Vineet Saran, J. - (1.) HEARD Sri L.K. Dwivedi, learned Counsel for the pe titioner as well as learned Standing Counsel appearing for the respondents and have perused the record. With consent of learned Counsel for the parties, this writ petition is being disposed of finally at this stage without calling for a counter affidavit.
(2.) THE brief facts of this case are that on the retirement of one Assistant Teacher on 30.6.2008, the petitioner-institution approached to the Zila Basic Shiksha Adhikari, respondent No. 2 to grant permission to advertise the post and send a nominee for selection of an Assistant Teacher. THE U.P. Recognized Basic School (Junior High School Recruitment and Condition of Teachers) Rules, 1978 (hereinafter referred to as the '1978 Rules') provided for appoint ment of Headmaster and Assistant Teacher. As per Rule 3, it is the responsibil ity of the Management to fill a vacancy in the post of Headmaster or Assistant Teacher of a recognized school by 31st July every year. Rule 7 provides for ad vertisement of vacancy and Rule 9 provides for Selection Committee. For the post of Assistant Teacher in an institution, other than minority institution, the Selection Committee is to comprise of Manager, Headmaster of the recognized school and a nominee of District Basic Education Officer. After the vacancy occurred on 28.8.2008, the petitioner wrote to the Zila Basic Shiksha Adhikari, Allahabad, respondent No. 2 for 'grant of per mission to advertise the vacancy for filling up the post of Assistant Teacher, which had fallen vacant and to send a nominee for the Selection Committee. Since the said application was not being decided, the petitioner filed a writ petition bearing Civil Misc. Writ Petition No. 62357 of 2008 (Committee of Management v. State of U.P.), which was disposed of on 3.12.12008 with the direction that the representation of the petitioner with regard to the aforesaid grievances may be considered by the Zila Basic Shiksha Adhikari by speaking and reasoned order. Pursuant thereto, the impugned order dated 17.2.2009 has been passed by the Zila Basic Shiksha Adhikari, Allahabad, respondent No. 2 denying permission to the petitioner to advertise the post of Assistant Teacher. Aggrieved by the said order, this writ petition has been filed. The sole ground taken in the impugned order for denying such permis sion is a Government Order dated 20.1.2003, which provides that permission to fill up the vacant post in non-government aided institution should be granted only after prior approval from the State Government. The said Government Order came up for consideration before this Court in the case of Committee of Management of Vishva Nath Vidyalaya, Mundera, Allahabad v. State of U.P., 2008 (3) UPLBEC 2876 wherein it has been held that "District Basic Education Officer is en joined upon to provide nominee in case there exists vacancy and same has to be filled up in terms of 1978 Rules. Government Order dated 20.1.2003 in the fact of the present case is uncalled for inasmuch as 1978 Rules are self contained and said rule does not envisage for taking any prior approval from the State Government before proceeding to make selection and appointment and as such said Government Order to the extent it directs taking sanction from State Government is ultra vires to the provisions as contained under 1978 Rules and the same cannot be made foundation and basis for withholding the permission. Thus, respondents are duty bound to provide nominee in case validly elected Managing Committee is proceeding to make selection as per 1978 Rules against duly sanctioned post."
(3.) AFTER holding the provision for taking prior approval from the State Government in the said Government Order as ultra vires the provision con tained under the 1978 Rules, in the aforesaid case, this Court directed the District Basic Education Officer, Allahabad to take appropriate decision on the application moved by the petitioner for sending of its nominee within a month. In the present case, although the Zila Basic Shiksha Adhikari has no ticed the aforesaid decision passed in the case of Committee of Management of Vishva Nath Vidyalaya, Mundera, Allahabad (supra) but has stated that Zila Basic Shiksha Adhikari is not competent to interpret the said Government Order and it is only the State Government, which can amend the same and thus he has referred the matter of the petitioner to the State Government/Directorate of Education.;