Allahabad High Court
Satendra Mani Dubey vs District Basic Shiksha Adhikari, Basti ... on 29 May, 2024
Author: Piyush Agrawal
Bench: Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:97295 Reserved on 15.4.2024 Delivered on 29.5.2024 Court No. - 36 Case :- WRIT - A No. - 16783 of 2019 Petitioner :- Satendra Mani Dubey Respondent :- District Basic Shiksha Adhikari, Basti And 3 Others Counsel for Petitioner :- Virendra Singh Counsel for Respondent :- .,C.S.C.,Kapil Kumar Pandey Hon'ble Piyush Agrawal,J.
1. Heard Mr. Virendra Singh along with Mr. Adarsh Singh, learned counsel for the petitioner and learned Additional Chief Standing Counsel for State-respondents.
2. By means of present petition, the petitioner is, praying, inter alia, for the following reliefs:
"(i) Issue a writ or mandamus directing the respondents to pay the salary of assistant teacher in Janta Laghu Madhyamik Vidyalaya Bagdih, Pakari, Basti to petitioner from 1.8.2019 and continue to pay the same whenever it falls due.
(ii) Issue a writ of certiorari and quash the order dated 19.7.2019 passed by Basic Siksha Adhikari, Basti (Annexure No. 9 to the writ petition."
3. Brief facts of the case are that a post of Assistant Teacher was falling vacant in Janta Laghu Madhyamik Vidyalaya Bagdih, Pakari, Basti (herein after referred to as the 'institution), after the retirement of of one Satendra Prakash Tripathi, therefore the committee of management of the institution requested the Basic Siksha Adhikari for grant of permission for selection of the vacant post. Thereafter the District Basic Education Officer has granted permission on 27.7.2018 for filling up the said vacant post and in pursuance thereof advertisement was published in two daily newspapers i.e. Swatandra Bharat and Aaj on 13.8.2018. After receipt of the applications, the management of the institution requested the District Basic Education Officer vide letter dated 15.12.2018 for sending its nominee and in pursuance thereof, Sri Anjani Kumar Singh, Khand Siksha Adhikari, was nominated.
4. Thereafter the selection committee has conducted the interview on 15.12.2018. After adopting due process of selection as well as after obtaining the report of the nominee dated 22.12.2018, the petitioner was selected for the post of Assistant Teacher and placed at serial no. 1 in the merit list. Thereafter the entire papers related to the selection of the petitioner were placed by the committee of the management of the institution before the District Basic Education Officer on 27.12.2018 for his approval.
5. However, some complaint has been made by one Ram Naresh Pandey on which an enquiry was conducted by Khand Siksha Adhikari. A report was submitted on 12.2.2019 in favour of the petitioner; thereafter some queries were made by the District Basic Education Officer pointing out certain discrepancies which were removed.
6. Thereafter since the period of one month after submitting the papers by the management on 21.2.2019, has expired and approval was not given by the District Basic Education Officer, therefore, a letter has been written by the Management of the institution to respondent no.1 as per Rule 10 (5) (iii) of The U.P. Recognised Basic Schools (Junior High Schools) (Recruitment And Conditions Of Service Of Teachers) Rules, 1978 (herein after referred to as 'the Rules of 1978').
7. Thereafter committee of management issued an appointment letter on 22.7.2019 to the petitioner and in pursuance thereof, the petitioner has joined the institution on 1.8.2019 on the post of Assistant Teacher and continuously discharging his duties. On 30.8.2019, the petitioner submitted an application for payment of salary before the respondent no. 1, which has been rejected by order dated 17.9.2019 holding that the approval cannot be given in view of Government Order dated 15.1.2019. Hence the present petition.
8. Learned counsel for the petitioner submitted that after adopting due approval from respondent no.1, the process of selection for filling up the vacant post of Assistant Teacher was started and thereafter the petitioner being suitable for selection on the post of Assistant Teacher and for seeking its approval entire papers were forwarded, however after passing more than a month, the appointment letter was issued in pursuance of Rule 10 (5) (iii) of the Rules, of 1978. He submitted that the impugned order is bad as the Government Order dated 15.1.2019 is not applicable upon the petitioner.
9. Learned counsel for the petitioner further submitted that in the present case, process of selection for filling up the vacant post was started on 27.12.2018, which was before the date of implementation of the Government Order dated 15.1.2019, in such circumstances, the petitioner cannot be dis-entitled for payment of salary from the State exchequer.
10. In support of his submission, learned counsel for the petitioner has relied upon the following judgements of this Court :-
(i) Writ A No. 3763 of 2019 (C/M Janta Purva Madhyamik Vidyalaya and another Vs. State of UP and others) decided on 2.4.2019;
(ii) Writ A No. 10509 of 2019 (C/M Adharsh Janta Madhyamik Vidyalaya and another Vs. State of U.P. and others) decided on 4.3.2020;
(iii) Writ A No. 12539 of 2019 (Ajab Singh Vs. State of U.P. and others) decided on 29.2.2024;
(iv) Writ A No. 14332 of 2023 (C/M Avadhan Singh Junior High School and another Vs. District Basic Education Officer) decided on 3.4.2024.
11. Per contra, learned Additional Chief Standing Counsel for the State respondents has supported the impugned order and submitted that since the Government Order dated 15.1.2019 was implemented before final approval granted to the petitioner by the District Basic Education Officer, respondent no. 1, which is the relevant date for according sanction for payment of salary, therefore in the absence of such approval, no payment of salary can be made to the petitioner from the State exchequer. He relied upon the judgement of Apex Court in the case of State of UP and others Vs. Rachna Hills and others, 2023 0 Supreme (SC) 423 in which it has been held that approval made by the DIOS is mandatory and any proceeding taken prior to it, will not give any right to the petitioner therein. He submitted that issue in hand is squarely covered with the aforesaid decision of Hon'ble the Supreme Court. He prays for dismissal of the present petition.
12. Rebutting to the said submission, learned counsel for the petitioner submitted that the case law referred by the learned ACSC was in respect of the selection and appointment of the teachers as well as head of the institutions in minority institutions as provided under Section 16 FF (3) of UP Intermediate Act, 1921 and Regulation 17 of the Regulations framed under UP Intermediate Act, whereas in the present case, Rule 10 (5) (iii) of the U.P. Recognised Basic Schools (Junior High Schools) (Recruitment And Conditions Of Service Of Teachers) Rules, 1978, is relevant, which are entirely different as well as not analogous. In other words not similar, therefore, the case law relied upon by learned ACSC in Rachna Hills (supra) will not be applicable in the present case.
13. After hearing learned counsel for the parties, the Court has perused the records.
14. Before proceeding further, it is pertinent to quote the relevant Rules as well as section herein below:-
The U.P. Recognised Basic Schools (Junior High Schools) (Recruitment And Conditions Of Service Of Teachers) Rules, 1978: Rule 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.
(Emphasis supplied by this Court) The UP Intermediate Act, 1921: Section 16FF; Minority savings as to minority institutions. - (1) Notwithstanding anything in sub-section (4) of Section 16-E, and Section 16-F, the Selection Committee for the appointment of a Head of Institution or a teacher of an institution established and administered by a minority referred to in clause (1) of Article 30 of the Constitution shall consist of five members (including its Chairman) nominated by the Committee of Management :
Provided 'hat one of the members of the Selection Committee shall, -
(a) in the case of appointment of the Head of an Institution, be an expert selected by the Committee of Management from a panel of experts prepared by the Director;
(b) in the case of appointment of a teacher, be the Head of the Institution concerned.
(2) The procedure to be followed by the Selection Committee referred to in sub-section (1) shall be such as may be prescribed.
(3) No person selected under this section shall be appointed, unless, -
(a) in the case of the Head of an Institution the proposal of appointment has been approved by the Regional Deputy Director of Education; and
(b) in the case of a teacher such proposal has been approved by the Inspector.
(4) The Regional Deputy Director of Education or the Inspector, as the case may be, shall not withhold approval for the selection made under this section where the person selected possesses the minimum qualifications prescribed and is otherwise eligible.
(5) Where the Regional Deputy Director of Education or the Inspector, as the case may be. does not approve of a candidate selected under this section, the Committee of Management may, within three weeks from the date of receipt of such disapproval, make a representation to the Director in the case of the Head of Institution, and to the Regional Deputy Director of Education in the case of a teacher.
(6) Every order passed by the Director or the Regional Deputy Director of Education on a representation under sub-section (5) shall be final.]
15. On bare perusal of Rule 10 (1) and (2) of UP Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 it provides that the selection committee after conducting the interview shall prepare a list of candidates containing their names in order of preference, who found suitable for appointment; the said list shall contained the date of birth, academic qualification and teaching experience and same shall be signed by the members of the selection committee. Further sub (3) provides that the selection committee shall forward the said list along with minutes of the proceedings to the Management and thereafter sub rule (4) provides that the manager shall send a copy of the said list to the District Basic Education Officer within a week from the date of receipt thereof. Sub Rule 5 specifically provides that after due process, the District Basic Education Officer shall accord the approval but if not satisfied, shall return the papers with direction to the selection committee for reconsideration and if the District Basic Education Officer does not communicate the decision within one month from the date of receipt of the papers, it shall be deemed to have accorded the approval to the recommendations made by the selection committee.
16. Rule 16 FF of UP Intermediate Act, 1921 (Minority Savings as to minority Institutions) sub rule (3) specifically provides that no person shall be appointed unless the appointment has been approved by the Regional Deputy Director of Education.
17. On perusal of aforesaid two sections, i.e. one Rule 10 (5) (iii) of Rules of 1978 and the other of Section 16 FF (3) of the Act of 1921, the present controversy has to be determined.
18. It is not in dispute that post of Assistant Teacher fall vacant which was approved for advertisement by the District Basic Education Officer by order dated 27.12.2018. Thereafter process for selection was put to motion. After interview in the presence of nominee made by the District Basic Education Officer, the selection was made and same was forwarded for approval. Some discrepancies were found by the District Basic Education Officer, which were removed. Even after clarifying / removing the discrepancies more than a month was passed but approval order was not passed by the District Basic Education Officer.
19. As per Rule 10 (5) (iii) of the Rules of 1978, the recommendation was deemed to be approved, therefore, the committee had issued the appointment letter to the petitioner. The petitioner joined the service in pursuance of the appointment and continuously discharging his duties but salary has not been paid to him.
20. The State has relied upon the judgement of Apex Court in Rachna Hills and others (supra), relevant part of which is quoted hereunder:-
19. Sub -section (3) of section 16 FF of the Act provides that no person section and proposed to be appointed as a teacher by the Management shall be appointed till the proposal is approved by the DIOS. If the expressions 'no person', s' shall be appointed' and 'unless' employed in sub-section (3) are given their ordinary meaning, which is the foremost of the linguistic canons of construction of legislation, we have no hesitation in holding that appointment is subject to the mandatory approval of DIOS. The process of appointment cannot be said to have been concluded without obtaining the mandatory approval of the DIOS, and as such, there is no right, much less a vested right, of the candidate to be appointed.
23. We have notices that appointments are to be made under Section 16 E of the Act. Section 16F of the Act provides for the constitution and recommendation of Selection Committees and Section 16 FF therein specifically relates to minority institutions. Regulation 18 (1) provides for the time within which an order of appointment is to be issued by a Manager to the selected candidate. According to which, where the recommendation is made by a Selection Committee constituted under sub-section (1) or 92) of Section 16 -F of the Act, an order of appointment is to be issued within 15 days of the receipt of the recommendation of the Selection Committee. Whereas, in the case of an institution referred to in Section 16 -FF of the Act, i.e. a minority institution, as in the instant case, it is to be issued within 15 days of the receipt of the approval of the authority specified therein. Neither Section 16 FF of the Act nor Regulation 18 provides the period within which approval is to be accorded. Further, neither of the two provisions provide for deemed appointment in the event of delay in granting approval. Therefore, unless the approval contemplated under Section 16 FF (3) is accorded, no appointment could take place.
24. In any case, when the relevant statutory provisions, i.e. Section 16 -FF (3) itself makes approval by DIOS mandatory for appointment to the post of teacher, a Regulation made under the Act could not have provided for a 'deemed appointment' Subordinate legislation cannot transcend the prescription of a statutory provisions."
21. In the aforesaid judgement, Hon'ble the Apex Court has specifically held that deemed appointment of Heads of Institution and Teachers in minority institutions cannot be made in view of Section 16 FF (3) of the Act of 1921 whereas the case in hand is governed by the provisions of UP Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 as well as Rule 10 (5) (iii) framed thereunder as referred herein above.
22. In other words Section 16 FF (3) (b) of the Act of 1921, specifically contemplates that the appointment of teacher or Head of the Institution can not be made until and unless approval is granted by the District Inspector of Schools and the approval is mandatory, whereas, Rule 10 (5) (iii) of the Rules of 1978 specifically contemplates that after receiving all the recommendations from the committee of management, if approval order is not passed within a month from the receipt thereof, then it shall be deemed to be approved.
23. Learned counsel for the petitioner has relied upon the judgement of this Court in C/M Avadhan Singh Junior Highs School and another (supra), relevant part of which, is quoted hereunder:
It is not in dispute that the selection process of the Headmaster started much prior to the amendment issued on 04.12.2019 as well as the Government Orders dated 26.09.2019, 31.10.2019 and earlier order dated 07.06.2019. It is also not in dispute that the letter of approval was forwarded after removing all shortcomings much prior to that, but the respondent - District Basic Education Officer, in his wisdom, neither granted approval, nor rejected it and kept pending. As per rule 10(5) (iii) of the Rules of 1978, if the approval is not granted within a month, the same would be treated as deemed approval. The Division Bench of this Court in Special Appeal No. 136 of 2023 has categorically held in paragraph no. 22 that the selection process for the post of Headmaster of the Institution prior to the date of notification and Government Orders would remain unaffected. No material has been brought on record on behalf of the State to show that the judgement & order dated 17.03.2023 passed by the Division Bench of this Court has been reversed or modified by the competent Court.
In view of the peculiar facts & circumstances of the case, the impugned order dated 04.07.2023 passed by the respondent no. 1 - District Basic Education Officer, Gorakhpur cannot be sustained in the eye of law. The same is hereby quashed.
The writ petition succeeds and is allowed.
24. This Court in Writ A No. 11592 of 2021 (Smt. Shali and others Vs. State of UP and others) decided on 6.4.2023 has held as under:-
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.
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 Vs. 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. 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.
25. A Division Bench of this Court in Special Appeal No. 136 of 2023 (District Basic Education Officer and others Vs. Committee of Management, Karwal Devi Kany Laghu Madhyamik Vidhyalaya and others) decided on 17.3.2023 has held that where the selection process was initiated prior to issuance of Government Orders, the same will not come in the way and will operate prospectively.
26. The respondent has not set up a case that the process of appointment was not started on 27.7.2018 when for the first time approval was granted by the District Basic Education Officer for filling up the vacant post of Assistant Teacher, therefore, Government Order dated 15.1.2019 will not of any aid to the respondent.
27. It is not a case of the respondent authority that petitioner have committed any malpractice or colluded with the officers for securing his appointment.
28. Hon'ble the Apex Court in a recent judgement passed in Radhey Shyam Yadav and others Vs. State of UP and others, AIR2024SC 260 has held that even if there is irregularity being committed in the appointment but the appointment cannot be held to be illegal if the same has been made, in accordance with law as well as prescribed rules and procedure, after following the due process of regular appointment i.e. conducting written examination or interview.
29. In view of aforesaid facts and circumstances of the case as well as the law laid down by this Court as well as by the Apex Court, the impugned order dated 19.7.2019 cannot be sustained in the eyes of law and is hereby quashed.
30. In the results, the writ petition is allowed with all consequential benefits to the petitioner.
31. A writ of mandamus is issued to the respondent authority to pay the salary as well as arrears to the petitioner, of which, he is entitled within one month from the date of production of certified copy of this order.
Order Date :- 29.5.2024 Rahul Dwivedi/-