Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 123 (ALL)

Govind Raman Tripathi v. State Of U. P.

2024-01-11

MANJIVE SHUKLA

body2024
JUDGMENT : 1. Heard learned counsel appearing for the petitioner, learned Standing Counsel appearing for the Respondents No.1 to 3 and learned counsel appearing for the Respondent No.4. 2. Petitioner through Writ-A No.11555 of 2019 has challenged the order dated 22.5.2019 passed by the District Basic Education Officer, Shahjahanpur, whereby petitioner’s case for payment of salary of the post of Assistant Teacher has been rejected. 3. Petitioners through Writ-A No. 15498 of 2019 have challenged the order dated 17.7.2019 passed by the District Basic Education Officer, Shahjahanpur, whereby direction has been issued to Manager of the Committee of Management of Sri Vishwanath Junior High School, Shahjahanpur to cancel the appointment of Mr. Govind Raman Tripathi on the post of Assistant Teacher. 4. Petitioner through Writ-A No. 20414 of 2019 has challenged the order dated 19.9.2019 passed by the Director of Education (Basic), U.P., Lucknow, whereby it has been provided that appointment of the petitioner on the post of Assistant Teacher cannot be approved. 5. Since the aforesaid all the writ petitions are related with the approval of the appointment of Mr. Govind Raman Tripathi on the post of Assistant Teacher in Sri Vishwanath Junior High School, Shahjahanpur and all the writ petitions have been connected by the order passed by this court therefore, they are being decided together. 6. Facts of the case, in brief, are that one post of Assistant Teacher in Sri Vishwanath Junior High School, Shahjahanpur (hereinafter referred to as ‘the school’) fell vacant on 30.6.2015. The District Basic Education Officer, Shahjahanpur vide order dated 1.4.2016 granted permission for making appointment on the aforesaid vacant post of Assistant Teacher. An advertisement for the selection and appointment on the post of Assistant Teacher in the school was published on 7.6.2018 in the Newspaper ‘Spasht Awaz’, on 8.6.2018 in the Newspaper ‘Divya Prakash’ and on 10.6.2018 in the Newspaper ‘Pioneer’. The District Basic Education Officer, Shahjahanpur vide order dated 2.6.2018 has appointed Sri Suresh Chandra, Block Education Officer as his nominee in the selection committee for the appointment in question. 7. The selection committee conducted interviews of the candidates and prepared merit list and thereby recommended name of Mr. Govind Raman Tripathi for appointment on the post of Assistant Teacher in the school. The Committee of Management of the school considered the recommendations made by the selection committee in its meeting held on 29.6.2018 and accepted the recommendations. 7. The selection committee conducted interviews of the candidates and prepared merit list and thereby recommended name of Mr. Govind Raman Tripathi for appointment on the post of Assistant Teacher in the school. The Committee of Management of the school considered the recommendations made by the selection committee in its meeting held on 29.6.2018 and accepted the recommendations. The Manager of the Committee of Management of the school vide his letter dated 2.7.2018 forwarded the papers relating to the selection of Mr. Govind Raman Tripathi to District Basic Education Officer, Shahjahanpur for his approval. The District Basic Education Officer, Shahjahanpur vide his letter dated 23.7.2018 responded to the Manager of the Committee of Management of the school and informed that since the strength of the students in the school is very low therefore, the matter has been referred to the Director of Education (Basic), U.P., Lucknow for his guidance and only after the Director of Education (Basic), U.P., Lucknow provides guidance in the matter, the decision over the matter of approval of selection will be taken. 8. The Manager of the Committee of Management of the school vide his letter dated 30.7.2018 submitted his explanation in response to the letter of the District Basic Education Officer, Shahjahanpur dated 23.7.2018 and requested that selection in question be approved so that appointment may be made against the vacant post. Since there was no response by the District Basic Education Officer, Shahjahanpur after the letter dated 23.7.2018, the Manager of the school issued appointment order on 14.8.2018, whereby Mr. Govind Raman Tripathi was appointed on the post of Assistant Teacher in the school. Pursuant to appointment order dated 14.8.2018, Mr. Govind Raman Tripathi joined on the post of Assistant Teacher in the school on 16.8.2018. 9. Since in spite of working of Mr. Govind Raman Tripathi on the post of Assistant Teacher in the school, his salary was not released, he submitted representation to the District Basic Education Officer, Shahjahanpur and in response thereof, the District Basic Education Officer, Shahjahanpur passed an order on 22.5.2019, wherein he has stated that since appointment of Mr. Govind Raman Tripathi on the post of Assistant Teacher has been made without there being mandatory approval of the District Basic Education Officer, Shahjahanpur therefore, the said appointment is illegal and accordingly, it has been held that Mr. Govind Raman Tripathi on the post of Assistant Teacher has been made without there being mandatory approval of the District Basic Education Officer, Shahjahanpur therefore, the said appointment is illegal and accordingly, it has been held that Mr. Govind Raman Tripathi is not entitled for payment of salary from the State exchequer. 10. The order dated 22.5.2019 passed by the District Basic Education Officer, Shahjahanpur has been challenged by Mr. Govind Raman Tripathi by filing Writ-A No.11555 of 2019. 11. While the aforesaid Writ-A No.11555 of 2019 was pending before this court, the District Basic Education Officer, Shahjahanpur has passed another order on 17.7.2019, whereby he directed the Manager of the Committee of Management of the school to cancel the appointment of Mr. Govind Raman Tripathi. The Committee of Management of the school as well as Mr. Rajiv Kumar, Manager of the Committee of Management of the school have filed Writ-A No. 15498 of 2019, whereby they have challenged the aforesaid order dated 17.7.2019. 12. This court while hearing Writ-A No.11555 of 2019 passed an order on 19.8.2018 in the following terms:- “Heard learned counsel for the petitioner, learned Standing Counsel for the respondent no. 1 and Sri Santosh Kumar, learned counsel for the respondent nos. 2 and 3. It appears that the approval sought with respect to the appointment of the petitioner by respondent no.4 has not been granted by the District Basic Education Officer, Shahjahanpur on an opinion that the Director of Education (Basic) has yet not issued any directions with respect to the clarification that had been sought from him. In view of the above, matter requires consideration. Issue notice to the respondent no.4 returnable within four weeks. Steps be taken within one week. In the meantime, respondents may file counter affidavits. List this case on 20.09.2019. In the meanwhile, it is provided that the petitioner may serve a copy of this order to the Director of Education (Basic) within a period of two weeks from today. Upon service being made, the Director of Education (Basic) shall pass appropriate order/directions to the District Basic Education Officer with respect to the clarification that may have been sought by that authority from the said Director with respect to the petitioner's appointment. It is expected that the such direction may be placed on record on the next date fixed.” 13. Upon service being made, the Director of Education (Basic) shall pass appropriate order/directions to the District Basic Education Officer with respect to the clarification that may have been sought by that authority from the said Director with respect to the petitioner's appointment. It is expected that the such direction may be placed on record on the next date fixed.” 13. The Director of Education (Basic), U.P., Lucknow in compliance of the aforesaid order dated 19.8.2019 passed in Writ-A No.11555 of 2019 has passed an order on 19.9.2019, whereby it has been held that strength of the students in the school is very low therefore, as per standards prescribed under Right of Children to Free and Compulsory Education Act, 2009, there is no requirement of appointment of the Assistant Teacher in the school, accordingly petitioner's selection/appointment cannot be approved. 14. Learned counsel appearing for the petitioner has pointed out that the school in question is being run by a Society registered under the Societies Registration Act, 1860 through a validly elected Committee of Management. The school is receiving grant-in-aid from the Government of U.P. The terms and conditions of the appointment and service of the teachers working in the school are governed by the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (hereinafter referred to as ‘the Rules of 1978’). 15. Learned counsel appearing for the petitioner has submitted that Rule 10 of the Rules of 1978 provides the procedure for selection and appointment on the post of Assistant Teacher. He has further submitted that under the aforesaid Rule 10 of the Rules of 1978, after selection, the papers of selection are to be forwarded to the District Basic Education Officer for approval and Rule 10 (5)(iii) of the Rules of 1978 categorically provides that if the District Basic Education Officer does not communicate his decision within one month from the date of receipt of papers under Clause (4), he shall be deemed to have accorded approval to the recommendations made by the selection committee. 15. Learned counsel appearing for the petitioner has argued that the Manager of the Committee of Management of the school forwarded papers relating to the selection of Mr. 15. Learned counsel appearing for the petitioner has argued that the Manager of the Committee of Management of the school forwarded papers relating to the selection of Mr. Govind Raman Tripathi on the post of Assistant Teacher to the District Basic Education Officer, Shahjahanpur on 2.7.2018 and since he has not communicated his decision within one month from the date of receipt of papers, the selection in question stood deemed approved and therefore, after expiry of period of one month from 2.7.2018, the Manager of the Committee of Management of the school has issued appointment order on 14.8.2018 and in pursuance thereof, petitioner has joined on the post of Assistant Teacher in the school on 16.8.2018. 16. Learned counsel appearing for the petitioner has vehemently argued that since selection of the petitioner for appointment on the post of Assistant Teacher in the school stood deemed approved as per provisions made in Rule 10 (5)(iii) of the Rules of 1978 and petitioner with effect from 16.8.2018 is continuously discharging duties of the post of Assistant Teacher in the school, he is entitled for payment of salary form the State exchequer with effect from 16.8.2018. Learned counsel appearing for the petitioner has further argued that the District Basic Education Officer, Shahjahanpur while passing orders dated 22.5.2019 and 17.7.2019 denying payment of salary to the petitioner and directing the Committee of Management of the school to cancel petitioner’s appointment, has acted in gross violation of provisions of the Rule 10 (5)(iii) of the Rules of 1978 accordingly, the said orders are not sustainable in the eyes of law. 17. Learned counsel appearing for the petitioner has also argued before this court that the Director of Education (Basic), U.P., Lucknow has passed order on 19.9.2019 without even considering the fact that the petitioner’s selection on the post of Assistant Teacher stood approved as per provisions of the Rule 10 (5)(iii) of the Rules of 1978 therefore, the said order dated 19.9.2019 cannot sustain in the eyes of law. 18. 18. Learned counsel appearing for the petitioner has thus concluded his arguments and has submitted that since petitioner's selection for appointment on the post of Assistant Teacher in the school stood approved by operation of law i.e. under provisions of the Rule 10 (5)(iii) of the Rules of 1978 therefore, the orders impugned in the writ petitions, are not sustainable in the eyes of law and writ petitions filed by the petitioners are liable to be allowed by this court with a direction to the District Basic Education Officer, Shahjahanpur to release petitioner's salary forthwith along with arrears of salary. 19. Per contra, learned Standing Counsel appearing for the State respondents has submitted that Rule 10 (5)(iii) of the Rules of 1978 provides that if the District Basic Education Officer does not communicate his decision within one month from the date of receipt of papers under clause (4), he shall be deemed to have accorded approval to the recommendations made by the selection committee and in the present case, papers relating to the selection of Mr. Govind Raman Tripathi were forwarded to the District Basic Education Officer, Shahjahanpur on 2.7.2018 and immediately thereafter the District Basic Education Officer, Shahjahanpur communicated his decision on 23.7.2018 to withhold the approval of the selection for the reason that strength of the students in the school is very low and he has sought guidance in the matter from the Director of Education (Basic), U.P., Lucknow therefore, provisions of Rule 10 (5)(iii) of the Rules of 1978 are not attracted and accordingly, selection of Mr. Govind Raman Tripathi for appointment on the post of Assistant Teacher cannot be considered to be deemed approved. 20. Learned Standing Counsel has further invited attention of this court that papers of the selection were forwarded to the District Basic Education Officer, Shahjahanpur on 2.7.2018 and in response thereof, he communicated his decision to withhold the approval and reasons thereof, vide his letter dated 23.7.2018 and thereafter, the Manager of the Committee of Management of the school vide his letter dated 30.7.2018 submitted his response to the reasons given in the letter dated 23.7.2018 and thereafter, without even waiting for expiry of the period of one month from 30.7.2018, the Manager of the Committee of Management of the school straightaway issued appointment order on 14.8.2018 therefore, selection of Mr. Govind Raman Tripathi on the post of Assistant Teacher cannot be treated to be deemed approved under Rule 10 (5)(iii) of the Rules of 1978. 21. Learned Standing Counsel has also submitted before this court that since after submission of the papers on 2.7.2018 relating to the selection, the District Basic Education Officer, Shahjahanpur vide his letter dated 23.7.2018 communicated his decision to withhold the approval of selection for certain reasons and in response thereof, the Manager of the school submitted more information vide his letter dated 30.7.2018 therefore, if the provisions of deemed approval are to be attracted, one month time shall be counted with effect from 30.7.2018, whereas even before one month time appointment order was issued on 14.8.2018 therefore, there is no scope for applying provisions of Rule 10 (5)(iii) of the Rules of 1978 and treating the selection in question to have been deemed approved. 22. Learned Standing Counsel has vehemently argued that since strength of the students in the school is very low and there are sufficient number of teachers working in the school as per norms provided under Right of Children to Free and Compulsory Education Act, 2009 therefore, the District Basic Education Officer, Shahjahanpur as well as the Director of Education (Basic), U.P., Lucknow have disapproved the selection in question and have denied the payment of salary to Mr. Govind Raman Tripathi from the State exchequer. 23. Learned Standing Counsel has thus concluded his arguments and has submitted that provisions of Rule 10 (5)(iii) of the Rules of 1978 are not applicable in the present case and the writ petitions filed by the petitioners being absolutely misconceived are liable to be dismissed by this court. 24. I have considered the rival submissions advanced by the learned counsels appearing for the parties and I find that the case of Mr. Govind Raman Tripathi is that since papers of his selection on the post of Assistant Teacher were forwarded to the District Basic Education Officer, Shahjahanpur on 2.7.2018 and since within one month he did not take decision in respect of approval of the selection therefore, in view of the provisions of the Rule 10 (5)(iii) of the Rules of 1978, his selection stood deemed approved and therefore, petitioner is entitled for payment of salary from the State exchequer with effect from 16.8.2018. For arriving at a conclusion it is necessary to have a brief look of the provisions made in Rule 10 of the Rules of 1978. Rule 10 of the Rules of 1978 is extracted as under:- 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 (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.” 25. (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.” 25. This court finds that Rule 10 (5)(iii) of the Rules of 1978 provides that if the District Basic Education Officer does not communicate his decision within one month from the date of receipt of papers under clause (4), he shall be deemed to have accorded approval to the recommendations made by the selection committee. The word ‘decision’ used in Rule 10 (5)(iii) of the Rules of 1978 can be the decision to approve the selection or the decision to disapprove the selection or the decision to withhold the approval of the selection for certain reasons. 26. This court further finds that papers of the selection of Mr. Govind Raman Tripathi for appointment on the post of Assistant Teacher were forwarded by the Manager of the Committee of Management of the school to the District Basic Education Officer, Shahjahanpur vide his letter dated 2.7.2018 and in response thereof, the District Basic Education Officer, Shahjahanpur promptly communicated his decision to withhold the approval of the selection for the reason that the strength of the students in the school is very low and further he has sought guidance in the matter from the head of the department i.e. Director of Education (Basic), U.P., Lucknow. Once the District Basic Education Officer, Shahjahanpur after 2.7.2018 has communicated his decision to withhold the approval of selection vide his letter dated 23.7.2018, the question of selection having been deemed approved under the provisions of Rule 10 (5)(iii) of the Rules of 1978 does not arise. Even further pursuant to letter of the District Basic Education Officer, Shahjahanpur dated 23.7.2018, the Manager of the Committee of Management of the school has provided certain information in respect of reasons given in the letter dated 23.7.2018, vide his letter dated 30.7.2018 therefore, even if one month time for the purposes of deemed approval is to be counted that will start with effect from 30.7.2018 and before that, the Manager of the Committee of Management of the school has issued appointment order on 14.8.2018 in favour of Mr. Govind Raman Tripathi therefore, the said selection cannot be treated to have been deemed approved by operation of law as provided under Rule 10 (5)(iii) of the Rules of 1978. 27. It is worth consideration that the intention of the rule making authority in providing for deemed approval of the selection under Rule 10 (5)(iii) of the Rules of 1978 is crystal clear that there may be a situation of complete inaction on the part of the competent authority in the matter of approval of the selection, then in that case if one month time has passed from the date of submission of the papers of the selection, the competent authority shall be deemed to have approved the selection, but in the present case after submission of the papers of the selection on 2.7.2018, the District Basic Education Officer, Shahjahanpur considered the entire matter and communicated his decision to withhold the approval for certain reasons therefore, there did not appear any inaction on the part of the District Basic Education Officer, Shahjahanpur, accordingly the deeming clause provided under Rule 10 (5)(iii) of the Rules of 1978 will not come into play. 28. In view of the aforesaid reasons, this court does not find any illegality in the impugned orders dated 22.5.2019, 17.7.2019 and 19.9.2019 therefore, any interference by this court is not warranted. 29. In the result, the writ petitions are dismissed.