- (1.) PRAKASH Krishna, J. By means of the present writ petition, the petitioner has sought a writ, order or direction in the nature of certiorari quashing the order dated 30th of July, 1986 (Annexure-7 to the writ petition) whereby the Manager of the Institution informed the petitioner that the petitioner was appointed by the then Committee of Management on non existent post without following the procedure for appointment as Assistant Teacher as prescribed by the U. P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 and therefore, the District Basic Shiksha Adhikari did not approve the appointment of the petitioner.
(2.) THE petitioner claims that he was appointed on 28th of June, 1984 in pursuance of the appointment letter issued by the Manager of the institution namely Sarvahitkari Junior High School and under Rule 10 (5) of the Rules aforestated, the appointment of the petitioner shall be deemed to have been approved since the Basic Shiksha Adhikari did not sent any reply to the request for approval within the period of one month and under Rule 12 the services of a teacher on probation stands confirmed immediately on expiry of the probationary period which ended on 28th of June, 1985. THE petitioner is a qualified teacher and the respondent No. 1, (institution) has illegally withheld salary of the petitioner from June, 1985 to 31st of July, 1986. THE respondent No. 1 issued an advertisement on 10th of July, 1986 to appoint some teachers on the post of petitioner, hence; the present writ petition. A supplementary affidavit has been filed stating that the School in question came in grant-in-aid list of the State Government on November 17, 1984 and the petitioner who was working prior to the grant-in-aid is entitled to get salary under the Payment of Salaries Act by the department. In the counter-affidavit filed on behalf of the Basic Shiksha Adhikari the stand taken is that the Management, as required under the Rules did not furnish any document with regard to the approval referred to in the writ petition nor the Management ever informed the office of the Basic Shiksha Adhikari about the holding of any such selection. The Management unilaterally, without any participation of any representative of Basic Shiksha Adhikari, in utter disregard of the statutory provisions offered appointment to the petitioner which is void ab initio and the petitioner is not entitled for any salary in view of the letter sent by the Additional Director (Basic), Meerut. Shri Ramendra Asthana, advocate for the petitioner, submitted that the impugned order holding that the petitioner was appointed without following the procedure prescribed by law and on a non existent post is illegal and without jurisdiction in as much as in view of the Rule 10 (5) of the aforesaid Rule the appointment of the petitioner shall be deemed to be approved as the Basic Shiksha Adhikari did not communicate his disapproval within one month from the receipt of the papers submitted to him seeking approval to the recommendation made by the Selection Committee. Reliance has been placed on one decision Yashwant Singh v. District Basic Shiksha Adhikari, Jhansi, 2003 (1) LBESR 565 (All) : 2003 (1) E. S. C. 560 and in contra, the learned Counsel for the respondents has placed reliance on Ashok Kumar Pandey and Ors. v. B. S. A. and Ors. , (1992) 2 UPLBEC 906. Before proceeding further it would be appropriate to first ascertain the status of the petitioner and the theory as put up by him that on the facts of the present case, in absence of any disapproval within the period of one month, the appointment of the petitioner shall be deemed to be approved by the Basic Shiksha Adhikari. Shri Asthana referred the copy of the letter sent by the Manager (Annexure-2) to the petition, is a letter seeking approval of the appointment of the petitioner. The said letter is as vague as it could have been. The letter contains that the School is seeking approval of the certain staff teaching and non-teaching being satisfied with their work and requested to accord approval by the said letter. Along with the letter a list of seven teachers has been enclosed under the signatures of the Principal and the Manager of the Institution containing their names, post, educational qualification, date of birth, date of appointment and the address. It does not refer holding of any selection process. It also does not disclose the date of advertisement, if any, issued by the School in any newspaper inviting applications for the posts. It also does not disclose the number of persons who applied for the post. The constitution of the Selection Committee, if any, or proceedings of Selection Committee, if any, have not been disclosed.
(3.) NOW let us examine the statutory provisions in this regard. Rule 5 (b) of the said Rules provides that no person shall be appointed as Headmaster or Assistant Teacher in substantive capacity, in any recognized School unless besides the minimum educational qualification, "he has recommended for such appointment by Selection Committee. " Rule-7 mandatorily requires the advertisement of vacancy before filling up any vacancy "in at least one newspaper having adequate circulation in the locality and intimation of such vacancy given to the District Basic Education Officer. " In the writ petition there is no whisper that the petitioner was appointed in pursuance of any advertisement in any newspaper. In absence of any pleadings that the appointment of the petitioner was preceded by an advertisement in any newspaper having circulation in the locality, the appointment of the petitioner falls. Significantly, it may be noted that Annexure-2 on which heavy reliance was placed by the petitioner also does not talk about the issuance of advertisement in at least one newspaper having adequate circulation in the locality. In the counter-affidavit it has been stated that the appointment of the petitioner was not valid as the post in question was not advertised in any newspaper. Even then no attempt was made by the petitioner to come out with a that the post in question was advertised in a newspaper. Secondly, intimation of vacancy is required to be given to the District Basic Education Officer under Rule 7 (1) of the aforesaid Rule but in the present case there is no pleading or evidence worth the name on the record to show that any such thing was done by the Management. Thirdly, the provision for constitution of Selection Committee has been laid down in Rule 9. It says that Selection Committee for the post of Assistant Teacher shall consist of (1) Manager; (2) Headmaster of the recognized School in which appointment is to be made; (3) a nominee of the District Basic Education Officer. No such Selection Committee was ever formed, as specifically pleaded in para 6 of the counter-affidavit of the respondent No. 1.;