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2009 DIGILAW 1722 (ALL)

ASHOK KUMAR MISHRA v. ZILA BASIC SHIKSHA ADHIKARI

2009-04-24

DILIP GUPTA

body2009
DILIP GUPTA, J. ( 1 ) THIS petition seeks the quashing of the order dated 27th October, 1999 passed by the Zila Basic Shiksha Adhikari by which the representation filed by the petitioner for payment of salary was rejected. The petitioner has also sought a direction upon the respondents to pay salary w. e. f. 1st April, 1996 on the post of Assistant Teacher and to continue to pay the same. ( 2 ) THE petitioner claims to be working as an Assistant Teacher in the B. S. S. Junior High School Shramik Basti Babu Purwa Kanpur Nagar (hereinafter referred to as the junior High School) from 15th January, 1983. The said Junior High School is a recognised Junior High School and is governed by the 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 ). It is stated that the said Junior High School was brought in the grant-in-aid list of the State Government w. e. f. 1st April, 1996. The petitioner claims that though the salary was paid to him by the Committee of Management upto 31st March, 1996 but when the Junior High School was brought in the grant-in-aid list, salary was not paid to him as a result of which he filed a representation before the Zila Basic Shiksha Adhikari on 1st May, 1996 and thereafter filed Writ Petition No. 5428 which was disposed of by this Court by the judgment and order dated 17th February, 1997 with a direction to the District Basic Education Officer Kanpur Nagar to decide the representation of the petitioner in accordance with law. The District Basic Education Officer, Kanpur Nagar by his order dated 27th October, 1999 rejected the representation of the petitioner. It is this order which has been challenged in this writ petition. ( 3 ) IT has been stated in the impugned order that the petitioner does not possess the appointment order; that he does not have the requisite minimum qualifications prescribed under the Rules for the post of Assistant Teacher; that he was not appointed in accordance with the procedure prescribed under the Rules and nor was his appointment approved by the Department. Accordingly, the claim for payment of salary was not justified. Accordingly, the claim for payment of salary was not justified. ( 4 ) SRI Rahul Jain, learned counsel appearing for the petitioner has placed reliance upon the provisions of Rule 10 (5) (iii) of the Rules and submitted that in terms of the said Rule the appointment of the petitioner shall be deemed to have been approved since the District Basic Education Officer did not communicate his decision within one month from the date of receipt of the papers under Rule 10 (4) of the Rules. He also submitted that the vacancy was advertised in the Newspaper and even in the absence of an appointment order he was permitted to join the Junior High School on 15th January, 1983 and he worked as Assistant Teacher and was paid salary by the Committee of Management from its own resources till 31st March, 1996 when the Junior High School was brought in the grant-in-aid list of the State Government. He, therefore, submitted that the District Basic Education Officer was not justified in rejecting the representation filed by the petitioner for payment of salary. ( 5 ) SRI K. Shahi, learned counsel for the respondents, however, submitted that the procedure prescribed under the Rules for making the alleged appointment had not been followed. He also submitted that there was nothing on the record to indicate that the Management had ever sent the papers to the District Basic Education Officer in accordance with Rule 10 (4) of the Rules or that they were received in his office, and, therefore, the question of deemed approval does not arise. He further submitted that neither had the vacancy been advertised nor did the petitioner possess the required qualifications and nor was any appointment order issued to the petitioner as is the requirement under Rule 11 of the Rules. ( 6 ) I have carefully considered the submissions advanced by learned counsel for the parties. ( 7 ) BEFORE adverting to the rival contention advanced by learned counsel for the parties, it would be relevant to quote the relevant provisions of the Rules which are as follows:- "4. ( 6 ) I have carefully considered the submissions advanced by learned counsel for the parties. ( 7 ) BEFORE adverting to the rival contention advanced by learned counsel for the parties, it would be relevant to quote the relevant provisions of the Rules which are as follows:- "4. Minimum qualification.- (1) The minimum qualification for the post of assistant teacher of a recognized school shall be Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or equivalent examination (with Hindi and a teachers training course recognized by the State Government or the Board such as Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate, or Certificate of Training ). (2) The minimum qualifications for the appointment to the post of Headmaster of a recognized school shall be as follows:- (a) A degree from a recognized University or an equivalent examination recognized as such; (b) A teachers training course recognized by the State Government or the Board, such as Hindustani Teaching Certificate, Junior Teaching Certificate, Certificate of Training or Basic Teaching Certificate; and (c) Three years teaching experience in a recognized school. 5. Eligibility for appointment.- No person shall be appointed as Headmaster or assistant teacher in substantive capacity in any recognized school, unless- (a) he possesses the minimum qualifications prescribed for such post; (b) he is recommended for such appointment by the Selection Committee. 6. Disqualifications. . . . . . . . . . . . . . . . . . . . . . . 7. Advertisement of vacancy.- (1) No vacancy shall be filled, except after its advertisement in at least one newspaper having adequate circulation in the locality and the intimation of such vacancy to the District Basic Education Officer. (2) In every advertisement and intimation under clause (1), the management shall give particulars as to the name of the post, the minimum qualifications and age limit, if any, prescribed for such post and the last date for receipt of applications in pursuance of such advertisement. 8. Age Limit. -. . . . . . . . . . . . . . . . . . . _ 9. 8. Age Limit. -. . . . . . . . . . . . . . . . . . . _ 9. Selection Committee.- The Management shall constitute a Selection Committee consisting of : a- For the appointment of Headmaster- (1) Manager ; (2) a nominee of the District Basic Education Officer; (3) a nominee of the Management; b- For the appointment of assistant teacher- (1) Manager ; (2) Headmaster of the recognized School in which the appointment is to be made ; (3) a nominee of the District Basic Education Officer. 10. Procedure for selection.- (1) The Selection Committee shall, after interviewing such candidates as appear before it on a date to be fixed by it in this behalf, of which due intimation shall be given to all the candidates, prepare a list containing as far as possible the names, in order of preference, of three candidates found to be suitable for appointment. (2) The list prepared under clause (1) shall also contain particulars regarding the date of birth, academic qualifications and teaching experience of the candidates and shall be signed by all the members of the Selection Committee. (3) The Selection committee shall, as soon as possible, forward such list, together with the minutes of the proceedings of the Committee to the management. (4) The manager shall within one week from the date of receipt of the papers under clause (3) send a copy of the list to the District Basic Education Officer. (5) (i) If the District Basic Education Officer is satisfied that - (a) the candidates recommended by the Selection Committee possess the minimum qualifications prescribed for the post ; (b) the procedure laid down in these rules for the selection of Headmaster or assistant teacher, as the case may be, has been followed he shall accord approval to the recommendations made by the Selection Committee and shall communicate his decision to the management within two weeks from the date of receipt of the papers under clause (4 ). (ii) If the District Basic Education Officer is not satisfied as aforesaid, he shall return the papers to the management with the direction that the matter shall be reconsidered by the Selection Committee. (ii) If the District Basic Education Officer is not satisfied as aforesaid, he shall return the papers to the management with the direction that the matter shall be reconsidered by the Selection Committee. (iii) If the District Basic Education Officer does not communicate his decision within one month from the date of receipt of the papers under clause (4), he shall be deemed to have accord approval to the recommendations made by the Selection Committee. 11. Appointment - Appointment by the management.- (1) On receipt of communication of approval or as the case may be, on the expiry of the period of one month under clause (iii) of sub-rule (5) of Rule 10, the management shall, first offer appointment to the candidate given the first preference by the Selection Committee and on his failure to join the post, to the candidate next to him in the list prepared by the Selection Committee and on the failure of such candidate also, to the last candidate specified in such list. (2) (a) The appointment letter shall be sent under the signature of the manager by registered post to the selected candidate. (b) The appointment letter shall clearly specify the name of post, the pay scale and the nature of appointment, whether permanent or temporary, and shall also specify that if the candidate does not join within 15 days from the date of receipt of the appointment letter his appointment shall be cancelled. (c) A copy of the appointment letter shall also be sent to the District Basic Education Officer. " ( 8 ) IN the writ petition the relevant paragraphs regarding appointment of the petitioner as Assistant Teacher in the Junior High School are paragraphs 4, 5, 19, 20, 21 and 22 which are as follows:- "4. That there was a clear vacancy on the post of Assistant Teacher in the said school and the management advertised the same and the petitioner applied for being appointed and the selection committee selected the petitioner and the petitioner was appointed by the committee of management but no appointment letter was issued. 5. That the petitioner joined on 15. 1. 1983 and continued to work. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19. 5. That the petitioner joined on 15. 1. 1983 and continued to work. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19. That the Zila Basic Shiksha Adhikari in his decision has given 4 reasons. The first reason is that the petitioner was not qualified and the second reason is that the appointment letter was not issued and the third reason is that the appointment was not made in accordance with Rules of 1978 and the 4th reason is that the approval was not accorded by the department. 20. That it is stated that by Govt. Order dated 6. 9. 1994 an untrained teacher will be given 2 years correspondence course for training. It is stated that the petitioner was not given 2 years correspondence course otherwise the petitioner would have completed 2 years correspondence course and there is no fault of the petitioner and the petitioner is still prepared to under go 2 years correspondence course in case the Educational Authorities permit. The true copy of the Govt. Order dated 6. 9. 1994 is being filed herewith as Annexure-10 to this writ petition. 21. That the selection of the petitioner was made by the selection committee after advertisement of the post but no appointment letter was issued although the petitioner was permitted to join and he continued to work up till 1. 4. 1996. 22. That the petitioner has come to know from the manager that the papers of the selection of the petitioner were sent to the Zila Basic Shiksha Adhikari but the Zila Basic Shiksha Adhikari did not accord approval within a period of one month from the date of submission of the papers in the office of the Zila Basic Shiksha Adhikari and therefore under Rule 19 (5) (3) of the Rules of 1978 it will be deemed that the approval was accorded. " ( 9 ) PARAGRAPHS 4, 5, 19, 21 and 22 of the writ petition have been sworn on the basis of the personal knowledge whereas paragraph 20 has been sworn on the basis of the record. In the counter affidavit filed by the respondents it has been clearly stated that the procedure prescribed for making appointment under the Rules has not been followed. In the counter affidavit filed by the respondents it has been clearly stated that the procedure prescribed for making appointment under the Rules has not been followed. It was obligatory for the Committee of Management to intimate the District Basic Education Officer about the vacancy but that was not done. It has also been stated that neither the vacancy was advertised in a newspaper having adequate circulation in the locality and nor any Selection Committee was constituted. The appointment of the petitioner was also not approved. The contents of paragraphs 19, 20, 21 and 22 of the writ petition have also been denied by the respondents and it has been stated that the appointment of the petitioner is not in accordance with the Rules. It has also been stated that the petitioner was not entitled to the benefit of the Government Order dated 6th September, 1994. ( 10 ) IN the supplementary rejoinder affidavit, the petitioner has brought on record the alleged advertisement about the vacancy but the original newspaper has not been placed before the Court. Rule 5 of the Rules clearly provides that no person shall be appointed as an Assistant Teacher in a substantive capacity unless he possesses the minimum qualifications prescribed for such post and he has been recommended for such appointment by the Selection Committee. Rule 7 of the Rules deals with the advertisement of vacancy and provides that no vacancy shall be filled, except after its advertisement in at least one newspaper having adequate circulation in the locality and the intimation of such vacancy to the District Basic Education Officer is given. It also provides that the Management shall, in advertisement and intimation, give particulars as to the name of the post, the minimum qualifications and age limit, if any, prescribed for such post. Rule 9 deals with the constitution of the Selection Committee and Rule 10 deals with the procedure for selection. It provides that the Selection Committee shall, after interviewing such candidates as appear before it, prepare a list containing as far as possible the names in order of preference of three candidates found to be suitable for appointment and thereafter forward such list together with the minutes of the proceedings to the Committee to the Management. The Management is then under an obligation to send the copy of the list to the District Basic Education Officer. The Management is then under an obligation to send the copy of the list to the District Basic Education Officer. The District Basic Education Officer has to see whether the candidates recommended by the Selection Committee possess the minimum qualifications prescribed for the post and the procedure laid down in the Rules has been followed. It is after such satisfaction that he can accord approval to the recommendations made by the Selection Committee. It is also provided that if the District Basic Education Officer does not communicate his decision within one month from the date of receipt of the papers under clause 10 (4), he shall be deemed to have accorded approval to the recommendations made by the Selection Committee. Rule 11 of the Rules deals with appointment and provides that on receipt of the communication of approval or on the expiry of the period of one month, the Management shall, offer appointment to the candidate given the first preference by the Selection Committee and on his failure to join the post, to the candidate next to him in the list prepared by the Selection Committee. The appointment letter shall then be sent under the signatures of the Manager by registered post to the selected candidate and a copy of the appointment letter shall also be sent to the District Basic Education Officer. ( 11 ) THERE is nothing on the record to indicate that any of the aforesaid requirements were complied with. Intimation of the vacancy, as is required under Rule 7 (1) of the Rules, was not sent to the District Basic Education Officer. A photostat copy of the alleged advertisement has been filed in the supplementary rejoinder affidavit (though the original paper has not been placed before the Court) but even the said advertisement does not conform to the requirements set out in Rule 7 (2) of the Rules. There is nothing on the record to indicate that the Selection Committee was ever constituted or that the Selection Committee interviewed the candidates or prepared the list containing the names of three candidates in order of preference found suitable for appointment and nor the proceedings of the Selection Committee have been placed on record. There is nothing on the record to indicate that the Management forwarded any list to the District Basic Education Officer or the District Basic Education Officer received the said list. There is nothing on the record to indicate that the Management forwarded any list to the District Basic Education Officer or the District Basic Education Officer received the said list. The appointment order has not been placed and in fact the petitioner also states that appointment order was not issued to him. There is also nothing on the record to indicate that the copy of the appointment order was sent to the District Basic Education Officer. It is only on the basis of the averments made in the writ petition on personal knowledge that the petitioner claims to have been appointed. These facts have been denied in the counter affidavit. In the absence of any documents it is not possible for the Court to accept the averments made in the writ petition. ( 12 ) IN this connection reference may be made to the decision of the Supreme Court in District Basic Education Officer and Anr. Vs. Dhananjai Kumar Shukla and Anr. , (2008) 3 SCC 481 wherein in connection with Rule 6 of the Rules under consideration in the present petition dealing with disqualification observed :- ". . . . . . . . . . . The appointment of Respondent 1 being contrary to the mandatory provisions as contained in Rule 6 of the Rules, the same was a nullity. An appointment which was per se illegal could not have been directed to be legalised only because the appellant did not file its counter affidavit. . . . . . . . . . . " ( 13 ) IN Government of Andhra Pradesh and Ors. Vs. K. Brahmanandam and Ors. , (2008) 5 SCC 241, the Supreme Court also observed that appointments made in violation of the mandatory provisions of the Statute would be illegal and the State is not liable to pay salary to the teachers who had been appointed in violation of the mandatory provisions of the Statute or the Statutory Rules and the relevant observations are as follows:-"the liability of the State to pay salary to a teacher appointed in the recognised schools would arise provided the provisions of the statutory rules are complied with, subject to just exception. The right to claim salary must arise under a contract or under a statute. If such a right arises under a contract between the appointee and the institution, only the latter would be liable therefor. The right to claim salary must arise under a contract or under a statute. If such a right arises under a contract between the appointee and the institution, only the latter would be liable therefor. Its right in certain situation to claim reimbursement of such salary from the State would only arise in terms of the law as was prevailing at the relevant time. If the State in terms of the statute is not liable to pay the salary to the teachers, no legal right accrues in favour of those who had been appointed in violation of mandatory provisions of the statute or statutory rules. ( 14 ) THE equality clause contained in Articles 14 and 16 of the Constitution of India, it is trite, must be scrupulously followed. The court ordinarily would not issue a writ of or in the nature of mandamus for regularisation of the service of the employee which would be violative of the constitutional scheme. ( 15 ) APPOINTMENTS made in violation of the mandatory provisions of a statute would be illegal and, thus, void. Illegality cannot be ratified. Illegality cannot be regularised, only an irregularity can be. " ( 16 ) THE alleged working of the petitioner in the Junior High School is dehors the provisions of the Rules and, in view of the aforesaid decisions of the Supreme Court, is per se illegal and void and is of no consequence. The plea of deemed approval under the Rule 10 (5) (iii) of the Rules cannot also be accepted for the simple reason that there is nothing on the record to indicate that the Management ever forwarded the list to the District Basic Education Officer or that it was received in his office. ( 17 ) LEARNED counsel for the petitioner then submitted that the impugned order does not specifically refer to the infirmities and the respondents have given additional grounds in the counter affidavit for rejecting the representation which grounds cannot be considered. This contention cannot be accepted. The impugned order specifically states that the procedure prescribed under the Rules has not been followed. In any case, in order to obtain relief from this Court under Article 226 of the Constitution, the petitioner has to establish that he was appointed as an Assistant Teacher in the Junior High School in accordance with law but he has failed to do so. In any case, in order to obtain relief from this Court under Article 226 of the Constitution, the petitioner has to establish that he was appointed as an Assistant Teacher in the Junior High School in accordance with law but he has failed to do so. ( 18 ) LEARNED counsel for the petitioner also urged that the petitioner possesses the minimum qualifications for the post of Assistant Teacher as the provision relating to the Teachers Training Course was exempted by the Government Order dated 21st October, 1994. The said Government Order will not enure to the benefit of the petitioner as in his case the procedure for making appointment was not even followed and nor is there any appointment order in his favour. It also needs to be mentioned that in paragraph 20 of the petition quoted above, the petitioner himself has stated that he was an untrained teacher who was not given the correspondence course. ( 19 ) THUS, for all the reasons stated above, there is no merit in the petition. It is, accordingly, dismissed. .