Court No. - 6
Case :- WRIT - A No. - 8075 of 2021 Petitioner :- C/M Janta Kanya Inter College And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Parmatma Nand Ojha,Abhishek Shekhar Ojha,Anurag Kumar Ojha Counsel for Respondent :- C.S.C.
Hon'ble Pankaj Bhatia,J.
Heard learned counsel for the petitioners and Sri Vibhav Dutt Ojha, learned Standing Counsel for the State-respondents.
Despite time being granted by this Court, no counter affidavit has been filed, however, as legal question arises for consideration, no useful purpose would be served by granting further time for filing counter affidavit as such the matter is being decided finally.
The present writ petition has been filed challenging the order dated 16.04.2019, passed by Basic Education Officer, Muzaffarnagar, whereby the financial approval has been refused in respect of appointment made by the petitioners’ Institution.
The facts, in brief, are that the petitioners are running a Junior High School which attached to an Intermediate College. It is stated that the appointment of the teachers in the Institution is governed under the Provisions of Uttar Pradesh Recognized Basic Schools (Junior High School) (Recruitment and Condition of Services of Teachers) Rule, 1978.
It is contended that after retirement of one Assistant Teacher, a request was sent by the petitioners on 24.12.2018 to grant permission to fill up the Assistant Teacher, which was granted by the District Basic Education Officer, Muzaffarnagar on 01.08.2019. In terms of the said permission, vacancies were advertised in the Newspapers and an Officer was also appointed to be present in the interview scheduled on 27.1.2019. On the said date, the interview was held and the documents pertaining to the selection were sent to the Basic Education Officer with a request to grant approval. As no decision was being taken the petitioners approached this Court by filing Writ-A No. 3987 of 2019 which was disposed of on 25.3.2019 with directions upon the respondents to pass appropriate orders.
The said request for grant of approval has been rejected vide order dated 16.4.2019 mainly on the ground of issuance of Government Order on 06.02.2019 which restrains the selection/appointment of teachers in the Junior High School which are covered under the provisions of U.P. Intermediate Education Act, 1921. The impugned order observes that in the light of Government Order dated 06.02.2019, the vacancies have to be filled by the U.P. Secondary Education Service Selection Board and the Committee of Management has no power to fill up the vacancies after the issuance of the said Government Order. Apparently, no fault was found in the impugned order with regard to the appointments made for which the financial approval was sought.
The contention of counsel for the petitioners is that the order is not sustainable in as much as the Government Order relies upon the impugned order dated 06.02.2019 will apply only in respect of prospective vacancies arising after 06.02.2019 whereas, in the present case, the vacancy arises prior to the said date and was filled prior to the said date. He has placed reliance upon the Full Bench Judgement of this Court, passed in Special Appeal (Defective) No. 215 of 2015 (Santosh Kumar Singh vs. State of U.P. and others) decided on 22.7.2015 wherein the following questions were referred before the Full Bench:
“(a) Whether even after the rescission of Removal of Difficulties Orders under Section 33-E of the Uttar Pradesh Secondary Education Services Selection Board Act, 19821 (U P Act No 5 of 1982), with effect from 25 January 1999, the Committee of Management retains the power to make ad-hoc appointment against short term vacancies only because it had published an advertisement for the purpose prior to 25 January 1999;
(b) Whether on enforcement of Section 33-E of the Act rescinding the Removal of Difficulties Orders issued earlier, the Committee of Management has lost all powers to make ad-hoc appointment against short term vacancies;
(c) Whether under Section 16-E of the Intermediate Education Act 19212, there is a power with the Committee of Management to make ad-hoc appointment against short term vacancies and if so then for what period; and
(d) Whether the Division Bench in the case of Subhash Chandra Tripathi Vs State of U P3 has laid down the correct law.”
The Full Bench answered the said questions in the following manner:
“(a) Despite the rescission of the Removal of Difficulties Orders by Section 33-E of U P Act No 13 of 1999 with effect from 25 January 1999, the power of the Committee of Management to make appointments against short term vacancies, where the process of appointment had been initiated prior to 25 January 1999 by the publication of an advertisement, would continue to be preserved;
(b) On the enforcement of the provisions of Section 33-E, the power of a Committee of Management to make ad hoc appointments against short term vacancies would not stand abrogated in a case where the process of selection had been initiated prior to 25 January 1999;
(c) Under Section 16-E of the Intermediate Education Act, 1921, the Committee of Management is empowered to make an appointment against a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding six months or in the case of death, termination or otherwise, of an incumbent occurring during an educational session. An appointment made under sub- section (11) of Section 16-E as provided in the proviso thereto shall, in any case, not continue beyond the end of educational session during which the appointment was made; and
(d) The judgment of the Division Bench in Subhash Chandra Tripathi (supra) is affirmed as laying down a correct interpretation of the judgment in A A Calton (supra).”
Even otherwise from the perusal of the Government Order, which is the basis for passing the impugned order, it does not bear that the same would apply even to vacancies accruing prior to issuance of the Government Order and thus clearly does not have a retrospective effect. Thus, in the light of the Full Bench Judgement of this Court in the case of Santosh Kumar Singh (supra), the order is clearly unsustainable and is set aside and the matter is remanded before the respondent no. 3 to pass fresh orders on the request of the petitioners for grant of approval ignoring the Bar created by Government Order dated 06.02.2019. The said directions shall be complied with by the respondent no. 3 positively within a period of two months, from the date of filing of the copy of this order before the respondent no. 3.
The petition is disposed off in terms of the said direction.
Copy of the order downloaded from the website of Allahabad High Court shall be accepted/treated as certified copy of the order.
Order Date :- 24.9.2021 Puspendra