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Allahabad High Court · body

2020 DIGILAW 204 (ALL)

Samaj Kalyan Parishad v. State of U. P.

2020-01-20

SURYA PRAKASH KESARWANI

body2020
JUDGMENT : 1. Heard learned counsel for the petitioner and the learned standing counsel for the respondents. 2. This writ petition has been filed praying for the following relief:- “Issue a writ order or direction in nature of certiorari quashing the impugned order dated 16-8-2019 as well as 31-10-2019 passed by respondents (Annexure no. 6 and 8 to this writ petition) issued by the respondents; Issue a writ or direction in nature of Mandamus commanding/directing the respondents to permit the petitioners to fill up the vacancy of 05 Assistant teachers in Primary label to the petitioners institution forthwith under the command of this Hon'ble Court. Issue a writ order of direction in nature of Mandamus commanding/directing the respondents to approve the duly selected Assistant Teachers after being giving permission for appointment and Accord admissible payment of salary to the selected and appointed Assistant Teachers in the petitioners institute in accordance with law.” 3. Learned counsel for the petitioner submits that the impugned orders dated 16.08.2019 and 31.10.2019 are not applicable to the petitioner inasmuch as the applicant is claiming appointment in Primary Section of the Institution. 4. Learned standing counsel supports the impugned order. 5. I have carefully considered the submissions of learned counsels for the parties. 6. In paragraphs 3 and 4 of the writ petition the petitioner has stated that it is a Junior High School recognised by the U.P. Basic Education Board. By the impugned order dated 16.08.2019, passed by the District Basic Education, Ghaziabad, it was merely informed to the petitioner that a new arrangement regarding selection of Assistant Teacher in Basic Schools is being made and, therefore, it is not possible to grant the permission for appointment on the vacant posts. By the impugned order dated 31.10.2019. The State Government intimated the Director of Education (Basic), Uttar Pradesh, Lucknow, that some amendment for fixing standard of recruitment of Assistant Teachers and employees is under consideration and, therefore, the process of recruitment may not be started. Both these orders have now become irrelevant inasmuch as the State legislature has legislated the Uttar Pradesh Education Service Selection Commission Act, 2019 (U.P. Act No.22 of 2019) which has been notified and published in the Gazette on 27.12.2019. Both these orders have now become irrelevant inasmuch as the State legislature has legislated the Uttar Pradesh Education Service Selection Commission Act, 2019 (U.P. Act No.22 of 2019) which has been notified and published in the Gazette on 27.12.2019. The aforesaid U.P. Act No.22 of 2019 provides for establishment of an Education Service Selection Commission in the State for selection of the teachers and non teaching employees (i) of non Government aided colleges affiliated and associated by an University governed by the Uttar Pradesh State University Act, 1973, (ii) non Government aided intermediate colleges, higher secondary schools, high schools and attached primary schools, basic and junior high schools recognised by the Uttar Pradesh Board of Secondary Education, Prayagraj, and established under the Intermediate Education Act, 1921, and the Uttar Pradesh Basic Education Board established under the Uttar Pradesh Basic Education Act, 1972, respectively. Since the aforesaid Act 2019 has been enacted, therefore, the challenge to the impugned orders by the petitioner is wholly misconceived. 7. The Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers), Rules 1978 has also been exhaustively amended by the Uttar Pradesh recognished Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) (7th Amendment) Rules 2019. 8. In view of the aforesaid amendment made in the Rules, 1978, the State Government has also nominated “Pariksha Niyamak Pradhikari, Uttar Pradesh, Prayagraj” for conducting examination for selection and accordingly the prohibition on appointment of Assistant Teachers in non government aided Junior High Schools have been cancelled. These facts are evident from letter no. 1755/58-3-2019, dated 01.01.2020, issued by State Government to the Director of Education (Basic) Uttar Pradesh, Lucknow, and the Secretary Examination Regulatory Authority, Uttar Pradesh, Prayagraj. A copy of this letter has been produced before me by Sri R.P. Dubey, learned Additional Chief Standing Counsel. 9. It is stated by the learned Additional Chief Standing Counsel that all necessary steps are being taken by the State Government for starting selection of Assistant Teachers and employees as per provisions of the Act, 2019 and amended Rules, 1978 and the enforcement of the Act 2019 shall be notified very shortly. 10. 9. It is stated by the learned Additional Chief Standing Counsel that all necessary steps are being taken by the State Government for starting selection of Assistant Teachers and employees as per provisions of the Act, 2019 and amended Rules, 1978 and the enforcement of the Act 2019 shall be notified very shortly. 10. I have perused the provisions of Section 13 of the Act, 2019 which provides that every appointment of teaching and non teaching employee in an institution shall be made by the appointing authority only on the recommendation of the Commission and any appointment, excluding the cases of dying-in-harness, made in contravention of the provisions of the Act shall be void. The appointment under dying-in-harness shall be done as prescribed. 11. The word “institution” has been defined in Section 2(f) of the Act, 2019 which includes a school of Uttar Pradesh Basic Education Board, aided Junior High School and also includes an aided attached Primary School, recognised by the Board established under the Uttar Pradesh Basic Education Act, 1972. Section 2(f) is reproduced below:- (f) “institution” means any of the following, institutions other than an institution established and administered by a minority referred to in clause (1) of Article 30 of the Constitution:- (1) an affiliated or associated non-government aided college to which the privilege of affiliation has been granted by a University established under the Uttar Pradesh State Universities Act, 1973; (2) a non-government aided intermediate College or a Higher Secondary School or a High School and an attached primary school recognized by the Board established under the Intermediate Education Act, 1921; (3) a school of the Uttar Pradesh Basic Education Board or an aided junior high school and includes an aided attached primary school recognized by the Board established under the Uttar Pradesh Basic Education Act, 1972. 12. In view of the facts and circumstances and the legislative amendments and enactment of the Act 2019, no direction can be issued to the respondents to permit the petitioner to fill up vacancy of five Assistant Teachers in the institution in question and to approve the appointment of such Assistant Teachers as may be selected by the petitioner. 13. 12. In view of the facts and circumstances and the legislative amendments and enactment of the Act 2019, no direction can be issued to the respondents to permit the petitioner to fill up vacancy of five Assistant Teachers in the institution in question and to approve the appointment of such Assistant Teachers as may be selected by the petitioner. 13. However, looking into the necessity of selection and appointment of teaching and non teaching employees in non Government aided institutions under the provisions of the Act, 2019 and the relevant Rules, it appears necessary that the State Government should expeditiously take steps for enforcement of the Act, 2019 to make functional the Commission for selection and recommendation for appointment of teaching and non teaching Employees. This Court hopes and trusts that the State Government shall complete the entire exercise and issue necessary notification for enforcement of the Act, 2019 very expeditiously preferably within 15 days, if not issued so far, and shall also make efforts for appointments as expeditiously as possible so that institutions in need may get teaching and non teaching staff. 14. With the aforesaid observations, the writ petition is disposed of. 15. A copy of this order shall be given to the learned Chief Standing Counsel free of cost, for communication to the State Government for necessary compliance.