1. Heard Sri R.C. Dwivedi, Advocate, for petitioner and learned Standing Counsel for respondents.
2. By means of this writ petition, petitioner is seeking a writ of certiorari quashing the order dated 23.04.2003 passed by District Basic Education Officer, Maharajganj (hereinafter referred to as "DBEO") holding that there was no vacancy wherein petitioner, Daya Ram Yadav, could have been appointed, hence his claim for salary from State Exchequer is rejected. Petitioner has also sought a mandamus commanding the respondents to pay him salary along with arrears since December' 1998 and onwards.
3. Facts in brief, giving rise to present dispute, are that Jagannath Ram Sunarpati Gupta Junior High School, Sonauli, District Maharajganj (hereinafter referred to as "School") is a Junior High School recognized by Board of Basic Education under the provisions of U.P. Basic Education Act, 1972 (hereinafter referred to as "Act, 1972"). School is also in grant-in-aid and for the purpose of payment of salary to teaching and non-teaching Staff, it is governed by the provisions of U.P. Junior High Schools (Payment of Salaries of Teachers and Other Employees) Act, 1978 (hereinafter referred to as "Act, 1978"). The grant-in-aid has been sanctioned to School by Government Order dated 16.12.1998 with effect from December' 1998. Petitioner claims to have been appointed on 01.07.1977. It was accepted by DBEO by letter dated 01.06.1996 with effect from 01.07.1977 on the ground that appointment was made prior to enforcement of U.P. Recognized Basic Schools (Junior High Schools) Recruitment and Conditions of Service of Teachers) Rules, 1978 (hereinafter referred to as "Rules, 1978"), hence lack of training qualification by petitioner would not be a ground to disqualify him for appointment to the post of Assistant Teacher in a Junior High School. Assistant Director, Basic Education, Gorakhpur (hereinafter referred to as "ADBE" vide letter dated 02.02.1999 also exempted petitioner from B.T.C. Training with effect from 01.09.1994 referring to Government Order dated 21.10.1994 and Director, State Educational Research and Training Council, U.P., Lucknow's letter dated 09.01.1995.
4. When School was brought in grant in aid by Government Order dated 16.12.1998 with effect from 01.12.1998, in order to find out the number of teaching and non teaching staff entitled for salary from Government Exchequer, a report was sought.
5. DBEO vide letter dated 02.11.1999 informed that School was granted temporary recognition in 1979 and permanent in 1984. And at the time of inspection made in 1999, DBEO found following teaching and non teaching staff working in the School:
Srikant Head Master 2 Dwarika Prasad Assistant Teacher 3 Ram Hit Prasad Assistant Teacher 4 Radhey Shyam Assistant Teacher 5 Rohit Lal Assistant Teacher 6 Daya Ram Assistant Teacher 7 Ram Lakhan Assistant Teacher 8 Chhote Lal Peon 9 Ram Niranjan Peon 10 Durga Prasad Peon
6. He also found that only following staff was validly appointed:
Srikant Head Master 2 Rohit Lal Assistant Teacher 3 Dwarika Prasad Assistant Teacher 4 Radhey Shyam Assistant Teacher 5 Ram Hit Prasad Assistant Teacher 6 Ram Niranjan Peon 7 Satya Narain Peon
7. DBEO also held that appointment of Daya Ram and Ram Lakhan as Assistant Teacher and Chhote Lal and Ram Verma as Peon were subsequently regularized.
8. ADBE vide letter dated 31.12.1999 granted permission for payment of salary to those Teachers who were validly appointed and whose appointments were in accordance with Rules, 1978. The list of Teachers who were allowed payment of salary by ADBE's letter dated 31.12.1999 did not contain name of petitioner.
9. Since petitioner was not paid salary, hence he made a representation claiming payment of salary. DBEO sent a letter dated 13.03.2001 to Finance and Accounts Officer, Basic Education informing that ADBE, vide letter dated 31.12.1999 has allowed payment to nine teaching and non teaching Staff and their names are as under:
Srikant Head Master 2 Dwarika Prasad Assistant Teacher 3 Ram Hit Prasad Assistant Teacher 4 Radhey Shyam Assistant Teacher 5 Rohit Lal Assistant Teacher 6 Ramanuj Prasad Clerk 7 Chhote Lal Peon 8 Ram Niranjan Peon 9 Durga Prasad Peon
10. Thereafter, petitioner came to this Court in Writ Petition No. 20628 of 2001 which was disposed vide judgment dated 02.07.2002 directing competent authority to take a decision on petitioner's representation by a reasoned order. Pursuant thereto, DBEO has passed order dated 23.04.2003 rejecting petitioner's representation.
11. Counsel for petitioner submitted that since petitioner was appointed in 1977, therefore, Rules, 1978 are not applicable to him as his eligibility for appointment to the post of Assistant Teacher could not have been examined in the light of Rules, 1978.
12. However, from record, I find that petitioner though claimed to have been appointed on 01.07.1977 but not in the School concerned but on that date he was appointed as Assistant Teacher in a different School i.e. Junior High School, Paniyara, Maharajganj. At that time, the School in question was not even in existence inasmuch it was granted temporary recognition only in 1979 by the Board for running a Junior High School.
13. Petitioner was appointed in the School in question on 01.07.1980. Moreover, there is nothing on record to show that there was any provision for transfer of petitioner from one Junior High School to another Junior High School. Thus appointment of petitioner in the School in question was a fresh appointment. Management also produced papers before DBEO to show that petitioner was working in School since 01.07.1980 and not prior thereto.
14. When School itself was granted recognition in 1979 on temporary basis, appointment in School could have been made only in accordance with Rules, 1978 and not otherwise. Since petitioner was appointed on 01.07.1980, admittedly, he did not possess requisite training qualification as prescribed in Rules, 1978.
15. Rules 4 and 5 of Rules, 1978 prescribing minimum qualification and eligibility for appointment read as under:
"4. Minimum Qualifications.-(1) The minimum qualifications for the post of assistant teacher of recognised school shall be Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or equivalent examination (with Hindi and teacher's training course recognised by the State Government or the Board such as (Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate, or Certificate of Training).
(2) The minimum qualification for the appointment to the post of Headmaster of a recognised school shall be as follows:
(a) A degree from a recognised University or an equivalent examination recognised as such:
(b) A teacher's training course recognised by the State Government or the Board, such as Hindustani Teaching Certificate, Junior Teaching Certificate, Certificate of Training or Basic Teaching Certificate; and
(c) Three years teaching experience in a recognised schools.
5. Eligibility for appointment.- No person shall be appointed as Headmaster or assistant teacher in any recognised school unless-
(a) he possesses the minimum qualification prescribed for such post;
(b) he is recommended for such appointment by the Selection Committee."
16. Rule 5 prohibits appointment of a person as Assistant Teacher in a recognised school unless he possesses minimum qualification enumerated in Rule 4. In the case in hand, admittedly, petitioner did not possess requisite training qualification.
17. Since petitioner did not possess requisite qualification at the time of appointment in the School, question of his exemption from such qualification could not have arisen for the reason that under Rules, 1978 no power has been conferred upon any authority to exempt a person from possessing requisite minimum qualification for appointment and thereby validate his appointment. The question of training or exemption was applicable only to such Teachers who were appointed before enforcement of such statutory rules since after enforcement of Rules, 1978 an appointment of unqualified Teachers is not contemplated. Instead it is prohibited vide Rule 5 of Rules, 1978.
18. This aspect in similar circumstances, in reference of U.P. Recognised Basic Schools (Recruitment and Conditions of Service of Teachers and Other Conditions) Rules, 1975 (hereinafter referred to as "Rules, 1975") was considered in the light of relevant Government Order dated 06.09.1994 by a Division Bench of this Court (in which I was a member) in Special Appeal No. 10 of 2007, State of U.P and others Vs. Shailesh Kumar Dwivedi and others, decided on 17.12.2008. This Court held as under:
"In view thereof, this appeal is disposed of directing the competent authority to consider the case of the petitioners-respondents in the light of two conditions provided in the judgment of the Hon'ble Single Judge, impugned in this appeal, as well as in the light of the conditions provided by the Division Bench in its judgment in the case of Kali Charan Singh Arya (supra). Further, if the petitioners have been appointed after the enforcement of 1975 Rules of 1970 Rules in Junior Primary School or Junior High School, as the case may be, in violation of the provisions thereof and without possessing training qualification, such petitioners cannot be allowed to undergo training pursuant to the Government Order dated 6.9.1994. Thus, only those petitioners-respondents, who fulfill all the aforesaid requirement and directions, shall be allowed to complete their training and their result shall also be declared."
19. Thereafter a recall application was also filed in the aforesaid appeal which was heard at length and decided vide order dated 04.09.2009. With reference to statutory rules this Court noticed contentions of Sri Ashok Khare, learned Senior Advocate and held as under:
"Thus, under the Rules, there is a clear mandate that a person who does not possess requisite qualification shall not be appointed. Therefore, after the enforcement of the above two set of Rules, any appointment, if made on the post of Assistant Teacher in a Primary School governed by the aforesaid Rules, without adhering to the above Rules, is clearly in the teeth of the aforesaid Rules. In the absence of any provision empowering the State Government or any other authority to relax any of the provision pertaining to qualification etc. under the rules, such appointment cannot be said to be valid in law. However, since the appointment of none of the petitioners-respondents were under challenge before us, we did not quash their appointments but while considering the question of the applicability of the Government Order dated 6.9.1994, we have to read the aforesaid Government Order in order to make it valid, consistent with the aforesaid Rules. It is well settled that an executive order which is inconsistent with a statutory rule is invalid and cannot be acted upon. We, therefore, by making the observation that the Government Order dated 6.9.1994 permitting training to such Assistant Teacher, who are working and were appointed before the enforcement of 1975 and 1978 Rules, as the case may be, in the institution governed by the aforesaid Rules respectively, would only be governed by the said Government Order dated 6.9.1994, have tried to harmonize the Rules as well as the said Government Order. The aforesaid Government Order cannot be read in a manner so as to validate appointments made in the teeth of the statutory rules particularly when the Rules do not confer any power of relaxation either on the State Government or any other authority.
The contention that the State Government has not raised any such plea in earlier matters or that during the pendency of the appeal the judgment of the Hon'ble Single Judge has been implemented pursuant to the order passed in the contempt proceeding initiated by the petitioners-respondents would not render the appeal infructuous. We are not impressed that the said subsequent proceeding would amount to rendering the appeal infructuous, inasmuch as, the intra Court appeal has been preferred against the judgment of the Hon'ble Single Judge and the correctness thereof has to be judged by this Court. Merely for the reason that no interim order was passed by this Court and, therefore, during the pendency of the appeal, under the compulsion of the proceeding of contempt initiated by the petitioners-respondents, the appellants acted to implement the judgment of the Hon'ble Single Judge would not deprive the appellants of their right to assail the judgment of the Hon'ble Single Judge before this Court in such manner and to such extent as they find expedient. Any action of compliance in a pending matter, neither would render the statutory remedy meaningless nor the doctrine of res-judicata has any application in such cases. The issue raised before this Court by the learned Standing Counsel while arguing the appeal was legal and it has to be decided by us in the light of the statutory provisions and the exposition of law applicant in this regard.
The correctness of legal principle observed by us in the judgment could not be disputed by the learned counsel for the applicants. He could not say or argue that the said Government Order if tried to be applied to all the teachers, who have been appointed in contravention of 1975 or 1978 Rules, as the case may be, would be in the teeth of the relevant rules and, therefore, the observation of this Court that in such case the said Government Order will not apply legally is neither erroneous in law nor otherwise can be assailed. But he argued that in view of the subsequent events this Court should refrain from passing any order which may affect the petitioners-respondents otherwise, which submission is not acceptable since this Court is more concern with maintaining rule of law and not to confer whimsical benefit upon certain individuals in breach of law. No other point has been argued and despite having given full opportunity to the learned counsel for the applicants, he failed to point out any error crept in our judgment dated 17.12.2008. We, therefore, do not find any reason to recall the same.
The application is, accordingly, rejected."
20. In view of above decision of Division Bench, after promulgation of statutory rules i.e. Rules, 1978 mandating that no appointment shall be made if a person does not possess requisite minimum educational qualification including training, question of engagement of an untrained person after promulgation of Rules does not arise.
21. Learned counsel for the petitioner neither could point out any power vested in any educational authority or even State Government empowering it to grant exemption to a person so as to be appointed as Teacher or continue to work as Teacher despite lacking requisite minimum qualification prescribed for the post.
22. In view thereof, I find no manifest error in the order of DBEO rejecting claim of petitioner for payment of salary from State Exchequer since petitioner was not validly appointed in the School in question. No interference, therefore, is called for.
23. The writ petition lacks merits. Dismissed.
Dt. 24.01.2019 PS