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Allahabad High Court · body

2013 DIGILAW 640 (ALL)

DISTRICT BASIC EDU. OFFICER BAHRAICH v. MAMTA

2013-02-26

UMA NATH SINGH, VINAY KUMAR MATHUR

body2013
ORDER (ORAL) By the Court.—We have heard learned counsel for parties and perused the pleadings of special appeal. 2. This special appeal arises out of Judgment and order dated 29.10.2012 passed in Writ Petition No. 5013 (S/S) of 2011, whereby the writ petition was allowed and directions were given to appellant and other officials to consider the payment of salary of the respondent No. 1 from the date of her appointment as mentioned in the prayer clause. 3. The brief facts, leading to filing of this special appeal, are that post of Head-Master of the school fell vacant on 30.6.2009 when the incumbent of the said post retired after attaining the age of superannuation. Manager of the Committee of the management of the School vide letter dated 15.10.2009 wrote to the District Basic Education Officer that as the post of Head-Master of the School has fallen vacant on 30.6.2009, therefore, the permission be granted to the Management to advertise the said post in accordance with the statutory prescriptions of Uttar Pradesh Junior High Schools (Recruitment and Conditions of Service of Teachers) Rules, 1978 (for short the Rules of 1978). The District Basic Education Officer vide letter dated 4.11.2009 granted permission to the Management of the School for advertising the post of Head-Master of the School. Post of Head-Master of the School was advertised in daily newspaper, ‘Jan Morcha’ dated 8.11.2009 having the State-wide circulation and in local daily newspaper, ‘Dainik Elora Times’ dated 7.11.2009 having circulation in the locality in which the School is situated. Manager of the Committee of the Management of the School vide letter dated 1.12.2009 requested the District Basic Education Officer to send his nominee for the selection scheduled for 6.12.2009 as required under Section 9-A (1) of the Rules. 4. The District Basic Education Officer vide letter dated 3.12.2009 wrote to the Manager of the School raising some objections in regard to the Advertisement and directed for re-advertising the post of Head-Master of the School mentioning the pay-scale etc. 4. The District Basic Education Officer vide letter dated 3.12.2009 wrote to the Manager of the School raising some objections in regard to the Advertisement and directed for re-advertising the post of Head-Master of the School mentioning the pay-scale etc. The management of the School wrote a letter dated 4.12.2009 stating that the advertisement issued for the post of Head-Master of the School is as per the statutory prescriptions made under 1978 Rules and, as such, no re-advertisement of the post of Head-Master is required, therefore, it requested the District Basic Education Officer to send his nominee to participate in the Selection Board for the selection of Head Master which was scheduled to be held on 6.12.2009. Selection for the post of Head-Master was thus held on 6.12.2009 by the Selection Committee so constituted for the said purpose in which the petitioner alongwith 5 others appeared before the Committee. The petitioner on the basis of the quality point marks obtained by her was placed at serial No. 1 in the merit list so prepared by the Selection Committee on 6.12.2009. Recommendations of the Selection Committee for appointment on the post of Head-Master of the School were sent for approval to the District Basic Education Officer by the management of the school vide letter dated 7.12.2009 alongwith necessary documents. The District Basic Education Officer vide order dated 23.12.2009 again directed the Management of the School to re-advertise the post of Head-Master of the School, as directed vide the order dated 23.12.2009, in two national newspapers, and thereafter, in presence of the nominee the selection process be completed. Against that order, the Management of the School made a representation before the District Basic Education Officer who vide the order dated 8.1.2010 again directed the Management of the School to comply with the order dated 3.12.2009 issued earlier. 5. When nothing was done by the District Basic Education Officer in regard to giving approval to the selection made by the Selection Committee for the post of Head-Master of the School, the management wrote to the Director of Education (Basic) who called for an explanation from the District Basic Education Officer. The District Basic Education Officer thus submitted his explanation before the Director of Education (Basic) vide letter dated 9.3.2010 reiterating the objections raised by him earlier. The District Basic Education Officer thus submitted his explanation before the Director of Education (Basic) vide letter dated 9.3.2010 reiterating the objections raised by him earlier. On the representation of the management of the School the matter was taken up before the Principal Secretary to the Chief Minister in a meeting held on 8.4.2010 in which the District Basic Education Officer was also present. The District Basic Education Officer vide letter dated 19.4.2010 intimated the Management of the School that on the basis of the direction issued by the Principal Secretary to Hon’ble the Chief Minister, U.P., the date of interview of the candidates for the post of Head-Master of the School had been fixed on 24.4.2010, therefore, the candidates be intimated accordingly and the information in regard to sending Observer for interview shall be intimated subsequently. Thereafter, in pursuance of the direction issued by the District Basic Education Officer, the Management of the School vide letter dated 19.4.2010 itself requested the District Basic Education Officer to send nominee for the said interview. The management of the School vide letter dated 19.4.2010 sent through speed post also intimated all the candidates that the date of interview had been fixed on 24.4.2010 at 11 a.m. The Selection Committee so constituted held interview in which total 6 candidates appeared before the Committee. Out of 6 candidates appearing in the interview, the Selection Committee prepared a final list of three candidates on the basis of quality point marks in which the petitioner was placed at serial No. 1. On 27.4.2010, the Management of the School sent a letter requesting the District Basic Education Officer for accord of approval in regard to the appointment of the petitioner on the post of Head-Master of the School by annexing therewith all the necessary documents. The management of the school issued appointment letter dated 31.5.2010 to the petitioner appointing her as Head Master of the School and in pursuance thereof, the petitioner joined on the post of Head Master in the school on 1.6.2010. 6. The management of the school issued appointment letter dated 31.5.2010 to the petitioner appointing her as Head Master of the School and in pursuance thereof, the petitioner joined on the post of Head Master in the school on 1.6.2010. 6. When the petitioner was not paid salary for the post of Head-Master of the School on which post she was working since 1.6.2010, she filed W.P. No. 5982 (S/S) of 2010 but when some documents were brought on record which were never issued and served either on the petitioner or the management of the school then the petitioner withdrew the said writ petition with a liberty to file a fresh one. 7. In the meantime, it is alleged that the District Basic Education Officer in order to show that he responded to the letter of the Management manufactured two letters dated 24.2.2010 and 4.5.2010 and passed the impugned order dated 17.6.2010 against the private respondent. Rule 7(1) of 1978 Rules provides as under: “7. Advertisement of Vacancy.—(1) No vacancy shall be filled except after its advertisement in at least two newspapers, one of whom must adequate circulation all over State and the other in locality, the school is situated.” 8. The Hindi version of the said rule on being reproduced in Devnagari Script would read as : “7. Rikti ka Vigyapan.—{ Koi rikti kam se kam do aise samachar-patron me, jismey se ek ko paryapt parichalan sampurna rajya mein aur dusrey ka us sthan me jahan school isthith ho, avasya ho, vigyapit kiye bina nahin bhari jayegi.}”. 9. Learned counsel for the District Basic Education Officer (appellants herein) submitted that the judgment of learned single judge is not sustainable in law for the reason that despite the direction given by the authority, the Manager of the School did not issue any advertisement in terms of Rule 7 (1) of the Rules, 1978. 10. Learned counsel also submitted that despite the matter having been taken up at the State Government level and direction being issued to the Manager, he went ahead with the selection process and finally selected the respondent on 31st May, 2010. Therefore, the impugned order allowing the writ petition with a direction for payment of salary to the respondent, is contrary to the provisions of the Rules. On the other hand, Dr. Therefore, the impugned order allowing the writ petition with a direction for payment of salary to the respondent, is contrary to the provisions of the Rules. On the other hand, Dr. L.P. Mishra, submitted that the conduct of the Basic Shiksha Adhikari, throughout has been inimical due to personal prejudice as he wanted the management to provide reservation also in respect of single cadre post of the Head-Master. 11. Dr. L.P. Mishra also submitted that the orders passed by the District Basic Education Officer were stayed in writ petition vide interim orders dated 11.8.2011 and 20.12.2011. Dr. L.P. Mishra further submitted that learned Single Judge has rightly held that there was no requirement of circulation of advertisement in a national daily newspaper which was only a figment imagination of the District Basic Education Officer. Thus, the case of the private respondent could not have been rejected on that ground particularly when the matter had been decided at the level of Principal Secretary wherein the District Basic Education Officer was also present. 12. On due consideration of rival submissions, it seems that the District Basic Education Officer was inimically disposed and prejudiced against the Management of the school. Therefore, despite intervention of the Principal Secretary to Hon’ble the Chief Minister, he did not send his nominee to participate in the meeting and later on manufactured the orders dated 22.4.2010 and 4.5.2010. vide the relevant rules, there was no legal requirement of publication in any national daily newspaper and the requirement of law was only that the advertisement should be issued in a newspaper having adequate circulation all over the State as also in another newspaper of local circulation. 13. Thus, we do not find any reason to interfere with the impugned order in this intra Court appeal. Hence, the special appeal is dismissed. ——————