Court No. - 3
Case :- WRIT - A No. - 17958 of 2019
Petitioner :- C/M Khandwari Devi Bal Vidya Mandir Junior High School And Another
Respondent :- State Of U.P. And 02 Others Counsel for Petitioner :- J.P. Singh Counsel for Respondent :- C.S.C.
Hon'ble Saral Srivastava,J.
Heard learned counsel for the petitioner and learned Standing Counsel for respondent Nos.1 to 3.
Despite on several occasion, time has been granted to Standing Counsel to seek instructions in the matter, but the instructions could not be supplied, therefore, the Court proceeded to decide the matter.
The petitioner is the Committee of Management of Khandwari Devi Bal Vidya Mandir Junior High School, Chahniya, District Chandauli. The school is governed under the provisions of U.P. Junior High Schools (Payment of Salaries of Teachers and Other Employees) Act, 1978; the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 and U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Ministerial Staff and Group 'D' Employees) Rules, 1984.
According to the petitioner, 519 students have been enrolled in the Institution. As per Government Order dated 15.01.2019, considering the strength of the students, the teaching staff should be 25 inasmuch as according to the said Government Order, per 35 students, there should be one teacher. The petitioner submitted an application to respondent no.3-District Basic Education Officer, Chandauli on 16.09.2019 whereby it requested for permission to fill the vacant post of Head Master and Assistant Teacher. The request of the petitioner has been rejected by respondent no.3 by order dated 19.10.2019 on the ground that the petitioner has submitted an application after the cut-off date prescribed in the Government Order dated 25.04.2018 for filling up the vacant post. The said order is impugned in the writ petition.
Learned counsel for the petitioner while challenging the said order has contended that the procedure to fill up the vacant post in Junior High Schools is contemplated in U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978. The Management of the Institution is required to fill up the vacancy on the post of Headmaster and Assistant Teacher by 31st July every year. He submits that the reason assigned in the impugned order that the cut-off date prescribed in the Government Order dated 25.07.2018 has passed, therefore, no permission as sought by the petitioner can be granted, is not sustainable in law.
In support of the said submission, learned counsel for the petitioner has relied upon the judgment of this Court in the case of C/M of Nehru Kissan Vidyalaya Junior High School vs. State of U.P. & 2 Ors.
Per contra, learned Standing Counsel contended that since the petitioner has not applied within the time prescribed in the Government Order dated 25.07.2018, therefore, respondent no.3 has rightly refused to accord permission to the petitioner to fill up the vacant post.
I have heard the rival submissions of learned counsel for the parties and perused the record.
The order impugned clearly reflects that permission to fill up the post by respondent no.3 was denied only for the reason that the petitioner has submitted application after cut-off date prescribed in the Government Order dated 25.07.2018.
This Court in the case of C/M of Nehru Kissan Vidyalaya Junior High School (supra) has repelled the contention of the authority where in the application seeking permission was filed after 03.06.2016 i.e. cut-off date provided in the letter dated 06.12.2015. Relevant portion of the judgment is reproduced hereinbelow:-
"It is admitted to the parties that the ban which was imposed by Government order dated 15 March 2012 was on account of the reason that at the relevant time, the exercise for re-determination of the sanctioned strength of the institution was being undertaken. Since the said exercise had been completed, therefore, the ban on appointment was lifted with the issuance of the Government order dated 6 November 2015. Rule 3 (2) contemplates filling of the vacancies within two months of the date when the vacancy comes into existence. The same could not be adhered to because of the ban imposed by the State itself. The circular letter of the Directorate dated 6 November 2015 clearly indicates the anxiety of the Directorate to ensure filling up of the vacant posts by the Management of the institutions, without any further delay, as these posts had remained vacant for considerable time on account of the ban imposed by the State. The circular letter dated 3 June 2016 merely extends the time frame within which the selection process was required to be complete, failing which the letter contemplates action being taken against the concerned District Basic Education Officer and the management. The object of the circular letter dated 3 June 2016, in the opinion of the Court, was to ensure expeditious completion of the selection process. There is no indication in the circular letter dated 3 June 2016 that in case selection process is not completed by the prescribed date, then the management is not entitled to fill up vacant posts. In such view of the matter, this Court is of the opinion that the impugned communications issued by the District Basic Education Officer, in so far as it declines permission to the management to advertise the vacant posts is wholly unsustainable in law and it is accordingly quashed. The matter is remitted back to the third respondent for reconsideration of the request of the management for granting approval to fill up the vacant posts. The aforesaid exercise shall be conducted by the third respondent within a period of six weeks from the date of production of a certified copy of this order."
In view of the aforesaid judgment of this Court, the submission of learned counsel for the petitioner has substance, as the vacant post of Headmaster and Assistant Teacher is to be filled up as per the procedure prescribed under Rule 1978.
Thus, for the reasons given above, the order dated 19.10.2019 passed by respondent no.3-Zila Basic Shiksha Adhikari, Chandauli is not sustainable in law and is, accordingly, set aside. The writ petition is allowed with a direction to respondent no.3-Zila Basic Shiksha Adhikari, Chandauli to revisit the matter and pass the order in the light of the aforesaid judgment of this Court and the Rules of 1978.
Order Date :- 19.12.2019 Ravi Kant