- (1.) BY means of this petition, moved under Article 226 of Constitution of In dia, the petitioner has sought writ in the nature of mandamus, directing respond ent No. 3 to grant approval to the se lection of the petitioners as Assistant Teachers in Raja Mahendra Pratap Girls Junior High School, Gurukul Narsen, Haridwar (herein after referred as the School ). Also, a mandamus has been sought directing the respondents to pay salary of the petitioners, who are work ing as Assistant Teachers.
(2.) HEARD learned counsel for the parties. Brief facts of the case, as nar rated in the writ petition, are that peti tioners are working as Assistant Teach ers in the School. The School is recog nized institution, which is governed by the provisions of U. P. Basic Education Act, 1972; and the rules framed there under. The School came under grant in aid of the Government in the month of May, 2005. According to the petitioners, vide order dated 19-05-2003 (Annexure-3 to the writ petition), Regional Joint As sistant Education Director (Basic), Garhwal region, three more sections were permitted to be opened in the school (one each for Class VI, VII and VIII ). Consequently, Management of the school, issued an advertisement on 05-03-2004 (copy Annexure-4 to the writ petition) for the appointment of teach ers. Petitioners were the candidates, who appeared in the interview in pursuance of said advertisement and got selected by the Selection Committee on 12-03- 2004. Appointment letters (Annexure-6 to the writ petition), were issued to the petitioners and they joined their duties in the school. Since then they are teach ing in the school. Meanwhile, the reso lution dated 12-03-2004 of the Commit tee of Management was sent along with the required documents to respondent No. 3 (District Basic Education Officer, Haridwar) for approval of the appoint ments of the petitioners. It is alleged by the petitioner that the respondent No. 3 neither gave approval nor rejected the same. Hence this petition. In the counter affidavit, filed on behalf of the respondents No. 2 and 3, it is admitted that school is a recognized one. It is also admitted that the petition ers were appointed by the Management of the school. However, it is stated in the counter affidavit that vide order dated 19-06-1998 (copy Annexure C. A.-1 to the counter affidavit) that there were only four posts sanctioned for the post of Assistant Teachers. It is further stated on behalf of the respondents that ap pointment of the petitioners was not ap proved by the District Basic Shiksha Adhikari and they are working under internal arrangement of the Management of the school. It is further stated that no prior approval of District Basic Educa tion Officer was obtained before mak ing appointments of the petitioners. As to the approval sought by the Manage ment for the petitioners, it is stated that District Basic Education Officer sent back the record to the school with the remark that the procedure adopted by the Manager is doubtful. However, in para-1, before parawise reply, the re spondents have admitted that three more posts were sanctioned by the Regional Assistant Education Director (Basic), vide his order dated 01 -03-2005. Alleg ing that the appointment of the petition ers were not in accordance with the rules, it is stated that before advertise ment dated 05-03-2004, for appoint ment as Assistant Teachers, no prior approval was sought by the 'district Basic Education Officer.
(3.) BEFORE further discussions, it is pertinent to mention here the relevant provisions of law applicable to the case. Rule 3 of U. P. Recognised Basic Schools (Junior High Schools) (Recruitment and Condition of Services of Teachers) Rules, 1978, (herein after referred as Rules) reads as under-: "3. Appointment. ' (1) It shall be the responsibility of the Management to fill a vacancy in the post of Head master or assistant teacher as the case may be, of a recognized school by 31st July every year. (2) If any vacancy occurs during an academic sessions, it shall be filled within two months from the date of occurrence of such vacancy. " Rule 9 of the Rules, provides as un der: "9. Selection Committee- For ap pointment of Headmaster and Assistant Teacher in the institutions other than minority institutions and in the minority institution, the Management shall constitute a Selection Commit tee as follows- A- Institution other than Minor ity Institutions: (i) For post of Headmaster: (1) Manager; (2) A nominee of District Basic Edu cation Officer; (3) A nominee of the Management; (II) For the post of Assistant Teacher: (1) Manager; (2) Headmaster of the recognized School in which the appoint ment is to be made; (3) A nominee of the Management. Relevant portion of Rule 10 of the aforesaid Rules is being reproduced be low : "10. Procedure for Selection.- (1) The Selection Committee shall after interviewing such candidates as ap pear before it on a date to be fixed by it in this behalf, of which due in timation shall be given to all the candidates, prepare a list containing as far as possible the names, in order of 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, aca demic qualifications and teaching experience of the candidates and shall be signed by all the mem bers of the Selection Commit tee. (3) The Selection Committee shall, as soon as possible, forward such list, together with the min utes 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 pre scribed for the post; (b) the procedure laid down in the rules for the selection of Head master or assistant teacher, as the case may be, has been fol lowed 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 afore said, he shall return the papers to the management with the di rection that the matter shall be reconsidered by the Selection Committee. (Hi) 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 recommenda tions made by the Selection Committee. " Annexure-3 to the writ petition, clearly shows that vide order dated 19-05-2003, three more sections were per mitted to be opened in the school by Regional Education Assistant Director (Basic), Garhwal region. The said fact is not denied by the respondents in their counter affidavit. It is also not disputed that the school was given grant in aid vide Government Order No. 751/xx/b-2/2005, dated 24-05-2005. That being so, under Section 10 of U. P. Junior High School (Payment of Salaries of Teach ers and Other Employees) Act. 1978 (U. P. Act No. 6 of 1979 ). the State Gov ernment is liable to make payment of salary of teachers and employees of in stitution, which has come under grant in aid.;