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Allahabad High Court · body

2010 DIGILAW 944 (ALL)

Vikram Singh v. State Of U. P.

2010-03-19

A.P.SAHI

body2010
JUDGMENT Amreshwar Pratap Sahi,J. The petitioners have joined together to challenge the order dated 23rd March, 2007 and the consequential communication of the Basic Education Officer of the same date, Annexures 4 and 5 respectively to contend that their appointments were valid and, therefore, there is no occasion to stop the payment of salary of the petitioners. It is urged that the impugned orders have been passed in violation of principles of natural justice without giving any notice or opportunity to the petitioners. Learned counsel for the petitioners relies on the orders passed by the Basic Education Officer on 24.10.1986, 14.5.1987 and 19.9.1987 to contend that it is on the strength of the said orders that the authorities proceeded to consider the claim of the petitioners and issued orders for payment of salary. He submits that the said payment is in accordance with the Government Order dated 23rd March, 2007. 2. Learned counsel for the petitioners contends that the impugned orders categorically records that there was no provision for regularization of the services of the petitioners and, therefore, the orders of the Basic Education Officer do not confer any such right to the petitioners to claim salary. It is in the? said context that the salary has been stopped. 3. I have perused the affidavits exchanged between the parties and also the relevant documents on record. 4. The petitioners rely on the orders of the Basic Education Officer referred to herein above which indicate that their services were being regularized. It is correct that there is no such provision for regularization of the appointments. The three Institutions to which the petitioners belong have been granted permanent recognition in the year 1986. The appointments of the petitioners as indicated in the said orders appear to be prior to the Institution having been granted permanent recognition. There is reason to presume that the Institutions must be having temporary recognition under the Basic Education Act, 1972 prior to 1986. If that is so then the rules relating to appointment of teachers in such privately managed Institutions had already been brought into force in the year 1978. A recognized Institution under the Basic Education Act has to proceed to make appointment under the 1978 Rules and not otherwise. The procedure has to be followed even if the Institution is not under the grant-in-aid list. A recognized Institution under the Basic Education Act has to proceed to make appointment under the 1978 Rules and not otherwise. The procedure has to be followed even if the Institution is not under the grant-in-aid list. The aforesaid issue, therefore, has to be examined as to whether the petitioners were appointed after following the due procedure prescribed in law. 5. So far as Class IV employees are concerned the rules were promulgated in the year 1984. In view of the aforesaid rules the claim of the Class IV employees has to be examined in the light of the said rules provided,? they have been appointed after the promulgation thereof. 6. This requires an examination of facts pertaining to the procedure of appointment and the manner in which the petitioners claim to function in the Institution. The recognition orders which are in the shape of regularization orders and have been filed along with the rejoinder affidavit may at best be an evidence in relation to their continuous functioning in the Institution certified by the Educational authorities. It will have to be verified as to whether the appointments had the approval of the Educational authorities or not or the said orders were orders of approval. 7. It is undisputed that the petitioners were not given any notice or opportunity prior to passing of the impugned orders. The fact that it was in violation of principles of natural justice has been asserted in Paragraph 21 to which no effective reply has been given in the counter affidavit in Paragraph 14. The only averment contained therein is that since it is a matter of argument, the same shall be replied at the time of hearing of the case. Learned Standing Counsel has been unable to point out any evidence or averment which would indicate that the order had been passed after giving notice or opportunity to the petitioners. In view of this the order does appear to have been passed in violation of principles of natural justice. 8. The question now is that what relief should be granted to the petitioners in view of the aforesaid background of the case. The approval orders relied upon by the petitioners have been brought forth in the rejoinder affidavit for the first time for which no opportunity has been given to the state for rebuttal. 8. The question now is that what relief should be granted to the petitioners in view of the aforesaid background of the case. The approval orders relied upon by the petitioners have been brought forth in the rejoinder affidavit for the first time for which no opportunity has been given to the state for rebuttal. Secondly the said approval orders are in respect of the petitioners No. 1, 2, 4, 5, 6, 7, 8 and 9 only. There is no such order in relation to the petitioners No. 3, 10, 11 and 12 on record. In such a situation it will be appropriate that the petitioners are directed to approach the respondent no. 2 along with a certified copy of this order who shall proceed to make an on depth examination in regard to the claim of the petitioners in the light of the observations made herein above and thereafter proceed to pass an appropriate order in accordance with law within three months of the date of production of a certified copy of this order before him. The order to be passed by the respondent shall supersede the order impugned in the present writ petition. The said respondent shall also put to notice the concerned Basic Education Officer as well as the respective managements of all the three Institutions to enable them to produce the records in relation to the approval,? which will be required for the purpose of ascertaining the status of the petitioners for entitlement of payment of salary under the grant-in-aid extended by the State Government. 9. With the aforesaid directions the writ petition stands disposed of.