Court No. - 40
Case :- SPECIAL APPEAL DEFECTIVE No. - 920 of 2020
Appellant :- Abhishek Kumar Yadav Respondent :- State Of U.P. And 5 Others
Counsel for Appellant :- Prabhakar Awasthi,Harendra Yadav Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav,Vinod Kumar Singh
Hon'ble Munishwar Nath Bhandari,J. Hon'ble Rohit Ranjan Agarwal,J.
Order on Exemption Application The application seeking exemption from filing certified copies of the order of the High Court is allowed.
The defect stands cured.
Let a regular number be given to this appeal.
Order on Memo of Appeal By this appeal, a challenge is made to the judgment dated 30.04.2020 by which the writ petition preferred by the appellant was dismissed.
The case has checkered history in reference to the appointment of the petitioner by the Management Committee. The litigation brought by the petitioner and decided by this Court have been narrated extensively by the learned Single Judge in its judgment. The order passed in the earlier writ petition has also been quoted after narration of fact favourable to the petitioner. The writ petition was however dismissed in reference to Rule 14 of U.P. Recognized Basic School (Junior High Schools) (Recruitment and Conditions of Service of Ministerial Staff and Group-D Employees) Rules, 1984 (in short the 'Rules of 1984') and is quoted herein under for ready reference:
“14. Selection Committee- The Management shall constitute a selection committee consisting of :-
(1) Manager
(2) Headmaster of the recognized school in which the appointment is to be made.
(3) A specialist nominated by the District Basic Education Officer who will be from amongst minority in respect of a school established and administered by a minority or from amongst Scheduled Castes in respect of any other school.”
The Rule quoted above requires selection committee consist of special nominee to be nominated by the District Basic Education Officer. The respondent no.5 to the writ petition participated in the selection whereas his nomination was disputed by himself and otherwise Management Committee failed to produce any document to show nomination of respondent no.5 by the District Basic Education Officer. In the light of the aforesaid, the selection conducted by the Management Committee without nomination of specialist by the Basic Education Officer as per Rule-14 of the Rules of 1984 has been held to be illegal.
Learned counsel for the appellant submitted that controversy regarding nomination of a special nominee was never raised by the District Basic Education Officer in the earlier litigations. The earlier litigations were decided by this Court favourable yet approval of the appointment was not given by the competent authority on one or other pretext not accepted by the Court. In the last litigation, when the case was again taken up, a new plea regarding violation of Rule-14 of the Rules of 1984 was raised. In the counter affidavit submitted by the District Basic Education Officer, there was no denial to the fact about nomination of respondent no.5 in the selection committee. In the light of the aforesaid, there was no occasion for the learned Single Judge to infer violation of Rule-14 of the Rules of 1984. It is going contrary to the pleading in the counter affidavit itself. It is more so when the nomination of respondent no.5 was made orally and the record of selection sent to the Basic Education Officer was found missing. This shows malafide of the District Basic Education Officer.
The petitioner was selected and record of the selection shows presence of nominee, who was Birbal Ram. The nominee has signed the selection along with two other members. The prayer is accordingly to cause interference in the judgment passed by the learned Single Judge.
The appeal is supported by respondent no.6 i.e the Management Committee. It is stated that nomination of Birbal Ram was by oral instruction and accordingly he had participated in the selection and signed the proceeding. The respondent no.6 has supported the appellant herein.
We have considered the submission made by learned counsel for the parties and scanned the record carefully.
The facts relevant to the case have been given extensive by the learned Single Judge. It is mainly in reference to the earlier litigation and judgments favourable to the appellant apart from the issue involved in this case. The issue for consideration thereupon was in reference to Rule-14 of the Rules of 1984 and is the ony controversy to be deided. It was alleged that selection committee was not constituted as per Rule-14 of the Rules of 1984. It is not in dispute that Rule-14 of the Rules of 1984 requires nomination of a specialist nominee by the District Basic Education Officer. It is also not in dispute that no written letter by the District Basic Education Officer was produced by either of the side to show nomination of Birbal Ram.
What was stated is about oral nomination. An affidavit was filed by the Birbal Ram himself contending that he was not nominated by the Basic Education Officer. The affidavit aforesaid could not have been ignored by the learned Single Judge only in reference to a counter affidavit of the State Government, where a para to the writ petition pleading nomination of respondent no.5 was not denied. The learned Single Judge has taken note of the affidavit of respondent no.5 and fact that no written document was produced by either of the parties to show nomination of Birbal Ram. It otherwise remain that nomination is not made orally. Thus counter affidavit of Basic Education Officer could not have been read contrary to the specific affidavit given by respondent no.5 denying his nomination by District Basic Education Officer. The petitioner or Management Committee failed to produce any document to prove nomination of respondent no.5. The selection was thus made in violation of Rule-14 of the Rules of 1984. The recommendation of appointment of petitioner was thus not endorsed.
We find no error in the judgment so as to cause interference therein rather endorsed the finding recorded by the learned Single Judge in reference to the violation of Rule-14 of the Rules of 1984. It may be that in the earlier litigation, the fact about violation of Rule-14 of the Rules of 1984 was not brought to the notice of the Court but it does not mean that a defect or non-compliance of the statutory provision can be ignored, if it was not brought to the notice of the Court subsequently. It is more so when allegation of malafide is without any material and impleading District Basic Education Officer as party.
The appeal, accordingly fails and is dismissed.
Order Date :- 13.1.2021 Ashish Pd.