Allowed

Sudeep Kumar Singh S/O Sri Dinesh Pratap Singh and Another v. the State of U.P. Thro. the Secy. of Basic Education and 4 Ors.

Allahabad HC12 Feb 2024WRIA/4964/2011

Case brief

AI extract

What is this about?

This writ petition challenged the quashing of an Assistant Teacher's appointment due to alleged procedural lapses including lack of prior permission for advertisement and non-implementation of reservation policy. The court held prior permission was not required under rules prevalent in 2011, reservation did not apply to posts under five, and absence of authority nominee did not invalidate the sele

What did the court decide?

Impugned orders quashed; Mandamus issued to approve petitioner's appointment with effect from appointment letter date including consequential benefits.

Sudeep Kumar Singh S/O Sri Dinesh Pratap Singh and… — Service and Employment | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:12763

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Court No. - 17

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Case :- WRIT - A No. - 4964 of 2011

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Petitioner :- Sudeep Kumar Singh S/O Sri Dinesh Pratap Singh And Another

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Respondent :- The State Of U.P. Thro. The Secy. Of Basic Education And 4 Ors

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Counsel for Petitioner :- Pt.S.Chandra,Dr. L.P.Mishra Counsel for Respondent :- C.S.C.,Badrish Tripathi,D.R. Misra,Ghaus Beg,Kumar Ayush

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Hon'ble Manish Mathur,J.

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Heard Dr. L.P. Misra, learned counsel for the petitioner, learned State Counsel for opposite party no.1 and Mr. Kumar Ayush, learned counsel for opposite party nos.2 to 4. No one has appeared on behalf of opposite party no.5 although the name of Mr. Badrish Tripathi, Advocate as counsel for the said opposite party is indicated.

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Petition has been filed challenging orders dated 22.06.2011 and 30.06.2011 passed by the Basic Education Officer whereby appointment of petitioner on the post of Assistant Teacher in the Institution in question has been held to be violative of rules with further direction to the Institution for fresh issuance of advertisement and recruitment process for filling up the said posts.

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It has been submitted that in the Institution in question, there are four sanctioned posts of Assistant Teachers in which one post fell vacant on 01.06.2009 due to demise of the regular teacher with second post falling vacant on 30.06.2010 due to superannuation of the erstwhile teacher. Vide letter dated 03.02.2011, Management of School is said to have intimated vacancy to the Basic Education Officer with request for permission to advertise post. However, since reply was not sent

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and due to exigencies pertaining to students, both the posts were advertised on 22.05.2011 in local dailies having vide coverage.

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Vide letter dated 07.06.2011, the Manager requested the Basic Education Officer to provide nominee for the Selection Committee but since it was not provided, interview was held on 16.06.2011 in absence thereof whereafter petitioner was selected on one of the vacancies and intimation thereof was sent to the authorities whereafter impugned orders have been passed.

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Learned counsel for petitioner submits that petitioner's appointment has been disapproved on the twin grounds that firstly, no prior permission was sought from the Basic Education Officer before advertising the post and secondly, the post even otherwise was required to be advertised only after implementation of the Reservation Policy, which was not done.

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So far as the first question is concerned, learned counsel for petitioner has adverted to the U.P. Recognized Basic Schools, (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (hereinafter referred to as 'Rules of 1978') to submit that as on the date of petitioner's appointment, there was no provision thereunder whereby the management was required to seek any prior approval from the authorities before issuance of advertisement. It is submitted that even otherwise, information with regard to filling up two posts was admittedly provided by the management to the authorities who failed to send a nominee for being a member of the Selection Committee and therefore, non-inclusion of such a nominee now cannot be taken as a ground to deny approval to petitioner's appointment since it would amount to permitting opposite parties to take benefit of their own wrong.

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It is submitted that the condition requiring prior approval of

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the District Basic Education Officer has been subsequently inserted in Rule 7 of the aforesaid Rules of 1978 by means of amendment incorporated in the year 2012 with effect from the date of publication in the gazette, which was 05.12.2012 and would not have retrospective operation.

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With regard to the second ground for refusal of approval, learned counsel has placed reliance on the Full Bench judgment of this Court in the case of Heera Lal Vs. State of U.P. and Others, reported in 2011 (29) LCD 1 , wherein to submit that it has been held that reservation would be inapplicable in those cases where the posts are less than five in number.

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Learned counsel appearing on behalf of opposite parties has refuted submissions advanced for learned counsel for petitioner on the basis of counter affidavit filed with the submission that petitioners were illegally and arbitrarily appointed on the post of Assistant Teachers by the Manager concerned without following the conditions indicated in the Rules of 1978 particularly paragraphs 5 & 10 thereof inasmuch as it was incumbent upon the management to have not only intimated the authorities with regard to vacancies but also to have sought prior approval before advertisement and selection on the said post. It has also been submitted that the official concerned even otherwise specifically informed the management that the posts can be advertised only after implementation of Reservation Policy, which having not been done, makes the entire process of appointment illegal. It is also submitted that as per statutory provisions, at least one post of Teacher should have been filled up by a Scheduled Caste candidate.

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Upon consideration of submissions advanced for learned counsel for the parties and perusal of material on record, it is evident that petitioner's selection and appointment has been

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disapproved by the authorities primarily on the twin grounds indicated hereinabove.

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So far as the first ground is concerned, it is evident that rules as prevalent on the date of vacancy and selection would be the one applicable. Rule 7 of the Rules of 1978, which were prevalent at the relevant time only indicates that vacancies are to be advertised in at least two newspapers having wide circulation in the State and at the place where the school is situated. It also indicates a prohibition that no post shall be filled up without advertisement. The aforesaid Rule also stipulates that positions will be filled up by candidates whose qualifications adhere to the minimum required as per law.

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It is also evident that Rule 7 did not prescribe any prior permission being required from the authorities concerned by the management before initiating selection for filling up the vacancies on the post of Assistant Teacher, at the relevant time.

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It is also evident that the provision for prior approval has thereafter been incorporated only in the year 2012 with insertion of Sub-Rule 3 in Rule 7 of the Rules of 1978 whereunder it has for the first time been provided that Management of School after indicating sanctioned post of the Institution shall send information of vacancy during the calendar year compulsorily to the Basic Education Officer by 30^th April for permission of advertisement to fill them.

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Such a condition as inserted in the year 2012 is clearly absent in the Rules of 1978 at the time when the posts were advertised by the management.

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Considering the nature of amendment incorporated in the year 2012, it is evident that it would operate prospectively and not retrospectively on the two advertisements already issued for filling up vacancies.

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In view of the aforesaid, it is quite evident that the first ground for disapproval of petitioner's appointment fails in the light of the fact that there was no provision for the management to seek any prior approval from the Basic Education Officer concerned before issuance of advertisement to fill the post concerned.

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So far as the second ground of rejection is concerned, a Full Bench of this Court in case of Heera Lal ( supra ) has already held that principles of Reservation would be inapplicable in cases where the posts are less than five in number.

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In view of aforesaid proposition enunciated by Full Bench of this Court, the second ground for the rejection of petitioner's candidature to which appointment also fails and is accordingly rejected.

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So far as the reason indicated in the impugned order that Selection Committee was not in accordance with rules since nominee of the Basic Education Officer did not participate in the same, the said fact has already been adjudicated upon by Coordinate Bench of this Court in the case of Vivek Kumar Vs. State of U.P. and Others, Writ Petition No.7146 (S/S) of 2010, wherein this Court has held that once intimation is provided to the concerned authority for sending his nominee and he fails to do so, the fact would not have any bearing on the Selection Committee so constituted since it would amount to permitting the authority to take benefit of its own wrong. This Court is in respectful agreement with the aforesaid law propounded.

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It is also evident from the record that the petitioners are continuing on their posts and are being paid salary in pursuance of interim order dated 12.12.2012 passed earlier in writ petition.

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In view of aforesaid, the impugned orders dated 22.06.2011 and 30.06.2011 not being in accordance with the relevant rules

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and law propounded are hereby quashed by issuance of a writ in the nature of Certiorari. A further writ in the nature of Mandamus is issued commanding the opposite party no.3 to issue appropriate orders approving petitioner's appointment in the Institution concerned with effect from the date of issuance of their appointment letter with all consequential benefits.

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Resultantly, the petition succeeds and is allowed .

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Parties to bear their own costs.

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Order Date :- 12.2.2024 Mohd. Sharif

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Digitally signed by :- MOHAMMAD SHARIF High Court of Judicature at Allahabad, Lucknow Bench

Sudeep Kumar Singh S/O Sri Dinesh Pratap Singh and Another v. the State of U.P. Thro. the Secy. of Basic Education and 4 Ors.

Case brief

What is this about?

What did the court decide?

Sudeep Kumar Singh S/O Sri Dinesh Pratap Singh and Another v. the State of U.P. Thro. the Secy. of Basic Education and 4 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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