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2009 DIGILAW 1495 (ALL)

NARESH CHANDRA v. STATE OF U P

2009-04-17

ARUN TANDON

body2009
ARUN TANDON, J. Heard learned Counsel for the petitioner, Sri Pramod Tripathi, Advocate holding brief of Sri Neeraj Tripathi, learned Counsel for respondent Nos. 2 and 3, Sri Monu Goswami, learned Counsel for re spondent No. 4 and learned Standing Counsel for State-respondent. 2. Adarsh Vidya Mandir Junior High School Masffar Ganj, Mirzapur is an aided and recognised junior high school under the provisions of U. P. Basic Education Act, 1972 (hereinafter referred to as the act, 1972 ). Provisions of the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (hereinafter referred to as the rules, 1978) are fully applicable to the teachers of the said institution. 3. One Mohan Prasad, who was working as Assistant Teacher in the said institution resigned on 5. 4. 1997. The resultant vacancy was advertised and one Ramesh Chandra Pathak was selected. However, his appointment was disap proved under order dated 28. 6. 2002 on the ground that the vacancy was within the quota reserved for Scheduled Castes Category candidate and further that the Management has not obtained prior permission before advertising the said vacancy. This order is stated to have become final. 4. The management thereafter made a request to the Basic Shiksha Adhikari for permission being granted for vacancy being advertised within the reserved category. Permission was granted by the Basic Shiksha Adhikari vide letter dated 3. 7. 2003. The vacancy was advertised in daily newspaper aaj inviting application from the prospective candidate. A selection commit tee was constituted with a nominee of the Basic Shiksha Adhikari. After se lection, the Selection Committee found the petitioner most suitable and placed his name at serial No. 1 in the penal prepared for appointment against the said vacancy. Papers for grant of prior approval qua appointment of the peti tioner were forwarded to the Basic Shiksha Adhikari vide letter dated 21. 10. 2003. Since no orders were passed by the Basic Shiksha Adhikari, having regard to Rules 10 and 11 of Rules 1978, the Committee of Management is stated to have issued appointment letter in favour of the petitioner on 4. 5. 2004 and in pursuance thereof, the petitioner joined on 11. 5. 2004. 10. 2003. Since no orders were passed by the Basic Shiksha Adhikari, having regard to Rules 10 and 11 of Rules 1978, the Committee of Management is stated to have issued appointment letter in favour of the petitioner on 4. 5. 2004 and in pursuance thereof, the petitioner joined on 11. 5. 2004. Since petitioner was not paid salary from public exchequer, even after appointment, he has approached this Court by means of present petition for a writ of mandamus directing the Basic Shiksha Adhikari to ensure payment of salary to the petitioner under the provisions of Rules, 1978. 5. While entertaining the present writ petition, an interim mandamus was issued by this Court on 13. 9. 2004 calling upon the respondents to ensure payment of current salary to the petitioner from September, 2004 onwards regu larly month by month or to show-cause within the time specified. 6. A counter affidavit has been filed on behalf of Basic Shiksha Adhikari, wherein following three objections have been raised for refusing the prayer made by the petitioner in the present writ petition : (a) a ban on appointments in recognised institution has been imposed under Government Order dated 20. 1. 2003, therefore, the selection and ap pointment of the petitioner was contrary to the said Government Order, (b) papers pertaining to the selection of the petitioner have not been forwarded by the Manager of the institution, (c) Director of Education (Basic) vide letter dated 15. 7. 2005 has in formed the Basic Shiksha Adhikari that the procedure for awarding of quality point marks with regard to the educational qualification and in terview as provided under letter of the Director of Education (Basic) dated 20. 10. 2004 has not been followed, therefore, the selection of the petitioner is not in accordance with law. 7. The stands so taken by the respondents is challenged by the learned Counsel for the petitioner and it is contended that reliance upon the ban im posed under Government Order dated 20. 1. 2003 is completely misplaced in view of simple reading of the Government order dated 20. 1. 2003, which has been brought on record as Annexure-2 to the Counter Affidavit. 1. 2003 is completely misplaced in view of simple reading of the Government order dated 20. 1. 2003, which has been brought on record as Annexure-2 to the Counter Affidavit. Paragraph-2 the Government order provides that if any vacancy is caused against sanctioned post, a prior approval of the State Government be obtained with reference to the number of posts, number of students actually admitted and the annual results of the institution, therefore, there was no complete ban as stated in the counter affidavit. 8. So far as objection (b) is concerned it ;s pointed out that the same is too technical in nature, inasmuch as legality of the appointment will not depend upon the fact as to who has forwarded the papers qua selection and appoint ment of the petitioner, but on the consideration whether the selection is legal and valid or not. 9. In reply to objection (c) qua awarding of the quality points marks, it is contended that letter of Director dated 20. 4. 2004 brought on record as Annexure SRA-1 to the supplementary rejoinder affidavit, pertains to the appointments to be made in basic institutions, which are covered by the provisions of Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 (hereinafter referred to as the rules, 1981) and the said Government Order has no application in re spect of the teachers to be appointed under the provisions of Rules, 1978. 10. The contentions so raised on behalf of the petitioner are opposed by the learned Counsel for the respondents and the grounds mentioned in the counter affidavit have been reiterated. 11. I have considered the submissions made by the learned Counsel for the parties and have perused the records of the present writ petition. 12. On examination of the records including the Government Order dated 20. 1. 2003, which has been relied upon by the respondents for alleging that a complete ban has been imposed on appointment of teachers in recognised junior high schools, this Court is of the considered opinion that such complete ban as suggested is not there. Paragraph-1 of the Government Order provides for com plete ban on creation of new posts and appointment against such newly created posts. Paragraph-2 of the Government Order takes care of the vacancies which are caused due to resignation death etc. against duly created posts. Paragraph-1 of the Government Order provides for com plete ban on creation of new posts and appointment against such newly created posts. Paragraph-2 of the Government Order takes care of the vacancies which are caused due to resignation death etc. against duly created posts. In respect of these posts, it is provided that prior approval from the State Government be obtained with reference to the number of created posts, number of students actu ally admitted and the results of the institution before making appointments. What follows is that there is no ban on appointment in recognised junior high schools against duly created posts, vacancies whereof are caused due to resignation, death etc. and only prior approval from the State Government has to be obtained. Therefore, the second objection raised by the State-respondents in the counter affidavit does not appeal to the Court. 13. So far as the second objection raised on behalf of State-respondents is concerned, it may be recorded that the same appears to hyper technical in na ture. It is wholly irrelevant as to who has forwarded the relevant documents. What has to examine by the authority is as to whether appointments have been made in accordance with Rules, 1978 after due advertisement under an valid resolution of the Committee of Management and the incumbent appointed is possessed of the prescribed minimum qualification. The mode of forwarding the papers shall not affect the legality or otherwise of the selection held. 14. So far as third objection raised on behalf of the State-respondents is concerned, I am of the considered opinion that the letter of the Director dated 20. 4. 2004 has no application, so far as the appointment of teachers in recog nised junior high schools is concerned, inasmuch as the Government Order specifically refers to the Rules, 1981, which apply to Basic Schools. Rules, 1978 do not contemplate awarding of quality point marks as is provided in the Government Order. Consequently, the third objection raised on behalf of State-respondents also fails. 15. In view of the aforesaid, the objections raised in the counter affidavit for refusing payment of salary to the petitioner from public exchequer are not sustainable in the eyes of law. However, what follows is that under Government Order dated 20. 1. Consequently, the third objection raised on behalf of State-respondents also fails. 15. In view of the aforesaid, the objections raised in the counter affidavit for refusing payment of salary to the petitioner from public exchequer are not sustainable in the eyes of law. However, what follows is that under Government Order dated 20. 1. 2003, it is necessary to obtain prior approval of the State Government in respect of appointment of the petitioner before any di rection for payment of salary can be issued. It is necessary for the Basic Shiksha Adhikari to transmit all the papers pertaining to the appointment of the petitioner along with details of the post, number of the students actually admitted and the result of the institution to the State Government, so that it may exercise its discretion to approve the appointment made or to refuse the same. 16. Consequently, the writ petition is allowed with a direction upon the Basic Shiksha Adhikari to transmit all the required information/documents for approval of the appointment of the petitioner to the State Government, within four weeks from the date a certified copy of this order is filed before him. He is at liberty to obtain such information, as may be desired from the Committee of Management for the purpose. On receipt of the papers as afore said, the State Government shall take appropriate decision qua appointment of the petitioner and payment of salary by means of a reasoned speaking order, preferably within a period of eight weeks thereafter. 17. With the aforesaid observations/directions the present writ petition is disposed of finally. Petition Disposed Off. .