Hariom Mishra vs State Of U.P. Thru. Prin.Secy. ...
2023 Latest Caselaw 1401 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 1
 

 
Case :- SPECIAL APPEAL No. - 296 of 2019
 

 
Appellant :- Hariom Mishra
 
Respondent :- State Of U.P. Thru. Prin.Secy. Basic Education And 2 Others
 
Counsel for Appellant :- Karunanidhi Yadav,Lalit Shukla
 
Counsel for Respondent :- C.S.C.,Ajay Kumar,Shivam Sharma
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Subhash Vidyarthi,J.

1. Heard Sri Lalit Shukla, learned counsel for the appellant; learned Addl. Govt. Advocate for the State, Sri Ajay Kumar, learned counsel for the respondent no. 2 and Sri Shivam Sharma, learned counsel for the respondent no. 3, and perused the record.

2. The instant appeal is directed against the judgment and order dated 1st July, 2019 passed by the Hon'ble Single Judge dismissing Writ Petition No. 12278 (S/S) of 2017 filed by the appellant challenging the order dated 12.5.2017 terminating his services on the post of Assistant Teacher, Primary School, and giving him option to give consent for his appointment on the post of Class IV post.

3. Briefly stated, the facts of the case are that the appellant's mother was working on the post of Assistant Teacher in Primary School, Bannawan, Block-Bachhrawan, Raebareli, and her services were terminated by means of order dated 09.10.1995. She challenged her termination order by filing Writ Petition No. 5639 (S/S) of 1995 and by means of an interim order dated 21.12.1995 this court had stayed the termination order. The appellant's mother died while she was serving on the strength of the interim order and ultimately by means of a judgment and order dated 19.4.2016 her Writ Petition was allowed and the termination order dated 09.10.1995 was quashed.

4. The appellant applied for compassionate-appointment and on 07.5.2016 he was appointed as Assistant Teacher in Primary School, Semari Ranapur, Raebareli, however, on 26.6.2016 his appointment on the said post recalled on the ground that he possessed qualification of B.Ed with TET certificates, but did not possess B.T.C. required for the post of Assistant Teacher. Subsequently the opposite party no. 3 appointed the appellant on the post of Assistant Teacher in Junior High School, Kamoli, and the appellant joined his duties on 02.07.2016.

5. The appellant was not paid his salary and, therefore, he filed Writ Petition No. 27 (S/S) of 2017. On 18.1.2017 an order was passed in the aforesaid writ petition for payment of salary to the appellant. When salary was not paid to the appellant in spite of the order dated 18.1.2017 passed by this court, he filed Contempt Petition No. 353 (C) of 2017. On 3.3.2017 an order was passed in the contempt petition directing the Basic Siksha Adhikari (B.S.A.) to appear before the court in person.

6. Writ Petition No. 27 (S/S) of 2017 was finally disposed off by means of an order dated 17.4.2017 directing payment of salary and arrears thereof to the appellant. In spite of final order having being passed salary was not paid to the appellant. The B.S.A. and Finance and Accounts Officer appeared before the Contempt Court on 2.5.2017 and gave an assurance that this court's order will be complied with, but on 12.5.2017 an order was passed by the B.S.A. terminating the appellant's service on the ground that the appellant did not possess the B.T.C. qualification, which is the essential qualification for appointment on the post of Assistant Teacher in a Primary School.

7. It is further stated in the termination order that the appointment on compassionate ground can be made only in Primary Schools on the post of Assistant Teacher or on the lowest post of Class III or on Class IV post on the basis of qualification of the candidate and no appointment can be made on recruitment to a post of Assistant Teacher in Higher Primary Schools.

8. The B.S.A. further stated in the order that no Class III post of the lowest grade is available in the District and the appellant does not possess the requisite qualification for the post of Assistant Teacher of a Primary School and, therefore, in case the appellant gives his consent for appointment on a Class IV post, the same would be considered as per the Rules. The aforesaid order was challenged by the appellant by filing Writ Petition no. 12278 (S/S) of 2017, inter alia, on the ground that it had been passed with an oblique motive to whittle down and render otiose the directions passed by this Court in Writ Petition No. 27 (S/S) of 2017 and in Contempt Petition No. 353 (C) of 2017. It was further submitted in the writ petition that the Basic Education Act 1972 and the Rules of 1981 framed thereunder provide for direct recruitment of 50% posts of Assistant Teacher (Maths/Science) in Senior Basic Schools and although the government order dated 13.5.2016 states that it would not be proper to make appointments by direct recruitment on the post of Assistant Teacher in Primary Schools run by the Basic Shiksha Parishad, the provisions of the government order will not over-ride the provisions of the Act and the statutory Rules framed thereunder.

9. While deciding the writ petition the Hon'ble Single Judge held that in view of the law laid down in Pawan Kumar v. State of U.P. & anr., Writ Petition No. 236 (S/S) of 2007 decided on 20.2.2013; Amit Kumar v. State of U.P. & 3 ors, Writ-A No. 52073 of 2013, decided on 24.1.2014 and Badri Sharma & ors. v. State of U.P. & ors., Special Appeal No. 1467 of 2012, decided on 24.2.2016, and held that the submission of the learned counsel for the appellant that appointment on the post of Assistant Teacher in Senior Basic School can be made through direct recruitment, was not sustainable. For the aforesaid reason the Hon'ble Single Judge dismissed the writ petition.

10. Rule-5 of the Uttar Pradesh (Teachers) Service (XVth Amendment) Rules 2012 [hereinafter referred to as 'Rules of 2012'], framed in exercise of powers conferred by section 19 of the U.P. Basic Education Act 1972, provides that 50% posts of Assistant Teachers in Science and Maths in Senior Basic Schools would be filled by direct recruitment and 50% of such posts will be filled by promotion.

11. The order dated 12.5.2017 has been passed by the District Basic Education Officer, Raebareli on the ground that a government order dated 13.5.2016 provides that appointments are made in schools of the Board under the provisions of Uttar Pradesh Basic Education (Teachers) Service Rules 1981 under which the appointments to the post of Assistant Teachers in Senior Basic Schools has to be made on the basis of promotion and, therefore, it would not be appropriate to make direct recruitment to the post of Assistant Teachers in Senior Basic Schools.

12. While passing the impugned order dated 12.5.2017 the B.S.A. has not taken into consideration the provisions of the Uttar Pradesh (Teachers) Service (XVth Amendment) Rules 2012 (hereinafter referred to as 'Rules 2012').

13. Although the Hon'ble Single Judge noted the submission of the learned counsel for the appellant that appointments in Senior Basic Schools could be made through direct recruitment, but it appears that the aforesaid Rules of 2012 somehow escaped attention of the Hon'ble Single Judge.

14. The appellant had been appointed on compassionate ground on a post of Assistant Teacher in Senior Basic School and he fulfilled the eligibility conditions for appointment on the aforesaid post. There is no allegation against the appellant that he obtained appointment by concealment of fact or through any other misconduct by him. The Basic Education Officer has terminated the appellant's service for the reason that appointments on the post of Assistant Teacher in Senior Basic Schools can only be made through promotions and no appointment on the said post can be made by direct recruitment. The aforesaid reasoning is absolutely wrong, as Rule 5 of the Rules of 2012 provides that 50% posts of Assistant Teachers in Senior Basic Schools will be filled by direct recruitment.

15. In view of the foregoing discussion, we are of the considered opinion that the order passed by Hon'ble the Single Judge requires to be set aside.

16. Accordingly, the instant special appeal is allowed. The judgement and order dated 01.07.2019 passed by Hon'ble the Single Judge in Writ Petition No. 12278 (S/S) of 2017 is hereby set aside, and the matter is remanded to the Hon'ble Single Judge for being decided afresh, after taking into consideration the provisions of the Uttar Pradesh (Teachers) Service (XVth Amendment) Rules, 2012. There will be no order as to costs.

.

.

(Subhash Vidyarthi, J.) (Ramesh Sinha, J.)

Order Date :- 13.1.2023

A.Nigam