Dismissed

Srish Prasad and Another v. D.E. Basic Nisht Ganj Lko. and Others

Allahabad HC14 Oct 2019WRIA/1996/1998

Case brief

AI extract

What is this about?

The court dismissed a writ petition seeking a mandate for payment of salary to petitioners appointed as Assistant Teachers. It held that since appointments failed to meet statutory qualification rules and procedural requirements, no right to salary accrued, despite previous payments made under grant-in-aid status.

What did the court decide?

Impugned writ petition dismissed; no mandate for payment of salary granted.

Srish Prasad and Another Vs D.E. Basic Nisht Ganj… — Education and Admissions | Allahabad HC (2019)

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Court No. - 34

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Case :- WRIT - A No. - 1996 of 1998 Petitioner :- Srish Prasad And Another Respondent :- D.E. Basic Nisht Ganj Lko. And Others Counsel for Petitioner :- R. K. Srivastava, A. Misra, A. K.Srivastava, D. M. Tripathi, M. K. Soni, P. K. Upadhyay, Piyush Mishra, Rajesh Kumar, S. N. Singh, T. N. Porwar

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Counsel for Respondent :- Akhilesh Chandra Srivastava, A. Khare, G. K. Singh, K. Shahi, P. K. Sharma, R. Sharma, R. K. Sharma, S. D. Shukla, S. K.Singh, Sunil Kumar Singh,V. K. Singh

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Hon'ble Sudhir Agarwal,J.

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Heard Sri P. K. Uapdhyay, learned counsel for petitioners and Sri V. K. Singh, Senior Counsel assisted by Sri S. D. Shukla, learned counsel for respondents- 5 and 6.

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Petitioners have sought a mandamus commanding respondents to pay salary to them on the post of Assistant Teacher in Saraswati Vidyalaya, Junior High School, Chandra Nagar, Harjindra Nagar (hereinafter referred to as 'School').

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It is said that petitioners were appointed in the School on 17.07.1983 and 02.09.1987 respectively. School was brought in grantin-aid in 1991. It is governed by the provisions of Uttar Pradesh Basic Education Act, 1972 (hereinafter referred to as "Act, 1972") and Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 (hereinafter referred to as "Act, 1978") and for payment of salaries to staff it is governed by the provisions of Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (hereinafter referred to as "Rules, 1978").

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After being brought in grant-in-aid, list of staff was sent by Management of School including name of petitioners, hence petitioners were also paid salary from 1991 to 05.03.1995, but thereafter it was stopped. At that stage, present writ petition has been

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filed seeking a mandamus that salary should be paid to petitioners.

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Earlier this writ petition was dismissed vide judgment dated 01.08.2014 by learned Single Judge, whereagainst Special Appeal Defective No.925 of 2014 was filed, which has been allowed vide judgment dated 11.11.2014 and matter has been remanded to this Court to decide the matter afresh.

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Counsel for petitioners submitted that since petitioners were paid salary from 1991 to 1995 that means petitioners were appointed on the post of Assistant Teacher in 1983 and 1987 respectively. On this aspect, an enquiry was also made by Educational Authorities. It is admitted that petitioners were paid salary from 1991 to 1995. It is not disputed by learned counsel for petitioners that payment was made after School was brought in grant-in-aid on the basis of list submitted by Management. Subsequently, it was realized by authorities concerned that appointment of petitioners were not validly made, hence, payment of salary has been stopped.

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No person can be appointed as a teacher, unless he possesses requisite qualification prescribed in Rule 4 of Rules, 1978. This is what is stated in Rule 5 of Rules 1978 which reads as under :

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“ 5. Eligibility for appointment.-No person shall be appointed as Headmaster or Assistant Teacher in substantive capacity in any recognized school unless -

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(a) he possesses the minimum qualifications prescribed for such post;

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(b) he is recommended for such appointment by the Selection Committee.

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(emphasis added)

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Minimum qualification prescribed for appointment of Assistant Teacher in Junior High School is provided in Rule 4 (1) of Rules, 1978, which reads as under :

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“ 4. Minimum qualification. -(1) The minimum qualification

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for the post of Assistant teacher of a recognized school shall be Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or equivalent examination (with Hindi and a teacher's training course recognized by the State Government or the Board such as Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate or Certificate of Training).

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(emphasis added)

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Further for selection and appointment of Assistant Teacher, Rule 7 of Rules, 1978 contemplates advertisement of vacany, in at least two newspapers, one of whom must have adequate circulation all over the State and second may be local where Institution is situated. Rules 9 talks of Selection Committee and Rule 10 provides procedure for selection. Thereafter, the District Basic Education Officer (hereinafter referred to as “DBEO”) shall be approached by Management to grant approval. The decision with regard to said approval shall be taken by DBEO within one month of communication by the Management, failing which selection has to be cancelled. Rule 11 talks of appointment.

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In the present case, following above procedure prescribed in Rules, 1978, appointment of petitioner has not been made. Neither any such averment has been made nor any such material has been placed on record and in the supplementary affidavit also, nothing has been provided.

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When this Court made specific query from learned counsel for petitioners, he could not show that petitioners possessed requisite qualification for appointment on the post of Assistant Teacher as provided in Rules, 1978 as mentioned above and their appointment was made after following the procedure prescribed in Rules, 1978. In fact, no letter of appointment of petitioners has been brought on record to show that their appointment was made at all after following the procedure prescribed in Rules, 1978 and petitioners were qualified for appointment. Hence, in absence of letter of appointment, it can be inferred that their appointment

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was made in collusion with Management of School. Hence, no right can be claimed by petitioners for such fraud which may have persisted, so as to justify payment of salary to petitioners on the post of Assistant Teacher. 12. In view thereof, this writ petition lacks merit and it is dismissed accordingly.

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Interim order, if any, stands vacated.

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Order Date :- 14.10.2019 Manish Himwan

Srish Prasad and Another v. D.E. Basic Nisht Ganj Lko. and Others

Case brief

What is this about?

What did the court decide?

Srish Prasad and Another v. D.E. Basic Nisht Ganj Lko. and Others

Case brief

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