The C/M Mahant Shivdas Udasin ... vs The State Of U.P. And 3 Others
2023 Latest Caselaw 1257 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment Reserved on : 22.09.2022
 
Judgment Delivered on : 12.01.2023
 
Court No. - 18
 

 
Case :- WRIT - A No. - 571 of 2022
 

 
Petitioner :- The C/M Mahant Shivdas Udasin Purva Madhyamik Idyalaya And Another
 
Respondent :- The State Of U.P. And 3 Others
 

 
Counsel for Petitioner :- Shivendu Ojha,Sr. Advocate
 
Counsel for Respondent :- C.S.C.,Bhanu Pratap Singh
 

 
Hon'ble Ashutosh Srivastava,J.

1. Heard Shri R. K. Ojha, learned Senior Counsel assisted by Shri Shivendu Ojha, learned counsel for the petitioners, Shri M. C. Chaturvedi, learned Additional Advocate General for the State Respondent Nos.1 and 2, Smt. Archana Singh, learned counsel for the Respondent No.3, Basic Shiksha Parishad and Shri Bhanu Pratap Singh, learned counsel for the Respondent No.4, District Basic Education Officer.

2. The writ petition has been filed seeking issuance of a writ of certiorari quashing the order dated 08.12.2021 (Annexure-21 to the writ petition) passed by the Principal Secretary, Basic Education, Government of U.P. Lucknow, whereby and whereunder the permission to the writ petitioner to advertise the vacancy to the post of Headmaster, which occurred due to the retirement of one Raj Bahadur Singh, the then Headmaster has been denied.

3. The controversy involved in the instant writ petition lies in a narrow compass. In district Azamgarh there is a recognized and aided Institution governed by the provisions of the U.P. Basic Education Act, 1972 and the U.P. Junior High School (Payment of Salaries of the Teachers and other Employees) Act, 1978, in the name and style of Mahant Shivdas Udasin Purva Madhyamik Vidyalaya, Para Jiwali, district Azamarh. The Petitioner No.1 is the duly recognized Committee of Management, while the Petitioner No.2 is the Manager. The Institution has a sanctioned strength of one Headmaster, 9 Assistant Teachers, one Clerk and one Class-IV employee. The sanction was accorded vide order dated 10.03.1998 of the Deputy Director of Education (Science) on behalf of the Director of Education (Basic) UP, Allahabad.

4. A substantive vacancy on the post of Headmaster arose in the Institution in question on the retirement of Raj Bahadur Singh the then Headmaster. The Petitioners' Institution vide letter dated 29.03.2016 sought permission from the District Basic Education Officer, Azamgarh for filling up the vacancy of Headmaster. No decision was taken by the District Basic Education Officer Azamgarh, for considerable time and the petitioners were compelled to approach this Court by means of Writ (A) No.33825 of 2016, which writ petition was disposed of vide order dated 26.07.2016 directing the District Basic Education Officer to take appropriate decision in the matter. The State Government vide Government Order dated 03.06.2016 permitted the institution to complete the selection proceedings and in pursuance thereof the District Basic Education Officer vide letter dated 29.07.2016 granted permission for filling up the vacancy of Headmaster. The petitioners thereafter published the advertisement on 29.07.2016 for filling up the post of Headmaster. Thereafter, the petitioners vide letter dated 17.08.2016 sought an Observer from the District Basic Education Officer, Azamgarh, fixing the date of interview as 21.08.2016. The District Basic Education Officer instead of providing the Observer proceeded to pass an order dated 07.10.2016 rejecting the claim of the petitioners on the ground that the time for filling up the post came to an end on 31.07.2016.

5. The order dated 07.10.2016 was assailed before this Court by means of Writ Petition No.54853 of 2016. The writ petition was allowed by order dated 04.04.2018. The order dated 07.10.2016 was quashed. The District Basic Education Officer was directed to take a fresh decision in the light of the observations made in the order as well as subsequent circular which may have been issued by the Director in that regard within 6 weeks. The The District Basic Education Officer in compliance of the order dated 04.04.2018 of this Court proceeded to pass an order dated 05.07.2018 requiring the petitioners to proceed according to Government Order Dated 26.04.2018. The petitioners, accordingly, moved representations dated 05.03.2019 and 19.08.2019 and when nothing was done approached this Court by means of Writ Petition No.16051 of 2019. The writ petition was disposed of requiring the District Basic Education Officer to take a decision in the matter. The petitioners yet again submitted an application dated 22.11.2019 before the District Basic Education Officer, Azamgarh, requiring him to do the needful. The District Basic Education Officer passed on order dated 10.12.2019 rejecting the claim of the petitioner on the ground that since the 1978 Rules had been amended on 04.12.2019 the permission for selection of Headmaster cannot be accorded.

6. The order dated 10.12.2019 rejecting the claim of the petitioner was yet again challenged by means of Writ Petition No.21316 of 2019 which writ petition came to be decided vide order dated 06.01.2020 whereunder the petitioners were relegated to the Principal Secretary, who was to consider its grievance of its petitioners and decide the same within two months. The order dated 10.12.2019 would abide by the decision taken by the Principal Secretary on the representation of the petitioner.

7. The Principal Secretary has now passed the impugned order dated 08.12.2021 rejecting the claim of the petitioner on the ground that under the amended Rules 1978 (7th Amendment Rules, 2019) the Director of Education (Basic) U.P. has been conferred the power to appoint the Headmasters and Assistant Teachers in Non-Government Aided Junior Schools and as such no appointment has to be made from the Manager level and no permission is to be given by the District Basic Education Officer also for advertising the vacancy. It is the Director of Education (Basic) who shall take action for the appointment of the Headmaster and Assistant Teachers of Non-Government Aided Schools.

8. Shri R. K. Ojha, learned Senior Counsel appearing for the petitioners vehemently contents that the impugned order dated 08.12.2021 passed by the Principal Secretary, Government of U.P., cannot be sustained inasmuch as the amendment in the 1978 Rules which stand amended on 04.12.2019 cannot be said to operate retrospectively and to that extent it cannot be made effective in respect of vacancies that came into existence in 2010 as the process of selection stood already initiated in the year 2016. He submits that once the process of selection had already been initiated, advertisement having been issued, permission already been granted by the Basic Education Officer, Azamgarh, then any subsequent amendment in the Rules cannot affect its right of the petitioners to fill up the vacancy according to the unamended Rules 1978. Reliance has been placed upon the Full Bench decision of this Court reported in 2015 ADJ (7) 179 (Santosh Kumar Singh Vs. State of UP and others). Reliance is also placed upon decision of coordinate benches of this Court in the case reported in 2020 (12) ADJ 643 and Writ A No.10509 of 2019.

9. Per contra, the Respondent No.1 to 4 have resisted the writ petition by filing counter affidavit. In the counter affidavit sworn by the District Basic Education Officer, Azamgarh, the stand taken is that permission for advertising the vacancy of the post of Headmaster was granted by the Director of Education (Basic) U.P., Allahabad vide order dated 03.06.2016 and it was directed that the process of selection should be completed till 31.07.2016. The petitioners could not complete the same by 31.07.2016. The petitioners did not demand for advertising the vacancy for one year and only on 05.03.2019 and 18.08.2019 the demand for advertisement was sought which was not permitted. Meanwhile, the Rules 1978 were amended and now the selection is required to be done according to the amended Rules. A detailed supplementary counter affidavit has been filed in substance reiterating the same stand.

10. The averments made in the counter affidavit have been denied by the petitioners by filing rejoinder affidavit.

11. Having heard the respective counsels and having perused the record the Court finds that the crucial issue which the Court is required to adjudicate is whether the vacancy to the post of Headmaster of the institution in question is to be filled up resorting to the unamended U.P. Recognized (Junior High School) (Teachers Recruitment and Service Conditions) Rules 1978 or by resorting to the above Rules as amended under the 7th amendment dated 04.12.2019.

12. The records reveal that the process of selection for the vacant post of Headmaster of the Institution in question commenced on the issuance of the advertisement published on 29.07.2016 pursuant to the permission accorded by the District Basic Education Officer. The date for interview was fixed for 21.08.2016. The District Basic Education Officer, Azamgarh, was bound to send his nominee/observer, but the claim of the petitioner was rejected vide order dated 07.10.2016 which order was subsequently quashed by this Court. The matter was unnecessarily kept lingering at the end of the District Basic Education Officer by rejecting the claim on one pretext or the other. Ultimately, the claim of the petitioners has been rejected on the ground that the Rules, 1978 have been amended on 04.12.2019 and the District Basic Education Officer has under the amended Rules been stripped of the powers to grant the requisite permission which under the amended Rules now vests with the Director of Education (Basic).

13. A similar controversy as raised in the present writ petition came up for consideration before a Full Bench of this Court in Special Appeal (Defective) No.215 of 2015 (Santosh Kumar Singh Vs. State of U.P. and others) decided on 22.07.2015 and reported in 2015 (7) ADJ 179 wherein the Full Bench considered the question of continuing selection process where the process of appointment was initiated by issuing advertisement before rescission of the Removal of Difficulties Order by Section 33-E of the U.P. Act No.13 of 1999 and held as under:-

"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."

Since, admittedly the process of appointment and selection to the vacant post of Headmaster of the Institution in question was initiated on 29.07.2016, much prior to the issuance of the amendment of the Rules, 1978 i.e. 04.12.2019, this Court is of the considered opinion that the process of appointment and selection would continue to be preserved under the then existing Rules (unamended) in vogue and as ruled by the Full Bench Decision rendered in 2015(7)ADJ 179.

In view of the above, the impugned order dated 08.12.2021 (Annexure No.21 to the writ petition) passed by the District Basic Education, Government of U.P., Lucknow, rejecting the claim of the petitioners and refusing the permission to fill up the vacancy of Headmaster of the Institution is hereby quashed. The District Basic Education Officer, Azamgarh, Respondent No.4, is directed to send his nominee for the purpose of Interview on the date which shall be communicated by the petitioner to the Respondent No.4. The process of appointment and selection shall be completed as per unamended provisions of Rules 9 and 10 of the Rules, 1978, in the light of the law laid down by he Full Bench in he case of Santosh Kumar Singh (Supra).

The writ petition is disposed of with the aforesaid directions,

Order Date :- 12.01.2023

ravi prakash

(Ashutosh Srivastava,J.)