1. Heard learned counsel for the petitioner, learned standing counsel for respondent No.1, Sri Rajiv Singh Chauhan, learned counsel for respondent Nos.2 & 3 and Sri Rajendra Pratap Singh, learned counsel for respondent Nos.4 & 5.
2. By means of present writ petition, the petitioner is challenging the order dated 04.03.2013, whereby his claim for appointment on the post of Assistant Teacher (Scheduled Caste) as well as claim for payment of salary has been rejected.
3. Brief fact of the case is that there is an institution in the name of Janta Nimna Madhyamik Vidyalaya, Byoli, Islamabad, District Unnao, which is recognized under the provisions of U.P. Basic Education Act, 1972 and is receiving grant in aid from the State Government, thus, the provisions of U.P. Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978 as well as the provisions of The U.P. Recognised Basic Schools (Junior High Schools) (Recruitment And Conditions Of Service Of Teachers) Rules, 1978 are applicable to the said institution.
4. In the institution, there are six sanctioned posts of Assistant Teachers including the post of Head Master. Two teachers namely Ram Khelawan and Jagat Narayan retired from service on attaining the age of superannuation on 30.06.2001 and 30.06.2007, respectively. The committee of management filled aforesaid two vacancies under the category of Other Backward Class (OBC) and Scheduled Caste (SC) and requested to the District Basic Education Officer (for short, 'DBEO') for grant of prior approval to initiate selection proceeding vide letter dated 23.07.2009 in view of the provisions contained under Rule 7(3) of the amended Rules of 1978.
5. The DBEO granted permission to issue advertisement inviting applications from eligible and qualified candidates. In compliance of the order of DBEO, vacancies were advertised in two newspapers inviting applications from eligible and qualified candidates in the year 2009 fixing date for interview on 25.10.2009.
6. Several candidates under OBC category as well as Scheduled Castes Category applied for in pursuance to the advertisement issued. The selection committee selected to Sri Saurabh Kumar under OBC Category and Sri Santram under Scheduled Castes Category on the basis of quality point marks.
7. Papers were submitted before the DBEO for grant of approval to the selection on 28.10.2009. The DBEO accorded approval to the appointment made under OBC category and rejected the appointment made under Scheduled Castes Category vide letter dated 11.11.2009 on the ground that the appointment was not in accordance with law.
8. In pursuance to the order of DBEO, vacancies were re-advertised on 17.12.2009 inviting applications for selection under Scheduled Castes Category. The advertisement is part of the writ petition as annexure-5. In pursuance to the advertisement, seven candidates applied including the petitioner and the selection committee selected the petitioner and placed him at serial No.1 under Scheduled Castes Category.
9. The papers were submitted for approval as required under Rule 10 before the DBEO on 18.01.2010. The DBEO did not pass the order disapproving or approving the selection neither raised any objection in regard to the selection for a period of one month.
10. In the meantime, a complaint was lodged by one Ramesh Chandra on 29.12.2009 before the DBOE to the effect that the committee of management without permitting him to participate in the selection proceeding has proceeded to make selection in a wholly illegal and arbitrary manner.
11. The complaint was entertained and by means of order dated 25.10.2010, the DBEO rejected the selection proceeding holding that no information in regard to selection was given to him. The proceeding was initiated in a wholly illegal and arbitrary manner and candidature of the complainant Ramesh Chandra has illegally been not considered.
12. The order passed by the DBEO was subject matter of challenge in Writ Petition No.8082 of 2010 and after hearing the parties, the writ petition was allowed vide judgment and order dated 07.08.2012 holding that the order has been passed in utter disregard of principles of natural justice and remanded the matter back to the DBEO for reconsideration and to pass appropriate order.
13. In compliance of the judgment and order passed by this court on 07.08.2012, the DBEO passed an order on 04.03.2013, whereby the claim setup by the petitioner has been rejected.
14. Assailing the impugned order, submission of learned counsel for the petitioner is that in the second advertisement, applications were invited afresh from all eligible candidates, who were interested in applying the same. There was no stipulation in the advertisement that candidates, who were part of the first selection proceeding are required not to submit the application form.
15. He submitted that the complainant - Ramesh Chandra did not apply in pursuance to the fresh advertisement issued, therefore, the complaint lodged by him was not entertainable and the DBEO without considering this aspect of the matter, has proceeded to pass the order.
16. His next submission is that after recommendation of the selection committee, the committee of management submitted papers vide letter dated 18.01.2010, which was duly received in the office of DBEO and in view of Rule 10 of Rules of 1978, the selection was deemed to be approved under the rules after lapse of one month's period. Therefore, it was not left open to the DBEO to pass the impugned order rejecting the selection of the petitioner.
17. His further submission is that it has been admitted that papers were received on 18.01.2010, which was returned by three objections but in the submission, there is no recital of date on which the papers were returned. This clearly demonstrates the ill will of the DBEO in passing the impugned order taking shelter that the selection has not been deemed to be approved.
18. On the other hand, learned standing counsel and Sri R.P. Singh, learned counsel for the committee of management submitted that the order passed by the DBEO does not suffer from any infirmity or illegality and is just and valid. They further submitted that the DBEO returned the papers to the committee of management with three objections on 24.02.2010, therefore, the provisions of deemed approval is not applicable to the facts and circumstances of the case of the petitioner.
19. In regard to submission advanced by learned counsel for the petitioner that Ramesh Chandra did not apply in pursuance to the second advertisement, no objection has been made by learned counsel for the respondents in this regard.
20. I have considered the submissions advanced by learned counsel for the parties and perused the material on record.
21. To resolve the controversy in hand, the provisions contained under relevant rules of The U.P. Recognised Basic Schools (Junior High Schools) (Recruitment And Conditions Of Service Of Teachers) Rules, 1978 are being quoted below:
"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."
22. On perusal of the aforesaid rules and material on record, it is reflected that requirement of prior approval as per Section 7 was taken from the DBEO and then the committee of management proceeded to advertise the vacancy in the news paper inviting applications from eligible and qualified candidates.
23. In regard to selection made against the scheduled caste category, there is no challenge on the rejection order by the DBEO directing re-advertisement and to invite the application afresh. The committee of management complied the order of the DBEO and re-advertised the vacancy inviting applications from eligible and qualified candidates belonging to scheduled caste category.
24. The selection committee constituted under Rule 9 of the Rules of 1978 selected the petitioner and recommended for appointment to the committee of management after taking approval from the DBEO. The committee of management submitted the entire papers before the DBEO on 18.01.2010. Under Rule 10(5) of Rules of 1978, it has been provided that in case the DBEO did not pass any order within a period of one month, the selection made on the post of Assistant Teacher or Head Master shall be deemed to be approved.
25. Therefore, the selection of the petitioner is deemed to be approved on 17.10.2010 in view of non passing of any order of approval or disapproval on the proposal of the committee of management neither raising objection by the DBEO in regard to the selection made.
26. The committee of management issued appointment letter to the petitioner and in pursuance thereof the petitioner is discharging duties in the institution without salary from the State Exchequer.
27. On perusal of the impugned order, it is reflected that entire proceeding has been initiated on the complaint lodged by Ramesh Chandra that he has not been permitted to participate in the selection proceeding.
28. On perusal of the record, it is evident that it is not his case that he has applied in pursuance to the second advertisement issued for selection under Scheduled Caste Category, therefore, this court has no hesitation to hold that the complaint lodged by Ramesh Chandra was not entertainable and the the DBEO for the reasons best known to him has entertained the same and has cancelled the selection.
29. On perusal of the impugned order, it is apparent that the objection is that the candidates who have appeared in the earlier selection proceeding would have been intimated in regard to interview fixed on 30.12.20009 and due to non furnishing information, the selection proceeding vitiates in law.
30. In this regard, on the said objection, I have perused the order of DBEO, whereby direction was issued to readvertise the vacancy and to invite the applications afresh.
31. In pursuance to the order of DBEO, fresh advertisement was issued inviting application from open market. Under the advertisement, it was not provided that the candidates who have applied in the earlier selection proceeding, are not required to submit application afresh, therefore, the finding returned by the DBEO in this regard is perverse in nature and cannot be sustained.
32. The second objection that Ramesh Chandra who was candidate of earlier selection proceeding was not informed in regard to interview scheduled to be held on 30.12.2009. This objection is also wholly irrelevant and in this regard sufficient reasons have been assigned in the above referred paragraphs of the judgment.
33. On perusal of next objection, it is evident that the DBEO appears to be interested in selection of Ramesh Chandra, therefore, without going through the earlier order of cancellation of advertisement and to make fresh selection against the scheduled caste vacancy, has proceeded to record perverse and illegal finding that Ramesh Chandra was entitled for consideration for selection in the fresh selection proceeding although he did not apply in pursuance to the second advertisement.
34. In regard to last objection, it reveals that similar reasons have been assigned that the petitioner - Santram was not liable to be issued appointment letter by Manager of the institution on 08.03.2010. In this regard, I have perused the contents of the writ petition made in paragraph-11, which recites that the committee of management submitted papers on 18.01.2010. Reply to the same has been given in paragraph-11 of the counter affidavit and in paragraph-10 of the supplementary counter affidavit, which admits that papers were received in the office of DBEO on 18.01.2010 but without any material on record it has been stated that same were returned to the Manager of the institution without disclosing any date.
35. To meet out ends of justice, I have perused the order, which was passed earlier on 24.02.2010, annexed at page-58, wherein it has been admitted that letter dated 18.01.2010 was made available to the office of DBEO on 27.02.2010. It clearly demonstrates that the statement made in paragraph-11 of the counter affidavit and page - 10 of supplementary counter affidavit do not corroborate with the letter dated 24.02.2010 and it appears that only to dislodge the claim of the petitioner of deemed approval, a concocted story has been framed by the DBEO. If this was the position, then clear cut statement of fact would have been made in the statement given along with counter affidavits. Thus, the claim setup by the DBEO in the counter affidavits is not acceptable in law.
36. Accordingly, the impugned order dated 04.03.2013 suffers from apparent illegality and cannot be sustained and is hereby quashed.
37. The writ petition succeeds and is allowed.
38. The DBEO, District Unnao is directed to pay the petitioner regular monthly salary month by month forthwith as well as arrears of salary w.e.f. 12.03.2010 till date within a period of three months from the date of production of a certified copy of this order.
Order Date :- 21.1.2021 Adarsh K Singh