The Committee of Management, Balika Purva Madhyamik Vidyalaya and another v. State of U.P. &
Case Details
Court No. - 33 Case :- WRIT - A No. - 13114 of 2022 Petitioner :- Deepak Kumar Singh Respondent :- District Basic Education Officer And 3 Others Counsel for Petitioner :- Indra Raj Singh,Adarsh Singh Counsel for Respondent :- C.S.C. Hon'ble Ashutosh Srivastava,J. Heard Sri Adarsh Singh, learned counsel for the petitioner, learned Standing Counsel, who has accepted notice on behalf of the Respondent Nos.1,2 & 4. Considering the nature of the order proposed to be passed, the notice upon the Respondent No.3 is being dispensed with. The writ petition has been filed seeking issuance of a Writ of Mandamus commanding the Respondent No.1, District Basic Education Officer, Mau, to consider the claim of the petitioner for payment of salary along with arrears for the post of Clerk in Balika Purva Madhyamik Vidyalaya, Ratanpura, Mau, U.P., within stipulated time. It is contended by learned counsel for the petitioner that the institution in question is a duly recognized Junior High School under the U.P. Basic Education Act, 1972 and receives grant from the State Government. The institution has one sanctioned post in the cadre of Clerk. A vacancy arose on the sanctioned post of the Clerk on the retirement of
Legal Reasoning
one Sri Uday Pratap Singh on 31.10.2018. The Manager of the Institution is stated to have submitted an application on 01.10.2018 before the District Basic Education Officer, Mau, intimating him about the vacancy on the post of Clerk which was going to occur with the purpose of seeking prior approval for filling up the vacancy. However, when no response was received from the Office of the District Basic Education Officer, Mau, the Committee of Management of the Institution approached this Court by means of Writ (A) No.13858 of 2019 (The Committee of Management, Balika Purva Madhyamik Vidyalaya and another Vs. State of U.P. & 3 others) praying for direction to the District Basic Education Officer, Mau to permit the petitioners therein to advertise the post for selection and appointment on the post of Clerk lying vacant since 31.10.2018. The said writ petition was allowed vide order dated 31.03.2022 with a direction to the District Basic Education Officer, Mau to permit the petitioner to advertise the post of Clerk vacant in the institution for the last more than three years. However, the appointment was made subject to final outcome of Special Appeal Defective No.30 of 2022. Pursuant to the directions of this Court passed in Writ (A) No.13858 of 2019, the Committee of Management proceeded to undertake the proceedings for selection of suitable candidate for the post of Clerk and in pursuance of the selection proceedings the petitioner is stated to have appeared on 15.05.2022 before the Selection Committee, which conducted the interview and the petitioner was selected for appointment on the post of Clerk. The petitioner was issued an appointment letter on 27.06.2022 and he joined the institution on 01.07.2022 and since then the petitioner has been continuously discharging his duties on the post of Clerk in the institution. It is contended by learned counsel for the petitioner that the requisite papers pertaining to the selection proceedings have already been forwarded by the Committee of Management of the Institution to the District Basic Education Officer, Mau, vide letter dated 16.05.2022 for granting financial approval to the selection of the petitioner. Learned counsel for the petitioner submits that despite passage of considerable time neither the financial approval has been accorded to the selection of the petitioner nor the petitioner is being paid salary on the post of Clerk on which he is continuously discharging his duties. Learned counsel for the petitioner submits that a decision is required to be taken by the District Basic Education Officer, Mau, as regards granting financial approval to the selection of the petitioner as Clerk in the Institution. He further submits that several communications have been made in this regard by the Committee of Management as well as by the petitioner lastly on 16.08.2022 wherein prayer has been made for releasing his salary for the month of August, 2022. The learned counsel
Decision
for the petitioner submits that purpose of filing the writ petition shall stand served, if directions are issued to the Respondent No.1, District Basic Education Officer, Mau, to pass appropriate orders on the representation of the petitioner as also take a final decision with regard to approval of selection of the petitioner. Learned Standing Counsel representing the State respondents does not oppose the aforesaid proposition. He, however, contends that by the Government Order dated 15.01.2019 the Group-C and Group-D posts of the recognized and aided basic schools have been declared to be dying cadre and it is on account of this fact that the financial approval to the selection of the petitioner is not being accorded. In response to the aforesaid submissions, learned counsel for the petitioner submits that the Government Order dated 15.01.2019 referred to by the learned Standing Counsel was subjected to challenge before this Court in Writ (A) No.13858 of 2019 (The Committee of Management, Manorma Kanya Junior High School, Moradabad and another Vs. State of U.P. & 2 others) and this Court was pleased to quash the same declaring it to be wholly arbitrary, irrational and suffering from non-application of mind besides being violative of Article 14 and 21A of the Constitution of India and also in teeth of Right of Children to Free and Compulsory Education Act, 2009. Although the said decision has been assailed in Special Appeal Defective No.30 of 2022 and the Special Appeal has been admitted but no interim order has been passed in favour of the State. It is thus contended that since the selection has been made on sanctioned post the petitioner is liable to be paid salary from the State Exchequer. Heard learned counsel for the parties. This Court is of the opinion that the appointment of the petitioner has been made on a sanctioned post which fell vacant on the superannuation of the Clerk working in the Institution. The Government Order dated 15.01.2019, which declared Group-C and Group-D posts of recognized and aided basic schools to be dying cadre, has been quashed by a Coordinate Bench of this Court in Writ (A) No.13858 of 2019. The decision of the Coordinate Bench passed in Writ (A) No.13858 of 2019 has been subjected to Special Appeal Defective No.30 of 2022, which is stated to have been admitted for hearing. However, no interim order has bee granted staying the operation of the decision of the Coordinate Bench passed in Writ (A) No.13858 of 2019. The net effect of the proceeding would be that the directions passed in Writ (A) No.13858 of 2019 would continue to be operative till it is set aside or modified. In such view of the matter, the Court is of the opinion that the question of granting financial approval to the appointment of the petitioner on the post of Clerk pursuant to selection proceeding is liable to be considered by the Respondent No.1, District Basic Education Officer, Mau. Accordingly, the writ petition is disposed of permitting the petitioner to file a comprehensive representation clearly setting out his claim for payment of salary before the Respondent No.1, District Basic Education Officer, Mau, within two weeks from today. In the eventuality of such representation being filed by the petitioner within time allowed, it is expected that the Respondent No.1, District Basic Education Officer, Mau, shall proceed to decide the representation of the petitioner after considering all aspects of the matter by a reasoned and speaking order, expeditiously preferably within a period of one month from the date of receipt of representation along with certified copy of this order. Needless to say that the Court has not expressed any opinion on the merits of the claim of the petitioner and it shall be open for the Respondent No.1, District Basic Education Officer, Mau, to pass appropriate orders strictly in accordance with law. The writ petition stands disposed of in the aforesaid terms. Order Date :- 16.9.2022 pks Digitally signed by PAWAN KUMAR SINGH Date: 2022.09.19 12:47:52 IST Reason: Location: High Court of Judicature at Allahabad