High Court
Case Details
Court No. - 33 Case :- WRIT - A No. - 18232 of 2022 Petitioner :- Suresh Ram Goyal Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Santosh Kr. Singh Paliwal Counsel for Respondent :- C.S.C.
Legal Reasoning
Hon'ble Ashutosh Srivastava,J. 1. Heard Sri Santosh Kr. Singh 'Paliwal', learned counsel for the petitioner and learned Standing Counsel representing the State respondents.
Decision
2. The writ petition has been filed assailing the order dated 06.04.2022 (Annexure No.9 to the writ petition) passed by the State Government whereby and whereunder the approval to the appointment of the petitioner and payment of salary has been declined. 3. The facts shorn of unnecessary details necessary for the purposes of adjudicating the controversy involved in the instant writ petition briefly stated are that there is a Society in the name and style of Adarsh Ambedkar Vidyalaya, Kahotari Birno, District Ghazipur, registered under the Societies Registration Act, 1860. The Society runs and manages an educational Institution in the name of Adarsh Ambedkar Vidyalaya, Kahotari, District Ghazipur, which is a recognized and aided institution. A vacancy arose in the institution on the superannuation of two Assistant Teachers. The said vacancy was advertised by the college management in the Newspapers "Hindi Dainik Rashtriyapath and Nishpaksh Bharatdoot" dated 15.06.2014 inviting applications. The petitioner is stated to have applied against the aforesaid advertisement and a Selection Committee is stated to have accorded consideration to the petitioner in a meeting held on 17.07.2014 whereafter the petitioner got selected. Consequently, the petitioner was issued an appointment letter on 18.07.2014 and the petitioner joined his post on 21.07.2014 and began discharging his duties. The papers pertaining to the selection were forwarded to the District Welfare Officer, Ghazipur, Respondent No.3, on 17.07.2014 for approval. By order dated 15.03.2017 the District Basic Education Officer, Ghazipur, granted approval to the selection of the petitioner. Thereafter the District Social Welfare Officer forwarded all papers to the Director Social Welfare, respondent No.2, for sanction of salary from Government grant and the Director Social Welfare, in turn, forwarded all papers to the State Government vide communication dated 19.12.2018. The petitioner was not paid salary despite the fact that he had been duly selected and appointed against a duly sanctioned post. The petitioner was compelled to approach this Court by filing Writ-A No.7737 of 2020 which was disposed of vide order dated 5.11.2020, directing the State Government to take decision in the matter of the petitioner strictly in accordance with law within three months from the date of production of certified copy of the order. The State Government in compliance of the aforesaid order has proceeded to pass the impugned order disapproving the appointment and payment of salary to the petitioner. 4. A perusal of the impugned order dated 06.04.2022 reveals that it proceeds on the footing that the appointment of teachers in primary schools aided by the Social Welfare Department is to be done under the Uttar Pradesh Recognised Basic Schools (Recruitment of Teachers, Conditions of Service and other conditions) Rules, 1975 as amended in 1977 in which in Rule 9 it is clearly provided that no person shall be appointed as a teacher or other employee in a recognised School, unless he possesses the qualifications specified in this behalf by the Parishad and in the case of teachers for whose appointment in writing has been approved by the Basic Education Officer has not been received. In the event of vacancy, applications will be invited by the concerned Management through advertisement in at least two newspapers (one of which will be a daily newspaper) and at least 30 days time is given to submit the application. The order further records that Government Order dated 27.07.2010 issued by the U.P. Government Social Welfare Department mandates that regarding the appointment of Assistant Teachers, the Managers must get published the advertisement in two most reputed and having wide circulation Newspapers of the area/district and a certificate to this effect is to be obtained from the District Information Officer in respect of the Newspapers. In the case at hand, the advertisement was published in daily Newspapers "Hindi Dainik Rashtriyapath and Nishpaksh Bharatdoot" on 15.06.2014 by the Manager of Adarsh Ambedkar Vidyalaya, Kahotari, Birno District Ghazipur, to fill up the vacancy in the school without obtaining a certificate from the District Information Officer in terms of the Government Order dated 27.7.2010. Consequently, due to the non compliance of transparency and fairness in public appointments, the advertisement cannot be considered valid. The legal process for the appointment of the petitioner has not been followed. 5. Learned counsel for the petitioner has assailed the impugned order on the following grounds:- (i) The impugned order has been passed in violation of principles of natural justice and without affording the petitioner any opportunity of hearing; (ii) The reliance placed upon the report dated 03.11.2020 and 24.12.2021 is totally ex-parte to the petitioner and he has at no point of time been confronted with the report nor given any opportunity to object against the same; (iii) The U.P. Recognised Basic School (Recruitment & Condition of Service of Teachers) Rule, 1975 which govern the field nowhere provide for obtaining a Certificate from the District Information Officer regarding the Advertisement of the vacancy in the newspapers; (iv) The Government Order dated 27.07.2010 referred to in the impugned order is contrary to the 1975 Rules and such Government orders contrary to the 1975 Rules were challenged before this Court and the operation of the Government Orders issued by the Director Social Welfare, U.P. Lucknow have been stayed in Writ - A No. 5850 of 2022 and; (v) The petitioner has been regularly selected, appointed against a post within a sanctioned strength and has been continuously working since 21.07.2014 and as such is entitled to receive salary from Government grant. 6. Learned counsel for the petitioner thus submits that the impugned order is liable to be set aside and the writ petition is liable to be allowed as prayed. 7. Per contra, learned Standing Counsel resists the writ petition and submits that the provisions of the U.P. Recognised Basic School (Recruitment and Condition of Service of Teachers) Rules, 1975 and its amendment of 1977 have not been followed. It is also stated that no certificate in terms of the Government Order dated 27.07.2010 was obtained from the District Information Officer to the effect that the Newspapers in which the vacancy was advertised are renowned and widely circulated newspapers of the area/District and as such the advertisement cannot be validated. He thus prays that the petitioner is not entitled to get any relief and the writ petition being devoid of merit is liable to be dismissed. 8. I have heard learned counsel for the petitioner and learned Standing Counsel for the Sate respondents and have perused the record. 9. From the recitals of the impugned order dated 06.04.2022 the Court finds that there is no quarrel regarding the qualification of the petitioner to hold the post. It is also not disputed that the vacancy was advertised in two newspapers (one of which will be a daily newspaper) in terms of Rule 9 of the 1975 Rules. The objection taken is that no certificate was obtained from the District Information Officer in respect of the Newspapers being of repute and having wide circulation of the area/district as provided by the Government Order dated 27.07.2010. Rule 9 of the U.P. Recognised Basic School (Recruitment and Condition of Service of Teachers) Rules, 1975 which governs the field nowhere provides that a certificate from the District Information Officer is wanted which certifies that the Newspapers in which the vacancy is advertised must be newspapers of repute and have wide circulation. In such view of the matter, in the opinion of the Court imposing such a condition by way of a Government Order is unwarranted and the petitioner cannot be non suited on that score particularly in the absence of the finding that the Newspapers "Hindi Dainik Rashtriyapath and Nishpaksh Bharatdoot" are not newspapers of repute and do not have wide circulation in the area/district. The advertisement could not have been invalidated on this score. Thus the finding recorded by the State Government that the procedure prescribed in the appointment of the petitioner as Assistant Teacher in the Institution is not approved. 10. The stage of approval from the Basic Siksha Adhikari is after the selection process is over and before appointment of the selectee as has been laid down in Abhishek Tripathi vs. State of U.P. and others, reported in 2015 (4) ADJ 270 and in the case of Jagdish Singh vs. State of U.P. & others, reported in 2006 (4) ADJ 162. In such view of the matter, the finding so recorded in the impugned order is not sustained. Besides, no materials have been placed before the Court to demonstrate that the petitioner was ever given any opportunity to controvert the report dated 03.11.2020 and 24.12.2021 referred to in the impugned order and it can safely be held that the impugned order has been passed in utter disregard of the elementary principles of natural justice. 11. In view of the above, the Court finds that the petitioner is a regularly selected Assistant Teacher within the sanctioned strength of the teachers of the Institution and has been continuously working in the Institution since 21.07.2014 and is entitled to his salary from the Government grant. Consequently, the order dated 06.04.2022 passed by the State Government disapproving the appointment of the petitioner as Assistant Teacher in Adarsh Ambedkar Vidyalaya, Kahotari Birno, District Ghazipur is set aside. A writ of mandamus is issued commanding the respondents not to interfere in the functioning of the petitioner as Assistant Teacher in the Institution and pay his salary month to month as and when the same falls due from the Government grants. The arrears of salary since 21.07.2014 upto date may be released in favour of the petitioner within a period of three months from the date of service of certified copy of this order. 12. Accordingly, the writ petition is allowed. Order Date :- 11.11.2022 pks Digitally signed by PAWAN KUMAR SINGH Date: 2022.11.11 17:38:49 IST Reason: Location: High Court of Judicature at Allahabad