Court No. - 4
Case :- WRIT - A No. - 25092 of 2018 Petitioner :- Shri Sant Vinoba Inter College Etawah Through Its Manager Sri Yadu Nath Singh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Yogesh Kumar Saxena Counsel for Respondent :- C.S.C.,Vikram Bahadur Singh
Hon'ble Ajit Kumar,J.
1. Heard learned counsels for the parties.
2. By means of this writ petition, the petitioner has questioned the correctness of the order passed by District Basic Education Officer, Etawah (hereinafter to be referred as 'DBEO') dated 11.06.2018, whereby, while admitting that there is sanctioned strength of one clerk in the Institution, he has refused to grant prior permission for making selection and appointment on the two vacant positions on the ground that in view of the physical verification being done the sanctioned strength, as already granted and, therefore, request cannot be acceded to. He has gone into some report of physical verification done in 30th September, 2017.
3. The argument advanced by learned counsel for the petitioner is that once the positions of Assistant Teachers have been duly sanctioned by the Director under Section 9 of the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978, it is none of the business of DBEO, an authority much below in rank to the Director, to refuse prior permission for holding selection on the positions duly sanctioned. In this connection learned counsel for the petitioner relied upon a judgment of this Court in Committee of Management Dwivedi Mahadev Prasad Purva Madhyamik Vidyalaya and others Vs. State of U.P. and others in Writ - A No. 36910 of 2016 wherein this Court has held that sanctioned positions of an Institution duly granted, cannot be reduced to by the DBEO or by any circular or a Government Order or any notification superseding the statutory provisions. Thereafter, concluding its judgment, the Court issued following direction vide paras 11 and 12 of the judgment:
"11. In the facts and circumstances of the present case, as the document issued under the signatures of the District Basic Education Officer contained in Annexure-3 is not disputed in the counter affidavit, and sanction of seven posts of Assistant Teacher is not disputed, it would be appropriate to observe that prima facie existence of seven posts in the institution is reflected and in such circumstances, the authorities would not be justified in restricting recruitment only to four posts of Assistant Teachers.
12. This petition accordingly stands disposed of with a direction upon the District Basic Education Officer concerned to examine existence of duly sanctioned posts existing in the institution in terms of rule 7(3), and thereafter proceed to permit the Committee of Management to fill up the posts in accordance with law. Such sanctioned posts would not be automatically reduced in view of the circular of Director dated 7.1.2015. The required consideration would be made by the officer concerned within a period of two months from the date of presentation of certified copy of this order. "
4. Learned counsel for the petitioner has further contended that when the power lies with the District Basic Education Officer under Rule 10 of 1978 Rules to grant prior permission to initiate selection process for the purpose of recruitment on the post in question, there was no occasion for the District Basic Education Officer to reach the Director of Basic Education for seeking guidelines in the matter, more particularly when he has admitted in paragraph 3 of the impugned order/letter that there were 9 sanctioned posts of Assistant Teacher.
5. Sri Vikram Bahadur Singh, learned Advocate representing the respondent no. 3 does not dispute the above legal position and the controversy involved in the present case being identical to the one involved in the case of Committee of Management of Dwivedi Mahadv Prasad (supra)
6. In view of the above, the order dated 11.06.2018 passed by DBEO can not be sustained and is hereby quashed. The DBEO is directed to take fresh decision in the matter considering the sanctioned strength as already granted to the Institution by Director of Education (Basic) after due verification of the said document and shall take a decision, positively within a period of six weeks from the date of production of a certified copy of this order, in the light of observations made herein above and in the light of judgment of this Court in the case of Committee of Management Dwivedi Mahadev Prasad Purva Madhyamik Vidyalaya (supra).
7. Writ petition stands allowed in terms of the observations and directions contained herein this order.
Order Date :- 28.11.2018 Sanjeev