Uttarakhand High Court

Committee Of Management R.M.P.P. ... vs State Of Uttarakhand And Others on 16 August, 2023

HIGH COURT OF UTTARAKHAND AT NAINITAL

            Writ Petition (M/S) No. 3231 of 2022
Committee of Management R.M.P.P. Vidhyalaya Inter
College Gurukul Narsan        .............Petitioner

                               Versus

State of Uttarakhand and others ...........Respondents
Present:-
              Mr. Parikshit Saini, Advocate for the petitioner.
              Mr. T.S. Phartiyal, Additional Chief Standing Counsel
              for the State of Uttarakhand/respondents.



                            With
             Writ Petition (M/S) No. 62 of 2023
Harish Gulati                               .............Petitioner

                               Versus

State of Uttarakhand and others ...........Respondents
Present:-
              Mr. Abhijay Negi, Advocate for the petitioner.
              Mr. T.S. Phartiyal, Additional Chief Standing Counsel
              for the State of Uttarakhand/respondents.

                            With
             Writ Petition (M/S) No. 80 of 2023
Committee of Management, Intermediate College,
Pherupur (Ramkherqa) and another ..........Petitioners

                               Versus

State of Uttarakhand and others ...........Respondents
Present:-
              Mr. Ramji Srivastava and Mr. Nishant K. Adhikari,
              Advocates for the petitioners.
              Mr. T.S. Phartiyal, Additional Chief Standing Counsel
              for the State of Uttarakhand/respondents.
                                2




                        JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral) Since common question of facts involved in all

these writ petitions, they are heard together and are being

decided by this common judgment.

2.         The       petitioners      have     challenged    a

communication     dated      10.11.2022,       made    by   the

respondent   no.2,    the   Director General of         School

Education Uttarakhand, by which, the appointments in

the management run aided private schools ("aided

schools") have been banned till further orders.

3. It is the case of the petitioners that the

appointments in the aided schools are made as per the

provisions of The Uttarakhand School Education Act,

2006 ("the Act"). In case of Heads of the Institutions and

Teachers, it is the case of the petitioners that the

provisions are contained under Section 36 of the Act. But,

without any statutory sanction, the impugned

communication has been made whereby, appointments of

teachers in the aided school have been banned.

4. Learned counsel appearing for the petitioners

would submit that the process of recruitment of teachers

in the respective aided schools have been undertaken as

per the provisions, as contained under Section 36 of the

Act. The process in some cases has gone far ahead and in

some cases, it is still in initial stage. But, by virtue of the

impugned communication, the entire process of

recruitment in the aided schools has been banned, which

is causing adverse effect in imparting education by the

aided schools.

5. A short counter affidavit has been filed by the

respondent no.2, the Director General of School

Education Uttarakhand. Para 4 of it records that various

complaints were received regarding the appointments in

the aided schools; meetings were convened at

Government level on 03.11.2021 and 09.06.2022 for the

purpose of constituting a Commission for appointments

in such aided schools. According to the respondent no.2,

in view of the developments that were made at the

Government level, the impugned communication has been

issued imposing temporary ban on the appointments in

all the aided schools.

6. Learned State counsel would submit that there

were various complaints of nepotism and other illegality

that was committed by the management of the aided

schools in the matter of appointments. Therefore,

Government had taken a decision to temporarily ban on

the recruitment of teachers in the aided schools.

7. Learned State counsel would also submit that

perhaps the respondent no.2, Director General of School

Education Uttarakhand is personally required to explain

the circumstances under which the ban was imposed.

8. Section 36 of the Act provides for a procedure

for selection of teachers and Heads of Institutions in the

aided schools. It reads as hereunder:-

"36. Procedure for selection of teachers and heads of institutions.--

(1) Subject to the provisions of this Act, the Head of Institution and teachers of an institution be appointed by the Committee of Management in the manner hereinafter provided.

(2) Every post of Head of Institution or teacher of an institution shall except to the extent prescribed for being filled by promotion, be filled by direct recruitment after intimation of the vacancy to the District Education Officer and obtaining approval of the District Education Officer for advertising and advertisement of the vacancy containing such particulars as may be prescribed, in at least two daily newspapers having wide circulation in the State.

(3) No person shall be appointed as Head of Institution or teacher in an institution unless he possesses qualification prescribed by the Regulation.

(4) Every application for appointment as Head of Institution or teacher of an institution in pursuance of

an advertisement published under sub-section (2) shall be made to the District Education Officer and shall be accompanied by such fee which shall be paid in such manner as may be prescribed.

(5)(i) After the receipt of application under sub-section (4), the District Education Officer shall cause to be awarded, in respect of each such application, quality point marks in accordance with the procedure and principles prescribed, and shall, forward the applications to the Committee of the Management.

(ii) The applications shall be dealt, with, candidates shall be called for interview, and the meeting of the Selection Committee shall be held, in accordance with the Regulations.

(6) The selection Committee shall prepare a list containing in order of preferences the names as far as possible of three candidates for a post found by it to be suitable for appointment and shall communicate its recommendations together with such list to the Committee of Management.

(7) Subject to the provisions of sub-section (8) the Committee of the Management shall, on receipt of the recommendations of the Selection Committee under sub-section (6), first offer appointment to the candidate given the first preference by the Selection Committee, and on his failure to join the post, the candidate next to him in the list prepared by the Selection Committee under this section, and on the failure of such candidate also, to the last candidate specified in such list.

(8) The Committee of Management shall, where it does not agree with the recommendations of the Selection Committee, refer the matter together with the reasons of such disagreement to the Regional Additional Director of Education in the case of appointment to the post of Head of Institution and to the District Education Officer in the case of appointment to the

post of teacher of an institution, and his decision shall be final.

(9) Where no candidate approved by the Selection Committee for appointment is available, a fresh, selection shall be held in the manner laid down in the section.

(10) Where the State Government, in case of the appointment of Head of Institution, and the Director in the case of appointment of teacher of an institution, is satisfied that any person has been appointed as Head of Institution or teacher, as the case may be in contravention of the provisions of this Act, the State Government or, as the case may be, the Director shall, after affording an opportunity of being heard to such person, cancel such appointment and pass such consequential order as may be necessary.

(11) No male candidate shall be eligible for appointment to the post of Head of Institution, or teacher in a girls institution, but the provision of this sub-section shall not apply in the context of the following--

(a) appointment by promotion on a higher post other than the post of Head of Institution in that institution in case of a candidate already working in a girls institution as a permanent teacher, or

(b) appointment of a blind teacher as a teacher of music.

(12) The selection process for the appointment of clerical (ministerial) or group-D employee shall be as prescribed."

9. A bare reading of Section 36 of the Act, make it

abundantly clear that at various stages, District

Education Officer is involved. In fact, prior to issuing the

advertisement and even after applications are received in

response to the advertisement the District Education

Officer is involved. The quality marks are to be allotted by

the District Education Officer.

10. This Court is not required to adjudicate on any

complaint that were received, with regard to any

particular appointment in any aided school. If there were