Allahabad High Court
Smt.Mamta Kushwaha vs State Of U P And 3 Others on 18 August, 2021
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 6
Case :- WRIT - A No. - 10157 of 2021
Petitioner :- Smt.Mamta Kushwaha
Respondent :- State Of U P And 3 Others
Counsel for Petitioner :- Prabhakar Awasthi
Counsel for Respondent :- C.S.C.
Hon'ble Pankaj Bhatia,J.
The present petition has been filed challenging the order dated 25.6.2020, whereby the DIOS has passed an order refusing to accord consideration to the appointments made in pursuance to the process of appointment initiated on 20.4.2018 merely on two grounds firstly that there is a proposed amendment in the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 and secondly that in terms of the amendment in the Rules w.e.f. 4.12.2019, appointments can only be done by the Board.
Learned counsel for the petitioner has assailed the said order on two grounds, firstly that a proposed amendment, which is likely to happen in future cannot be made basis for passing of any order and secondly he argues that the question with regard to the amendment in the Rules of 1978 dated 4.12.2019 is squarely covered by the Full Bench Judgment of this Court in the case of Santosh Kumar Singh Vs. State of U.P. and others, Special Appeal (Defective) No. 215 of 2015, judgment dated 22.7.2015.
A perusal of the order impugned shows that the respondent authorities felt that some amendment is proposed in the Rules of 1978, which is at the final stages and the consideration to the proposal can be done only after the amendments are carried out, which reasoning on the face of it, is arbitrary and cannot be accepted in law.
As regards the second reasoning, the Full Bench of this Court has considered the issue in the case of Santosh Kumar Singh (supra) and has answered the questions as follows:-
"We consequently answer the reference in the following terms:
(a) Despite the rescission of the Removal of Difficulties Orders by Section 33-E of U P Act No 13 of 1999 with effect from 25 January 1999, the power of the Committee of Management to make appointments against short term vacancies, where the process of appointment had been initiated prior to 25 January 1999 by the publication of an advertisement, would continue to be preserved;
(b) On the enforcement of the provisions of Section 33-E, the power of a Committee of Management to make ad hoc appointments against short term vacancies would not stand abrogated in a case where the process of selection had been initiated prior to 25 January 1999;
(c) Under Section 16-E of the Intermediate Education Act, 1921, the Committee of Management is empowered to make an appointment against a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding six months or in the case of death, termination or otherwise, of an incumbent occurring during an educational session. An appointment made under sub-section (11) of Section 16-E as provided in the proviso thereto shall, in any case, not continue beyond the end of educational session during which the appointment was made; and
(d) The judgment of the Division Bench in Subhash Chandra Tripathi (supra) is affirmed as laying down a correct interpretation of the judgment in A A Calton (supra).
The reference to the Full Bench is answered in the aforesaid terms. The special appeal shall now be placed before the appropriate Bench for disposal in the light of this judgment."
The second ground referred to in the order is that the Rules of 1978 have been modified by means of amendment, which has taken place w.e.f. 4.12.2019. A copy of the amendment has been produced, which indicates that the said amendment shall take effect from the date of its notification, which have came into force on 4th December, 2019. As the amendment in the Rules of 1978 does not have retrospective effect as such the appointment initiated prior to the said date i.e. 4th December, 2019 have to be completed in terms of law as existed prior to the amendment.
In the light of the findings as recorded above, on both the counts the impugned order is not sustainable, moreso in view of the fact that the process of appointment in the case was initiated on 20.4.2018 and the advertisement for appointment was issued on 1.5.2018 i.e. much prior to the date of Government Order dated 4.12.2019, as such the order dated 25.6.2020 is set aside. The matter is remanded to the respondent no. 2 to take a fresh decision on the approval of the appointment in accordance with law except for the two grounds as mentioned in the order dated 25th June, 2021. The said exercise shall be carried out with all expedition preferably within a period of four weeks from the date of production of a copy of this order before the respondent no. 2.
The writ petition is disposed off in terms of the said order.
Copy of the order downloaded from the official website of this Court shall be accepted/treated as certified copy of this order.
Order Date :- 18.8.2021
S. Rahman
