Shailja Tripathi vs State Of U.P. And 3 Others
2023 Latest Caselaw 7591 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?[A.F.R.]
 

 
Court No. - 32
 

 
Case :- WRIT - A No. - 31507 of 2014
 

 
Petitioner :- Shailja Tripathi
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Siddharth Khare,Ashok Khare( Senior Adv.)
 
Counsel for Respondent :- C.S.C.,Mrigraj Singh,Santosh Kumar Yadav
 

 
Hon'ble Vivek Chaudhary,J.

1. Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri Siddharth Khare, learned counsel for the petitioner, Sri Mrigraj Singh, learned counsel for respondent no.2 and the learned Standing Counsel for the State.

2. The petitioner has approached this Court challenging the order dated 12.03.2014 passed by Basic Shiksha Adhikari, Jaunpur whereby the B.S.A., Jaunpur has refused to provide approval to the appointment of the petitioner.

3. The facts of the case are that on 03.12.2003 an Assistant Teacher of the institution had expired while in service. On the approval of Basic Shiksha Adhikari, an advertisement was issued on 29.01.2004 inviting applications from eligible persons. The Basic Shiksha Adhikari has passed an order on 15.02.2004 authorizing the Assistant Basic Shiksha Adhikari, Maharajganj/Badlapur to participate as a member of Selection Committee in the selection process held on 18.02.2004. After selection of the petitioner, all papers were submitted to the B.S.A. for approval, who accorded approval on 20/21.02.2004, making it effective from date of joining. On 22.02.2004 appointment letter was issued to petitioner who joined on 25.02.2004. However, salary bills submitted by the management with regard to petitioner remained pending.

4. On 11.06.2004, Basic Shiksha Adhikari, referring to Government Order dated 20.01.2003, sent letter to all the Managemnt/Head of all recognized and aided Junior High Schools, whereby he placed all the appointments/approval in abeyance. It also refers to circular letter dated 21.05.2004 of Regional Assistant Director of Education prohibiting payment of salary to appointments made without sanctioned post and further required every institution to submit all papers pertaining to selection/appointment made subsequent to Government Order dated 20.01.2003 for inquiry. The Government Order dated 20.01.2003 required prior permission of the State Government for making appointment for vacancies caused by the retirement. After giving an opportunity of hearing an order was ultimately passed by the B.S.A. on 12.03.2014 revoking the approval of B.S.A. dated 20/21.01.2004. It further held that petitioner was not entitled to receive any salary from the government grants. The said order, though, was passed on 12.03.2014 but was dispensed by registered post on 18.08.2014 and is now under challenge in the present writ petition.

5. Learned counsel for the petitioner challenges the order on facts as well as on short legal submission. The legal submission of learned Senior Advocate is that since the procedure for selection is provided under the statutory rules of U.P. Recognized Basic Schools (Junior High School Recruitment and Conditions of Service of Teachers) Rules, 1978. Therefore, once the power is exercised by the State for framing statutory rules, it cannot exercise any executive power with regard to the same subject by issuing executive order. Therefore, the Government Order dated 20.01.2003 as non-est being contrary to the statutory rules.

6. On merits, learned Senior Advocate for the petitioner submits that once an approval is duly granted by B.S.A. by his communication dated 20/21.02.2004, no power to review the said order on merits is vested in later B.S.A. The executive authorities do not have any power to review an order passed by an earlier authority, except for on limited ground of fraud etc. Next submission of learned Senior Advocate is that the impugned order even on merits is illegal as the defects pointed out in the same are presumptive.

7. On the other hand, learned counsels for the respondents support the impugned order and state that the impugned order rightly refuses to grant approval to the appointment of the petitioner.

8. So far as the Government Order dated 20.01.2003 is concerned, the law is well settled that once the State has exercised its legislative power with regard to any subject by framing statutory rules, it cannot exercise its executive power. Suffice is to refer to judgment passed in case of 'Union of India Vs. S.S. Soma Vishwanath' reported in AIR 1988 SC 2255 in which the Supreme Court held:-

"It is well settled that the norms regarding recruitment and promotion of the officer belong to the Civil Service can be laid down either by a law made by the appropriate Legislature or by the rules made under the proviso to Article 309 of the Constitution of India or by means of executive instructions issued in Article 73 of the Constitution of India in the case of Civil Services in the Government of India and under Article 162 of the Constitution of India in the case of Civil Services in the State Governments, if there is a conflict between the executive Instructions and the rules made under the proviso to Article 309 of the Constitution of India the rule made under the proviso to Article 309 of the Constitution of India prevail and if there is a conflict between the rules made under the proviso to Article 309 of the Constitution of India and the law made by the appropriate Legislature, the latter prevails." (emphasis added)

9. The aforesaid judgment is later also followed by this Court in case of 'Anurag Mehrotra Vs. State of U.P. and Others'; Writ Petition No.3425 (S/S) of 2019. In view of the aforesaid, the Government Order dated 20.01.2003 is directly in teeth of statutory rules. The State cannot usurp the power already vested in the authority by statutory rules. Therefore, there was no occasion to revisit the approval of the B.S.A. dated 20/21.02.2004 which granted appointment to the petitioner.

10. Now, coming to the merits of the case, the impugned order states that the vacancy is said to have arisen on account of death of late Sabhajeet Pathak, Assistant Teacher while in service on 31.12.2003. In judgment of the High Court dated 07.08.2013 passed in Writ Petition No. 41896 of 2005, it is noted that with the approval of the District Basic Education Officer the post was advertised on 11.07.2002 and it found that the appointment was illegal. The said fact appears to be wrongly noted in the earlier judgment of this Court as the newspaper 'Tarun Mitra' dated 01.02.2004 is filed along with present writ petition and the same was also submitted before the B.S.A. Ignoring the actual document, the B.S.A. was not supposed to refer to a date in the order. Further in the impugned order it is claimed that the management/head master was asked to provide notarized affidavit along with all the documents. There is no reason for initiating a different procedure in the present case which is not followed in other matters. All the documents were in the office of B.S.A. since the initial stage when the earlier B.S.A. had granted approval by order dated 20/21.02.2004. Even otherwise, it is not in dispute that all the documents were present before the B.S.A. while considering the present matter. Hence, there was no occasion to ask for an affidavit and to refuse to believe the document only on the said ground. Next ground taken in the impugned order for rejecting the case of petitioner is that in furtherance of order dated 22.07.2013 passed in Writ Petition No.46110 of 2005 one Sevantak Pathak was granted appointment under Dying in Harness Rules, 1974. Thus, there are no further vacancy available to accommodate the petitioner.

11. It goes without saying that right of petitioner on the basis of her initial appointment since 20/21.02.2004 when earlier B.S.A. granted approval to the petitioner and in furtherance of which petitioner joined on 25.02.2004. Her rights cannot be disturbed by any appointment or order passed with regard to any other person. Even otherwise, an appointment under Dying in Harness Rules, 1974 can also be accommodated on a supernumerary post. The same cannot impact rights of petitioner. The last ground is that the publication was made only in one newspaper. Along with the record only one newspaper was submitted. The matter is decided by B.S.A. after a gap of around 10 years. Such a dispute was required to be settled when earlier approval was granted on 20/21.02.2004. Such an irregularity cannot cost an appointment which is approved around 10 years back.

12. Thus, the impugned order dated 12.03.2004 cannot stand and is set aside.

13. Respondents are directed to pay salary of the petitioner from the date of his initial joining 25.02.2004 along with interest of 6% within a period of three months from the date a certified copy of this order is placed before it. They are also directed to ensure regular salary to petitioner in future.

14. With the aforesaid, the writ petition stands allowed.

Order Date :- 16.3.2023

Arti/-

[Vivek Chaudhary,J.]