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Court No. 24
Writ Petition No. 3950 (SS) of 1994
Sheeban Ahmad Siddiqui ... Petitioner
Versus
Smt. Lalita Pradeep and others ... Opposite parties
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Hon'ble Rajiv Sharma, J.
Heard Mr. Raza Zaheer, learned Counsel for the petitioner
and Mr. Deepak Srivastava, learned Counsel Basic Shiksha
Adhikari, Faizabad.
The petitioner has filed the instant writ petition with the
following prayers:-
(i) to issue a writ, order or direction in the nature of Certiorari
to quash the order dated 17.2.1994 passed by the Basic Shiksha
Adhikari, District Barabanki, contained in Annexure No.4.
(ii) to issue a writ, order or direction in the nature of Mandamus
commanding the opposite parties not to hold interview to be held
on 25.8.1994 and also not to appoint anyone else on the post of
Clerk in Islamia Junior High School, Rudauli, District Barabanki.
(iii) to issue a writ, order or direction in the nature of Mandamus
commanding the opposite parties to appoint the petitioner on the
post of Clerk in Islamia Junior High School in view of the findings
given by the Selection Committee and the opposite party No.2
may also be directed as he may give his approval on the
recommendations of the Selection Committee.
(iv) ……
(v) ……
During the pendency of the instant writ petition, district
Barabanki was carved out and Tehsil Rudauli became the part of
District Faizabad and as such, though no amendment in the memo
of writ petition has been made, yet Mr. Deepak Srivastava,
learned Counsel appearing for the Basic Shiksha Adhikari fairly
stated that he has no objection for proceeding with the hearing of
the case.
The grievance of the petitioner is that the post of Clerk was
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advertised in the newspaper and the petitioner being fully eligible
also applied for appointment on the said post. Later on, after due
procedure, he was called for interview. The Selection Committee
after considering the candidature of the candidates recommended
the name of the petitioner for appointment. The Committee of
Management sent recommendations of the Selection committee
for necessary approval to the Basic Shiksha Adhikari/opposite
party No.2.
Instead of granting approval, the recommendation of the
Selection Committee was rejected by the Basic Shiksha Adhikari
vide order dated 17.2.1994. While rejecting the recommendation,
three grounds were taken. First, according to the provisions of
Section 5-B of the Clerk and IV Class Employees Service
Regulation, 1984, the recommendation of all members is a must,
whereas in the instant case, one of the members of Selection
Committee has not given his recommendation. The second ground
is that candidates were not informed by the registered post as to
the next date of interview i.e. 2.11.1993, whereas only few
candidates were informed by the registered post and lastly, as per
Government Orders dated 30.4.1963 and 3.6.1964, the quota of
18% which has been reserved for Scheduled Caste and Scheduled
Tribe Employees has not been fulfilled. Being aggrieved, the
instant writ petition has been filed for quashing of the order dated
17.2.1994 as well as for not proceeding with the interviews in
pursuance of the directions issued by the Basic Shiksha Adhikari
on 25.8.1994. Further, he prays for appointment on the post of
Clerk in Islamia Junior High School on the basis of
recommendations of the Selection Committee.
Counsel for the petitioner submits that Regulation 5-B of
Employees Service Regulations, 1984 does not provide for
unanimous recommendation of all the members of the Selection
Committee, but the recommendations by majority and as in the
instant case, the selection committee comprises three members
out of which two members had made recommendation in favour
of the petitioner and as such, the majority view of the members
of selection committee will prevail. In respect of second objection,
it is submitted that since all candidates were informed by the
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registered post and as such, the selection process cannot be said
to be irregular. It is pertinent to mention here that all the
candidates, who were earlier informed to attend the interview on
10.10.1993, have again been informed and they have attended
the interview held on 2.11.1993 and further not a single candidate
was left or raised his grievance that he was not considered or
called for the interview due to postal delay. As regards the third
objection, it is clarified that again in the fresh advertisement,
there is no mention of any quota for Scheduled Caste and
Scheduled Tribe candidates because the quota is upto the mark in
the said school. Lastly, he submits that the fresh advertisement is
a replica of the earlier advertisement and nothing new has been
mentioned and as such, the petitioner is entitled to be appointed
on the post of Clerk.
A counter-affidavit has been filed, wherein in para 8, it has
been mentioned that according to the provisions of Section 15 (5)
(2) of U.P. Recognized Basic School Rules, 1984, if there is any
difference of opinion, then the Basic Shiksha Adhikari is
empowered not to approve and as such, the appointment on
which concurrence is not there, appointment letter cannot be
issued. In the instant case, one of the members had deferred with
the opinion of other two members of the Selection Committee,
hence the petitioner was not eligible to be appointed on the post
for which he had applied for.
In order to appreciate the rival submissions of the learned
counsel for the parties, it is necessary to have a glimpse of the
provisions of Rules 5-B, 15 (5) (2) and 15 (2) of the U.P.
Recognized Basic School Rules, 1984 which are reproduced as
under:-
“5 (B) चयन-सिमित दारा ऎसी िनयुिक के िलये उसके समबनध मे
संसतुित न की जाये ।
15 (5) (2) यथािसथित िलिपक वगर कमरचािरयो और समूह ‘ब’
के कमरचािरयो के चयन के िलये इस िनयमावली मे िनधारिरत पिकया का
अनुसारण िकया गया है;
तो वह चयन-सिमित दारा की गई संसतुितयो को अनुमोिदत
करे गा और खनड ४ के अधीन पतािद की पािप के िदनांक से दो सपाह के
भीतर पबनधािधकरण को अपना िविनशय संसूिचत करे गा ।
15 (2) यिद िजला बेिसक िशका अिधकारी का यथापूवीक के
4समबनध मे समाधान न हो तो पतािद पबनधािधकरण को अस आदेश के साथ
वापस कर देगा िक मामले पर चयन-सिमित दारा पूनरिवचार िकया जाय ।”
On perusal of the aforesaid provisions, it will be abundantly
clear that neither 5 (B) nor 15 (5) (2) or 15 (2) empowers the
Basic Shiksha Adhikari to reject the recommendations of the
Selections Committee, but he can only remit the matter to the
Selection Committee for deciding afresh, if he finds any
irregularity. In the instant case, while rejecting the
recommendations of the Selection Committee, he travelled
beyond powers vested upon him and further orders for fresh
initiation of entire selection. This Court, while entertaining the writ
petition, by means of the order dated 24.8.1994, provided that
until further orders, the selection to the advertisement published
in Dainik Jagaran dated 6/7th July, 1999 shall take place, but no
appointment letter shall be issued. It may be added that in the
counter-affidavit, the opposite parties have failed to explain as to
how the quota was short in the institution. Thus, the Basic
Shiksha Adhikari while passing the impugned order has not
applied its mind properly.
In view of above, the writ petition is allowed and the
impugned order dated 17.2.1994 passed by the opposite party
No.2, contained in Annexure No. 4 to the writ petition, is hereby
quashed. In case any subsequent selection has been made, in
respect of the post in question, the proceedings of the said
selection are also quashed.
Dt.5.7.2010
Lakshman/