Allahabad High Court
Ratan Pal Yadav vs State Of U.P. And 6 Others on 19 August, 2017
Author: Pradeep Kumar Singh Baghel
Bench: Pradeep Kumar Singh Baghel
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 17 Case :- WRIT - A No. - 29221 of 2017 Petitioner :- Ratan Pal Yadav Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Shivendu Ojha,R.K. Ojha Counsel for Respondent :- C.S.C.,Bhanu Pratap Singh Hon'ble Pradeep Kumar Singh Baghel,J.
The petitioner has instituted this writ proceeding for issuance of a writ of certiorari to quash the order dated 28.11.2016 whereby the sixth respondent- Finance and Account Officer in the office of Basic Education Officer, Azamgarh has returned the papers relating to appointment of petitioner no. 3 on the post of clerk.
Brief reference to the factual aspect would suffice.
Purva Madhyamik yalay, Kakrahi Dular Kharagpur, Bilariyaganj,Azamgarh is a recognized Junior High School and receives financial aid from the State Govt. The provisions of U.P. Basic Education Act, 1972, the U.P. Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978 and U.P. Recognized Basic Schools (Junior High School) (Recruitment and Conditions of Service of Ministerial Staff and Group "D" Employees) Rules, 1984 govern the affairs of the institution. The seventh respondent conducts and manages the institution.
It is stated that in the institution one post of clerk is sanctioned. Vacancy occurred in the said post due to retirement of earlier incumbent. The committee of management sought permission from the Basic Shiksha Adhikari for recruitment on the said post. In response to the said request, the Basic Shiksha Adhikari vide his order dated 6.7.2016 accorded permission for the recruitment. Copy of the order of the BSA dated 6.7.2016 is on on record.
In his order the BSA has mentioned names of some widely circulated newspapers, out of them in two newspapers the committee of management was directed to issue advertisement. In compliance of the said communication of BSA, it is stated that committee of management issued advertisement in two newspapers. The BSA has also nominated his nominee for the selection committee.
Pursuant to the said advertisement, the petitioner made an application for the post of clerk. The selection committee selected him. Thereafter papers were sent by the committee of management to the office of BSA for approval.
On 30.6.2016 the BSA has accorded his approval to the appointment of petitioner. Later when salary bill of the petitioner was sent for financial concurrence of the office of BSA, the Finance and Account Officer of his office by the impugned order dated 28.11.2016 declined to accord financial concurrence for payment of salary and has returned the entire papers to the committee of management on the ground that entire selection is illegal and against the circular issued by Director of Education, Basic dated 31.3.2015 wherein a direction was issued that all recruitment of teachers and non teaching staff must be completed by 30.6.2015. There is recital in the impugned order that since selected candidate (petitioner) has joined after 30.6.2015, therefore, appointment is contrary to the circular of the Director. Dissatisfied with the said order, the petitioner has preferred this writ petition.
Sri R.K. Ojha, learned senior counsel for the petitioner submits that appointment of the petitioner has been made with approval of the BSA. After obtaining his permission, the advertisement was made in two newspapers and by following the procedure, the recruitment was made. He further submits that BSA was satisfied regarding validity of the appointment and he has accorded his approval to the petitioner's appointment, hence the Finance and Account Officer in the office of the BSA has no jurisdiction to return the papers of selection on the ground that it is contrary to the circular of the Director. He next submits that the order of the Finance and Account Officer is without jurisdiction as the Finance and Account Officer does not have any power to review the order of the BSA regarding approval granted to the appointment of petitioner. Learned senior counsel lastly urged that under the Scheme of the U.P. Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978 and U.P. Recognized Basic Schools (Junior High School) (Recruitment and Conditions of Service of Ministerial Staff and Group "D" Employees) Rules, 1984, the Finance and Account Officer has not been given any authority to decline his concurrence even though the BSA has given the approval hence the order of the Finance and Account Officer is without jurisdiction. He strenuously urged that the ground mentioned by Account Officer is also non existent. The so called ban order has been found to be illegal by this Court.
Sri Ojha has placed reliance upon judgment of this Court in Committee of Management, Nehru Kissan Vidyalaya Jr. High School Vs. State of U.P. and others, 2017(3) ADJ 503), wherein similar issue has been considered by the Court.
Sri Bhanu Pratap Singh, learned counsel appearing for respondent no. 5 & 6, submits that By the Govt. Order dated 6.11.2015, the State Govt. has relaxed appointment of only teaching staff and no relaxation has been made in respect of non teaching staff. He further submits he has no instructions regarding recruitment of non teaching staff. The said submission has been made by Sri Singh on the basis of instructions which he has received under the seal and signatures of Basic Education Officer, Azamgarh which is taken on record. No other submission has been made.
Learned Standing counsel submits that the State Govt. has given relaxation in respect of class III and IV posts vide Govt. Order dated 15.9.2014. He has produced copy of the said Govt. Order before the Court which is taken on record.
I have heard learned counsel for the parties and perused the record.
It is a common ground that the institution is a recognized one and it receives aid from the State Govt. The provisions of the the U.P. Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978 and U.P. Recognized Basic Schools (Junior High School) (Recruitment and Conditions of Service of Ministerial Staff and Group "D" Employees) Rules, 1984 govern the recruitment and conditions of service of the non teaching staff.
It is not disputed that the post of clerk fell vacant due to retirement of regular incumbent. The committee of management has sought permission from the BSA, who granted the permission specifying some names of the newspapers in which advertisement was to be issued. Following the instructions of the BSA, the committee of management has issued advertisment in two widely circulated newspapers. From the record it also appears that BSA also nominated one Ram Asrey, Khand Shiksha Adhikari as his nominee for the selection committee. After selection papers were sent to the BSA who accorded his approval which is on the record.
In the instructions received by the learned counsel for BSA which is taken on record, the approval has not been denied. The Finance and Account Officer has rejected payment of salary to the petitioner and returned entire papers to the institution on the ground that there is Circular of the Director dated 31.3.2015 stipulating that all selection must be made by 30.6.2015.
The appointment of non teaching staff is governed under the provisions of U.P. Recognized Basic Schools (Junior High School) (Recruitment and Conditions of Service of Ministerial Staff and Group "D" Employees) Rules, 1984. The said Rule gives detailed procedure for the selection. Rule 2(d) of the said Rules, defines "District Basic Education Officer" as under:
"District Basic Education Officer" means the District Basic Education Officer appointed by the State Government and includes the Additional Basic Education Officer (Women)."
Rule 15 of the said Rules deals with procedure for Selection. For the sake of convenience, Rule 15 is extracted below :
"15. Procedure for selection. - (1) The Selection Committee shall, after interviewing such candidates as appear before it on a date 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 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 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 Ministerial staff and Group 'D' employees, 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."
The U.P. Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978 which regulates salary of teaching and non teaching staff, defines "Education Officer" in its section 2(b) as under :
"Education Officer" means the District Basic Education Officer appointed under the U.P. Basic Education Act, 1972 and in relation to Girls' institutions, the District Basic Education Officer(Women) and in each case includes any other officer authorised by the State Government to perform all or any of the functions of the Education Officer under this Act."
Section 5 and 6 of the Act deals with procedure for payment of salary and enforcement of provision and directions respectively.
From a careful reading of the scheme of the Act of 1978 and 1984 Rules, it instantly bring out that statutory provisions elaborately provides the procedure for recruitment and District Basic Education Officer has been defined in both the Act and the Rules as the appropriate authority. In the Act of 1978, "Education Officer" is defined to mean District Basic Education Officer and in the 1984 Rules, "District Basic Education Officer" is the appropriate authority as defined in section 2(d).
An analysis of above provision shows that Finance and Accounts Officer has not been authorised under provisions of both the Statutes to take a decision regarding approval of teaching or non teaching staff. Once the BSA has accorded approval and the appointment/selection was made strictly following the procedure, the Finance and Accounts Officer has no jurisdiction in the matter. One more aspect which is to be taken into account is whether Account Officer can sit over appeal on the decision of BSA. No Government Order or any provision under the relevant statute is brought to my notice. It is apt to note here that any action in breach of legal bounds amounts overstepping the jurisdiction. Hence, I find sufficient force in the submission of Sri Ojha that the impugned order of Finance and Accounts Officer is without jurisdiction.
As regards the next limb of his submission that a circular will not over ride the statute, the Govt. Orders dated 15.3.2012 and 6.11.2015 have been considered by this Court in the case of Committee of Management, Nehru Kissan Vidyalaya case (supra). The relevant part of the said order reads thus :
"It is admitted to the parties that the ban which was imposed by Government order dated 15 March 2012 was on account of the reason that at the relevant time, the exercise for re-determination of the sanctioned strength of the institution was being undertaken. Since the said exercise had been completed, therefore, the ban on appointment was lifted with the issuance of the Government order dated 6 November 2015. Rule 3 (2) contemplates filling of the vacancies within two months of the date when the vacancy comes into existence. The same could not be adhered to because of the ban imposed by the State itself. The circular letter of the Directorate dated 6 November 2015 clearly indicates the anxiety of the Directorate to ensure filling up of the vacant posts by the Management of the institutions, without any further delay, as these posts had remained vacant for considerable time on account of the ban imposed by the State. The circular letter dated 3 June 2016 merely extends the time frame within which the selection process was required to be complete, failing which the letter contemplates action being taken against the concerned District Basic Education Officer and the management. The object of the circular letter dated 3 June 2016, in the opinion of the Court, was to ensure expeditious completion of the selection process. There is no indication in the circular letter dated 3 June 2016 that in case selection process is not completed by the prescribed date, then the management is not entitled to fill up vacant posts. In such view of the matter, this Court is of the opinion that the impugned communications issued by the District Basic Education Officer, in so far as it declines permission to the management to advertise the vacant posts is wholly unsustainable in law and it is accordingly quashed. The matter is remitted back to the third respondent for reconsideration of the request of the management for granting approval to fill up the vacant posts. The aforesaid exercise shall be conducted by the third respondent within a period of six weeks from the date of production of a certified copy of this order."
Hence, in my view,submission of the Sri Bhanu Pratap Singh, learned counsel appearing for BSA that there are various Govt. Orders which have only relaxed appointment of teaching staff, has no force and is rejected.
It is a trite law that executive orders/circulars can supplement provisions of the Act and cannot supplant it. The provisions of the 1978 Act and 1984 Rules are very clear wherein detailed procedure for recruitment has been laid down, according to which if the District Basic Education Officer is not satisfied with the procedure of recruitment, he can return the record to the committee of management. In the present case, the District Basic Education Officer was satisfied that recruitment has been made strictly adhering to the procedure laid down in the Act and the Rules, hence he has accorded approval, therefore, in my view the Finance and Accounts Officer has travelled beyond his jurisdiction by returning papers to the committee of management on the basis of circular of the Director.
Experience reveals that in a large number of cases, the Finance and Account Officer are returning papers on such grounds. If submission of the learned counsel for BSA is accepted that relaxation is only in respect of teaching staff and there is no relaxation in respect of non teaching staff, then it would be difficult to run the institution in absence of clerk.
Generally in Basic Schools only one post of clerk is sanctioned. In the present case, the post of clerk is lying vacant for more than one year. In the instruction no provision from the Government Order has been pointed out, wherein the Finance and Accounts Officer has been authorised to reject the financial concurrence, even though the BSA has accorded the approval.
In case the Finance and Accounts Officer finds that the order of BSA is against the statutory provisions or the Government Orders, he can bring this notice to the BSA, who can pass the appropriate order after affording opportunity to the management and the employee concerned. Said exercise must be done before BSA for taking a decision on the approval, because BSA has no power to review. The Finance and Accounts Officer can not pass an independent order, ignoring the order of BSA as he has done in the present case which has been discussed herein above.
In the ultimate analysis I am of the firm view that Finance and Accounts Officer has overstepped his authority and has illegally made ineffective the order of approval passed by the BSA. Accordingly the impugned order is unsustainable and is quashed. The respondents are directed to pass appropriate order for payment of salary of petitioner in pursuance of BSA's order dated 30.6.2016.
Order Date :- 19.8.2017/SNT Faridul