Seema Bajpai vs Basic Shiksha Parishad, U.P. Allahabad and others

S.S. Chauhan, J.—The present petition has been filed challenging the order dated 07.05.1993 passed by opposite party no.2, contained in Annexure No.9 to the writ petition.

The facts in brief are that Heera Devi Kanya Uchchtar Madhyamik Vidyalaya I taunja, District Lucknow (for short "the School") was originally a Junior High School and was recognised by the Basic Shiksha Parishad U.P. Allahabad and aided by the Government. This School was subsequently upgraded as Higher Secondary Institution. Post of Assistant Teacher in C.T. Grade was advertised for regular selection in the aforesaid School. The petitioner and several other candidates applied for the post. Selection Committee was constituted including the nominee of the Zila Basic Shiksha Adhikari. The petitioner as alleged was selected on 23.02.1989. The then Manager of the Institution vide his letter dated 10th March 1989 sought approval of appointment of the petitioner on the post of Assistant Teacher on the pretext that the experience certificate submitted by opposite party no.5 was forged. The Zila Basic Shiksha Adhikari vide his order dated 4th July, 1989 cancelled the whole selection. Against the order of cancellation of selection, the petitioner submitted a representation dated 20th July 1989 to the Secretary, Basic Shiksha Parishad, U.P., Allahabad. The petitioner, pending regular selection, was appointed afresh on ad hoc basis by opposite party no.3 which was duly approved by the B.S.A. vide his order dated 23rd July, 1988. The said appointment order was approved for a period of six months, which was later extended after every six month. The petitioner filed Writ Petition No.2970 (S/S) of 1991 in which an interim order was passed on 21st May, 1991 directing the opposite parties to allow the petitioner to continue as ad hoc Assistant Teacher in the Institution in question and not to create artificial break in her service so long as her representation against the cancellation of regular selection was not decided by opposite party no.1 or till a regularly selected candidate was available.

The said writ petition remained pending and in the meantime, opposite party no.5 also preferred Writ Petition No.4546 (S/S) of 1992 praying for a writ of mandamus commanding the opposite parties to appoint her on the post of Assistant Teacher on which she was selected. The petitioner was impleaded as opposite party no.7 in the said writ petition. The petitioner filed counter affidavit in the aforesaid writ petition. In the aforesaid writ petition no.4546 (S/S) of 992, an order was passed on 23rd July, 1992 directing opposite party no.2 to dispose of the representation of opposite party no.5. Thereafter, the Court passed another order in the aforesaid writ petition on 21.04.1993 and directed the opposite parties to communicate the decision taken on the representation of opposite party no.5. The representation came to be decided by the B.S.A. by means of order dated 07.05.1993 cancelling his earlier order dated 4th July 1989 and further proceeded to cancel the appointment of the petitioner and allowed the claim of opposite party no.5. Against this order, the present writ petition has been preferred.

Submission of learned counsel for the petitioner is that there is no power of review vested with the B.S.A. and, therefore, the B.S.A. has committed gross illegality in setting aside the order dated 4th July 1989 by means of order dated 07.05.1993 under the garb of the direction of this Court. The B.S.A. should have pointed out to this Hon''ble Court that selection has already been cancelled on 4th July 1989. The petitioner as well as opposite party no.5 have not challenged the order dated 4th July 1989 and so, that is final and the petitioner is continuously working since then on the basis of interim order passed by this Court and as such, claim of opposite party no.5 cannot be entertained on the ground of delay as well.

Opposite party no.5 has not whispered anything about the cancellation of order dated 4th July 1989 in her writ petition but once the cancellation order has followed cancelling the selection, the subsequent writ petition at the instance of opposite party no.5 without disclosing the cancellation order was not maintainable and even if a direction was given by this Court, then instead of deciding and reviewing the earlier order, the B.S.A. ought to have brought to the notice of this Hon''ble Court.

Learned counsel for the opposite parties, on the other hand, has submitted that under the direction of this Court dated 23rd July, 1992, the representation was disposed of and upon enquiry it was found that the certificate submitted by opposite party no.5 was correct and the selection was valid. The order dated 4th July, 1989 was not in the knowledge of opposite party no.5 and as such, the same could not be brought to the notice of the Court and moreover, opposite party no.5 would have challenged the said order.

I have heard learned counsel for the parties and gone through the record.

The fact remains that the order dated 4th July, 1989 has not been challenged by either of the parties. The power of review cannot be exercised and is not vested with the B.S.A. unless provided by the Statute or in the Rules but learned counsel for the opposite parties could not point out any provision authorizing the B.S.A. to review the earlier cancellation order dated 4th July, 1989. In absence of any power of review, the B.S.A. has acted without authority of law and exceeded his jurisdiction in passing the order dated 07.05.1993 and thereby reviewing the earlier cancellation order dated 4th July, 1989.

The cancellation order dated 4th July, 1989 goes to indicate that bungling was committed in the award of marks to the petitioner and since both the parties have not challenged the aforesaid order, therefore, that order has attained finality. The petitioner also obtained an interim order only to the effect that till the representation of the petitioner in regard to cancellation is not decided, she would be entitled to continue. The approval of the petitioner was given for ad hoc appointment for a period of six months, which was extendable for a further period of six months but in spite of that the petitioner filed Writ Petition No.2970 (S/S) of 1991 before this Court and on the basis of the interim order, she continued to serve the School and she was also paid salary. On the face of it, the selection has not been a fair selection and neither the order dated 4th July, 1989 has been challenged by any of the parties in the writ petition, therefore, the same is final and after the cancellation, a fresh selection has to proceed in accordance with law. The selection has not been installed by any interim order of this Court but even then fresh selection has not taken place.

The writ petition, therefore, succeeds and is allowed. The order dated 07.05.1993 is quashed. The opposite parties are directed to proceed with the selection afresh. Petitioner and opposite party no.5 will also be entitled to participate in the selection as no person should be allowed to suffer for the fault of the Court and since the writ petition has been pending in this Court since 1993, therefore, the petitioner or opposite party no.5 cannot be made responsible and they cannot also be made to suffer. The fresh selection shall be made within a period of three months from the date a certified copy of this order is produced before the Management and the B.S.A. concerned.

There shall be no order as to costs.