Full Judgment
A.K. Yog, J.
1. Heard Sri W. H. Khan, advocate learned counsel on behalf of the petitioner along with Sri R. C. Dwivedi as well as Sri M. S. Pipersenia, advocate, learned standing counsel, representing respondent Nos. 1, 2 and 4.
2. It may be noted that the respondent No. 3, Committee of Management has been transposed as petitioner No. 2. No counter affidavit has been filed on behalf of the respondent Nos. 1, 2 and 4 inspite of the fact that notice was given in the office of Chief Standing Counsel, High Court, Allahabad, as back as in the year 1998 and time was granted to the respondents for filing counter-affidavit. The respondents have not availed the opportunity afforded by the Court to rebut the averments made in the writ petition. Hence, the same are to be accepted for the purposes of present proceedings only.
3. The petitioner No. 1 contends that he was appointed being found best available candidate for discharging duty as Physical instructor in the college called Ramji Sahai Degree College, Rudrapur, Deoria, an affiliated Degree College of the University of Gorakhpur, constituted under the provisions of the State Universities Act, 1973, as amended from time to time.
4. The petitioner No,_ 1 passed Bachelor of Physical Education in 1980 from Christian College, Lucknow. He also passed M.A. in Political Science from Gorakhpur University. The college is also receiving grant-in-aid from the State Government w.e.f. 1.2.1979. Its affairs are managed by duly constituted Committee of Management (petitioner No. 2). In para 5 of the writ petition, it is stated that the Committee of Management duly selected the petitioner No. 1 following the provisions of statute contained in Chapter 23 of the Gorakhpur University (viz.. First Statute 25.01, 25.04 and 25.06). A true copy of the appointment letter dated 1.1.1981 has been filed as Annexure-1 to the writ petition. The petitioner No. 1 claims to have been working in the institution and discharging his duty as Physical Instructor throughout to the satisfaction of his employer, namely, the Committee of Management.
5. Paras 8, 9 and 10 of the petition show that the Management ensued correspondence with the Director of Education (H.E) as well as the State Authorities through the said Director. In support of the facts mentioned in paras 8, 9 and 10, documents have been filed as Annexures-3 and 4 which are fetter dated 19.2.1988, written by the Director to the Management for submitting the details of the employees in Sports/Games Department of the college and another letter dated 8.7.1988 written by the Management in reply to the above letter of the Director, giving details in requisite proforma.
6. In absence of the counter-affidavit, there is nothing to show that the Director of Education (H.E.) did not find the aforesaid information to be complete or that the said authority required any further information in order to process the matter. If the version of the petitioners is to be accepted (as this Court has no option but to accept the same in absence of the counter-affidavit), it is decipherable that no action thereafter has been taken.
7. Any person of normal prudence can expect from the responsible authorities like the Director of Education (H.E.) and State Authorities in the State Government to take a decision this way or that way. No good governance can be expected, if the matters are left to oscillate like a pendulum keeping the entire thing uncertain and undecided.
8. This Court takes judicial notice of the fact that physical education is as much necessary and essential for students receiving education in Government aided Institutions as the academic education. Such activities must be promoted as it will inculcate interest in the students to take up health activities which are good for their health, which is an essential condition for having good students.
9. In the opinion of this Court, the post of Physical Instructor/Sport Instructor should be a condition precedent for granting affiliation and such persons who are fully qualified and some times such persons who have received their Physical Instructor degrees like D.P.Ed, are also sportsman of exemplary standard, representing nation at different levels. If that be so, it will be appropriate that post of Physical Instructor should also be treated to be of same importance as that of Lecturer in the Institution.
10. In view of the above, this Court has no option but to issue a writ of mandamus directing the petitioner No. 1 to file a comprehensive representation along with a copy of the writ petition with all annexures within four weeks from today along with certified copy of this judgment. If such representation, as stipulated above, is filed, the Secretary (Higher Education), U. P. Government, Lucknow, shall decide the same within three months of the receipt of the representation after hearing such authorities, as may be deemed appropriate, including the Director of Education (H.E.) or an officer nominated by him. District Inspector of Schools concerned, the Management concerned and the petitioner No. 1 who may file such documents in support of their claim as may be deemed appropriate and may be advised. The concerned authority, while deciding the same, shall also endeavour to find out other instances in the State where any post of Physical Instructor has been created in affiliated colleges and also consider the question of law keeping in view Article 14 of the Constitution of India. It is made clear that the representation shall be decided in accordance with law on the basis of record before the authority concerned exercising unfettered discretion without being prejudiced by any of the observations made above as far as it relates to the merit of the case.
11. The writ petition stands allowed, granting relief on the terms and conditions indicated above.
12. No order as to costs.