High Court
Case Details
Court No. - 36 Case :- WRIT - A No. - 6632 of 2023 Petitioner :- Km Nidhi Singh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Pramod Kumar Dubey,Priyansh,Sr. Advocate Counsel for Respondent :- C.S.C. Hon'ble Ashutosh Srivastava,J. 1. Heard Shri Sanjeev Singh, learned Senior Counsel assisted by Shri Priyansh, learned counsel for the petitioner and learned Standing counsel for the State- respondents. No one has appeared on behalf of the respondent No. 4.
Decision
2. The writ petition has been filed seeking issuance of a writ of mandamus directing the respondents to pay salary and other benefits regularly along with arrears and interest 8% per annum to the petitioner w.e.f. 15.5.2015 for the post of Headmistress in Siddharth Poorva Madhyamik Vidyalaya, Pipra Rasoolpur, Maharajganj. Further prayer has also been made to issue a writ of mandamus commanding the respondents to pay current salary to the petitioner as and when the same falls due. 3. It is contended by learned Senior Counsel that in the District Maharajganj there is a recognized, aided institution in the name and style of Siddharth Poorv Madhyamik Vidyalaya (Junior High School) imparting education from class 6 to 8. The District Basic Education Officer, Maharajganj granted permission by order dated 13.1.2015 to the management of the institution to fill up the post of Headmistress and accordingly the posts were advertised in the daily newspapers. The District Basic Education Officer vide order dated 2.2.2015 nominated his nominee the Block Education Officer, Nautanwa, Maharajganj to participate in the selection process. The Selection Committee met on 24.3.2015 and recommended the name of the petitioner. The selection proceedings were forwarded by the Manager of the Institution to the District Basic Education Officer and after expiry of the requisite period prescribed under the 1978 Rules the Management issued the appointment letter to the petitioner on 5.5.2015 and in compliance thereof the petitioner joined the Institution in question on 15.5.2015 and has been continuously working as Headmistress under the interim order granted by this Court. 4. Learned Senior Counsel submits that, under the instruction dated 19.4.2023, it is mentioned that approval to the appointment of the petitioner was not accorded and proceeded on the erroneous assumption that the appointment of the petitioner was made after the enforcement of the Right to Children to Free and Compulsory Education Act, 2009 and the U.P. Right of Children to Free and Compulsory Education Rules, 2011 which provides that a candidate for appointment as Assistant Teacher must possess the essential qualification of TET. The petitioner did not possess the requisite essential TET qualification on the date of her selection and under such circumstances the approval for the selection of the petitioner cannot be accorded. 5. Learned counsel for the petitioner contends that the minimum qualification for passing the TET examination in the State of U.P. has been pressed into service only in the month of November 2011 when for the first time, the Government of U.P. proceeded to hold the TET examination. The selection made by the duly constituted Selection Committee cannot be said to suffer from any infirmity, illegality or irregularity. Further the government issued Government Order dated 05.12.2012 wherein a decision has been taken to grant relaxation for 5 years and obtain the necessary TET certificate. 6. The writ petition has been opposed by learned counsel for the State-respondents. Learned Standing Counsel, on instruction, submits that after enforcement of Right of Children to Free and Compulsory Education Act, 2011 and due non qualifying of Teachers Eligibility Test, the approval has not been granted to the petitioner. 7. Attention is also invited to another Notification dated 10.8.2017 wherein Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 has been amended and it has been provided that every Teacher appointed or in position as on the 31.3.2015, who does not possess minimum qualification as laid down under Sub Section (1) shall acquire such minimum qualification within a period of four years from the date of commencement of the Right of Children to Free and Compulsory Education (Amendment) Act, 2017. He further submits that even under the said Notification, the petitioner stand covered and her TET qualification is valid. It is also worth noticing that the petitioner has passed out Teachers Eligibility Test (TET) Examination in 2017 and so claims to be protected under Section 23 (2) of the Right to Children to Free and Compulsory Education Act, 2009. 8. Having considered the rival contentions of the parties and having perused the record the Court finds that the identical issue as involved in the instant writ petition was involved in Writ A No. 24933 of 2018 (Manish Kumar Vs. State of U.P. and 6 others) wherein the writ petition was allowed observing as under : "A perusal of the order impugned makes it clear that the same is based on considering only the first proviso to section 23(2) of the Act 2009 clearly the second proviso to section 23(2) as inserted by the Amendment Act 2017 has not been considered. A similar question came up consideration before this Court in Writ-A No. 3290 of 2021 decided on 27.8.2021 whereby this Court placing reliance upon the Amendment Act 2017 allowed the writ petition. The order impugned, is clearly contrary to the mandate of second proviso to section 23(2) of the Act 2009, as inserted by the Amendment Act 2017 which from its plain reading is clearly clarificatory in nature and purports to extend the time granted by the first proviso to section 23(2). In terms of the second proviso, the petitioners were entitled for extension as granted by the second proviso which has been ignored in both the impugned orders. Thus, there is no hesitation in holding that the order dated 11.8.2015 as well as 24.10.2018 are not sustainable and are, accordingly, quashed. Further directions are issued for permitting the petitioner to continue in terms of the earlier appointment letter duly approved in view of the fact that orders dated 11.8.2015 and 24.10.2018 are in the teeth of Amendment Act 2017 and have ignored specific mandate incorporated in terms of the Amendment Act 2017, petitioner has been wrongly deprived from working. The petitioner shall be entitled to all the salary for the period for which he has worked with effect from 31.3.2015, the date from which the salary was not being paid to the petitioner on account of withdrawal of financial approval. The amount, as directed above, shall be paid to the petitioner after quantification with all expedition, preferably within a period of four months from the date of orders of District Basic Education Officer, Mahrajganj (respondent no. 5). The petition stands allowed in terms of the said order." 9. One of the arguments has been advanced by learned Standing Counsel that the order that has been relied upon by the co-ordinate Bench in the case of Manish Kumar vs. State of UP and others being Writ A No.24533 of 2018 that has relied upon by the co-ordinate Bench in Writ -A Nos.5544 of 2019 and 7142 of 2020 has already been appealed against in an intra-court appeal. However, he fairly admits that there is no interim order operating against the order. 10. In view of the above, the writ petition stands allowed. The District Basic Education Officer, Maharajganj is directed to grant financial approval to the appointment of the petitioner on the post of Headmistress. The petitioner shall be entitled to all salary from the date of her joining the Institution in question i.e. 15.5.2015. The amount as directed above shall be released in favour of the petitioner with all expedition preferably within a period of 2 months from the date of service of certified copy of the order of this Court. The current salary shall be paid to the petitioner month to month as and when the same falls due. Order Date :- 25.4.2023 Ravi Prakash Digitally signed by :- RAVI PRAKASH High Court of Judicature at Allahabad