Vishnu Deo Tripathi vs Basic Shiksha Adhikari, Unnao and Another

Rakesh Sharma, J.—Heard Sri S.P. Singh, learned counsel for the petitioner and Sri Gaus Beg, learned counsel for Basic Shiksha Adhikari, Unnao.

It emerges from the record that the petitioner Sri V.D. Tripathi was appointed as Assistant Teacher, L.T. Grade in the pay scale of Rs.42506100 in Janta Nimna Madhyamik Vidyalaya Beoli Islamabad District Unnao. The order of appointment dated 28.12.1999 has been annexed as Annexure No.15 of the writ petition.

According to the learned Counsel for the petitioner, the petitioner was appointed against a clear and permanent vacancy arising out of the resignation of one Sri Ram Chandra Trivedi who was holding the post of Assistant Teacher L.T. Grade. Preceding issuance of formal order of appointment, a Selection Committee was constituted which after considering the name of eligible candidates, had selected the petitioner for appointment on the aforesaid post. The petitioner was fully qualified, fit and suitable for appointment on the post of Assistant Teacher. The petitioner was B.A. B.Ed. The Selection Committee had prepared the minutes of the proceedings and recommended the name of the petitioner for appointment and sent the same to the Basic Shiksha Adhikari, Unnao, seeking his approval. This proposal, recommendation was received in the office of Basic Shiksha Adhikari, Unnao on 25.11.1999. After waiting for statutory period of one month, the Management had issued an order of appointment in favour of the petitioner on 28.12.1999 and the petitioner assumed charge of the post.

Learned counsel for the petitioner has placed reliance on Rule 4 of the U.P.R.B.S. (J.R.H.S.) (Rec. & Conditions of Service of Teacher) Rules, 1978, Rule 10(5) (6) demonstrate that the Basic Shiksha Adhikari ought to have given approval within one month from the date of submission of proposal i.e. 25.11.1999. After expiry of one month, there is a provision of deemed approval by the Basic Shiksha Adhikari. The relevant Rules 10(5)(3) has been quoted below:

�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 recommendation made by the Selection Committee.�

According to Sri S.P. Singh learned counsel for the petitioner, the petitioner is discharging duties, functions and responsibilities of the post since 1.1.2000. However, the opposite party No.1, Basic Shiksha Adhikari, Unnao has passed an order on 8.2.2000, canceling the appointment of the petitioner. It has been indicated in the order that the post against which the petitioner was appointed, was a dead post and therefore, the appointment of the petitioner was cancelled.

The petitioner approached this Court by filing the present writ petition. This Court has been pleased to entertain the writ petition on 1.3.2000 and directed the opposite parties to allow the petitioner to work as Assistant Teacher and an order of payment of his salary was also issued and he is continuing in the services for the last 5 and half years. His work, conduct and performance was satisfactory.

Learned counsel for the petitioner has relied upon the decision of this Court as reported in 1999(1) LBESR 1049 (All.), Committee of Management, Junior High School Roshanpur Auraiya v. Basic Shiksha Adhikari, Auraiya and others, in support of his submission. The petitioner has sought for regularization and continuance in the service with full salary.

Sri Gaus Beg learned counsel appearing on behalf of Basic Shiksha Adhikari, Unnao has resisted the writ petition. According to him, the petitioner was appointed against a dead post and the procedure as required for making direct recruitment from open market has not been followed while appointing the petitioner. It has been averred in the counter affidavit that proper advertisement was not inserted in daily newspapers having circulation in the region as provided under the relevant service rules. The Committee of Management has illegally appointed the petitioner. The process as prescribed in the service rules has not been followed while making appointment on the post. Sri Gaus Beg learned counsel for Basic Shiksha Adhikari Unnao has submitted that the petitioner having higher qualification of B.Ed, is not entitled for Assistant teacher. In support of his submission he has relied upon the judgments reported in JT 2003 (2) SC 423, P.M. Latha and another v. State of Kerala and others and JT 2003 (2) SC 453, Yogesh Kumar and others v. Government of NTC, Delhi and others.

Sri S.P. Singh, learned counsel for the petitioner has submitted that petitioner has not been afforded any opportunity before cancellation of appointment. He has placed reliance on the decision of Hon''ble Supreme Court reported in 1991 Supp. (1) Supreme Court Cases 330, Shravan Kumar Jha and others v. State of Bihar and others, in support of his case.

Sri S.P. Singh, learned counsel for the petitioner has further submitted that the Committee of Management had followed the procedure as laid down in the relevant Service Rules 1978. An advertisement was issued after intimation to the Basic Shiksha Adhikari, Unnao regarding initiation of process for making appointment on the vacant post. The letters were sent to the Basic Shiksha Adhikari, Unnao on 17.8.1999, 28.8.1999 and 4.10.1999 indicating therein that after resignation of Sri Ramesh Chandra Trivedi, the post of Assistant Teacher was lying vacant and the students of the institution were suffering due to nonavailability of qualified teacher. An advertisement was issued in local newspaper on 6.11.1999. In response to this advertisement, candidates had appeared before the Selection Committee and 30.11.1999 was fixed for interview and after making formal regular selection, appointment order was issued in favour of the petitioner. Learned counsel for the petitioner has placed reliance on the judgment of this Court passed in Writ Petition No.2447 (S/S) of 1991, Triveni Prasad Pandey and others v. State of U.P. and Others, decided on 30.12.1992. A special appeal No.21 (S/B) of 1993, Secretary Basic Shiksha Parishad and others v. Triveni Prasad Pandey and others was filed against the said judgment which was dismissed on 1.11.2001. Being aggrieved by the said orders, an SLP was also filed before Hon''ble the Supreme Court, which was later on withdrawn by the Government. Thus, according to Sri S.P.Singh, this judgment is still in vogue and is final. He has placed reliance on the Administrative circular issued by the Director Education (Basic) and the Chairman U.P. Basic Shiksha Parishad, Allahabad indicating therein that a B.Ed candidate can also be selected as Assistant Teacher for teaching the Junior High School. Therefore there is no illegality or infirmity in the appointment of the petitioner.

Learned counsel for the petitioner has further placed reliance on the decision reported in (1997) 3 UPLBEC 1774, B.Ed. Berozgar Sangh District Sonbhadra and others v. State of U.P. and Others, in which it has been stated that there is no bar that a B.Ed. candidate cannot be appointed against a post of assistant teacher.

I have heard the learned counsel for the parties and perused the record.

It is evident from the impugned order dated 8.2.2000 that only reason for cancellation of the appointment is that the post on which the appointment was made is a dead post. The relevant para of the impugned order is quoted below:

It appears from the record that this was only the reason for denying the approval and canceling the appointment of the petitioner. Although in the counter affidavit, the opposite party No.1 had tried to defend his action on the ground that the advertisement was not issued and the appointment of the petitioner was illegal and irregular.

I have scrutinized the matter in the light of the submission made by the parties and from the chronology of the events, it is amply clear that the institution was recognized on 30.12.1983 thereafter the post held by the petitioner was occupied by Sri Ramesh Chandra Trivedi and no objection was raised on the appointment of sri R.C. Trivedi from 3.11.1993 till he remained in service. The record further reveals that vide order dated 3.11.1983 the appointment of Sri Trivedi was approved by the Basic Shiksha Adhikari, Unnao. Sri Ramesh Chandra Trivedi finds place at Sl. No.6 of the list of Assistant teacher whose appointment was duly approved by the Basic shiksha Adhikari, Unnao. The petitioner was appointed on the vacancy caused due to resignation of Sri Trivedi. For the same post an approval was sought from opposite party No.1 to fill up the said post by the Management of the Committee from time to time but Basic Shiksha Adhikari, Unnao has been sleeping over the matter, ignoring the interest of the student of the area who were to be benefied for appointment of such teacher. Even after receiving of such proposal of appointment on 25.11.1993, no action has been taken by the opposite party No.1 and an evasive reply has been given in para 17 of the counter affidavit. The petitioner had made a specific averment in para 20 to the writ petition that the proposal was duly received in the office of Basic Shiksha Adhikari, Unnao on 25.11.1999 and no action was taken by the said authority within one month.

In view of the above facts and circumstances of the case, I hold that the petitioner has been accorded approval by virtue of the aforementioned Relevant service Rules. The petitioner shall be treated as approved candidate on the recommendation made by the Selection Committee which concluded its meeting for selection on 3.11.1999. Moreover, before issuance of the impugned order dated 8.2.2000 relating to cancellation of appointment of the petitioner, he was not afforded any opportunity of hearing. He had already assumed charge of the post on 1.1.2000 and became an Assistant Teacher of Janta Nimna Madhyamik Vidyalaya, BeoliIslamabad, District Unnao and acquired right to hold the post. The principles of natural justice have not been followed by the opposite parties in terminating the services of the petitioner.

In these circumstances of the case, it can not be said that the post was a dead post. The only reason which has been indicated in the impugned order is that the Management had made appointment against a dead post. This reason is wholly unfounded and not based on the material on record. The Basic Shiksha Adhikari Unnao has not applied his own mind to the material on record to arrive at its conclusion. The post was available right from 1983 from the date of recognition. This post was available and the same was held by R.C. Trivedi, whose appointment and continueance was duly approved by the Basic Shiksha Adhikari, Unnao.

In view of above the writ petition is allowed. A writ of certiorari is issued quashing the impugned order dated 8.2.2000 passed by the Basic Shiksha Adhikari, Unnao. Consequences shall follow. The petitioner shall be treated as an approved regular teacher of the institution.

(Petition allowed)