JUDGMENT Prakash Krishna, J.
1. By means of the present writ petition, the petitioner has sought a writ, order or direction in the nature of Certiorari quashing the order dated 30th of July, 1986 (Annexure - 7 to the writ petition) whereby the Manager of the Institution informed the petitioner that the petitioner was appointed by the then Committee of Management on non existent post without following the procedure for appointment as Assistant Teacher as prescribed by the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 and therefore, the District Basic Shiksha Adhikari did not approve the appointment of the petitioner.
2. The petitioner claims that he was appointed on 28th of June, 1984 in pursuance of the appointment letter issued by the Manager of the institution namely Sarvahitkari Junior High School and under Rule 10 (5) of the Rules aforestated, the appointment of the petitioner shall be deemed to have been approved since the Basic Shiksha Adhikari did not sent any reply to the request for approval within the period of one month and under Rule 12 the services of a teacher on probation stands confirmed immediately on expiry of the probationary period which ended on 28th of June, 1985. The petitioner is a qualified teacher and the respondent No. 1, (institution) has illegally withheld salary of the petitioner from June, 1985 to 31th of July, 1986. The respondent No. l issued an advertisement on 10th of July, 1986 to appoint some teachers on the post of petitioner, hence the present writ petition. A supplementary affidavit has been filed stating that the School in question came in grant-in-aid list of the State Government on November 17, 1984 and the petitioner who was working prior to the grant-in-aid is entitled to get salary under the Payment of Salaries Act by the department.
3. In the counter affidavit filed on behalf of the Basic Shiksha Adhikari the stand taken is that the Management, as required under the Rules did not furnish any document with regard to the approval referred to in the writ petition nor the Management ever informed the office of the Basic Shiksha Adhikari about the holding of any such selection. The Management unilaterally, without any participation of any representative of Basic Shiksha Adhikari, in utter disregard of the statutory provisions offered appointment to the petitioner which is void ab initio and the petitioner is not entitled for any salary in view of the letter sent by the Additional Director (Basic), Meerut.
4. Shri Ramendra Asthana, advocate for the petitioner, submitted that the impugned order holding that the petitioner was appointed without following the procedure prescribed by law and on a non existent post is illegal and without jurisdiction in as much as in view of the Rule 10 (5) of the aforesaid Rule the appointment of the petitioner shall be deemed to be approved as the Basic Shiksha Adhikari did not communicate his disapproval within one month from the receipt of the papers submitted to him seeking approval to the recommendation made by the Selection Committee. Reliance has been placed on one decision Yashwant Singh v. District Basic Shiksha Adhikari 2003 (1) E.S.C. 560 and in contra, the learned Counsel for the respondents has placed reliance on Ashok Kumar Pandey and Ors. v. B.S.A. and Ors. (1992) 2 U.P.LB.E.C. 906. Before proceeding further it would be appropriate to first ascertain the status of the petitioner and the theory as put up by him that on the facts of the present case, in absence of any disapproval within the period of one month, the appointment of the petitioner shall be deemed to be approved by the Basic Shiksha Adhikari. Shri Asthana referred the copy of the letter sent by the Manager (Annexure -2) to the petition, is a letter seeking approval of the appointment of the petitioner. The said letter is as vague as it could have been. The letter contains that the School is seeking approval of the certain staff teaching and nonteaching being satisfied with their work and requested to accord approval by the said letter. Along with the letter a list of seven teachers has been enclosed under the signatures of the Principal and the Manager of the Institution containing their names, post educational qualification, date of birth, date of appointment and the address. It does not refer holding of any selection process. It also does not disclose the date of advertisement, if any, issued by the School in any newspaper inviting applications for the posts. It also does not disclose the number of persons who applied for the post. The constitution of the Selection Committee, if any, or proceedings of Selection Committee, if any, have not been disclosed.
5. Now let us examine the statutory provisions in this regard. Rule 5(b) of the said Rules provides that no person shall be appointed as Headmaster or Assistant Teacher in substantive capacity, in any recognized School unless besides the minimum educational qualification, "he has recommended for such appointment by Selection Committee." Rule - 7 mandatorily requires the advertisement of vacancy before filling up any vacancy "in at least one newspaper having adequate circulation in the locality and intimation of such vacancy given to the District Basic Education Officer." In the writ petition there is no whisper that the petitioner was appointed in pursuance of any advertisement in any newspaper. In absence of any pleadings that the appointment of the petitioner was preceded by an advertisement in any newspaper having circulation in the locality, the appointment of the petitioner falls. Significantly, it may be noted that Annexure-2 on which heavy reliance was placed by the petitioner also does not talk about the issuance of advertisement in at least one newspaper having adequate circulation in the locality. In the counter affidavit it has been stated that the appointment of the petitioner was not valid as the post in question was not advertised in any newspaper. Even then no attempt was made by the petitioner to come out with a case that the post in question was advertised in a newspaper.
6. Secondly, intimation of vacancy is required to be given to the District Basic Education Officer under Rule 7 (1) of the aforesaid Rule but in the present case there is no pleading or evidence worth the name on the record to show that any such thing was done by the Management. Thirdly, the provision for constitution of Selection Committee has been laid down in Rule 9. It says that Selection Committee for the post of Assistant Teacher shall consist of (1) Manager; (2) Headmaster of the recognized School in which appointment is to be made; (3) a nominee of the District Basic Education Officer. No such Selection Committee was ever formed, as specifically pleaded in para 6 of the counter affidavit of the respondent No. 1.
7. Fourthly, the procedure of selection has been provided for in Rule 10. It has also not been followed.
8. Having regard to the discussion as noted above, it is clear that the appointment of the petitioner, if any, was made in utter disregard of the statutory provisions and dehors the Rules governing the selection and appointment of Assistant Teacher as prescribed by the aforesaid Rules 1978. The learned Counsel for the petitioner during the course of argument could not give any reply to the above and took a somersault as the disapproval was not received within the period of one month from the date of alleged sending of letters by the Committee of Management, the appointment of the petitioner is deemed to be approved, is considered hereinafter. Strong reliance has been placed on the decision in Yashwant Singh v. DBSA 2003 (1) E.S.C. 560. The said case was decided in a different factual background and is distinguishable on facts. Issue involved therein was quite different. The Management of the School without obtaining the prior approval of the District Basic Shiksha Adhikari sought to terminate the services of the petitioner therein in violation of Rule 15 of the aforesaid Rules. The issue was whether the Management without obtaining the prior approval of the District Basic Shiksha Adhikari can terminate the services of a Headmaster or not. Interpreting Rule 15, it was held that mandatory provision of Rule 15 was not followed as prior approval of District Basic Shiksha Adhikari was not obtained.
9. A Division Bench of this Court in the case of Ashok Kumar and Ors. (supra) has considered a similar controversy presently involved here and after taking into consideration Rules 9, 10 and 11 it has held that "the benefit of deeming provision is not available to the appellants" in as much as the appellants have not produced "any other documents to show that they were appointed teachers of the School in accordance with Rule 11." It clearly follows that burden is upon the person who is claiming that he is duly appointed teacher of a School to approve by placing cogent evidence of unimpeachable character to show that he was appointed in accordance with Rule 11. Rule 11 postulates the receipt of communication of approval sent by the Committee of Management. In the case in hand, as demonstrated above, no Selection Committee was constituted.
10. Moreover Rule 10 (5) reads as follows:
(5) (i) If the District Basic Education Officer is satisfied that-
(a) the candidates recommended by the Selection Committee possess the minimum qualifications prescribed for the post;
(b) the procedure laid down in the rules for the selection of Headmaster or assistant teacher, as the case may be, has been followed he shall accord approval to the recommendations made by the Selection Committee and shall communicate his decision to the management within two weeks from the date of receipt of the papers under Clause (4).
(ii) ...
(iii) If the District Basic Education Officer does not communicate his decision within one month from the date of receipt of the papers under Clause (4), he shall be deemed to have accorded approval to the recommendations made by the Selection Committee.
11. In the present case as pointed above, no Selection Committee was constituted, therefore, the question of forwarding a list containing particulars regarding the date of birth, academic qualifications and teaching experience of the candidates signed by all the members of the Selection Committee to the Management does not arise. Therefore, the next step that the Manager shall within one week from the date of receipt of the papers under clause - III send a copy of the list to the District Basic Education Officer also does not arise. If that is so the entire Rule 10 does not come in operation so also the question of not communication of decision by District Basic Shiksha Adhikari within one month from the date of receipt of the papers under Clause (4) does not arise. The words "receipt of papers' under Clause (4) do indicate that the question of deeming approval will arise only upon the fulfillment of the receipt of the papers under Clause IV. At this place the argument of Shri Asthana that annexure -2 to the writ petition should be taken as the requisite paper for the purposes of clause - V of Rules 10 is to be considered. Under clause IV of Rule 10 the papers referred therein are the list prepared by the Selection Committee after interview. The said list shall contain as far as possible the names, in order of preference, of three candidates found to be suitable for appointment. It shall also contain the other particulars such as date of birth, academic qualifications and teaching experience of the candidates and shall be signed by the members of the Selection Committee. Annexure - 2 to the writ petition does not contain the required particulars and the details as statutorily provided for under Rule 10 (4) of the Rules. In absence of the compliance of Rule 10 (4) of the Rules, the provision dealing with the deemed approval will not come to the rescue of the petitioner.
12. The upshot of the above discussion is that the appointment of the petitioner was made dehors the Rule and will not confer on him any right, title or interest to hold the post of Assistant Teacher in the institution in question and the respondents were right in passing the impugned order against the petitioner.
13. No other point was pressed by the learned Counsel for the petitioner.
14. In view of the above discussion, there is no merit in the writ petition. The writ petition is dismissed with costs of Rs. 5,000/- ( Rupees five thousands only).