Allahabad High Court
C/M Adarsh Janta Madhyamik Vidyalaya ... vs State Of U P And 2 Others on 4 March, 2020
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 5 Case :- WRIT - A No. - 10509 of 2019 Petitioner :- C/M Adarsh Janta Madhyamik Vidyalaya And Another Respondent :- State Of U P And 2 Others Counsel for Petitioner :- Prabhakar Awasthi Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav Hon'ble Surya Prakash Kesarwani,J.
Heard Sri Prabhakar Awasthi, learned counsel for the petitioners, learned standing counsel for the State respondents and Sri A.K. Yadav, learned counsel for the respondent no. 3.
Briefly stated facts of the present case are that there were three vacancies of Assistant Teachers in the petitioners institution. The petitioners sought permission to fill up those posts and to issue advertisement for that purpose which was granted by the District Basic Education Officer, Prayagraj by order being Letter No. 40278-82 dated 27.12.2018. Thereafter, the petitioners advertised the posts in the largely circulated daily newspapers, namely "Aaj" and "Rastriya Sahara" which was published on 5.1.2019 whereby applications were invited for recruitment on the three vacant posts of Assistant Teachers. The intimation of the advertisement was sent by the petitioners to the District Basic Education Officer, Prayagraj by letter dated 7.1.2019 along with copies of the newspapers containing advertisement. The date for interview was fixed for 27.1.2019. As per the then existing Rules 9 & 10 of the U.P. Recognised Schools (Junior High School) (Recruitment and Conditions of Service of Teachers) Rules, 1978, the District Basic Education Officer was bound to send his representative as nominee for the purposes of interview. The petitioners wrote a letter to the District Basic Education Officer to send his nominee under Rule 9 of Rules, 1978, but instead of sending a nominee, the District Basic Education Officer, Prayagraj passed an order dated 25.1.2019 observing that in the light of the Government Order dated 15.1.2019 further proceedings for recruitment is stayed till receipt of departmental instructions. Consequently, the petitioner has filed the present writ petition praying to quash the impugned order dated 25.1.2019 and for a direction to the District Basic Education Officer, Prayagraj to forthwith send his nominee and permit the petitioner to proceed ahead with the selection.
Several orders were passed by this Court in this writ petition from time to time, but the respondents have not sent any nominee. The respondents have filed affidavits dated 16.10.2019 and 14.1.2020. They took the stand that since the Rules, 1978 have been amended by 7th Amendment Rules, 2019 on 4.12.2019 and also since there is a Government Orders dated 15.1.2019 and 31.10.2019, therefore, the selection process cannot be allowed to be completed.
Learned counsel for the petitioners submits that since the selection process has already started by grant of permission by the respondent no. 3 to fill up the posts and by issuance of advertisement inviting applications and the selection process has been proceeded with, but could not be completed as the respondent no. 3 has not sent his nominee for the interview. Therefore, neither the subsequent Government Order dated 15.1.2019 nor the Government Order dated 31.10.2019 nor the amended provision of Rules, 1978 as amended by 7th Amendment Rules has any application on the facts of the present case.
Sri A.K. Yadav, learned counsel for the respondent no. 3 submits that in view of the Government Orders dated 15.1.2019 and 31.10.2019 and the amended Rules, 1978, the selection process cannot be allowed to be completed by the petitioners.
Learned standing counsel supports the submission made by the learned counsel for the respondent no. 3.
I have carefully considered the submissions of the learned counsels for the parties.
It is undisputed that the process of selection has started by issuance of advertisement published on 5.1.2019 in largely circulated newspapers namely "Aaj" and "Rastriya Sahara" which was issued after the permission dated 27.12.2018 granted by the respondent no. 3. The date for interview was fixed for 27.1.2020. In terms of Rule 9 of the Rules, 1978, the respondent no. 3 was bound to send his nominee, but he deferred it till receipt of instruction from the departmental officer pursuant to the Government Order dated 15.1.2019. Much subsequently the Rules, 1978 have been amended on 4.12.2019.
A Full Bench of this Court in Special Appeal (Defective) No. 215 of 2015 (Santosh Kumar Singh Vs. State of U.P. & others) decided on 22.7.2015 has considered the question of continuing selection process where the process of appointment was initiated by issuing advertiesement before rescision of the removal of Difficulties Order by Section 33-E of the U.P. Act No. 13 of 1999 and held, as under:-
"We consequently answer the reference in the following terms:
(a) Despite the rescission of the Removal of Difficulties Orders by Section 33-E of U P Act No 13 of 1999 with effect from 25 January 1999, the power of the Committee of Management to make appointments against short term vacancies, where the process of appointment had been initiated prior to 25 January 1999 by the publication of an advertisement, would continue to be preserved;
(b) On the enforcement of the provisions of Section 33-E, the power of a Committee of Management to make adhoc appointments against short term vacancies would not stand abrogated in a case where the process of selection had been initiated prior to 25 January 1999;
(c) Under Section 16-E of the Intermediate Education Act, 1921, the Committee of Management is empowered to make an appointment against a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding six months or in the case of death, termination or otherwise, of an incumbent occurring during an educational session. An appointment made under sub-section (11) of Section 16-E as provided in the proviso thereto shall, in any case, not continue beyond the end of educational session during which the appointment was made; and
(d) The judgment of the Division Bench in Subhash Chandra Tripathi (supra) is affirmed as laying down a correct interpretation of the judgment in A A Calton (supra).
The reference to the Full Bench is answered in the aforesaid terms. The special appeal shall now be placed before the appropriate Bench for disposal in the light of this judgment."
Since in the present set of facts, it is undisputed that the process of appointment was initiated on 5.1.2019 i.e. much prior to issuance of the aforesaid Government Orders dated 15.1.2019 and 31.10.2019 and the amendment of the Rules, 1978 on 4.12.2019, therefore, the process of appointment would continue to be preserved under the then existing Rules. The Government Order dated 15.1.2019 which has been made basis to defer nomination by the impugned order dated 25.1.2019, also does not prohibit continuation of appointment process initiated by the Committee of Management after due permission of the departmental authorities.
In view of the aforesaid, the impugned order dated 25.1.2019 cannot be sustained and is hereby quashed. The respondent no. 3 is directed to send his nominee for the purposes of interview on a date which shall be communicated by the petitioners to the respondent no. 3. The process of appointment shall be completed as per unamended provision of Rules 9 & 10 of the Rules, 1978 in the light of the law laid down by the Full Bench in the case of Santosh Kumar Singh (supra).
With the aforesaid direction, the writ petition is disposed off.
Order Date :- 4.3.2020 Arif