Allahabad High Court
District Basic Education Officer vs Amod Kumar Sharma And Another on 4 August, 2017
Bench: Arun Tandon, Ritu Raj Awasthi
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 10 AFR
Case :- SPECIAL APPEAL No. - 161 of 2015
Appellant :- District Basic Education Officer
Respondent :- Amod Kumar Sharma And Another
Counsel for Appellant :- S.K. Chaudhary,B.P. Singh,Bhanu Pratap Singh
Counsel for Respondent :- Yogish Kr. Saxena,Satyaveer Singh,Vinod Kumar Singh
AND
Case :- SPECIAL APPEAL No. - 702 of 2016
Appellant :- C/M,Durbin Singh Rai Singh Uchchattar Madhy.Vidyalaya & Anr.
Respondent :- State Of U.P. And 3 Others
Counsel for Appellant :- Vinod Kumar Singh
Counsel for Respondent :- C.S.C.,S.K.Chaudhry,Satyaveer Singh
Hon'ble Arun Tandon,J.
Hon'ble Ritu Raj Awasthi,J.
The judgment and order of the learned Single Judge impugned in Special Appeal No. 161 of 2015 dated 18.7.2012, in our opinion, proceeds on complete non-consideration of the effect of the order passed by the Basic Shiksha Adhikari dated 1/3.5.1999. The learned Single Judge has recorded that under the order dated 1/3.5.1999 the appointment of petitioner, Amod Kumar Sharma, was found to be in accordance with the Rules when on reading of the said order we find that a categorical finding has been returned that the teachers in excess of the sanction post had been appointed in the Institution and that as per the direction of the Director, Madhyamik, U.P. dated 31.1.1998 excess seven teachers of the Institution were required to be removed. The operative part of the letter dated 1/3.5.1999 reads as under:
"mi;qZDr ds vk/kkj ij Li"V gS fd Jh 'kekZ orZeku esa Hkh fo/kky; lgk;d v/;kid ds in ij fofggr fu;qDr ,oa ekU; gS vkSj ,slh fLFkfr esa muls dk;Z u ysus ,oa osrukfn dk Hkqxrku u djus dk dksbZ vkSfpR; ugh gS tgkW rd f'k{kk funs'kd ek/;fed m0iz0 ds vkns'k fnukad 31-5-1998 ds vuqikyu esa vfrfjDr lkr v/;kidksa dh lsok;sa lekIr djus dk iz'u gS ds laca/k esa mUgh v/;kidks dks lsokvks ls i`Fkd djus dk vkSfpR; gS] tks f'k{kk funs'kd m0iz0 ds fo"k; esa QthZ rkSj ij fu;qDr x;s crk;s x;s gSA e.Myh; lgk;d f'k{kk funs'kd] vkxjk }kjk o"kZ 1987 esa tks in l`ftr fd;s gS bu ij fu;qfDr in l`ftr ds ckn gh fof/k ekU; gks ldrh gS blls iwoZ fu;qDr v/;kidks dks bl l`ftr inks ds izfr fu;qDr fd;k x;k ekus tkus dk Hkh vkSfpR; izrhr ugha gksrk gS vkSj fcuk in ds ,sls v/;kidks dh x;h fu;qfDr dks lrr ekuk tkuk fof/k lEer ugh gSA vr% leLr v/;kidks dh fu;qfDr vuqeksnu ofj"Brk vkfn dh xgu leh{kk f'k{kk funs'kd ek/;fed] m0iz0 ds vkns'k fnukad 31-1-98 ds vkyksd esa djds gh vfrfjDr v/;kidks dh lsok lekIr dj fu.kZ; ysuk mi;qDr gksxkA
vkns'k
mi;qZDr foospuk ds vk/kkj ij vkeksn dqekj 'kekZ v/;kid dks muds in ij rRdky dk;ZHkkj xzg.k djkus ,os osru Hkqxrku ds vkns'k fn;s tkrs gS rFkk fu/kkZfjr ,oa ekU; tu 'kfDr ds vuqlkj v/;kikdksa ,os deZpkfj;ksa ds osrukfn dk Hkqxrku djus gsrq vfrfjDr v/;kidks ,oa dpZpkfj;ksa dks leh{kk djds lsokvks ls i`Fkd djus dh dk;Zokgh rRdky djus gsrq izca/k rsa= dks vkfn'kr fd;k tkrk gSA
g0 vLi"V
ftyk csfld f'k{kk vf/kdkjh. ,VkA"
In our opinion, the minimum required was to have insisted upon the authorities concerned to first determine as to who were the teachers who were appointed in excess of the sanctioned strength having regard to the date of sanction of the posts and the date of appointment of the teacher concerned.
We further find that the Basic Shiksha Adhikari under the order impugned in the writ petition dated 10.5.2006 and dated 12.5.2006 has returned a categorical finding that the appointment as claimed by the writ-petitioner, Amod Kumar Sharma had not been made after following the procedure prescribed under the statutory Rules applicable, namely, Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and Other Employees) Rules, 1978 and that the appointment of petitioner, Amod Kumar Sharma, was in excess of the sanctioned post.
The finding returned by the Basic Shiksha Adhikari qua appointment of petitioner being in excess of the sanctioned post at the relevant time is not diluted in any manner/adversely affected by the order of the Basic Shiksha Adhikari dated 1/3.5.1999 specifically when the said order itself provides that there must identification of the teachers who have been appointed in excess of the sanctioned post and seven teachers were required to be removed.
In our opinion, the learned Single Judge was not justified in upsetting the order of the Basic Shiksha Adhikari dated 10.5.2006 and 12.5.2006 without returning any finding on: (a) as to whether the procedure prescribed under the Rules of 1978 in the matter of recruitment of the petitioner on the post of teachers had been followed in letter and spirit or not; and (b) how the conclusion drawn by the Basic Shiksha Adhikari qua the appointment of petitioner being in excess of the sanctioned post at the relevant time was bad.
Since judgment dated 28.9.2016 passed in Writ-A No. 46890 of 2016 challenged in Special Appeal No. 702 of 2016 is based on the judgment and order dated 18.7.2012 passed in Writ-A No. 28868 of 2006 and the judgment and order dated 18.7.2012 passed in Writ-A No. 28868 of 2006 has been held to be bad, the judgment dated 28.9.2016 is also liable to be set aside.
For the all the aforesaid reasons, the judgment and order of the learned Single Judge dated 18.7.2012 passed in Writ-A No. 28868 of 2006 and judgment and order dated 28.9.2016 passed in Writ-A No. 46890 of 2016 are hereby set aside.
The writ petitions are restored to their original number to be heard and decided afresh in the light of the observations made above. Learned Single Judge may consider the legality of the appointment including the issue of procedure prescribed under the Rules having been followed or not and whether there was any sanctioned post for such appointment on the relevant date.
Since the writ petitions are of the year 2006, we direct that the writ petitions shall be listed before the appropriate Bench in the week commencing 28.8.2017.
We request the learned Single Judge to decide the writ petition, if possible on the date it is listed next, at the earliest possible.
The special appeals are allowed.
(Ritu Raj Awasthi, J.) (Arun Tandon, J.)
Order Date :- 4.8.2017
Santosh/-
