Allahabad High Court
Smt. Reetika Puruswani vs State Of U.P. Thru Secy.Secondary ... on 1 November, 2018
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 23 [AFR] Case :- SERVICE SINGLE No. - 6740 of 2017 Petitioner :- Smt. Reetika Puruswani Respondent :- State Of U.P. Thru Secy.Secondary Edu.Deptt. Lucknow & Ors. Counsel for Petitioner :- Anurag Narian Srivastava Counsel for Respondent :- C.S.C.,Shailendra Kumar Mishra Hon'ble Irshad Ali,J.
1. Supplementary affidavit filed today in Court, is taken on record. Record produced today in Court is returned back to the learned Standing Counsel.
2. In the present writ petition, the controversy is in regard to passing of an order by the Regional Joint Director of Education on 3.12.2016 whereby the claim of the petitioner for payment of salary has been rejected on three grounds.
3. Before deciding the controversy, it is necessary to bring certain facts of the case that Baba Thakur Das Inter College is an Institution which has been accorded recognition under the provision of the U.P. Intermediate Education Act, 1921. The provisions of the U.P. High Schools And Intermediate Colleges (Payment Of Salaries Of Teachers And Other Employees) Act, 1971 is applicable to the said Institution.
4. It is the admitted case of the parties that Institution is a Minority Institution, therefore, in view of the embargo under Section 30 of the U.P. Secondary Education Services Selection Barod Act, 1982, the said provision is not applicable to the petitioner's Institution.
5. Five vacancies on the post of Assistant Teacher in Primary Section of attached Intermediate College came into existence due to retirement of Smt. Anita Haswari (retired on 30.06.2009), Smt. Shashi Mulchandani (retired on 30.06.2009) and Smt. Sakuntala Laadkani (retired on 30.06.2011) and also due to death of Smt. Shilpi Singh on 31.01.2010, and death of Kumari Puspa Jetwani on 30.06.2010.
6. The District Inspector of Schools, vide order dated 18.3.2013, granted prior approval to initiate selection proceedings against the aforesaid five vacancies which came into existence in the Institution.
7. In pursuance thereof, on 21.3.2013, vacancies were advertised in the daily newspapers, namely, Indian Express and Swatantra Bharat specifying the qualification prescribed for the appointment. In pursuance to the advertisement issued, the petitioner applied for and the Selection Committee selected the petitioner on the post of Assistant Teacher, Primary Section.
8. Thereafter, papers were submitted before the District Inspector of Schools for grant of approval as required under Section 16 FF of the U.P. Intermediate Education Act, 1921. During pendency of the approval, a complaint was lodged in regard to the selection that in the advertisement, no specification was made in regard to the requirement of Teacher Eligibility Test Qualification, therefore, District Inspector of Schools passed an order on 14.6.2013, whereby a direction was issued to the Manager of the Institution pointing out in regard to the complaint lodged with a further direction that in case the complaint is found correct, he shall initiate fresh selection by issuing an advertisement.
9. It appears that Manager of the Institution without verifying the correctness of the fact issued an advertisement on 2.7.2013 disclosing TET qualification as essential qualification for selection and appointment on the post of Assistant Teacher, Primary Section. In the meantime, District Inspector of Schools realising the mistake and after verifying the genuineness of the complaint, on perusal of the material available on record, came to the conclusion that the complaint lodged against the selection is based on incorrect statement of facts and thereafter, accorded approval vide order dated 18.7.2013 by cancelling order dated 14.6.2013 passed at earlier point in time.
10. After grant of approval, the petitioner was issued an appointment letter on 21.7.2013 and in pursuance thereof, he joined the Institution and since then, he is discharging her duties in the Institution in question.
11. The petitioner was paid salary till November, 2013 and thereafter, salary was stopped. He filed a Writ Petition No.4003 (SS) of 2015 before this Court for issuance of a direction to the respondents for releasing the salary for the post of Assistant Teacher.
12. The writ petition was finally disposed of vide order dated 25.5.2016 with a direction to the Joint Director of Education to ascertain the entitlement of the petitioners of the aforesaid writ petition in regard to payment of salary as also validity of approval granted by the District Inspector of Schools to her appointment and take a decision in this regard within a period of three months from the date a certified copy of this order is produced before him.
13. The Regional Joint Director of Education, in compliance of the order passed in the afore-stated writ petition, decided the issue and rejected the claim of the petitioner for payment of salary of the post of Assistant Teacher in Primary Section. While rejecting the claim of the petitioner, the Regional Joint Director of Education mentioned the following grounds that: (i) the District Inspector of Schools has no power to review his own order of approval, (ii) the matter was not placed before the Regional Level Committee for grant of financial approval under Government Order dated 19.12.2000, therefore, in absence of order of the Regional Level Committee, the petitioner is not entitled to get salary from the State Exchequer and (iii) the procedure of reservation applicable to the Institution of the petitioner has not been followed.
14. In assailing the order dated 3.12.2016 passed by the Regional Level Committee, submission of the learned counsel for the petitioner is that recital in the impugned order in regard to cancellation of order of approval for payment of salary is based on no material and the reason assigned therein is based on non-existent grounds. Next submission of the learned counsel is that findings recorded in regard to non-placing of the claim of the petitioner for disbursement of the salary before the Regional Level Committee is also misconceived. In this regard, Government Order has been issued on 20.08.2015, wherein it has been provided that Government Order issued on 19.12.2013 is not applicable to the Institution governed as Minority Institutions which have been safeguarded under the provision of Article 30(1) of the Constitution of India. Further submission of the learned counsel is that the ground taken in regard to applicability of the reservation in selection on the post of Assistant Teacher is also misplaced. In the Minority Institution, reservation is not applicable. He relied upon Government Order issued on 21.1.1980 which imposes rider in regard to the applicability of reservation in Minority Institution.
15. Learned Standing Counsel and Sri Shailendra Kumar Mishra, learned counsel for the respondent no.6 submitted that once the District Inspector of Schools directed to initiate fresh selection proceedings on the complaint lodged against the initiation of proceeding of selection and in pursuance thereof, an advertisement was issued on 2.7.2013, therefore, there was no justification on the part of the District Inspector of Schools to grant approval vide order dated 18.7.2013 prior to the last date of submission of the application-form. Therefore, the order passed by the Regional Joint Director of Education is just and valid order and does not suffer from any infirmity and illegality.
16. Having heard the rival submissions of the learned counsel for the parties, I perused the material on record and law report relied upon by the learned counsel for the petitioner.
17. On perusal of the material on record, it is transpired that after grant of prior approval to initiate the selection proceedings, advertisement was issued in two newspapers namely Indian Express and Swatantra Bharat. This Court perused the contents of the advertisement and found that there is stipulation in regard to requirement of TET qualification, therefore, the first submission advanced by the learned counsel for the petitioner that the procedure prescribed under law was followed and the selection of the petitioner has been made in accordance with law, has substance. The District Inspector of Schools, taking into consideration this aspect of the matter and after examining the material on record, accorded approval vide order dated 18.7.2018, therefore, the selection proceeding was held by inviting application from eligible and qualified candidates having TET, the prescribed qualification for the selection and appointment on the post of Assistant Teacher of a Primary Section attached to an Intermediate College
18. In regard to the submission advanced that the matter would have been placed before the Regional Level Committee for grant of financial approval for disbursement of salary to the petitioner, I perused the Government Order relied upon by the learned counsel for the petitioner. Relevant portion of the Government reads as under:
"4& vr% of.kZr lexz rF;ksa ds vkyksd esa eq>s ;g dgus dk funs'k gqvk gS fd b.VjehfM,V f'k{kk vf/kfu;e&1921 dh /kkjk &16 p p ds Li"V izkfo/kkuksa ds n`f"Vxr 'kklukns'k la0&15¼l½@15&12&2012 fn0& 25&5&12 rFkk 'kklukkns'k la0&1964@15&12&2012&1601¼404½@2012 Vh0Lkh0 fn0&17&10&12 esa vafdr funsZ'kksa rFkk ek0 U;k;ky; }kjk lanHkZxr fjV ;kfpdkvksa esa ikfjr vkns'kksa ds dze esa vuqnkfur vYila[;d laLFkkvksa rFkk lgk;rk izkIr v'kkldh; fo?kky;ksa ds lEc} izkbejh izHkkx esa f'k{kdksa@ izk/;kidkasa ds fu;qfDr;ksa ds izfrosru vuqeU;rk ds izdj.kksa dks 'kklukns'k fn0&19&12&2000 }kjk xfBr e.Myh; lfefr dks lanfHkZr fd;s tkus dh vko';drk ugha gSA d`i;k rnuqlkj izdj.kkas dk fuLrkj.k vf/kfu;fer O;oLFkk ds vuq:i le;c} :i ls fd;s tkus gsrq leLr tuinh; ,oa e.Myh; vf/kdkfj;ksa ,oa loZlacaf/kr dks ifji+= ds ek/;e ls Li"V funsZ'k tkjh djrs gq;s mDr dh izfr 'kklu dks Hkh miyC/k djkus dk d"V djsaA""
19. On its perusal, it is evident on the face of it that the Government Order dated 19.12.2000 is not applicable to the Minority Institution. He further placed reliance upon the Judgment dated 11.5.2015 passed in Writ-A No.8748 of 2010 titled 'Km Saiyada Siddiqui and others v. State of U.P. and others', wherein this Court, after taking into consideration that whether the Government Order dated 19.12.2000 is applicable to a Minority Institution, or not, has held as under:
"In view of the admission by the State respondents that the Government Order dated 19 December 2000 would not apply to the Minority Institution and since it is also not in dispute that under Section 16 FF, the authority competent to accord approval to the appointment of the teaching and the non-teaching staff in a Minority Institution, is the DIOS, who in the instant case having already held that the selection of the petitioners is against sanctioned post and they possess the requisite qualification and thus, there was no justification on part of the DIOS to refer the matter to the Committee constituted under the Government Order dated 19 December 2000. Accordingly, that part of the order by which the matter has been referred to the Committee stand set-aside. Since the appointment of the petitioners had been found to be made in accordance with the provisions of section 16 FF of the Act, therefore it is directed that the appointment of the petitioners shall be treated to have been made in accordance with law and the DIOS shall pass consequential orders, accordingly, within three months of production of certified copy of this order.
With the aforesaid observations/ directions, the writ petition stands allowed to the extent indicated above."
20. In view of the above, this Court holds that the Government Order dated 19.12.2000 is not applicable to the Minority Institution, therefore, the finding recorded by the Regional Joint Director of Education, on this point, is perverse and contrary to the law laid down by this Court.
21. The next submission is that the reservation is not applicable in Minority Institution. In support of his contention, learned counsel for the petitioner placed reliance upon the Government Order dated 21.01.1980. I perused the Government Order dated 21.01.1980. On its perusal, it is crystal clear that in Minority Institution the provisions of the Uttar Pradesh Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 is not applicable in the Minority Institution, therefore, the finding in this regard recorded in the impugned order is not sustainable in law.
22. In regard to the submission of the learned Standing Counsel that once an order was passed by the District Inspector of Schools on 14.6.2013, in pursuance thereof an advertisement was issued on 2.7.2013 fixing last cut of date for submission of application form on 21.7.2013, then there was no occasion on the part of the District Inspector of Schools to proceed to accord approval under Section 16FF of the Act. As this Court has recorded that the District Inspector of Schools on examination of material on record found that the complaint lodged in regard to non-inclusion of TET qualification based on incorrect statement of facts and thereafter, the order dated 14.6.2013 was cancelled while granting approval, therefore, the submission advanced by the learned Standing Counsel has no substance. Therefore, this Court records that there is no illegality in the order of the District Inspector of Schools in granting approval to the selection of the petitioner on the post of Assistant Teacher, Primary Section of Baba Thakur Das Inter College.
23. On overall consideration of the controversy involved in the present writ petition, Educational Authorities have very limited scope for interference in the selection and appointment on the posts of Principal, Assistant Teacher and other employees of a Minority Institution. The District Inspector of Schools, while examining the material of selection can only examine that whether the person who has been selected is qualified and whether while making the selection, the procedure proscribed under Regulation 17 of Chapter II of the Regulations of U.P. Intermediate Education Act, 1921 is followed, or not. On perusal of the entire material, it is evident that the advertisement of vacancies was issued in one English Newspaper namely Indian Express and another in Hindi Newspaper namely Swatantra Bharat, wherein qualification as required was stipulated and by constituting Selection Committee, the selection of the petitioner was made by the Selection Committee by following procedure prescribed in law, therefore, this Court inspite of remitting the matter for reconsideration, records that the order of the Regional Level Committee is illegal and is based on non-consideration of relevant material placed before him.
24. Accordingly, the order dated 3.12.2016 is set aside. The writ petition succeeds and is allowed. However, District Inspector of Schools is directed to ensure the payment of salary to the petitioner month by month regularly, arrears of salary with effect from December, 2013 till the date of passing of the judgment within a period of two months from the date of production of a certified copy of this order.
Order Date :- 1.11.2018 GK Sinha [Irshad Ali, J.]