Vineet Kr. Pandey vs State of U.P. and Others

M.C. Tripathi, J.—Heard Shri J.P. Singh, learned counsel for the petitioner; learned Standing Counsel for the State respondents and Shri Sanjeev Singh for Shri Ram Shanker Shukla-respondent No. 7 in Writ A No. 27330 of 2011.

In Writ A No. 56077 of 2008 the petitioner has prayed for direction in the nature of mandamus commanding the respondents to pay the arrears of salary to him alongwith interest @ 12% p.a. till actual payment and further continue to pay the salary as and when it falls due.

In Writ A No. 27330 of 2011 the petitioner has prayed for quashing the impugned order dated 13.4.2011 passed by the Authorized Controller and has further prayed for direction to the opposite parties to treat the impugned order dated 13.4.2011 as non-est and not to give effect to the same and not to treat Ram Shanker Shukla as Headmaster of the institution and further not to interfere in his functioning as Headmaster of the institution.

Brief facts giving rise to the writ petitions are that Maharshi Mukti Vidya Mandir Junior High School, Lal Gopalganj, Allahabad (in short, the institution) is a recognized and aided Junior High School. The provisions of Basic Education Act and Payment of Salary Act are applicable to the institution. The institution is run and managed by the duly elected Committee of Management. On 25.1.1992, an advertisement was published in Hindi newspaper "Dainik Jagran" for selection on the post of Headmaster of the institution. In pursuance of the advertisement, Shri Ram Shanker Shukla-respondent No. 7 applied for and was selected as Head Master. The District Basic Education Officer, Allahabad granted approval to the selection of respondent No. 7 on 18.5.1992. On 3.12.1992 the Assistant Registrar discarded the election of Shri Shambhu Kumar Tripathi, who had issued the advertisement dated 25.1.1992. On the objection raised by one Shri Uma Shanker Tripathi, Assistant Teacher, the District Basic Education Officer, vide his order dated 23.12.1992, stayed his own order dated 18.5.1992. Thereafter, Shri Uma Shanker Tripathi filed Writ Petition No. 26608 of 1992 for quashing the order dated 18.5.1992 and for his appointment as Headmaster of the institution. One Shri Ram Shanker Shukla-respondent No. 7 filed Writ Petition No. 8520 of 1993 for payment of salary. The Writ Petition No. 45148 of 1993 filed by Shri Shamsher Kumar Tripathi was dismissed on 10.2.1993. Both the Writ Petition Nos. 26608 of 1992 and 8520 of 1993 were disposed of by a common order dated 29.3.1995 with following observations:-

"The questions raised by Uma Shankar Tripathi in his petition can effectively be decided at a forum competent to go into the question of fact. The legal position is well settled that an order passed by the Zila Basic Shiksha Adhikari according approval to the appointment of Rama Shanker Shukla can be recalled, only if it is found to have been obtained by fraud, misrepresentation or on the ground that it was based on misconception of fact or law. Even order according approval dated 18.5.1992 says so. In the facts and circumstances of the case, therefore, I am of the considered view that if, according to Uma Shankar Tripathi, the order dated 18.5.1992 was obtained by fraud or misrepresentation etc. or that the selection proceeding was collusive and the procedure laid down in Uttar Pradesh Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 were not followed then in that event he may prefer a representation before Zila Basic Shiksha Adhikari, who, I have no manner of doubt, shall examine the representation and take appropriate decision thereon in accordance with law after notice to the concerned parties. Since the payment of salary to Rama Shankar Shukla has been stayed by the Basic Shiksha Adhikari vide order dated 28.12.1992, it would be proper, if the Basic Shiksha Adhikari is directed to take a decision in the matter within a period of two months from the date of receipt of certified copy of this order. It may be observed that if the order dated 18.5.1992 is maintained, Sri Rama Shanker Shukla shall in that event be entitled to his salary.

Accordingly, both the writ petitions are disposed of in terms of the above direction."

Aggrieved with the aforesaid order dated 29.3.1995 passed in Writ Petition No. 8520 of 1993 filed by respondent No. 7, the Committee of Management of the institution through its Manager Shri Maya Shanker Tripathi filed a Special Appeal No. 339 of 1995, which was dismissed on 19.5.1995. In compliance of the order dated 29.3.1995, the District Basic Education Officer, Allahabad decided the representation on 4.9.1995 holding that the selection of Sri Ram Shanker Shukla is valid but his appointment is illegal/invalid as the same was issued by an incompetent person. Shri Ram Shanker Shukla filed Writ Petition No. 33767 of 1995 challenging the part of the order of the District Basic Education Officer, Allahabad whereby he had given a direction to issue a fresh appointment letter. Shri Uma Shanker Tripathi, Assistant Teacher also filed Writ Petition No. 34526 of 1995 for quashing the order dated 4.9.1995 by which his representation was rejected. Acharya Kripa Shanker Ramanugrah Tripathi Sansthan filed Writ Petition No. 35392 of 1995 challenging the order of District Basic Education Officer dated 4.9.1995 on the ground that there was no validly constituted Committee on the date of selection when the advertisement was published and the selection to the post of Headmaster of the institution was made. Shri Ram Shanker Shukla also filed Writ Petition No. 33544 of 1996 for payment of salary w.e.f. 18.5.1992. All the aforesaid writ petitions were decided by a common judgment on 20.4.1996 holding that in view of disputed questions of facts, the parties may make representation to the Director/Regional Director of Education, who will decide within two months. A Special Appeal Defective No. 259 of 1998 was filed by the Committee of Management of the School in which no interim order was granted.

On account of retirement of Shri Uma Shanker Tripathi, Headmaster of the institution, the post of Headmaster fell vacant. The respondent No. 4 issued an advertisement in two daily newspapers namely "Swatantra Bharat" and "Amrit Prabhat" on 28.5.2004 inviting applications for appointment on the post of Headmaster. The petitioner applied for and was selected for appointment on the post of Headmaster of the institution. In pursuance of the appointment letter dated 9.2.2005, the petitioner joined on 15.2.2005 and started discharging his duties as Headmaster of the institution but he has not been paid salary by the respondents. The Special Appeal filed by the Committee of Management i.e. Defective Special Appeal No. 259 of 1998 was later on given regular number i.e. Special Appeal No. 301 of 2003. The said Special Appeal was dismissed for want of prosecution on 11.5.2007.

Thereafter, the petitioner filed the Writ Petition No. 56077 of 2008 for payment of salary in which on 24.10.2008 the Court passed the following interim order:-

"Heard counsel for the petitioner and the standing counsel for respondent Nos. 1 to 3. Perused the record.

The petitioner was appointed on the post of Head Master in Maharshi Mukti Vidya Mandir, Junior High School, Lal Gopalganj, Allahabad and joined as such on 15.2.2005 and since then he is continuously working but his salary has not yet been paid by the respondents. He prays that the respondents may be directed to pay arrears of salary to him along with interest at the rate of 12% per annum till actual payment and further continue to pay the current salary as and when it falls due.

In the circumstances, the respondent No. 2 is directed either to pay the aforesaid dues of the petitioner with permissible interest from due date till the date of payment by 19th December, 2008 or he may show cause within the aforesaid period by filing counter affidavit. In case the cause is not shown by filing counter affidavit within the time allowed by this Court, he shall be personally present in Court on the date fixed.

Respondent Nos. 1 and 3 may also file their counter affidavits within the aforesaid period.

Issue notice to respondent No. 4 returnable at an early date.

Apart from normal mode of service by RPAD, learned counsel for the petitioner shall take steps for personal service on respondent No. 4 within two weeks from today. The service shall be affected on respondent No. 4 within one week thereafter. The notice shall indicate that the counter affidavit is to be filed on behalf of respondent No. 4 by 19th December, 2008.

Rejoinder affidavit may be filed within two weeks thereafter.

List immediate thereafter."

After about 14 years of the order of District Basic Education Officer dated 4.9.1995, the Basic Shiksha Adhikari, Allahabad sent a letter dated 12.1.2009 to the Manager of the institution to issue letter of appointment to respondent No. 7 as Headmaster of the institution. On 23.1.2009 the Manager of the institution submitted his reply to the said letter. On 25.9.2010 the Joint Director of Education, Allahabad Region, Allahabad issued an order appointing Shri Ramesh Chandra Mishra, Deputy Basic Education Officer, Allahabad as the Authorized Controller of the institution for not carrying out the orders passed by the educational authorities including the order for issuing letter of appointment to respondent No. 7. On 27.9.2010 the District Basic Education Officer, Allahabad intimated the Deputy Basic Education Officer about the order dated 25.9.2010 and requested him to join as Authorized Controller of the School forthwith. The Deputy Basic Education Officer, Allahabad took over charge as Authorized Controller of the institution on 28.9.2010. After about 16 years of the order passed by the Zila Basic Shiksha Adhikari, Allahabad, the letter of appointment was issued on 13.4.2011 in favour of Ram Shanker Shukla-respondent No. 7 for appointment as Headmaster of the institution, ignoring the appointment and working of the petitioner in the School.

The petitioner filed challenged the impugned letter of appointment dated 13.4.2011 in the connected Writ Petition No. 27330 of 2011 in which the Court passed the following interim order on 17.5.2011:-

"Notice on behalf of respondents No. 1, 2 and 4 has been accepted by the Standing Counsel.

Respondent No. 3 is represented by Shri C.N. Tripathi.

Issue notice to respondents No. 5 to 8 fixing 27.07.2011 as the date.

All the respondents may file counter affidavit by the next date fixed.

List on 27.7.2011 before appropriate Bench.

On behalf of the petitioner, it is contended that the impugned order passed by the Joint Director of Education, Allahabad Region, Allahabad dated 13.04.2011 is an attempt to over-reach the earlier orders passed by the Basic Shiksha Adhikari dated 04.9.1995 wherein the appointment of the said respondents had been held to be illegal. The appointment has been revived after more than 16 years of the said order.

Matter does require enquiry by this Court.

Till the next date of listing, operation of the order dated 13.04.2011 shall remain stayed."

Shri J.P. Singh, learned counsel for the petitioner submitted that the petitioner was appointed as Headmaster of the institution pursuant to his selection for appointment to the said post and his appointment was made after following the due procedures and there is no infirmity in it. The appointment was approved by the District Basic Education Officer by order dated 18.5.1992. He joined his duties and started continuously discharging his duties and as such, he is entitled for the salary but the respondent No. 2 without any cause is not paying the salary of the petitioner.

Learned counsel for the petitioner further submitted that the Authorized Controller passed the impugned order dated 13.4.2011 ignoring the orders passed by the respondent authorities in the year 1995 and no opportunity whatsoever has been afforded to the petitioner before passing the impugned order. The Authorized Controller committed illegality in issuing the impugned appointment letter after a period of about 17 years, when the appointment of Shri Ram Shanker Shukla-respondent had already been held as illegal. He submitted that at present, the respondent No. 7 is about 59 years'' old and he could not have been appointed as he is overage. The petitioner has already been appointed as Headmaster of the institution.

Learned counsel for the petitioner has relied upon a judgment of Hon''ble Supreme Court in State of Bihar and Others Vs. Amrendra Kumar Mishra, . The relevant paragraphs 8 to 18 of the judgment are reproduced hereinafter:-

"8. The post was advertised in the year 1987. The selection process was completed in the year 1992. It may or may not be that Respondent herein had actually received his appointment letter. It was, however, expected that he would make enquiries thereabout; particularly when on his own showing those who were below him in the selection list had already been permitted to join. Admittedly, he came to know thereabout in 1994. He allegedly filed a representation and although no reply thereto was given, he did not take any step soon thereafter. He filed another representation only in 1995. He filed the writ petition after a long period i.e. in 2001 when his purported representation filed in the year 1999 was rejected.

In the aforementioned situation, in our opinion, he did not have any legal right to be appointed. Life of a panel, it is well known, remains valid for a year. Once it lapses, unless an appropriate order is issued by the State, no appointment can be made out of the said panel.

In Madan Lal and Others Vs. State of Jammu and Kashmir and Others, , this Court held:

"It is easy to visualize that if requisition is for 11 vacancies and that results in the initiation of recruitment process by way of advertisement, whether the advertisement mentions filling up of 11 vacancies or not, the prospective candidates can easily find out from the Office of the Commission that the requisition for the proposed recruitment is for filling up 11 vacancies. In such a case a given candidate may not like to compete for diverse reasons but if requisition is for larger number of vacancies for which recruitment is initiated, he may like to compete. Consequently the actual appointments to the posts have to be confined to the posts for recruitment to which requisition is sent by the Government. In such an eventuality, candidates in excess of 11 who are lower in the merit list of candidates can only be treated as wait - listed candidates in order of merit to fill only the 11 vacancies for which recruitment has been made, in the event of any higher candidate not being available to fill the 11 vacancies, for any reason. Once the 11 vacancies are filled by candidates taken in order of merit from the select list that list will get exhausted, having served its purpose."

In State of U. P. and others Vs. Harish Chandra and others, , this Court stated the law in the following terms:

"Coming to the merits of the matter, in view of the Statutory Rules contained in Rule 26 of the Recruitment Rules the conclusion is irresistible that a select list prepared under the Recruitment Rules has its life only for one year from the date of the preparation of the list and it expires thereafter"

Yet again in Surinder Singh and Others Vs. State of Punjab and Another, , this Court stated the law thus: "Prem Singh case was decided on the facts of that case and those facts do not hold good in the present case. In the case of Gujarat State Dy. Executive Engineers'' Assn. this Court has explained the scope and intent of a waiting list and how it is to operate in service jurisprudence. It cannot be used as a perennial source of recruitment filling up the vacancies not advertised. The Court also did not approve the view of the High Court that since vacancies had not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed. Candidates in the waiting list have no vested right to be appointed except to the limited extent that when a candidate selected against the existing vacancy does not join for some reason and the waiting list is still operative.

The decisions noticed hereinbefore are authorities for the proposition that even the waitlist must be acted upon having regard to the terms of the advertisement and in any event cannot remain operative beyond the prescribed period.

It may be true that the appointment letter was sent by ordinary post; but even in relation thereto a statutory presumption arises. It is also well known that postal delay by itself may not be a ground to take a sympathetic view.

In Maruti Udyog Ltd. Vs. Ram Lal and Others, , it was observed:-

"44. While construing a statute, "sympathy" has no role to play. This Court cannot interpret the provisions of the said Act ignoring the binding decisions of the Constitution Bench of this Court only by way of sympathy to the workmen concerned.

In A. Umarani Vs. Registrar, Cooperative Societies and Others, this Court rejected a similar contention upon noticing the following judgments:

"68. In a case of this nature this Court should not even exercise its jurisdiction under Article 142 of the Constitution of India on misplaced sympathy.

In Teri Oat Estates (P) Ltd. Vs. U.T., Chandigarh and Others, it is stated:-

''36. We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. It is further trite that despite an extraordinary constitutional jurisdiction contained in Article 142 of the Constitution of India, this Court ordinarily would not pass an order which would be in contravention of a statutory provision.

As early as in 1911, Farewell, L.J. in Latham v. Richard Johnson & Nephew Ltd. (1911-13) All ER Rep 117 observed:

"We must be very careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous will o'' the wisp to take as a guide in the search for legal principles."

Yet again, recently in Ramakrishna Kamat and Others Vs. State of Karnataka and Others, this Court rejected a similar plea for regularization of services stating: (SCC pp. 377-78, para 7):-

''We repeatedly asked the learned counsel for the appellants on what basis or foundation in law the appellants made their claim for regularization and under what rules their recruitment was made so as to govern their service conditions. They were not in a position to answer except saying that the appellants have been working for quite some time in various schools started pursuant to resolutions passed by Zila Parishads in view of the government orders and that their cases need to be considered sympathetically. It is clear from the order of the learned Single Judge and looking to the very directions given, a very sympathetic view was taken. We do not find it either just or proper to show any further sympathy in the given facts and circumstances of the case. While being sympathetic to the persons who come before the court the courts cannot at the same time be unsympathetic to the large number of eligible persons waiting for a long time in a long queue seeking employment.''"

In the facts and circumstances of this case, in our opinion, the High Court should not have allowed Respondent herein to join his services only on the basis of sympathy.

It is now also well settled that in absence of any legal right, the Court should not issue a writ of or in the nature of mandamus on the basis of sympathy.

We, therefore, are of the opinion that the High Court committed a manifest error in allowing the writ petition of Respondent. It is set aside accordingly. The appeal is allowed. However, no recovery shall be made for the period he has actually worked. No costs.

A counter affidavit of Dr. Brajesh Mishra, District Basic Education Officer, Allahabad has been filed stating that there was no vacancy on the post of Headmaster of the institution on 15.2.2005 and the then Manager of the institution appointed the petitioner against the provisions of the U.P. Recognized Basic Schools (Junior High School) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (in short the Rules of 1978). It has also been averred that the then Manager of the institution in early 1990s had sought permission for appointment on the post of Headmaster. The permission was granted and the nominee was sent for completing the selection proceeding. The Manager completed the selection for the appointment on the post of Headmaster and submitted the papers in his office. The then District Basic Education Officer granted approval for appointment of Sri Ram Shanker Shukla on 18.5.1992. Due to disputes between the rival Committees of Management, the payment of salary was not ensured to the respondent No. 7. He preferred Writ Petition No. 8520 of 1993 for payment of salary. Another Writ Petition No. 26608 of 1992 was filed by Shri Uma Shanker Tripathi. Both the writ petitions were disposed of on 29.3.1995 directing the Basic Shiksha Adhikari, Allahabad to decide the matter. In compliance of the order dated 29.3.1995, the then Basic Shiksha Adhikari decided the matter on 4.9.1995 stating that although, the appointment of Ram Shanker Shukla-respondent No. 7 was strictly in accordance with the provisions of Rules of 1978 but the appointment letter was issued in favour of respondent No. 7 by an incompetent Manager. Subsequently, a direction was issued by the office of District Basic Education Officer to the Manager for issuing the appointment letter to respondent No. 7 and for payment of salary. Despite the direction dated 4.9.1995, the Manager of the institution had not complied with the order. For non-compliance of the order, the Joint Director of Education appointed Shri Ramesh Chandra Mishra, Deputy Basic Education Officer as Authorized Controller of the institution on 25.9.2010. In compliance of the said order, Shri Ramesh Chandra Mishra joined as Authorized Controller on 28.9.2010 and issued the appointment letter dated 13.4.2011 (the order impugned in Writ A No. 27330 of 2011), in favour of the respondent No. 7. In pursuance of the aforesaid order, the respondent No. 7 joined the office of Headmaster of the institution but the petitioner has obtained an interim order against the appointment of respondent No. 7 and hence, the salary was not paid to respondent No. 7 till today.

The Deputy Basic Shiksha Adhikari, Allahabad by his letter dated 23.12.2009 had observed that the appointment letter to Sri Ram Shanker Shukla had been issued by unrecognized Manager while the recognized Manager appointed Sri Vineet Kumar Pandey-the petitioner. It is further stated that the appointment of Sri Ram Shanker Shukla was strictly in accordance with Rules, 1978 and the approval was granted by the office of District Basic Education Officer for his appointment but appointment letter was issued by an unrecognized Manager, while the appointment of petitioner was not in accordance with Rules, 1978. The petitioner was appointed without following the procedure of Rules, 1978 and without any vacancy on the post of Headmaster, hence his appointment is not in accordance with law and same cannot be accepted. The petitioner is not entitled for any salary under the Payment of Salary Act, 1978.

Shri Sanjeev Singh, learned counsel for respondent No. 7 submitted that Shri Shripal Singh, Head Master of the School retired on 30.6.1990. The Manager of the School wrote a letter dated 7.1.1992 to the District Basic Education Officer, Allahabad for seeking approval to fill up the post of Headmaster. The approval was granted on 14.1.1992. On 18.2.1992 the Manager of the School sent a letter to the District Basic Education Officer requesting him to appoint a nominee to participate in the Selection Committee. The interviews were conducted in which the respondent No. 7 was selected. The papers were forwarded on 17.4.1992 for approval. The approval was granted to the selection of the respondent No. 7 on 18.5.1992 and on the same date, the appointment letter was issued to him. There was a dispute in the Committee of Management between one Shri Shambhu Kumar Tripathi and Shri Maya Shankar Tripathi and the appointment letter was issued in favour of respondent No. 7 by the former one. During the pendency of the dispute before the Assistant Registrar, Firms, Societies and Chits, the salary of respondent No. 7 was released from the office of District Basic Education Officer, Allahabad for the months of May, 1992, August, 1992, September, 1992 and January, 1993. The said dispute was decided in favour of Shri Maya Shanker Tripathi later on and the salary of the respondent No. 7 was stopped. The respondent No. 7 filed Writ Petition No. 8520 of 1993 and Shri Uma Shankar Tripathi, officiating Head Master, who had worked during the period Shri Shripal Singh retired till the appointment of respondent No. 7, filed Writ Petition No. 26608 of 1992. Both the writ petitions were clubbed together and were disposed of by a common order dated 29.3.1995 with direction to the District Basic Education Officer, Allahabad to consider and decide the matter. Aggrieved by the order dated 29.3.1995, the Committee of Management through its Manager Shri Maya Shankar Tripathi, filed the Special Appeal No. 339 of 1995, which was dismissed on 19.5.1995.

It has been submitted by Shri Sanjeev Singh, appearing for respondent No. 7 that in compliance of the order of this Court dated 29.3.1995, the District Basic Education Officer decided the matter on 4.9.1995 in favour of respondent No. 7 holding his appointment to be valid in accordance with Rules of 1978 but as the earlier Manager i.e. Shri Shambhu Kumar Tripathi was holding the post till 17.5.1992 and issued the appointment letter on 18.5.1992 in favour of respondent No. 7 and as such, a fresh appointment letter be issued by the then Manager. The respondent No. 7 filed Writ Petition No. 33767 of 1995 challenging the part of the order dated 4.9.1995 and Writ Petition No. 33544 of 1996 for payment of salary since 1992. Shri Uma Shanker Tripathi filed Writ Petition No. 34526 of 1995 and the Writ Petition No. 35392 of 1995 was filed by one Shri Acharya Kripa Shanker Ram Anugrah Tripathi challenging the appointment of respondent No. 7. All the writ petitions were decided by a common judgment dated 20.4.1998. Aggrieved by the order dated 20.4.1998, three Special Appeal Nos. 301, 304 and 309 of 2003 were filed and the said Special Appeals were dismissed for want of prosecution on 11.5.2007.

Shri Sanjeev Singh submitted that the petitioner claims to be appointed and in pursuance of his appointment letter, he joined on 15.2.2005 as Headmaster of the School. The claim of the petitioner to the post of Headmaster and his joining in pursuance to the appointment letter dated 9.2.2005 is unacceptable for the reasons that there exists no vacancy to the post of Headmaster in the year 2005 as still the claim of the respondent No. 7 was under consideration in view of the order of this Court dated 20.4.1998 and after dismissal of the Special Appeal Nos. 301, 304 and 309 of 2003 on 11.5.2007, the claim of the respondent No. 7 became alive in view of directions issued by this Court on 20.4.1998 and in pursuance thereof the appointment letter dated 13.4.2011 was issued in favour of respondent No. 7.

It would be relevant to re-produce the relevant provisions for Selection Committee, procedure for selection and appointment by the management in Rule 9, 10 and 11 of the Rules of 1978:-

"9. Selection Committee - For appointment of Headmaster and Assistant Teacher in institutions other than minority institutions and in the minority institution, the Management shall constitute a Selection Committee as follows-

A-Institution other than Minority Institutions:

(i) For post of Headmaster;

(1) Manager;

(2) A nominee of District Basic Education Officer;

(3) A nominee of the Management;

(ii) For the post of Assistant Teacher;

(1) Manager;

(2) Headmaster of the recognized School in which appointment is to be made;

(3) A nominee of the District Basic Education Officer.

B - Minority Institution

(i) For the post of Headmaster;

(1) Manager;

(2) Two nominees of Management;

(ii) For the post of Assistant Teacher;

(1) Manager;

(2) Headmaster of the recognized School in which the appointment is to be made;

(3) A specialist in the subject nominee by the District Basic Education Officer."

Procedure for selection-(1) The Selection Committee shall, after interviewing such candidates as appear before it on a date to be fixed by it in this behalf, of which due intimation shall be given to all the candidates, prepare a list containing as far as possible the names, in order of preference, of three candidates found to be suitable for appointment.

(2) The list prepared under clause (1), shall also contain particulars regarding the date of birth, academic qualifications and teaching experience of the candidates and shall be signed by all the members of the Selection Committee.

(3) The Selection Committee shall, as soon as possible, forward such list, together with the minutes of the proceedings of the Committee to the management.

(4) The Manager shall within one week from the date of receipt of the papers under clause (3) send a copy of the list to the District Basic Education Officer.

(5)(i) If the District Basic Education Officer is satisfied that-

(a) the candidates recommended by the Selection Committee possess the minimum qualifications prescribed for the post;

(b) the procedure laid down in the rules for the selection of Headmaster or assistant teacher, as the case may be, has been followed he shall accord approval to the recommendations made by the Selection Committee and shall communicate his decision to the management within two weeks from the date of receipt of the papers under clause (4).

(ii) If the District Basic Education Officer is not satisfied as aforesaid, he shall return the papers to the management with the direction that the matter shall be reconsidered by the Selection Committee.

(iii) If the District Basic Education Officer does not communicate his decision within one month from the date of receipt of the papers under clause (4), he shall be deemed to have accorded approval to the recommendations made by the Selection Committee.

Appointment-Appointment by the Management-(1) On receipt of communication of approval or as the case may be, on the expiry of the period of one month under clause (iii) of sub-rule (5), of Rule 10, the management shall, first offer appointment to the candidate given the first preference by the Selection Committee and on his failure to join the post, to the candidate next to him in the list prepared by the Selection Committee and on the failure of such candidate also, to the last candidate specified in such list.

(2)(a) The appointment letter shall be sent under the signature of the manager by registered post to the selected candidate.

(b) The appointment letter shall clearly specify the name of post, the pay scale and the nature of appointment, whether permanent or temporary, and shall also specify that if the candidate does not join within 15 days from the date of receipt of the appointment letter his appointment shall be cancelled.

(c) A copy of the appointment letter shall also be sent to the District Basic Education Officer."

In the matter the controversy has crept up in the early 1990 on account of retirement of Shri Shripal Singh on 30.6.1990. After his retirement the then Manager of the institution namely Shambhu Kumar Tripathi vide his letter dated 7.1.1992 requested the District Basic Education Officer for filling up the post of Headmaster in the institution. Subsequently, the District Basic Education Officer vide his letter No. Anu.3/9072/91-92 dated 14.01.1992 granted permission for an advertisement to the post of Headmaster. In compliance thereof the then Manager of the institution made an advertisement in daily newspaper "Dainik Jagaran" on 25.1.1992 inviting applications for selection on the post of Headmaster of the institution. The last date for submission of the applications was 12.2.1992. Thereafter the Manager vide his letter dated 18.2.1992 requested to appoint nominee for the Selection Committee from the District Basic Education officer as provided under the Rules of 1978. Immediately thereafter the District Basic Education Officer vide letter No. Anu-03/12992-93/91-92 dated 17.3.1992 had appointed Smt. Vimla Vashist, Assistant Girls School Inspector as nominee of the District Basic Education Officer.

After the interview, the list was prepared and the same was submitted by the Manager of the institution on 17.4.1992 for approval of the selection of the Headmaster. Immediately thereafter some objections were also raised by the District Basic Education Officer by his letter No. Anu-03/936/91-92 dated 4.5.1992 and the Manager of the institution was directed to remove the objections. The said objections were immediately removed by the Manager of the institution on 14.5.1992 and the relevant papers were transmitted to the office of District Basic Education Officer. Thereafter the District Basic Education Officer vide his letter dated 18.5.1992 had approved the selection of Ram Shanker Shukla-respondent No. 7 as Headmaster for one year probation. It is a sheer co-incidence that at that time Shambhu Kumar Tripathi was the Manager of the institution and his tenure was valid upto 17.5.1992. There was serious dispute regarding management of the institution and the matter was referred to the Assistant Registrar, Firm, Societies and Chits and since the serious dispute of the management was pending before the Assistant Registrar, Firm, Societies and Chits, the payment of salary of respondent No. 7 could not be ensured for the month of May, 1992, August, 1992, September, 1992 to January, 1993 and eventually the same was issued from the office of District Basic Education Officer. Finally the management dispute was decided in favour of rival claimant namely Maya Shanker Tripathi by the Assistant Registrar, Firm, Societies and Chits and as such, Shri Shambhu Kumar Tripathi, the then Manager was not valid Manager since 18.5.1992. In the matter the appointment letter dated 18.5.1992 was issued by the erstwhile Manager and in compliance of the order passed by this Court dated 19.3.1995 in Writ Petition Nos. 8520 of 1993 and 26608 of 1992, the District Basic Education Officer, Allahabad vide his order dated 4.9.1995 had decided the controversy and held that the appointment of Shri Ram Shanker Shukla-respondent No. 7 was in accordance with Rules of 1978 and as such, his selection is valid but the earlier Manager i.e. Shri Shambhu Kumar Tripathi was holding the post till 17.5.1992 and had issued the appointment letter on 18.5.1992 in favour of respondent No. 7 and as such a fresh appointment letter be issued by the subsequent Manager. The respondent No. 7 filed Writ Petition No. 33767 of 1995 challenging the part of the order dated 4.9.1995 and Writ Petition No. 33544 of 1996 for payment of salary since 1992. Shri Uma Shanker Tripathi filed Writ Petition No. 34526 of 1995 and the Writ Petition No. 35392 of 1995 was also filed by one Shri Acharya Kripa Shanker Ram Anugrah Tripathi challenging the appointment of respondent No. 7. All these writ petitions were decided by a common judgment dated 20.4.1998. Aggrieved by the order dated 20.4.1998, three Special Appeal Nos. 301, 304 and 309 of 2003 were filed and the said Special Appeals were dismissed for want of prosecution on 11.5.2007.

The most striking feature in the matter is that the petitioner claims his appointment as per Rule 10(5)(iii) of the Rules of 1978. The alleged claim has been set out on the basis of an advertisement dated 28.5.2004. It has also been contended that the Manager of the institution wrote a letter dated 17.6.2004 through registered post to the respondent No. 3 for providing a nominee for constitution of selection committee as contemplated under Rule 9 of Rules of 1978 but nowhere it has been brought on record to indicate that the said requisition was ever accorded by the competent authority and as such, the alleged selection committee, which was constituted on 21.11.2004, could not be sustained in the eye of law. The detailed procedure is given in the Rules of 1978 whereas Rule 9-A(i) and (iii) provide for post of Headmaster and a nominee of District Basic Education Officer but in the present case, nothing has been brought on record to indicate that the District Basic Education Officer had ever provided any nominee for the alleged selection committee and as such, the claim, which has been set out on the basis of the alleged selection committee, which had taken interview on 21.11.2004 is contrary to the Rules of 1978 and cannot be sustained in the eye of law. While passing the impugned order, categorical stand has been taken by the respondents that on the alleged date of selection committee, there was no vacancy for the post of Headmaster and therefore, there was no occasion for giving a nominee on behalf of the District Basic Education Officer. The alleged selection process, which had taken place in the year 2005, has no bearing in the eye of law. The Writ Petition No. 56077 of 2008 was entertained by this Court and an interim order was passed on 24.10.2008.

In compliance thereof, detailed counter affidavit had been filed in which the claim set out by the petitioner has been refuted and while filing the counter affidavit, a categorical stand has been taken in paragraphs 23, 24 and 25 of the counter affidavit that the categorical direction was issued by the District Basic Education Officer on 4.9.1995 to the subsequent Manager for issuance of an appointment letter in favour of respondent No. 7. Neither the then Manager Shri Maya Shanker Tripathi has issued the appointment letter nor paid salary to the respondent No. 7 and against the provisions of Rules of 1978 the Manager had proceeded into the matter and appointed the petitioner, which is contrary to the provisions and cannot sustain in the eye of law and as such, the respondents had no liability for payment of salary to the petitioner.

As indicated above, it is apparent before the Court that the provisions of Rules of 1978 have been fragrantly violated, and inspite of categorical direction issued by the then District Basic Education Officer on 4.9.1995, the Manager of the institution had deliberately flouted the order and the appointment letter had not been issued in favour of respondent No. 7 inspite of the fact that there was no procedural flaw in his appointment but taking shelter of successive litigation subsequently on the basis of alleged selection committee, which took place in the year 2005, the petitioner had been given an appointment letter on 9.2.2005 and the same has never been approved by the District Basic Education Officer. Even though Writ Petition No. 27330 of 2011 had been entertained and an interim order was passed on 17.5.2011 whereby the operation of the order dated 13.4.2011 has been stayed but that does not give any right to the petitioner for the said post i.e. Headmaster of the institution.

For the foregoing reasons, I do not find any illegality or infirmity in the impugned order dated 13.4.2011, thus, the writ petitions lack merit and are dismissed accordingly.