Shrikant Singh And 3 Others vs State Of U.P. And 4 Others
2023 Latest Caselaw 5654 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 47
 

 
Case :- WRIT - A No. - 14646 of 2018
 

 
Petitioner :- Shrikant Singh And 3 Others
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Siddharth Khare,Shri Ashok Khare Sr. Advocate
 
Counsel for Respondent :- C.S.C.,Ajeet Shukla,R.K.Ojha,Saurabh Pratap Singh
 

 
Hon'ble Ashwani Kumar Mishra,J.

Ref: Civil Misc. Delay Condonation Application No. 4 of 2019

in

Review Petition No. 5 of 2019.

Heard.

Cause shown for the delay in filing the review petition is to the satisfaction of the Court.

The delay in the filing the review petition is condoned and the application is allowed.

Ref: Review Petition No. 5 of 2019

Short counter affidavit filed today is taken on record.

Sri Ashok Khare, learned Senior Counsel for the review petitioner states that the applicant does not intend to file any reply to the short counter affidavit. The Court, therefore, proceeds to hear the matter on merits.

This review application has been filed seeking review of the judgment dated 16.01.2019, by which three Writ Petitions No. 14646 of 2018, 11342 of 2016 and 13274 of 2017 were disposed of by a common order. The order passed by this Court on 16.01.2019 is reproduced hereinafter:-

"This bunch of writ petitions raise common questions of law and fact and are thus being disposed of by this common judgment.

Writ Petition No.11342 of 2017 is directed against an advertisement issued by the Committee of Management for filling up four posts of Assistant Teachers in the institution concerned. The institution herein is 'Janta Junior High School, Nai Bazar, Mehsana, Sakaldiha, District Chandauli', upon which the provisions of the Uttar Pradesh Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978 are also applicable. The institution was granted recognition under section 7-A(a) of the U.P. Intermediate Education Act, 1921 in the year 1995.

It appears that certain persons, who were selected pursuant to the aforesaid advertisement, were not approved on account of certain fault noticed in the advertisement, which order came to be challenged in Writ Petition No.13274 of 2017. A subsequent advertisement has been issued on 23.6.2018, which is then challenged in Writ Petition No.14646 of 2018.

From the facts which have been brought on record, it is admitted that the institution was upgraded under section 7-A(a) of the Act of 1921 and once recognition under the Act of 1921 is granted to the institution, it would not be possible for the Committee of Management to make any recruitment by following the procedure contained under the recruitment Rules of 1978. Law in that regard has been clarified by a separate judgment delivered in Writ Petition No.5512 of 2018 (Rana Vijendra Pratap Singh vs. State of U.P. and others). Detailed directions have been issued for vacancies arising in such institutions to be filled up by having recourse to the procedure contemplated under the U.P. Secondary Education Service Selection Board Act, 1982. In such view of the matter, the attempt on part of the Committee of Management of the institution concerned to fill up the post of four Assistant Teachers under the Rules of 1978 cannot be approved of. In such circumstances, it would be appropriate to dispose of all three writ petitions in terms of the directions contained in para 47 & 48 of the judgment in Writ Petition No.5512 of 2018, which is reproduced hereinafter:-

"47. In that view of the matter, this bunch of writ petitions, except leading Writ Petition No.5512 of 2018, are finally disposed of in terms of the discussions and directions contained hereinafter.

48. In view of the aforesaid discussions this Court comes to the conclusion that consequent upon grant of recognition under Section 7A(a) of the Act of 1921 to a erstwhile Junior High School, the procedure for appointment of teachers therein would be regulated by the Act of 1982 and the Act of 1921. As recruitment in most of such upgraded institution is stalled on account of lack of clarity on the subject, notwithstanding authoritative pronouncement of law in Smt. Manju Awasthi's case (supra), it is expedient in the interest of justice to issue following directions:-

(i) The District Basic Education Officer of each district shall intimate details of all recognized and aided Junior High Schools, which have been upgraded under Section 7-A(a) of the Act of 1921, to the District Inspector of Schools concerned, specifying the strength of sanctioned teachers therein, who are entitled to receive salary from the State under the Act of 1978, as also the existing vacancies on the post of teachers in each of such institutions by 15th February, 2019.

(ii) The District Inspector of Schools shall proceed forthwith to send requisition in respect of such vacancies to the U.P. Secondary Education Service Selection Board under Section 10 of the Act of 1982, within three weeks thereafter.

(iii) The U.P. Secondary Education Service Selection Board is requested to expedite the process of recruitment for all posts requisitioned, as directed above, and conclude it at the earliest possible, preferably by 15th of June, 2019, so that adequate number of teachers are made available to the institutions concerned by 1st July, 2019.

(iv) In order to meet immediate requirement of teachers against existing substantive vacancies, till regular selections are made by the Board, it would be open for the Institutions concerned to approach the District Inspector of Schools for providing services of teachers to them. The Inspector shall forthwith provide services of teachers from the pool of retired teachers created vide Government Order dated 26th October, 2017. Such teachers shall continue to work in the institutions concerned till regular teachers are made available by the Board."

Proceedings undertaken by the Committee of Management to fill up the four posts of Assistant Teacher by issuing advertisement under the Rules of 1978 stands consigned to records.

With the aforesaid observations, all the writ petitions stand disposed of."

The applicant petitioner was the petitioner in Writ Petition No. 14646 of 2018, wherein a challenge was laid to the recruitment pursuant to advertisement issued by respondent no. 5 institution vide publication in Newspaper 'Aaj' on 23.06.2018. When the writ petition was taken up, the Court was apprised that the advertisement dated 23.06.2018 has been withdrawn and a subsequent advertisement has been published on 27.06.2018. During the pendency of the writ petition the Management proceeded to fill up the post and after obtaining approval appointed the private respondents. The subsequent advertisement alongwith all consequential proceedings, including the approval granted to the appointment of private respondents was, therefore, challenged by way of an amendment which was allowed. Prayer clause (E) was incorporated in the writ petition, which is reproduced hereinafter:-

"(E) issue a writ, order or direction in the nature of certiorari quashing the advertisement as published in the newspaper "Aaj" dated 27.06.2018 and all consequential proceedings including the order of Basic Shiksha Adhikari, Chandauli according approval to the selection of 4 persons in pursuance thereto (Annexure 8 & 9 to the writ petition)."

The challenge to the advertisement by the petitioner was primarily on the ground that the advertised post was already occupied with the appointment of the writ petitioner and his appointment under the applicable rules of 1978 was deemed approved.

The institution 'Janta Junior High School, Nai Bazar, Mehsana, Sakaldiha, District Chandauli', was initially a recognized Junior High School which stood upgraded to the High School level in the year 1995 pursuant to the recognition granted to it by the competent authority under Section 7-A(a) of the U.P. Intermediate Education Act. The petitioner for the purposes of establishing his right had relied upon the provisions of U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978. It was alleged that the appointment of petitioner ought to be treated as deemed approved by virtue of Rule (10)(5)(iii) of Rules of 1978.

The writ petition was examined alongwith a bunch of other petitions wherein the issue was as to which rules of recruitment would regulate the appointment of teachers in a junior high school which has since been upgraded to high school or intermediate level vide order of the competent authority passed under Section 7-A(a) of the 1921 Act.

This Court took note of the earlier judgment of a Division Bench of this Court in the case of Smt. Manju Awasthi and others Vs. State of U.P., 2013 (3) ADJ 64. The Division Bench in Manju Awasthi (supra) made it ample clear that a junior high school upon its up-gradation to high school or intermediate level under Section 7-A(a) of the Act of 1921 would be governed by the provisions of U.P. Intermediate Education Act, 1921 as well as the provisions of U.P. Secondary Education Service Selection Board Act, 1982 and the Rules of 1978 would cease to apply for the purposes of recruitment in such institution. This Court in leading writ petition of Rana Vijendra Pratap Singh vs. State of UP and others has followed the judgment in Manju Awasthi (supra) and categorically held that after the institution stood upgraded to high school or intermediate level, the recruitment in the upgraded institution would have to be governed by the provisions of the Act of 1921 and the Act of 1982 and no appointment can be made in accordance with the Rules of 1978.

It is undisputed that the institution herein was granted recognition under Section 7-A(a) of UP Intermediate Education Act, 1921, in the year 1995 itself.

In view of the Division Bench judgment of this Court in the case of Smt. Manju Awasthi (supra) as also for the reasons recorded in the judgment of this Court in the case of Rana Vijendra Pratap Singh (supra), it remains undisputed that the appointment made in the upgraded institution, in question, by following the procedure of UP Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 was impermissible. This Court, therefore, proceeded to dispose of the writ petition in light of the directions contained in para 48 of the judgment in the case of Rana Vijendra Pratap Singh (supra).

The review petition has now been filed by the writ petitioner stating that though the claim of appointment of writ petitioner under the Rules of 1978 was not accepted by this Court, yet, the private respondents continue to work in the institution and receive salary, though, their claim of appointment is also based upon the procedure specified under the Rules of 1978. The judgment and order of this Court dated 16.01.2019 is being treated as an order approving the appointment of private respondents on a complete misleading and misconstruction of the judgment of this court.

An affidavit is filed on behalf of private respondents wherein it remains undisputed that appointment of private respondents in the respondent institution was made in accordance with the Rules of 1978.

This Court finds force in the contention advanced on behalf of the review applicants, inasmuch as, the private respondents having been selected and appointed in accordance with the Rules of 1978, cannot work or receive salary when it is admitted that the respondent no. 5 institution was granted recognition under Section 7-A(a) of the Act of 1921. This is wholly impermissible in view of the judgment and order of this Court dated 16.01.2019 which contains a specific finding that attempt on part of the committee of management of the institution to fill up the post of four Assistant Teachers under the Rules of 1978 cannot be approved. The proceedings for recruitment on the four posts of Assistant Teacher in the institution was thus consigned to records.

The case of the private respondents is that the order of approval passed in their favour was not set aside by this Court.

This Court in categorical terms had held vide its judgment dated 16.01.2019 that the proceedings undertaken by the Committee of Management to fill up the four posts of Assistant Teacher by issuing advertisement under the Rules of 1978 is consigned to records. The necessary consequence of the order was that all consequential proceedings including the approval granted to the appointment of private respondents stood nullified. It may be noticed that by way of an amendment the entire recruitment proceedings including the approval granted to the selection of private respondents was otherwise under challenge. It appears that the true purport and intent of the judgment and order dated 16.01.2019 has been misread and misconstrued by the respondents.

In view of the above, the judgment and order dated 16.01.2019 is reviewed/modified and the recruitment made by the Committee of Management for appointment to the four posts in the institution, including the ultimate approval granted by the Competent Authority to such recruitment made under the Rules of 1978 in favour of private respondents is held unsustainable and accordingly quashed. The appointment process could not have been continued or concluded by following the Rules of 1978 after the institution stood upgraded to High School level under Section 7-A(a) of the Act of 1921. The authorities shall be at liberty to proceed with the recruitment for the posts in question in accordance with applicable laws in terms of observations made in the case of Rana Vijendra Pratap Singh (supra).

Since the private respondents have already worked the salary already paid to them, would not be recovered. The private respondents however would have no right to claim continuance on such posts.

Order Date :- 21.2.2023

Ranjeet Sahu