Quashed

C/M Ramapur Uchchattar Madhyamik Vidyalaya and Another v. State of U.P. and 2 Others

Allahabad HC17 Feb 2020WRIA/61329/2015

Case brief

AI extract

What is this about?

The court quashed an order by the District Basic Education Officer that reduced sanctioned posts. It directed authorities to examine existence of sanctioned posts under Rule 7(3) of Rules 1978 and Section 26 of RCFCE Act 2009, permitting appointments if vacancies existed.

What did the court decide?

Order dated 8.10.2015 quashed; direction to examine sanctioned posts and permit appointment of teachers within two months.

C/M Ramapur Uchchattar Madhyamik Vidyalaya… — Pension and Retirement Benefits | Allahabad HC (2020)

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Court No. - 39

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Case :- WRIT - A No. - 61329 of 2015

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Petitioner :- C/M Ramapur Uchchattar Madhyamik Vidyalaya And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Vijay Kumar Singh,P.K. Upadhyay,Pankaj Rai Counsel for Respondent :- C.S.C.,Jay Ram Pandey

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Hon'ble Ashwani Kumar Mishra,J.

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While entertaining the writ petition, following interim protection has been granted by this Court on 9th December, 2015:-

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" The petitioner is a Committee of Management of a Junior High School. It is aggrieved by the order of the Basic Shiksha Adhikari whereby he has declined to give the permission to the Committee of Management to appoint Assistant Teachers in the institution. It is stated that the total post of Assistant Teachers is 13 out of which 6 posts are lying vacant. The detail of the vacancy which has occurred due to retirement, resignation etc., has been averred by the petitioner in paragraph 13 of the writ petition.

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Learned counsel for petitioner has drawn attention of the Court to a table in the impugned order wherein the Basic Shiksha Adhikari has admitted that there is no subsequent order by which the number of post has been reduced.

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Learned counsel for the petitioner has drawn the attention of the Court to an order passed in Writ - A No. 63396 of 2015 (C/M Kisan Adarsh Inter College Vs. State of U.P. and 2 others), wherein following order has been passed:

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"It is contended on behalf of the petitioner that in the institution 08 posts of the Assistant Teacher and 01 post of the Headmaster were sanctioned in the year 1986. He has drawn attention of the Court to a chart appended with the Circular of Director of Education dated 31.3.2015 to demonstrate the said sanctioned strength of the institution.

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It is also averred in the writ petition that all the 08 Assistant Teachers and the Headmaster were receiving the salary. Now 05 vacancies of the Assistant Teachers are lying vacant. The details of the vacant posts of Assistant Teachers have been averred by the petitioner in paragraphs-7 & 12 of the writ petition. It is further contended that since 08 posts have already been sanctioned. Therefore, the stand taken by the District Basic Education Officer declining the permission is wholly unjustified and unreasonable.

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In my view, the petitioner has made out a prima facie case.

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Learned Standing counsel may file counter affidavit within six weeks. Rejoinder affidavit, if any, may be filed within a week thereafter.

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Learned Counsel for the District Basic Education Officer may also file counter affidavit within same period.

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List this case in the week commencing 25.1.2016. Till then the effect and operation of the impugned order dated 2.11.2015 passed by the District Basic Education Officer shall remain stayed.

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In the meantime, it will be open to the Committee of Management to appoint 05 Assistant Teachers following the procedure provided under the law. However, if the appointment is made, the District Basic Education Officer will accord the approval with the direction to

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the Committee of Management that in the appointment letters, it would be mentioned that their appointments shall abide by the result of the writ petition and in case the writ petition is dismissed no equity will be claimed by them."

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The benefit of the order passed in the case of C/M Kisan Adarsh Inter College (supra) is extended to the petitioners also.

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Learned Standing counsel may file counter affidavit within six weeks. Rejoinder affidavit, if any, may be filed within a week thereafter.

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Learned Counsel for the Basic Shiksha Adhikari may also file counter affidavit within same period.

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List this case in the week commencing 25.1.2016. Till then the effect and operation of the impugned order dated 8.10.2015 passed by the Basic Shiksha Adhikari shall remain stayed. "

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Against the aforesaid interim protection granted by this Court, a Special Appeal (Defective) No.402 of 2017 was filed by the State, which came to be disposed of vide following orders passed on 9.8.2017:-

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" Ref: Civil Misc. Delay Condonation Application No. 243511 of 2017.

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Cause shown for the delay in filing of the Special Appeal is to the satisfaction of the Court.

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Delay is condoned.

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This application is allowed.

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Order on Memo of Appeal

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With the consent of the parties this special special appeal is disposed of without calling any further affidavits specifically in view of the order proposed to be passed today by this Court.

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An affidavit has been filed on behalf of the Committee of Management of the Institution which is kept on record. It is stated therein that in order to void completion which may arise because appointments if made under the interim order passed by the writ Court dated 9.12.2015, a resolution has been made by the Committee of Management that it shall not raise any bill for claiming salary with reference to the appointment, which may be made in terms of the order of the writ Court dated 9.12.2015, with a further request that the learned Single Judge may be requested to consider and decide the writ petition No. 61329 of 2015 itself finally at the earliest possible.

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Standing counsel on the contrary points out that the writ Court travelled beyond the scope of the writ petition by directing that the Committee of Management may proceed with the selections and issue appointment letters subject to the condition that the appointment would abide by final decision of the writ petition. According to the Standing counsel the order under challenge before the writ Court was an order of Basic Shiksha Adhikari refusing to grant permission to hold selections for the post of teachers. Therefore, the final relief which could have been granted in such a writ petitioner, if the order was found to be bad, would have been to set aside the order and to ask the Basic Shiksha Adhikari to reconsider the matter with regard to grant of such permission.

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It is submitted, if the interim order passed is given effect, it will only lead to complication and situation where the salary paid to the teachers appointed in terms of the interim order being lost to the State Government, even if, ultimately the writ petition is dismissed on merits.

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Having regard to the contention raised to the facts on record. We deem it fit and proper to direct that the Committee of Management shall not offer appointment to any person in

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terms of the selection if any held in pursuance to the order dated 9.12.2015 till the writ petition No. 61329 of 2015 is finally decided. We further request the learned Single Judge to consider and decide the writ petition at the earliest possible without granting any unnecessary adjournment to either of the parties.

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The writ petition shall be listed before the writ Court on 5th September, 2017.

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This Special Appeal is disposed of. "

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It is thereafter that the matter is taken up.

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Petitioner has challenged an order passed by the District Basic Education Officer, Mirzapur, according to which the number of vacancies in the educational institution stands determined by circulars dated 31.3.2015 and 6.4.2015, whereby there exists only one post of Headmaster and four post of Assistant Teacher. According to petitioner, number of vacancies sanctioned in the institution stood as one post of Headmaster with 13 posts of Assistant Teacher and those vacancies have not been reduced by the competent authority. Learned counsel for the petitioner places reliance upon a judgment of this Court passed in Writ Petition No.36910 of 2016, decided on 23.2.2018. After examining the statutory scheme, this Court has observed as under in para 6 to 12 of the aforesaid judgment:-

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" 6. Admittedly, appointment in the institution is to be made in accordance with Rules of 1978. Rule 7(3) & (4) of the Rules are relevant for the present purpose and are extracted hereinafter:-

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"7. Advertisement of vacancy.

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(3) Management of the school after explaining the sanctioned posts of the institution shall send information of vacant post during the calender year compulsory to the District Basic Education Officer by the 30th April for permission of Advertisement to fill them.

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(4) After scrutinizing the proposal within 15 days the District Basic Education Officer shall direct the manager to remove the objections, if any, within one week."

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7. The Management while initiating proceedings for filling up posts is required to explain the sanctioned posts existing in the institution which have then to be examined by the District Basic Education Officer. In an institution where posts in excess of those fixed in the norms have already been created by the authorities, the District Basic Education Officer would not be justified in unilaterly reducing the posts already created in the institution, only on account of the circulars issued.

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8. This Court in Writ Petition No.46368 of 2016 has already taken note of Government Orders/Circulars dated 8.8.2017 and 23.8.2017, which prescribes the procedure for determination of sanctioned strength of teachers in an institution concerned. The order passed by this Court on 11.1.2018 in the aforesaid petition is extracted hereinafter:-

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"Committee of Management of the Junior High School concerned has approached this Court challenging an order of the District Basic Education Officer, Auraiya, dated 7.6.2016, whereby approval sought to the appointment of two teachers in the institution has been denied. In the operative portion of the order, it is recorded that total number of teachers permitted to be engaged in the institution are six, consisting of a post of Headmaster, four posts of Assistant Teacher and one Clerk, whereas six teachers are already working, and therefore, approval cannot be granted to the fresh appointments made in the institution.

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The order is challenged primarily on the ground that there are 13 posts of teachers created in the institution under the orders of Regional Assistant Director of Education, Allahabad, dated 14.8.1988, and that appointments have been made against vacancies created on account of retirement of teachers, who were drawing salary from the State fund. It is stated that unilateral deduction in the number of post in the manner as has been done is wholly arbitrary. It is also stated that there is no basis to reduce the strength of teachers. Learned counsel has placed reliance upon Government Orders dated 8th August, 2017 and 23rd August, 2017, in order to contend that in the event, there is any dispute with regard to sanctioned strength of teachers then a survey has to be conducted by Committee, which has not been followed in the instant case. It is also stated that an order sanctioning the post could not have been nullified without an order passed by the competent court.

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Although a counter affidavit has been filed raising various issues with regard to procedure followed in making of the appointment, but there is no justification brought on record in the counter affidavit for unilateral reduction of post under the order impugned. Specific plea of the institution that there are eight posts of Assistant Teacher together with a post of Headmaster although has been noticed in the order, but there is no discussion as to how the sanctioned strength of teachers has been reduced while passing the order impugned. In such circumstances, the order passed by the District Basic Education Officer dated 7.6.2016 cannot be sustained. Other issues raised in the order need not be commented upon, at this stage, inasmuch as petitioner's claim has been nonsuited only on account of absence of post.

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Writ petition, consequently, succeeds and is allowed. Order dated 7.6.2016 passed by the District Basic Education Officer is quashed. A direction is issued to the authority concerned to re-visit the issue, particularly with reference to existence of post. The authority concerned shall keep in mind the order passed by the Assistant Director dated 14.8.1988 as well as subsequent Government Orders issued for the purpose, before proceeding further. The required consideration shall be made within a period of three months from the date of presentation of certified copy of this order."

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9. It would also be relevant to take note of section 26 of the Right of Children to Free and Compulsory Education Act, 2009, which mandates that the appointing authority, in relation to a school established, shall ensure that vacancy of a teacher shall not exceed 10% of the total sanctioned strength. Section 26 of the Act of 2009 is reproduced hereinafter:-

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"26. Filling up vacancies of teachers. - The appointing authority, in relation to a school established, owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government or by a local authority, shall ensure that vacancy of teacher in a school under its control shall not exceed ten per cent of the total sanctioned strength."

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10. Rule 3 of 1978 Rules also casts an obligation upon the authorities to fill up the vacant post within two months of occurrence of vacancy. The authorities of the State are, therefore, enjoined by law to ensure that any vacancy is not allowed to exist beyond two months in an institution imparting education to students between 6 to 14 years of age.

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11. In the facts and circumstances of the present case, as the document issued under the signatures of the District Basic Education Officer contained in Annexure-3 is not disputed in the counter affidavit, and sanction of seven posts of Assistant Teacher is not disputed, it would be appropriate to observe that prima facie existence of seven posts in the institution is reflected and in such circumstances, the authorities would not be justified in restricting recruitment only to four posts of Assistant Teachers.

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12. This petition accordingly stands disposed of with a direction upon the District Basic Education Officer concerned to examine existence of duly sanctioned posts existing in the institution in terms of rule 7(3), and thereafter proceed to permit the Committee of Management to fill up the posts in accordance with law. Such sanctioned posts would not be automatically reduced in view of the circular of Director dated 7.1.2015. The required consideration would be made by the officer concerned within a period of two months from the date of presentation of certified copy of this order. "

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Controversy being identical, this writ petition is also liable to be

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disposed of on the same terms, inasmuch as the District Basic Education Officer will have to examine existence of duly sanctioned post in terms of Rule 7(3) of the Rules of 1978 and the authority concerned shall pass a fresh order, in that regard, within a period of two months from the date of presentation of certified copy of this order. In case any appointments are made the legality of appointments made by petitioner institution in terms of the interim protection granted by this Court would also be examined by the District Basic Education Officer, accordingly. Compliance of the Rules of 1978 shall be ensured. Order dated 8.10.2015 accordingly stands quashed.

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Order Date :- 17.2.2020 Anil

C/M Ramapur Uchchattar Madhyamik Vidyalaya and Another v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

C/M Ramapur Uchchattar Madhyamik Vidyalaya and Another v. State of U.P. and 2 Others

Case brief

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What did the court decide?

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