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Allahabad High Court · body

2015 DIGILAW 2423 (ALL)

Prem Singh v. State of U. P.

2015-08-14

ATTAU RAHMAN MASOODI

body2015
JUDGMENT Attau Rahman Masoodi, J. Heard Sri N.N. Jaiswal, learned Counsel for the petitioner and learned Standing Counsel who has accepted notice on behalf of respondent nos. 1 to 3. Respondent no. 4 is unrepresented. 2. Both the writ petitions being interlinked have been heard together and are being decided by a common judgement. 3. Recognized Basic Schools aided by the Government including those where the grant in aid is provided by the department of Social Welfare for the purposes of recruitment of teachers are regulated under the rules known as U.P. Recognized Basic Schools (Recruitment & Conditions of Service of Teachers & Others Conditions) Rules, 1975. 4. It is apparent from the material placed on record that on account of issuance of a series of Government Orders in the years 1989, 1992, 1994 and lastly on 16.01.2004, an anomalous situation had crept in as regards the approval of appointments to be made by the respective Committee of Managements. So far as the present case is concerned, an advertisement against a clear vacancy was issued on 06.08.2007 and 07.08.2007 in two newspapers and on consideration of the candidature of candidates who applied in response to the advertisements, selection appears to have been held on 12.08.2007 on the basis of which appointment letter was issued to the petitioner on 16.08.2007, whereafter, necessary papers were forwarded to the Basic Shiksha Adhikari for grant of approval. 5. Basic Shiksha Adhikari, Meerut by letter dated 28.05.2009 refused approval with reference to the petitioner's selection on the ground that due procedure for selection was not followed and in the pen-ultimate paragraph of letter dated 28.05.2009, it was further observed that as regards the approval of appointments made by respective Committees of Management, authority to grant approval in respect of institutions aided by Social Welfare department by virtue of Government Orders stands vested in the State Government. As already observed hereinabove, an anomalous situation stood created by the issuance of Government Orders; the Director, Samaj Kalyan having taken note of such a situation had also forwarded a letter to the State Government on 22.04.2004 requesting for clarifying the position as regards the procedure of approval in respect of appointment of teachers in the aided institutions by the department of Samaj Kalyan. 6. 6. The petitioner on the basis of letter dated 22.04.2004 and looking to the fact of institution being aided by the department of Social Welfare, approached this Court by means of Writ Petition No. 7258 (S/S) of 2009, wherein on 11.11.2009 the Court was pleased to pass the following order: - "Heard learned counsel for the parties and perused the records. Petitioner who was appointed as Assistant Teacher by the respondent no. 4 in waiting for payment of salary though he is discharging duty. On account of non approval from the State Government salary is not being paid to the petitioner. Opposite party no. 2 had written a letter to the State Government drawing the attention towards certain anomalies but State Government had not taken a decision. Keeping in view the matter is pending to State Government it is not proper to interfere on merit at this stage. It has also been stated that Director had already recommended the matter. In view of above, Opposite party no. 1 is directed to look into the matter and take a decision expeditiously and preferably within a period of one month from the date of receipt of a certified copy of this order and communicate the decision to the petitioner as well as opposite party no. 4. Liberty is given to the petitioner to represent his cause afresh along with present order. Subject to above, writ petition is disposed of finally. No order as to costs." 7. This Court does appear to have taken note of the anomalous situation but in compliance of the direction issued, the State Government restricted the consideration of the matter only to the extent of petitioner's appointment, rather clarifying the position of rule as applicable in the matter of approval, which authority according to Rule 9 of the Statutory Rules is vested in the Basic Shiksha Adhikari. 8. The order passed by the State Government on 04.02.2010 in the manner above, gave rise to a further cause of action to the petitioner and the said order came to be challenged in another writ petition i.e. Writ Petition No. 1513 (S/S) of 2010. This Court having regard to the order passed by the State Government again noticed non-application of mind on the real controversy and by its order dated 26.03.2010 directed the matter to be considered afresh. The above writ petition continues to be pending till date. This Court having regard to the order passed by the State Government again noticed non-application of mind on the real controversy and by its order dated 26.03.2010 directed the matter to be considered afresh. The above writ petition continues to be pending till date. However, in compliance of the interim order, an order dated 17.5.2010 was issued by the State Government, wherein, reference to the respective government orders has been made but at the same time it is clarified that Rule 9 of the Rules, 1975 would be relevant for the purpose of grant of approval as regards appointment of teachers in the respective institutions where vacancies occur or the same are sanctioned by the State Government. The position is sufficiently explained in the impugned order dated 17.05.2010 that the statutory rules do not stand superseded by any of the government orders. 9. It is trite that a government order cannot amend or supersede the statutory rules, therefore, any government order issued in contravention of Rule 9 of the statutory rules, does not have force of law. To this extent, position stands clarified by means of the impugned order dated 17.5.2010 by the government itself. 10. The real question in the present case is as to whether the order passed by Basic Shiksha Adhikari on 28.5.2009 which was passed in a state of confusion, stands confirmed by the impugned order or the aspect of approval with respect to petitioner's appointment needs to be considered afresh by the competent authority notwithstanding the earlier rejection vide letter dated 28.05.2009 which apparently was done in a state of ambiguity. 11. Rule 9 of the Statutory Rules is very clear and for ready reference, the same is reproduced below: - 9. Appointment of Teachers.- No person shall be appointed as teacher or other employee in any recognized school unless he possesses such qualifications as are specified in this behalf by the Board and for whose appointment the previous approval of the Basic Shiksha Adhikari has been obtained in writing. In case of vacancy, the applications for appointment shall be invited by the concerned management through advertisement in at least two newspapers (one of them will be a daily newspaper), giving at least thirty days' time for submitting application. In case of vacancy, the applications for appointment shall be invited by the concerned management through advertisement in at least two newspapers (one of them will be a daily newspaper), giving at least thirty days' time for submitting application. The date of interview may be given in the advertisement or the candidates be informed of the date fixed for interview by registered post, giving them at least 15 days' time, from the date of issue of the letter. The management shall not select any untrained teacher and if the selected candidate is a trained one, he will be approved by the Basic Shiksha Adhikari." 12. From a plain reading of the aforesaid rule, it is clear that prior approval of Basic Shiksha Adhikari in writing is a condition precedent for making appointments. In the instant case the appointment order issued on 16.08.2007 appears to have been issued without prior approval of the competent authority. The other aspects of the matter regarding advertisement to be in accordance with the statutory rules, also need scrutiny by the competent authority. In any case, all aspects of the matter have to be looked into with an independent mind. Needless to say that the exercise of selection under taken by Committee of Management deserves to be scrutinize by the competent authority in accordance with the provisions of Rule 9. No government order would divest the Basic Shiksha Adhikari of the authority vested in him by the statute till the same is amended, rescinded or repealed, therefore, the impugned decision taken by the State Government on 17.5.2010 clarifying applicability of Rule 9 would only be read in the context of the letter forwarded by Director, Samaj Kalyan on 22.04.2004. 13. The experience shows that the educational authorities fail to take prompt decision in the matter of recruitment of teachers and other staff. In action on the part of authorities result into loss of education and inconvenience to the institutions, therefore, in all cases where matters of appointment or requisitions are sent for approval necessary action is bound to be taken by the educational authorities promptly and not later than one month. The management committees are also directed by this general order to communicate the matters through special messengers in addition to any other mode if so provided and obtain formal receipts so that responsibility in the event of disputes is fixed on the person committing default. The management committees are also directed by this general order to communicate the matters through special messengers in addition to any other mode if so provided and obtain formal receipts so that responsibility in the event of disputes is fixed on the person committing default. All such matters need to be dealt with sternly in the interest of smooth running of the educational institutions. In the present case also, the selection made in the year 2007 came up for approval in the year 2009 which is not a healthy trend. 14. Having held that the Basic Shiksha Adhikari is the competent authority to take decision regarding approval of appointment in respect of all the recognized Basic Schools within the scope of Rule 9, the purpose of filing this writ petition would be served if it is left open to the petitioner to take up his cause before the concerned authority, who, after giving reasonable opportunity to the petitioner and any other party, if so warranted, shall take a final decision in accordance with law expeditiously within a period of one month from the date certified copy of this order along with the representation is made. The order so passed shall be communicated to the petitioner and the higher authorities of the State including the department of Social Welfare. 15. Both the writ petitions stand disposed of accordingly.