Hari Kishore Shukla vs Prin. Secy. Basic Edu. Lko. And 2 ...
2023 Latest Caselaw 25551 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:60385
 
Court No. - 8
 

 
Case :- WRIT - A No. - 6258 of 2023
 

 
Petitioner :- Hari Kishore Shukla
 
Respondent :- Prin. Secy. Basic Edu. Lko. And 2 Others
 
Counsel for Petitioner :- Katyayan Mishra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Pankaj Bhatia,J.

1. In terms of the order passed by this Court, learned Standing Counsel has produced instructions depicting the reasons for passing the order impugned in the present petition. The said instructions are taken on record and the matter is being decided finally.

2. The facts, in brief, are that the petitioner claims to have been appointed in the year 1983 in a Junior High School situate at Parsadipur, Sitapur as an Assistant Teacher and from 01.10.1989 was transferred to Janta Primary Pathshala, Katsariya, Sitapur as an Assistant Teacher. The petitioner claimed the benefit of exemption from training which was required in terms of the Government Order dated 06.09.1994 as amended on 21.10.1994 mainly on the ground that the petitioner had served more than 10 years if the service period of the petitioner is counted w.e.f. 26.09.1983 to 30.09.1989 served by the petitioner in the Janta Primary School, Katsariya, Sitapur. The claim of the petitioner was repelled by the respondents by passing an order dated 11.02.2020 holding that the petitioner was not entitled to the benefit of service for the period 26.09.1983 to 30.09.1989 mainly on the ground that the petitioner did not possess the minimum qualification which was required for appointment to the post of Assistant Teacher, that being a graduation degree.

3. Against the said order dated 11.02.2020, the petitioner had approached this Court by filing Writ - A No.8752 of 2020 which was decided by this Court on 17.04.2023. While taking a decision, this Court was of the view that the minimum qualification prescribed for appointment to the post of Assistant Teacher in the year 1983 was Intermediate education and not graduation degree, which was included by a subsequent amendment on 12.06.2008.

4. In view thereof, this Court was of the view that the petitioner was validly appointed in the year 1983 having been the requisite qualification prescribed for appointment to the post of Assistant Teacher in terms of the rules prevalent then. As such, the matter was remanded back to respondent no.3 to pass fresh orders considering the appointment of the petitioner and the services rendered by the petitioner for the period 26.09.1983 up to 30.09.1989.

5. In terms of the said directions issued by this Court on 17.04.2023 which became final inter se in between the parties, a fresh order has been passed against the petitioner on 25.07.2023 once again rejecting the claim of the petitioner on three grounds, which are as follows:

"i. that the petitioner did not possess the requisite qualification at the time of appointment;

ii. that there was no advertisement issued prior to the appointment of the petitioner which was required in terms of 1978 Rules; and

iii. that there was no consent of the management for transfer of the petitioner form the Junior High School, Parsadipur, Sitapur to Janta Primary Pathshala, Katsariya, Sitapur."

6. The present writ petition is confined to the claim of the petitioner for giving the benefit of Government Order dated 06.09.1994 as amended on 21.10.1994 claiming that the services of the petitioner rendered for the period 26.09.1983 up to 30.09.1989, if counted towards the total services rendered, would make the consolidated quantum of service rendered by the petitioner to be above 10 years and he would automatically be entitled to the benefit of exemption from training and the natural consequences of payment of salary, as a trained teacher would flow in favour of the petitioner.

7. Although, no relief with regard to the grant of salary benefits as a trained teacher has been prayed in the present writ petition, learned counsel for the petitioner argues that the said claim with regard to salary for trained teacher would depend on the final outcome of this writ petition.

8. Learned counsel for the respondent/State, based upon instructions, argues that in the first round of litigation which culminated in the judgment dated 17.04.2023, this Court was of the view that the qualification for appointment as an Assistant Teacher which was prescribed in terms of the rules prevalent in the year 1983 was intermediate with training certificate. He further argues that separate grounds have been given in the present impugned order, which are separate and distinct from the one as was directed by this Court in the judgment dated 17.04.2023. It is further argued that the petitioner has already retired on 31.03.2021.

9. In view of the arguments as raised and quoted above, this Court is to decide as to whether the order denying the benefit of services rendered by the petitioner for the period 06.09.1983 to 30.09.1983 are justified in law or not?

10. Coming to the three grounds referred to in the impugned order - the first being that the petitioner did not possess the minimum qualification - while arriving at the said finding, the respondents relied upon Uttar Pradesh Basic Education (Teachers) Service Rules, 1981. The said reasoning is not acceptable for the ground that the services of the petitioner, at the time of appointment in the year 1983, were governed by Uttar Pradesh Recognized Basic Schools (Recruitment and Conditions of Service of Teachers and others Conditions) Rules, 1975, which were prevailing for appointment of teachers. In terms of the said rules, the minimum educational qualification prescribed was intermediate education. There being no dispute with regard to the minimum educational qualification coupled with the fact that the said issue was categorically decided by this Court in its judgment dated 17.04.2023, the reasoning as recorded in the impugned order cannot be accepted.

11. As regards the second reasoning recorded in the impugned order that an advertisement was not issued at the time of appointment of the petitioner; the said finding is based upon a prima-facie view formed in the impugned order. Rule 7 which prescribes for advertisement of vacancy, Rule 9 which prescribes for constitution of the selection committee and Rule 10 which prescribes for procedure for selection of the Uttar Pradesh Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 are quoted herein below:

"7. Advertisement of vacancy. - (1) No vacancy shall be filled, except after its advertisement in at least one newspaper having adequate circulation in the locality and the initiation of such vacancy given to the District Basic Education Officer.

(2) In every advertisement and intimation under clause (1), the Management shall give particulars as to the name of the post, the minimum qualifications and age-limit, if any, prescribed for such post and the last date for receipt of applications in pursuance of such advertisement.

9. Selection Committee. - The management shall constitute a Selection Committee consisting of:

A - For the post of headmaster :

(1) Manager;

(2) a nominee of the District Basic Education Officer;

(3) a nominee of the Management;

B - For the post of Assistant Teacher;

(1) Manager;

(2) Headmaster of the recognised school in which appointment is to be made;

(3) a nominee of the District Basic Education Officer;

10. Procedure for selection. - (1) The Selection Committee shall, after interviewing such candidates as appear before it on a date to be fixed by it in this behalf, of which due intimation shall be given to all the candidates, prepare a list containing as far as possible the names, in order of preference, of three candidates found to be suitable for appointment.

(2) The list prepared under clause (1) shall also contain particulars regarding the date of birth, academic qualifications and teaching experience of the candidates and shall be signed by all the members of the Selection Committee.

(3) The Selection Committee shall, as soon as possible, forward such list, together with the minutes of the proceedings of the Committee to the management.

(4) The Manager shall within one week from the date of receipt of the papers under clause (3) send a copy of the list to the District Basic Education Officer.

(5) (i) If the District Basic Education Officer is satisfied that -

(a) the candidates recommended by the Selection Committee possess the minimum qualifications prescribed for the post;

(b) the procedure laid down in these rules for the selection of Headmaster or Assistant Teacher, as the case may be, has been followed he shall accord approval to the recommendations made by the Selection Committee and shall communicate his decision to the Management within two weeks from the date of receipt of the papers under clause (4).

(ii) If the District Basic Education Officer is not satisfied as aforesaid, he shall return the papers to the Management with the direction that the matter shall be reconsidered by the Selection Committee.

(iii) If the District Basic Education Officer does not communicate his decision within one month from the date of receipt of the papers under clause (4), he shall be deemed to have accorded approval to the recommendations made by the Selection Committee."

12. In terms of the mandate of Rule 10(5)(ii) of the 1978 Rules, it is incumbent upon the District Basic Education Officer, in case is not satisfied, to return the papers to the Management for reconsideration by the Selection Committee. Rule 10(5)(iii) of the 1978 Rules provides that if the District Basic Education Officer does not communicate his decision within a period of one month from the date of receipt of the papers under Clause (4), there shall be a deeming clause in favour of the recommendation made by the Selection Committee.

13. There is no material on record either in the impugned order or in the instructions that any order was passed in pursuance to the powers vested under Rule 10(5)(ii) of the 1978 Rules, thus, even on that ground, the petitioner was clearly entitled to the benefit of deeming fiction as provided under Rule 10(5)(iii) of the 1978 Rules. Even otherwise, taking a ground of non-advertisement of vacancy in respect of an appointment granted in the year 1983 would be an arbitrary exercise of power, the same being sought to be invoked after about 40 years of the appointment. Thus, on that ground also, the reasoning recorded in the impugned order is unsustainable.

14. As regards the third ground that the Committee of Management did not express its consent to the transfer of the petitioner; the said ground is also clearly unsustainable in view of the fact that admittedly the petitioner has worked since the year 1989 and this fact was well within the knowledge of the respondents and was neither made a foundation for passing the earlier order dated 11.02.2020 nor a categorical finding in that regard, based upon material, has been recorded in the impugned order. The impugned order itself records that the views formed are prima-facie. It is well settled that an administrative decision is also to be founded upon material, failing which the same would be perverse and would be hit by the mandate of Article 14 of the Constitution of India.

15. Thus, for all the reasons recorded herein above, the impugned order dated 25.07.2023 (Annexure - 1) is unsustainable and is quashed. The writ petition is accordingly allowed.

16. Respondents are directed to pass a fresh order counting the services of the petitioner rendered for the period 26.09.1983 to 30.09.1989 as a valid service for the purposes of issuance of training certificate and issue a certificate exempting the petitioner from undergoing the training in terms of the Government Order dated 06.09.1994 as amended on 21.10.1994 by passing a requisite order within a period of two months from today.

17. Needless to add that the petitioner would be at liberty to make consequential claims on the basis of certificate, directed above, by filing appropriate proceedings.

Order Date :- 20.9.2023

nishant