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2024 DIGILAW 648 (ALL)

Pramod Kumar v. State of U. P.

2024-02-29

SAURABH SHYAM SHAMSHERY

body2024
JUDGMENT Saurabh Shyam Shamshery, J. This is second round of litigation. Petitioners have approached this Court earlier by way of filing Writ-A No. 18428 of 2018, which was disposed of vide order dated 29.08.2018 and for reference the same is reproduced hereinafter: "The grievance of the petitioners in the writ petition is that despite the Institution having been brought in grant-in-aid vide order dated 21.11.2017, by the authorities concerned, they are not being paid regular salary. After the Institution has been brought within grant-in-aid, the Joint Director of Education (Female) vide letter dated 16.02.2018 has directed the Regional Assistant Director of Education (Basic), Varanasi to pass appropriate orders for payment of salary to the petitioners and other teachers. Sri. Ashok Khare, learned Senior Counsel appearing for the petitioners submit that the direction was issued on 16.02.2018, but till date the Regional Assistant Director of Education (Basic), Varanasi has not passed the final order in pursuance of the directions dated 16.02.2018 issued by the Joint Director of Education (Female). With the consent of the parties, this petition is finally disposed of with a direction to the Regional Assistant Director of Education (Basic), Varanasi to pass final order in pursuance of the directions issued by the Joint Director of Education (Female) vide letter dated 16.02.2018 within a period of two months." 2. In pursuance of above order, case of petitioners for financial approval was considered, however, it was rejected by means of impugned order dated 19.01.2019. Relevant part of impugned order is mentioned hereinafter: 3. Sri. Himanshu Singh, learned counsel for petitioner submitted that petitioners were appointed as Assistant Teacher in attached primary section of Respondent-Institution on 21.04.2005 and 15.06.2005. Learned counsel further submitted that selection was made in accordance with due procedure after taking prior permission from District Basic Education Officer, Jaunpur and therein selection was approved on 21.04.2004. Learned counsel further submitted that junior section of institution concerned was brought into grant-in-aid in 2017 and thereafter application was forwarded for financial approval. Learned counsel submitted that in garb of consideration for approval, the respondents have conducted entire exercise to verify whether due process was followed or not, which was beyond their powers. Learned counsel further submitted that junior section of institution concerned was brought into grant-in-aid in 2017 and thereafter application was forwarded for financial approval. Learned counsel submitted that in garb of consideration for approval, the respondents have conducted entire exercise to verify whether due process was followed or not, which was beyond their powers. Learned counsel has placed heavy reliance on a judgment passed by Coordinate Bench of this Court in Smt. Shalini and others v. State of U.P. and others, Neutral Citation No. 2023:AHC:129988 and for reference relevant part thereof is mentioned hereinafter: "From the perusal of the order impugned it is clear that the petitioners have been non-suited on the sole ground that they did not possess the eligibility as provided under Rule 9 of the Rules, 1975, however, the applicability of the Rules, 1975 or Rules, 1981 has been disputed by the learned Senior Counsel for the petitioners. Rule 2(b) of the Rules, 1975 defines Junior Basic School and Rule 2(e) of the Rules, 1975 defines "Recognized School" which provide as under:- "(2) This rule and Rule 11 shall come into force at once and the remaining provisions shall come into force on the first day of July, 1975. Definitions.-In these rules, unless the context otherwise requires - (a) "Act" means the Uttar Pradesh Basic Education Act, 1972; (b) "Junior Basic Schools" means an institution other than High Schools or Intermediate Colleges imparting Education up to the V Class; (c) "Board" means the Uttar Pradesh Board of Basic Education constituted under Section 3 of the Act. (d) "District Basic Education Officer" means the District Basic Education Officer appointed by the State Government; (e) "Recognised School" means any Junior Basic School, not being an institution belonging to or wholly maintained by the board or any local body, recognised by the Board before the commencement of these rules for imparting education from Class I to V." Thus for the applicability of Rules, 1975, the following conditions must be fulfilled:- (a) The School must be a Junior High School. (b) Such School must neither belong to the Board of Local Body nor should it be wholly maintained by them. (c) Such School must have been recognized by the Board. (d) Such recognition must have been granted for imparting education from Class I to V. (e) Such recognition must have been granted before the commencement of the Rules. (b) Such School must neither belong to the Board of Local Body nor should it be wholly maintained by them. (c) Such School must have been recognized by the Board. (d) Such recognition must have been granted for imparting education from Class I to V. (e) Such recognition must have been granted before the commencement of the Rules. In Rule 9, the expression "management" has been used and as such the management is supposed to comply with the conditions of recognition. Thus, the irresistible conclusion is that the privately managed and recognized schools are governed by there rules, provided that they are Junior Basic Schools and they are recognized before 20.05.1973. The provisions of Rules, 1975 apply to Junior Basic Schools and not to Junior High School. In the instant case the recognition was granted on 13.07.1990 and the institution is Junior High School. Thus in my opinion the provisions of Rules, 1975 would not apply. Now the next issue is whether the U. P. Basic Education (Teachers) Service Rules, 1981 would apply in the present case. Rule, 3 of the Rules, 1981 provides its applicability. Rule 3 of the Rules, 1981 is quoted below:- "3. Extent of application. - These rules shall apply to: (i) All teachers of local bodies transferred to the Board under Section 9 of the Act; and (ii) all teachers employed for the Basic and Nursery Schools established by the Board." This is an important provisions, because it determines the applicability of these Rules. The 1981 Rules are applicable only to those teachers who are specified in the aforesaid Rule 3. These teachers are classified under two categories - those teachers of the local bodies whose services were transferred to the Board (on 25.07.1972) under section 9 of the Basic Education Act, 1972: and those teachers who were appointed by the Board for Basic or Nursery School after the said date. The Division Bench in the case of Sanjay Kumar Tyagi v. State of U.P. reported in 2005(1) ESC 713 in Para 5 has observed as under:- "5, There are basically two sets of Junior High Schools in the State of U.P. One set is owned and managed by the Board and the other by privately managed recognised Junior High Schools. Separate Rules have been framed for these Junior High Schools in exercise of the powers under Section 19 of the Act. Separate Rules have been framed for these Junior High Schools in exercise of the powers under Section 19 of the Act. The recruitment and conditions of service of teachers in privately managed recognised Junior High Schools is governed by the 1978 Rules whereas the conditions of service of teachers in Junior High School owned and managed by the Board are governed by the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981, (hereinafter referred to as 'the 1981 Rules'). In the instant case we are concerned with the 1978 Rules because the Junior High School in question is privately managed and is not one, which is either owned or controlled by the Board." This Court finds that the impugned order dated 29.10.2010 passed by the Respondent No.5, Finance and Accounts Officer (Basic Education) Farrukhabad is based on the fact that the provisions of Rule 9 of Rules 1975 has not been complied with. The impugned order dated 01.06.2021 and 28.06.2021 have also been passed on the premise that provisions of Rules, 1975 and Rules, 1981 have not been complied with. The other ground taken while passing the impugned order is that the petitioners did not produce any evidence establishing the fact that provisions of Rules 1975 were complied with. In the opinion of the Court, 1975 Rules and 1981 Rules do not get attracted in the present case. It is not the case of the respondents that the appointments have been made over and above the sanctioned strength or is against the ratio of Teacher:Pupil. The Regional Pay Grants Committee in its order dated 26.04.2018 has categorically recorded that according to the Government Order dated 26.06.2015, the requirement of 14 posts is valid. For the reasons stated above, the writ petition succeeds and is accordingly allowed. The orders impugned dated 29.10.2020, 01.06.2021 and 17.06.2021/28.06.2021 are hereby set aside. In the opinion of the Court at the time of granting financial accord after taking the institution in grant-in-aid it is to be seen that the Assistant Teachers possess the requisite qualification as prescribed under the Act and is not required to test the validity of the appointments after a decade. In view of the above, the matter is remitted back to the Regional Pay Grant Committee to decide the matter afresh within four weeks of the production of the certified copy of the order of this Court. In view of the above, the matter is remitted back to the Regional Pay Grant Committee to decide the matter afresh within four weeks of the production of the certified copy of the order of this Court. The writ petition stands allowed with the aforesaid observations." 4. Per-contra Sri. Brijesh Narayan, learned Standing Counsel appearing for State-Respondents and Sri. Hare Ram, Advocate appearing for Respondent-6, have referred following paragraphs of their counter affidavit, which are reproduced hereinafter:- "21. That the contents of paragraph nos.23 to 34 of the writ as stated are not admitted hence denied. In reply thereto it is submitted that in compliance of order dated 29-08-2018 passed by this Hon'ble Court in Writ Petition no.18428 of 2018, the 3 Members' Regional Committee headed by the Regional Assistant Director of Education(Basic), Varanasi Region, Varanasi (respondent no.3) after affording opportunity of hearing to the petitioners as well as Manager of the institution, decided the matter by a detailed, reasoned and speaking order dated 19-01-2019 whereby the demand of the petitioners for payment of salary from the State exchequer was rejected on the ground that their alleged appointments on the post of Assistant Teachers in attached primary section was in violation of U.P. Recognised Basic Schools (Recruitment and Conditions of Service of Teachers and Other Conditions) Rules, 1975 and the alleged approval orders dated 21-04-2004 and 15-06-2004 issued by the then Basic Shiksha Adhikari are forged and manufactured documents because no such approval was accorded by the then Basic Shiksha Adhikari, Jaunpur. It is relevant to submit here that during the course of hearing before the Regional Committee, the petitioners have not submitted the appointment letters issued by the Manager of the institution and have informed that they had not been issued any appointment letters by the management of the institution. Now the petitioners are filing the alleged appointment letters dated 21-04-2004 and 15-06-2005 (as) Annexure Nos 3& 7 respectively to this writ petition) which are forged documents prepared for the purpose of case. 22. That the contents of paragraph no.35, 36 and 37 of the writ petition as stated are not admitted hence denied. Detailed reply in this regard has already been given in preceding paras of this counter affidavit which are reiterated and reaffirmed. 22. That the contents of paragraph no.35, 36 and 37 of the writ petition as stated are not admitted hence denied. Detailed reply in this regard has already been given in preceding paras of this counter affidavit which are reiterated and reaffirmed. However, it is further submitted that the entire selection process, if any, for appointment of the petitioners in primary sections attached to the institution is without following the provisions of Rule 9 of Rules of 1975 and the alleged appointments of the petitioners are not genuine and valid appointment letters but forged and manufactured documents, therefore, the petitioners are not entitled to claim salary from the State exchequer. Under these circumstances, the order dated 19-01-2019 passed by the 3 Members' Regional Committee headed by the Regional Assistant Director of Education(Basic), Varanasi Region, Varanasi (respondent no.3) is wholly legal, just and in accordance with Rules. No ground at all has been made out for interference of this Hon'ble Court under Article 226 of the Constitution of India and the writ petition as presented is devoid of any merits and is liable to be dismissed with costs." 5. Heard learned counsel for parties and perused the material available on record. 6. In order to appreciate the provisions applied at the stage of appointment of petitioners the relevant document is order dated 25.05.2005 passed by District Basic Education Officer, Jaunpur (considering it to be a genuine document submitted by the petitioners) and contents thereof is reproduced hereinafter:- 7. From the above it is crystal clear that appointment of petitioners was made in pursuance of Uttar Pradesh Recognized Basic Schools (Teachers Recruitment and Service Conditions) Rules, 1975 therefore, the argument of learned counsel for petitioners that appointments were not in terms of Rules, 1975 would be contrary to record. 8. Junior section of the Institution concerned brought into grant-in-aid in the year 2017 thereafter application was referred for financial approval. Since finance burden in on State Exchequer therefore, concerned District Basic Education Officer is under a legal obligation to verify, whether appointment of petitioners was genuine and in accordance with law or not. This Court is of the considered opinion that there was no illegality when concerned Committee has scrutinized, whether selection was in accordance with due procedure or not. Since finance burden in on State Exchequer therefore, concerned District Basic Education Officer is under a legal obligation to verify, whether appointment of petitioners was genuine and in accordance with law or not. This Court is of the considered opinion that there was no illegality when concerned Committee has scrutinized, whether selection was in accordance with due procedure or not. In the impugned order some irregularities were pointed out that selection was not in terms of Rules, 1975 and orders of approval dated 21.04.2004 and 15.06.2005, allegedly issued by the then Basic Education Officer, were forged. 9. Document dated 18.04.2004 is a document whereby selection process was conducted but none of members of Selection Committee have put date below their respective signatures, which make the document doubtful. The documents dated 21.04.2004 and 15.06.2005 are the respective appointment letters of petitioners. These appointment letters are brought on record for first time before this Court. I have carefully perused these documents. These documents are on loose sheet (i.e., not on letter head). There are three stamps of Manager of respondent-School. The Manager has put her sign on two stamps but third remained unsigned as well as no date was written below the signatures. All alleged appointment letters are similarly stamped and signed which on face of it are forged. For reference, scanned copy of appointment letters of Petitioner No. 2 (Rishikesh) and Petitioner No. 10 (Amit Mishra) are pasted hereinafter: 10. I have carefully perused the aforesaid documents which are annexed along with this writ petition. The entire selection process is on loose papers without even numbered in continuity. No original documents are placed on record though Respondent-6 is the Committee of Management of School concerned. No original appointment letters have been produced before this Court and as observed above copy of appointment letters placed on record, on face of it, are forged. In aforesaid circumstances since three Members Committee have taken a decision on basis of record that documents produced by petitioners were not genuine and their appointments were creation of fraud, therefore, this Court can not interfere with impugned order since it would put burden on State Exchequer. 11. In aforesaid circumstances facts of this case are distinguishable from the judgment passed in Smt. Shalini (supra). 12. The writ petition is accordingly dismissed.