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2018 DIGILAW 470 (ALL)

NIRMALA RAI v. DIRECTOR OF EDUCATION (BASIC)

2018-02-21

BALA KRISHNA NARAYANA, IRSHAD ALI

body2018
JUDGMENT Hon’ble Irshad Ali, J.—The present special appeal has been filed challenging the judgement and order dated 14.11.2007 passed in Writ Petition No. 8765 of 2000 (Smt. Nirmala Rai and others v. Director of Education (Basic) and others whereby the learned Single Judge has dismissed the writ petition. 2. On perusal of the pleading of the special appeal and writ petition, it transpires that Shaheed Junior High School, Salempur, Ballia is a recognized institution under the provisions of U.P. Basic Education Act, 1972. The service conditions of the teachers are governed by U.P. Recognized Basic School (Junior High Schools) (Recruitment & Conditions of Service of Teachers) Rules, 1978 while the service condition of the employees are governed by U.P. Recognized Basic Schools (Junior High Schools) (Recruitment & Conditions of Service of Ministerial Staff & Group ‘D’ Employees) Rules 1984 (hereinafter for the sake of brevity referred to as the Rules 1978 and 1984 respectively). In the writ petition there was a challenge to the order dated 16.11.1999 and report dated 5.1.2000 whereby the appointments of the appellants petitioners were held to be illegal being contrary to the Rules of 1978 and 1984. In the writ petition further prayer was made to ensure the payment of regular salary to the appellants petitioners. 3. On perusal of the record of the present appeal and annexures filed thereto the claim of the appellants petitioners appears to be that the three posts of Assistant Teachers fell vacant on the resignation of the incumbents, namely, Sri Lallan Chaudhary, Sri Munni Lal Gupta and Sri Shree Ram Upadhyay and one post of clerk fell vacant on the resignation of Suresh Yadav. The resignations submitted by the teachers and clerk were duly accepted by the Committee of Management and information in this regard was submitted to the District Basic Education Officer, District Ballia. 4. The Committee of Management vide letters dated 16.8.1990 and 11.4.1991 sought permission from the District Basic Education Officer to fill up the aforesaid vacancies in accordance with the Rules of 1978 and 1984. The District Basic Education Officer granted permission vide order dated 17.8.1990 and 15.4.1991 respectively. 4. The Committee of Management vide letters dated 16.8.1990 and 11.4.1991 sought permission from the District Basic Education Officer to fill up the aforesaid vacancies in accordance with the Rules of 1978 and 1984. The District Basic Education Officer granted permission vide order dated 17.8.1990 and 15.4.1991 respectively. After grant of permission by the District Basic Education Officer an advertisement was published inviting applications to fill up the posts in two newspapers ‘Ka’ on 21.8.1991 and in ‘Anant Varta’ and District Basic Education Officer appointed Sub District Inspector of Schools to be present on the date fixed for selection. On conclusion of the selection proceedings, the selection committee recommended for the appointment of the appellants petitioners and the papers were duly forwarded to the District Basic Education Officer by the Committee of Management for according approval to the said selection. The District Basic Education Officer vide order dated 13.11.1990 and 22.7.1991 accorded approval to the selection and appointment of the appellants petitioners. The institution was not receiving grant-in-aid from the State Government and the institution was brought within the purview of Payment of Salary Act in March, 1991 and thereafter, the Director Basic Education directed that the salary to only those teachers and employees shall be paid whose names were mentioned in the Manager’s Return of July, 1980. The appellants petitioners were granted appointment in the year 1990 and 1991, thus, there was no occasion to mention their names in the Manager’s return of 1980. The appellants petitioners approached the educational authorities and on their correspondence an order dated 9.8.1995 was passed for disbursement of the salary to the appellants petitioners and in pursuance thereof, the salary was paid to them. It further transpires that on certain complaints, the salary of the entire staff was stopped with effect from 1.7.1998 and in this regard an information was sent to the teachers and other employees of the institution that some inquiry with regard to authenticity of appointment of the employees of the institution had been undertaken but vide order dated 16.11.1999 salary was paid to nine employees but the salary of the remaining employees, including the petitioners appellants’ was not released in their favour with direction to the Management to submit papers in regard to the authenticity of their appointment. 5. 5. Learned Single Judge upon examination of the material on record has found that the appointments of the appellants petitioners were based on fraud and manipulation of the Committee of Management. Theory of resignation tendered by the teacher and other employee referred herein above was disbelieved. The reason in the impugned judgement assigned is that 1978 and 1984 Rules require approval from the District Basic Education Officer while terminating the services, thus, resignation submitted by the teachers and other employees also required approval from the Basic Education Officer. In the present case at no point of time the resignations submitted by the teacher and other employees were ever granted approval by the competent authority. The finding recorded by the learned Single Judge in regard to the existence of alleged vacancies caused due to resignation of teachers and one employee does not suffer from any infirmity or illegality. The finding recorded in respect of non-approval to the resignation tendered by the three teachers and one employee also affirmed by us. Under the provisions of Rule 15 of the U.P. Recognized Basic School (Junior High Schools) (Recruitment & Conditions of Service of Teachers) Rules, 1978 prior approval in writing by the Basic Education Officer is required before terminating the service. The Rule 15 is quoted herein below : “15. Termination of service—No Headmaster or Assistant Teacher of a recognized school may be discharged or removed or dismissal from service or reduced in rank or subjected to any diminution in emoluments or served with notice of termination of service except with the prior approval in writing of the District Basic Education Officer : Provided that in the case of Headmaster or an Assistant Teacher of a minority institution the approval of the District Basic Education Officer shall not be necessary.” The U.P. Recognized Basic Schools (Junior High Schools) (Recruitment & Conditions of Service of Ministerial Staff & Group ‘D’ Employees) Rules 1984 under the said provisions Rule 21 envisage as under : “21. Termination of service.—No clerk or Group ‘D’ employee of a recognized school may be discharged or removed or dismissed from the service or reduced in rank or subjected to any diminution in emoluments or served with notice of termination of service except with the prior approval in writing of the District Basic Education Officer : Provided that, in the case of schools established and administered by minority referred to in clause (i) of the Article 30 of the Constitution, such an order shall not require the approval of District Basic Education Officer but shall be reported to him.” 6. In view of the aforesaid two provisions, the Committee of Management should have obtained prior approval before accepting the resignation of the aforesaid three teachers and one employee of the institution. The resignation also terminates the contract between master and servant. Thus, the finding of the learned Single Judge that prior approval was required to be taken from District Basic Education Officer before the resignations could be accepted does not suffer from any infirmity or illegality. In the absence of grant of approval to the resignation tendered, there was no vacancy in existence in the institution. Thus, the entire selection initiated by the Committee of Management stood vitiated in law. 7. Thus, we are of the considered opinion that the learned Single Judge has not committed any illegality in passing the impugned judgement. 8. The special appeal lacks merit and is hereby dismissed.