C/M Jay Samaj Junior High School, Azamgarh And Another v. State Of U.P. And

Heard Mr. J.P. Singh, learned counsel for the petitioner as well as Mr. Brijesh Narayan, learned Standing Counsel for the State- respondents. The present petition has been filed with the following prayers :- "(i) to issue a writ, order or direction in the nature of certiorari quashing the order impugned dated 27-10-2020 passed by Zila Basic Shiksha Adhikari. Azamgarh (copy enclosed as Annexure No. 11 to this petition); (ii) to issue a writ, order or direction in the nature of mandamus directing the Zila Basic Shiksha Adhikari, Azamgarh to provide his nominee for selection on the post of Assistant Teacher within the time to be specified by the Hon'ble Court; (iii) to issue a writ, order or direction in the nature of mandamus commanding the Zila Basic Shiksha Adhikari, Azamgarh to examine the selection made by Petitioner's Committee in terms of unamended rules of 1978 and to approve the same within the time to be specified by the Hon'ble Court;" Learned counsel for the petitioner submits that the petitioner's institution namely Jay Samaj Junior High School, Sherpur Mahvi, District- Azamgarh (hereinafter referred to as institution) is a recognized and aided Junior High School. In the institution of the petitioner, post of Assistant Teacher fell vacant on 01.04.2018 due to retirement of one Harivansh Dube, who was working on a sanctioned post. On 09.07.2018, an application was moved by the Manager of the institution before the Zila Basic Shiksha Adhikari, Azamgarh, seeking permission to fill the aforesaid post. Accordingly, by order dated 14.09.2018, permission was granted to the Committee of Management and advertisement was published in two news papers namely Rashtriya Sahara and Aaj on 30.09.2018. He further submits that pursuant to the said advertisement, a total number of 14 candidates applied for the post of Assistant Teacher. The selection and appointment on the said post, in the aforesaid institution, were to be done as per the provisions of U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978. In terms of Rule 9, the Zila Basic Shiksha Adhikari, Azamgarh issued an order dated 27.12.2018, appointing Block Education Officer, Maharajganj, Azamgarh as Departmental Nominee for conducting selection of Assistant Teacher in the petitioner's institution and the same was scheduled to be held on 30.12.2018. On account of unavoidable circumstances, the Management had to postpone the selection process fixed for 30.12.2018. In the meantime, the relevant rules were amended on 04.12.2019. For the new academic session, the Manager of the institution approached the Zila Basic Shiksha Adhikari, Azamgarh for providing nominee afresh. When nothing was done pursuant to the aforesaid application, Writ-A No.732 to 2022 (C/M Jay Samaj Junior High School, Azamgarh And Another vs. State Of U.P. And 2 Others) was filed and the aforesaid was disposed of vide order dated 18.01.2020. The aforesaid petition was filed with a prayer to decide the application of the petitioner requesting for appointment of nominee for the purpose of selection to be held, pursuant to the advertisement issued on 30.09.2018. The aforesaid petition was disposed of vide order dated 18.01.2020 with a direction to the petitioner to file a fresh representation before the District Basic Education Officer, Azamgarh raising all his grievances within a period of two weeks from the date of the said order. The respondent District Basic Education Officer, Azamgarh was directed to pass reasoned and speaking order on the same. rejecting has been passed In compliance of the aforesaid order, the Manager of the institution moved an application/representation dated 28.01.2020, before the Zila Basic Shiksha Adhikari, District- Azamgarh, on which the impugned order application/representation of the petitioner. He further submits that the amended rules of the U.P. Recognized Basic Schools (Junior High Schools) (Conditions of Recruitment of Teachers) Rules, 1978 as amended by Government Order dated 04.12.2019, were to take effect from the date it was published in the gazette. Thus, the amended rules were to be taken into consideration for future selections & appointments and were not to be applied retrospectively. Thus, the impugned order passed by respondent no.3, refusing appointment of nominee and restraining the petitioner's management to make selection is unsustainable in the eyes of law. Learned counsel for the petitioner further submits that it is admitted position that pursuant to permission granted by Zila Basic Shiksha Adhikari, vacancy was advertised, fourteen candidates had applied and even nominee was appointed by the Zila Basic Shiksha Adhikari, Azamgarh, but due to unavoidable reasons, the interview had to be postponed. The Management again approached the Zila Basic Shiksha Adhikari, Azamgarh for appointment of nominee but when nothing was done, Writ-A No.732 to 2022 (C/M Jay Samaj Junior High School, Azamgarh And Another vs. State Of U.P. And 2 Others) which was disposed of by order dated 18.01.2020. In compliance of the order passed by the Writ Court in the aforesaid petition, the impugned order has been passed without realizing the fact that at that point of time, the un-amended rules were applicable and the Management had authority to made selections and appointments. Thus, when all the process of selection was initiated prior to applicability of the amended rules i.e. the selection was initiated by publication of advertisement on 30.09.2018, then the amended rules could not have been applied retrospectively, without considering which, the order impugned has been passed. In support of his submission, learned counsel for the petitioner has relied upon a judgment passed by full bench of this Court in Santosh Kumar Singh v. State of U.P., reported in [2015 (7) ADJ 179 (FB)]. The relevant paragraphs are reproduced herein under :- "20. We consequently answer the reference in the following terms: (a) Despite the rescission of the Removal of Difficulties Orders by Section 33-E of U.P. Act No. 13 of 1999 with effect from 25 January, 1999, the power of the Committee of Management to make appointments against short term vacancies, where the process of appointment had been initiated prior to 25 January, 1999 by the publication of an advertisement, would continue to be preserved; (b) On the enforcement of the provisions of Section 33-E, the power of a Committee of Management to make ad hoc appointments against short term vacancies would not stand abrogated in a case where the process of selection had been initiated prior to 25 January, 1999; (c) Under Section 16-E of the Intermediate Education Act, 1921, the Committee of Management is empowered to make an appointment against a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding six months or in the case of death, termination or omerwise, of an incumbent occurring during an educational session. An appointment made under sub-section (11) of Section 16- E as provided in the proviso thereto shall, in any case, not continue beyond the end of educational session during which the appointment was made; and

Heard Mr. J.P. Singh, learned counsel for the petitioner as well as Mr. Brijesh Narayan, learned Standing Counsel for the State- respondents. The present petition has been filed with the following prayers :- "(i) to issue a writ, order or direction in the nature of certiorari quashing the order impugned dated 27-10-2020 passed by Zila Basic Shiksha Adhikari. Azamgarh (copy enclosed as Annexure No. 11 to this petition); (ii) to issue a writ, order or direction in the nature of mandamus directing the Zila Basic Shiksha Adhikari, Azamgarh to provide his nominee for selection on the post of Assistant Teacher within the time to be specified by the Hon'ble Court; (iii) to issue a writ, order or direction in the nature of mandamus commanding the Zila Basic Shiksha Adhikari, Azamgarh to examine the selection made by Petitioner's Committee in terms of unamended rules of 1978 and to approve the same within the time to be specified by the Hon'ble Court;" Learned counsel for the petitioner submits that the petitioner's institution namely Jay Samaj Junior High School, Sherpur Mahvi, District- Azamgarh (hereinafter referred to as institution) is a recognized and aided Junior High School. In the institution of the petitioner, post of Assistant Teacher fell vacant on 01.04.2018 due to retirement of one Harivansh Dube, who was working on a sanctioned post. On 09.07.2018, an application was moved by the Manager of the institution before the Zila Basic Shiksha Adhikari, Azamgarh, seeking permission to fill the aforesaid post. Accordingly, by order dated 14.09.2018, permission was granted to the Committee of Management and advertisement was published in two news papers namely Rashtriya Sahara and Aaj on 30.09.2018. He further submits that pursuant to the said advertisement, a total number of 14 candidates applied for the post of Assistant Teacher. The selection and appointment on the said post, in the aforesaid institution, were to be done as per the provisions of U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978. In terms of Rule 9, the Zila Basic Shiksha Adhikari, Azamgarh issued an order dated 27.12.2018, appointing Block Education Officer, Maharajganj, Azamgarh as Departmental Nominee for conducting selection of Assistant Teacher in the petitioner's institution and the same was scheduled to be held on 30.12.2018. On account of unavoidable circumstances, the Management had to postpone the selection process fixed for 30.12.2018. In the meantime, the relevant rules were amended on 04.12.2019. For the new academic session, the Manager of the institution approached the Zila Basic Shiksha Adhikari, Azamgarh for providing nominee afresh. When nothing was done pursuant to the aforesaid application, Writ-A No.732 to 2022 (C/M Jay Samaj Junior High School, Azamgarh And Another vs. State Of U.P. And 2 Others) was filed and the aforesaid was disposed of vide order dated 18.01.2020. The aforesaid petition was filed with a prayer to decide the application of the petitioner requesting for appointment of nominee for the purpose of selection to be held, pursuant to the advertisement issued on 30.09.2018. The aforesaid petition was disposed of vide order dated 18.01.2020 with a direction to the petitioner to file a fresh representation before the District Basic Education Officer, Azamgarh raising all his grievances within a period of two weeks from the date of the said order. The respondent District Basic Education Officer, Azamgarh was directed to pass reasoned and speaking order on the same. rejecting has been passed In compliance of the aforesaid order, the Manager of the institution moved an application/representation dated 28.01.2020, before the Zila Basic Shiksha Adhikari, District- Azamgarh, on which the impugned order application/representation of the petitioner. He further submits that the amended rules of the U.P. Recognized Basic Schools (Junior High Schools) (Conditions of Recruitment of Teachers) Rules, 1978 as amended by Government Order dated 04.12.2019, were to take effect from the date it was published in the gazette. Thus, the amended rules were to be taken into consideration for future selections & appointments and were not to be applied retrospectively. Thus, the impugned order passed by respondent no.3, refusing appointment of nominee and restraining the petitioner's management to make selection is unsustainable in the eyes of law. Learned counsel for the petitioner further submits that it is admitted position that pursuant to permission granted by Zila Basic Shiksha Adhikari, vacancy was advertised, fourteen candidates had applied and even nominee was appointed by the Zila Basic Shiksha Adhikari, Azamgarh, but due to unavoidable reasons, the interview had to be postponed. The Management again approached the Zila Basic Shiksha Adhikari, Azamgarh for appointment of nominee but when nothing was done, Writ-A No.732 to 2022 (C/M Jay Samaj Junior High School, Azamgarh And Another vs. State Of U.P. And 2 Others) which was disposed of by order dated 18.01.2020. In compliance of the order passed by the Writ Court in the aforesaid petition, the impugned order has been passed without realizing the fact that at that point of time, the un-amended rules were applicable and the Management had authority to made selections and appointments. Thus, when all the process of selection was initiated prior to applicability of the amended rules i.e. the selection was initiated by publication of advertisement on 30.09.2018, then the amended rules could not have been applied retrospectively, without considering which, the order impugned has been passed. In support of his submission, learned counsel for the petitioner has relied upon a judgment passed by full bench of this Court in Santosh Kumar Singh v. State of U.P., reported in [2015 (7) ADJ 179 (FB)]. The relevant paragraphs are reproduced herein under :- "20. We consequently answer the reference in the following terms: (a) Despite the rescission of the Removal of Difficulties Orders by Section 33-E of U.P. Act No. 13 of 1999 with effect from 25 January, 1999, the power of the Committee of Management to make appointments against short term vacancies, where the process of appointment had been initiated prior to 25 January, 1999 by the publication of an advertisement, would continue to be preserved; (b) On the enforcement of the provisions of Section 33-E, the power of a Committee of Management to make ad hoc appointments against short term vacancies would not stand abrogated in a case where the process of selection had been initiated prior to 25 January, 1999; (c) Under Section 16-E of the Intermediate Education Act, 1921, the Committee of Management is empowered to make an appointment against a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding six months or in the case of death, termination or omerwise, of an incumbent occurring during an educational session. An appointment made under sub-section (11) of Section 16- E as provided in the proviso thereto shall, in any case, not continue beyond the end of educational session during which the appointment was made; and