Allahabad High Court
State Of U.P. And Others vs Munendra Singh And Others on 3 December, 2013
Bench: Sheo Kumar Singh, Pradeep Kumar Baghel
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 29
Special Appeal Defective No. 774 of 2012
State of U.P. and others. .... ..... ... Appellants.
Versus
Munendra Singh and others. ...... ....Respondents.
Connected with:
Special Appeal No. 1141 of 2012
District Basic Shiksha Adhikari, Badaun, District Badaun. .... Appellant.
Versus
Munendra Singh and others. ...... .... Respondents.
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Hon'ble Sheo Kumar Singh,J.
Hon'ble Pradeep Kumar Singh Baghel,J.
1. As both the aforesaid special appeals arise out of the common judgment and order of the learned Single Judge dated 16th February, 2012 passed in Writ-A No. 64346 of 2007 (Munendra Singh and others v. State of U.P. and others), with the consent of learned Counsel appearing for the parties the same have been heard analogously and are being decided by this common judgment.
2. Vide impugned judgement and order dated 16th February, 2012, which gave rise to these appeals, passed by the learned Single Judge, the writ petition filed by two Assistant Teachers for payment of their salary has been allowed, order dated 23rd March, 2007 passed by the Assistant Director of Education (Basic), Bareilly has been quashed, and a direction has been issued for payment of arrears of their salary also.
3. A brief reference to the factual aspects would suffice.
4. Prem Kumari Deshraj Singh Junior High School, Bhatauli, District Budaun (for short, the "Institution") is a Junior High School. It is recognised under the provisions of the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (for short, the "Rules, 1978"). It is stated that in the year 1992 four vacancies for the post of Assistant Teachers occurred in the institution. Management of the institution vide a communication dated 01st April, 1992 apprised the said vacancies to the District Basic Education Officer, who, in turn, vide his communication dated 19th June, 1992 granted permission to fill up the aforesaid vacancies. Pursuant thereto, the Management issued advertisement in local newspaper inviting applications for appointment against the aforesaid vacancies. It is stated that District Basic Education Officer nominated his nominee, namely, Smt. Manju Lata, Assistant Girls Inspectress of Schools on 14th July, 1992. In pursuance of the aforesaid advertisement, the writ petitioners, respondent nos. 1 and 2 herein, (hereinafter called as the "writ petitioners"), who possess, essential qualifications for being appointed as Assistant Teacher made their applications along with other candidates.
5. On 15th July, 1992 the Selection Committee met wherein the nominee of the District Basic Education Officer was also present and it took interview of 19 candidates, who had applied pursuant to the said advertisement. On the basis of their quality point marks the writ petitioners were found suitable. The Management sent the entire papers relating to selection proceedings along with other necessary papers to the office of the District Basic Education Officer, Budaun for his approval.
6. The District Basic Education Officer granted his approval on 30th October, 1992 for a period of one year i.e. upto 30th June, 1993. Relevant it would be to mention that prior to the approval, the Committee of Management had already issued appointment letter on 05th August, 1992 to the writ petitioners, who submitted their joining on 05th August, 1992 itself. The copies of the appointment letters of the writ petitioners, their joining report and the approval letter of the District Basic Education Officer are on record being annexures-5, 6, 7, 8 and 9 respectively to the writ petition.
7. It is stated that the writ petitioners are working in the institution and after successful completion of their probation, the District Basic Education Officer vide order dated 06th October, 1994 confirmed/ regularized the services of the writ petitioners. A copy of the order dated 06th October, 1994 has been brought on record being annexure-10 to the writ petition.
8. The institution was brought on the maintenance grant list in the year 2006, therefore, it came under the purview of the provisions of the Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 (for short, the "Payment of Salaries Act") also. The names of the petitioners were shown in the list of staff of the institution which was sent to the Assistant Director of Education, Basic, also. This fact is evident from a communication of the Additional Director of Education (Basic) dated 21st February, 2007, which is on the record of the paper book. After the provisions of the Payment of Salaries Act were made applicable to the institution, it was liability of the State Government to make payment of salary in terms of Section 10 of the Payment of Salaries Act. The District Basic Education Officer sent a communication dated 26th February, 2007 to the Finance and Accounts Officer, Basic Education, Budaun for payment of salaries accordingly.
9. The writ petitioners have brought on record some of the circulars issued from the office of the Director of Education and the State Government in respect of payment of salary of the teachers of such institutions, which were brought on the grant-in-aid list. It is stated that the writ petitioners fulfilled all the conditions mentioned therein and their salary bill was prepared by the office of the District Basic Education Officer and it was transferred in the account of the institution on 21st March, 2007. It is averred that all of a sudden on 23rd March, 2007 the Assistant Director of Education (Basic) issued an order to the District Basic Education Officer to stop payment of salaries to the teachers and other ministerial staff of the institution. A copy of the said order is on the record being annexure-16 to the writ petition. Consequent upon, the District Basic Education Officer also issued an order dated 23rd March, 2007 to give effect to the said order of Assistant Director of Education (Basic) dated 23rd March, 2007. Challenging the aforesaid orders dated 23rd March, 2007 the writ petitioners filed the Writ Petition No. 64346 of 2007.
10. In the writ petition a counter affidavit was filed on behalf of the State functionaries, wherein for stopping the salary the reasons have been mentioned. It is stated that the writ petitioners have been illegally regularized by the District Basic Education Officer as there was no provision for regularization.
11. Learned Single Judge vide impugned judgement and order dated 16th February, 2012 allowed the aforesaid writ petition filed by the writ petitioners and quashed the orders impugned in the writ petition. Learned Single Judge has also directed for payment of arrears of salary of the writ petitioners.
12. Against the impugned judgement of the learned Single Judge dated 16th February, 2012 aforesaid two special appeals have been filed, the present appeal i.e. Special Appeal Defective No. 774 of 2012 by the State of U.P. and its functionaries, and the connected Special Appeal No. 1141 of 2012 by the District Basic Education Officer.
13. We have heard Sri Wasim Alam, learned Standing Counsel, who appeared in support of the appeals, and Sri Birendra Pratap Singh, learned Advocate who appeared for the respondents-writ petitioners.
14. The recruitment and services of Headmaster and Assistant Teachers of the recognised Junior High Schools are governed by the Rules, 1978. Rule 5 of the Rules, 1978 prescribes the eligibility for appointment. Rule 7 requires that no vacancy shall be filled except after its advertisement. Rule 9 provides for constitution of the Selection Committee. Rule 10 lays down the procedure for selection. Rule 11 deals with appointment, whereas, Rule 12 provides for confirmation.
15. As the issue involved in the present appeals is in respect of deemed confirmation of the Assistant Teachers, it would be advantageous to extract Rule 12 of the Rules, 1978, which is as under:
"12. Confirmation.--(1) The appointment of every Headmaster or Assistant Teacher, as the case may be, of a recognised school, not being an appointment under Rule 20 shall, in the first instance, be on probation of one year, which may be extended for further period not exceeding one year.
(2) If the service of Headmaster or teacher of a recognised school are not terminated before the expiry of the period or the extended period of probation, as the case may be, he shall be deemed to have been automatically confirmed on the expiry of such period."
16. A simple reading of Rule 12, as above, makes it clear that Headmaster or Assistant Teacher, in the first instance, shall be appointed on probation of one year, which may be extended for further one year but not beyond that. Thus, the Rule itself provides that the maximum probation period shall not be more than two years.
17. The issue with regard to automatic confirmation has engaged the attention of the Supreme Court in a large number of cases. In the case of High Court of M.P. through Registrar and others v. Satya Narain Jhavar, (2001) 7 SCC 161, the Supreme Court considered three different categories of confirmation of the probationers. The first category is where in the appointment letter or in the service rules, the period of probation is specified and power to extend probation period is conferred upon the authority but no maximum period of probation is prescribed. In such a situation, without confirmation probationers' service shall not be deemed to be confirmed even if the employee is allowed to continue beyond the extended period. In such case, services of the probationer can be terminated during the extended period after expiry of the period of probation. Second category of cases are where appointment letter or the service rules provides the maximum period of extension of probation i.e. where it is not permissible to extend the probation beyond the maximum period. Third category is where the service rules provide the maximum period of probation but at the same time it also provides a positive action by the employer to confirm the employee by issuing an order of confirmation. In the first category of cases, even if the employee continues beyond the maximum period, he shall not be deemed to be confirmed merely because he was allowed to continue beyond the extended period permissible under the service rules. In the second category of cases, where the maximum period of probation is fixed and the employee is allowed to continue beyond the extended maximum period, the employee shall be deemed to be confirmed without any order issued by the employer. In the third category of the cases if an employee is allowed to continue beyond the extended period of probation but no order has been passed by the employer for his confirmation, the employee shall not be deemed to be confirmed even though he has been allowed to continue beyond the maximum extended period.
18. In the case of Om Prakash Maurya v. U.P. Cooperative Sugar Factories Federation, Lucknow and others, 1986 (Supp) SCC 95, similarly worded regulations were considered by the Supreme Court. The Court held as under:
"4. In the instant case the order of appointment promoting the appellant to the post of Commercial Officer merely indicated that his probationary period could be extended and he could be reverted to the post of Office Superintendent without any notice. Stipulation for extension of probationary period in the appointment order must be considered in accordance with the proviso to Regulation 17(1) which means that the probationary period could be extended for a period of one year more. Indisputably on the expiry of the appellant's initial probationary period of one year, the appointing authority extended the same for another period of one year which also expired on September 4, 1982. During the period of probation appellant's services were neither terminated nor was he reverted to his substantive post instead he was allowed to continue on the post of Commercial Officer. On the expiry of the maximum probationary period of two years, the appellant could not be deemed to continue on probation, instead he stood confirmed in the post by implication. The appellant acquired the status of a confirmed employee on the post of Commercial Officer and the appointing authority could not legally revert him to the lower post of Superintendent."
"9. In view of the above discussion it is manifestly clear that the appellant's services were regulated by the U.P. Cooperative Societies Employees Service Regulations, 1975. Since under those Regulations appellant's probationary period could not be extended beyond the maximum period of two years, he stood confirmed on the expiry of maximum probationary period and thereafter he could not be reverted to a lower post treating him on probation. The order of reversion is illegal. We accordingly allow the appeal, set aside the order of the High Court and quash the order of reversion dated September 2, 1983 and direct that the appellant shall be treated in service and paid his wages and other allowances. The appellant is entitled to his costs which is quantified as Rs.1000."
19. Recently, the Supreme Court in the case of Head Master, Lawrence School, Lovedale v. Jayanthi Raghu and another, (2012) 4 SCC 793, has followed the judgement of Satya Narayan Jhavar (supra). The relevant portion of Jayanthi Raghu (supra) is extracted herein-below:
"28. After so stating, it was further clarified as follows: (Satya Narayan Jhavar case, SCC p. 187, para 37)
"37. Ordinarily a deemed confirmation of a probationer arises when the letter of appointment so stipulates or the rules governing service conditions so indicate. In the absence of such term in the letter of appointment or in the relevant Rules, it can be inferred on the basis of the relevant Rules by implication, as was the case in Dharam Singh1. .."
20. From the aforesaid judgements it is clearly discernible that if rules provide that after a certain extended period, the term cannot be further extended and employee is allowed to continue beyond the extended period then by implication his services shall be deemed to be confirmed.
21. In the light of the above law, Rule 12(1) of the Rules, 1978 may be examined. In Rule 12 (1) the words "for further period not exceeding one year" are significant. Moreover, Rule 12 (2) of the Rules, 1978 specifically and categorically provides that if the service of a teacher is not terminated before the expiry of the period or the extended period of probation, he shall be deemed to have been automatically confirmed on the expiry of such period.
22. Therefore, in our view, the services of the writ petitioners stood confirmed after the extended period of probation in terms of Rule 12 and there was no need to pass a separate order of regularisation. It is true that there is no provision for regularisation under the Rules, 1978 or the Uttar Pradesh Basic Education Act, 1972 of such appointments. If the services of the writ petitioners are deemed to be confirmed, there was no need for regularisation as they have become permanent Assistant Teachers in terms of Rule 12 of the Rules, 1978. Therefore, the order of the District Basic Education Officer regularising the services of the writ petitioners can be ignored as it was not necessary to pass any such order in respect of a confirmed Assistant Teacher.
23. There is another aspect of the matter. The writ petitioners are working in the institution for the last several years uninterruptedly. Their appointment was made with the permission of the competent authority and after the appointment was made, the approval was also accorded. There is no dispute that they possess essential qualifications and their appointments were made within the sanctioned strength. Therefore, at this distance of time it would be too harsh to set aside their appointments on a technical ground. In somewhat similar facts, the Supreme Court in the case of Agra District Coop. Bank Ltd. v. Labour Court, AIR 2001 SC 2396, has aptly observed, as under:
"11. We do not think that such a course is permissible. It is not a case where appointments have been made in an unauthorised manner. We have stated that prima facie there is material to show that selection process had been gone through by them and the candidates have been selected and such appointment is not against non-existent vacancies. In the special features of the case, the ratio of the decision in Ashwani Kumar v. State of Bihar2 cannot be applied. Correct principle to be applied is what we have stated in Buddhi Nath Chaudhary v. Abahi Kumar3. Even though there may be irregularity in the recruitment but by reasons of the respondents being in employment for more than 20 years the same stood cured by their long service and they are deemed to have been regularly appointed."
24. Thus, for the aforestated reasons, we are of the view that there is no error in the order of the learned Single Judge. Both the special appeals lack merit and are accordingly dismissed.
25. No order as to costs.
Order Date :- 03.12.2013
SKT/-
(Order on memo of appeal)
Hon'ble Sheo Kumar Singh,J.
Hon'ble Pradeep Kumar Singh Baghel,J.
The appeal is dismissed.
For order, see our order of the date passed on the separate sheets (eight pages).
Dt. 03.12.2013.
SKT/-
(Order on Delay Condonation Application)
Civil Misc. Delay Condonation Application No. 266288 of 2012.
In
Case :- SPECIAL APPEAL DEFECTIVE No. - 774 of 2012
Appellant :- State Of U.P. And Others
Respondent :- Munendra Singh And Others
Counsel for Appellant :- M.S. Pipersenia, S.C.
Counsel for Respondent :- Birendra P. Singh
Hon'ble Sheo Kumar Singh,J.
Hon'ble Pradeep Kumar Singh Baghel,J.
Heard Sri Wasim Alam, learned Advocate, who appeared in support of the appeal, and Sri Birendra Pratap Singh, learned Advocate, who appeared for the private respondents.
This is an application to condone the delay of 173 days in filing the appeal.
On 10.09.2012 the respondents were granted time to file counter affidavit on this application, but no counter affidavit has been filed as yet.
On the facts and after hearing the arguments of the parties, we feel that the delay has been properly explained and thus, that is to be condoned.
Accordingly, the delay in filing the appeal is condoned and the application for condonation of delay is allowed.
Order Date :- 3.12.2013
SKT/-
