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Allahabad High Court · body

2020 DIGILAW 461 (ALL)

Himanshu Tripathi v. State Of U. P.

2020-02-11

IRSHAD ALI

body2020
JUDGMENT : 1. Heard learned counsel for the petitioner, learned standing counsel for respondent Nos.1 and 2, Sri Jai Ram Pandey, learned counsel for respondent Nos.3 and 4 and Sri S.K. Chaubey, learned counsel for the intervener. 2. By means of present writ petition, the petitioner has prayed for issuance of writ of mandamus to the District Basic Education Officer (DBEO) -respondent No.3 to grant approval of selection and appointment dated 20.02.2016 on the post of Clerk of Sri Jawahar Lal Nehru Junior High School, Ghanshyampur, Mirzapur (for short, "institution"). 3. The petitioner claims that Sri Jawahar Lal Nehru Junior High School, Ghanshyampur, Mirzapur is a recognized institution under the provisions of U.P. Basic Education Act, 1972. The provisions of U.P. Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 is applicable to the institution in question. A vacancy on the post of Clerk came into existence in the institution due to death of Sri Haridwar Pandey, clerk of the institution. The Committee of Management sought permission from the DBEO to make appointment of the post of Clerk by issuing advertisement in newspapers inviting applications from eligible and qualified candidates. The DBEO passed an order on 16.09.2015, whereby permission was accorded to issue advertisement. The vacancy was advertised in news papers Dainik Aaj and Jan Sandesh inviting applications from eligible and qualified candidates. 4. It is the case of the petitioner that in pursuance to the advertisement issued, he applied for and the selection committee selected him on the post of Clerk. Papers were submitted before the DBEO for grant of approval to the selection of the petitioner on the post of clerk in view of the provisions contained under Rule 15 of U.P. Recognized Basic Schools (Junior High Schools) (Recruitment Condition of Service of Ministerial Staff and Group D Employees) Rules, 1984 (for short, 'the rules"). 5. It is further case of the petitioner that on 23.02.2016, he was issued appointment letter and in pursuance thereof, he joined in the institution and discharging duties and due to non grant of approval by the DBEO, he has not been paid salary, therefore, the present writ petition has been filed before this court for issuance of writ of mandamus to issue direction to the DBEO to pass appropriate order for grant of approval to the selection and appointment of the petitioner. 6. 6. Learned counsel for the petitioner submitted that under Rule 15 of the aforesaid Rules, the DBEO has been empowered to grant approval to the selection on the post of clerk, therefore, the action on his part in not passing the order suffers from apparent illegality. 7. He next submitted that the DBEO is duty bound to pass the order of approval or refuse to grant approval on the papers submitted by the committee of management after selection. 8. His next submission is that due to non passing of the order, the petitioner is suffering great financial loss and is not able to meet out the hardship of the family. 9. On the other hand, learned Standing counsel for respondent Nos.1 and 2 and Sri Jai Ram Pandey, learned counsel for respondent by filing counter affidavit stated that under the Rules of 1984, ful-fledged procedure has been prescribed in regard to procedure for selection. 10. They further submitted that the procedure prescribed under the rules was not followed, therefore, the selection vitiated in law and does not require approval from the DBEO. They next submitted that the petitioner is claiming that appointment letter was issued on 23.02.2016 which is the date of submission of papers to the DBEO and without granting approval, the appointment letter cannot be issued to him. Therefore, the appointment of the petitioner vitiates in law and does not require interference by this Court. 11. Sri S.K. Chaubey, learned counsel who has filed impleadment application submitted that the post in question came into existence duet to death of clerk late Sri Haridwar Pandey, therefore, his dependent is entitled for appointment on compassionate ground in view of the government orders issued in this regard. Therefore, the selection on the said post is contrary to the government orders applicable to the institution recognized under the provisions of U.P. Basic Education Act, 1972. 12. I have heard the submissions advanced by learned counsel for the parties and perused the material on record. 13. To resolve the controversy involved in the matter, Rule 15 of U.P. Recognized Basic Schools (Junior High Schools) (Recruitment Condition of Service of Ministerial Staff and Group D Employees) Rules, 1984 is being quoted below: "15. Procedure for selection. 12. I have heard the submissions advanced by learned counsel for the parties and perused the material on record. 13. To resolve the controversy involved in the matter, Rule 15 of U.P. Recognized Basic Schools (Junior High Schools) (Recruitment Condition of Service of Ministerial Staff and Group D Employees) Rules, 1984 is being quoted below: "15. Procedure for selection. -(1) The Selection Committee shall, after interviewing such candidates as appear before it on a date 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 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 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 Ministerial staff and Group 'D' employees, 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." 14. (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." 14. Under the aforesaid rule, ful-fledged procedure has been prescribed that how the selection shall be made and in which manner papers shall be submitted to the DBEO in as much as under Clause 5(b)(iii) of Rule 15, it has been provided that in case the DBEO does not pass any order on the papers submitted by the committee of management to accord approval to the selection after expiry of one month's period, it shall be deemed that approval has been granted to the selection made by the selection committee. 15. In the case of the petitioner, papers were submitted on 23.02.2016 and on the same date appointment letter was issued by the committee of management to the petitioner. 16. To resolve the controversy that whether the committee of management can issue appointment letter to the selected candidate without approval of the DBEO, the provisions contained under Rule 16 of U.P. Recognized Basic Schools (Junior High Schools) (Recruitment Condition of Service of Ministerial Staff and Group D Employees) Rules, 1984 is being quoted below: "16. Appointment -Appointment by the Management. -(1) On receipt of communication of approval or as the case may be, on the expiry of the period of one month under clause (iii) of sub-rule (5) of Rule 15, the management shall first offer appointment to the candidate given the first preference by the Selection Committee and, on his failure to join the post, to the candidate next to him in the list prepared by the Selection Committee and on the failure of such candidate also, to the last candidate mentioned in such list. (2) (a) The appointment letter shall be sent under the signature of the Manager by registered post to the selected candidate. (b) The appointment letter shall clearly specify the name of post, the pay scale and the nature of appointment, whether permanent or temporary, and shall also specify that if the candidate does not join within 15 days from the date of receipt of the appointment letter, his appointment shall be cancelled. (c) A copy of the appointment letter shall also be sent to the District Basic Education Officer." 17. (c) A copy of the appointment letter shall also be sent to the District Basic Education Officer." 17. On perusal of the aforesaid two rules, it is apparent that before expiry of one month's period and before granting approval by the DBEO, the committee of management cannot issue appointment letter to the selected candidate. In view of provisions referred herein above, the appointment if any made, in violation of the aforesaid Rules, will be illegal. 18. In the present case, the papers were submitted by the committee of management to the DBEO on 23.12.2016 and on the same date appointment letter was issued to the petitioner. In view of specific provisions prescribed under the aforesaid Rules 15 and 16 of the Rules of 1984, the appointment of the petitioner cannot be termed to be valid. 19. For the reasons recorded above, the prayer made in the writ petition for issuance of direction to the District Basic Education Officer to grant approval of selection dated 20.02.2016 is not found in consonance with the provisions of Rules of 1984. Therefore, this court refuses to exercise discretionary jurisdiction under Article 226 of the Constitution of India. 20. The writ petition lacks merit and is hereby dismissed. 21. However, the committee of management is at liberty to consider the claim of the dependent who appeared as intervener in this petition for appointment on compassionate ground or to proceed to make fresh selection in accordance with the Rules of 1984.