MUKESH CHANDRA KAUSHIK Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THIS petition has been filed for quashing the advertisement dated 12th November, 2005 issued by 'Sri Phool Chand Vidya Mandir Junior High School', Neev Gaon Mathura (hereinafter referred to as the 'Junior High School') for appointment of an Assistant Teacher in the School. The petitioner has also sought a direction for payment of remuneration payable to an Assistant Teacher from 1996 and to pay him current salary each month. The petitioner claims to have been appointed as an Assistant Teacher in the Junior High School by the letter dated 16th August, 1996. It is his assertion that on the basis of the said appointment letter, he joined the Junior High School on 17th August, 1996 and subsequently the District Basic Shiksha Adhikari, Mathura also granted approval to his appointment by the letter dated 14th December, 1996. The Junior High School was subsequently brought in the grant-in-aid list of the State Government on 16th December, 1998 but salary was not paid to him. On the other hand, the Junior High School issued an advertisement dated 12th November, 2005 for selection of an Assistant Teacher. A counter affidavit has been filed on behalf of the Basic Shiksha Adhikari. It has been stated that the petitioner was directly appointed by the Management of the Junior High School at their level and the alleged approval letter dated 14th December, 1996 is a forged and fabricated document which had not been issued from the office of the Basic Shiksha Adhikari. It has, therefore, been stated that the petitioner is not entitled for payment of salary. Sri Yogesh Agrawal learned counsel appearing for the petitioner has stated that the petitioner had been duly appointed by the letter dated 16th August, 1996 and he joined the Junior High School on 17th August, 1996 and he has been continuously teaching since then. Initially he was paid salary by the Committee of Management from its own resources as the Junior High School was not included in the grant-in-aid list but subsequently when the Junior High School was brought in the grant-in-aid list on 16th December, 1998, he was not paid salary by the State Government. He, therefore, submitted that the petitioner is entitled for payment of salary and the advertisement that has been issued by the Junior High School for filling up the post occupied by the petitioner deserves to be set aside and in support of his contention he has placed reliance upon a decision of this Court in Harendra Kumar Singh Vs. State of U.P. and Ors., 2008(4) ESC 2875. The petitioner claims to have been appointed as an Assistant Teacher in the Junior High School. The Rules governing such appointments are 'The Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Services of Teachers) Rules, 1978' (hereinafter referred to as the 'Rules'). Rule 4 prescribes the minimum qualification for appointment as an Assistant Teacher. Rule 7 provides that no vacancy should be filled except after its advertisement in at least two newspapers, one of whom must have adequate circulation all over the State and the other in a locality where the School is situated. Rule 9 deals with the constitution of the Selection Committee while Rule 10 prescribes the procedure for selection and is as follows:- "10. Procedure for selection.- (1) The Selection Committee shall, after interviewing such candidates as appear before it on a date to be fixed by it in this behalf, of which due intimation shall be given to all the candidates, prepare a list containing as far as possible the names, in order to 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 members 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 qualifications prescribed for the post; (b) the procedure laid down in the rules for 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 communicate 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), he shall be deemed to have accorded approval to the recommendations made by the Selection Committee." Rule 11 deals with appointment by the Management and provides that on receipt of approval by the District Basic Education Officer, the Management shall first offer appointment to the candidate given first preference by the Selection Committee and on his failure to join the candidate next to him. It is, therefore, clear that no vacancy on the post of Assistant Teacher in the Junior High School can be filled up except after issuance of advertisement in two newspapers. There is nothing on the record to indicate that such an advertisement was ever issued. The appointment order does not state so and even the counter affidavit filed by the Committee of Management does not indicate that an advertisement as contemplated under Rule 7 was issued. The procedure prescribed under Rule 10 of the aforesaid Rules for making the appointment has also not been followed. Under the said Rule, the Selection Committee is required to forward the list containing the names of the candidates in order of preference, which is then required to forwarded to the District Basic Education Officer within one week from the date of receipt of the papers and thereafter the District Basic Education Officer is required to examine whether the candidates recommended by the Selection Committee possess the minimum qualifications and whether the procedure laid down in the Rules has been followed. If the District Basic Education Officer is satisfied about the aforesaid conditions then he is required to accord approval to the recommendations made by the Selection Committee and thereafter under Rule 11 of the Rules the Management has to issue the appointment order. In the present case, the procedure prescribed for making the appointment under the said Rule has not been followed by the Committee of Management. The alleged appointment order issued by the Committee of Management, therefore, confers no right upon the petitioner to claim salary from the State. What is also to be noticed is that though the Junior High School was brought on the grant-in-aid list on 16th December, 1998 and salary was not paid to the petitioner, yet the present petition has been filed in the year 2006 after a gap of more than eight years when an advertisement was issued by the Junior High School for filling up the post of Assistant Teacher. Though the petitioner has stated that he had repeatedly filed representations for payment of salary but the same cannot enure to the benefit of the petitioner as the petitioner should have immediately approached this Court in case salary was not paid to him. In Harendra Kumar Singh (supra), the Court proceeded on the footing that the appointment of the petitioner was neither irregular nor illegal. In the present case, as noticed hereinabove, the alleged appointment of the petitioner has been made without following the procedure prescribed under the Rules. The said decision relied by the learned counsel for the petitioner, therefore, does not help the petitioner. There is, therefore, no merit in this petition. It is, accordingly, dismissed.