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Allahabad High Court · body

1994 DIGILAW 682 (ALL)

AFTAB AHMAD v. DISTRICT BASIC EDUCATION OFFICER BALLIA

1994-10-04

S.N.AGARWAL

body1994
SNDHIR NARAIN, J. This petitioners seek a writ of mandamus command ing respondent No. 1 to make payment of salary to them from September 1992 and continue to pay the same in future. The notice was issued to the respondent No. 1 and on 21st April, 1994 on months time was granted to learned standing counsel to file counter affidavit but no counter affidavit has been filed. A counter affidavit on behalf of Committee of Management, respondent No. 2 has been filed supporting the version of the petitioners. 2. I have heard learned counsel for the petitioners and the learned standing counsel for respondent No. 1. 3. The facts in brief are that Junior High School Kasmapur, post-Baloopur, district Ballia (hereinafter referred to as the school) is Junior High School and is recognised under the provisions of U. P. Basic Education Act, 1972. It is aided by the State Government. The service of the teachers of the School are governed by the U. P. Recognised Basic School (Junior High School) (Recruitment and Conditions of Service of Teachers) Rules, 1978. The provisions of U. P. Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978 are also applicable to the teachers of the School. 4. The version of the petitioners is that post of Assistant Teacher fell vacant in the school. Petitioner No. 1 applied for his appointment on the post of Assistant Teacher in Urdu. The Committee of Management in its meeting held on 15th September 1989 passed resolution appointing petitioner No. 1 as Assistant Teacher in Urdu in the School. On the basis of the said resolution the Manager issued appointment letter on 15th September, 1989 to the petitioner appointing him as Assistant Teacher in Urdu in the School with effect from 1-10-1989 on temporary basis. The petitioner No. 1 joined the school after receiving the appointment letter. Necessary papers for grant of approval of appointment to the petitioner No. 1 was sent to the Basic Shiksha Adhikari, Ballia, respondent No. 1. He accorded his approval to the temporary appointment of the petitioner on 5th February, 1990 for the period 1-10- 1989 to 31st March, 1990. Respondent No. 1 vide his letter dated 5-2-1990, while grant ing the approval to the appointment of the petitioners for the period 1-10-1989 to 31-3-1990, directed the Management to take appropriate proceedings. 5. He accorded his approval to the temporary appointment of the petitioner on 5th February, 1990 for the period 1-10- 1989 to 31st March, 1990. Respondent No. 1 vide his letter dated 5-2-1990, while grant ing the approval to the appointment of the petitioners for the period 1-10-1989 to 31-3-1990, directed the Management to take appropriate proceedings. 5. It appears that another post of Assistant Teacher fell vacant in the school. The Management of the School passed resolution in its meeting dated 15-12-1990 to appoint petitioner No. 2 as Assistant Teacher in the School on temporary basis with effect from 1-1-1991 to 30-6-1991. Respondent No. 1 by his letter dated 18-3-1991 accorded approval to the appointment of petitioner No. 2 as Assistant Teacher in the School. The Management further requested respondent No. 1 to extend the period of approval. Respondent No. 1 by his letter dated 5th August, 1991 informed the Manager of the School that the approval is accorded on the condition that the Management shall take steps for making regular appointment in accordance with the provisions of U. P. Recognised Basic Schools (Junior High School) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (hereinafter referred to as the rules ). 6. The Management of the School did not take any steps to fill up the vacancy after making regular selection in accordance with Rules 1978. It appears that it permitted the petitioners to continue on the post on which they were appointed. Respondent No. 1, however, did not sanction the salary of the petitioners. The petitioners have filed this writ petition for a writ of mandamus commanding the respondents to pay the salary. 7. The appointments have to be made to any vacant post in the School in accordance with the provisions of Rules 1978. The Management is permitted to make temporary appointment with previous approval of District Basic Education Officer under Rule 20 for a limited period. Rule 20 reads as follows : "20. 7. The appointments have to be made to any vacant post in the School in accordance with the provisions of Rules 1978. The Management is permitted to make temporary appointment with previous approval of District Basic Education Officer under Rule 20 for a limited period. Rule 20 reads as follows : "20. Temporary Appointment.-Notwithstanding anything contained in these rules, the management may, with the previous approval of the District Basic Education Officer, appoint for a period not exceeding six months any person as Headmaster or assistant teacher, as the case may be : Provided that no person shall be so appointed unless he possesses the minimum qualification prescribed for the post : Provided further that the District Basic Education Officer may, for reasons to be recorded, extend the aforesaid period of six months for a period co-terrainous with the end of the academic session in which such extension is granted. " The District Basic Education Officer had granted approval of appointment of the petitioner No. 1 for the period 1-10-1989 to 31-3-1990. The Committee of Management passed a resolution on 15-12-1990, for appointment of the petitioner for the period 1-11-1991 to 30-6-1991. It appears that the Manager wrote a letter dated 5tb July 1991 and requested for extension of the period of approval as provided under Rule 20 of the Rules. Respondent No. 1 by letter dated 5th August 1991 informed the Manager that the approval. which was granted on 18th March 1991 is extended on the condition that the Manage ment will take steps to make regular appointment after selection in accordance with Rules 1978. The Management, however, did not take any steps. 8. Counter affidavit has been filed by the Committee of Management of the School but it has not given any reason as to why the Management failed to take steps for making appointment in accordance with Rules 1978. 9. If a person has been appointed on temporary basis and such appoint ment has been approved under Rule 20 of 1978 Rules, the person who has been appointed on temporary basis cannot claim any right to continue on the post for an indefinite period. The District Basic Education Officer can grant the approval of temporary appointment for a period not exceeding six months, he can extend the aforesaid period of six months for period re-terminous with the end of academic session in which extension is granted. The District Basic Education Officer can grant the approval of temporary appointment for a period not exceeding six months, he can extend the aforesaid period of six months for period re-terminous with the end of academic session in which extension is granted. If a person who has been appointed on temporary basis, is permitted to continue to work as a teacher in such school indefinitely and the Management does not take any steps for making regular appointment in accordance with Rules 1978, the persons who are entitled for appointment shall be deprived of their rights to be selected and get appointment in accordance with Rules 1978. Rule 9 provides for the constitution of the selection committee and Rule 10 provides for the procedure of selection. The appointment has to be approved by the District Basic Education Officer. 10. Considering the facts and circumstances of the present case the respondent No. 1 is directed to issue necessary instructions to the Committee of Management to make regular selection in accordance with 1978 Rules. In case the regular selection is made and the petitioners are duly selected and their appointments are approved by the District Basic Education Officer, their claim for payment of salary will be considered keeping in view the period for which they have actually worked in the school. 11. The writ petition is accordingly disposed of finally. Petition disposed of. .