- (1.) PRAKASH Krishna, J. By means of the present writ petition under Article 226 of the Constitution of India the petitioner has sought a writ of Certiorari quashing the order dated 9-9- 1983 passed by the District Basic Education Officer and a writ of Mandamus directing the respondents not to interfere with the function of the petitioner as Assistant Teacher in the institution and to quash the order dated 12-9-1983 passed by the Manager of the institution. Adarsh Junior High School, Kamaluddinpur, Azamgarh is an unaided institution and is not governed by the provisions of Payment of Salaries Act, 1971. He was appointed as a teacher in Junior High School in the year 1978 in C. T. grade. The petitioner possesses the requisite educational qualification and was selected by Selection Committee and the Committee of Management in its meeting held on 25th of June, 1978 accepted the recommendation of the Selection Committee and appointed the petitioner on probation of one year. The petitioner joined the institution and is working as teacher w. e. f. 1st of July, 1978. The petitioner shall be deemed to have been confirmed on expiry of probation period in view of Rule 12 of U. P. Recognized Basic School (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 and is not related to any member of the Committee of Management of the institution and as such has no disqualification for being appointed as a teacher in the institution. The District Basic Education Officer by letter dated 9-9-1983 (Annexure -2) disapproved the appointment of the petitioner as Assistant Teacher as he was appointed on 1st of July, 1978 after commencement of the Service Rules, 1978. In pursuance of the aforesaid letter of the District Basic Education Officer, the services of the petitioner has been terminated by the institution by the order dated 12-9-1983. Hence the writ petition. A counter-affidavit of Phool Chand, Manager of the institution has been filed wherein it has been stated that the appointment of the petitioner was terminated on 9-9- 1983 under Rule 9 of the U. P. Recognised Basic Schools (Recruitment and Conditions of Service of Teachers and Other Conditions) Rules, 1975. Further it has been stated that since the appointment of the petitioner was not in accordance with the aforesaid Rules 1975 so there is no question of confirmation of petitioner under Rule 12 of Rules, 1978. The main defence is that the procedure as prescribed under Service Rule, 1978 was not followed in toto. Therefore, the appointment of the petitioner is illegal and void.
(2.) A supplementary counter-affidavit is on the record wherein it has been stated that since the institution in question is unaided institution and is not getting any financial aid from the Government, the writ petition is basically directed against the Committee of Management. The appointment of the petitioner was not made in accordance with the service rules. The learned Counsel for the petitioner submitted that even though there is no formal approval of the appointment of the petitioner, the petitioner is continuing as Assistant Teacher since 1st of July, 1978. It was fault of Management to send the papers late to the District Basic Education Officer. Attention was invited towards the fact that an interim order was passed by this Court on 2nd of December, 1983 staying the operation of the order of the District Basic Education Officer dated 9th of September, 1983. An application for vacation of the said order was filed on behalf of the Committee of Management. The interim order was confirmed on 11th of July, 1984. It was submitted that the petitioner, possesses the minimum educational qualification and is teaching in the institution since July, 1978 and in this view of the matter, if there was any irregularity in his appointment, the appointment cannot be cancelled at this distance of time. In reply, the learned Counsel for the respondent No. 2 submitted that the appointment of the petitioner was made by the Committee of Management contrary to the relevant service rules. Reliance has been placed upon a Division Bench Judgment of this Court in Ram Ashrey v. District Judge, Bijnore, (2004) 2 UPLBEC 2070, and it was contended that appointment/continuation in service by interim order, does not create any legal right in favour of the appointee.
(3.) IT is not in dispute that the petitioner was selected and was appointed as Assistant Teacher on 1st of July, 1978. He is working since then. In the counter-affidavit filed on behalf of the Committee of Management it is not denied that the petitioner is working since 1st of July, 1978. IT is not clear either from the writ petition from the counter-affidavit filed on behalf of the respondent No. 2 as to when the papers were sent by the Committee of Management for obtaining approval of the petitioner's appointment. IT was incumbent upon the Committee of Management to follow the procedure prescribed by law before offering appointment letter to the petitioner. In the counter- affidavit it is not the case of the Committee of Management that the petitioner played any fraud or adopted any deceitful means to obtain the appointment in question. IT does not lie in the mouth of the Committee of Management who appointed the petitioner, to say that the appointment of the petitioner was made without following the prescribed procedure. The Committee of Management is stopped to challenge the legality and validity of the appointment of the petitioner as Assistant Teacher in the institution in question as he is uninterruptedly working in the institution since 1st of July, 1978. A Division Bench of this Court in Rajendra Prasad Srivastava v. District Inspector of Schools, 1994 (3) ESC 117, has held that it will be highly unfair to remove a person from service after about 20 years on the ground that his initial appointment was illegal. Smt. Rani Srivastava v. State of U. P. , (1990) 1 UPLBEC 425, is an authority for the proposition that the Committee of Management who appointed the Head Mistress initially on probation cannot put to an end the appointment after 5 years for infirmity in making the appointment.;