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2017 DIGILAW 304 (ALL)

LALITESH KISHORI DEVI v. STATE OF UTTAR PRADESH

2017-01-20

SANGEETA CHANDRA, V.K.SHUKLA

body2017
ORDER : 1. Appellants, who are two in number, are assailing the validity of the order dated 26.07.2011 passed by the learned Single Judge in Civil Misc. Writ Petition No. 41412 of 2011 (Smt. Lalitesh Kishori Devi and another v. State of U.P. and others), wherein learned Single Judge has proceeded to non suit the claim of the petitioners-appellants by mentioning that appellants cannot resist the appointment on the basis of advertisement merely because they claim that District Basic Education Officer, District Sant Kabir Nagar, has granted approval to their appointment. 2. Brief background of the case is that in the District of Sant Kabir Nagar, there is recognised institution in the name and style of Parmanand Das-Ram Narayan Yadav Adarsh Balika Laghu Madhyamik Vidyalaya, Nath Nagar, District Sant Kabir Nagar. Appellants claim that as far as appellant no.2 is concerned, she has been appointed as Assistant Teacher in the institution on 01.04.1999 whereas appellant no.2 claims to have been appointed in the institution concerned on 12.07.2006. Appellants also claim that after selection had been made, papers have been transmitted to the office of District Basic Education Officer, Sant Kabir Nagar and on the same, it has been sought to be contended that District Basic Education Officer, Sant Kabir Nagar has accorded approval. Appellants have contended that they have been performing and discharging their duty, and at the point of time, when the institution was taken in the grant-in-aid list of State Government, the name of appellants has not been included therein and contrarily post has been advertised and thus impelling the appellants to be before this Court. 3. This Court on the presentation of writ petition, on 26.04.2011 has proceeded to reject the claim of appellants, leading to filing of present Special Appeal in question. 4. Learned counsel for the appellants submitted with vehemence that in the present case, appointment of appellants had been validly made, and in view of this, when the institution in question was to be included in the grant-in-aid list of the State Government, name of appellants also ought to have been shown in the managers return for enabling them to receive their salary under the provision of U.P. Act No. 6 of 1979, and as such learned Single Judge has grossly erred in law in non suiting the claim of appellants. 5. 5. Claim has been countered by the learned Standing Counsel by submitting that on the face of it, appointment of appellants is de-hors the statutory provisions, and in view of this, once Managing Committee was proceeding to make selection and appointment on substantive basis, as such no interference is required in the facts of the case. 6. After respective arguments have been advanced, factual situation that is so emerging in the present case is that appellants claim to have been appointed in the institution concerned on 01.04.1999 (appellant no. 2) and on 12.07.2006 (appellant no.1). Selection and appointment on the post of Assistant Teacher in a recognised basic school under the provision of U.P. Basic Education Act, 1972 are governed under 1978 Rules, wherein full fledged mechanism has been provided for. 7. Appointment in the institution was to be made in accordance with the provisions of U.P. Recognised Basic Schools (Junior High School) (Recruitment and Conditions of Service of Teachers) Rules, 1978. Rule-4 of the said rule as it stood at the relevant point of time, provided for following minimum qualifications :- "4. Minimum qualification:- (1) The minimum qualifications for the post of Assistant Teacher of recognised school shall be intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or equivalent examination (with Hindi and a teacher's training course recognised by the State Government or the Board such as Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate or Certificate of Training). Rule 5 deals with illegibility for appointment; Rule 6 deals with disqualification; Rule 7 deals with Advertisement of vacancy; Rule 8 deals with age limit; Rule 9 deals with Selection Committee and Rule 10 deals with procedure of Selection. Rule 5, 7, 9, 10 being relevant are extracted below. 5. Eligibility for appointment:- No person shall be appointed as Headmaster or Assistant Teacher in substantive capacity in any recognised School unless :- (a) he possesses the minimum qualifications prescribed for such post; (b) and he has been recommended for such appointment by the Selection Committee. 7. Advertisement of vacancy:- (1) No vacancy shall be filled except all its advertisement at least 02 daily newspapers one of whom must have adequate circulation all over the State and the other in locality of the school situated. 7. Advertisement of vacancy:- (1) No vacancy shall be filled except all its advertisement at least 02 daily newspapers one of whom must have adequate circulation all over the State and the other in locality of the school situated. (2) In every advertisement and intimation under column (1), the Management shall give particulars as to the name of the post, the minimum qualification and age limit, if any, prescribed for such post and the last date for receipt of applications in pursuance of such advertisement. (3) Management of the school after explaining the sanctioned posts of the institution shall send information of vacant post during the calendar year compulsorily to the District Basic Education Officer by the 30th April for permission of Advertisement to fill them. (4) After scrutinizing the proposal within 15 days the District Basic Education Officer shall direct the manager to remove the objections, if any, within one week. (5) Within one month of removal of the objections, the District Basic Education Officer shall accord permission to advertise the post according to law. The District Basic Education Officer shall be duty bound to accord permission for advertisement or to reject the permission with reasoned speaking order during the stipulated time. (6) An appeal may be preferred before the Regional Assistant Director of Education (Basic) against the decision of the District Basic Education Officer. The decision of the Regional Assistant Director of Education (Basic) shall be final. 9. Selection Committee:- For appointment of Headmaster and Assistant Teacher in institutions other than minority institutions and in the minority institution, the Management shall constitute a Selection Committee as Follows:- A. Institution other than Minority Institutions:- (i) For post of Headmaster; (1) Manager; (2) A nominee of District Basic Education Officer; (3) A nominee of the Management; (ii) For the post of Assistant Teacher; (i) Manager; (2) Headmaster of the recognised School in which appointment is to be made; (3) A nominee of the District Basic Education Officer". B. Minority Institutions: (i) For the post of Headmaster; (1) Manager; (2) Two nominees of Management; (ii) For the post of Assistant Teacher; (1) Manager; (2) Headmaster of the recognised School in which the appointment is to be made; (3) A specialist in the subject nominee by the District Basic Education Officer. 10. B. Minority Institutions: (i) For the post of Headmaster; (1) Manager; (2) Two nominees of Management; (ii) For the post of Assistant Teacher; (1) Manager; (2) Headmaster of the recognised School in which the appointment is to be made; (3) A specialist in the subject nominee by the District Basic Education Officer. 10. Procedure for selection:- (1) The Selection Committee shall, after interviewing such candidates as appear before it on a date to be fixed by it in this behalf, of which due intimation shall be given to all the candidates, prepare a list containing as far as possible the names, in order of performance, of three candidates found to be suitable for appointment. (2) The list prepared under clause (1), shall also contain particulars regarding the date of birth, academic qualifications and teaching experience of the candidates and shall be signed by all the members of the selection committee. (3) The Selection Committee shall, as soon as possible, forward such list, together with the minutes of the proceedings of the Committee to the management. (4) The Manager shall within one week from the date of receipt of the papers under clause (3) send a copy of the list to the District Basic Education Officer. (5)(i) If the District Basic Education Officer is satisfied that (a) the candidates recommended by the Selection Committee process the minimum qualifications prescribed for the post; (b) the procedure laid down in the rules for the selection of Headmaster or assistant teacher, as the case may be has been followed he shall accord approval to the recommendations made by the Selection Committee and shall communicate his decision to the management within two weeks from the date of receipt of the papers under clause(4). (ii) If the District Basic Education Officer is not satisfied as aforesaid, he shall return the papers to the management with the direction that the matter shall be reconsidered by the Selection Committee. (iii) If the District Basic Education Officer does not communicate his decision within one month from the date of receipt of the papers under clause (4), he shall be deemed to have accorded approval to the recommendations made by the selection committee. 8. (iii) If the District Basic Education Officer does not communicate his decision within one month from the date of receipt of the papers under clause (4), he shall be deemed to have accorded approval to the recommendations made by the selection committee. 8. On the parameter that has been provided for making selection and appointment, this much is clearly reflected that at no point of time when appellants claim themselves to be appointed, any advertisement has been published or any selection committee was constituted wherein nominee of District Basic Education Officer participated, and it appears that as per exigency of requirement of teachers, without following any valid prescribed procedure under law, engagement of appellants had been made and appellants intended their names should be included in the manager return also. 9. Once full fledged mechanism has been provided for making selection and appointment of Assistant Teacher in Junior High School under 1978 Rules and such provision has not been complied with, as no selection committee has been constituted, no nominee of District Basic Education Officer had participated in the selection process and District Basic Education Officer has never ever accorded any approval, then appellants cannot claim as a matter of right to raise such claim that as they have purportedly functioned their name should be there in the list. 10. In view of this, once Committee of Management has taken resolve to advertise said vacancy for making selection and appointment against the same, then appellants who have not at all been appointed in accordance law, cannot resist making of such appointment by way of open market. 11. Coupled with this, in the present case what we find from the record is that as far as appellant no.2 is concerned, she was not at all having requisite minimum training qualification, as she was having B.Ed degree which was not at all recognised training qualification under 1978 Rules and as far as appellant no.1 is concerned, she claims to have been appointed as Assistant Teacher (Physical Education) under Government Order dated 05.04.2004, and as nothing has been brought on record that same was preceded by advertisement followed by selection made by the Selection Committee. 12. 12. In view of this, once institution in question has been included in the grant-in-aid list of the State Government, rightly name of appellants has not been included therein, as name of only such incumbents can be included in the grant-in-aid list of State Government, who have been appointed strictly in consonance with provision as contained in 1978 Rules wherein full fledged requisite criteria for making selection and appointment has been provided for, as such we cannot come to the rescue of the appellants. 13. Consequently, present Special Appeal stands dismissed.