxena,
learned Counsel for the petitioners and Ms.
Monika Arya, learned Additional Chief
Standing Counsel appearing on behalf of
respondents Nos. 1 to 5. No one appeared
on behalf of respondents Nos. 6 and 7.

17. It is argued by Mr. Yogesh Kumar
Saxena, learned Counsel for the petitioners
that in the report of the Committee
constituted pursuant to the orders of this
Court in Dhruv Narain Singh (supra), the
strength of Class IV employees in the
Institution was determined as 31 on
22.05.2013. It is submitted that this was the
strength of Class IV employees based on
the GO dated 22.02.2013, taking note
whereof, this Court had set aside the earlier
order dated 16.03.2010 passed by the Joint
Director of Education, doubting the number
of Class IV posts with the Institution as 31
and ordered him to decide the matter
afresh, taking into account the GO last
mentioned. The submission, therefore,
proceeds that the determination of strength
made by the Regional Level Committee is
not only contrary to the GO dated
22.02.2013, but also orders of this Court
dated 18.05.2015 passed in Writ - A No.
35208 of 2010.

18. On the other hand, Ms. Monika
Arya,
the
learned
Additional
Chief
Standing Counsel has submitted that the
sanctioned strength of Class IV employees
in the Institution is not a static figure and
can very well be reviewed, depending upon
the strength of students at the time when
the process of recruitment commences. In
this regard, she has referred to the terms of
the GO dated 20.11.1976, which not only
prescribes the number of posts for a highschool and intermediate institution, but
also, by the note appended relating to the
staff sanctioned for an intermediate college,
upwards and downwards revision of the
sanctioned strength of Class IV employees
is permissible, depending upon the increase
or decrease of the strength of students in an
Institution.
In
addition,
the
learned
Additional Chief Standing Counsel has
argued that in this case, a report dated
22.10.2010, annexed as Annexure CA-1 to
the counter affidavit, was submitted by the
DIOS to the Joint Director of Education,
where, the entire process of recruitment
was reported to be suspect on account of
the involvement of relatives of employees
in the Office of the DIOS and the Deputy
Director of Education (Secondary), Kanpur
Region, Kanpur. It was also reported that a
candidate named Kamlesh Babu, petitioner
No. 12, a candidate of the then DIOS, was
also amongst the selectees. The learned
Additional Chief Standing Counsel says
that there is a detailed reference to the
contents of this report in paragraph No. 11
of the counter affidavit. She has further
argued that the contents of paragraph No.
11 of the counter affidavit have not been
denied about this report submitted by the
DIOS or the truth of its contents in
paragraph No. 16 of the rejoinder affidavit.
The submission is, therefore, that the
selection proceedings are clearly tainted
with favourtism and, therefore, refusal of
financial sanction by the Regional Level
Committee is well-founded.

19.

We
have
considered
the
submissions advanced on behalf of learned
Counsel for parties and perused the record.

20. There is a reference to the
provisions of Regulation 101 of Chapter III
of the regulations framed under the Act of
1921. What the Regional Level Committee
endeavour to say, by reference to the
provisions of Regulation 101 aforesaid, as
these stood after the amendment dated 31st
4 All. Udai Singh & Anr. Vs. State of U.P. & Ors.
521
December, 2009, is shrouded in a mystery
of silence.

21. It is then observed, which would
be the first count to reject the petitioners'
claim, that the GO bearing number बे०आ०2-27 / दस59(एम) / 2008 dated 06.11.2011,
makes it imperative, except in cases of
junior technical positions to appoint all
Class IV employees by outsourcing.

22. The second count of reasoning is
rather elaborate. It says that in terms of the
judgment and order of this Court in Dhruv
Narain
Singh,
three
parameters
to
determine the approved strength of staff in
an institution are postulated. The first is the
original posts created, the second, the first
pay-bill, and the third, the number of posts
determined in the financial survey of the
year 1985, minus the number of posts
based on the current student strength. It is
remarked that in the first pay-bill relating to
the Institution, 31 posts of Class IV
employees were sanctioned. In the current
selection/interview,
there
is
a
recommendation to fill up one post of Clerk
and thirteen posts of Class IV employees,
for which, financial approval was sought
from the DIOS, Auraiya on 20.02.2009.
The DIOS referred the matter to the Joint
Director of Education by letter dated
27.06.2009.
In
compliance
with
the
directions
issued
by
this
Court
on
02.02.2010 in Writ - A No. 5294 of 2010,
Udai Singh and others v. State of U.P. and
others, the then Regional Level Committee,
vide an order dated 23.03.2010, disposed of
the matter. This Court, vide an order dated
18.05.2015 passed in Writ - A No. 35208
of 2010, Udai Singh and others v. State of
U.P. and others, directed the matter of
financial approval to be considered afresh
on the foot of there being 31 posts of Class
IV employees. There is then a reference to
some GO dated 20th November, 1976,
regarding determination of the sanctioned
strength
for
aided
high-schools
and
intermediate colleges, separately referring
to the sanctioned strength for a high-school
and intermediate college. The GO aforesaid
details the sanctioned strength :

(a) For a High-school :- 1-
Chowkidar : One, 2 - Farrash : One, 3 -
Jamadar : One, 4 - Paniwala : One, 5 -
Principal Orderly : One, 6 - Science Lab
Peon : One, 7 - Daftari : One, 8 - Library
Peon (where there is a separate and regular
library in existence) : One, 9 - Office Peon
: One, 10 - Gardener (wherever a garden
compound is available) : One.

Note - Upon the student strength
being more than 500, one additional post of
Office Peon would be available.

(b) For an Intermediate College :-
In additional to the aforesaid employees in
a
High-school,
the
following
posts
according to the requirement would be
available - 1 - Physics Lab Peon : One, 2 -
Chemistry Lab Peon : One, 3 - Biology Lab
Peon : One, 4 - Book Binder : One, 5 -
Tailoring Peon : One, 6 - Home Science
Peon : One, 7 - A man to look after the
farm (if there is a farm) : One.

Note - In any institution (routine)
Clerks' and Office Peons' additional posts
would be created or the number of posts
evaluated, in the event of their being
continuous increase or loss in student
strength over a period of two years.

It is then said that in accordance
with the aforesaid GO dated 20.11.1976,
the sanctioned strength of students on the
date of advertisement was 1765, on the foot
of
which,
17
Class
IV
employees,
described as Peons in this part of the
impugned order, would be required. It is
remarked that Regulation 101, as it now
522 INDIAN LAW REPORTS ALLAHABAD SERIES
stands, would show that the permission to
fill up thirteen posts of Class IV employees
was granted on the basis of the student
strength, which is not appropriate.

23. The third count, on which
financial approval has been declined,
goes to the effect that the DIOS had
permitted the thirteen posts to be filled up
vide his order dated 05.05.2008, which,
by his later order dated 28.05.2008, he
cancelled
until
further
orders
(a
description about the terms of the order,
which is either incorrect or the order
itself is strange). It is then remarked that
later on, the DIOS, by his order dated
10.07.2008, permitted the posts to be
filled up. After about six months of the
permission being granted, the recruitment
process commenced by advertisements
published on 09.01.2009 and 10.01.2009.
Serious
complaints
with
regard
to
irregularities were received, where, it was
said that there was appointment of
relatives (of the Management etc.), but
despite
these
complaints,
the
Principal/Manager
issued
letters
of
appointment to all the selected candidates
and made them join duties on 01.03.2009.
These proceedings were held to be
arbitrary and against Regulation 101 of
the Regulations framed under the Act of
1921. It is remarked that the aforesaid
Regulation provides that without the
permission of the DIOS, the Principal
shall not fill up any Class IV vacancy.

24. The fourth count, on which
financial approval has been declined for
two of the petitioners on added ground, that
is to say, petitioner No. 1, Udai Singh and
petitioner No. 6, Brijesh Kumar Singh, is
that, whereas petitioner No. 1, on the date
of commencement of the academic session
i.e. on 01.07.2009 was 36 years, 1 month
and 16 days old, petitioner No. 6 was 38
years, 8 months and 11 days old. It has
been
opined
that
according
to
the
"Government Order", for candidates of the
general class, the upper age limit for
appointment is 35 years. Going by the
provisions of the "Government Order", the
proposal to appoint both these candidates is
irregular. In this manner, the selection
process is vitiated.

25. For a fifth count, the order
condemns the selection to the solitary post
of Clerk filled up in the same recruitment
exercise on grounds of violation of the law
embodying the reservation policy of the
State. This petition is not about the validity
of appointment to the solitary post of Clerk
and is limited in its office to the validity of
selection and appointment of the thirteen
Class
IV employees, the petitioners.
Nothing is said in particular about the
violation of the Reservation Act or the
policy in relation to appointment of Class
IV employees under this count.

26. In the concluding part, it is
remarked that the selection was without
necessity, one made in violation of the
reservation policy, involving selection and
appointment of candidates overage, and all
of it has been done in an arbitrary fashion.
It is for these reasons that the Committee
said that the appointments cannot be
accepted as valid in law. To add to all this,
particular emphasis is laid on the GO dated
06.11.2011 (supra), which provides that all
Class IV posts have to be filled up through
outsourcing. It is also said that the said GO
is currently in force, and another GO
bearing number 891/15-12-39 of 2012
dated 23.05.2012 is in force as well
(perhaps to the same effect, though not said
explicitly). It is on all these grounds that
financial
approval
to
the petitioners'
4 All. Udai Singh & Anr. Vs. State of U.P. & Ors.
523
appointment has been declined by the
Regional Level Committee.

27. We think that the report that the
DIOS has submitted to the Joint Director of
Education, a copy whereof is annexed as
Annexure CA-1 to the counter affidavit
filed on behalf of respondents Nos. 2 and 4,
which seeks to taint the entire selection
process with extraneous considerations and
favourtism on ground that the candidates
selected, at least to the extent of three, are
either relatives or favourites of someone in
the Office of the DIOS or the Deputy
Director of Education or the DIOS himself,
does not carry much force. The foremost
reason is that this is not one of the reasons
at all that have weighed with the Regional
Level Committee in passing the impugned
order. It is far too well-settled to brook
doubt that the validity of an order under
challenge must be adjudged by what it
says. Of course, submissions in law can be
advanced to buttress the order, but, that
would not entitle the respondents to add to
the grounds or the facts on which the order
is founded by way of affidavit. The
principle is that the impugned order cannot
be supplemented for its reasons or grounds
by an affidavit. In this connection,
reference may be made to the decision of
the Supreme Court in Mohindhr Singh
Gill and another v. The Chief Election
Commissioner, New Delhi and others6,
where their Lordships of the Constitution
Bench stated the principle thus :

8. The second equally relevant
matter is that when a statutory functionary
makes an order based on certain grounds,
its validity must be judged by the reasons
so mentioned and cannot be supplemented
by fresh reasons in the shape of affidavit or
otherwise. Otherwise, an order bad in the
beginning may, by the time it comes to
court on account of a challenge, get
validated by additional grounds later
brought out. We may here draw attention to
the observations of Bose, J. in Gordhandas
Bhanji [Commr. of Police, Bombay v.
Gordhandas Bhanji, 1951 SCC 1088 : AIR
1952 SC 16] :

"Public orders, publicly made, in
exercise of a statutory authority cannot be
construed in the light of explanations
subsequently given by the officer making
the order of what he meant, or of what was
in his mind, or what he intended to do.
Public orders made by public authorities
are meant to have public effect and are
intended to affect the actings and conduct
of those to whom they are addressed and
must
be
construed
objectively
with
reference to the language used in the order
itself."

Orders are not like old wine
becoming better as they grow older.

28. For this reason, this Court is not
inclined to affirm the order on a ground
that has not figured in the order itself.

29. The foremost to be considered,
therefore, is the point if the number of
sanctioned posts were indeed 31, or going
by the GO dated 20.11.1976, the number of
posts on the date when the recruitment
process was initiated could be reduced
from the initial sanctioned 31 to a lower
number, dependent upon the strength of
students contemporaneously enrolled in the
Institution. The GO dated 20.11.1976, for
one, appears to be quite an ancient standard
for determining the strength of Class IV
employees. Between the year 1976 and the
time of issue of the advertisement, through
which, process of selection was initiated,
many events would have gone by. The
advertisement in this case was published on
09.01.2009 and 10.01.2009. After the
524 INDIAN LAW REPORTS ALLAHABAD SERIES
advertisement was issued, there was a
searching determination of the sanctioned
strength undertaken for all private aided
institutions of Auraiya, under orders of this
Court in Dhruv Narain Singh. Based on
the report of the Committee that was
submitted, a GO bearing number 425 / 1512-2013-1601(250)
/
2010
dated
22.02.2013 was issued by the Secretary to
the
Government
of
U.P.
and
the
Department
of
Secondary
Education,
addressed to the Director of Education
(Secondary), U.P., Lucknow. To the said
order, though not made part of the record of
the writ petition, there is no quarrel
between parties that the sanctioned strength
of Class IV employees in the Institution
was shown in an appended list at Serial No.
33. The sanctioned strength determined by
this GO in the appended list for the
Institution was 31. After this determination
was made for the Institution by the GO
dated
22.02.2013,
this
Court
is
of
considered opinion that the respondents
cannot take a stand that the sanctioned
strength was not 31, falling back upon an
antiquated GO of the year 1976. More than
that, when the same matter came up before
this Court in Writ - A No. 35208 of 2010,
directed against the order dated 16.03.2010,
passed by the Joint Director of Education,
rejecting the petitioners' claim on ground
of lack of sanction for the 31 posts, this
Court set aside the order of the Director of
Education dated 16.03.2010 and remanded
the matter to the Director aforesaid for
decision afresh on grounds that are
expressed in the following remarks :

Learned counsel for the petitioner
has drawn the attention of the Court to the
aforesaid order of the State Government.
The name of the Institution finds place at
Serial No. 33 of the said order, wherein the
State Government has recorded that there
are 31 post of Class IV employee in the
Institution.

Having regards to the facts and
circumstances of the case, I am of the view
that the finding recorded by the Joint
Director
of
Education
doubting
the
correctness of the comment of the District
Inspector of Schools and the Committee of
Management with regard to 31 sanctioned
post is vitiated on the ground that the
material facts have not been considered by
the Joint Director of Education.

In view of the supervening event
that the State Government has determined
the sanctioned strength on 22.2.2013 the
order
of
the
Joint
Director
needs
reconsideration in the light of the order of
the State Government.

30. This Court did not hold that 31
posts are the sanctioned strength for Class
IV employees of the Institution. We did say
that it was a material fact, which ought to
have been considered by the Joint Director.
This Court is inclined to think that it was
the most material fact and could hardly be
brushed aside. In writing the impugned
order, the Regional Level Committee on
the point under consideration, did notice
the order of this Court dated 18.05.2015
passed in Writ - A No. 35208 of 2010
regarding the existence of 31 sanctioned
posts of Class IV, but did not consider it at
all. Rather, the Regional Level Committee
chose to ignore the effect of the GO dated
22.02.2013, as well as the order of this
Court dated 18.05.2015, and instead,
harped upon the GO of 20th November,
1976, which does not seem to be material
to the question in hand at the point of time
that it arose. This Court is inclined to think
that in view of the GO dated 22.02.2013,
there is no reason to doubt the fact that the
Institution had a sanctioned strength of 31
at the time when the recruitment process
4 All. Udai Singh & Anr. Vs. State of U.P. & Ors.
525
was
initiated,
in
terms
of
the
advertisements published on 09.01.2009
and 10.01.2009.

31. The most important point that has
been mooted before this Court is if on the
date when the recruitment process was
commenced, it was no longer open to the
Institution to select and appoint Class IV
employees and instead, the option left to
them because of the GO dated 06.01.2011
was
to
engage
employees
through
outsourcing. It is, no doubt, true that before
the amendment made to Regulation 101 of
the Regulations framed under the Act of
1921 with effect from 31.12.2009, the
DIOS could grant permission to fill up a
Class IV post, but, after amendment of
Regulation 101 as aforesaid, the DIOS had
to submit the total number of vacancies to
the Director of Secondary Education and
showing the number of students, give
justification
to
fill
up
the
existing
vacancies. It was only upon receipt of
orders permitting the vacancies to be filled
up
from
the
Director
of
Education
(Secondary) that the DIOS could permit the
Institution to fill up any kind of nonteaching posts, of course, following the
rules
for
reservation
made
by
the
Government. Here, the selection process
commenced prior to the amendment of
Regulation 101 vide Notification dated
31.12.2009, when it could be initiated by
the Institution with the permission of the
DIOS, which, in this case, was granted on
10.07.2008. The hurdle that was mooted
was the GO dated 06.01.2011, that had
forbidden appointment to Class IV posts,
except junior technical posts, and instead,
provided for engagement of employees
through outsourcing.

32. This GO dated 06.01.2011, to the
extent of paragraph No. 2 thereof, was
struck down as unconstitutional by a
learned Single Judge of this Court in
Committee of Management, Lala Babu
Baijal Memorial Inter College, Lodipur,
Ghaziabad and another v. State of U.P.
and others7. It is not in dispute that the
judgment of the learned Single Judge in
Committee of Management, Lala Babu
Baijal Memorial Inter College (supra)
was never challenged and became final. It
would
have
the
effect
of
effacing,
therefore,
the
GO dated 06.01.2011.
Therefore, prior to the amendment made to
Regulation
101,
Chapter
III
of
the
Regulations framed under the Act of 1921
on 24.04.2014, there was no embargo on
filling up sanctioned posts of Class IV
employees with permission of the DIOS. In
fact, prior to 31.12.2009, permission of the
DIOS would have sufficed and justification
to fill up any non-teaching posts, including
Class IV posts, was not required to be
offered to the Director of Education
(Secondary) by the DIOS and his orders
obtained for filling up such vacancies.
Here, as already said, the process of
recruitment
commenced
with
the
publication
of
the
advertisement
on
09.01.2009 and 10.01.2009, much before
the amendment to Regulation 101 with
effect from 31.12.2009 and long before the
amendment brought about with effect from
24.04.2014. Much was, therefore, argued
before this Court on the strength of well
established principle that the amendment
would not have retrospective operation.
Since, in this case, the recruitment process
was
initiated
on
09.01.2009
and
10.01.2009, it is submitted on behalf of the
petitioners that assuming that the GO dated
06.01.2011, which introduced the system of
outsourcing through paragraph No. 2 and
since struck down by this Court, was an
antecedent step to give effect to a policy
decision of the Government, that ultimately
526 INDIAN LAW REPORTS ALLAHABAD SERIES
took
shape
on
24.04.2014,
when
Regulation 101 was finally amended to
give effect to the policy, it would not affect
a recruitment process already initiated
before the earliest introduction of the
policy through GOs, with due permission
of the DIOS, that had already been granted
and the process of selection completed on
27.02.2009 and appointment letters issued
on 01.03.2009. The rights of the petitioner,
according to the contention advanced,
would be governed by the position, as
existed, before the amended Regulation
101 came into force with effect from
24.04.2014 as also the antecedent policy
decision of the Government in this regard,
expressed in different Government Orders,
one of which relating to the Department of
Secondary Education was struck down by
this Court in Committee of Management,
Lala
Babu
Baijal
Memorial
Inter
College.

33.