Court No. - 58
Case :- WRIT - A No. - 21976 of 2018 Petitioner :- Sri Shankar Bakhsh Singh Junior High School, Kanpur Nagar, And Anotehr Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Chhaya Gupta,Neeta Shukla,Sujeet Kumar Counsel for Respondent :- C.S.C.,Akhilesh Chandra Srivastava
Hon'ble Ashwani Kumar Mishra,J.
Representation made by the petitioner, Committee of Management, in terms of the direction issued by this Court in Writ Petition No. 11553 of 2018 for consideration of its claim to grant permission to fill up vacant posts of Assistant Teacher in the Institution has been rejected by the District Basic Education Officer, Kanpur Nagar relying upon certain circulars issued by the Director of Education.
Similar controversy as also the obligation of the authorities to grant permission to fill up vacant posts in terms of Rule 7(3) of the U.P. Recognised Basic Schools (Junior High School) (Recruitment and Conditions of Service of Teachers) Rules, 1978, has been examined by this Court in Writ Petition No. 36910 of 2016 and the position stands clarified in the judgement dated 23rd February, 2018. Para 5 to 12 of the aforesaid judgement is reproduced hereinafter:-
“5. Sri P. D. Tripathi, learned counsel for the respondents, on the other hand submits that once the grant to the institution is being restricted to the minimum norms fixed, the authorities cannot consider claim to fill up posts beyond it. Learned counsel has placed reliance upon a letter issued by the Director of Education (Basic) dated 7.1.2015, which is relevant and is extracted hereinafter: "izs"kd] f'k{kk funs'kd¼csfld½ mRrj izns'k] y[kuÅA lsok esa ftyk csfld f'k{kk vf/kdkjh] ¼uke ls½ dkS'kkEch i=kad% f'k0fu0¼cs0½ @2014&15 fnukad 07 tuojh 2015 fo"k;% ekuuh; mPp U;k;ky;] bykgkckn esa ;ksftr fjV ;kfpdk la0&13989@14 eas ikfjr vkns'k fnukad 06-03-2014 ds vuqikyu ds lanHkZ esaA egksn;] mi;qZDr fo"k;d izcU/k lfefr] lksgu yky twfu;j gkbZLdwy :i ukjk;.kiqj xksfj;ksa] fljkFkwa] dkS'kkEch ds i= fnukad 16&12&2014 ¼ewy:i esa layXu½ dk lanHkZ xzg.k djus dk d"V djsa] tks ekuuh; mPp U;k;ky;] bykgkckn esa ;ksftr fjV ;kfpdk la0& 13989@14 esa ikfjr vkns'k fnukad 06-03-2014 ds vuqikyu ls lEcfU/kr gSA 'kklukns'k la0&947@79&6&2014 fnukad 15-09-2014 }kjk v'kkldh; lgk;rk izkIr twfu;j gkbZLdwyksa esa fjDr lgk;d v/;kidksa dh HkrhZ ij yxh jksd esa f'kfFkyrk iznku dh x;h gS rFkk 'kklukns'k la0& 2435@79&6&2014 fnukad 30-12-2014 }kjk v'kkldh; lgk;rk izkIr twfu;j gkbZLdwyksa esa U;wure ekud ds vUrxZr fjDr lgk;d v/;kidksa ds inksa dks Hkjs tkus gsrq funsZ'k fn;k x;k gSA vr% vkidks funsZf'kr fd;k tkrk gS fd mDr fo|ky; esa U;wure ekud vFkkZr~ 04 lgk;d v/;kid ds lkis{k fjDr lgk;d v/;kid ds inks ij HkrhZ m0iz0 ekU;rk izkIr csfld Ldwy ¼twfu;j gkbZLdwy½ ¼v/;kidksa dh HkrhZ ,oa lsok 'krsaZ½ fu;ekoyh 1978 esa of.kZr izko/kkuksa ds vuqlkj fd;s tkus gsrq fu;ekuqlkj vko';d dk;Zokgh djuk lqfuf'pr djsaA layXud&mDror~ Hkonh;
¼fnus'k ckcw 'kekZ½ f'k{kk funs'kd ¼csfld½] mRrj izns'kA"
6. Admittedly, appointment in the institution is to be made in accordance with Rules of 1978. Rule 7(3) & (4) of the Rules are relevant for the present purpose and are extracted hereinafter: "7. Advertisement of vacancy.
(3) Management of the school after explaining the sanctioned posts of the institution shall send information of vacant post during the calender year compulsory to the District Basic Education Officer by the 30th April for permission of Advertisement to fill them.
(4) After scrutinizing the proposal within 15 days the District Basic Education Officer shall direct the manager to remove the objections, if any, within one week."
7. The Management while initiating proceedings for filling up posts is required to explain the sanctioned posts existing in the institution which have then to be examined by the District Basic Education Officer. In an institution where posts in excess of those fixed in the norms have already been created by the authorities, the District Basic Education Officer would not be justified in unilaterly reducing the posts already created in the institution, only on account of the circulars issued.
8. This Court in Writ Petition No.46368 of 2016 has already taken note of Government Orders/Circulars dated 8.8.2017 and 23.8.2017, which prescribes the procedure for determination of sanctioned strength of teachers in an institution concerned. The order passed by this Court on 11.1.2018 in the aforesaid petition is extracted hereinafter: "Committee of Management of the Junior High School concerned has approached this Court challenging an order of the District Basic Education Officer, Auraiya, dated 7.6.2016, whereby approval sought to the appointment of two teachers in the institution has been denied. In the operative portion of the order, it is recorded that total number of teachers permitted to be engaged in the institution are six, consisting of a post of Headmaster, four posts of Assistant Teacher and one Clerk, whereas six teachers are already working, and therefore, approval cannot be granted to the fresh appointments made in the institution.
The order is challenged primarily on the ground that there are 13 posts of teachers created in the institution under the orders of Regional Assistant Director of Education, Allahabad, dated 14.8.1988, and that appointments have been made against vacancies created on account of retirement of teachers, who were drawing salary from the State fund. It is stated that unilateral deduction in the number of post in the manner as has been done is wholly arbitrary. It is also stated that there is no basis to reduce the strength of teachers. Learned counsel has placed reliance upon Government Orders dated 8th August, 2017 and 23rd August, 2017, in order to contend that in the event, there is any dispute with regard to sanctioned strength of teachers then a survey has to be conducted by Committee, which has not been followed in the instant case. It is also stated that an order sanctioning the post could not have been nullified without an order passed by the competent court.
Although a counter affidavit has been filed raising various issues with regard to procedure followed in making of the appointment, but there is no justification brought on record in the counter affidavit for unilateral reduction of post under the order impugned. Specific plea of the institution that there are eight posts of Assistant Teacher together with a post of Headmaster although has been noticed in the order, but there is no discussion as to how the sanctioned strength of teachers has been reduced while passing the order impugned. In such circumstances, the order passed by the District Basic Education Officer dated 7.6.2016 cannot be sustained. Other issues raised in the order need not be commented upon, at this stage, inasmuch as petitioner's claim has been nonsuited only on account of absence of post.
Writ petition, consequently, succeeds and is allowed. Order dated 7.6.2016 passed by the District Basic Education Officer is quashed. A direction is issued to the authority concerned to re visit the issue, particularly with reference to existence of post. The authority concerned shall keep in mind the order passed by the Assistant Director dated 14.8.1988 as well as subsequent Government Orders issued for the purpose, before proceeding further. The required consideration shall be made within a period of three months from the date of presentation of certified copy of this order."
It would also be relevant to take note of section 26 of the Right of Children to Free and Compulsory Education Act, 2009, which mandates that the appointing authority, in relation to a school established, shall ensure that vacancy of a teacher shall not exceed 10% of the total sanctioned strength. Section 26 of the Act of 2009 is reproduced hereinafter: "26. Filling up vacancies of teachers. The appointing authority, in relation to a school established, owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government or by a local authority, shall ensure that vacancy of teacher in a school under its control shall not exceed ten per cent of the total sanctioned strength."
10. Rule 3 of 1978 Rules also casts an obligation upon the authorities to fill up the vacant post within two months of occurrence of vacancy. The authorities of the State are, therefore, enjoined by law to ensure that any vacancy is not allowed to exist beyond two months in an institution imparting education to students between 6 to 14 years of age.
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 Annexure3 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. "
The circulars which have been relied upon for the purposes of passing the order impugned were also the subject matter of consideration in the aforesaid judgement.
In view of what has been held by this Court in the aforesaid judgement, the order dated 9th July, 2018 cannot be sustained and is accordingly quashed. The District Basic Education Officer is directed to take a fresh decision in the matter within two months from the date of presentation of certified copy of this order. The authority concerned, while passing order, shall keep in mind the fact that remaining three teachers in the Institution would also retire in March, 2019 and the entire Institution would have to be closed down unless permission is granted to make fresh appointment forthwith.
Order Date :- 31.10.2018 P Kesari