Allahabad High Court
Musafir Yadav vs State Of U.P. And Others on 8 July, 2011
Bench: Arun Tandon
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AF.R.
Court No. - 10
Case :- WRIT - A No. - 35520 of 2011
Petitioner :- Musafir Yadav
Respondent :- State Of U.P. And Others
Petitioner Counsel :- A.B. Singh,Manish Singh
Respondent Counsel :- C.S.C.,Rajeshwar Singh
Hon'ble Arun Tandon,J.
Heard learned counsel for the petitioner, Sri Rajeshwar Singh, learned counsel for respondent nos. 2 to 4 and learned Standing Counsel for State-respondent.
Under the letter of the Additional Director of Education (Basic) dated 5th March, 1987, in various recognized junior high schools post of teachers under Tribhasha Formula were created. Under clause-4 of the order, for the institution, namely, Yogiraj Deorahawababa Technical Laghu Madhyamik Vidyalaya, Pipara-Sarvan, Deoria, one post of Tribhasha teacher Sanskrit was created (copy whereof has been enclosed as Annexure-1 to the present writ petition). Under letter itself, it was specifically mentioned that the appointment on the post so created shall be made striclty in accordance with the Uttar Pradesh Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (hereinafter referred to as the 'Rules, 1978'), after following statutory procedure prescribed thereunder. To similar effect, is the advertisement published for the post in question (Annexure-3 to the present writ petition). Hover, the petitioner who at the relevant time had passed only intermediate examination was appointed. Admittedly on the date of appointment petitioner did not have any teaching qualifications as required under Rule-4 of Rules, 1978. It is therefore, clear that on the date of appointment, the petitioner was not possessed of the prescribed minimum qualification in terms of statutory rules as well as the order creating the post under Tribhasha Formula. However, the appointment of the petitioner was approved by the District Basic Education Officer.
It appears that the institution at the relevant time was unaided. The institution in question was brought on the grant-in-aid list on 2nd December, 2006 and at that point of time, the authorities concerned did not include the name of the petitioner for the purposes of payment of salary from the State exchequer. Petitioner, therefore, filed Civil Misc. Writ Petition No. 26377 of 2010 before this Court. The writ petition was disposed of permitting the petitioner to represent his grievance before the District Basic Education Officer.
Under the impugned order, the District Basic Education Officer has held that since on the date of appointment petitioner was not possessed of the prescribed minimum qualification as provided for under statutory Rules, 1978 as well as under the order crating the post, he is not entitled to salary from the State exchequer.
The order is being challenged by means of the present writ petition on the ground that an order of regularization was passed by the District Basic Education Officer in his favour as early as on 14th August, 1996. There is a judgment of the High Court for considering the claim of untrained teachers for grant of exemption from training like the petitioner, who had completed ten years of service, namely, case of Ramji & others vs. D.I.O.S. Azamgarh & others reported in 1997 (2) E.S.C. 808 (All.).
I have considered the submissions made by the learned counsel for the parties and have examined the records of the present writ petition.
The Hon'ble Supreme Court of India in the case of Mohd. Sartaj vs. State of U.P. & Ors., reported in 2006 (1) JT 331, has explained that appointment in a junior high school of a person not possessed of the prescribed minimum qualification would be void and any amount of working in the institution shall not cure the initial illegality. The Hon'ble Supreme Court in the case of Pramod Kumar vs. U.P. Secondary Education Services Commission & Ors., reported in 2008 (4) ALJ 207 has further held that essential qualifications are to be seen on the date of appointment and not at any latter point of time.
In view of the aforesaid law so declared by the Hon'ble Supreme Court of India, the District Basic Education Officer appears to be legally justified in refusing to sanction salary to the petitioner from the State exchequer, inasmuch as his appointment itself was de hors the statutory rules and conditions incorporated under the order creating the post of Tribhasha Teacher Sanskrit. Such illegal appointments cannot be perpetuated with the help of an order of the Writ Court under Article 226 of the Constitution of India.
So far as the judgment in the case of Ramji (Supra) relied upon by the petitioner is concerned, it refers to a Government Order dated 21st October, 1994, which has no application in the facts of the present case, inasmuch as the petitioner is not covered by said Government Order. Further the law as explained by the Hon'ble Supreme Court of India in the case of Mohd. Sartaj (Supra) and Pramod Kumar (Supra) had not seen the light of the day.
The present writ pettiion lacks merit and is accordingly dismissed.
(Arun Tandon, J.)
Order Date :- 8.7.2011
Sushil/-
