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2015 DIGILAW 817 (ALL)

Preeti Gupta v. State of U. P.

2015-04-15

DEVENDRA KUMAR UPADHYAYA

body2015
JUDGMENT Devendra Kumar Upadhyaya, J. Heard Sri K.D. Nag, learned counsel for the petitioner and learned Standing Counsel appearing for the State-respondents. 2. By means of this writ petition, the petitioner has prayed for issuing direction to the respondents to effectively implement her appointment on the post of Assistant Teacher in the primary section attached to the Sanskrit Pathshala Kanya Inter College, Mangal Pandey Road, Lucknow and further to pay her salary, allowances and emoluments of the said post. 3. The State has contested the claim of the petitioner by filing counter affidavit. A supplementary counter affidavit filed on behalf of the respondent Nos. 1 to 3, which is duly sworn in on 13.01.2014, contains minutes of the meeting of a Committee headed by the Joint Director of Education, VIth Region, Lucknow and comprising of Deputy Director of Education (Secondary),VIth Region, Lucknow and District Inspector of Schools-II, Lucknow. As per the minutes of the aforesaid meeting of the Committee (herein after referred to as 'Regional Level Committee), the members of the Committee have arrived at a conclusion that out of two appointments made against the posts of Assistant Teachers, there appears to be a justification of appointing only one person and accordingly recommendation has been made for approving the selection/appointment of one Smt. Pooja Agarwal. As a result of said decision of the Regional Level Committee taken in its meeting held on 17.08.2013, the selection/appointment of the petitioner appears to have been dis-approved/rejected. 4. The total sanctioned strength of the Assistant Teachers in the institution referred to hereinabove, which is an intermediate institution recognized under the Intermediate Education Act, 1921, where burden of payment of salary is borne by the State Exchequer under the relevant provisions of U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971, is 11, out of which 7 vacancies were already occupied and four vacancies were vacant. 5. The Manager of the institution sought permission of the District Inspector of Schools to fill up all the said posts. However, District Inspector of Schools by means of letter/order dated 14.09.2012 permitted the Manager of the institution to fill up only two posts of the Assistant Teachers in the primary section of the institution. The posts were accordingly advertised in two newspapers, namely, 'Swatantra Bharat' and 'Aaj'. However, District Inspector of Schools by means of letter/order dated 14.09.2012 permitted the Manager of the institution to fill up only two posts of the Assistant Teachers in the primary section of the institution. The posts were accordingly advertised in two newspapers, namely, 'Swatantra Bharat' and 'Aaj'. Pursuant to the said advertisement, various applicants submitted their applications including the petitioner and accordingly the selection appears to have been taken place, in which two candidates, namely, Smt. Pooja Agarwal and the petitioner (Ms. Preeti Gupta) were selected. The Manager by means of letter dated 02.01.2013 sent the requisite documents to the District Inspector of Schools seeking his approval of the selection/appointment of the petitioner against the post of Assistant Teacher and his financial concurrence for payment of salary. The District Inspector of Schools, however, referred the matter to the Regional Level Committee, which has taken the decision in its meeting held on 17.08.2013 recommending the approval of appointment of Smt. Pooja Agarwal and not recommending the appointment of the petitioner. 6. Submission of learned counsel for the petitioner is that under the Scheme of U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971, it is the District Inspector of Schools who has the authority and jurisdiction to approve the selection/appointment of the Assistant Teachers working in primary section of the Intermediate Institutions and not the Regional Level Committee which, in this case has taken a decision against the petitioner in its meeting held on 17.08.2013. It has further been submitted by Sri K.D. Nag, learned counsel for the petitioner that the reasons indicated in the decision by the Regional Level Committee are absolutely not tenable on account of the fact that the teacher-taught ratio has to be governed by Right of Children to Free and Compulsory Education Act, 2009 and not by the Government Orders issued from time to time or any Circular issued by the Board of High Schools and Intermediate Education. 7. 7. It has also been contended by the learned counsel for the petitioner that once the prior permission for holding the selection for the post of Assistant Teacher was accorded by the District Inspector of Schools on the basis of all the materials and documents available to him, the Regional Level Committee could not have sat in appeal over the said satisfaction recorded by the District Inspector of Schools in his letter/order dated 14.09.2012 according his permission to go ahead with the selection against the two posts including the post against which the petitioner has been selected. 8. On a query made, learned Standing Counsel representing the State-respondents has submitted that the procedure for appointment in the primary section attached to the Intermediate Institutions in the U.P. are governed by the Government Order dated 25.05.2012 which, inter alia, prescribes that appointment has to be made only after prior permission to the said effect is granted by the District Inspector of Schools and further that the said Government Order dated 25.05.2012 also requires a scrutiny to be made by the District Inspector of Schools of the selection process adopted by the Manager of the Institution concerned so as to ensure that process adopted for appointment is transparent and further that the same has been made after due advertisement. He has also referred to the earlier Government Order dated 19.12.2000 whereby the Regional Level Committee constituted under the Chairmanship of the Joint Director of Education of the region concerned has been authorized to scrutinize the matter relating to financial concurrence for payment of salary. 9. Laying emphasis on the Government Order dated 19.12.2000, it has been submitted by the learned counsel appearing for the State-respondents that the Regional Level Committee is the final authority in terms of the aforesaid Government Order dated 19.12.2000 in the matter relating to grant of approval of selection/appointment and grant of financial concurrence for payment of salary to a candidate selected for appointment in the primary section attached to an intermediate institution. 10. Having considered the arguments raised by the learned counsels appearing for the respective parties, a reference may be had to a judgment of this Court dated 17.10.2005 in the case of Ajit Ram Vs. 10. Having considered the arguments raised by the learned counsels appearing for the respective parties, a reference may be had to a judgment of this Court dated 17.10.2005 in the case of Ajit Ram Vs. District Inspector of Schools Ballia & others, Writ Petition No. 66020 of 2005, wherein it has clearly been held that power of District Inspector of Schools to make payment of salary is not subject to any authority and the District Inspector of Schools is under an obligation to pass orders under the powers delegated to him under the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971, in accordance with the provisions contained therein. The Court in the said judgment has further observed that it is the obligation of the District Inspector of Schools to pass such an order and ensure payment of salary to a validly appointed and approved employee which cannot be either deducted or withheld except for, contingencies referred to in the provisions of the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971. The Court while rendering the aforesaid judgment dated 17.05.22005 in the case of Ajit Ram (supra) has considered the provisions of Government Order dated 19.12.2000 and subsequent Government Order dated 16.01.2002 and has, thus, concluded that the final authority in the matter relating to approval and according financial concurrence of the appointment made in the primary section of intermediate institutions is the District Inspector of Schools. 11. In view of the aforesaid judgment, the consideration made by the Regional Level Committee in the instant case in its meeting held on 13.01.2014 is of no material consequences and the same needs to be ignored altogether. 12. The provisions relating to appointment in primary section of an intermediate institutions can be found in the Government Order dated 25.05.2012 which unambiguously states that earlier the appointments in primary section were made with the prior permission of the State Government, however, considering the delay being caused in seeking permission of the State Government to fill up the vacancy in such primary section, the State Government has now entrusted the functions of according prior permission and ensuring that fair selection takes place to the District Inspector of Schools. Clause (3) of the aforesaid Government Order dated 25.05.2012 clearly states that after coming into force the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as 'Right to Education Act'), it has become inevitable that teachers are made available for imparting education to the children. 13. The Government Order dated 25.05.2012 further states that the issue relating to framing of service rules is engaging attention of the State Government, hence till such service rules are promulgated, the functions of according prior permission for filling up the posts in primary sections of Intermediate Institutions are being given to the District Inspector of Schools with certain conditions. The conditions on the powers of the District Inspector of Schools imposed in the said Government Order are that the District Inspector of Schools will not have any authority to permit either creation of the post or additional sanction of class. 14. The Government Order also states that the District Inspector of Schools will examine the number of students at the time the institution was brought in grant-in-aid list and at the time when such consideration is made. It also provides that once the permission to fill up the vacancy in primary section is sought, the District Inspector of Schools shall take into account the number of students registered in the institution and also the number of students present at the inspection and further that District Inspector of Schools shall also ensure that the process adopted for appointment is transparent and that for filling up the post as to whether appropriate advertisement was issued or not. It also states that the District Inspector of Schools shall also consider as to whether the number of teachers required to be appointed is in consonance with the number of students as per the standard fixed for the said purpose. 15. Admittedly, till date, no service rules have been framed for regulating the service conditions of teaching and non-teaching staff who are to be appointed in the primary section attached to an intermediate institution recognized under the Intermediate Education Act, 1921. Hence, the provisions contained in Government Order dated 25.05.2012 at the moment holds the field. 15. Admittedly, till date, no service rules have been framed for regulating the service conditions of teaching and non-teaching staff who are to be appointed in the primary section attached to an intermediate institution recognized under the Intermediate Education Act, 1921. Hence, the provisions contained in Government Order dated 25.05.2012 at the moment holds the field. As per the said Government Order, the vacancies can be filled in only once the District Inspector of Schools accords his permission for going ahead with the selection/appointment and since the District Inspector of Schools has further been required by the Government Order dated 25.05.2012 itself that he shall ensure that the selection process adopted by the Management of the Institution has been transparent and that the appointment has been made after duly advertising the post, the matter will have to be given re-look by the District Inspector of Schools once the selection is made and all the relevant documents relating to the selection are submitted before the District Inspector of Schools. 16. In view of the judgement rendered by this Court in the case of Ajit Ram (supra), in my considered opinion, it was obligatory on the part of the District Inspector of Schools to have taken a decision on the papers submitted by the Committee of Management in the instant case, in terms of the Government Order dated 25.05.2012 and the matter ought not have been referred by the District Inspector of Schools to the Regional Level Committee. However, the Government Order dated 25.05.2012 also envisages two stages of the approval/permission required to be given by the District Inspector of Schools. The first stage is seeking permission by the appointing authority to commence the process of the selection/appointment and, second stage is the approval required after the selection on the post, which is vacant, is made. 17. In the instant case, admittedly the District Inspector of Schools by means of his letter dated 14.09.2012 has permitted the Manager of the Institution to fill up two posts of Assistant Teachers. So far as the permission required to be given by the District Inspector of Schools for going ahead with the selection/appointment is concerned, in the instant case, it is apparent that said permission was duly accorded by the District Inspector of Schools by means of his letter/order dated 14.09.2012. So far as the permission required to be given by the District Inspector of Schools for going ahead with the selection/appointment is concerned, in the instant case, it is apparent that said permission was duly accorded by the District Inspector of Schools by means of his letter/order dated 14.09.2012. It is also relevant to point out here that it is on the basis of the said permission accorded by the District Inspector of Schools by means of his letter/order dated 14.09.2012 that approval of the selection/appointment of other candidate, namely, Pooja Agarwal has been given and further that financial concurrence for payment of salary to the said candidate has also been given. Thus, so far as requirement of seeking prior permission by the appointing authority from the District Inspector of Schools for initiating the process of selection/appointment is concerned, in my considered opinion, in the instant case, the said permission was accorded and the Committee of Management has, thus, proceeded ahead for making the selection lawfully. 18. The advertisement for the aforesaid two posts was also made in two appropriately circulated newspapers which is not denied. Thus, so far as the process of advertising the posts is concerned, the respondents did not have any objection for the simple reason that it is these posts, which were advertised and against one of which Smt. Pooja Agarwal has been appointed which has been approved by the authorities concerned. Accordingly, so far as the requirement of prior permission for holding the selection and requirement for advertising the posts are concerned, in the instant case, both conditions are fulfilled. However, in terms of the Government Order dated 25.05.2012, the District Inspector of Schools is still required to accord his approval for selection made by the Committee of Management so far as the same relates to the appointment of the petitioner. 19. However, in terms of the Government Order dated 25.05.2012, the District Inspector of Schools is still required to accord his approval for selection made by the Committee of Management so far as the same relates to the appointment of the petitioner. 19. One of the reasons indicated by the Regional Level Committee (though it has already been held that the decision taken by the Regional Level Committee is redundant keeping in view the judgment rendered by this Court in the case of Ajit Ram (Supra)) is that the teacher-taught ratio in the institution is not as per the required standard as the number of students has gone down which does not warrant appointment of the petitioner and if the appointment against only one post is made, that will be sufficient to meet the norms of teacher-taught ratio. 20. At this juncture, it may be stated that the aforesaid consideration by the Committee does not appear to be based on any enquiry or scrutiny of any material which may be said to be available before the Committee. Further as to whether the teacher-taught ratio will be maintained, if the approval of the petitioner's appointment is approved to be made, has to be considered on the basis of the norms laid down in the Right to Education Act, 2009. 21. The Schedule appended to the Right to Education Act, 2009, which is referable to Sections 19 and 25 of the said Act, gives norms and standards for schools and also gives the teacher-taught ratio to be maintained in an institution. Thus, consideration, so far as the teacher-taught ratio is concerned, is now to be made in terms of the prescriptions provided in the schedule appended to the said Act for the reason that Right to Education Act has come into force w.e.f. 01.04.2010. 22. At this juncture, learned counsel appearing for the petitioner has stated that the prescriptions available in the Right to Education Act for maintaining the teacher-taught ratio have been adopted by the Sarva Shiksha Abhiyan, a scheme being run by the State Government itself. Hence, I do not find any reason why the prescriptions available in the schedule appended to the said enactment of 2009 regarding teacher-taught ratio cannot be adopted so far as the primary section attached to an Intermediate Institution is concerned. 23. Hence, I do not find any reason why the prescriptions available in the schedule appended to the said enactment of 2009 regarding teacher-taught ratio cannot be adopted so far as the primary section attached to an Intermediate Institution is concerned. 23. In view of the aforesaid discussions made and the reasons given, the writ petition is finally disposed of with the direction to the District Inspector of Schools, Lucknow to consider the grant of approval to the selection/appointment of the petitioner against the post of Assistant Teacher in Sanskrit Pathshala Kanya Inter College, Mangal Pandey Road, Lucknow and to accord his financial concurrence for payment of her salary in accordance with law and in terms of the observations made hereinabove in this judgement. The said consideration shall be made by the District Inspector of Schools within a period of two months from the date of production of certified copy of this order. 24. I may also note the submission made by the learned counsel for the petitioner that once the permission to go ahead with the selection/appointment of two Assistant Teachers in the primary section of the institution was accorded by the District Inspector of Schools, It will be presumed that he had accorded permission only after considering all the relevant factors in view of the Government Order dated 25.05.2012, thus, it was not open to the Regional Level Committee to have reviewed the same by sitting in appeal over the assessment and consideration made by the District Inspector of Schools. 25. There will be no order as to costs.