Allahabad High Court
State Of U.P. & Others vs Shailja Tripathi And Another on 2 July, 2024
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:106504-DB
Court No. - 29
Case :- SPECIAL APPEAL DEFECTIVE No. - 48 of 2024
Appellant :- State Of U.P. & Others
Respondent :- Shailja Tripathi And Another
Counsel for Appellant :- Abhishek Srivastava,Ratan Deep Mishra
Counsel for Respondent :- Siddharth Khare
Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Prashant Kumar,J.
1. Heard Sri Ratan Deep Mishra, learned counsel for the appellants and Sri Ashok Khare, Senior Advocate assisted by Sri Siddharth Khare, learned counsel for respondent-petitioner.
2. The present intra court appeal has been filed questioning the validity of judgment and order dated 16.03.2023 passed by learned Single Judge in Writ A No.31507 of 2014 (Shailja Tripathi vs. State of U.P. and others).
3. The brief facts of the case, which is reflected from the record, are that Jagat Narain Purva Madhyamik Vidyalaya, Jagatganj, District-Jaunpur (for short, the "institution"), is an institution recognized by the Board of High School and Intermediate. It receives aid out of the State fund only upto the level of Junior High School. The provisions of U.P. Intermediate Education Act, 1921 and U.P. Recognized Basic Schools (Junior High Schools)(Recruitment and Conditions of Service of Teachers) Rules, 1978 are applicable to the institution. The dispute is qua substantive vacancy which arose on the post of Assistant Teacher in the institution due to death of an Assistant Teacher while in service. The Committee of Management undertook the steps for filling up the said vacancy and sought permission from the District Basic Education Officer, Jaunpur to initiate the process of selection. It is reflected from the record that due permission was accorded by the District Basic Education Officer in the year 2002 and later on advertisement was published on 11.07.2002. On the request of Committee of Management, the District Basic Education Officer nominated a member in the Selection Committee and pursuant thereto, the selection/interview took place and on the basis of quality point marks petitioner/respondent no.1 was declared successful. The said exercise was carried out in presence of nominee of the District Basic Education Officer. It is not in dispute and the same is writ large as per earlier Writ Petition No.41896 of 2005 (Kumari Shailja Tripathi vs. State of U.P. and others). Admittedly, in response to the advertisement, petitioner-respondent no.1 participated and on the basis of quality point marks she was granted appointment with due approval of the District Basic Education Officer. Later on, once the salary was not paid and in pursuance of Government order dated 20.01.2003, she preferred Writ Petition No.41896 of 2005. The learned Single Judge vide judgment and order dated 07.08.2013 has disposed of the writ petition with detailed observation. The relevant portion is extracted below :-
"It is not disputed that the District Basic Education Officer, Jaunpur had nominated Assistant District Basic Education Officer, Maharajganj as his nominee in the Selection Committee. A copy of the order of the District Basic Education Officer has been brought on record as Annexure-1 to the writ petition. This statement of fact has been made in paragraph-6 of the writ petition. However, in the counter affidavit filed on behalf of District Basic Education Officer an evasive reply has been given in paragraph-7 thereof. Similarly, the petitioner has brought on record a comparative chart prepared by the Selection Committee, which also bears the signature of nominee of the District Basic Education Officer. This fact has also not been denied in paragraph-9 of the counter affidavit. Thus, from the aforesaid two documents it is established that the selection for the post of Assistant Teacher was held under the full knowledge of the District Basic Education Officer.
District Basic Education Officer on 20th February, 2004 has accorded approval to the appointment of the petitioner. This document is annexure-3 to the writ petition. Said approval has been stayed by the impugned order without giving any opportunity to the petitioner. The petitioner has averred in paragraph-13 of the writ petition that without giving any opportunity or notice to the petitioner said order of approval has been stayed. Said statement of fact has not been denied in paragraph-14 of the counter affidavit and again a vague and evasive reply has been made. Thus, from the pleadings it is evident that the petitioner has not been given any opportunity.
From the perusal of the Government order dated 20th January, 2003 (annexure-8 to the writ petition) it is evident that it has not been made applicable with retrospective effect.
Be that as it may, the impugned order has been passed without giving any opportunity to the petitioner and there is also a dispute with regard to existence of vacancy, against which the petitioner has been appointed. Said issue needs determination on the basis of facts which cannot be done in proceedings under Article 226 of the Constitution of India as there is no material on record to determine the said issue.
Having regard to the facts and circumstances of the case, I am of the view that the impugned order dated 11th June, 2004 passed by the respondent no. 3 is liable to be quashed and is hereby quashed. The matter is remitted back to the District Basic Education Officer, Jaunpur to pass fresh order after giving opportunity to the petitioner and the Committee of Management as expeditiously as possible. However, till the decision is taken afresh by the District Basic Education Officer, the interim protection granted by this Court dated 24th May, 2005 shall continue.
Accordingly, the writ petition is disposed of.
No order as to costs."
4. Consequently, in view of aforesaid order, vide order dated 12.03.2014, the then Basic Education Officer revoked the approval order and refused to grant approval to the appointment of the petitioner-respondent no.1. Being aggrieved, petitioner-respondent no.1 preferred Writ A no.31507 of 2014, which has been allowed vide order dated 16.03.2023.
5. On perusal of impugned judgment and order dated 16.03.2023, it transpires that the learned Single Judge has considered the matter in detail and gave a finding that on the basis of her initial appointment, the petitioner-respondent no.1 since 20/21.02.2004, it was when earlier Basic Education Officer granted approval to the petitioner and in furtherance of which she has joined the institution on 25.02.2004, her rights cannot be disturbed by any appointment or order passed with regard to any other person. It is also an admitted situation that compassionate appointment can also be accommodated on a supernumerary post.
6. Moreover, at this stage it cannot be said that the vacancy was not in existence as after due permission sought by the Committee of Management from the District Basic Education Officer, advertisement was published for filling up the vacancy and on the basis of quality point marks, the petitioner-respondent no.1 was accorded appointment.
7. In view of the judgment and order dated 16.03.2023 passed by learned Single Judge and previous order dated 07.08.2013 passed in Writ Petition No.41896 of 2005, we do not find any good ground at this stage to hold that the vacancy was not in existence. The said stand was definitely not taken in the year 2005 when the compassionate appointment was extended to another incumbent and further the said stand was not taken even when the post was being filled through direct recruitment in the year 2004. Moreover, supernumerary post could be accorded for filling the said compassionate employment made in the year 2005. On the basis of such situation, the appointment of petitioner-respondent no.1 cannot be said to be illegal, which was admittedly taken place in the year 2004.
8. Considering the aforesaid factual situation, we do not find any merit in the instant appeal and no reason to interfere in the impugned judgment and order dated 16.03.2023 passed by the learned Single Judge. The instant appeal sans merit.
9. The appeal is, accordingly, dismissed.
Order Date :- 2.7.2024
Manish Himwan
