IMPORTANT POINT
The court established that the absence of a nominee from the DBEO in the selection committee invalidates the appointment process, and that the provisions of the Act 1921 apply to institutions upgraded to high school status, rendering the Rules 1984 inapplicable.

JUDGMENT :

(Shree Prakash Singh, J.) :

1. Heard Sri G. C. Verma, learned counsel for the petitioner, Sri Ran Vijay Singh, learned counsel for the respondent no.2, Sri Anurag Kumar Singh, learned counsel for the respondent no. 4, i.e., Committee of Management, Sri Shailendra Kumar Singh, Chief Standing Counsel, Sri Vivek Shukla, additional chief standing counsel and Sri Piyush Kumar, learned Standing Counsel for the State.

2. Vide the instant petition, a challenge is made to the order dated 13.9.2012 passed by the District Basic Education Officer, Pratapgarh.

3. Factual matrix of the case is that a post of clerk became vacant due to retirement of regular clerk, namely, Mohan Lal Sharma in the Uchchatar Madhyamik Vidyalaya, Para Hamidpur Pratapgarh (hereinafter referred to as 'the institution'), on 30.9.2011. Thereafter, the then Manager of the Committee of Management moved an application on 4.11.2011, to the District Basic Education Officer (hereinafter, referred to as ‘DBEO’) for granting permission for filling up the post of Clerk. On such application, the ‘DBEO’ granted permission and, thereafter, the post of Clerk (Class-III) was advertised in the newspaper as per the provisions of UP Recognised Basic Schools (Junior High Schools) (Recruitment of Conditions of Service of Ministerial Staff and Group D Posts), Rules 1984 (hereinafter referred to as 'the Rules 1984'). The qualification and other description as an eligibility criterion, was also mentioned in the advertisement and on 30.11.2011, the Manager i.e opposite party no.4 sent a letter to the ‘DBEO’ for providing Observer on 4.12.2011, i.e., the date fixed for interview but the same remained unheard. Again on 27.12.2011, a letter was sent for providing Observer/Nominee for 1st of January 2012 and in response, after the expiry of the aforesaid date, the DBEO informed to the opposite party no.5 that since, assembly election is notified, therefore, the appointment process would be conducted after the election is denotified. After the election was over again, the date of interview was fixed on 1st of April 2012 and it was intimated by the opposite party no.4, vide letter dated 3.3.2012 to the DBEO and, thereafter, on 29.3.2012, 28.6.2012, 11.7.2012 and 24.7.2012, the same request was repeated before the DBEO while fixing the dates for interview but, ultimately, when the Entire effort went unsuccessful, the interview was held on 29.7.2012 and the selection so made was placed before the Committee of Management, who sent the papers before the opposite party no.2 for approval, which was received in the office of opposite party no.2, on 14.8.2012, which is undisputed fact.

4. Thereafter, on 13.9.2012, after expiry of period of one month, the appointment letter was issued to the petitioner, while following the provisions of Rule 15 (5) (iii) of the Rules, 1984, which says about the deemed approval after expiry of period of one month. After the letter was issued on 14.9.2012, the petitioner submitted his joining on 20.9.2012 and he was allowed to join and was permitted to work since, 19.9.2012. On 13.9.2012, the impounded order was passed by the opposite party no. 2/DBEO and request for the approval of the appointment of the petitioner was rejected precisely, on the ground that the appointment of the petitioner is done by an unlawfully constituted selection committee.

5. Contention of the learned counsel for the petitioner is that there is no dispute that a substantive vacancy arose on the retirement of regular Clerk, Mohan Lal Sharma and, thereafter, the Manager, i.e., opposite party no.4, sent several letters, started from the month of November, 2011 till July 2012, wherein the repeated request was made for appointment of nominee. In response, only one letter is sent by opposite party no.3, i.e. dated 6.1.2012, whereby, he has directed that the nominee will be provided after finalization of the Assembly election and once the Assembly election was over, five letters were written t