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Allahabad High Court · body

2012 DIGILAW 58 (ALL)

GAYA DUTT TEWARI v. STATE OF U. P.

2012-01-06

SUNIL HALI

body2012
JUDGMENT Hon’ble Sunil Hali, J.—Respondent institution namely, Mata Ashthabhuja Laghu Madhyamik Vidyalaya,Salempur, District Deoria is a recognized Junior High School imparting education from Class-VI to VIII. The permanent recognition was granted to the institution on 12.2.1985 as a result of grant of recognition the provisions of the Uttar Pradesh Recognized Basic Schools (Junior High School) (Recruitment and conditions of services of teachers) Rules, 1978 (in short as the ‘Rules) are applicable to the said institution. The dispute in this writ petition relates to the appointment of the petitioners to the post of Assistant Teacher against the sanctioned strength of teaching faculty in the institution. vide communication dated 20.9.2000 issued by the Director of Education (Basic) U.P. Allahabad the sanctioned strength of the institution was shown as 14 which consists of one post of principal, 9 posts of Assistant Teachers, one post of clerk and 3 posts of Class IV employees. Initially strength was 10 enhanced to 14 after 4 posts of Assistant Teacher were sanctioned by the Director of Education (Basic). 2. For filling up of the four posts of Assistant Teachers sanctioned for the institution, the management vide its order dated 22.2.2003 sought permission from the District Basic Education Officer for advertising the vacancies for appointment. The permission was accorded by the District Basic Education Officer, respondent No. 4, in this behalf. The process for selection was initiated after permission was obtained. A selection committee was constituted in terms of the Rules of 1978 consisted of Manager, Head-Master of the institution and a nominee of the District Basic Education Officer. The selection was preceded by advertisement notice which was published in newspapers ‘Dainik Jagran’ and also in the newspapers ‘Hindustan Ke Swaroop’ and ‘Gram Swarajaya’ on 1.3.2003. In pursuance of the advertisement, the petitioners applied for the post of Assistant Teacher being eligible under the Rules. It is important to mention that respondent No. 4 appointed Assistant District Basic Education Officer as a nominee for participating in the selection process. The conclusion of the selection process resulted in selection of the petitioners. The recommendations of the selection committee was accepted by the managing committee on 4.4.2003. Consequently the papers were sent to the District Basic Education Officer, respondent No. 4, alongwith covering letter for grant of approval. Thereafter, nothing was heard by the managing committee from the District Basic Officer and matter remained pending with them. 3. The recommendations of the selection committee was accepted by the managing committee on 4.4.2003. Consequently the papers were sent to the District Basic Education Officer, respondent No. 4, alongwith covering letter for grant of approval. Thereafter, nothing was heard by the managing committee from the District Basic Officer and matter remained pending with them. 3. Having failed to receive any response from respondent No. 4, the managing committee appointed the petitioners as Assistant Teachers without any formal order passed by respondent No. 4. This was done by taking recourse to Rule-10 (5) (iii) of the Rules of 1978, which proves that if the District Basic Education does not communicate his decision within a period of one month from the date of receipt of the papers, there shall be deemed approval. 4. After their appointments the petitioner joined the institution as Assistant Teachers. In the meanwhile an order was passed by the Government by which the institution was brought on grants-in-aid list w.e.f. 1.12.2006, as a result of which, the salary component was required to be paid by the State Government. The problem of the petitioners starts from here as their salary was not released despite various representations were made by the petitioners as well as management of the institution. Under these circumstances the present writ petition has been filed. 5. I have heard learned counsel for the parties. The contention raised by the petitioners is that there is no dispute with respect to mode and manner in which the selection has been made but for the unspecified reasons the salary of the petitioner has been withheld. The power to grant approval is regulated under the Rules of 1978 which contemplates that in case, no communication is received from the District Basic Education Officer to the managing committee within a period of one month from the date of receipt of the papers sent for the approval, there would be deemed approval. In view of this, the petitioners appointment was ordered by the managing committee. 6. On the other hand, the stand of the respondents is that (a) that there is no approval granted by the District Basic Education Officer as such, the salary cannot be released in their favour; and (b) that the selection papers have not been received by the District Basic Education Officer from the management. 7. 6. On the other hand, the stand of the respondents is that (a) that there is no approval granted by the District Basic Education Officer as such, the salary cannot be released in their favour; and (b) that the selection papers have not been received by the District Basic Education Officer from the management. 7. In the institution in question, 9 posts of Assistant Teacher, 4 posts are required to be filled up. The permission to advertise the said posts were granted by the prescribed authority and as a sequence to that the selection process was initiated. The selection committee in conformity with Rule-9 of the Rules of 1978 after examining the eligibility of the candidates recommended the names of the petitioners for being appointed as Assistant Teachers, which recommendations were accepted by the managing committee. The papers relating to the selection of the petitioners were submitted to respondent No. 4 for grant of approval. In normal course of events, the approval should have been accorded or rejected within a stipulated period provided under the Rules, or in case, any information was sought in this behalf, the information should have been forwarded to the managing committee which has not been done. By operation of deeming provision, the approval is to be granted in case no communication is received from respondent No. 4 within a period of one month from the date of receipt of papers. 8. Two fold objections have been raised by the respondents in this behalf. First, there is no approval which is not disputed and second objection is that selection papers have not been received in the office of respondent No. 4. In respect of second contention learned counsel for petitioners placed on record a communication dated 7.1.2008 issued by the District Basic Education Officer to Joint Secretary, U.P. Government, Lucknow, in which it is clearly mentioned that selection papers have been sent back on 8.8.2003 to the managing committee. In this behalf the respondents have themselves admitted that the papers were sent back to the managing committee. So the averments made in the reply affidavit that the papers were not sent is belied by their own communication. Moreover, it is invariably seen that in order to avoid consequence of their failure to grant approval, such tactic is adopted by the respondents that they have not received the papers. 9. So the averments made in the reply affidavit that the papers were not sent is belied by their own communication. Moreover, it is invariably seen that in order to avoid consequence of their failure to grant approval, such tactic is adopted by the respondents that they have not received the papers. 9. The only question which is required to be seen is that as to whether the appointment of the petitioners would be made by taking recourse to deeming provisions of Rule 10(5)(iii) of the Rules. In this behalf stand taken by the respondents is that they have not received selection papers which fact has been belied by their on own communication dated 8.8.2003 addressed to the Joint Secretary, U.P. Government, Lucknow. The selection papers were sent to the managing committee on 8.8.2003 by respondent No. 3 which is approximately after 4 months from the date they have been received. On the face of it, it clearly emerges that there was no communication sent by the respondent No. 4 to the managing committee within a period of one month from the date the papers were received. The managing committee was well within its right to order for appointment of the petitioners after no communication was received from District Basic Education Officer within a period of one month from the date the same having been received in his office. The only communication which has been sent is communication dated 8.8.2003 that is after 4 months the papers were received. I, therefore, hold that the appointment of the petitioners has been made strictly in accordance with the rules and as such the salary of the petitioners requires to be released as they stand appointed against the sanctioned strength of teachers granted by the Director of Education (Basic) U.P. Allahabad. 10. I, therefore, allow the writ petition and direct the respondents to release salary of the petitioners within a period of one month from the date a certified copy of this order is served upon them alongwith arrears. ——————