Prabhu Dayal vs State Of U.P. Thru Secy. Basic ...
2013 Latest Caselaw 4072 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 10
 

 
Case :- SERVICE SINGLE No. - 4407 of 2008
 

 
Petitioner :- Prabhu Dayal
 
Respondent :- State Of U.P. Thru Secy. Basic Education & 4 Ors.
 
Counsel for Petitioner :- S.C. Verma,Ajay Sharma,Pradeep Singh
 
Counsel for Respondent :- C.S.C.,Prashant Arora
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Heard Sri Ajay Sharma, learned counsel for the petitioner, learned Standing Counsel for opposite party No.1 and Sri Prashant Arora, learned counsel appearing for District Basic Education Officer, Hardoi.

Under challenge in the instant writ petition is an order dated 31.10.2007, passed by the District Basic Education Officer, Hardoi whereby representation made by the petitioner for payment of salary on the post of clerk in Jan Shyogi Sardar Patel Junor High Court, Selapur, Hardoi (herein after referred to an 'Institution') has been rejected. The said order has been passed in compliance of the order dated 13.09.2007, passed in an earlier writ petition filed by the petitioner bearing Writ Petition No. 5478 (SS) of 2007, Prabhu Dayal Vs. State of U.P. and other.

Submission of learned counsel for the petitioner is that the petitioner's appointment on the post of clerk in the institution was made in accordance with rules and regarding the approval of his appointment, which was sought, the District Basic Education Officer sat tight over the matter and ultimately did not accord his approval, therefore, in terms of the provisions contained in Rule 15 (5) (iii) of the U.P. Recognised Basic Schools (Junior High Schools)(Recruitment & Conditions of Service of Ministerial Staff & Group 'D' Employees) Rules, 1984 (hereinafter referred to 'Service Rules'), it is a case of deemed approval of the selection and appointment of the petitioner, hence, he is entitled to be paid salary.

Learned counsel for the petitioner submits that on occurrence of substantive vacancy of clerk in the institution, the Management of the Institution made a request to the District Basic Education Officer by means of letter dated 16.2.2005 seeking his permission to publish advertisement for initiating selection process to fill up the said vacancy. The District Basic Education Officer in reply to the aforesaid letter 16.02.2005 appears to have intimated to the Management of the Institution that fresh appropriate proposal for filling up post in question be sent to him. Learned counsel for the petitioner thereafter submits that since no permission to advertise the post was being given and the work of the Institution was suffering as such, in the exigency of work, the Management of the Institution issued advertisement on 04.05.2006 inviting applications from eligible candidates to participate in the selection for the post of clerk and accordingly the selection was held on 13.06.2006 in which, as per evaluation made by the selection committee, name of the petitioner was kept at Sl. No. 3 in the order of merit. Learned counsel for the petitioner has submitted that a request was made to the District Basic Education Officer for according his approval to the appointment of the petitioner and for according financial sanction for payment of salary vide letter dated 19.06.2006. He further submits that on 09.08.2006, appointment order was issued pursuant to which petitioner submitted his joining in the Institution on 14.08.2006.

However, the District Basic Education Officer by means of order dated 05.09.2006 sent back the papers submitted by the Management of the Institution seeking approval of the selection/appointment of the petitioner stating therein the certain reasons.

Petitioner thereafter appears to have filed a writ petition bearing No. 5478 (SS) of 2007 which was finally disposed of by means of order dated 13.09.2007 directing the District Basic Education Officer, Hardoi to decide representation of the petitioner which was made by him in respect of his grievance pertaining to approval of his appointment and payment salary. In compliance of the aforesaid order of this Court dated 13.09.2007, the impugned order rejecting the claim of the petitioner has been passed by the District Basic Education Officer on 31.10.2007. It is this order dated 31.10.2007, passed by the District Basic Education Officer which has been assailed by the petitioner by way of filing instant writ petition.

As observed above, learned counsel for the petitioner has empathetically stated that it was a case of deemed approval as contemplated in Rule 15 (5) (iii) of the U.P. Recognised Basic Schools (Junior High Schools)(Recruitment & Conditions of Service of Ministerial Staff & Group 'D' Employees) Rules, 1984 and hence the rejection of claim of the peittioner by District Basic Education Officer is not justified.

Per contra, Sri Prashan Arora, learned counsel for District Basic Education Officer has categorically stated that the entire selection process adopted by the Management of the Institution was carried out in derogation and disregard of the provisions of the Service Rules in as much as the Selection Committee constituted for the purposes of making selection was not in terms of the provisions contained in Rule 14 of the Service Rules. Drawing attention of this Court to Rule 14 of the Service Rules, Sri Arora has stated that Selection Committee as contemplated under Rule 14 of the Service Rules is to consist of (1) Manager, (2) Head Master of the Institution concerned and (3) Specialist to be nominated by the District Basic Education Officer. He further stated that in the instant case Selection Committee, admittedly, did not have specialist nominated by the District Basic Education Officer as provided under Rule 14 of the Service Rules, hence any selection made by such a Selection Committee which admittedly was not constituted as per Service Rules cannot be permitted to be given effect to.

The aforesaid categorical assertion made by learned counsel for the District Basic Education Officer has not been denied by the learned cousnel for the petitioner. Thus, there is no dispute that Selection Committee which conducted the selection in which petitioner was recommended/appointed on the post in question did not consist of specialist to be nominated by the District Basic Education Officer.

Learned counsel for the petitioner, however, has stated that despite several requests made to the District Basic Education Officer specialist was not nominated by him and hence, Committee of Management of the Institution was left with no other option but to proceed with the selection in absence of specialist to be nominated by the District Basic Education Officer and hence in this view of the matter no fault can be found in the selection of the petitioner.

Having considered the respective arguments raised by the learned counsel appearing for the parties, two issues which emerge for adjudication are that (a) as to whether in absence of specialist to be nominated by the District Basic Education Officer as member in the Selection Committee, selection in which the petitioner has been declared to be successful can be said to be lawful and (b) as to whether for the reason that decision of the District Basic Education Officer on the selection of the petitioner was not communicated within the time stipulated under the Rules, it was a case of deemed approval of the District Basic Education Officer and if so, whether the petitioner shall be entitled to be paid salary.

Service conditions including the appointment of non-teaching staff in a recognized Junior High School are governed by the Service Rules 1984. The Service Rules prescribes detailed procedure for selection and appointment. It further prescribes minimum qualification, eligibility of appointment, age, nationality, reservations and physical fitness etc. According to Rule 13 of the Service Rules, no vacancy can be filled in except after advertisement in at least one newspaper having adequate circulation in the locality and the intimation of such vacancy to the District Basic Education Officer.

Rule 14 of the Service Rules provides for constitution of Selection Committee which is as under:-

"Selection Committee.- The management shall constitute a selection committee consisting of :-

(1)Manager.

(2)Headmaster of the recognized school in which the appointment is to be made.

(3)A specialist nominated by the District Basic Education Officer who will be from amongst minority in respect of a school established and administered by a minority or from amongst Scheduled Castes in respect of any other school."

Rules 15, however, provides that Selection Committee shall, after interviewing such candidates, prepare a list containing the names of three candidates in order of preference who are found to be suitable for appointment and thereafter the list so prepared along with other relevant papers is required to be forwarded to the Committee of Management. The Management thereafter is required to send copy of select list to the District Basic Education Officer within one week from date of receipt of the papers from the Selection Committee.

Sub Rule (5) of Rule 15 of the Service Rules further provides that if the District Basic Education Officer is satisfied that the candidates recommended by the Selection Committee possess the minimum qualifications prescribed for the post and also that procedure laid down in the Service Rules for the selection has been followed, he is required to accord his approval to the recommendation made by the Selection Committee. Thereafter, the District Basic Education Officer is required to communicate his decision to the Management within two weeks from the date of receipt of the papers from the Management of the Institution. Thus, any selection in a recognized Junior High School on a clerical post or Group "D post can be given effect to only after approval of the District Basic Education Officer as per requirement of Sub-Rule (5) of Rule 15 of the Service Rules as mentioned above.

Rule 15 (5) (ii) of the Service Rules further provides that if the District Basic Education Officer is not satisfied , he shall return the papers to the Management with the direction that the matter shall be reconsidered by the Selection Committee. Rule 15 (5) (iii) of the Service Rules, hovever, further provides that in case District Basic Education Officer does not communicate his decision within one month from the date of receipt of the papers under Clause (4), he shall be deemed to have accorded approval to the recommendation made by the Selection Committee.

The first question for consideration is as to whether the Selection Committee, which conducted the selection in which petitioner has been declared successful, can be said to be appropriately or legally constituted.

From a perusal of the provisions contained in Rule 14 of the Service Rules quoted above, it is clear that Selection Committee is to consist of (1) Manager, (2) Headmaster and (3) Specialist to be nominated by the District Basic Education Officer. It may be noticed that Committee of Management may have in the instant case made request to the District Basic Education Officer to nominate specialist for the purposes of constitution of Selection Committee and the District Basic Education Officer may not have performed his obligation to nominate the specialist but in absence of specialist to be nominated by the District Basic Education Officer as a member of the Selection Committee, the constitution of the Selection Committee in the instant case cannot be said to be legal i.e. as per the provisions of Rule 14 of the Services Rules.

The presence of three members of the Selection Committee as envisaged under Rule 14 of the Service Rules is mandatory in nature. Presence or absence of either of the members of the Selection Committee may change the very colour of the selection, hence, I am of the considered opinion that in absence of specialist to be nominated by the District Basic Education Officer in the Selection Committee, any selection made by the such a Selection Committee cannot be termed to be legal and therefore, any recommendation made by such a Selection Committee cannot be legally permitted to be given effect to.

Further, any appointment based on the recommendation made by the Selection Committee can be made only once it is approved by the District Basic Education Officer as per requirement contained in Rule 15 (5) of the Service Rules. Appointment letter by the appointing authority can be issued under the direction of the District Basic Education Officer only once he accords his approval to the selection proceedings undertaken by the Selection Committee. Any deviation of the procedure laid down under Rule 15 of the Service Rules will not be in conformity with the requirement of the Rules, hence selection and appointment both will be vitiated.

In the instant case, there is no denial of the fact that District Basic Education Officer has not accorded his approval to the selection held by the Selection Committee and therefore, issuance of appointment letter in favour of petitioner on 09.08.2006 cannot be held to be lawful.

As far as the plea being taken by the learned counsel for the petitioner to the effect that since the decision by the District Basic Education Officer on the papers sent by the Committee of Management relating to selection in which petitioner was declared successful, was not communicated to the Committee of Management of the Institution within one month from the date of receipt of papers by him, the selectee i.e. petitioner will be deemed to have been accorded approval by the District Basic Education Officer and as such the appointment of the petitioner cannot be faulted, it would suffice to say that aforesaid provision of deemed approval in case of non-communication of the decision of the District Basic Education Officer shall be applicable only once the selection has been held appropriately, lawfully and as per Rules.

Admittedly, in the instant case, the very constitution of the Selection Committee which held the selection in which petitioner was declared successful was not as per the provisions contained under Rule 14 of the Service Rules. Thus, the question to application of deeming fiction regarding deemed approval of the selection of the petitioner by District Basic Education Officer, in the instance case, does not arise at all.

In view of the aforesaid facts and circumstances of the case as also in light of the observations and discussions made above, the Court is of the considered opinion that selection and appointment of the petitioner cannot be held to be lawfull being in complete derogation of the provisions of the Service Rules. The writ petition, thus lacks merit and as such the same deserves to be dismissed.

Accordingly, writ petition is hereby dismissed.

However, it is directed that selection on the post of clerk in the Institution shall be held within a period of four months from the date a certified copy of this order is produced before the Committee of Management of the Institution as well as before the District Basic Education Officer, Hardoi. It is further directed that District Basic Education Officer shall nominate the specialist for the purposes of formation of Selection Committee as contemplated under Rule 14 of the U.P. Recognized Basic Schools (Junior High Schools)(Recruitment & Conditions of Service of Ministerial Staff & Group 'D' Employees ) Rules 1984 within a period of one week from the date such a request is received by him from the Committee of Management. The Committee of Management shall advertise the post as per requirement of Rule 13 of the Services Rules simultaneously with moving its application to the District Basic Education Officer for nomination of the specialist for the purposes of formation of Selection Committee. After conclusion of formalities selection to the post in question will be completed within four months, as directed above.

At this juncture, Sri Prashant Arora, learned counsel for District Basis Education Officer has submitted that the State Government has issued a Government Order dated 15.03.2012 whereby fresh appointments have been prohibited.

A perusal of the Government Order dated 15.03.2012, however, reveals that such prohibition is not operative in case selection/appointment is to be made under the orders of this Court. Thus, so far as instant case is concerned, Government Order dated 15.03.2012 does not have any applicability.

Costs made easy.

Order Date :- 12.7.2013

Sanjay