Allahabad High Court
Sarvesh Kumar Yadav vs State Of U.P. And 3 Others on 7 September, 2017
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
RESERVED ON 26.07.2017
DELIVERED ON 07.09.2017
Case :- WRIT - A No. - 25417 of 2014
Petitioner :- Sarvesh Kumar Yadav
Respondent :- State of U.P. and 3 others
Counsel for Petitioner :- Sheo Kinkar Singh,Vineet Kumar Singh
Counsel for Respondent :- C.S.C.,Mohd. Shere Ali,Vijay Bhan Singh
Hon'ble Mrs. Sangeeta Chandra,J.
1. This writ petition has been filed by the petitioner challenging the order dated 29.03.2014 passed by the District Basic Education Officer, Maharajganj rejecting the case for approval of the petitioner's selection as teacher in Siddharth Poorva Madhyamik Vidyalaya, Pipra Rasoolpur, Maharajganj (hereinafter referred to as "Junior High School"). The Junior High School aforesaid is a recognized institution under the Basic Education Act and the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 are applicable to the said institution as also the U.P. Junior High School Payment of Salary of Teachers and Other Employees Act, 1978.
2. The Junior High School was taken under the grant-in-aid list for the payment of salary to its teaching and non-teaching staff with effect from 01.01.2001. Salaries of one Headmaster, six Assistant Teachers, three peons and one clerk were released by the Assistant Director of Basic Education. Aggrieved against the said order the Committee of Management of the Junior High School filed a Writ Petition No. 13960 of 2001 (Committee of Management Vs. State of U.P. and others) claiming entitlement for payment of salary to eight other Teachers in view of the sanctioned classes and strength of students. This writ petition was disposed of by this Court on 11.03.2011.
3. The Secretary (Basic Education) in compliance of the orders passed by this Court considered the claim of Junior High Schools and admitted that in Class - VI, VII and VIIIth there were a total of nine Sections and therefore, 14 Teacher would be said to be entitled for payment of salary. As against this, only six Teacher were being paid salary. Eight other Teacher were entitled to be paid salary from the State Exchequer. However, the Secretary (Basic Education) also found in his order dated 27.07.2011 that the eight Teachers already said to be working in the Junior High School did not possess the minimum eligibility qualification as per the Rules of 1978 and were not liable to be retained in service.
4. In pursuance of the finding recorded by the Secretary (Basic Education) in his order dated 27.07.2011 the Committee of Management terminated the services of these eight Teachers on 07.08.2011, and the termination order was approved by the District Basic Education Officer thereafter. The Committee of Management thereafter sought permission from the District Basic Education Officer for advertisement of 8 posts of Assistant Teachers. The District Basic Education officer, Maharajganj gave permission on 24.08.2011 subject to following the principles of selection applicable to public employment. Consequently, the posts were advertised in two daily newspapers. The nominee of the District Basic Education Officer attended the selection proceedings held by the Committee of Management and submitted his report on 18.09.2011 recommending that selection was held in accordance with the prescribed Rules. The Manager sent papers relating to selection for approval to the District Basic Education Officer, Maharajganj under Rule 10 (4) of the Rules of 1978 on 19.09.2011 and when he did not receive any orders regarding the approval or disapproval from the office of the District Basic Education Officer, Maharajganj under the provisions of Rule 10 (5) (iii) of the Rules of 1978, it was deemed that the selection stood approved and hence appointment letters were issued on 24.10.2011 in pursuance of which the petitioner joined the junior High School on 31.10.2011.
5. Despite repeated letters of Management no orders were passed regarding the approval of petitioner as well as seven other Teachers and therefore, the petitioner filed Writ Petition No. 288 of 2014 which was disposed off by this Court on 07.01.2014 directing the District Basic Education Officer, Maharajganj to consider and decide the matter by a reasoned and speaking order strictly in accordance with law within a prescribed time. The District Basic Education Officer, Maharajganj called the petitioner and the Manager of the Committee of Management who made detailed submissions and gave explanation with regard to the selection of the petitioner and seven other Teachers but the District Basic Education Officer rejected the case for approval on 29.03.2014 with the observation that after Teacher Eligibility Test (TET) became essential qualification, no approval could be granted to the petitioner as he did not possess the prescribed TET qualification.
6. Shri H.N. Singh, learned Senior Counsel assisted by Shri Vineet Kumar Singh appearing for petitioner has pointed out to this Court from the impugned order dated 29.03.2014 that the District Basic Education Officer has merely observed that the papers for grant of approval were received from the Committee of Management in his office on 19.09.2011 and at the same time copy of the Government Order dated 7th of December, 2011 was also received in the office and then the District Basic Education officer vide his letter dated 10th of October, 2011 had referred the matter to the Joint Secretary (Basic Education) for instructions/guidelines with regard to whether approval could be granted in such circumstances? No instructions were received from the government and therefore, it was not possible to grant the approval to the selection of petitioner for payment of salary from the State Exchequer.
7. Learned Senior Counsel, Shri H.N. Singh, has pointed out that till 5th of December, 2012 the passing of TET as an essential qualification was not included in the Rules of 1978. The 16th Amendment to the Rules was notified only on 5th of December, 2012 and the government had issued an order on the same day i.e. on 05.12.2012 explaining the purport of the amended Rules. This Government Order dated 5th of December, 2012 provided that under the Right of Children to Free and Compulsory Education Act, 2009 and Rules framed thereunder in 2011, the Teacher Eligibility Test has been prescribed as an essential qualification for Teachers of Junior Basic and Senior Basic Schools. Under Section 23 (1) of the Right to Education Act, 2009 it has been provided that all those Teachers who did not possess the requisite TET qualification were to obtain the said qualification within five years from the appointed date as notified by the Academic Authority i.e. N.C.T.E. The last date for obtaining such qualification was 31.03.2015.
8. Shri H.N. Singh has pointed out from the pleadings on record that the petitioner had joined the Junior High School on 31.10.2011 and in year 2013 the petitioner had also qualified the Teacher Eligibility Test i.e. much before the last date prescribed for obtaining such qualification.
9. Shri H.N. Singh has also pointed out that as per the Rules of 1978, then prevalent, the selection of petitioner was held strictly in accordance with the Rules and his selection was also recommended for approval by the Block Education Officer, Nautanwa, Maharajganj, who was the nominee of the Basic Education Officer in his report dated 18.09.2011.
10. Shri H.N. Singh has also pointed out that in terms of the order passed by this Court on an earlier occasion, a supplementary counter affidavit has been filed by the Basic Shiksha Adhikari bringing on record the government order dated 07.09.2011 and all other relevant government orders have been brought on record by the petitioner in his supplementary rejoinder affidavit.
11. In the government order dated 07th of September, 2011 a mention has merely been made that after the notification of Right to Education Act, 2009 there is need for holding Teacher Eligibility Test and the standards for holding such tests have been prescribed and the U.P. Madhyamik Shiksha Parishad has been given the responsibility for holding such test. The proposed test was to be held in November, 2011 and the time table for holding the test was also being enclosed with the said letter. The guidelines for conducting the said test were also being enclosed.
12. From a perusal of the said government order it is evident that only the time table and the relevant instructions for holding the Teacher Eligibility Test were prescribed. No Teacher Eligibility Test had been held in September or even October, 2011. The government order dated 7th of September, 2011 was followed by the government order dated 5th of December, 2012 which has been dealt with in detail herein above.
13. Shri H.N. Singh has pointed out from the supplementary rejoinder affidavit filed by the petitioner that the selection of petitioner was held with prior permission of the District Basic Education Officer and the nominee of the District Basic Education Officer was present on 18.09.2011 and the papers were sent for approval which were received in the office of the District Basic Education Officer, admittedly, on 19th of September, 2011. The government order dated 7th of September, 2011 only provided for making preparation for conducting of the Teacher Eligibility Test. Actual amendments in the Rules of 1978 changing eligibility qualification of teachers were made effective only from 05.12.2012, the date when the said amendment was was notified in the Rules of 1978.
14. It has been admitted by the respondents that the Act of 2009 was made effective only from 1st of April, 2010 and the State of U.P. had framed Rules under the Act of 2009 and notified then only on 27th of July, 2011. In pursuance of the Section 23 of the Act of 2009 the 16th Amendment of Rules became effective from 05.12.2012 and could not be given retrospective effect. Even Section 23 of the Act 2009 provided for relaxation in Teacher Eligibility Test qualification for a period not exceeding five years. The State Government had requested and the Central Government had given relaxation up to 31st of March, 2015.
15. It is the case of the petitioner also that the National Council for Teachers Education was notified as Academic Authority by the Central Government under the Act of 2009 and it issued its first notification prescribing the minimum eligibility qualification only on 23rd of August, 2010 and the said notification dated 23rd of August, 2010 was further amended on 29th of July, 2011 and guidelines for conducting the Teacher Eligibility Test were issued by the State Government thereafter on 7th of September, 2011. None of the government orders relied upon by the District Basic Education Officer prohibited the appointment of teachers under the existing Rules.
16. Shri H.N. Singh has further argued that the Act of 2009 and the Rules framed thereunder by the State Government in 2011 could not have put ban on selection of teachers to be held by various Junior High Schools for the vacancies arising in between the notification of the Act in 2009 upto the notification of Rules in 2011 and conducting of first Teacher Eligibility Test in November, 2011. Teaching being an essential service all selections of teachers could not be put on hold merely because of notification of the Act of 2009. It was, thus, clarified by the government order dated 5th of December, 2012 that relaxation for obtaining the minimum Teacher Eligibility Test qualification was extended up to 31st of March, 2015. The petitioner, admittedly, had passed TET examination in 2013.
17. The learned Standing Counsel for the District Basic Education Officer, Maharajganj, Mr. Mohd. Shere Ali, has merely pointed out from the counter affidavit and the supplementary counter affidavit filed on behalf of the Basic Shiksha Adhikari that the Basic Shiksha Adhikari not being sure of how to proceed in the matter, had referred the matter to the Joint Secretary, Basic Education, for relevant instructions. No instructions were received from the government and therefore, no approval could be granted for payment of salary of the petitioner from the State Exchequer.
18. I have considered the rival submissions and I find that the admitted case of the respondents is that till November, 2011 no Teacher Eligibility Test was held in the State of U.P. In such circumstances, the selections held before November, 2011 at least, strictly following the then prevalent Rules of 1978, could not be said to be suffering from any infirmity and therefore, were liable to be approved. Amendment in the Rules prescribing the TET as an essential qualification was notified only on 05.12.2012. The District Basic Education Officer, therefore, could not have withheld the approval to the selection of petitioner and other similarly situated selected candidates only on the basis of the government order/letter dated 7th of September, 2011.
19. For the reasons aforesaid, the order impugned dated 29.03.2014 is set aside and the matter is remanded to the District Basic Education Officer, Maharajganj to consider afresh in the light of the observations made herein above and strictly according to law and pass a reasoned and speaking order thereafter within a period of three months from the date a certified copy of this order is produced before him.
20. The writ petition is allowed to this extent.
Order Date :- 07.09.2017 LBY