This writ petition has been filed by the petitioner challenging the order dated 13.4.2006 whereby the District Basic Education Officer, Allahabad considering the matter regarding appointment of the petitioner has held the same to be invalid and contrary to Rules and has held that the petitioner is not entitled for salary.
The Mahavir Prasad Balika Vidyalaya Junior High School, Khuldabad, District Allahabad is an aided Junior High School in which classes from class Ist to class VIII are being run. The said institution is being managed by the Committee of Management. An advertisement was issued on 30.9.1998 for one post of Head Mistress and two posts of Assistant Teachers.
Appointments in a Junior High School are made in terms of the U.P. Recognized Basic Schools ( Junior High School) ( Recruitment & Conditions of Service of Teachers) Rules, 1978 ( the Rules).
A Selection Committee was constituted in which one Shiv Nandan Singh, a nominee of the District Basic Education Officer was also a member and he also participated in the selection proceedings. A panel was prepared on 23.2.1999. The panel of selected candidates was forwarded to the Basic Education Officer as provided in Rule 10 (4) of the Rules on 23.2.1999 and was received in the office of the Basic Education Officer on 9.3.1999.
The case of the petitioner is that when no objections were received from the office of the District Basic Education Officer within one month. The appointment of the petitioner was confirmed by the Committee of Management and letter of appointment was issued to the petitioner on 10.4.1999. On 25.9.1999 the District Basic Education Officer wrote a letter to the Manger of the Committee of Management of the institution to submit the pay bill for the period from April, 1999 to September, 1999.
The Committee of Management filed Writ Petition No.43075 of 1999 challenging the said order. The writ petition was disposed of by order dated 7.10.1999 with the direction to the concerned authority to decide the dispute within a period of one month. The District Basic Education Officer considered the matter and rejected the claim of the petitioner vide his order dated 10.11.1999 on the ground that the relevant documents relating to the qualification of the petitioner had not been submitted and the other ground taken was that the result of the interview and selection had not been submitted.
Aggrieved by the order dated 10.11.1999 the petitioner filed writ petition no.49168 of 1999. This writ petition was disposed of by the Court vide its order dated 25.5.2005. The Court remitted the matter back to the District Basic Education Officer with directions which read as follows:-
" As the order dated 10.11.1999 has been quashed, the matter is remitted back to respondent no.4 to pass appropriate order relating to the appointment of the petitioner and for the purpose of payment of salary in the light of the observation made above and shall also consider the judgment of this Court which has been cited above. The appropriate and detailed order according to law for the purpose of payment of salary be passed by respondent no.4 preferably within two months from the date of production of a certified copy of this order before him.
With these observation the writ petition is disposed of. There shall be no order as to costs."
From a perusal of the directions given by this Court it will be seen that the matter was referred to the District Basic Education Officer not only to decide the question relating to payment of salary but also to pass appropriate order relating to the payment of salary to the petitioner.
It is in compliance of the directions given by the High Court that the District Basic Education Officer passed the order dated 13.4.2006 which has been impugned in the present writ petition.
I have heard Sri Sujeet Kumar Rai, learned counsel for the petitioner and learned standing counsel appearing for respondent no.1. No one appears on behalf of respondent nos.2 to 4. The case has been taken up in the revised list. The order is being dictated in the open Court.
The submission of learned counsel for the petitioner is that when the panel of selected candidates was sent by the Committee of Management to the District Basic Education Officer on 23.2.1999 and when no decision was taken thereon within a period of one month, the selection of the petitioner would be deemed valid and the petitioner would entitle for selection and appointment in terms of the provisions of Rule 10(5) of the Rules. In the circumstances, it was not open for the District Basic Education Officer, respondent no.2 to go into the question regarding the appointment of the petitioner. The only question which was required to be examined by him was with regard to the entitlement of the petitioner for salary of the post of Head Mistress.
It is further submitted that the District Basic Education Officer by his impugned order has expanded the scope of consideration by going into the question of appointment of the petitioner and has recorded a new finding of fact that the petitioner did not have three years' teaching experience which was requisite for the post of Head Mistress. He further submits that the petitioner has submitted all her testimonials relating to teaching experience and, therefore, it could not be said that she was not entitled for the selection as Head Mistress.
No one appears on behalf of respondent nos.2 to 4, nevertheless a counter affidavit has been filed on behalf of respondent no.2. In para 9 of the said counter affidavit it has been stated that after the selection, a panel was prepared. The same was forwarded by the Manager of the Committee of Management by his letter dated 23.2.1999 and the same was received in the office of Distirct Basic Education Officer on 9.3.1999. After examining the entire records, the District Basic Education Officer immediately raised his objection vide his letter dated 31.3.1999 and the same was served upon the Committee of Management on 5.4.1999 and, therefore, in the circumstances it could not be said that no objection had been raised within a period of one month or that the deeming clause as provided in Rule 10 (5)of the Rules, 1978 would apply. In the counter affidavit it has also been stated that the order dated 13.4.2006 impugned in the present writ petition was passed in compliance of the specific direction given by the High Court in its earlier order dated 25.5.2005 passed in Writ Petition No.49168 of 1999.
So far as the facts of the case are concerned, there is no dispute inasmuch as the case relating to the appointment of the petitioner has already seen one round of litigation in writ petition no.49168 of 2009. The High Court while disposing of the writ petition remitted the matter to the District Basic Education Officer with a direction to pass appropriate orders relating to the appointment of the petitioner and for the purpose of payment of salary. Thus the question relating to the appointment of the petitioner was left open for decision of the District Basic Education Officer. In the circumstances, it is not correct for the petitioner to contend that when the matter was remitted back to the District Basic Education Officer he should have confined his order only to the question relating to salary and not the validity of the appointment. Therefore, this contention of the petitioner need not detain by this Court, any further.
When the matter was remitted back to the District Basic Education Officer, the record was examined once again. The District Basic Education Officer has recorded a clear finding that even as per the Rules the petitioner was required to possess three years' teaching experience for the post of Head Mistress and this fact was mentioned in the advertisement issued on 30.8.1998.
Rule 4(2) of the Rules, 1978 reads as follows:-
"4. Minimum Qualifications.- ?................
(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 recognized 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."
In the impugned order at page no.105 of the writ petition the District Basic Education Officer has prepared a chart showing the teaching experience supposed to have been earned by the petitioner in the various institutions where she is said to have taught. At item nos. 1,2,3 and 5, it is mentioned that her appointment was not recognized as valid. So far as the institutions mentioned at items 4 and 6 of the chart are concerned, it is mentioned that these institutions were not recognized and, therefore, any experience alleged to have been earned by the petitioner during that period would not be said to be valid. Much stress has been laid by the learned counsel for the petitioner with regard to teaching experience mentioned in the institution at Item No.3, which is the Rajkiya Kanya Uchattar Madhyamik Vidyala, Mirzapur against which there is remark that the teaching experience could not be verified. However, from a perusal of the chart it will be seen that in the said institution the total teaching period of the petitioner is from 28.3.1984 to 4.5.1984 which is just about one month and seven days and this fact has not been disputed by the learned counsel for the petitioner.
In the circumstances, even if the said teaching experience could not be verified what is not disputed but rather admitted to the petitioner is that in the said institutions her teaching experience is only one month seven days. Therefore, it is clear that she did not possess teaching experience of three years which is requisite for the post of Head Mistress in terms of the advertisement dated 30.9.1998 and the Rules.
As regards the submission of the learned counsel for the petitioner that since no approval had been granted by the District Basic Education Officer within one month and therefore approval to the selection will be deemed to have been granted, the said submission is fallacious in the facts and circumstances of the case. Admittedly the panel of selected candidate with the letter of the Manager was received in the office of the District Basic Education Officer on 9.3.1999 and objection was raised by him on 31.3.99 i.e. within one month from date of receipt of letter of the Manager and therefore, the deeming clause contemplated in Rule 10 (5) (iii) of the Rules would not apply in the present case.
In view of above, I find no merit in the writ petition.
The writ petition is accordingly dismissed.
Order Date :- 2.5.2012 Asha