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2020 Supreme(All) 295
IN THE HIGH COURT OF ALLAHABAD
IRSHAD ALI, J.
Himanshu Tripathi – Appellant
Versus
State Of U.P. And 5 Ors. – Respondent
WRIT A No. 33309 of 2016
Decided on : 11-02-2020
Advocate Appeared:
For the Appellant : Harish Chandra Dwivedi
For the Respondent: C.S.C., Jay Ram Pandey, Neeraj Kumar Srivastava, Surendra Kumar Chaubey
Point of Law
Under the aforesaid rule, ful-fledged procedure has been prescribed that how the selection shall be made and in which manner papers shall be submitted to the DBEO in as much as under Clause 5(b)(iii) of Rule 15, it has been provided that in case the DBEO does not pass any order on the papers submitted by the committee of management to accord approval to the selection after expiry of one month's period.
Headnote:
U.P. Basic Education Act, 1972 – U.P. Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 – Writ petition, the petitioner has prayed for issuance of writ of mandamus to the District Basic Education Officer (DBEO) -respondent No.3 to grant approval of selection and appointment on the post of Clerk of Sri Jawahar Lal Nehru Junior High School, Ghanshyampur, Mirzapur – Held, It is apparent that before expiry of one month's period and before granting approval by the DBEO, the committee of management cannot issue appointment letter to the selected candidate. In view of provisions referred herein above, the appointment if any made, in violation of the aforesaid Rules, will be illegal – Papers were submitted by the committee of management to the DBEO and on the same date appointment letter was issued to the petitioner. In view of specific provisions prescribed under the aforesaid Rules 15 and 16 of the Rules of 1984, the appointment of the petitioner cannot be termed to be valid – Petition dismissed (Paras 18 and 19).
Facts of the Case
Vacancy on the post of Clerk came into existence in the institution due to death of clerk of the institution. The Committee of Management sought permission from the DBEO to make appointment of the post of Clerk by issuing advertisement in newspapers inviting applications from eligible and qualified candidates - DBEO passed an order on 16.09.2015, whereby permission was accorded to issue advertisement. The vacancy was advertised in news papers inviting applications from eligible and qualified candidates.
Finding of the Court
It is apparent that before expiry of one month's period and before granting approval by the DBEO, the committee of management cannot issue appointment letter to the selected candidate. In view of provisions referred herein above, the appointment if any made, in violation of the aforesaid Rules, will be illegal – Papers were submitted by the committee of management to the DBEO and on the same date appointment letter was issued to the petitioner. In view of specific provisions prescribed under the aforesaid Rules 15 and 16 of the Rules of 1984, the appointment of the petitioner cannot be termed to be valid.
Result: Petition dismissed
JUDGMENT :
1. Heard learned counsel for the petitioner, learned standing counsel for respondent Nos.1 and 2, Sri Jai Ram Pandey, learned counsel for respondent Nos.3 and 4 and Sri S.K. Chaubey, learned counsel for the intervener.
2. By means of present writ petition, the petitioner has prayed for issuance of writ of mandamus to the District Basic Education Officer (DBEO) -respondent No.3 to grant approval of selection and appointment dated 20.02.2016 on the post of Clerk of Sri Jawahar Lal Nehru Junior High School, Ghanshyampur, Mirzapur (for short, "institution").
3. The petitioner claims that Sri Jawahar Lal Nehru Junior High School, Ghanshyampur, Mirzapur is a recognized institution under the provisions of U.P. Basic Education Act, 1972. The provisions of U.P. Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 is applicable to the institution in question. A vacancy on the post of Clerk came into existence in the institution due to death of Sri Haridwar Pandey, clerk of the institution. The Committee of Management sought permission from the DBEO to make appointment of the post of Clerk by issuing advertisement in newspapers inviting applications from eligible and qualified candidates. The DBEO passed an order on 16.09.2015, whereby permission was accorded to issue advertisement. The vacancy was advertised in news papers Dainik Aaj and Jan Sandesh inviting applications from eligible and qualified candidates.
4. It is the case of the petitioner that in pursuance to the advertisement issued, he applied for and the selection committee selected him on the post of Clerk. Papers were submitted before the DBEO for grant of approval to the selection of the petitioner on the post of clerk in view of the provisions contained under Rule 15 of U.P. Recognized Basic Schools (Junior High Schools) (Recruitment Condition of Service of Ministerial Staff and Group D Employees) Rules, 1984 (for short, 'the rules").
5. It is further case of the petitioner that on 23.02.2016, he was issued appointment letter and in pursuance thereof, he joined in the institution and discharging duties and due to non grant of approval by the DBEO, he has not been paid salary, therefore, the present writ petition has been filed before this court for issuance of writ of mandamus to issue direction to the DBEO to pass appropriate order for grant of approval to the selection and appointment of the petitioner.
6. Learned counsel for the petitioner submitted that under Rule 15 of the aforesaid Rules, the DBEO has been empowered to grant approval to the selection on the post of clerk, therefore, the action on his part in not passing the order suffers from apparent illegality.
7. He next submitted that the DBEO is duty bound to pass the order of approval or refuse to grant approval on the papers submitted by the committee of management after selection.
8. His next submission is that due to non passing of the order, the petitioner is suffering great financial loss and is not able to meet out the hardship of the family.
9. On the other hand, learned Standing counsel for respondent Nos.1 and 2 and Sri Jai Ram Pandey, learned counsel for respondent by filing counter affidavit stated that under the Rules of 1984, ful-fledged procedure has been prescribed in regard to procedure for selection.
10. They further submitted that the procedure prescribed under the rules was not followed, therefore, the selection vitiated in law and does not require approval from the DBEO. They next submitted that the petitioner is claiming that appointment letter was issued on 23.02.2016 which is the date of submission of papers to the DBEO and without granting approval, the appointment letter cannot be issued to him. Therefore, the appointment of the petitioner vitiates in law and does not require interference by this Court.
11. Sri S.K. Chaubey, learned counsel who has filed impleadment application submitted that the post in question came into existence duet to death of clerk
