Committee of Management of Vishva Nath Vidyalaya, Mundera, Allahabad through its Manager vs State of U.P. and another

V.K. Shukla, J.—Petitioner claiming themselves to be Committee of Management of Vishvanath Vidyalaya, Mundera, Allahabad through its Manager Harish Chandra Agrawal has approached this Court for issuing a writ in the nature of mandamus commanding the District Basic Education Officer, Allahabad to send nominee and cooperate in completing selection process of appointment for the post of Headmaster and Assistant Teacher, respectively at Vishva Nath Vidyalaya, Mundera, Allahabad.

Brief background of the case as mentioned in the writ petition is the post of Headmaster had been lying vacant and one Sayed Maqsud Hasan had been holding the charge of Headmaster and he died on 5.5.2003. Petitioners have contended that as vacancy of Headmaster and vacancy of Assistant Teacher both were lying vacant, as such request was made to District Basic Education Officer, Allahabad to accord necessary permission for advertising the aforementioned vacancies. Petitioner have further contended that due intimation was given to District Basic Education Officer but as no communication whatsoever had been sent, consequently, vacancy in question was advertised on 23.7.2003 and 16.10.2003 respectively. Petitioner have contended that after receiving applications from prospective candidate request was made for sending of a nominee. Petitioners submit that said request was not adverted to and no heed was paid to the same, as such complaining inaction on the part of respondents authority, present writ petition has been filed.

To. this writ petition counter affidavit has been filed and therein it has been submitted that there is dispute of Management and the post of Headmaster is under dispute and one Jai Karan Singh is also claiming himself to be the Headmaster of the institution and this Court in Civil Misc. Writ Petition No. 43320 of 2004 has asked the authority concerned to consider the claim of said Jai Karan Singh, as such rightly no action has been taken further reliance has been placed in the Government Order dated 20.1.2003 wherein it has been provided for that no appointment can be made without taking prior approval from the State Government. In this background it has been submitted that matter has to be referred to the State Government, as such without there being any order from the State Government, no action is warranted.

Rejoinder affidavit has been filed and therein it has been asserted that dispute in respect of Management is totally artificial dispute and further petitioners Managing Committee have been accorded recognition and there is no interim order operating against the same. It has also been contended that Sayed Maqsud Hasan has been paid is salary'' along with arrears and as far as claim of Jai Karan Singh is concerned, same has been rejected on 20.12.1999. In this background it has been contended that nominee be sent for concluding selection proceedings.

Supplementary counter affidavit has also been filed and therein dispute has been sought to be raised that petitioners have got no right to take appointment and further matter is still engaging attention of this Court.

Said supplementary counter affidavit has been rebutted by supplementary rejoinder affidavit.

After pleading mentioned above have been exchanged, present writ petition has been taken up for final disposal with the consent of the parties.

Sri L.K. Dwivedi, Advocate appearing for petitioner submitted that selection proceedings are covered by the provisions and contained under U.P. Recognized Basic School (junior High School Recruitment and Condition of Teachers) Rules, 1978 and as such in all eventuality, nominee be sent and further the Government Order dated 20.1.2003, being counter to 1978 Rules is liable to be struck down, and same cannot be made foundation and basic for nonsuiting the claim of the petitioner.

Learned Standing Counsel on the other hand submitted that District Basic Education Officer has acted well within its right in not according approval as the post of Headmaster is disputed, and further as far as post of Assistant Teacher is concerned, as no permission has been accorded by the State Government as such rightly no action has been taken.

In order to appreciate respective contention of parties, relevant Rules 3,4,5,7,8,9,10 and 11 of 1978 Rules are being quoted below:

"3. Appointment. (1) It shall be the responsibility of the Management to fill a vacancy in the post of Headmaster or Assistant Teacher, as the case may be, of a recognized school by 31st July every year.

(2) If any vacancy occurs during an academic session, it shall be filed within two months from the date of occurrence of such vacancy.

Minimum Qualification. (1) The minimum qualifications for the post of clerk shall be Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh, or equivalent examination (with Hindi) and a minimum speed of 30 words per minute in Hindi typewriting.

(2) The minimum qualification for the post of a Group ''D'' employee shall be Class V from an institution recognized by the Government of Uttar Pradesh or equivalent examination with Hindi.

Eligibility for appointment. No person shall be appointed as Clerk or Group "D" employee in substantial capacity in any recognized school unless:

(a) He possesses the minimum qualifications prescribed for such post;

(b) He is recommended for such appointment by the Selection Committee.

Advertisement of vacancy. (1) No vacancy shall be filed except after its advertisement in at least two newspapers, one of whom must adequate circulation all over State and the other in locality the school situated.

(2) In ever advertisement and intimation under clause (1), the Management shall give particulars as to the name of the post, the minimum qualifications and agelimit, if any prescribed for such post and the last date for receipt of applications in pursuance of such advertisement.

Age limit. The minimum age shall on the first day of July of the academic year following next after the year in which the advertisement of the vacancy is made under Rule 7 be

(i) In relation to the post of assistant teacher, 18 years.

(ii) In relation to the post of Headmaster, 25 years.

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

A. Institution other than Minority Institution. (i) For the 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 recognised schools in which appointment to be made;

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

B. Minority Institution.

(1) For the post of Headmaster

(2) Manager;

(3) Two nominee of Management.

(iv) For the post of Assistant Teacher

(1) Manager;

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

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

Procedure of selection. (1) The Selection Committee shall, after interviewing such candidates as appear before it on a date to be fixed by it in his 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 matters 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 qualification prescribed for the post;

(b) the procedure laid down in these rules of 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 communicated 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), 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 subrule (5) of Rule 15, 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 candidates also, to the last candidate mentioned 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 the 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."

A bare perusal of the aforementioned Rules would to show that Rule 3 deals with bounden duty of the Management for filling up the vacancy on the post of Headmaster and Assistant Teacher and further time limit has also been provided for filling up the aforementioned vacancy. Rule 4 and Rule 5 of the aforementioned 1978 Rules deals with minimum qualifications and eligibility required for appointment. Rule 7 prescribed that no vacancy shall be filled up except after its advertisement in at least two newspapers, out of which one must have wide circulation all over the State and the other in the locality the school situated and further in the advertisement and in the intimation under clause (1) the Management shall give particulars as to the name of the post, the minimum qualification and agelimit, if any, prescribed for such post and the last date for receipt of applications in pursuance of such advertisement. Rules 8 deals with age limit and Rule 9 deals with constitution of Selection Committee and therein nominee of District Basic Education Officer is a must. Rule 10 deals with procedure for selection and approval and Rule 11 deals with appointment. Thus, scheme is self contained and under the aforementioned Rules, nominee has to be provided for and there is no escape route.

After respective arguments have been advanced, factual position which is emerging in the present case is that one Sayed Maqsud Hasan had been performing and discharging the duties as officiating Headmaster and he was appointed as Assistant Teacher under Three Language Formula school. Post which has fallen vacant on account of attaining the age of superannuating of Sayed Maqsud Hasan is to be filled up by Managing Committee of the institution in terms of Rule 3 of 1978 Rules. As far as post of Headmaster is concerned it is true that claim of one Jai Karan Singh has been rejected on 20.12.1999 and against the order dated 20.12.1999 Civil Misc. Writ Petition No. 2227 of 2000 is pending before this Court wherein Jai Karan Singh is not one of the petitioner and thereafter Jai Karan Singh had preferred Writ Petition No. 43320 of 2004 before this Court Wherein directives were given for consideration of his claim and thereafter as claim has been rejected by the Additional Director of Education, Jai Karan Singh has filed fresh Writ Petition against the said order and the aforementioned writ petition has been directed to be tagged and clubbed with Civil Misc. Writ Petition No. 2227 of 2000 as such selection and appointment of Headmaster, if any, made, would be subject to decision in Civil Misc. Writ Petition No. 2227 of 2000 and other connected matters. As far as, post of Assistant Teacher is concerned, which has fallen vacant on account of attaining the age of death of Sayed Maqsud Hasan same has to be filed up as per law and same would be subject to ultimate decision in Writ Petition No. 5395 of 2001. District Basic Education Officer is enjoined upon to provide nominee in case there exists vacancy and same has to filled up in terms of 1978 Rules. Government Order dated 20.1.2003 in the fact of the present case in uncalled for inasmuch as 1978 Rules are self contained and said Rule does not envisage for taking any prior approval from the State Government before proceeding to make selection and appointment and as such said Government Order to the extent it directs taking sanction from State Government is altra vires to the provisions as contained under 1978 Rules and the same cannot be made foundation and basis for withholding the permission. Thus, respondents are duty bound to provide nominee in case validly elected Managing Committee is proceeding to make selection as per 1978 Rules against duly sanctioned post.

In these circumstances and in this background District Basic Education Officer, Allahabad is directed to take appropriate decision on the application moved by the petitioner for standing of nominee within a month from the date of receipt of certified copy of the order. At the point of time of according approval District Basic Education Officer, Allahabad shall see and ensure that only those persons are appointed as Headmaster/Assistant Teacher who fulfill requisite minimum qualification as is contained under Rules 4 and 5 of 1978 Rules in this connection; [See Dharamveer Singh v. State of U.P., reported in 2000 (4) ESC 2383; Yogesh Kumar v. Govt. NCT, reported in 2003 (3) SCC 348; P.M. Latha v. State of Kerala, reported in JT 2003 (2) SC 423 and judgment of this Court in Civil Misc. Writ Petition No. 25723 of 2004 (Chotey lal Maurya v. State), decided on 10.2.2005].

For the reasons mentioned above, present writ petition is allowed and disposed of.

No order as to cost. Petition allowed.