High Court · 2018 on 30 Jun 2018

Judgment

1. These two appeals are filed by the State challenging the orders passed by learned Single Judge in favour of the respondent-writ petitioner. Though both the appeals are presented together but the orders of learned Single Judge have been passed at different stages and are virtually in continuation of one after the another. So far as the first order of Learned Single Judge is concerned, the same was passed on 29.02.2024, whereas the subsequent order is of

01.04.2025.

2. There exist a recognized aided junior high school in the name of Kisan Junior High School, Saurai Khandauli, District Agra. Two posts of assistant teacher fell vacant in this institution on 30 June

2018. The management initiated the process of recruitment in accordance with the provisions of The U.P. Recognised Basic Schools (Junior High Schools) (Recruitment And Conditions Of Service Of Teachers) Rules, 1978 (hereinafter referred to as ‘Rules of 1978’). As per the procedure prescribed under the rules, the process of recruitment could start only with the permission of the District Basic Education Officer. Such permission was sought by the [2] Management and was granted by the District Basic Education Officer on 09.07.2018. On account of some factual clarification yet another permission came to be granted on 16.11.2018. The post was advertised in two daily newspapers i.e. Amar Ujala and Dainik Jagran on 19.11.2018. The Rules of 1978 also provided for constitution of a selection committee for appointment which was to consist of a nominee of the District Basic Education Officer. The institution therefore requested the District Basic Education Officer to send a nominee. The Block Education Officer accordingly was appointed as nominee by the District Basic Education Officer by his order dated 16.01.2019. The selection proceedings were undertaken on 18.01.2019. The selection committee selected two persons, namely, Sandeep Singh and Ajab Singh. So far as Sandeep Singh is concerned his appointment has already been approved and he is working in the institution since 2019 and is getting salary from State funds since 2021. So far as Ajab Singh is concerned his claim for grant of approval was forwarded to the District Basic Education Officer where it remained pending. The District Basic Officer passed a specific order holding that initially four posts of assistant teacher existed in the institution which has been reduced to three. This was done pursuant to a Government Order dated 15.01.2019. The claim of the respondent for appointment was declined for such reasons. It

was this order of disapproval which came to be challenged in Writ-A No. 12539 of 2019 by Ajab Singh. This writ petition has been allowed by the learned Single Judge vide judgment and order dated

29.02.2024. The reasoning assigned by the learned Single Judge to allow the petition is that the Government Order, which was relied upon by respondent to non suit the writ petitioner was issued on

15.01.2019, whereas, the process of recruitment had not only been [3] initiated earlier but was substantially concluded and, therefore, the Government Order could not be given a retrospective application.

3. The judgment of learned Single Judge dated 29.02.2024 setting aside the decision of the educational authority in retrospectively applying the Government Order dated 15.01.2019 was not challenged at that stage. In the earlier writ petition, another issue raised by the respondent was in respect of non availability of subject in which appointment was to be offered to Ajab Singh. In para 11, learned Single Judge has rejected such plea on the ground that appointments in junior high school were not for specific subject and that teachers having requisite qualification could teach all subjects up to class 8. Therefore, on both the counts i.e. with regard to retrospective applicability of the Government Order dated

15.01.2019 as well as non availability of post in the specified subject the claim of the State was rejected. Notwithstanding the previous adjudication having attained finality till then, the District Basic Education Officer again proceeded to reject the claim of the respondent Ajab Singh on primarily same grounds. For this reason the learned Single Judge has found the State action to be contemptuous in nature and has imposed cost upon the officer concerned. A direction has been issued to initiate departmental proceedings against the officer if he fails to comply with such direction.

4. Learned State counsel in support of the appeal submits that by virtue of Government Orders dated 15.01.2019 the vacancy itself has ceased to exist and that the schedule to the RTE Act 2009 since specify that the teachers in specified subjects be available in a junior high school as such the decision of the District Basic Education Officer requires no interference. It is, therefore, argued that the [4] orders passed by learned Single Judge be interfered with in present appeal.

5. The submission of State counsel is opposed by Sri Ashok Khare, learned Senior Counsel, appearing for the respondent-Ajab Singh on the ground that none of the two grounds urged by the State have any substance and, therefore, the appeal merits no interference.

6. The two grounds on which the State proposes to challenge the decision of learned Single Judge have been examined by us at length. It is undisputed that the vacancy in the institution had arisen on 30.06.2018. Two posts had fallen vacant and, therefore, the District Basic Education Officer in accordance with the Rules of 1978 had granted permission to fill up these two posts. No objection was taken with regard to non availability of posts. The District Basic Education Officer not only granted permission but also proceeded to nominate his representative who was to act as his nominee in the selection committee. The proceedings of selection have already concluded. It is at this late stage that the Government Order of

15.01.2019 has been brought into effect as a result of which the number of post in the institution is reduced from 4 to 3. Learned Single Judge has observed that this Government Order will have no retrospective application particularly when the process of recruitment was allowed to be processed as per the Rules of 1978. We find the view of learned Single Judge to be legally and factually correct in as much as the authorities of State having recognized existence of vacancy and allowed the institution to proceed with the recruitment cannot subsequently take a U-turn and dispute the existence of post, by retrospectively applying a Government Policy which was not in existence when the recruitment process had itself [5] begun. The challenge laid by the State to this part of adjudication, therefore, has no force.

7. The Rules of 1978 as per which the recruitment had commenced did not envision any appointment of teacher subject wise. This concept apparently has been introduced for the first time by way of 7th amendment introduced in the Rules of 1978 notified on 4th December 2019. This amendment also cannot be applied retrospectively. Admittedly the selection proceedings had concluded much prior to amendment introduced in the Rules of 1978. The State has also taken shelter of the schedule to Right of Children to Free and Compulsory Education Act or Right to Education Act, 2009. Sections 19 and 25 of the RTE Act, 2009 contemplates laying down of norms and standards for school in the schedule. At serial number 1(b) the schedule contemplates that at least one teacher per class must exist in the institution so that there shall be at least one teacher each for Science & Mathematics; Social Studies and Languages.

8. The argument of State based upon the provisions of RTE Act of 2009 though may appear attractive at the first blush but is not found to have any merit once the issue is examined carefully in the light of the statutory scheme. In the seventh amendment to the Rules of 1978 though the notification of vacancy was required to be category wise and subject wise but in the qualification prescribed for appointment of teacher there is no specification of qualification subject wise. The NCTE Regulations also are silent in this regard. As such, neither the RTE Act, 2009 nor the Rules of 1978 or even the NCTE Regulations provides for qualification of teacher, subject wise. In its absence it would be difficult to hold that the respondent was not having requisite qualification for appointment to the post. [6]

9. Unless the Rules prescribe the qualification with reference to the subject of assistant teacher it would be difficult to appreciate the argument of the State that such advertised post had to be for a particular subject and that only such person who possesses qualification in that subject could be appointed. Although having knowledge of a particular subject by the teacher would be essential but for the purposes of imparting teaching to students of class six to eight a person who possesses graduation and has otherwise passed TET and other qualification can always be presumed to be having requisite knowledge of the subject to be taught in such school. Learned Single Judge in the previous round of litigation has observed that respondent (Ajab Singh) is a graduate and had specific knowledge of Social Science. He is otherwise a B.Ed and has also passed TET. A person who passes TET prescribed by the NCTE and is otherwise not shown to be ineligible as per qualification prescribed for the subject cannot be adjudged to be lacking qualification. We may at this juncture also note that State at no stage has specified the vacancies in the institution subject wise. The District Basic Education Officer while granting permission to make appointment had not indicated that the recruitment was to be made in required subject. Merely stating that subjects have to be kept in mind would not lead to an inference that the approval for appointment was with reference to a particular subject. It is also observed that in the first round of litigation learned Single Judge had rejected the objection of the State on both the aforesaid counts. The District Basic Education Officer was either required to have complied with this order or to have challenged it by filing appeal. The District Basic Education Officer however proceeded to pass a fresh order substantially adopting the stand taken earlier to non suit the respondent.

10. Placing of reliance by the State on Government Order dated 31 October 2019 is equally misconceived. The Government Order of 31 October 2019 reads as under: [7] "संख्या-1755/ भदसठ-3-2019 izs"kd देव प्रताप सिंसह, विवशेष सचि(cid:21)व उत्तर प्रदेश शासन। सेवा में शिशक्षा विनदेशक (बेसिसक), उत्त्तर प्रदेश, लखनऊ। बेसिसक शिशक्षा अनुभाग-3 लखनऊः विदनांक 31 अक्टूबर, 2019 विवषयः- प्रदेश में अशासकीय सहायता प्राप्त जूविनयर हाई स्कूल में अध्यापकों की भत4। महोदय, उपयु6क्त विवषय पर मुझे यह कहने का विनद9श हुआ है विक प्रदेश में अशासकीय सहायता प्राप्त जूविनयर हाई स्कूलों में अध्यापकों की भत4 सम्प्रचित प्रबन्धतंत्र एवं सिजला बेसिसक शिशक्षा अचिधकारी के माध्यम से की जाती है। प्रबन्धतंत्र के माध्यम से की जाने वाली विनयुविक्तयों में भ्रष्टायार एवं प्रविDयाजन्य अविनयविमतताओं की गम्भीर शिशकायतों विनरनार प्राप्त होती रहती है और इसके अचितरिरक्त इस प्रविDया से की जानी वाली भत4 में पारदर्शिशता का भी अभाव रहता है सिजसके फलस्वरूप गुणवत्तायुक्त योग्य अध्यापकों की भत4 नहीं हो पाती है। उक्त कविठनाईयों के विनराकरण के उ द्देश्य से अध्यापकों की भत4 हेतु नये मान एवं मानक विनधा6रिरत विकये जाने हेतु उ०प्र० मान्यता प्राप्त बेसिसक स्कूल (जूविनयर हाईस्कूल) (अध्यापकों की भत4 एवं सेवा की शतR) विनयमावली, 1978 में संशोधन की काय6वाही अन्तिन्तम (cid:21)रण में है। अतः उक्त तथ्यों को दृविष्टगत रखते हुए शासन स्तर पर सम्यक विव(cid:21)ारोपरान्त विनम्नयत विनण6य लिलया गया है:- [8] (1) प्रदेश में अशासकीय सहायता प्राप्त जूविनयर हाईस्कूलों में अध्यापकों के पद पर यविद भत4 की प्रविDया प्रारम्भ हो गयी हो तो उसे विकसी भी दशा में पूण6 न विकया जाय। (2) प्रदेश में अशासकीय सहायता प्राप्त जूविनयर हाईस्कूलों में अध्यापकों के पद पर कोई नवीन भत4 प्रारम्भ न की जाय। कृपया उक्त आदेशों का अनुपालन सुविनचिXत विकया जाय। भवदीय, (देव प्रताप सिंसह) विवशेष सचि(cid:21)व। संख्या एवं विदनांक तदैव। प्रचितलिलविप-विनम्नलिललिखत को सू(cid:21)ना एवं आवश्यक काय6वाही हेतु प्रेविषतः- 1- अपर शिशक्षा विनदेशक (बेसिसक) उ०प्र० प्रयागराज। 2- समस्त मण्डलीय सहायक शिशक्षा विनदेशक (बेसिसक) उ०प्र०। 3- रामस्त सिजला बेसिसक शिशक्षा अचिधकारी उ०प्र०।"

11. Clause (1) of the Government Order states that process of recruitment which has already commenced shall not be completed in any condition. Clause (2) contemplates that no new process of recruitment would be started. We fail to understand as to how could such a Government Order be applied retrospectively such that selections already made would be nullified. Absolutely no reasons are otherwise specified as to why such recruitment is discontinued. Merely saying that complaints of illegal appointments are being made is wholly vague and general allegation which is not specific to any particular institution/recruitment. On the strength of such Government Order it would otherwise be impermissible to object to [9] the appointments validly made in accordance with the applicable Rules.

12. The Rules clearly contemplate making of appointment as and when the vacancy arises. Rule 3 of Rules of 1978 casts obligation on the management or the controller to send information of vacancies falling at the end of the academic session and such appointment is to be concluded by 31st July every year. “3. Appointment. -(1) It shall be the responsibility of the Management to fill a vacancy in the post of Headmaster or Assistant teacher, as the case may be, of a recognised school by 31st July every year. (2) If any vacancy occurs during an academic session, it shall be filled within two months from the date of occurrence of such vacancy.”

13. Rules of 1978 were very much in existence and obligated the management to conclude the recruitment process. Such recruitment process has been undertaken by complying with the provisions of 1978 Rules. No illegality in the holding of recruitment has been pointed out. The State action in retrospectively applying one Government order or the other so as to nullify the selection process already undertaken earlier cannot be approved. The State is also not expected to issue executive instructions stopping all ongoing recruitments without providing for any alternative mechanism. All appointments in junior high schools are discontinued. No alternative system is put in place. If the State policy is implemented in the manner directions are issued it would only mean that all appointments in such junior high school would be discontinued without any fresh process undertaken for appointment. It is only in August 2023 that a new commission has been constituted for appointment to be made in these junior high schools. We are [10] informed that till date not a single advertisement has been issued by this commission for appointment to be made in any junior high school. What follows from the above is that the State action in discontinuing the erstwhile recruitment process, without substituting it with any alternative system, would only result in all vacancies remaining unfilled for years. In such peculiar facts and circumstances we cannot sustain the stand of the officer concerned in disapproving the selection by retrospectively applying the Government Orders in question. Learned Single Judge has thus not committed any error in imposing the cost upon the District Basic Education Officer. We, therefore, hold this appeal to be bereft of any merits.

14. Accordingly, both the appeals fail and are dismissed. Order Date :- 6.5.2025 K.K. Maurya