Akhtarun Nisa vs District Basic Education ...
2013 Latest Caselaw 7123 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

									        AFR
 
Court No. - 17	       
 

 
Case :- SERVICE SINGLE No. - 2827 of 2007
 

 
Petitioner :- Akhtarun Nisa
 
Respondent :- District Basic Education Officer, Ambedkar Nagar & 3 Ors.
 
Counsel for Petitioner :- M.A. Siddiqui
 
Counsel for Respondent :- C.S.C.,Jyotinjay Verma,Ravi Prakkash Yadav
 

 
Hon'ble Vishnu Chandra Gupta,J.
 
				JUDGEMENT

1. Heard Sri M.A.Siddiqui, learned counsel for the petitioner, Sri Jyotinjay Verma, learned counsel for opposite parties no. 1, B.S.A., Ambedkar Nagar and Shri Vishal Yadav , learned counsel for opposite parties no. 2 and 3. None appeared for opposite party no.4 after notice.

2. In this case pleadings have been exchanged.

3. The short question for consideration before this Court is;

Whether Muallim-e-urdu was recognized qualification for recruitment of Assistant Teacher, Urdu of a private recognized Junior High School on 1.9.1997?

4. A school known as Adarsh Balika Vidhyalya, Khemapur District Ambedkar Nagar was recognized Junior High School and came in the list of grant-in-aid on 2.6.2006.

5. The Assistant Teacher namely Shahina Praveen resigned and consequently substantive vacancy occurred for the post of Assistant Teacher, Urdu. Thereafter an advertisement of the aforesaid vacancy was made in a newspaper "Jan Morcha" on 10th August, 1997. Thereafter a selection Committee was constituted for selection of Urdu Teacher. The B.S.A., Ambedkar Nagar deputed Sri T.N. Mishra Assistant B.S.A., Katheri Ambedkar Nagar as a nominee of the B.S.A in the Selection Committee. The Selection Committee approved two names on the basis of merit, interview and marks secured therein. The first name was of Akhtarun Nisha, petitioner and second name was of Km. Safia. The petitioner Akhtarun Nisha was recommended for appointment on the basis of merit. The resolution of Selection Committee dated 26.8.1997 (Anneuxre No. 6 to the writ petition) was sent to B.S.A. on 1.9.1997 vide Annexure 6-A to the writ petition. The B.S.A on the same day accorded approval of the report of the Selection Committee and recommended for appointment of Akhtarun Nisha the petitioner, for the post of Assistant Teacher Urdu (Annexure No. 7 to the writ petition). In pursuance thereof appointment letter was issued to petitioner on 1.9.1997 (Annexure No. 8 to the writ petition).

6. It is not in dispute that Akhtarun Nisha is continuing as a teacher in the aforesaid institution till date. The aforesaid school came under grant-in-aid list vide order dated 2nd December, 2006. A list of the working staff and teachers was submitted to B.S.A. Ambedkar Nagar. The B.S.A., Ambedkar Nagar did not accord approval for payment of salary to the petitioner vide its order dated 9.4.2007 (Annexure No. 1 to the writ petition). The reasons assigned for not according approval for payment of salary to Akhtarun Nisha was mentioned as below:

"Smt. Akhtarun Nisha ki Shaikshik Yogyata Muallim-e-Urdu Jinki Niyukt Tithi 1.9.97 hai jo Manya Nahi hai."

English Translation:

' Smt. Akhtarun Nisha whose educational qualification is Muallim-e-urduon the date of her appointment on 1.9.1997 is not recognized'"

7. Aggrieved by the aforesaid order this writ petition has been filed, wherein the petitioner sought for quashing the aforesaid order dated 9.4.2007.

8. The learned counsel for petitioner submits that this private institution is governed by the U.P. Recognized Basic Schools (Junior High Schools) (recruitment and condition of service of teachers) Rules 1978 (for short '1978 Rules'). Rule 4 of 1978 Rules prescribes the minimum qualification of Assistant Teacher. Rule 4 is quoted herein below:-

4. Minimum qualification:- (1) The minimum qualification for the post of Assistant Teacher of a recognised school shall be Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or equivalent examination (with Hindi and a teacher's training course recognized by the State Government or the Board such as Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate, or Certificate of Training).

(2) The minimum qualifications for the appointment to the post of Headmaster of a recognized school shall be as follows:

(a) A degree from a recognized University or an equivalent examination recognized as such;

(b) A teacher's training course recognized by the State Government or the Board, such as Hindustani Teaching Certificate, Junior Teaching Certificate, Certificate of Training or Basic Teaching Certificate; and

(c) Three years teaching experience in a recognized school. "

9. It was further pleaded that State Government vide notification no. 10/4/78 Karmik-2 dated 21st October, 1988 recognized the degree of Muallim-e-Urdu as a recognized educational qualification for recruitment of the teacher of Urdu language at the higher secondary level. It was further submitted that the State Government vide another notification dated 1775-15-3-61-9/93/94 dated 13th September, 1994 again reiterated that Muallim-e-Urdu is recognized for the direct recruitment of Urdu Teacher in those schools where Urdu language is thought up to the standard of Higher Secondary and is equivalent to BTC. On the strength of these notifications, it has been submitted that the petitioner was having a valid qualification at the time of recruitment as well as on the date when the institution was added in the list of grant-in-aid by the State Government for the payment of the salaries to the teachers and other staffs. It was further pleaded that fund was allotted by the State Government for payment of salary to the petitioner (Annexure No. 13 to the writ petition). In pursuant to the order of the B.S.A., Ambedkar Nagar dated 6.10.2005/7.10.2005 the amount was paid to the petitioner to the extent of Rs.48576/- (Annexure No. 14 to the writ petition). It was further submitted that the G.O. dated 11.8.1997 is applicable to the schools which are under the control and management of U.P. Basic Education Board and not applicable to the private institution in which the petitioner is working. It was further submitted that the institution which are governed and run by U.P. Basic Education Board, the services of the teacher of those schools are being governed by different set of rules known as U.P Basic Shiksha (Adhyapak) Sewak Niyamawali, 1981 (hereinafter referred to as the Rules 1981). Probably due to wrong application of G.O. dated 11.8.1997 issued for those schools which are being run by U.P. Basic Education Board has been applied to the teachers governed by 1978 Rules.

10. The learned counsel appearing for the petitioner submits that the minimum qualification required at the time of advertisement was being possessed by the petitioner which is substantiated by the notifications issued in the years 1988 and 1994 which are in consonance with Rule 4 of 1978 Rules. Therefore, the order impugned cannot be allowed to sustain.

11. The petition was contested by B.S.A who filed counter affidavit wherein he has taken the plea that the G.O. of 1994 was only applicable till issuance of notification dated 11.9.1997 and not thereafter. It was further submitted that the petitioner's appointment was de-horse the Rules and Rules 4 and 7 of 1978 Rules were violated as the educational qualification possessed by the petitioner is not equivalent to BTC and the advertisement was not made in accordance with the Rules. Thus the appointment made to the petitioner vide order dated 1.9.1997 by opposite party no. 4 is in gross violation of Rule 4 (2)(b) and 7(1) of Rule 1978.

12. The counter affidavit was also filed by opposite party no. 4 wherein the facts narrated by the petitioner were not challenged and virtually supported the stand taken by the petitioner.

13. The learned counsel appearing for the B.S.A. submits that the institution came into grant-in-aid list by notification dated 2nd December, 2006. The learned counsel appearing for the B.S.A fairly conceded that the services of the petitioner would be governed by 1978 Rules and not by 1981 Rules.

14. The contention of learned counsel for the opposite parties is that the appointment was made in violation of 1978 Rules because the publication was made only in one newspaper instead of two and hence the appointment made is irregular and if the appointment has been approved due to ignorance of Rules, the same will also be irregular and cannot be given effect.

15. My attention has been drawn by learned Counsel for the opposite parties towards para 6 of the writ petition, wherein it has been stated that the salary of "Tribhasha Teachers" is not payable under the U.P. Recognized Basic School, Junior High School Teachers Appointment and Service Conditions Rules, 1978. Hence it has to be seen whether the payment made to the institution was under which scheme or under which Act?

16. The opposite parties have not made any specific pleadings to this effect that a teacher appointed under the tri language scheme cannot be included in the grant-in-aid institution nor any such statutory provision or G.O has been brought on record to substantiate his plea.

17. The ground which has not been taken in the order impugned for disapproval of appointment of petitioner cannot be allowed to be taken in the counter affidavit to support the impugned order. It is not in dispute that the G.O. issued on 11.8.1997 is applicable only for the institution which are governed, managed and run by U.P. Basic Education Board and not by private individuals. The Rules for two different school are different. Hence I do not find any substance in the submissions of learned counsel appearing on behalf of the State as well as on behalf of B.S.A.

18. It is also worth notice that the stand taken by the B.S.A. in counter affidavit regarding non publication of advertisement in two news papers is contrary to the stand which has been taken for disallowing the salary of the petitioner mentioned in Annexure No. 1 to the writ petition. The opposite parties cannot be allowed to support the order impugned on any other ground which has not been taken for passing the impugned orders.

19. So far as the payment made to petitioner towards arrears of her salary in year 2005 from Government exchequer is concerned, the learned counsel stated that the amount was allocated by Government in Tri-Language (Tribhasha) scheme. Therefore the payment made to the petitioner will not by itself amounts that the petitioner was also entitled to her salary after including the institution under grant-in-aid in 2006.

20. Contrary to it, the learned Counsel for the petitioner submits that even if the amount paid to the petitioner in 2005 as stated by the counsel for BSA , it will not create an impediment for payment of salary to the petitioner after coming the school in grant-in-aid. More over there is no provision that a Urdu teacher duly appointed in 1978 Rules in Tribhasha Scheme of the State Government shall not be entitled to salary from the funds allocated to the school after coming into grant-in-aid or the teacher appointed under Tribhasha Scheme are not entitled to the benefit of grant-in-aid.

21. It has not been brought on record by the counsel for State or BSA that teachers appointed in accordance with 1978 Rules in Tribhasha Scheme are not regular appointees. It has also not brought on record that the teachers appointed under Tribhasha Scheme would not be paid salary after grant-in-aid from the funds allocated by State under the Act or there services comes to an end. It is also worth notice that in any case the payment of salary of petitioner has to be made from State exchequer.

22. The Hon'ble Supreme Court in Mohinder Singh Gill Vs. Chief Election Commissioner, AIR 1978 SC 851 has held as follows:-

" ----------When a statutory functionary makes an order based on certain grounds , its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reason in the shape of affidavit or otherwise."

23. As it is already established before this Court that the petitioner having requisite qualification known as Muallim-e-urdu on the date of her appointment on 1.9.1997 as Assistant Teacher Urdu in Adash Balika Vidhiyalya Khemapur, District Ambedkar Nagar, therefore the action of non payment of the salary to the petitioner cannot be allowed to continue in the garb of impugned order. Consequently the writ petitioner deserves to be allowed.

24. In view of the facts and circumstances of the case, writ petition is allowed with cost quantified at Rs.10,000/-. The impugned order so far as it relates to the petitioner, is set aside. If the cost is not paid to the petitioner within a month from the date of order the same shall be recovered as arrears of land revenue

25. The mandamus is also issued to opposite parties to make the payment of the petitioner's salary month to month with arrears since when she is not getting the salary with 9% interest from the date of accrual of the salary until payment is made.

Dt: 26.11.2013

Ravi/akverma