Court No. - 18
Case :- WRIT - A No. - 9100 of 2018 Petitioner :- C/M Lok Bharti Purva Madhyamik Vidyalaya, Kurriya Kalan And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Prabhakar Awasthi Counsel for Respondent :- C.S.C.,Santosh Kumar
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Prabhakar Awasthi, learned counsel for the petitioners and learned Standing Counsel for State respondents. Shri Santosh Kumar appears for third and fourth respondent.
Regarding delay and laches in approaching this Court by means of present writ petition, averments have been made in para 17 and 18 of the writ petition. The same are bonafide and accepted.
The petitioner-Committee of Management along with its Manager is before this Court assailing the order dated 2.5.2017 passed by District Basic Education Officer, Shahjahanpur denying permission for filling up the post of Clerk in the institution in question.
The record in questions reflects that the matter relates to a Junior High School in the name of "Lok Bharti Purva Madhyamik Vidyalaya, Kurriya Kalan", which is under grant- in-aid from the State Government and the provisions of Uttar Pradesh Junior High School (Payment of Salary to Teachers and Other Employees) Act, 1978 are fully applicable on it. The appointment on the post of clerk in the institution is governed by U.P. Recognized Basic Schools (Recruitment and Conditions of Service of Ministerial Staff and Group "D" Employees) Rules, 1994.
The case of the petitioners is that one post of clerk in the institution is duly sanctioned, which fell vacant on account of retirement of one Angira Prasad Awasthi, who attained the age of superannuation on 31st March, 2014. It is their case that for filling up the vacant post, an application was moved before the third respondent (District Basic Education Officer, Shahjahanpur) to grant permission, which was rejected by order dated 23rd April, 2016 on the ground that by Government Order dated 6th November, 2015 there remains a ban on filling up posts other than teaching posts. The said order was challenged in Writ Petition No.24921 of 2016, which was disposed of on 23.08.2016 with following observations:-
"Heard Sri Prabhakar Awasthi, learned counsel for the petitioners; learned Standing Counsel for respondents 1 and 2; Sri Santosh Kumar for respondents 3 and 4 and perused the record.
Considering the nature of the order that is being passed, learned counsel for the respondents do not pray for time to file counter affidavit and are agreeable that this writ petition be disposed of at this stage itself.
The petitioners before this Court are Committee of Management and Manager, respectively, of an institution named Lok Bharti Purva Madhyamik Vidyalaya, Kurriya Kalan, Shahjahanpur, which is a recognized and aided institution up to the level of Junior High School where payment of salary to its teaching as well as non-teaching staff is paid under the U.P. Junior High School (Payment of Salary to Teachers and Other Employees) Act, 1978 and the appointment on the post of clerk in the institution is governed by U.P. Recognized Basic Schools (Recruitment and Conditions of Service of Ministerial staff and Group "D" Employees) Rules, 1984.
The case of the petitioners is that one post of clerk in the institution is duly sanctioned which fell vacant on account of retirement of one Angira Prasad Awasthi, who attained the age of superannuation on 31st March, 2014. It is their case that for filling up the vacant post, an application was moved before the third respondent (District Basic Education Officer, Shahjahanpur) to grant permission, which was rejected by impugned order dated 23rd April, 2016 on ground that by Government Order dated 6th November, 2015 there remains a ban on filling up posts other than teaching posts.
The contention of learned counsel for the petitioners is that the ban on appointment was initially imposed by Government Order dated 15th March, 2012, which was subsequently relaxed by Government Order dated 15th September, 2014, which has been brought on record as Annexure-SA'1' to the supplementary affidavit. It has been submitted that by Government Order dated 15th September, 2014, 800 posts of Head Master, 1444 posts of Assistant Teacher and 528 posts of Clerk in various junior high schools were allowed to be filled. Subsequently, by Government Order dated 30th December, 2014, it was clarified that the relaxation provided by the Government Order dated 15th September, 2014 would be subject to the condition that the recruitment process would be in accordance with '1978 Act' and '1984 Rules'. It has been submitted that the Government Order dated 6th November, 2015, which has been relied upon by the District Basic Education Officer, Shahjahanpur does not dilute or rescind the earlier Government Orders dated 15th September, 2014 and 30th December, 2014 by which the ban imposed by Government Order dated 15th March, 2012 was relaxed, therefore, the impugned order is vitiated as having been passed in ignorance of the above mentioned government orders.
Sri Santosh Kumar, who appeared on behalf of respondents 2 and 3, has placed before the Court copy of Government Orders dated 4th November, 2015 and 6th November, 2015, respectively.
A perusal of the said Government Order does not indicate that the earlier Government Orders dated 15th September, 2014 and 30th December, 2014 have been rescinded. But whether there are other Government Orders which alter the position or not can be determined by the authorities upon reconsideration of the matter by taking into consideration all the relevant government orders including those on which the petitioners have placed reliance.
In view of the above, this Court considers it appropriate to remand the matter back to the third respondent to take a fresh decision with regards to grant of permission to fill up vacancy on clerical cadre post in the institution concerned.
Accordingly, the order impugned dated 23rd April, 2016, passed by third respondent (District Basic Education Officer, Shahjahanpur) is set aside. The writ petition is disposed of with a direction to the third respondent to pass a fresh order on the prayer of the petitioner seeking permission to fill up vacancy on the post of clerical cadre in the institution, in accordance with law, keeping in mind the Government Orders dated 15th September, 2014 and 30th December, 2014, respectively, apart from other government orders that may be operating in the field. It is made clear that this Court has not expressed any opinion with regard to the existence or continuance of the Government Orders dated 15th September, 2014 and 30th December, 2014, which shall be verified by the third respondent on the basis of record. It is expected that the fresh exercise shall be completed within a period of six weeks from the date of filing of a certified copy of this order."
In compliance of the aforesaid order, the District Basic Education Officer, Shahjahanpur has passed the order impugned denying permission for filling up the post of Clerk .
Shri Prabhakar Awasthi, learned counsel for the petitioners submits that the impugned order is based upon misinterpretation of the circular letter dated 3rd June, 2016 as well as Government Order dated 6th November, 2015. It is submitted that no ban has been imposed on the appointment of Assistant Teacher or Class-III employee against vacant post. On the contrary the intent of the Government Order and the Circular letter dated 3rd June, 2016 fixing 31st July, 2016 as the date by which the selection process was required to be completed was to expedite the process of recruitment on the vacant post. He further makes submissions that any other interpretation to the said stipulation in the circular would render it contrary to the relevant Rules, which governs the appointment of staff in the institution. It is further submitted that the aforementioned Government Order as well as the circular were already tested by this Court in C/M Nehru Kissan Vidyalaya Junior High School v. State of U.P. & Ors., 2017 (2) ESC 919, wherein the Court has considered the letter of Directorate dated 6th November, 2015 and was of the opinion that the same was issued indicating anxiety of the Directorate to ensure filling up the vacant post by the management of the institution without any further delay as these posts had been remained vacant for considerable time on account of ban imposed by the State.
Learned counsel for the petitioners has further made submissions that so far as the posts of Assistant Teachers and clerk in the Junior High School is concerned, there is no ban and this issue has already been clarified time and again by this Court in various writ petitions. In support of his submissions he has placed reliance on the order dated 29.11.2017 in Writ Petition No.52017 of 2017 (C/M Gurunanak Pathshala Kanya J.H.S. & Anr. V. State of U.P. & Ors.) and the order dated 19.12.2017 passed in Writ Petition No.54598 of 2017 (Uttar Pradesh Senior Basic Shikshak Sangh & Anr. V. State of U.P. & Ors.). He has also placed reliance on the order dated 14.3.2018 in Contempt Application (Civil) No.1317 of 2018 (Uttar Pradesh Senior Basic Shikshak Sangh & Anr. V. Sri Devendar Gupta, District Basic Education Officer), whereby detailed order has been passed clarifying the situation. As such it is requested that in view of the aforesaid facts and circumstances the present writ petition is also liable to be allowed in terms of the aforesaid judgment and orders.
On the other hand, learned Standing Counsel appearing on behalf of State respondents and Shri Santosh Kumar appearing for third and fourth respondent submitted that by circular letter dated 3rd June, 2016 the Directorate of Education, Basic, Allahabad extended time limit for completing the selection process upto 31st July, 2016 and it was also directed to the management and the concerned official in case vacant posts are not filled up within the prescribed time, then action would also be taken. In this backdrop, it is also submitted that in the present matter as per the aforesaid circular and the Government Order admittedly the process was not completed by 31st July, 2016 and as such no indulgence is required and the writ petition is liable to be dismissed.
Heard rival submissions and perused the record.
In order to appreciate the controversy in hand it would be relevant to indicate that the similar matter and the aforementioned Government Order and Circular were subject matter of consideration in C/M Nehru Kissan Vidyalaya Junior High School (Supra) in which the Court had proceeded to examine all the relevant Government Orders and circular. In order to appreciate the controversy in hand, it would be relevant to extract the relevant paragraphs of the C/M Nehru Kissan Vidyalaya Junior High School (Surpa) as under:-
"............It is borne out from the record that initially the third respondent granted permission to the institution to fill up the vacant posts of Head Master, Assistant Teacher and clerk by letter dated 30 July 2016. Thereafter, certain complaint was made to the District Basic Education Officer that the President of the Committee of Management had not signed the proposal on basis of which the Management had sought permission to fill up the vacant posts. Acting on the said complaint, the District Basic Education Officer, after coming to the conclusion that the permission was obtained on the basis of fraudulent resolution, revoked the permission granted in respect of the post of Head Master and one Assistant Teacher. By another order dated 2 August 2016, which is also impugned herein, the permission in respect of the post of clerk was also revoked relying on the circular letter dated 3 June 2016 and the Government Order dated 6 November 2015.
According to the petitioner, fresh election took place on 13 October 2016 and in which the petitioner Committee was elected. The signature of the Manager of the petitioner Committee of Management was attested by the District Basic Education Officer on 24 October 2016. Thereafter, the petitioner Committee being a duly recognised Committee, by letter dated 7 November 2016, sought permission to fill up the vacant post of Head Master and Assistant Teacher in the institution. The resolution passed by the Committee of Management of the Institution in that regard dated 28 October 2016 was enclosed alongwith the application dated 7 November 2016. The District Basic Education Officer by impugned communication dated 17 November 2016 declined to accord approval.
The circular letter dated 3 June 2016 has been placed on record alongwith the counter affidavit filed by respondent no.3. In the aforesaid circular letter, which is addressed to the District Basic Education Officers of the State, it has been observed that by letter of the Directorate dated 6 November 2015, permission was granted to fill up the vacant posts within the sanctioned limit by 31 March 2016. It has come to the notice of the Directorate that in various institutions, on account of certain difficulties, selection process could not be completed by the prescribed time and consequently, the time of completing the selection process was extended upto 31 July 2016. The circular letter further states that in case the selection process is not completed in any district, by the prescribed date, the concerned District Basic Education Officer and the management of the institution shall be held responsible for the same. The circular letter further refers to the letter of the Directorate dated 6 November 2015 on basis of which the selection process was required to be completed. The Government Order dated 6 November 2015 states that the ban which was imposed by Government Order dated 15 March 2012 in respect of direct recruitment on the vacant posts in government aided private junior high schools shall stand lifted. It further provides that the process for appointment against the vacant post within the prescribed sanctioned strength is to be completed forthwith. In continuation thereof, the Directorate, Basic Education issued circular letter of the even date. It also states that decision has been taken for granting permission to the Management of the aided private Junior High School to fill up the vacant posts of teaching staff within the prescribed sanctioned norms by 31 March 2016.
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.
The writ petition stands allowed to the extent indicated above."
Under the U.P. Basic Education Act, 1972 and U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Services of Teachers) Rules, 1978, the Basic Education Officer is a statutory authority. It cannot shirk its responsibility only on the basis of some executive orders. The authority has to apply its mind and pass appropriate order while exercising powers conferred upon it under the aforesaid provisions. Moreover the controversy in hand has already been settled by this Court in C/M Nehru Kissan Vidyalaya Junior High School (Supra).
Considering the facts and circumstances of the present case, the Court is of the considered opinion that the Basic Education Officer has failed to pass appropriate order. For the reasoned mentioned above, the order impugned being unsustainable is set aside. The matter is remitted back to the District Basic Education officer, Shahjahanpur to pass appropriate order in accordance with law and in view of the observations made herein above expeditiously and preferably within six weeks from the date of production of certified copy of this order.
The writ petition is allowed accordingly. No order as to costs.
Order Date :- 30.3.2018 SP/