Subash Chandra Gupta And Others vs State Of U.P. And Others
2021 Latest Caselaw 2347 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

							     Reserved on 02.11.2020
 
							     Delivered on 17.02.2021
 

 
Court No. - 10
 

 
Case :- WRIT - A No. - 33010 of 2012
 

 
Petitioner :- Subash Chandra Gupta And Others
 
Respondent :- State of U.P. and Others
 
Counsel for Petitioner :- P.N. Tripathi,B.B.Dubey,Ganga Prasad Gupta,Radha Kant Ojha,Ramesh Chandra Dwivedi,Sanjay Singh,Shyam Dhar Gupta
 
Counsel for Respondent :- C.S.C.,C.S.C.
 

 
Hon'ble Prakash Padia,J.

1. Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri S.D. Gupta, learned counsel for the petitioners and learned Standing Counsel for the respondents.

2. The petitioners have preferred the present writ petition with the prayer to quash the impugned order dated 05.03.2012 and with a further prayer not to interfere in the peaceful working of the petitioners on their respective posts and to make payment of their salaries with effect from the date the institution in question has been taken into grant-in-aid.

3. Facts in brief as contained in the writ petition are that Adarsh Purva Madhyamik Vidyalaya Baserwa Jaunpur (hereinafter referred to as "the Institution") is a recognized and aided institution and is 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, 1978") and is also governed by U.P. Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978. The aforesaid institution was accorded permanent recognition on 27.07.1985.

4. The District Basic Education Officer vide its order dated 11.08.1985 sanctioned one post of Headmaster, four posts of Assistant Teachers, one post of Clerk and three posts of Class IV employees in the Institution. Two posts of Assistant Teachers were lying vacant in the Institution which were advertised on 19.09.1998 in the newspaper "Tarun Mitra". The petitioners Nos.1 and 2 were also applied for the post of Assistant Teacher. As per the advertisement, the date fixed for interview was 11.10.1998 but due to the observer appointed by the District Basic Education Officer could not reach, the interview was adjourned to 01.11.1998. On 01.11.1998 interview was held and the petitioner Nos.1 and 2 were selected on the post of Assistant Teacher. On 06.11.1998, the Manager of the Institution sent the papers to the District Basic Eduction Officer Jaunpur for approval which was granted on 26.11.1998 by him. The appointment letters were issued by the Manager of the Institution to the aforesaid petitioners and on 01.12.1998, petitioner Nos.1 and 2 joined their duties and till date, they are continuously working as Assistant Teachers.

5. Insofar as the petitioner No.3 is concerned, a post of clerk was advertised in the Newspaper "Tarun Mitra" on 22.02.1999 & pursuant to the same, petitioner no.3 applied for the aforesaid post. On 28.03.1999, interview was held and the petitioner No.3 was declared successful. Thereafter, the Manager sent the papers to the District Basic Education Officer, Jaunpur for its approval and on 27.05.1999, approval was granted by him. The petitioner No.3 joined his duty on 01.07.1999 and till date he is working continuously.

6. On 25.09.2001, the District Basic Education Officer Jaunpur issued a press note directing all the managers/headmasters of the Junior High Schools to furnish the statement of the staffs working in their respective institution. In pursuance to the aforesaid press note, the Manager of the Institution submitted the list of working staff on 08.10.2001 in which the name of all the petitioners are endorsed at serial Nos.4, 5 and 6.

7. The Institution was taken into grant-in-aid by the State Government on 02.12.2006, thereafter the Manager namely Sri Shyam Lal Tyagi demanded a sum of Rupees One Lac from each of the petitioners and when the petitioners could not fulfil his demand, he made a forged muster roll deleting the name of the petitioners and adding other persons name as employees. On this, the Headmaster of the Institution made a complaint before the Assistant Director of Education (Basic) Varanasi Mandal, Varanasi disclosing the entire facts. The Assistant Director of Education (Basic), Varanasi Mandal, Varanasi made an enquiry and found the appointment of the petitioners as per law, vide order dated 23.05.2008, the same is appended as Annexure No.15 to the writ petition.

8. Aggrieved against the aforesaid order, the Manager of the Institution filed writ petition being Writ Petition No.49348 of 2008 (Committee of Management and another Vs. State of U.P. and others). Another writ petition being Writ Petition No.27271 of 2009 (Vijay Shankar Vs. State of U.P. and another). Another writ petition was filed by the Head Master namely Dhananjay Pathak and the petitioners filed Writ Petition No.14597 of 2011 before this Court for payment of their salaries. All the petitions were clubbed together and decided on 09.05.2011 by which the order dated 23.05.2008 passed by the Assistant Director of Education (Basic) Varanasi Mandal, Varanasi had been quashed and the matter was remitted back to Director of Education (Basic) U.P. Lucknow for conducting fresh enquiry in the matter.

9. The Director of Education (Basic) Lucknow conducted the enquiry and passed order dated 05.03.2012 in which it was observed that the muster roll submitted by the Manager is forged and declared the appointment of the petitioners illegal on the following grounds:-

I. The advertisement of the vacancy for the selection of the petitioners had been made in a local news paper which has not sufficient circulation in the concerned area.

II. The minimum qualification and the age limit had not been mentioned in the advertisement.

III. Patrank/4747/dated 27.05.1999 seems prima facie forged.

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

V. In the appointment letters of the petitioners salary had not been mentioned and seven days time in place of fifteen days had been granted to the petitioners to join service.

10. Hence the present writ petition.

11. It is argued by Sri Ashok Khare, learned Senior Counsel that all the objections raised in the order impugned is absolutely illegal and bad in the eyes of law. It is further argued that all the petitioners were duly appointed after following the procedure prescribed under the relevant rules and as such they are entitled for their salary.

12. Insofar as the first objection made in the impugned order regarding advertisement of vacancy is concerned, it is argued that the aforesaid newspaper namely "Tarun Mitra" has sufficient and vide circulation in the area concerned and even the selection list of the teachers, who are getting salary on the direction of the High Court, had been published in the same news paper, besides this the subsequent publication for the recruitment of subsequent teachers has been made in the same newspaper by the respondents as such they can not blow hot and cold at the same time.

13. Insofar as the second objection regarding minimum qualification and age is concerned, it is argued that the minimum qualification and the age limit both had already been fixed in the Act itself. It is argued that after a long process of selection and its approval and after a long period of service, the aforesaid grounds has no relevancy at this stage. Learned Senior Counsel argued that in C.M.W.P. No.45941 of 2006 (Kameshwar Prasad Pandey Vs. State of U.P. and others) identical issues have been raised and this Hon'ble Court vide order dated 15.05.2007 directed the State-respondents to draw salary in favour of the petitioners.

14. Insofar as the third objection regarding Patrank/4747/dated 27.05.1999 seems forged, is concerned, it is argued by learned Senior Counsel that this patrank is not related to the petitioners because the selection of the petitioner Nos.1 & 2 has been made through Patrank/4747 dated 27.05.1999 and the same has been found as per law by the District Basic Education Officer Janunpur as well as Assistant Director of Education (Basic) Varanasi Mandal, Varanasi. It is further argued that the Director of Education has not found any illegality in it.

15. Insofar as the fourth objection is concerned that the selection letter had been given to the petitioners by hand and not by registered post is concerned, it is argued by learned Senior Counsel that for the aforesaid irregularity, the innocent petitioners cannot be made scapegoat and this is the in action on the part of the respondents.

16. Insofar as the fifth and last objection regarding non-mention of salary in the appointment letters is concerned, it is argued that for the said irregularity, the respondents are responsible and the petitioners cannot be punished. Learned Senior Counsel relied upon a judgement passed in Special Appeal No.1007 of 2010 (Firangi Prasad Vs. State ofU.P. and others) decided by a Division Bench of this Court on 11.11.2010 and argued that in the light of this judgment, the petitioners cannot be made scapegoat for the aforesaid irregularities.

17. A counter affidavit has been filed by the learned Standing Counsel on behalf of respondent Nos.2, 3 and 4. It is argued by learned Standing Counsel that the advertisement in respect of appointment of the petitioner has been made in local daily newspaper "Tarun Mitra" in its issue dated 19.9.1998. The said advertisement is not as per provisions of Rule 7 of Uttar Pradesh Manyata Prapta Basic School (Junior High School) Adhyapko Ki Bharti Evam Sewa Sherten) Niyamawali, 1978 (hereinafter referred to "the Rules, 1978"). The committee of management in the advertisement has mentioned that two posts of Assistant Trained Teacher are required to be filled in Adarsh Purva Madhyamik Vidyalaya Baserwa, Jaunpur. The candidates could sent their appliction forms to the committee of management till 7th October, 1998 and they shall appear for interview on 11th October, 1998 with their original certificates and no travelling allowance shall be payable. Rule 7(1) of the Rules, 1978 provides that the advertisement for filling the vacancy shall be made in two newspapers one of whom must have been adequate circulation all over the State and the other in the locality the School is situated.

18. It is further argued that the appointment letters which are annexed by the petitioner Subhash Chandra Gupta and Sunil Kumar Mishra are not as per the provisions, Rule 11(2) (Kha) of the Rules, 1978. It is provided that in the appointment letter, it shall be clearly mentioned the name of post, pay scale, type of appointment, permanent or temporary and if the candidate does not join the post within 15 days from the date of receipt of appointment letter, his appointment shall be cancelled. In the appointment letter of petitioners Subhash Chandra Gupta and Sunil Kumar Mishra, neither the pay scale nor the time frame for their joining within 15 days was mentioned. It is further argued that against the alleged post creation order dated 15.3.1987 issued by the Assistant Director of Education (Basic), Varanasi, by which the 3 posts of Assistant Teacher was created, the manager of the Institution for filling the aforesaid three posts got published the advertisement. In respect of the said advertisement, the order dated 30.3.1987 of Assistant Director of Education (Basic), Varanasi relates to permanent recognition of Shri Girja Sharan Junior High School, Murkha, Dobhi Jaunpur. It is argued that when the dispatch serial of 30th March, 1987 is 8283-360, hence how the dispatch serial of 15th March, 1987 is 8336. by the aforesaid advertisement, the appointment for the post of Clerk was also advertised. The petitioners have not filed any evidence regarding approval to their selection. In view of the aforesaid, it is argued by the learned Standing Counsel that the order passed by the Director of Education (Basic) Lucknow is absolutely just, proper and does not have any irregularity or illegality and also does not call for any interference by this Court.

19. Heard learned counsel for the parties and perused the record.

20. From perusal of the record, it transpires that earlier three writ petitions were filed in respect of the said matter being Writ Petition No.49348 of 2008. The aforesaid writ petition was clubbed with Writ Petition No.27271 of 2009 (Vijay Shanker Vs. State of U.P. and others) and Writ Petition No.14597 of 2011 (Dhananjay Prasad Pathak Vs. State of U.P. and others). All the aforesaid writ petitions were finally decided by a co-ordinate bench of this Court vide order dated 09.05.2011. The operative portion of the aforesaid order is quoted below :-

"However, so far as the remaining claimants are concerned, the matter is remitted to the Director of Basic Education who may enquire into the issue after examining the original records, including the attendance register etc. of the institution and creation of posts etc. and thereafter pass a reasoned order within a period of eight weeks from the date of submission of a certified copy of this order, after hearing all the relevant parties. The question of payment to the disputed teachers and employees would be subject to the orders which are to be passed by the Director of Basic Education.

With the aforesaid directions, all the three writ petitions are finally disposed off."

21. Pursuant to the same, the order impugned has been passed by the Director of Education (Basic) Lucknow. The aforesaid order was passed after taking into consideration all the aspects of the matter, therefore, the same does not call for any interference by this Court.

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.

23. Rules 7 and 8 of the Rules, 1978 are quoted below:-

"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.]"

24. From perusal of the same, it is clear that the procedure prescribed under the Rules, 1978 was not complied with by the Management while filling up the aforesaid vacancy. All the aforesaid aspects have been dealt with in the order impugned.

25. The supreme court in the case of State of Punjab v. Brijeshwar Singh Chahal : (2016) 6 SCC 1 in para 19 and 39 has held as under:-

"19. It is by now, fairly well settled that not only the Government but all public bodies are trustees of the power vested in them and custodians of public interest. Discharge of that trust in the best possible manner is the primary duty of those in charge of the affairs of the State or public body. This necessarily implies that the nature of functions and duties including the power to engage, employ or recruit servants, agents, advisors and representatives must be exercised in a fair, reasonable, non-discriminatory and objective manner. It is also fairly well settled that duty to act fairly and reasonably is a facet of "Rule of Law" in a constitutional democracy like ours. A long line of decisions of this Court over the past five decades or so have ruled that arbitrariness has no place in a polity governed by Rule of Law and that Article 14 of the Constitution of India strikes at arbitrariness in every State action. We may gainfully refer to some of these decisions, not so much to add to their content as to remind ourselves that we have come a long way in the matter of settling the contours of the doctrine of Rule of Law of which equality is one significant feature."

26. Favouritism in appointment to public post amounts to denial of equality of opportunity under Articles 14 and 16 of the Constitution of India. It is the constitutional duty of the appointing authority to ensure fair selection process. If the selection process is found to be tainted for reasons of bias, unreasonable or discrimination, it has to be struck down being violative of Articles 14 and 16 of the Constitution of India.

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.

29. The payment of salary to the teachers appointed is the liability of the State Government. The advertisement of vacancies must confirm to the requirement of Article 16(1) of the Constitution which prohibits the State to do anything whether by making rule or by executive order issued denying equal opportunity to all the citizens. In case any appointment is made, without following the procedure prescribed under the relevant rules, such kind of appointments are an eye wash for the requirement of Article 16 of the Constitution. This aspect can be examined by another angle that if the appointment of teachers or employees in the Institution is made without making proper advertisement as required under Rules, it will throw open doors for manipulation and nepotism. It is settled law that while making the appointment on public post, the prescribed Rules should be followed by the authorities. Nothing has been stated in the entire writ petition nor in the affidavits filed subsequently that the procedure prescribed under the Rules specially in respect of advertisement of vacancies in the two newspapers were followed by the Institution.

30. Insofar as the judgement passed in Special Appeal No.1007 of 2010 (supra) relied upon by the learned counsel for the petitioner is concerned, the said judgement is in respect of regularization of teachers as per Section 33-C of the U.P. Secondary Education (Services Selection Boards) Act, 1982, therefore, the ratio of the aforesaid judgement will not apply in this case.

31. In view of the above, this Court is of the opinion that the order dated 05.03.2012 passed by the Director of Education (Basic) U.P. Lucknow is absolutely perfect and valid and does not call for any interference.

32. The writ petition lacks merits and the same is hereby dismissed. No order as to costs.

Order date: 17.02.2021/saqlain