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2019 DIGILAW 457 (ALL)

Gopal Narayan Singh v. State of U. P.

2019-02-20

AJAY BHANOT

body2019
JUDGMENT : AJAY BHANOT, J. 1. By order dated 31.12.2014, the grant of salary to the petitioner from the State exchequer has been declined on the premise that the appointment of the petitioner was made in violation of provisions of the U.P. Recognised Basic Schools (Junior High Schools) (Recruitment And Conditions Of Service Of Teachers) Rules, 1978 (hereinafter referred to as 'the Rules'), 1978. 2. The order dated 31.12.2014 in turn has been passed by the respondent No.3-Assistant Director of Education (Basic), Vth Region, Varanasi pursuant to the judgment and order dated 15.09.2014 entered by this Court in the writ petition registered as Writ-A No.10619 of 2013 (Gopal Narain Singh and another Vs. State of U.P. through Secretary and others). 3. Being thus aggrieved, the petitioner has assailed the order dated 31.12.2014 passed by the respondent No.3-Assistant Director of Education (Basic) Vth Region, Varanasi in the instant writ petition. 4. Sri Indra Raj Singh, learned counsel assisted by Sri Neeraj Shukla, learned counsel for the petitioner assailing the order impugned submits that the order has been passed in the teeth of the judgment of this Court rendered in the case of Gopal Narain Singh (supra). Secondly, the appointment of the petitioner was permanent in nature. Thirdly, the petitioner satisfied the minimum eligibility qualification for appointment as Assistant Teacher in the respondent-Institution. Fourthly, the appointment was made in faithful compliance of the U.P. Recognised Basic Schools (Junior High Schools) (Recruitment And Conditions Of Service Of Teachers) Rules, 1978. 5. Per contra, learned Standing Counsel relying on the findings in the impugned order submits that the appointment of the petitioner did not disclose the nature of his appointment. The appointment letter of the petitioner was in the teeth of Rule 11(2)(b) of the Rules. 6. Heard learned counsel for the parties. 7. The facts relevant for an adjudication of the controversy are thus: One post of Assistant Teacher in the respondent-Institution fell vacant on the retirement of one Sri Ram Pyare. Sri Ram Pyare superannuated from service on 30.06.2007. Sri Ram Pyare was being paid his salary from the salary payment account, in other words, from the State Exchequer. Sri Ram Pyare was working against a sanctioned post. The vacancy thus created was a substantive one. Sri Ram Pyare superannuated from service on 30.06.2007. Sri Ram Pyare was being paid his salary from the salary payment account, in other words, from the State Exchequer. Sri Ram Pyare was working against a sanctioned post. The vacancy thus created was a substantive one. The respondent-Institution made an application on 17.09.2009 to the District Basic Education Officer, Jaunpur, seeking permission to initiate recruitment proceedings for appointment on various posts including the post of Assistant Teacher. The permission to initiate the recruitment proceedings for such appointments was granted by the District Basic Education Officer, Jaunpur by order dated 05.10.2009. 8. Pursuant to the aforesaid permission, advertisements were run in one local newspaper, Dainik Manyawar, and one newspaper having circulation all over the State, Rastriya Sahara, on 12.10.2009 and 11.10.2009 respectively. 9. By order dated 11.11.2009 the District Basic Education Officer, Jaunpur appointed his nominee to the selection committee. 10. The respondent-Institution is a Junior High School. The appointment of teachers of the aforesaid Institution is governed and regulated by the aforesaid Rules of 1978. It would be apposite to consider the factual narrative in the light of the scheme of the Rules. 11. The responsibility of making appointments is provided in Rule 3, which contemplates that the responsibility to fill vacancies is of the management of the school. The vacancy is to be filled 31st July every year. Rule 3. Appointment. -(1) It shall be the responsibility of the Management to fill a vacancy in the post of Headmaster or Assistant teacher, as the case may be, of a recognised school by 31st July every year. (2) If any vacancy occurs during an academic session, it shall be filled within two months from the date of occurrence of such vacancy. 12. The minimum qualification for appointment for holding the post of Assistant Teacher is provided in Rule 4 of the aforesaid Rules, 1978. Rule 4.Minimum qualification. -(1) The minimum qualifications for the post of Assistant Teacher of a recognised school shall be a Graduation Degree from a University recognised by U.G.C., and a teachers training course recognized by the State Government or U.G.C. or the Board as follows :- 1. Basic Teaching Certificate. 2. A regular B.Ed. degree from a duly recognized institution. 3. Certificate of Teaching. 4. Junior Teaching Certificate. 5. Hindustani Teaching Certificate. Basic Teaching Certificate. 2. A regular B.Ed. degree from a duly recognized institution. 3. Certificate of Teaching. 4. Junior Teaching Certificate. 5. Hindustani Teaching Certificate. (2) The minimum qualifications for the appointment to the post of head master of a recognized school shall be as follows - (a) A degree from a recognized University or an equivalent examination recognized as such. (b) A teacher's training course recognized by the State Government or U.G.C. or Board as follows : 1. Basic Teaching Certificate. 2. A regular B.Ed. degree from a duly recognized Institution. 3. Certificate of Teaching; 4. Junior Teaching Certificate. 5. Hindustani Teaching Certificate. (c) Five years teaching experience in a recognized school]. 13. Rule 5 also bears relevance, it provides for eligibility to be appointed in a substantive capacity. Rule 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) he is recommended for such appointment by the Selection Committee. 14. The selection process is initiated by issuance of an advertisement of a vacancy under Rule 7. Rule 7. Advertisement of vacancy. -[(1) No vacancy shall be filled, except after its advertisement in at least two newspapers one of whom must have adequate circulation all over the State and the other in a locality the school is situated.] (2) In every advertisement and intimation under clause (1), the Management shall give particulars as to the name of the post, the minimum qualifications and age-limit, if any, prescribed for such post and the last date for receipt of applications in pursuance of such advertisement. 15. A selection committee is constituted under Rule 9 to carry out the process of selection. Rule 9. Selection Committee. 15. A selection committee is constituted under Rule 9 to carry out the process of selection. Rule 9. Selection Committee. -For appointment of Headmaster and Assistant Teacher in institutions other than minority institutions and in the minority institutions, tire Management shall constitute a Selection Committee as follows :] A - Institutions other than Minority Institutions : (i) For the post of headmaster : (1) Manager; (2) a nominee of the District Basic Education Officer; (3) a nominee of the Management; (ii) For the post of Assistant Teacher; (1) 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.] 16. In the facts of this case, the selection committee was composed of the nominee of the District Basic Education Officer, Jaunpur, the Head Master of the Institution and the Manager of the Institution. In this manner, the selection committee was duly constituted as per the provisions of the Rules. 17. The selection committee is required to conduct the proceedings for selection in accordance with the Rule 10 and interview the candidates who had applied in response to the advertisement. The pleadings disclose that the selection proceedings contemplated by Rule 10 were conducted by the selection committee on 15.11.2009. Rule 10 is reproduced hereunder: Rule 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 preference, 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. (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 possess the minimum qualifications prescribed for the post; (b) the procedure laid down in these 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. 18. The selection committee thereafter forwarded the list of the selected candidates, the testimonials of the candidates regarding their date of birth, academic qualifications, and teaching experience and the minutes of the proceedings of the selection committee to the management. 19. The committee of management in turn sent its letter of approval and application seeking permission for appointment, along with the minutes of the selection committee to the Basic Education Officer, Jaunpur. Upon receipt of the said application and the appended documents, the Basic Education Officer, Jaunpur accorded approval to the appointment by letter dated 19.11.2009. 20. The order of the Basic Education Officer, Jaunpur dated 19.11.2009 references the said documents sent by the committee of management. The approval letter issued by the District Basic Education Officer, Jaunpur dated 19.11.2009 states the pay band in which the petitioner was being appointed. Further, the said approval letter records that the petitioner is being appointed on probation for a period of one year. 21. The petitioner was issued an appointment letter on 20.11.2009. The approval letter issued by the District Basic Education Officer, Jaunpur dated 19.11.2009 states the pay band in which the petitioner was being appointed. Further, the said approval letter records that the petitioner is being appointed on probation for a period of one year. 21. The petitioner was issued an appointment letter on 20.11.2009. The petitioner joined his post as Assistant Teacher in the said Institution with effect from 21.11.2009. The petitioner continuously discharged the duties attached to his office with effect from the date of his appointment. The petitioner was paid his salary from the State Exchequer as and when it became due from the date of his appointment till November, 2012. 22. The salary of the petitioner was abruptly stopped in the November, 2012. The order dated 31.01.2013, held the appointment of the petitioner to be illegal and consequently he was not entitled to salary from the State Exchequer. 23. The order dated 31.01.2013 faulted the appointment of the petitioner on three grounds. Firstly, the advertisement on the foot of which the selection proceedings were set in motion leading to the appointment of the petitioner was contrary to the Rules of 1978. Secondly, the appointment order of the petitioner was also defective, it failed to record whether the appointment of the petitioner was temporary or permanent. Thirdly, the petitioner did not possess the necessary qualifications for appointment as Assistant Teacher as contemplated in the Rules of 1978. 24. The petitioner laid a challenge to the same by instituting a writ petition which was registered as Writ-A No.10619 of 2013. In the judgment and order entered by this Court in Gopal Narain Singh (supra), this Court upheld the advertisement by returning the following findings:- "I have considered the rival submissions advanced by the learned Counsel for the parties and perused the records. From the records it is evident that both the petitioners were appointed against the sanctioned posts, which fell vacant on account of retirement of an Assistant Teacher and a Class-III employee. It is not disputed that both the retired teacher and Class-III employee were receiving their salary from the Salary Payment Account. The Institution before initiating recruitment process had sought the permission from the Basic Shiksha Adhikari, who has permitted the Committee of Management to issue an advertisement. It is not disputed that both the retired teacher and Class-III employee were receiving their salary from the Salary Payment Account. The Institution before initiating recruitment process had sought the permission from the Basic Shiksha Adhikari, who has permitted the Committee of Management to issue an advertisement. In compliance thereof, the Committee of Management has issued advertisement in two newspapers and has convened the Selection Committee, in which nominee of the Basic Shiksha Adhikari was present and after selection their appointment was also approved by the Basic Shiksha Adhikari. The impugned order has been passed after lapse of four years when both the petitioners are functioning in the Institution and they are receiving their salary from the Salary Payment Account. In my view, the view taken by the Assistant Director of Education (Basic) that there was defect in the advertisement, is incorrect and on said ground the appointment of Class-III employee after lapse of four years cannot be set aside. No candidate has made any complaint to the Assistant Director that on account of non-mentioning the upper age limit in the advertisement any prejudice has been caused to any candidate. Therefore, for the said irregularity, the appointment of the petitioner no. 2 cannot be said to be illegal. Learned Counsel for the petitioners has placed reliance on a judgment of the Supreme Court in case of Pramod Kumar v. U.P. Secondary Education Services Commission and others, (2008) 7 SCC 153 , wherein the Supreme Court has distinguished the difference between the illegal and irregular selection. For the reasons stated herein-above, the grounds mentioned in the impugned order in respect of the petitioner no. 2 is unsustainable and, therefore, the impugned order dated 31st January, 2013 is set aside insofar as it relates to the petitioner no. 2. Accordingly, the Basic Shiksha Adhikari, Jaunpur is directed to make payment of salary of the petitioner no. 2. As regards petitioner no. 1, the matter is remitted to the respondent no. 3, the Assistant Director of Education (Basic), Vth Region, Varanasi, to consider the matter afresh and pass the fresh order after hearing the petitioner no. 1 and the Committee of Management. Said exercise shall be completed within three months from the date of communication of this order." 25. In the ordinary course, a defect in an advertisement would be fatal to selection proceedings. The law is settled in this regard. 1 and the Committee of Management. Said exercise shall be completed within three months from the date of communication of this order." 25. In the ordinary course, a defect in an advertisement would be fatal to selection proceedings. The law is settled in this regard. A defective advertisement may preclude eligible candidates from applying for selection. A valid advertisement ensures fair play in a recruitment process as it enables all eligible candidates from the open market to participate in the selection. In case such eligible candidates are prevented from participating in the selection due to a defect in the advertisement, the selection proceedings would stand vitiated. 26. In the instant case, the validity of advertisement was affirmed by this Court in the finding returned by the learned Single Judge that "the view taken by the Assistant Director of Education (Basic) that there was a defect in the advertisement is incorrect". 27. The said order has attained finality. The advertisement was composite one which invited applications for appointment to the post of teachers as well as class 3 posts. The import of the order dated 15.09.2014 passed by this Court learned Single Judge in the case of Gopal Narain Singh (supra) is that the advertisement as a whole was not defective and challenge to the same was invalidated. 28. Upon the matter being remanded by the judgment of this Court entered in the case of Gopal Narain Singh (supra) on 15.09.2014, the impugned order dated 31.12.2014 was passed. The impugned order, which reiterates the grounds for denial of salary and for holding appointment of the petitioner to be illegal as were stated in the order dated 31.01.2013. 29. The order dated 31.12.2014 records two reasons for holding that his appointment was illegal. Firstly, the advertisement was inconsistent with the provisions of the Rules, 1978. This Court had found that there was no defect in the advertisement. It was not competent for the respondent authority to reiterate invalidity of the advertisement and go behind the ruling of this Court. Hence, the ground that the advertisement was in violation of the Rules, 1978 is untenable in law. 30. The second ground for invalidation of the case of the petitioner for grant of salary from the State exchequer is that the appointment letter of the petitioner does not record the nature of his appointment as to whether the same was permanent or temporary. 30. The second ground for invalidation of the case of the petitioner for grant of salary from the State exchequer is that the appointment letter of the petitioner does not record the nature of his appointment as to whether the same was permanent or temporary. The appointment letter of the petitioner was in violation of Rule 11 (2)(b) of the Rules, 1978. Hence, the appointment was defective beyond rectification. 31. The appointment letter is a critical document for determining the nature of an appointment. The appointment letter is certainly decisive but when it is not conclusive, the attributes of the appointment, attending facts and circumstances, and relevant rules have to be examined to determine the nature of the appointment. 32. The contents of the appointment letter dated 20.11.2009 may now be examined. The appointment letter dated 20.11.2009 records the selection of the petitioner by the selection committee. 33. The appointment letter dated 20.11.2009 also references the approval order of the Basic Education Officer, Jaunpur dated 03.11.2009. The appointment letter recites that the appointment of the petitioner as an Assistant Teacher has been made on the foot of such approval on the post of Assistant Teacher in the pay band of Rs.9,300/-to 34,800/-and grade pay of Rs.4600/-in Dr. Bhim Rao Ambedkar Purva Madhyamik Vidyalaya Chhatauli Mokalpur, District-Jaunpur. The petitioner was required to attend at the college and assume charge of his post within a period of 15 days, failing which, the appointment of the petitioner would stand cancelled. 34. The recitals in the approval order dated 19.11.2009 issued by the District Basic Education Officer, Jaunpur are incorporated in the appointment letter. The said recitals have to be read as part of the appointment letter. The approval order issued by the District Basic Education Officer, Jaunpur records that the petitioner shall be appointed on probation for one year. The probation period is relatable to Rule 12 of the Rules of 1978. These facts will assist in defining the nature of the appointment of the petitioner. 35. The Rules of 1978 contemplate two categories of appointments, namely, permanent appointment and temporary appointment. Separate procedures for making such appointments are contemplated and distinct terms and conditions for such appointments are provided in the Rules. A perusal of the Rules 5 read with Rules 7, 9 and 10 provide for the process of appointment of a permanent nature. 35. The Rules of 1978 contemplate two categories of appointments, namely, permanent appointment and temporary appointment. Separate procedures for making such appointments are contemplated and distinct terms and conditions for such appointments are provided in the Rules. A perusal of the Rules 5 read with Rules 7, 9 and 10 provide for the process of appointment of a permanent nature. Rule 12 contemplates confirmation after the period of probation, and being relevant is extracted hereunder: Rule 12. Confirmation. -(1) The appointment of every Headmaster or Assistant Teacher, as the case may be, of a recognised school, not being an appointment under Rule 20 shall, in the first instance, be on probation of one year, which may be extended for further period not exceeding one year. (2) If the service of Headmaster or teacher of a recognised school are not terminated before the expiry of the period or the extended period of probation, as the case may be, he shall be deemed to have been automatically confirmed on the expiry of such period. 36. It has been found that the petitioner was appointed on probation for a period of one year. The period of probation had expired on 20.11.2010 by operation of law. It is submitted by the learned counsel for the petitioner that it stood confirmed by operation of law on 20.11.2009. 37. It is also relevant to notice the provisions relating to temporary appointments. Rule 15 provides for temporary appointment and being relevant is reproduced hereunder. Rule 15.Termination of service. -No Headmaster or Assistant Teacher of a recognised school may be discharged or removed or dismissed 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 the Headmaster or an Assistant Teacher of a minority institution the approval of the District Basic Education Officer shall not be necessary.] Rule 20. Temporary appointment. Temporary appointment. -Notwithstanding anything contained in these rules, the Management may, with the previous approval of the District Basic Education Officer, appoint for a period not exceeding six months any person as Headmaster or Assistant Teacher, as the case may be, provided that no person shall be so appointed, unless he possesses the minimum qualification prescribed for the post: Provided further that the District Basic Education Officer may, for reasons to be recorded, extend the aforesaid period of six months for a period coterminous with the end of the academic session in which extension is granted. 38. Temporary appointments are limited appointments by a term of six months. The period of six months of an appointment can be extended only to make it co-terminus with the end of academic session in which the extension is granted. 39. The appointment letter of the petitioner was not limited to six months. 40. In the facts of the case, the nature of appointment of the petitioner has to be considered in the light of the aforesaid facts and attending circumstances. The procedure and attributes of permanent appointment and the attributes of temporary appointment also need to be factored in to determine the character of the appointment. 41. The findings in the impugned order that the appointment was defective because it did not disclose whether it was a temporary or permanent appointment, hence is unsustainable in law. 42. The impugned order dated 31.12.2014 is arbitrary, illegal and cannot stand. The impugned order dated 31.12.2014 passed by the respondent No.3-Assistant Director of Education (Basic) Vth Region, Varanasi (Annexure 12 to the writ petition) is quashed. 43. In the earlier round of litigation, the appointment of the petitioner was invalidated as the petitioner did not possess the minimum qualifications required for appointment as Assistant Teacher. However, in the order assailed in the instant writ petition, this fact has not been examined. 44. It will also be appropriate for the competent authority to determine the issue of eligibility qualifications possessed by the petitioner for appointment to the post of Assistant Teacher. 45. The matter is remitted back to the respondent No.2-Director of Education (Basic) U.P. Lucknow to execute the following directions: 1. The respondent No.2-Director of Education (Basic) U.P. Lucknow to decide the nature of appointment of the petitioner and pass appropriate orders consistent with the observations in the preceding paragraphs. 2. 45. The matter is remitted back to the respondent No.2-Director of Education (Basic) U.P. Lucknow to execute the following directions: 1. The respondent No.2-Director of Education (Basic) U.P. Lucknow to decide the nature of appointment of the petitioner and pass appropriate orders consistent with the observations in the preceding paragraphs. 2. The respondent No.2 shall also determine whether the petitioner possesses the minimum eligibility qualifications required for appointment as Assistant Teacher. 3. The respondent No.2-Director of Education (Basic) U.P. Lucknow shall afford an opportunity of hearing to the petitioner before passing any order. 4. Any material which is adverse to the petitioner and is proposed to be relied upon shall be provided to the petitioner before hearing. 5. The petitioner shall pass a reasoned and speaking order on the validity and the nature of the appointment of the petitioner within a period of three months from the date of receipt of a certified copy of this order. 46. The writ petition is partly allowed.