Smt. Mamta Pandey vs State Of U.P.& Others
2012 Latest Caselaw 6126 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. 5
 

 

 
Civil Misc. Writ Petition No. 11864 of 2000
 
Smt. Mamta Pandey...................................................Petitioner.
 
Vs.
 
State of U.P. and others..............................................Respondents.
 

 

 
Hon'ble Rajes Kumar, J.

Heard Shyam Dhar Pandey, learned counsel for the petitioner and Ms. Suman Sirohi, learned Standing Counsel for the respondents.

The brief facts of the case are that there was a Society in the name of Dr. Bhim Rao Ambedkar Shiksha Samiti Thorpa Khurd, Hathni, Mau. The said Society is running an institution named as Dr. Bhim Rao Ambedkar Harijan Primary Pathshala Chorpakhurd duly recognized by the Samaj Kalyan Vibhag Government of U.P. The said institution was permanently recognised on 27.3.1992 by the Basic Shiksha Adhikari, Mau.

It is the case of the petitioner that he was appointed as a teacher in the year 1993 by the Committee of Management. The said institution being recognised by the Samaj Kalyan Vibhag Government of U.P. has been taken under grant-in-aid vide Government Order dated 31.3.1994, which is Annexure-2 to the writ petition along with other institutions. The name of the petitioner's Samiti is at serial no. 68 of the list. 12 posts of teachers were sanctioned having regard to the students in the institution. By the letter dated 24.6.1994, the District Samaj Kalyan Adhikari, Mau has granted approval of 12 teachers including the petitioner. The copy of the approval letter is Annexure-3 to the writ petition. It appears that when the salary has not been paid to the petitioner from 31.3.1994, the petitioner filed Writ Petition No. 15402 of 1997 which has been disposed of vide order dated 9.5.1997 directing the respondent to decide the representation of the petitioner by a speaking order within a time bound period. By the order dated 11.2.1997, the District Social Welfare Officer, Mau has observed that the petitioner was appointed on 10.8.1993 along with Sri Sunil Kumar Pandey prior to inclusion of institution under the grant-in-aid. By the letter dated 26.6.1994 their appointments have been approved by the District Samaj Kalyan Adhikari, Mau and her appointment is in accordance to rule and accordingly held that they are entitled to continue in service. It is the case of the petitioner that she has received salary upto the period of 1996 and thereafter the payment of salary has been stopped. When the payment of salary has been stopped, the petitioner filed the present writ petition for the direction to the respondents to pay the salary to the petitioner from month to month also pay the arrears of salary from March, 1996 and further not to appoint any person on the post of petitioner as an Assistant Teacher in the institution. Though the petitioner has impleaded District Social Welfare Officer, Mau and Basic Shiksha Adhikari, Mau but he has not impleaded the State of U.P. through Secretary, Social Welfare Department U.P., Lucknow and the Director of Social Welfare U.P., Lucknow.

Counter and rejoinder affidavits have been exchanged.

The writ petition was heard by the learned Single Judge of this

Court and on 18.5.2007, the writ petition has been allowed. Against the said order, the Sate of U.P. filed Special Appeal being Special Appeal No. 1428 of 2009 wherein it has been pleaded that the State of U.P. through Secretary, Social Welfare Department, U.P., Lucknow and Director, Social Welfare, Government of U.P., Lucknow were the necessary parties but they have not been made parties and, therefore, the order is vitiated. The said Special Appeal has been allowed vide order dated 14.5.2010. The order of the learned Single Judge has been set aside with the direction to implead State of U.P. through Secretary, Social Welfare Department, U.P., Lucknow and Director, Social Welfare, Government of U.P., Lucknow. In pursuance thereof, the State of U.P. through Secretary, Social Welfare Department, U.P., Lucknow and Director, Social Welfare, Government of U.P., Lucknow have been impleaded as respondent nos. 7 & 8. Both these parties have been directed to file counter affidavit. The counter affidavit on behalf of respondent nos. 7 & 8 has been filed by Smt. Geeta Saroj, Superintendent, Government Certified Home, Allahabad on 31.10.2012. The petitioner has filed rejoinder affidavit to the counter affidavit.

In the counter affidavit, filed by respondent nos. 7 & 8, in paragraph-7, it is stated that service condition of the petitioner is governed by the Rules, namely, The Uttar Pradesh Recognized Basic Schools (Recruitment and Conditions of Service of Teachers and other Conditions) Rules, 1975 (hereinafter referred to as Rules, 1975), which has been framed in exercise of power under sub-Section (1) of Section 19 of the U.P. Basic Education Act, 1972. It is averred that the procedure has been given in Rule 9 of the Rules, 1975, which provides that no person shall be appointed as a teacher in any recognized School (i) unless he possess such qualifications as are specified in this behalf by the Board and for those appointment, previous approval of the Basic Shiksha Adhikari is to be obtained in writing. In the present case, the petitioner did not disclose her qualification whether she is fulfilling or possessing such qualification which has been prescribed under the Rules for teachers (ii) it is noteworthy that in the present case, no previous approval has been sought from Basic Shiksha Adhikari which is mandatory as per rules. Since no prior approval before the advertisement in Newspapers have been sought from Basic Shiksha Adhikari, therefore, the appointment of the petitioner is illegal. It is further submitted that Rule 9 of the Rules, 1975 further provides that in case of vacancy the application for appointment shall be invited by the concerned Management through advertisement in at least two newspapers (one of them will be in daily newspaper) giving at least 30 days' time for submitting the application. In the present case, no vacancy was advertised in two newspapers. Rule 9 further provides that the Management will not select any untrained teacher and if the selected candidate is trained one, the appointment will be approved by the Basic Shiksha Adhikari. It is further averred that in the present case the Basic Shiksha Adhikari has neither given his prior approval nor subsequent approval. The Social Welfare Department has approved the appointment of the petitioner, who had no jurisdiction to approve the appointment of the petitioner. Since the District Social Welfare Officer is not competent authority to approve the appointment of the petitioner, therefore, approval given by the District Social Welfare Officer is a waste paper. In paragraph-9 of the affidavit, it is stated that since the appointment of the petitioner was not made in accordance to law and has never been approved by the competent authority, therefore, no question arises for payment of salary from the State Exchequer.

Learned counsel for the petitioner submitted that the petitioner was appointed as a teacher in the year 1993 by the Management, when the institution was not in grant-in-aid. He submitted that her appointment has been approved by the District Social Welfare Officer against the sanctioned post. The District Social Welfare Officer is the competent authority to approve the appointment of the petitioner after the institution being taken in grant-in-aid and the provisions of Rules, 1975 do not apply and, therefore, the petitioner is entitled for salary from the Government Exchequer. Learned counsel for the petitioner submitted that earlier in the counter affidavit, the District Social Welfare Officer has not taken any stand that the appointment of the petitioner was not made in accordance to Rules, 1975.

Learned Standing Counsel submitted that admittedly the institution is a primary institution and falls within the definition of recognised institution under Rules, 1975. Since the petitioner's institution is governed under the U.P. Basic Education Act, 1972, the petitioner's institution has been recognized by the Basic Shiksha Adhikari in the year 1992 and, therefore, for the appointment of teachers in a Junior Basic School, Rule, 1975 is applicable. Rule 9 of the Rules, 1975 provides procedure for the appointment of teachers and since the procedure has not been followed by the Committee of Management though the institution was recognised under the U.P. Basic Education Act, 1972 and the appointment has not been approved by the Basic Shiksha Adhikari, therefore, the appointment of the petitioner was ab initio illegal. In the counter affidavit, it is categorically stated that the procedure of Rule 9 of the Rules, 1975 has not been followed and the same has not been denied in the rejoinder affidavit, filed by the petitioner and, therefore, the petitioner is not entitled for salary from the Government Exchequer inasmuch as the appointment of the petitioner was not made in accordance to Rule 9 of the Rules, 1975. She further submitted that the Government Order dated 31.3.1994 was limited to grant-in-aid. The District Social Welfare Officer is only concerned about the grant-in-aid, which has been provided by the Social Welfare Department. The District Social Welfare Officer is not a competent authority to examine or to approve or disapprove the appointment of teachers in an institution. It is only the Basic Shiksha Adhikari, under the U.P. Basic Education Act, 1972 and the Rules, 1975, is competent to examine whether the appointment of the teacher is in accordance to law or not and, therefore, the approval granted by the District Social Welfare Officer and the further decision of the District Social Welfare Officer upholding the appointment of the petitioner as valid is meaningless and has no value in the eye of law.

I have considered rival submissions, perused the records and counter and rejoinder affidavits filed by the parties.

The petitioner's institution is imparting education upto Class V. It is a Junior Basic School. The said institution is admittedly fall within the definition of recognised school under clause (e) of Section 2 of the Rules, 1975. It is not the case of the petitioner that the said School is being maintained by the Board or any Local Body. Since the provisions of U.P. Basic Education Act, 1972 are applicable, the institution has been granted recognition by the Basic Shiksha Adhikari on 27.3.1992. Therefore, the institution was under the control of the Basic Shiksha Adhikari, Mau. After the recognition of the institution by the Basic Shiksha Adhikari, Mau any appointment made after 1992 ought to have been made in accordance to Rule 9 of the Rules, 1975. The District Social Welfare Officer is not the competent authority to examine the appointment of teachers and any activity relating to the education being imparted by the institution. He is only concerned with the grant-in-aid granted by the Social Welfare Department. It appears that the District Social Welfare Officer, Mau vide his order dated 24.6.1994 has approved the name of the teachers sent by the Committee of Management without examining the validity of their appointments under Rule 9 of the Rules, 1975. Further the District Samaj Kalyan Adhikari, Mau in the order dated 11.2.1997 has held the appointment of the petitioner in accordance to rule without examining the appointment of the petitioner under Rules, 1975. In the said letter, there is no reference of provisions of Rules, 1975. Therefore, these two letters will not validate the appointment of the petitioner under Rules, 1975. Moreover, the District Basic Shiksha Adhikari is not a competent authority under Rules, 1975 to examine the validity of the appointment of teachers in the institution or to grant the approval. In the counter affidavit filed by respondent nos. 7 and 8, referred herein above, it has been categorically stated that the appointment of the petitioner has not been made in accordance to Rule 9 of the Rules, 1975. In the rejoinder affidavit, this averment has not been disputed by the petitioner. Therefore, the appointment of the petitioner is ab initio illegal, contrary to the procedure provided under Rule 9 of the Rules, 1975 and, therefore, the respondent has rightly denied the payment of salary to the petitioner.

Learned counsel for the petitioner submitted that other teachers who have been appointed along with the petitioner, prior to institution being taken in grant-in-aid, have also been appointed similarly, without following Rule 9 of the Rules, 1975, but they are getting salary. The illegality cannot be perpetuated. The petitioner cannot claim parity on illegal grounds. However, even if it is assumed that some appointments have been made by the appointing authority but such illegal action of the appointing authority does not confer right on appellant to be enforced by the Court under Article 226 of the Constitution of India. I have no hesitation in coming to the conclusion that such appointment by the appointing authority has been made contrary to the provisions of statutory rules for some unknown reasons and I deprecate the practice adopted by the appointing authority in making such appointment contrary to the statutory rules. The Basic Shiksha Adhikari is directed to examine the appointment of other teachers also in the said institution and if the appointment of other teachers are also found illegal and contrary to Rule 9 of the Rules, 1975 necessary action will be taken in this regard.

In view of the aforesaid discussions, the writ petition has no merit and is accordingly dismissed.

Learned Standing Counsel is directed to provide the copy of this order to the District Basic Shiksha Adhikari, Mau for necessary compliance.

19.12.2012

OP