Hariom Anand vs State Of U.P. And 4 Others
2023 Latest Caselaw 36140 ALL

Allahabad High Court

Hariom Anand vs State Of U.P. And 4 Others on 21 December, 2023

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:243179
 
Court No. - 36
 

 
Case :- WRIT - A No. - 7969 of 2023
 

 
Petitioner :- Hariom Anand
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Santosh Kr. Singh Paliwal
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Manjive Shukla,J.
 

1. Heard learned counsel appearing for the petitioner and learned Standing Counsel appearing for the Respondents No. 1 to 4.

2. Petitioner through this writ petition has challenged the order dated 18.04.2023 passed by the State Government whereby case of the petitioner for payment of salary from the State Exchequer for the post of Assistant Teacher has been considered and rejected.

3. Facts of the case, in brief, are that Sri Durgaji Navyug Vidya Mandir, Para, Kurthijafarpur, Kopaganj, District Mau is a Primary School recognized by UP. Basic Education Board and is receiving grant-in-aid from the Social Welfare Department of the Government of U.P. Terms and conditions of the teachers working in the aforesaid school are governed by the U.P. Recognized Basic Schools (Recruitment and Conditions of Service of Teachers and other Conditions), Rules, 1975 (hereinafter referred to as "Rules of 1975").

4. Manager of the Committee of Management of the school published advertisement in two Newspapers i.e. "Kaal Bhairav" and "Bharat Doot" whereby applications were invited for appointment on one vacant post of Assistant Teacher. Petitioner submitted application pursuant to aforesaid advertisement and later on Selection Committee prepared a merit list and petitioner's name was recommended for appointment.

5. Manager of the school forwarded papers of the selection of petitioner to the District Basic Education Officer, Mau and sought his approval. The District Basic Education Officer, Mau vide order dated 31.07.2013 approved the selection of the petitioner for appointment on the post of Assistant Teacher. After the approval of the selection, Manager of the school issued appointment letter to the petitioner on 02.08.2013 and in pursuance thereof, petitioner submitted joining in the school.

6. Petitioner, since the year 2013, is continuously discharging duties attached to his post in the school.

7. Since school of the petitioner is receiving recurring financial grant from the Department of Social Welfare, Government of U.P., as such, matter of the petitioner was forwarded to District Social Welfare Officer, Mau for payment of salary from State Exchequer and in turn, District Social Welfare Officer, Mau vide his letter dated 13.08.2013 forwarded the papers to Director, Department of Social Welfare, U.P., Lucknow. Director, Department of Social Welfare, U.P., Lucknow forwarded the matter of the petitioner to the State Government vide his letter dated 21.12.2017 and in the said letter, positive recommendation was made in favour of the petitioner.

8. Since the State Government did not take any decision pursuant to letter of the Director, Department of Social Welfare, U.P., Lucknow dated 21.12.2017, as such, petitioner filed Writ-A No. 13257 of 2019 which was finally disposed of by this court vide order dated 22.08.2019 whereby direction was issued to the State Government to take final decision in the matter.

9. In compliance of this court's order dated 22.08.2019 passed in Writ-A No. 13257 of 2019, State Government has considered the matter of the petitioner and has passed an order on 18.04.2023 whereby case of the petitioner for payment of salary for the post of Assistant Teacher has been rejected. State Government in its order dated 18.04.2023 has given following reasons for rejecting the case of the petitioner:

(i) Petitioner's selection for appointment on the post of Assistant Teacher has not been made after following due procedure prescribed under the Rules of 1975.

(ii) For appointment of the petitioner, advertisement was published by the school in two Newspapers but certificate was not taken from the District Information Officer with regard to circulation of the Newspapers which is mandatory as per Government Order dated 27.07.2010.

(iii) There exists one primary school and four private schools within a distance of 1 Km. from the school in question.

(iv) State Government vide Government Order dated 27.07.2010 has provided that without taking prior permission of the State Government, appointments on the post of Assistant Teacher cannot be made but in case of petitioner, appointment has been made without there being any such prior permission.

(v) State Government has issued a Government Order dated 11.05.2022 and has imposed ban on selection, appointment and financial approval of the newly selected teachers.

10. Learned counsel appearing for the petitioner has submitted that so far as first ground taken by the State Government for rejecting the case of the petitioner is concerned, only a vague assertion has been made that selection of the petitioner has not been made after following due procedure prescribed under Rules of 1975 whereas it has not been stated as to what procedure which was mandatory, has not been followed.

11. In respect of second ground taken in the Government Order dated 18.04.2023 for rejecting the case of the petitioner, learned counsel appearing for the petitioner has submitted that the selection on the post of Assistant Teacher is made as per the provisions of Rules of 1975 and in Rule 9, only this much has been provided that the advertisement for selection should be published in two Newspapers and one of the two Newspapers should be a daily Newspaper but there is no requirement for taking certificate from the District Information Officer, therefore, even if such condition has been imposed by the State Government vide Government Order dated 27.07.2010, the same will not override the express provisions of the Rules of 1975.

12. Learned counsel appearing for the petitioner has further pointed out that so far as the provision of the Government Order dated 27.07.2010 regarding prior approval of the State Government before making appointment on the post of Assistant Teacher in the school is concerned, there is no such stipulation in the Rules of 1975. Learned counsel appearing for the petitioner has further submitted that the Government Order dated 11.05.2022 whereby ban has been imposed in respect of the selection, appointment and financial approval on the post of Assistant Teacher, same applies prospectively and cannot be applied in the matter of petitioner as petitioner was appointed in the year 2013.

13. Learned counsel appearing for the petitioner has argued that the facts as to whether the post on which petitioner has been appointed was duly advertised in two leading Newspapers or not, that could have been seen only at the time of grant of approval to the petitioner's appointment and once petitioner's appointment has been duly approved by the Competent Authority i.e. District Basic Education Officer, Mau then there was no occasion for the State Government, while extending financial grant in respect of the petitioner's appointment, to see as to whether the selection of the petitioner was made properly by publishing the advertisement in two widely circulated Newspapers. It has further been argued that the State Government, while granting financial sanction for payment of salary to the petitioner, could not have traveled beyond the ambit of Rules of 1975 which categorically provides that after selection, once the approval has been granted by competent authority, the selection stands final and thereafter any question in respect of the veracity of the appointment can neither be raised nor can be considered.

14. Learned counsel appearing for the petitioner has drawn attention of this court towards judgment and order dated 03.12.2022 rendered by this court in Writ-A No. 19700 of 2022 and judgment and order dated 11.11.2022 rendered by this court in Writ-A No. 18232 of 2022, whereby writ petitions filed by the teachers identically placed to that of the present petitioner have been allowed and direction has been issued for payment of salary to the said teachers.

15. Learned counsel appearing for the petitioner has vehemently argued that the order dated 08.04.2023 which is impugned in this writ petition, has been passed in gross violation of the principles of natural justice as State Government has not provided any opportunity of hearing to the petitioner before passing the order dated 18.04.2023.

16. Learned counsel appearing for the petitioner has also argued that if the petitioner would have been given opportunity of hearing before passing order dated 18.04.2023 he would have placed all the aforesaid relevant material before the State Government but it is admitted case of the parties that no such opportunity has been provided, accordingly order dated 18.04.2023 cannot sustain in the eyes of law.

17. Per-contra, learned Additional Chief Standing Counsel has argued that the proper procedure in the matter of appointment of the petitioner, as provided under the Rules of 1975, has not been followed. Advertisement in respect of selection of the petitioner was not published in widely circulated Newspapers and further certificate was not taken from the District Information Officer regarding circulation of the said Newspapers which is mandatory as per Government Order dated 27.07.2010.

18. Learned Additional Chief Standing Counsel has also vehemently argued that the appointment of the petitioner could not have been made without obtaining prior approval from the State Government which is mandatory as per Government Order dated 27.07.2010. Learned Additional Chief Standing Counsel has thus concluded his arguments and has submitted that since proper procedure has not been followed in the appointment of the petitioner, therefore, he is not entitled for payment of salary from the State Exchequer.

19. I have considered the rival submissions advanced by the learned counsels appearing for the parties and I find that the Committee of Management of the school after advertising the vacancies in two Newspapers, proceeded with the selection. Selection Committee prepared the merit list and name of the petitioner was duly recommended thereafter, District Basic Education Officer, Mau who is Competent Authority under the Rules of 1975, scrutinized the entire selection process and after being satisfied with the procedure adopted during the selection, has granted approval vide order dated 31.07.2013 and after the said approval, petitioner was appointed.

20. Prima facie this court is of the view that the procedure adopted in the selection of petitioner can be and should be scrutinized at the time of grant of approval by the competent authority and once after due scrutiny, approval was granted, the said issue cannot be reopened at the time of grant of sanction for payment of salary by the State Government.

21. This court finds that Smt. Manju who is identically placed to that of present petitioner filed Writ-A No. 19700 of 2022 which has been allowed vide judgment and order dated 03.12.2022. Relevant paragraphs of the judgment and order dated 03.12.2022 are extracted as under :-

"9. From the recitals of the impugned order dated 1.4.2022 the Court finds that there is no quarrel regarding the qualification of the petitioner to hold the post. It is also not disputed that the vacancy was advertised in two newspapers (one of which will be a daily newspaper) in terms of Rule 9 of the 1975 Rules. The objection taken is that no certificate was obtained from the District Information Officer in respect of the Newspapers being of repute and having wide circulation of the area/district as provided by the Government Order dated 27.7.2010. Rule 9 of the U.P. Recognized Basic School (Recruitment and Condition of Service of Teachers) Rules, 1975 which governs the field nowhere provides that a certificate from the District Information Officer is wanted which certifies that the Newspapers in which the vacancy is advertised must be newspapers of repute and have wide circulation. In such view of the matter, in the opinion of the Court imposing such a condition by way of a Government Order is unwarranted and the petitioner cannot be non suited on that score particularly in the absence of the finding that the Newspapers "Hindi Dainik Jagrook Express" and "Hindi Danik Suchana Sankalan" are not newspapers of repute and do not have wide circulation in the area/district. The advertisement could not have been invalidated on this score. Thus the finding recorded by the State Government that the procedure prescribed in the appointment of the petitioner as Assistant Teacher in the Institution is not approved.

10. As regards the other objection taken in the impugned order, regarding filling up the vacancy in the Institution by order for prior permission dated 12.1.2017 passed by the Basic Siksha Adhikari as referred to in the impugned order the Court finds that there is no such requirement contemplated under the Rule 9 of the 1975 Rules. The stage of approval from the Basic Siksha Adhikari is after the selection process is over and before appointment of the selectee as has been laid down in Abhishek Tripathi vs. State of U.P. and others, reported in 2015 (4) ADJ 270 and in the case of Jagdish Singh vs. State of U.P. & others, reported in 2006 (4) ADJ 162. In such view of the matter, the finding so recorded in the impugned order is not sustained. Besides, no materials have been placed before the Court to demonstrate that the petitioner was ever given any opportunity to controvert the report dated 24.12.2021 and 13.1.2022 referred to in the impugned order and it can safely be held that the impugned order has been passed in utter disregard of the elementary principles of natural justice.

11. In view of the above, the Court finds that the petitioner is a regularly selected Assistant Teacher within the sanctioned strength of the teachers of the Institution and has been continuously working in the Institution since 16.4.2017 and is entitled to her salary from the Government grant. Consequently, the order dated 1.4.2022 passed by the State Government disapproving the appointment of the petitioner as Assistant Teacher in Anusuchit Jati Basic Primary Pathshala, Dahrakalan, District- Ghazipur is set aside. A writ of mandamus is issued commanding the respondents not to interfere in the functioning of the petitioner as Assistant Teacher in the Institution and pay her salary month to month as and when the same falls due from the Government grants. The arrears of salary since 16.4.2017 upto date may be released in favour of the petitioner within a period of three months from the date of service of certified copy of this order."

22. This court further finds that Mr. Suresh Ram Goyal who is identically placed to that of present petitioner filed Writ-A No. 18232 of 2022 which has been allowed vide judgment and order dated 11.11.2022. Relevant paragraphs of the judgment and order dated 11.11.2022 are extracted as under :-

"9. From the recitals of the impugned order dated 06.04.2022 the Court finds that there is no quarrel regarding the qualification of the petitioner to hold the post. It is also not disputed that the vacancy was advertised in two newspapers (one of which will be a daily newspaper) in terms of Rule 9 of the 1975 Rules. The objection taken is that no certificate was obtained from the District Information Officer in respect of the Newspapers being of repute and having wide circulation of the area/district as provided by the Government Order dated 27.07.2010. Rule 9 of the U.P. Recognised Basic School (Recruitment and Condition of Service of Teachers) Rules, 1975 which governs the field nowhere provides that a certificate from the District Information Officer is wanted which certifies that the Newspapers in which the vacancy is advertised must be newspapers of repute and have wide circulation. In such view of the matter, in the opinion of the Court imposing such a condition by way of a Government Order is unwarranted and the petitioner cannot be non suited on that score particularly in the absence of the finding that the Newspapers "Hindi Dainik Rashtriyapath and Nishpaksh Bharatdoot" are not newspapers of repute and do not have wide circulation in the area/district. The advertisement could not have been invalidated on this score. Thus the finding recorded by the State Government that the procedure prescribed in the appointment of the petitioner as Assistant Teacher in the Institution is not approved.

10. The stage of approval from the Basic Siksha Adhikari is after the selection process is over and before appointment of the selectee as has been laid down in Abhishek Tripathi vs. State of U.P. and others, reported in 2015 (4) ADJ 270 and in the case of Jagdish Singh vs. State of U.P. & others, reported in 2006 (4) ADJ 162. In such view of the matter, the finding so recorded in the impugned order is not sustained. Besides, no materials have been placed before the Court to demonstrate that the petitioner was ever given any opportunity to controvert the report dated 03.11.2020 and 24.12.2021 referred to in the impugned order and it can safely be held that the impugned order has been passed in utter disregard of the elementary principles of natural justice.

11. In view of the above, the Court finds that the petitioner is a regularly selected Assistant Teacher within the sanctioned strength of the teachers of the Institution and has been continuously working in the Institution since 21.07.2014 and is entitled to his salary from the Government grant. Consequently, the order dated 06.04.2022 passed by the State Government disapproving the appointment of the petitioner as Assistant Teacher in Adarsh Ambedkar Vidyalaya, Kahotari Birno, District Ghazipur is set aside. A writ of mandamus is issued commanding the respondents not to interfere in the functioning of the petitioner as Assistant Teacher in the Institution and pay his salary month to month as and when the same falls due from the Government grants. The arrears of salary since 21.07.2014 upto date may be released in favour of the petitioner within a period of three months from the date of service of certified copy of this order. "

23. Be that as it may, this court finds that the State Government has passed order dated 18.04.2023 in gross violation of the principles of natural justice as prior to passing of the said order petitioner has not been afforded opportunity of hearing. This court further finds that had the opportunity been given to the petitioner he would have placed aforesaid judgments passed by this court and other relevant material before the State Government but since opportunity was not provided he could not place his case before the State Government, accordingly order dated 18.04.2023 cannot sustain in the eyes of law.

24. In view of the aforesaid reasons, this writ petition is allowed. Order dated 18.04.2023 is quashed. Matter is remanded to the State Government to pass afresh order in the matter after providing opportunity of hearing to the petitioner within a period of two months from the date of service of certified copy of this order.

25. It is further directed that the State Government while passing the fresh order will take into consideration the judgment and order dated 03.12.2022 rendered in Writ-A No. 19700 of 2022 and judgment and order dated 11.11.2022 rendered in Writ-A No. 18232 of 2022.

Order Date :- 21.12.2023

A. Mandhani