Subash Chandra Gupta vs State Of U.P. And 4 Others
2021 Latest Caselaw 9207 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 29
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 363 of 2021
 

 
Appellant :- Subash Chandra Gupta
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Appellant :- Shyam Dhar Gupta,Ganga Prasad Gupta,Seemant Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Munishwar Nath Bhandari,Acting Chief Justice
 
Hon'ble Subhash Chandra Sharma,J.

Order on Civil Misc. Delay Condonation Application No. 1 of 2021

Heard on the application under section 5 of Limitation Act.

Looking to the reasons given in the application and not opposed by the side opposite, the application is allowed.

Delay is condoned.

Order on Special Appeal

Exemption application is allowed.

The appellant is exempted from filing certified copy of the impugned order dated 17.02.2021 passed the learned Single Judge.

Heard learned counsel for the petitioner/appellant and Sri A.P. Paul, learned C.S.C. for the State.

By this appeal, challenge is made to the judgment dated 17.02.2021 whereby the writ petition preferred by the petitioner/appellant was dismissed. The writ petition was filed to challenge the order dated 05.03.2012 whereby approval of appointment of the petitioner/appellant was not granted.

The petitioner/appellant was appointed by Adarsh Purva Madhyamik Vidyalaya Baserwa, Jaunpur (hereinafter referred to as "the Institution"). It is recognized and aided institution governed by the provisions of Uttar Pradesh Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Services of Teachers) Rules, 1978 (hereinafter referred to as "the Rules of 1978"). The institution is also governed by U.P. Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978. The District Basic Education Officer sanctioned one post of Headmaster and four posts of Assistant Teachers apart from other posts. The Institution issued an advertisement in one newspaper on 19.09.1998 pursuant to which, petitioner/appellant applied for the post of assistant teacher. They were called for the interview and thereupon selected. The manager of the Institution sent documents to the District Basic Education Officer for approval which was granted by the order dated 26.11.1998 After the aforesaid, an inquiry was conducted on a complaint of the Headmaster of the Institution concerned before the Assistant Director of Education (Basic) Varanasi. In the inquiry, it was found that the appointment of the petitioner/appellant was as per law and accordingly an order was passed on 23.05.2008. Aggrieved by the said order, the manager of the Institution filed a writ petition bearing No. 49348 of 2008 (Committee of Management and another Vs. State of U.P. and others). The other writ petition was filed by one Vijay Shankar bearing Writ Petition No. 27271 of 2009 (Vijay Shankar Vs. State of U.P. and another). Those writ petitions were decided by judgment dated 09.05.2011 quashing the order dated 23.05.2008. A direction was given to the Director of Education (Basic) for conducting a fresh inquiry. The Director of Education (Basic) conducted inquiry pursuant to the directions of this Court and passed an order on 05.03.2012 holding appointment of the petitioners to be illegal. It was on the following grounds:

I. The advertisement of the vacancy had not been given in a local news paper having sufficient circulation;

II. Minimum qualification and the age limit had not been mentioned in the advertisement;

III. Patrank dated 27.05.1999 seems to be prima facie forged.;

IV. The selection letter had been given to the petitioners by hand and not by a registered post;

V. The appointment letters did not disclose salary on which the petitioners were appointed.

The petitioner/appellant got aggrieved by the order dated 05.03.2012 and preferred the writ petition which has been dismissed by the learned Single Judge in reference to the Rules. It was found that publication of the advertisement was in a daily newspaper "Tarun Mitra". The advertisement was not as per Rule 7 of the Uttar Pradesh Recognized Basic Schools (Junior High Schools) Rules, 1978. It was in violation of Rule 7 (1) of the Rules of 1978. It provides publication of advertisement in two newspapers out of which one should have circulation in the locality. Learned Single Judge found violation of Rule 7 (2) of the Rules of 1978 also requiring details of the post, minimum qualification, age limit etc. which were not disclosed in the advertisement published in the newspaper. It was also found that appointment order was not issued as per the Rules. Thus, no reason was found to quash the order dated 05.03.2012 and, accordingly, the writ petition was dismissed.

Learned counsel for the appellant submits that Rule 7 of the Rules of 1978, referred by the learned Single Judge was amended on 20th September, 1999 whereas the advertisement was issued in 1998. The amended provisions could not have applied. However, ignoring the aforesaid, amended provision requiring publication of the advertisement in two newspapers was taken note of. On the aforesaid ground itself, the judgement deserves to be set aside.

We have considered the submissions aforesaid and find that Rule 7 (1) of the Rules of 1978 was amended by notification dated 20th September, 1999 whereas the advertisement was in the year 1998 i.e. prior to the amendment. In view of the above, the finding of the learned Single Judge regarding publication of advertisement only in one newspaper is not sustainable rather as per the unamended provisions, the publication of the advertisement could not have been in one newspaper having circulation in the area where the school exist. The fact however remains that the other requirement under Rule 7 (2) of the Rules of 1978 were not complied by the Institution.

Rules 7 and 8 of the Rules of 1978 are quoted hereunder for ready reference:

"7. Advertisement of vacancy. - [(1) No vacancy shall be filled, except after its advertisement in at least two newspapers one of whom must have adequate circulation all over the State and the other in a locality the school is situated.]

(2) In every advertisement and intimation under clause (1), the Management shall give particulars as to the name of the post, the minimum qualifications and age-limit, if any, prescribed for such post and the last date for receipt of applications in pursuance of such advertisement.

8. Age limit. - The minimum age shall on the first day of July of the academic year following next after the year in which the advertisement of the vacancy is made under Rule 7 be :

(1) In relation to the post of an Assistant Teacher 21 years.

(2) In relation to the post of Head Master 30 years.]"

Learned counsel for the petitioner/appellant could not dispute non-compliance of Rule 7 (2) of the Rules of 1978 because the advertisement shown to this Court does not disclose the particulars as required under the said Rule. The argument that minimum qualification and age limit was otherwise to be governed by the Rules thus, there was no need to make publication of it. The argument aforesaid is going against Rule 7 (2) of the Rules of 1978 so as Rule 8. Rule 7 (2) requires publication of advertisement with the details given therein. Learned Single Judge thus found non-compliance of Rule 7 (2) to deny intervention in the order impugned therein.

Paragraphs 22, 27 and 28 of the judgment are quoted herein to show discussion of issue by the learned Single Judge:

"22. It further appears from perusal of the record that the vacancy was advertised only in a local newspaper namely "Tarun Mitra". It further appears from perusal of the same that the advertisement was not made as per the provisions contained under Rule, 1978. It is provided under Rule 7 of the aforesaid Rules, 1978 that no vacancy shall be filled except on its advertisement in at least two daily newspapers, one of whom must have adequate circulation all over the State and the other in locality where the school is situated. From perusal of the same, it is clear that the aforesaid rule was not complied with by the Institution while making advertisement in respect of the vacancy in question. It further reveals from perusal of Sub Rule 2 of Rule 7 of the Rules 1978 that in every advertisement and intimation under clause (1), the Management shall give particulars as to the name of the post, the minimum qualifications and age-limit, if any, prescribed for such post and the last date for receipt of applications in pursuance of such advertisement. It further appears from perusal of the record of the advertisement that the conditions contained under Sub Rule 2 of Rule 7 of the Rules, 1978 was not complied with because the minimum qualification and age limit have not been mentioned in the advertisement. It is further provided under Rule 8 of the Rules that the minimum age shall on the first day of July of the academic year following next after the year in which the advertisement of the vacancy was made under Rule 7 for the post of Assistant Teacher is 21 years.

27. This Court in Ram Asrey Singh Vs. District Basic Shiksha Adhikari, Mirzapur, reported in Laws (ALL) 1995 (3) 79, in some of the similar circumstances, has held as under:-

"It is not disputed that the vacancy against which the third respondent has been appointed was not advertised. Rule 7 of the Uttar Pradesh Recognised Basic Schools (Junior High School) (Recruitment and Condition of Service of Teacher) Rules, 1978 inhibits any appointment against a vacancy except after its advertisement in at least one newspaper having wide circulation in the locality and the intimation of such vacancy to the District Basic Education Officer. The appointment of the 3rd respondent having admittedly been made without advertisement cannot be sustained in view of the same being against the inhibition contained in Rule 7 of the statutory services Rules. Such an appointment is also hit by Article 14 of the Constitution of India. It may be observed that not only the petitioner is aggrieved but aggrieved are also all those qualified persons who could have applied for the post had it been advertised in accordance with the provisions of Rule 7 of the Rules aforestated. That apart the allegation that third respondent happens to be son of the brother-in-law of the then District Basic Shiksha Adhikari as made in paragraphs 8/9 of the writ petition is not disputed in the counter affidavit. In the facts and circumstances of the case, therefore, I have no hesitation in saying that the appointment of the third respondent was made in flagrant violation of statutory rules and on extraneous consideration, it is for the reasons aforestated that I am of the view that the appointment insofar as the respondent no.3 is concerned cannot be sustained in law.

It is true, that the petitioner as well as the third respondent participated in the selection proceedings held pursuant to an advertisement dated 18-1-1994 but the selection pursuant to said advertisement was admittedly in respect of one post of Headmaster and one post of Assistant Teacher other than the post against which the 3rd respondent has been appointed.

Accordingly, the petition succeeds and is allowed. The impugned order dated 29-1-1994 insofar as it relates to the 3rd respondent is quashed. The respondents are directed to hold fresh selection to the post in question in accordance with law.

Petition allowed."

28. The full bench of this Court in the case of Radha Raizada and others Vs. Committee of Management, Vidyawati Darbari Girls Inter College and others reported in (1994) 3 UPLBEC 1551 was pleased to hold that public advertisement in at least two newspapers having adequate circulation in the State is required to fill up the posts of Assistant Teachers. It is further held that in case, the appointments were made without following the procedure narrated under the Rules, the authorities possess the power under the Payment of Salaries Act to stop payment of salary to such teachers."

In view of the finding recorded and quoted above, we have examined the matter and find violation of Rule 7 (2) apart from other provisions and thereby there was no reason for the learned Single Judge to cause interference in the order dated 05.03.2012 where the Director of Education (Basic) had passed a detailed order pursuant to the earlier judgement. Learned counsel for the appellant could not show error in the judgement other than in regard to the publication of advertisement only in one newspaper instead of two newspapers. To that extent, we accept the argument but the result of the judgement remained unchanged because the order of Director of Education (Basic) dated 05.03.2012 is sustainable on other grounds.

The appeal accordingly fails and is dismissed.

Order Date :- 2.8.2021

Madhurima

(Subhash Chandra Sharma, J.) (Munishwar Nath Bhandari, ACJ.)