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2023 DIGILAW 636 (ALL)

Pradeep Kumar Shukla v. State of U. P.

2023-03-02

RAJAN ROY

body2023
JUDGMENT Rajan Roy, J. Heard Shri Manoj Kumary Pandey, learned counsel for the petitioners, learned Additional Chief Standing Counsel for the State, Shri Prashant Arora, learned counsel for the opposite parties no. 3 and 4 and Shri Jai Narain Mishra, learned counsel for the opposite party no. 5. 2. By means of this writ petition the petitioners have sought a writ of certiorari thereby quashing the order dated 31.12.2019 passed by the Basic Siksha Adhikari, Amethi contained in Annexure No. 26 to the writ petition. A writ of mandamus has also sought to the Basic Siksha Adhikari to issue formal order of approval of appointment of the petitioners on the post of Assistant Teacher (Basic) and to release their salary w.e.f. 07.12.2017 and also to pay their salary along with arrears of salary from the said date with all admissible allowances and increments as and when they fall due. 3. The facts of the case in brief are that a vacancy of Assistant Teacher (Basic) fell vacant in the Institution of opposite party no. 5 on 30.06.2012. Another vacancy on the post of Assistant Teacher (Basic) fell vacant on 31.03.2017. On 18.04.2017 information about these vacancies was sent to the Basic Education Officer, Amethi seeking permission for advertising the same. A reminder was sent on 11.05.2017 and when nothing happened the Committee of Management has filed a writ petition bearing Writ Petition No. 12099(M/S) of 2017 which was disposed of on 29.05.2017. The said writ petition was disposed of with directions to the Basic Education Officer to consider and decide the representation of the Committee of Management within a period of six weeks. The said representation was rejected by the Basic Education Officer on 09.08.2017 vide Annexure No. 5 to the writ petition. This order was challenged by the Committee of Management by means of Writ Petition No. 20786 (M/S) of 2017, in which an order was passed on 05.09.2017 directing the B.S.A. to look into the matter in the light of the law declared by this Court in Writ - A No. 58220 of 2016 and the order dated 19.08.2017 passed in Writ Petition No. 18830 (M/ S) of 2017. In pursuance to the aforesaid the Basic Education Officer realizing the error in his order dated 09.08.2017 withdrew the same vide another order dated 08.09.2017 and asked the Committee of Management to furnish information in Form- 1 to 5, inter alia, as to whether the Management was disputed, details of Teachers working in the Institution subject wise and vacancies in respect thereof and other relevant information along with resolution of the Committee of Management so that the request for being permitted to fill up the post be considered. This letter is annexed as Annexure No. 9 to the writ petition. 4. The petitioners and the opposite party no. 5- Committee of Management claim that they responded to this letter vide letter of the Manager dated 10.09.2017 contained in Annexure No. 1, however, learned counsel for the B.S.A. says that this letter was never received in the Office of the Basic Education Officer and there is no proof of its receipt in the said Office. He also pointed out that even otherwise only some information is mentioned in the said letter of the Manager dated 10.09.2017, but, there is no resolution of Committee of Management annexed therewith nor details of the Teachers working subject wise, therefore, even otherwise, it is not in accordance with demand dated 08.09.2017. According to the petitioners and opposite party no. 5, as the B.S.A. did not respond, therefore, they proceeded to advertise the vacancy on 26.09.2017 in two daily Hindi News Papers i.e. 'AAj' and Voice of Musafir'. These advertisements are annexed as Annexure No. 11 and 12 to the writ petition. 5. Learned counsel for the B.S.A. has pointed out that even this advertisement is not in terms of Rule 7(2) of the U.P. Recognized Basic School (Junior High School) (Recruitment and Conditions of Services of Teachers) Rules, 1978 (hereinafter referred to as 'the Rules, 1978'). There is no mention in this advertisement about minimum requirements for the post and maximum age limit. Most importantly he says that the candidates were required to appear for an interview at the residence of the Manager. 6. Be that as it may, the Committee of Management proceeded to hold the selection and interview was held on 24.10.2017 wherein it is claimed that 9 candidates participated. Annexure No. 14 is the merit list. Most importantly he says that the candidates were required to appear for an interview at the residence of the Manager. 6. Be that as it may, the Committee of Management proceeded to hold the selection and interview was held on 24.10.2017 wherein it is claimed that 9 candidates participated. Annexure No. 14 is the merit list. Annexure No. 15 is the resolution of the Committee of Management dated 25.10.2017 which approved the selection and took a decision to forward the matter to the B.S.A. for seeking his approval. As a consequence of it, it is said that on 28.10.2017, relevant information was sent to the Basic Education Officer seeking his approval in terms of Rule 10(4) of the Rules, 1978. 7. It is pertinent to mention that as per Rule 9 the Selection Committee for the post of Assistant Teacher is to comprise of the Manager, Principal of the Institution where the vacancy exists and the nominee of the Basic Education Officer. It is claimed by the petitioners and opposite party no. 5 that a request for nominating a person for the purposes of selection in question was sent by the Manager of the Institution on 26.09.2017 to the Basic Education Officer, however, learned counsel for the B.S.A. says that this document has never been received in the Office of the B.S.A. and there is no proof of its service upon the B.S.A. 8. Learned counsel for the Basic Education Officer says that though it is claimed that this letter was sent by post but the same has never been received in the Office of the Basic Education Officer. 9. On 30.11.2017 without there being any approval of the B.S.A. the petitioners were allegedly appointed. 10. Annexure No. 20 contains two appointment letters. Shri Prashant Arora, learned counsel for the B.S.A. says that these appointment letters are also not in terms of Rule 11 of the Rules, 1978, as, neither there is any mention of Pay-scale nor copy of appointment letters has been endorsed to the B.S.A. 11. The fact of the matter is that in the selection which was allegedly held by the Committee of Management there was no nominee of the B.S.A. and there are no signatures of any nominee from the B.S.A. on the merit list contained in Annexure No. 14 to the writ petition. The fact of the matter is that in the selection which was allegedly held by the Committee of Management there was no nominee of the B.S.A. and there are no signatures of any nominee from the B.S.A. on the merit list contained in Annexure No. 14 to the writ petition. According to the petitioners' counsel, the required approval was not communicated, therefore, the petitioners filed a writ petition bearing Writ Petition No. 9992 (M/S) of 2019 which was disposed of on 22.10.2019 with a direction to the B.S.A. to pass appropriate order on their representation. In response thereto the impugned order has been passed on 31.12.2019 wherein it has been contended that the entire selection process is vitiated being dehors the Rules of 1978, the Managing Committee itself was disputed at the relevant time, but, no information was sent in this regard by the Manager, the required information in response to a letter of B.S.A. dated 08.09.2013 was never provided. He has referred to Special Appeal No. 144 of 2018 pertaining to the dispute pertaining to the Committee of Management pending before the High Court involving validity of the Managing Committee and Stay by the High Court of the order dated 08.02.2018 passed by Deputy Registrar, Firms Societies and Chits, Faizabad, Division Faizabad. He stated that permission was taken for advertisement of the vacancies and holding the selection, no information was provided to the B.S.A. regarding the appointments. He also referred to Government Order dated 31.10.2019 by which the process of selection and appointment of such posts had been stayed by the State Government in view of impending amendment in the procedure of selection. It has also been stated that the Managing Committee was required to submit requisite documents for being considered for approval of appointment vide letter dated 10.12.2019 within one week but no such documents were submitted. Accordingly, the Basic Education Officer, Amethi has disapproved the appointment of the petitioners, as, the entire process adopted was found by him to be dehors the Rules, 1978. 12. At this stage, learned counsel for the B.S.A. says that on bare perusal of the Resolution dated 25.10.2017 it reveals that though it mentions that quorum is complete but does not contain the signatures of any Members of the Committee of Management except the Manager, therefore, its veracity is itself doubtful. 13. Shri Prashant Arora, learned counsel for the opposite parties no. 13. Shri Prashant Arora, learned counsel for the opposite parties no. 3 and 4 relied upon a judgement by a Co-ordinate Bench dated 12.07.2013 rendered in Writ Petition No. 4407(S/ S) of 2008; Prabhu Dayal v. State of U.P. and Ors. and another decision reported in 2017 (5) ALJ 74; District Basic Education Officer, Meerut v. C/M Adarsh Janta Inter College, Meerut and Anr. in support of his contentions. 14. Learned counsel for the petitioners submitted that two writ petitions were filed by the Committee of Management seeking permission but same was not granted, therefore, the Committee of Management was compelled to proceed to hold the selection and appoint the petitioners, who are duly qualified and have been working since 07.12.2017 in pursuance to their appointment letter dated 30.11.2017, therefore, they are entitled to be paid salary and the B.S.A. is under an obligation to approve the same, as, he is not disapproved their appointment within the time stipulated in Rule 10(5) of the Rules, 1978. He has relied upon judgements reported in 2019 (5) ADJ 583 (LB); Sanjay Kumar Singh v. State of U.P. and Ors., 2019(7) ADJ 250 (LB);Dhirendra Pratap Singh v. State of U.P. and Ors. and (1999) 1 SCC 544 ; Gopal Krishan Rath v. M.A.A. Baig (Dead) By LRs. and Ors. 15. The contentions of the learned counsel for the B.S.A. have already been noticed here in above, suffice it to say at this stage that his submission in nutshell is that the entire process of selection and appointment is vitiated on account of non adherence of provisions of Rules 7, 9, 10 and 11 of the Rules, 1978. The Management itself was disputed, therefore, it could not have made such appointments. He also pointed out that now the process of selection has been amended, therefore, if the Committee of Management so desires, it can initiate a process for fresh selection on the vacancies as per the amended Rules. 16. The stand of the Committee of Management represented through Shri Jai Narain Mishra, learned counsel is the same as that of the petitioners. 17. 16. The stand of the Committee of Management represented through Shri Jai Narain Mishra, learned counsel is the same as that of the petitioners. 17. Having heard learned counsel for the parties and perused the records the Court finds that no doubt two writ petitions were filed by the Committee of Management seeking permission for initiating the process for selection and appointment on the two vacant posts of Assistant Teachers (Basic), but, after the Basic Education Officer withdrew his letter dated 09.08.2017 vide his order dated 08.09.2017 and demanded the Committee of Management to furnish requisite information in Form 1 to 5, the same has not been furnished. There is no proof of service of the letter of Manager dated 10.09.2017 contained in Annexure No. 10 in the Office of Basic Education Officer. Even if it is assumed for a moment that the said letter was sent, the same is not in accordance with the information required by the letter of the B.S.A. dated 08.09.2017. The said letter of Manager dated 10.09.2017 does not refer to any Resolution of the Committee of Management, as, ultimately, it is the Committee of Management which is the Appointing Authority, which manages the Institution and without its Resolution the Manager could not have acted on his own. Moreover, the details of Teacher working subject wise was never furnished. Although, in the said letter it is stated that the Management is undisputed the claim of the Basic Education Officer based on the documents annexed with the counter affidavit is that it was disputed. In this regard, the Court takes notice of an interim order dated 09.04.2018 passed in Special Appeal No. 144 of 2018. Para Nos. 13 and 14 of the said interim order dated 09.04.2018 reads as under:- "13. In the above facts and circumstances, we feel that the election held on 21.08.2016 and as approved by the Deputy Registrar vide impugned order dated 13.02.2018 also deserved to be stayed. 14. Accordingly, as an interim measure it is provided that not only the effect and operation of the judgement and order passed by the learned Single Judge is stayed but also the effect and operation of the order dated 13.02.2018 approving the elections held on 21.08.2016 is also stayed." 18. 14. Accordingly, as an interim measure it is provided that not only the effect and operation of the judgement and order passed by the learned Single Judge is stayed but also the effect and operation of the order dated 13.02.2018 approving the elections held on 21.08.2016 is also stayed." 18. The Manager who initiated the process of selection in this case, it is said that he was elected in the election held on 21.08.2016 and it is the same election which was stayed by the High Court albeit on 09.04.2018. In the year 2017 the dispute was pending before the Registrar but an incorrect fact was stated by the then Manager in his letter dated 10.09.2017. Most important as already stated there is no proof of this letter having been served in the Office of the Basic Education Officer, therefore, all other contentions, even if, ignored for a moment, this by itself is a factor which goes against the petitioners and the opposite party no. 5. The aforesaid Special Appeal No. 144 of 2018 as informed by learned counsel for the parties, is still pending. 19. Further, the Court finds that Advertisement issued by the opposite party no. 5-Committee of Management in two Newspapers referred here in above, copies of which are annexed as Annexure Nos. 11 and 12, are not in accordance with Rule 7(2) of the Rules, 1978. There is no mention therein of the minimum eligibility conditions/ qualifications required for the vacancies which were being advertised nor the maximum age limit was mentioned. It is also a factor to be noted that the Manager had asked candidates to appear for interview along with documents at his residence at 10.00 a.m. instead of calling them in the Institution. 20. As regards the letter of the Manager dated 26.09.2017 seeking nomination of a person by the B.S.A. for the purposes of selection, here again there is denial of receipt of this letter and there is no proof that the same was ever served in the Office of the Basic Education Officer. Learned counsel for the petitioners and learned counsel for the opposite party no. 5 have not been able to satisfy the Court that the fact was otherwise. As a consequence of it, no person could be nominated by the B.S.A. which is a mandatory requirement in terms of Rule 9 of Rules, 1978. Learned counsel for the petitioners and learned counsel for the opposite party no. 5 have not been able to satisfy the Court that the fact was otherwise. As a consequence of it, no person could be nominated by the B.S.A. which is a mandatory requirement in terms of Rule 9 of Rules, 1978. Nominee of the B.S.A. is one of the three members of the Selection Committee. The selection was conducted in his absence, therefore, it is in violation of Rule 9 of the Rules, 1978. 21. As regards the contention of petitioners' counsel that there are judgements to the effect that if B.S.A. in spite of Committee of Management having asked for nominee, does not appoint, then, the Committee of Management in compelling circumstances can proceed to hold selection, with due respect this Court is of the opinion at least in the facts of this case that there is no proof of the fact that the Committee of Management requested the B.S.A. to appoint the nominee in the first place, secondly, even if assuming that any such request was made, though, it was not, and the B.S.A. did not appoint a nominee, then, the proper course was for the Committee of Management to come to Court, just as it had done earlier, seeking a nomination in the matter so as to protect the validity of the selection and also the fairness and objectivity which is necessary. The object of providing a nominee is that the Management does not act as per its own whims, and extraneous reasons and mala fide intentions do not vitiate the selection. The object is to protect the fairness, objectivity and sanctity of the selection. In taking aforesaid view this Court is supported by a Division Bench judgement reported in 2017 (5) ALJ 74; District Basic Education Officer, Meerut v. C/M Adarsh Janta Inter College, Meerut and Anr. wherein learned Single Judge had allowed the Committee of Management to advertise the vacancies without having the prior permission of the District Basic Education Officer. The Appellate Court held that if the District Basic Education Officer does not act within the time frame prescribed under the rule which was a reference to the Rules, 1978, which are involved in this case, the aggrieved management can approach this Court by means of a writ petition for compelling the authority to perform its part of statutory duty. The Appellate Court held that if the District Basic Education Officer does not act within the time frame prescribed under the rule which was a reference to the Rules, 1978, which are involved in this case, the aggrieved management can approach this Court by means of a writ petition for compelling the authority to perform its part of statutory duty. But in such a writ petition there cannot be an interim order bye-passing the statutory requirements, specifically in the circumstance when the vires of the rules are not under challenge. The rule has to be complied with so long as it stands on record. It further held that the Writ Court at best could have directed the District Basic Education Officer to take appropriate action within the time frame permitted under the Rules, 1978 on the application of the management. It accordingly set-aside the order passed by the Writ Court. In para 19 of the said judgement the Division Bench also took note of the various decisions of Hon'ble the Supreme Court and settled the principle of law that if law requires something to be done in a particular manner it has to be done in that manner or not at all. The ratio of the said decision is that any direction contrary to the statutory rule can not be given by the Writ Court. In this case as already stated if an application had been moved before the B.S.A. for appointment of a nominee and he kept sitting over the matter, although, submission of such application itself has not been proved, the appropriate course of action was for the Committee of Management to have approached the High Court seeking adequate relief and not to proceed to hold the selection without the nominee of the Basic Education Officer, as, there is salutary principle and object behind such provision contained in Rule 9 as already discussed here in above. A similar view has been taken by a Co-ordinate Bench of this Court in its judgement dated 12.07.2013 rendered Writ Petition No. 4407 (S/S) of 2008; Prabhu Dayal v. State of U.P. and Ors. A similar view has been taken by a Co-ordinate Bench of this Court in its judgement dated 12.07.2013 rendered Writ Petition No. 4407 (S/S) of 2008; Prabhu Dayal v. State of U.P. and Ors. The Court held that selection held by a Selection Committee in the absence of specialist to be nominated by the District Basic Education Officer in terms of Rule 14 of the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Ministerial Staff and Group 'D' Employees) Rules, 1984, was not legal. The judgements relied upon by the learned counsel for the petitioners in this regard do not help his cause. Therefore, this argument is also rejected. 22. Now, so far as copy of the Resolution of the Committee of Management dated 25.10.2017 is concerned, it does not bear the signature of any of the Members of the Committee of Management. Moreover, this Resolution has been passed after the selection process was over. There is no prior Resolution of the Committee of Management as was required by the B.S.A. vide his letter dated 08.09.2017. The appointment letters do not mention the pay-scale. They are not even endorsed to the Basic Education Officer as is required under Rule 11 of the Rules, 1978. 23. Even if, the ban imposed by Government Order dated 31.10.2019 is ignored for a moment considering that the selection was initiated prior to it as claimed by the petitioners and the opposite party no. 5 but, the fact of the matter is that the entire process of selection for the reasons already mentioned here in above is vitiated and dehors the Rules, 1978. In view of this, no interference is called for with the impugned order dated 31.12.2019 in the exercise of extraordinary discretionary jurisdiction of this Court under Article 226 of the Constitution of India. The petitioners' appointments were not liable to be approved for the reasons aforesaid. The B.S.A. has rightly declined to approve the same. In view of this, no interference is called for with the impugned order dated 31.12.2019 in the exercise of extraordinary discretionary jurisdiction of this Court under Article 226 of the Constitution of India. The petitioners' appointments were not liable to be approved for the reasons aforesaid. The B.S.A. has rightly declined to approve the same. As, it is the claim of the B.S.A. that letter dated 28.10.2017 was never received in his Office, therefore, no benefit of Rule 7(5) of the Rules, 1978 can be claimed by the petitioners and even otherwise for the reasons already stated here in above as the process of selection was vitiated from the very beginning that is from the stage of issuance of advertisement, therefore, no relief can be granted to the petitioners. 24. It is open for the Committee of Management to initiate a fresh process of selection in accordance with existing rules for filling up the vacancies. 25. Accordingly, the writ petition is dismissed.