Allahabad High Court
Anu Srivastava vs State Of U.P. Through Prin. Secy. ... on 15 November, 2018
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 23 Case :- SERVICE SINGLE No. - 4042 of 2015 Petitioner :- Anu Srivastava Respondent :- State Of U.P. Through Prin. Secy. Madhyamik Shiksha Lko. & O Counsel for Petitioner :- Virendra Kumar Dubey Counsel for Respondent :- C.S.C.,Pradeep Kumar Verma Hon'ble Irshad Ali,J.
1. Heard learned counsel for the petitioner and learned Standing Counsel appearing on behalf of respondent no. 1, 2, 3 and 4.
2. By means of the present writ petition, the petitioner has prayed for issuance of writ of mandamus directing the respondents to make payment of salary to the petitioner regularly pursuant to her appointment dated 18.7.2013 on the post of Assistant Teacher and arrears of salary from the month of December, 2013 till date.
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 rider imposed 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 teachers.
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 specifying Teachers Eligibility Test qualification.
9. It appears that Manager of the Institution without verifying the correctness of the fact issued an advertisement on 2.7.2013 disclosing T.E.T. qualification as essential qualification for selection and appointment on the post of Assistant Teacher, Primary Section. The Manager of the institution intimated to the District Inspector of Schools that in the advertisement issued inviting applications, T.E.T. qualification was prescribed for the selection on the post of Assistant Teacher in Primary Section. The 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, she joined the Institution and since then, she is discharging her duties in the Institution in question.
11. The petitioner was paid salary till November, 2013 and thereafter, salary was stopped.
12. 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 constituted under the Government Order dated 19.12.2000. In support of his submission, he placed reliance upon a Government Order dated 20.8.2015, wherein it has been provided that in regard to the Teachers appointed in a minority institution, matter is not required to be placed for concurrence of payment of salary. 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.
13. He further placed reliance upon the Judgment dated 11.5.2015 passed in Writ-A No.8748 of 2010 (Km Saiyada Siddiqui and others Vs. 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."
14. Learned Standing Counsel and Sri Pradeep Kumar Verma, learned counsel for the respondents 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.
15. 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.
16. On perusal of the material on record, it is transpired that after grant of approval to initiate the selection proceeding, advertisements were issued as per Regulation 17 of Chapter-II of the Regulations framed under U.P. Intermediate Education Act, 1921, wherein it has been provided that vacancies shall be advertised in one English newspaper and one Hindi newspaper. The Manager of the institution issued advertisement in two daily newspapers, one in English, Indian Express and other in Hindi, Swatantra Bharat. Upon perusal of the aforesaid two advertisements, it is found that there is stipulation in regard to requirement of T.E.T. qualification, therefore, the submission advanced by the learned counsel for the petitioner that in the advertisement there was stipulation of required qualification as per the Regulations framed under the Act of 1921, has substance and is liable to be accepted. The District Inspector of Schools only on relying the complaint and without going through the contents of advertisement, proceeded to issue the letter on 14.6.2013, whereby direction was issued to the Manager of the institution to verify the fact and then advertise the vacancies again specifying the T.E.T. qualification and subsequently, when this material was brought in his knowledge that in the advertisement there is stipulation of required qualification, 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 contentions on behalf of the respondents that once there was an advertisement issued afresh inviting applications by fixing a date for submission of application form there was no occasion on the part of the District Inspector of Schools to accord approval vide order dated 18.7.2018, is misconceived. The selection proceeding was held by inviting applications by specifying the T.E.T. qualification in the advertisement issued on 14.6.2013.
17. 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 dated 20.8.2015 relied upon by the learned counsel for the petitioner. Relevant portion of the Government reads as under:
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18. 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 Government Order and law laid down by this Court in the above referred judgment.
19. 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, therefore, the finding in this regard recorded in the impugned order is not sustainable in law.
20. 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 vide order dated 18.7.2013. 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 vide order dated 18.7.2013, 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.
21. 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 in spite of remitting the matter for reconsideration, holds that the order of the Regional Level Committee is illegal and is based on non-consideration of relevant material placed before him.
22. Accordingly, the writ petition succeeds and is allowed. The impugned order dated 25.2.2014 is hereby set aside.
23. However, the District Inspector of Schools is directed to ensure payment of salary to the petitioner month by month regularly inasmuch as arrears of salary w.e.f. December, 2013 till the date of passing of this order within a period of 2 months from the date of production of certified copy of this order.
Order Date :- 15.11.2018 Manoj/Gautam