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2014 Supreme(All) 3770
ALLAHABAD HIGH COURT
Suneet Kumar, J.
Ram Chet Verma - Appellant
Versus
State of U.P.Through Prin Secy Basic Educaiton - Respondent
Service Single No. 4387 of 2004
Decided On : 31-03-2014
For the Petitioner:- D.K.Singh
For the Respondent:- C.S.C.,Jyotinjay Verma,K K Shukla,V.K.Bajpai
Appointments made without required qualifications and against non-sanctioned posts are void ab initio and do not entitle the appointees to salary from the State exchequer.
Headnote:
Appointment - Junior High School - U.P. Recognized Basic Schools (Junior High Schools Recruitment and Condition of Service) Rules 1978 - Summary of Acts and Sections: U.P. Recognized Basic Schools (Junior High Schools Recruitment and Condition of Service) Rules 1978, Article 14 and 16 of the Constitution of India, Ram Surat Yadav vs. State of U.P., Mohd. Iliyas vs. District Inspector of Schools, Yogesh Kumar vs. Government of NCT Delhi, State of Orissa vs. Mamta Mohanti, Committee of Management vs. State of U.P., State of Karnataka vs. KGSD Canteen Employees Welfare Ass., Pramod Kumar vs. U.P. Secondary Education Services Commission, Regional Manager, Central Bank of India vs. Madhulika Guruprasad Dahir, Kendriya Vidyalaya Sangthan and another vs. L.V. Subramanyeswara Another, Uma Devi (3) case - The court analyzed the U.P. Recognized Basic Schools (Junior High Schools Recruitment and Condition of Service) Rules 1978, constitutional provisions, and various case laws to determine the legality of the appointments and the entitlement to salary.
Fact of the Case:
The petitioners were appointed as assistant teachers in a Junior High School before it came under grant-in-aid. The appointments were made without the required qualifications and against non-sanctioned posts. The petitioners sought writ of mandamus for payment of salary and benefits.
Finding of the Court:
The court found that the petitioners' appointments were void ab initio due to lack of qualifications and non-sanctioned posts. The court held that the petitioners were not entitled to salary from the State exchequer and ordered recovery of the salary paid to them on the basis of interim orders.
Issues: The main issues were the legality of the appointments, entitlement to salary, and the validity of the interim orders.
Ratio Decidendi: The court relied on the U.P. Recognized Basic Schools (Junior High Schools Recruitment and Condition of Service) Rules 1978, constitutional provisions, and various case laws to establish that appointments made without required qualifications and against non-sanctioned posts are void ab initio and do not entitle the appointees to salary from the State exchequer.
Final Decision: The writ petition was dismissed, and the salary paid to the petitioners on the basis of interim orders was ordered to be recovered from the Committee of Management and the Basic Shiksha Adhikari.
Suneet Kumar, J.
The Kisan Rashtriya Junior High School Gohanna, District Ambedkarnagar/Faizabad is a Junior High School recognized and under the grant-in-aid. The provisions of U.P. Recognized Basic Schools (Junior High Schools Recruitment and Condition of Service) Rules 1978 are applicable for appointment and other service conditions of assistant teachers.
2. The Committee of Management published an advertisement on 22.12.1995 in local newspaper for appointment of two assistant teachers. The petitioners along with others applied and the Selection Committee recommended the petitioners for appointment on the post of assistant teachers on 13.1.1995. The District Basic Education Officer Faizabad (herein after referred to as BSA) vide orders dated 12.12.1995 granted approval to the petitioners and accordingly appointment letters was issued by the Committee of Management and on 13.12.1995 the petitioners resumed their duties and are working since then.
3. The Committee of Management has filed counter affidavit and they support the petitioners' case and further, it has been stated, that on 7.12.1988 two additional sections in Class VI and VII was permitted by the B.S.A. and the strength for assistant teachers, on account of additional sections, was enhanced from 5 to 7 as the criteria for teacher per section is 1.5 teachers. The petitioner was appointed in anticipation of approval of the additional posts.
4. The BSA has filed counter affidavit and does not dispute the factual matrix, however, states that the appointment of the petitioner was against sanctioned post and no additional teachers was sanctioned for the additional sections of Class VI and VII. The appointments are not against sanctioned post and hence the State is not liable to bear their salary, it is open for the petitioners to claim the salary from the Committee of Management. It is further stated that the Institution came in grant-in-aid on 1.4.1996 and the names of the petitioners was not included in the Manager Report (MR). Approval of five assistant teachers was accordingly granted.
5. In supplementary counter affidavit it has been stated that the petitioners are not qualified under Rule 4 of the 1978 Rules as they do not possess training certificate and the appointment is void ab initio.
6. The petitioners have approached this Court, seeking writ of mandamus commanding opposite parties to make payment of salary for the post of assistant teachers with all consequential benefits as well as arrears of salary from 13.12.1995. This Court vide interim order dated 21.4.2005 directed the respondents to pay the salary of the petitioners from the current month i.e. April, 2005 and continue to pay the same till duly selected candidates are recommended by the Selection Board.
7. Learned counsel for the petitioner has submitted that the petitioners are continuing for the past 20 years and are being paid their salary on the strength of interim order of this Court and after putting in long period of service, it cannot be said, that they are not qualified or the posts was not sanctioned. More so when the BSA has already granted approval. Dismissal of the writ petition at this stage would cause irreparable loss and injury as the petitioners will have no alternative mode to earn their livelihood. The petitioners fulfilled the qualification as was advertised by the Committee of Management i.e. they had B.Ed. Degree but did not possess B.T.C. and training certificates, as required under the Rules.
8. The learned counsel appearing for the B.S.A. submits that advertisement must indicate the qualifications prescribed under the rules, in case, the petitioners are not qualified, there is no legal obligation upon the State, to bear the expenses, admittedly the qualifications as prescribed under Rule 4 is not possessed by the petitioners. Non possession of qualification is an illegality and not an irregularity, it cannot be cured. Long continuation in service is no ground to uphold
