1. Heard learned counsel for the petitioners, Sri Anurag Kumar Maurya, learned Standing Counsel for the respondent nos.1 to 3 and Sri Jyotinjay Verma and Sri Neeraj Chaurasia, both representing respondent no.4.
2. By means of the present writ petition, the petitioners are challenging an order dated 18.11.2008 whereby the claim for the payment of salary of the petitioners has been rejected on the ground that the procedure prescribed for selection and appointment of the petitioners has not been followed nor the Manager of the Institution has submitted papers for consideration of claim of the petitioners before Assistant Regional Director of Education, Basic, Faizabad Region, Faizabad.
3. The petitioners claim that petitioner no.1 was granted appointment on the post of Assistant Teacher on 25.6.1981 in the institution and in pursuance thereof, he joined on 1.7.1981. The petitioner no.2 was granted appointment on the post of Peon by the Committee of Management on 22.6.1986 and he joined in the institution on 1.7.1986. Appointment of the petitioners has been regularized vide orders dated 2.11.1988 and 14.9.1992 respectively. The institution was brought within the purview of Payment of Salary Act on 2.12.2006. The claim was set up by the petitioners for disbursement of salary from State Exchequer on the ground that they have been duly appointed teacher and Group-'D' employee of the institution and are entitled for the payment of salary from the State Exchequer. When no order was passed on the claim set up by them, Writ Petition No.5679 (SS) of 2008 was filed before this Court which was finally allowed with the direction to the Competent Authority to pass an appropriate order on 15.9.2008. After service of the copy of the order passed by this Court, direction was issued to the parties to file necessary documents to establish selection and appointment on the post of Assistant Teacher and Group-D post. Respondent no.3, after giving opportunity of hearing to the parties, passed an order on 18.11.2008 by recording a finding that in spite of direction issued to the Management to submit relevant papers in regard to selection and appointment of the petitioners, the same were not made available. In conclusion part of the impugned order, it has been recorded that the society was registered on 17.8.1981 which was renewed on 17.8.2005 for the period of five years. The institution which was run and managed by the Society, was granted temporary recognition by the District Basic Education Officer on 30.6.1982 and permanent recognition to the institution was granted by the Assistant Regional Director of Education Officer, Faizabad Region, Faizabad on 25.7.1987. In pursuance to the Government Order issued for taking the institution on the grand-in-aid list, applications were invited and in pursuance thereof, the institution in question applied for taking the institution in grant-in-aid list. The Manager of the Institution was directed to place necessary documents in regard to the selection and appointment of the petitioners vide letter dated 4.1.2007 along with copy of the approval but no documents in regard to the selection and appointment were produced by the Manager of the institution. The approval was also not in accordance with the provisions of the U.P. Basic Schools (Junior High School) (Recruitment and Conditions of Services of Teachers) Rules, 1978 (hereinafter referred to as '1978 Rules'). The appointment for the Group-D employee namely Sri Ram Prakash Vishwarama was also not found in accordance with U.P. Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Ministerial Staff and Group ''D' Employees) Rules, 1984 (hereinafter referred to as '1984 Rules'), therefore no concurrence for payment of salary was accorded by the Competent Authority. At the time of hearing in the matter, the petitioners as well as Manager were granted time to place relevant documents to establish their selection and evidence to establish appointment in accordance with 1978 Rules, but at the said point of time also, no documentary evidence in regard to the selection and appointment were produced by the petitioner as well as Manager of the Institution, therefore, the claim for appointment and salary has been rejected by respondent no.3 vide impugned order dated 18.11.2008.
4. Assailing the aforesaid order, submission of learned counsel for the petitioners is that although the petitioners are not having requisite documents to establish their appointment in accordance with 1978 Rules as well as 1984 Rules governing appointment of Class-III and Class-IV post, the order of regularization establishes their claim for the payment of salary from State Exchequer. The statement of fact in regard to grant of regularization has been made in paragraph16 of the writ petition which has been denied in paragraph 13 of the counter-affidavit filed by the respondent no.4 (District Basic Education Officer). His next submission is that the controversy in regard to the order of approval and order of regularization came before this Court for consideration that whether the order of regularization comes under the definition of approval or not, in Writ-A No.64346 of 2007 (Munendra Singh and others v. State of U.P. and others), wherein this Court recorded that the order of regularization also terms as order of approval. Similar view was also taken in the case of Ram Pal Singh and others v. State of U.P. and others reported in (2016) 2 UPLBEC 1607 which was affirmed vide judgment and order dated 3.12.2013 passed by this Court. On the said basis, submission of learned counsel for the petitioner is that once the services of the petitioner have been regularized vide orders dated 2.11.1988 and 14.9.1992 respectively, then it is admitted that appointment of the petitioners was made by following the procedure prescribed under 1978 Rules as well 1984 Rules. He next submits that it is responsibility of the Manager and the Educational Authorities to keep the proceedings in safe hands in their offices in regard to selection and appointment and if required, to place before Educational Authority. The petitioners are not expected to place the material of selection which was conducted by the Committee of Management by constituting the selection committee and to make available to the District Basic Education Officer thereafter.
5. On the other hand, learned counsel appearing for the respondents submits that under 1978 Rules as well as 1984 Rules, a full-fledged procedure has been prescribed in regard to selection of teacher and Group-C and Group-D employee to be appointed in Recognized Junior High School. They have invited attention of this Court on the provisions contained in Sections 7 to 10 to submit that the order of appointment issued to petitioner no.1 on 25.6.1981 clearly demonstrates the fact that the same was issued in violation of Rule 10 of the1978 Rules. The Rules prescribe that before issuing appointment letter to the selected candidates, approval from the District Basic Education is required. It is not the case of the petitioners that after submission of papers before the District Basic Education Officer, no order was passed for granting approval to the selection and appointment of the petitioners and after expiry of 30 days' period, it is deemed that the approval has been accorded and then the Committee of Management issued appointment letter.
6. Next submission of learned counsel for the respondents is that in the impugned order, clear cut finding has been return that no papers in regard to the selection and appointment of the petitioner were placed before District Basic Education Oficer by the Manager nor the same were placed at the time of hearing before the Assistant Regional Director of Education (Basic), thus his submission is that the petitioners have not challenged the finding return by the respondent no.2 in this regard in the writ petition that the same is based on incorrect statement of fact or perverse in nature. Last submission of learned counsel for the respondents is that the impugned order is just and valid order and does not suffer from infirmity or illegality. Reliance placed by the learned counsel for the petitioners is merely on the ground that their services were regularized, which cannot be termed to be legally appointed teacher and Class-IV employee, therefore, the judgment relied upon is not applicable to the facts and circumstances of the present case.
7. I have considered the submissions advanced by learned counsel for the parties and perused the material on record.
8. To resolve the controversy, firstly, the validity of the appointment is to be seen that the appointment has been made by following the procedure prescribed under 1978 Rules or 1984 Rules or not.
To examine the same, provisions of Sections 7 to 10 of the 1978 Rules are being extracted hereinbelow:
"7. Advertisement of vacancy. - [(1) No vacancy shall be filled, except after its advertisement in at least two newspapers one of whom must have adequate circulation all over the State and the other in a locality the school is situated.] (2) In every advertisement and intimation under clause (1), the Management shall give particulars as to the name of the post, the minimum qualifications and age-limit, if any, prescribed for such post and the last date for receipt of applications in pursuance of such advertisement.
8. Age limit. - The minimum age shall on the first day of July of the academic year following next after the year in which the advertisement of the vacancy is made under Rule 7 be :
(1) In relation to the post of an Assistant Teacher 21 years.
(2) In relation to the post of Head Master 30 years.] [9. Selection Committee. - For appointment of Headmaster and Assistant Teacher in institutions other than minority institutions and in the minority institutions, tire Management shall constitute a Selection Committee as follows :] A - Institutions other than Minority Institutions :
(i) For the post of headmaster :
(1) Manager;
(2) a nominee of the District Basic Education Officer;
(3) a nominee of the Management;
(ii) For the post of Assistant Teacher;
(1) Manager;
(2) Headmaster of the recognised school in which appointment is to be made;
(3) a nominee of the District Basic Education Officer;
B - Minority Institutions :
(i) For the post of Headmaster;
(1) Manager;
(2) two nominees of Management;
(ii) For the post of Assistant Teacher;
(1) Manager;
(2) Headmaster of the recognised school in which the appointment is to be made;
[(3) A specialist in the subject nominee by the District Basic Education Officer.]
10. Procedure for selection. - (1) The Selection Committee shall, after interviewing such candidates as appear before it on a date to be fixed by it in this behalf, of which due intimation shall be given to all the candidates, prepare a list containing as far as possible the names, in order of preference, of three candidates found to be suitable for appointment.
(2) The list prepared under clause (1) shall also contain particulars regarding the date of birth, academic qualifications and teaching experience of the candidates and shall be signed by all the members of the Selection Committee.
(3) The Selection Committee shall, as soon as possible, forward such list, together with the minutes of the proceedings of the Committee to the management.
(4) The Manager shall within one week from the date of receipt of the papers under clause (3) send a copy of the list to the District Basic Education Officer.
(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 these 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) If the District Basic Education Officer is not satisfied as aforesaid, he shall return the papers to the Management with the direction that the matter shall be reconsidered by the Selection Committee.
(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."
9. On perusal of the provisions contained, it has been provided that the vacancy shall be advertised in two well known newspapers viz. one in widely circulated newspaper and one in local newspaper; thereafter, there is procedure to constitution of selection committee; after making selection, the papers ought to be submitted before District Basic Education Officer to accord approval; and then the committee of management is empowered to grant appointment.
Here, in the present case, neither papers in regard to selection were produced before respondent no.3 nor the finding return has been challenged by enclosing the papers before this Court in the writ petition, therefore, there is no hesitation to hold that the finding recorded in regard to non-following the procedure prescribed under 1978 Rules is just and valid. It is further clarified in the finding that the institution was granted temporary recognition on 30.6.1982 by the Basic Shiksha Adhikari of the district concerned. The petitioners claimed his appointment before the order of recognition to the institution on 25.6.1981. Counsel for the petitioners has not stated anywhere that without recognition of an institution, how the appointment of the petitioners has been made in the institution which was not in existence in the year 1981.
10. In regard to the appointment of the petitioner no.2, procedure of selection contained under 1984 Rules is quoted below:
"15. Procedure for selection. - (1) The Selection Committee shall, after interviewing such candidates as appear before it on a date fixed by it in this behalf, of which due intimation shall be given to all the candidates, prepare a list containing as far as possible the names, in order of preference, of three candidates found to be suitable for appointment.
(2) The list prepared under clause (1) shall also contain particulars regarding the date of birth, academic qualifications and shall be signed by all the members of the Selection Committee.
(3) The Selection Committee shall as soon as possible forward such list, together with the minutes of the proceedings of the Committee to the Management.
(4) The Manager shall, within one week from date of receipt of the papers under clause (3), send a copy of the list to the District Basic Education Officer.
(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 these rules for the selection of Ministerial staff and Group 'D' employees, 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) If the District Basic Education Officer is not satisfied as aforesaid, he shall return the papers to the Management with the direction that the matter shall be reconsidered by the Selection Committee.
(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. There is finding of fact in the order impugned that the appointment of the petitioner no.2 was also not made in accordance with the provisions contained under 1984 Rules. In the writ petition, the findings return have also not been challenged by enclosing supporting documents to establish the appointment of petitioner no.2. The statement made in paragraph 16 in regard to petitioner no.2 is also based only on the premise of an order of regularization which is dated 14.9.1992. In absence of any pleading challenging the finding of fact recorded by respondent no.3, mere relying on an order of regularization, the petitioner no.2 cannot be granted relief for the payment of salary from the State Exchequer without producing necessary documents to establish his appointment in the eye of law.
12. Counsel for the petitioners has relied upon the judgment rendered in the case of Munendra Singh and others (supra), wherein there was material to establish their appointment and the subject matter was that whether taking notice of regularization can be termed as approval in the eye of law or not and on the basis of relevant documents and records in the aforesaid case, it was established that by following procedure prescribed, they were granted appointment.
13. Rule 10 of the 1978 Rules as well as 1984 Rules clearly stipulates that without prior approval of the District Basic Education Officer, no appointment letter can be issued to the petitioners. It is established that petitioner no.1 was granted appointment on the post of Assistant Teacher on 25.6.1981 and petitioner no.2 was granted appointment on the post of Peon on 22.6.1986. It is further evident that it is not the case of the petitioners that after selection, papers were submitted before the District Basic Education Officer for the grant of approval and due to non-grant of approval within one month, the selection shall be deemed to be approved in view of Rule 10 (5) of the 1978 Rules. They only relied on the orders of regularization passed on 2.11.1988 and 14.9.1992 and on the said basis, submission of learned counsel for the petitioners is that once the order of regularization had been passed, every discrepancy in making selection washed out and on the basis of regularization, the petitioners are entitled for the payment of salary. The submission advanced by the learned counsel for the petitioner is misplaced in view of the reason that the statutory provisions prescribed under the Rules do not permit for the grant of regularization/ approval after the appointment.
14. On perusal of the provisions of Rules quoted hereinabove, there is no provision for the grant of past approval after the appointment of the petitioners by the Committee of Management. Firstly, selection proceeding placed before the District Basic Education Officer is required to be approval and thereafter, the Committee of Management can issue appointment letter to the selected candidates. In the present case, the selection of the petitioners have not been approved as per the Rules referred above nor there is a case that due to non-passing of order passed by the District Basic Education Officer on the papers submitted after selection, the appointment is deemed to have been approved.
15. The ratio of judgment relied upon does not apply to the present facts and circumstances of the case and is distinguishable in nature. In the judgment relied upon, this Court, on consideration of relevant provisions of 1978 Rules, came to the conclusion that there is no difference in order of approval or order of regularization. It is the case of the petitioners that the District Basic Education Officer has passed the order of regularization after issuance of appointment letter and after joining on the post in the institution. Under the Rules, there is no such provision for the grant of past approval. Assistant Regional Director of Education, Basic, Faizabad Region, Faizabad had recorded categorical finding that the Committee of Management in spite of notice issued to produce the necessary documents of selection, could not produce the same before him as well as there is no material to establish that prior to issuance of appointment letter to the petitioners, papers were submitted before the District Basic Education Officer for the grant of approval. The finding has been recorded by the Assistant Regional Director of Education, Basic, Faizabad Region, Faizabad in the order dated 18.11.2008 that the Committee of Management has not submitted papers before the District Basic Education Officer of the selection for the grant of approval. It has further been recorded that in spite of notice issued to the petitioners, no papers were submitted during the course of hearing at the level of the Assistant Regional Director of Education. The finding recorded in this regard has not been challenged by the petitioners in the writ petition, therefore, this Court is of the opinion that the finding return is just and valid.
15. On consideration of overall facts and circumstances of the case as well as the judgment relied upon, I am of the view that the Assistant Regional Director of Education, Basic, Faizabad Region, Faizabad has not committed any illegality in passing the impugned order. The impugned order records finding of fact which has not been challenged in the writ petition. Therefore, this Court refuses to exercise discretionary jurisdiction under Article 226 of the Constitution of India.
16. Accordingly, this writ petition lacks merit and is hereby dismissed.
18. No order as to costs.