# C/M Sri Shanker Junior High School & Ors v. State of U.P. & Ors

- **Citation:** (2022) 2 ILRA 876
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-17
- **Case number:** Writ-A No. 4215 of 2019
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-sri-shanker-junior-high-school-ors-v-state-of-u-p-ors-48164
- **Pages:** 15

## Headnote

A. Service Law - U.P. Basic Education
(Teachers) Service Rules, 1981-challenge
to-forged appointment-petitioners did not
fulfill
the
eligibility
condition
for
appointment on the post of Head Master
and Asst. Teacher-if the petitioners do not
have essential qualification as prescribed
under the statute, their appointment is
void ab initio and they cannot claim any
2 All. C/M Sri Shanker Junior High School & Ors. Vs. State of U.P. & Ors.
877
benefit of any alleged inaction on the part
of the Basic Shiksha Adhikari-The void
and
illegal
appointments
would
not
become valid and legal if the Basic
Shiksha Adhikari did not take decision
within a period of one month as required
under Rule 10 of Rules, 1978-In the
present case, the selection has not been
made free and fair inasmuch as three
candidates
had
received
envelops
containing
blank
papers
sent
by
petitioners no. 1 intimating the date of
interview-if the Basic Shiksha Adhikari
was not granting approval, petitioner no.1
could
have
approached
the
higher
authorities or the Court against the
alleged inaction of the Basic Shiksha
Adhikari, but petitioner no. 1 went ahead
to
advertise
the
posts-Hence,
no
irregularity
found
in
the
impugned
order.(Para 1 to 47)

The writ petition is dismissed. (E-6)

List of Cases cited:

Sanjay Kumar Singh Vs St. of U.P. & ors. (2019)
5 ADJ 583 LB

## Text

_Characters 0–39,880 of 49,844. This is a partial read: ask again with offset=39880 for what follows._

876 INDIAN LAW REPORTS ALLAHABAD SERIES
or antedating the official records. From
perusal of the recommendation of the
screening committee dated 14.07.2020, it is
evident that after considering the work and
conduct of the petitioner, the screening
committee had recorded that the petitioner
is indolent, quarrelsome, disturber of peace,
religious bigot, harasser of females and
scheduled caste people, malignant and
wholly useless employee and, the same has
been confirmed by the Commissioner,
Lucknow Division, Lucknow.

18. The petitioner's misconduct has
been taken note of in detail in the minutes
and, need not to be further dwelled upon by
this Court. From the pleadings, it is evident
that the petitioner had approached this Court
for exercising its extraordinary jurisdiction
by adopting falsehood, misrepresentation
and concealing the material facts and, thus,
abusing the process of the Court. He
obtained the interim order on the basis of
false
and
misleading
averments
and
concealing
material
facts.
One,
who
approaches this Court, is expected to come
with clean hands inasmuch this Court
exercises writ jurisdiction to maintain rule of
law. The petitioner has not approached this
Court with clean hands and, thus, the writ
petition is liable to be dismissed on this
ground alone. Further, from looking at the
service record of the petitioner, the
petitioner has become 'dead wood' in the
organization and, is wholly unuseful. The
employer is entitled to remove the dead
woods from service, if on consideration of
the service record, it is found that the work
of such an employee has not been upto the
mark or he has become 'dead wood' for the
organization. This Court does not find from
the pleadings that the order has been passed
as punishment and, therefore, the sole
ground, urged by the petitioner, has no
substance.

19. In view of aforesaid, for making
false
and
incorrect
averments
and
misrepresenting this Court, concealing
material facts from the Court, the writ
petition is dismissed and a cost of Rs.
25,000/- (Rupees twenty five thousand) is
imposed
upon
the
petitioner
to
be
deposited in the 'Army Battle Casualties
Welfare Fund' within a period of four
weeks, failing which the District Magistrate
concerned shall recover the same, as arrears
of land revenue and, deposit in the account
of Army Battle Causalities Welfare Fund.

20. Let a copy of this order be
forwarded
to
the
District
Magistrate
concerned for compliance.
----------
(2022)02ILR A876
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.02.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Writ-A No. 4215 of 2019

C/M Sri Shanker Junior High School & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Pt. S. Chandra, Manoj Kumar Pandey

Counsel for the Respondents:
C.S.C., Ajay Kumar, Dwijendra Nath Pandey

A. Service Law - U.P. Basic Education
(Teachers) Service Rules, 1981-challenge
to-forged appointment-petitioners did not
fulfill
the
eligibility
condition
for
appointment on the post of Head Master
and Asst. Teacher-if the petitioners do not
have essential qualification as prescribed
under the statute, their appointment is
void ab initio and they cannot claim any
2 All. C/M Sri Shanker Junior High School & Ors. Vs. State of U.P. & Ors.
877
benefit of any alleged inaction on the part
of the Basic Shiksha Adhikari-The void
and
illegal
appointments
would
not
become valid and legal if the Basic
Shiksha Adhikari did not take decision
within a period of one month as required
under Rule 10 of Rules, 1978-In the
present case, the selection has not been
made free and fair inasmuch as three
candidates
had
received
envelops
containing
blank
papers
sent
by
petitioners no. 1 intimating the date of
interview-if the Basic Shiksha Adhikari
was not granting approval, petitioner no.1
could
have
approached
the
higher
authorities or the Court against the
alleged inaction of the Basic Shiksha
Adhikari, but petitioner no. 1 went ahead
to
advertise
the
posts-Hence,
no
irregularity
found
in
the
impugned
order.(Para 1 to 47)

The writ petition is dismissed. (E-6)

List of Cases cited:

Sanjay Kumar Singh Vs St. of U.P. & ors. (2019)
5 ADJ 583 LB

(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

On C.M. Application No.78457 of
2021

Herd.

This application seeks substitution of
the legal heirs of Aditya Kumar, petitioner
no.3

Application is allowed.

Necessary amendment to be carried
out in the memo of parties during the
course of the day.

On Memo of Writ Petition

1. The present writ petition has been
filed seeking quashing of the order dated
3.12.2018 passed by the Director of
Education (Basic), Government of Uttar
Pradesh as well as the order dated 5.5.2012
passed by the Basic Shiksha Adhikari,
Auraiya. Further prayer is for a Writ of
Mandamus/direction to the opposite parties
to accord approval to the appointment of
petitioner nos.2 and 3 and pay their salary
w.e.f. 24.12.2011 and 2812.2011 along
with arrears of salary etc.

2. Petitioner no.1 is the committee of
management of Sri Shanker Junior High
School, Sirsani, Sahar, District Auraiya and
petitioner nos.2 and 3 are claiming to have
been appointed in the said Junior High
School by the committee of management
and are working in the said Junior High
School on the post of Head Master and
Assistant Teacher (Basic) from the date of
their appointment.

3. The institution is recognized as
Junior High School as per the provisions of
the Uttar Pradesh Basic Education Act and
it is governed under the provisions of the
Uttar Pradesh Basic Education Act, 1972
and the Rules and Regulations framed
thereunder. It is said that the said Junior
High School was established in the year
1982-83 and recognition was granted on
11.4.1983 for imparting education up to
Class-VIII. The State Government granted
grant-in-aid to the said Junior High School
in the year 1998 and thus, the provisions of
Uttar Pradesh Junior High School (Payment
of
Salaries
of
Teachers
and
Other
Employees) Act, 1978 (for short ''Act,
1978') were made applicable to the
teaching and non-teaching staff of the said
Junior High School. The recruitment and
conditions of services of Teachers are
governed under the provisions of U.P.
878 INDIAN LAW REPORTS ALLAHABAD SERIES
Recognized Basic Schools (Junior High
Schools) (Recruitment and Conditions of
Services of Teachers) Rules, 1978 (for
short ''Rules, 1978').

4. As per the averments made in the
writ
petition,
the
Government
had
sanctioned one post of Head Master, 8
Assistant Teachers, one clerk and 3 ClassIV posts in the said Junior High School. It
is further said that on 30.6.2007, post of
Head Master fell vacant in the High School
due to retirement of Sri Jagdish Narain
Agnihotri
from
the
said
post
and,
thereafter, two posts of Assistant Teachers
fell vacant due to retirement of two
teachers, namely, Vishnu Dutt Tripathi and
Rajendra Prasad Agnihotri on 30.6.2007
and 30.6.2010 respectively. It is also said
that management of the school had written
various letters and reminders to the Basic
Shiksha Adhikari to grant permission and
send Observer for making appointment
against the aforesaid vacant posts of Head
Master and Assistant Teachers. When no
action was taken by the Basic Shiksha
Adhikari, petitioner no.1 filed Writ-A
No.25139 of 2010 before this Court at
Allahabad. This Court disposed of the said
writ petition vide order dated 6.5.2010,
which reads as follow:-

"Heard learned counsel for the
petitioner and learned Standing Counsel
for the State-respondents.

Supplementary affidavit filed today is
taken on record.

Petitioner before this Court claims to
be Manager for Shree Shankar Junior High
School, Sirsani, District Auraiya. He has
made
an
application
for
grant
by
permission to initiate the process of
selection on the post of Headmaster by
making appropriate advertisement. It is
stated that the post of Headmaster is lying
vacant since July 2007. Similarly, there are
other vacancies on the post of Assistant
Teachers also.

Prayer so made is opposed by Shri
S.K. Mishra, Advocate on the ground that
the petitioner has been removed from the
office of the Manager of the Institution and
therefore he has no right to maintain the
petition.

This Court is of the opinion that
regular
selection
on
the
post
of
Headmaster in accordance with the U.P.
Recognised Basic Schools (Junior High
Schools) (Recruitment and Conditions of
Services of Teachers) Rule, 1978 at the
earliest in view of Rule 20 which permits
temporary appointment for 6 months only.
Let the Basic Shiksha Adhikari pass
appropriate orders on the application made
for permission to advertise. Caveator is at
liberty to point out that the permission to
hold selections may be granted to the duly
constituted and recognised committee of
management only.

Subject to the aforesaid observation
made hereinabove, writ petition is disposed
of."

5. It is further said that the committee
of
management
sent
a
letter
dated
31.5.2010 to the Basic Shiksha Adhikari to
give permission for the advertisement for
making appointment on the vacant post of
Head Master. However, no action was
taken by the Basic Shiksha Adhikari on the
said request despite the order passed by this
Court on 6.5.2010 in the aforesaid writ
petition. Thereafter, the committee of
management
issued
advertisement
for
filling up the vacant posts of Head Master
and Assistant Teachers in two newspapers,
Swatantra Bharat and Dainik Dinrat on
12.10.2011 and the date for holding
interview was fixed on 30.10.2011. The
said advertisement has been annexed as
2 All. C/M Sri Shanker Junior High School & Ors. Vs. State of U.P. & Ors.
879
Annexure No.4 to the writ petition, which
on translation reads as under :-

"For filling up three unreserved posts
(one post of Head Master and two posts of
Assistant Teachers) and one unreserved
post of Class-IV in Shiv Shanker Junior
High School, Auraiya, the candidates
having qualifications as prescribed in the
Basic Education Act in the pay scale fixed
by the Government, may send their
applications along with complete details
and certified photocopies in respect of the
claim regarding educational qualifications
training, experience, age etc. by Registered
Post or be given at the school by
27.10.2011 For interview, the candidates
should come with original documents on
30.10.2011 at 10.30 AM."

The candidates, who had sent their
applications before the advertisement are
not required to send again applications."

6. It would be relevant to note here
that the advertisement did not give the
details of the qualifications, place of
interview and the pay scale, which is
otherwise required to be specifically stated
in the advertisement. The date for holding
interview
was
extended
further
to
11.11.2011 and request was sent to the
Basic Shiksha Adhikari for sending the
observer.

7. The Basic Shiksha Adhikari vide
letter
dated
4.11.2011
demanded
information regarding creation of posts in
the school and it is said that the Manager of
the School personally met the Basic
Shiksha Adhikari and gave necessary
information as desired by him. It is said
that
when
despite
various
requests,
observer was not sent for participating in
the
interviews,
the
committee
of
management
held
the
interviews
for
selecting the candidates for one post of
Head Master and two posts of Assistant
Teachers and one post of Peon on
11.11.2011. The selection committee found
petitioner no.2 most suitable candidate for
appointment on the post of Head Master
and requisite documents pertaining to
selection of Smt. Madhu Tiwari, petitioner
no.2 were sent to the Basic Shiksha
Adhikari
for
granting
approval
on
14.11.2011.

8. It is further submitted that Aditya
Kumar, petitioner no.3 and Awadhesh
Kumar were selected on two posts of
Assistant Teacher and the proceedings of
selection committee in respect of them
were also sent to the Basic Shiksha
Adhikari on 14.11.2011 for approval.

9. Basic Shiksha Adhikari did not
take
any
action
for
approving
the
appointments of one post of Head Master
and two posts of Assistant Teachers in the
school and, therefore, the committee of
management issued appointment letter
dated 21.12.2011 appointed Smt. Madhu
Tiwari, petitioner no.2 on the post of Head
Master and in pursuance thereof, petitioner
no.2 joined the school on 24.12.2011 on the
post of Head Master. Aditya Kumar,
petitioner no.3 joined the post of Assistant
Teacher on 28.12.2011 having been issued
appointment
letter
dated
21.12.2011.
However,
Awadhesh
Kumar,
another
candidate, who was selected for the post of
Assistant Teacher, did not join the school.
Therefore, appointment letter was issued to
one Muneesh Kumar Shukla, who was at
serial no.2 in the merit list on 6.1.2012,
who joined the school on 10.1.2012.

10. Information regarding joining of
the school by the aforesaid three selected
persons was given to the Basic Shiksha
880 INDIAN LAW REPORTS ALLAHABAD SERIES
Adhikari. Again request was made for
approval of the aforesaid appointments of
the Head Master and two Assistant
Teachers and for release of their salary
from the date of their respective joining.
When no action was taken by the Basic
Shiksha
Adhikari,
the
committee
of
management filed Writ-A No.75497 of
2011 before this Court at Allahabad. The
said writ petition was disposed of by this
Court
on
29.2.2012
with
following
directions :-

"(i) Respondent No.3 shall nominate a
person as contemplated under Rule 9 of
Rules 1978 to be the member of Selection
Committee forthwith and in any case within
one week from the date of production of a
certified copy of this order before him.

(ii) Regarding his conduct, inaction
and inefficiency shown, as discussed above,
Secretary (Secondary Education) shall take
appropriate
disciplinary
action
and
complete
proceedings
with
further
information/communication of the ultimate
order passed by him, to this Court, within
six month from today.

(iii) On the laxity shown by S.P.
Auraiya, the matter shall be looked and
enquired
by
State
Government
with
completion of proceedings within six
months.

(iv) The petitioner shall be entitled to
cost which I quantify to Rs.10,000/- against
respondent No.3 which shall be paid by
him to the petitioner within one week
failing which on an application submitted
by petitioner before Registrar General, he
shall issue a requisite certificate to recover
the amount of cost as arrears of land
revenue from respondent no.3."

11. It is relevant to note here that the
Basic Shiksha Adhikari took a specific
stand before the Court in the said writ
petition that in pursuance to the judgement
and order dated 6.5.2010 passed by this
Court in Writ-A No.25139 of 2010, the
Basic Shiksha Adhikari had passed the
order
dated
13.1.2012,
which
was
dispatched on 16.1.2012, rejecting the
petitioners' request with regard to selection
of two Assistant Teachers, but had
permitted the selection for the post of Head
Master
by
taking
fresh
steps
for
advertisement etc. subject to restriction of
observance of Teacher's Eligibility Test and
other
directions
and
notifications
of
National Council for Teacher Education.
The said order was never challenged by the
petitioners. In due deference of the order
passed by this Court on 29.2.2012 in Writ -
A No.75497 of 2011, the Basic Shiksha
Adhikari nominated Sri Jagdish Kumar
Srivastava,
Khand
Shiksha
Adhikari,
Bhagya Nagar, Auraiya as observer in the
selection committee.

12. Thereafter, petitioner no.1 filed
another
writ
petition
being
Writ-A
No.16973 of 2012 before this Court at
Allahabad against nomination of the
observer and for payment of salary to the
alleged selected Head Master and the
Assistant Teachers. However, the said writ
petition was dismissed by this Court vide
order dated 5.4.2012. This Court took note
of the fact that the Basic Shiksha Adhikari
had only nominated the Khand Shiksha
Adhikari, Bhagya Nagar as his nominee to
the selection committee to be constituted
for appointment on the post of Head Master
of the institution and, therefore, no
interference was called for at that stage. It
was further said that as and when the
selection process would get completed and
papers forwarded to the Basic Shiksha
Adhikari for approval, the Basic Shiksha
Adhikari would examine all aspects of the
mater for approving or disapproving the
2 All. C/M Sri Shanker Junior High School & Ors. Vs. State of U.P. & Ors.
881
selection. The order dated 5.4.2012 reads as
under:-

"Heard learned counsel for the
petitioner, learned counsel for the District
Education Officer and learned Standing
Counsel for the State-respondents.

Under
the
order
impugned,
the
District Basic Education Officer has only
nominated the Khand Shiksha Adhikari,
Bhagyanagar as his nominee to the
Selection Committee to be constituted for
appointment on the post of headmaster of
the institution.

No interference at this stage of the
proceedings is called for. As an when,
selection process is completed and papers
are forwarded to the District Basic
Education Officer for approval, petitioner
will have every opportunity to question the
said selection on the ground that the
selection has not been made by the
competent Committee of Management. It is
for the District Basic Education Officer to
examine all aspect of the mater while
approving
or
disapproving
the
said
selection.

The present writ petition is dismissed
subject to the observations made above."

13. In compliance of the order dated
5.4.2012 passed by this Court in the
aforesaid writ petition, the Basic Shiksha
Adhikari vide order dated 5.5.2012 rejected
the financial approval for disbursing the
salary to petitioners no.2 and 3. On the
basis of the report of the Observer, the
Basic Shiksha Adhikari held that the
advertisement was not issued as per the
provisions of Rules, 1978. The minimum
experience for appointment on the post of
Head Master was five years and not three
years and the age was 30 years and not 25
years. The committee of management had
not submitted any experience certificate,
which was taken into consideration in the
interview held on 8.4.2012 nor experience
of the candidates was mentioned by the
committee of management in its report.

14. It was further said by the Basic
Shiksha Adhikari that for appointment on
the post of Assistant Teacher, only nine
applications were received till the last date
of applications, however, in the interview
held on 8.4.2012, it was said that 19
applications were received. It was held by
the Basic Shiksha Adhikari that if on the
last date of submission of application
forms,
only
nine
applications
were
received, then how on the date of interview,
there could be 19 application forms and,
therefore, the whole selection was bogues
and suspicious one. Three candidates,
namely, Vaibhav Pandey, Arti Pandey and
Savita Kumari had made available the
letters for interview received by them, in
which only the blank paper was kept inside
the envelop. It was further said that under
Right to Education Act, 2009, National
Council for Teacher Education had made
compulsory for Teachers to be appointed
for Class-I to VIII, vide notification dated
23.8.2010 that a candidate must possess
minimum
qualification
plus
Teachers
Eligibility Test conducted by the State
Government. Two Teachers appointed did
not possess the Teachers Eligibility Test
and, therefore, finding that the selection
and appointment of the Head Master, two
Assistant Teachers and one Peon was
against the Rules, 1978, the Basic Shiksha
Adhikari declined the financial approval for
the said appointments.

15. It is also said that the committee
of management received a letter dated
30.4.2013 sent by the Basic Shiksha
Adhikari on 3.5.2013 to note that the Basic
Shiksha Adhikari had appointed Kaushal
882 INDIAN LAW REPORTS ALLAHABAD SERIES
Kishore Trivedi, opposite party no.5 on the
post of Head Master, Saurabh Kumar
Pandey and Km. Beena, opposite parties
no.6 and 7 as Assistant Teachers and gave
approval. The allegation is that the said
appointment was made in the office of the
Basic Shiksha Adhikari with the collusion
of Sri Jagdish Kumar Srivastava, Khand
Shiksha Adhikari. The committee of
management, however, did not issue
appointment letters to the aforesaid alleged
selection of opposite parties no.5, 6 and 7
by the Basic Shiksha Adhikari. Further, the
Basic Shiksha Adhikari forcibly gave
joining to opposite party no.5 on the post of
Head Master and opposite parties no.6 and
7 on the posts of Assistant Teacher
respectively.

16. It is also said that one Mohan Lal
Dubey, resident of Village Darashah, Post
Sahar, District Auraiya sent a complaint
regarding the alleged selection made by the
Basic Shiksha Adhikari of opposite parties
no.5, 6 and 7 in the school to the Regional
Assistant Director of Education (Basic),
Kanpur Region, Kanpur. The Regional
Assistant Director of Education (Basic)
vide letter dated 8.8.2013 directed the
Basic Shiksha Adhikari to produce the
entire record pertaining to the aforesaid
alleged selection held on 21.4.2013 by him.

17. When despite several complaints
regarding alleged forged appointments
made by the Basic Shiksha Adhikari of
opposite parties no.5, 6 and 7, did not yield
any result, petitioner no.1 filed a detailed
complaint
before
the
Secretary
of
Education (Basic), Uttar Pradesh, Lucknow
with copy to the Director of Education
(Basic), opposite party no.2.

18. When no action was taken on the
complaint
regarding
alleged
illegal
appointments of opposite parties no.5, 6
and 7, petitioner no.1 filed Writ Petition
No.6877 (SS) of 2018 before this Court.
This Court disposed of the said writ
petition vide order dated 13.3.2018 with
direction to the Director of Education
(Basic) as well as Secretary of Education
(Basic), U.P., Lucknow to look into the
issue and pass appropriate order strictly in
accordance with law by providing an
opportunity of hearing to the aggrieved
persons expeditiously, say, within a period
of four months. Petitioner no.1 was given
liberty to provide copy of other documents
and also list of aggrieved persons to the
competent authority so that disposal of the
representation dated 8.1.2018 of petitioner
no.1 would be made strictly in accordance
with law by following the principles of
natural justice to all the parties concerned.
In compliance of the order dated 13.3.2018
passed by this Court in the aforesaid writ
petition, the Director of Education (Basic)
decided the representation of the petitioner
no.1 vide detailed impugned order dated
3.12.2018.

19. The Director of Education (Basic)
held that vide letter dated 5.5.2012 issued
by the Basic Shiksha Adhikari, Auraiya,
the committee of management of the school
was given permission for issuing new
advertisement for filing up the said posts.
In pursuance thereof, interviews were held
on 21.4.2013 and Sri Jagdish Kumar
Srivastva, Khand Shiksha Adhikari was
present as observer in the proceedings for
selection held on 21.4.2013 and he made
signature on the selection proceedings.
Manager and members of the committee of
management and the candidates earlier
selected by the committee of management
had made complaints about the said
selection and it was said that the selection
proceedings were sham and a mere
2 All. C/M Sri Shanker Junior High School & Ors. Vs. State of U.P. & Ors.
883
formality and the papers were prepared in
the office of the Basic Shiksha Adhikari.
Considering the said complaint, the Basic
Shiksha Adhikari, Auraiya was directed to
make
available
the
original
documents/minutes
of
proceedings
of
selection held in pursuance to the interview
held on 21.4.2013.

20. From perusal of the original
papers in respect of the alleged selection, it
transpired that in the proceedings, which
were made available in respect of the
proposal etc. by the Manager, Shiv Prakash
Dubey on 13.4.2012 in the office of the
Basic Shiksha Adhikari, Auraiya, the
signatures
in
the
said
papers
were
completely different from the signatures on
the papers earlier sent regarding selection
in the office of the Basic Shiksha Adhikari.
The Manager, Shiv Prakash Dubey had
filed an affidavit and said that the
selections
made
subsequently
were
completely forged and forged signatures
were made on the selection proceedings.
Sri Rakesh Bihari Shukla, another member
of the selection committee, in his affidavit
had specifically said that his signatures
were forged in the proceedings of selection
held by the Basic Shiksha Adhikari. There
were quite difference in the selection
proceedings of 2011 and 2012 and it was
said that, prima facie, the proceedings of
selection sent on 13.4.2012 appeared to be
forged.

21. It was said that approval for
selection and appointment made on the
basis of forged proceedings sent vide the
letter dated 13.4.2012 of Kaushal Kishore
Tripathi on the posts of Head Master and
Saurabh Kumar Pandey and Km. Beena on
the post of Assistant Teacher were result of
the forged documents, for which concerned
Prabudh Kumar, Dealing Clerk, Sri Jagdish
Kumar Srivastava, the then Khand Shiksha
Adhikari and the observer and the Basic
Shiksha Adhikari were found completely
guilty.

22. So far as the selection and
appointment of petitioner nos.2 and 3 made
by the committee of management in
pursuance to the proceedings held without
permission by advertising the same on
12.10.2011 in Swatantra Bharat newspaper,
it was said that the said selection
proceedings were not in accordance with
the provisions of the Act and the Rules and
it was held so by this Court in judgment
and order dated 29.2.2012 passed in Writ-A
No.75497 of 2011 and, therefore, the same
was declared illegal. The Director found
that for giving financial approval to the
appointments of petitioner no.2 on the post
of Head Master and petitioner no.3 and
Maneesh Kumar on the post of Assistant
Teacher was not possible under law.

23. In view thereof, the Director was
of the view that appointment of Kaushal
Kishore Tripathi on the post of Head
Master and Saurabh Kumar Pandey and
Km. Beena on the posts of Assistant
Teacher and for their payment of salary
was not possible and for making selection
and appointment on the basis of forged
papers, he held Prabudh Kumar, Dealing
Clerk, Jagdish Kumar Srivastava, then then
Khand Shiksha Adhikari and observer and
Manoj Kumar Gupta, Basic Shiksha
Adhikari found guilty and directed for
placing
them
under
suspension
and
institution
of
disciplinary
proceedings
against them.

24. Sri Pt. S. Chandra, learned
counsel for the petitioners submits that
petitioners no.2 and 3 were appointed
following due process of law as envisaged
884 INDIAN LAW REPORTS ALLAHABAD SERIES
in Rules, 1978 and their appointments were
deemed
to have been
approved
on
5.1.2012.
He
further
submits
that
petitioners no.2 and 3 are continuously
discharging their duties w.e.f. 24.12.2011
and 28.12.2011
receptively.
He
also
submits that petitioners no.2 and 3 were
fully eligible and qualified for the posts of
Head Master and Assistant Teacher. It is
further submitted that the impugned orders
are wholly illegal and unsustainable. It is
also submitted that vide notification dated
5.12.2012, Rules of 1978 were amended,
whereby the requiremenet of qualifying the
Teachers Eligibility Test has been made
compulsory
for
the
appointment
of
Assistant
Teacher
(Basic).
The
said
notification had come into force w.e.f.
1.7.2012. It is further submitted that all
relevant documents pertaining to the
selection of petitioners no.2 and 3 were
sent by petitioner no.1 to the Basic Shiksha
Adhikari on 14.11.2011. As per Rule
10(5)(iii) of Rules, 1978, if the Basic
Shiksha Adhikari does not take decision to
approve the appointments, the same would
be deemed to have been approved after 30
days. This Court vide judgement and order
dated 5.4.2012 gave direction to the Basic
Shiksha Adhikari to take decision for
approval, but nothing was done by the
Basic Shiksha Adhikari and instead he
adopted forged and fabricated selection
process in his office for making selection
and appointment of opposite parties no.5, 6
and 7. It is, therefore, submitted that writ
petition may be allowed and the opposite
parties be directed to grant financial
approval to the appointments of petitioners
no.2 and 3 from the date of their joining in
the institution.

25. In support of his submission,
learned counsel for the petitioners has
placed reliance on the judgment rendered in
the case of Sanjay Kumar Singh vs. State
of U.P. and others, 2019 (5) ADJ 583
(LB).

26. On the other hand, Sri Ashutosh
Shukla, learned Standing Counsel and Sri
Ajay Kumar, learned counsel for opposite
parties no.3 and 4 have supported the
impugned orders and has submitted that
this Court in its judgment and order dated
29.2.2012 passed in Writ-A No.75497 of
2011 did not find the claim of the
petitioners for financial approval as valid
and, therefore, directed for nomination of a
person as contemplated under Rule 9 of
Rules, 1978 to be the member of the
selection committee. Once this Court itself
did not find selection held valid and
directed
Basic
Shiksha
Adhikari
for
nominating a person in the selection to be
held
afresh
after
issuing
fresh
advertisement, the financial approval can
not be granted in pursuance to the earlier
selection, which was not in accordance
with law. It is further submitted that this
Court in subsequent order dated 5.4.2012
passed in Writ-A No.16973 of 2012 did not
find any ground to interfere with the
nomination of Khand Shiksha Adhikari,
Bhagyanagar, Auraiya as nominee in the
selection committee to be constituted for
appointment on the posts of Head Master
and Assistant Teacher and, it was said that
the Basic Shiksha Adhikari would examine
the selection process for giving approval or
disapproval after selection. It is further
submitted that once this Court has directed
that their selection is invalid, there is no
question of granting approval to the earlier
selection inasmuch the same was cancelled
vide order dated 5.5.2012 by the Basic
Shiksha
Adhikari,
which
was
never
challenged before this Court by the
petitioners except in the present writ
petition.
2 All. C/M Sri Shanker Junior High School & Ors. Vs. State of U.P. & Ors.
885

27. It is further submitted that
Director had considered the order dated
5.5.2012 passed by the Basic Shiksha
Adhikari in his order dated 3.12.2018
impugned in this writ petition. The Director
has found that the order dated 5.5.2012 was
in accordance with law. The said order
dated 5.5.2012 was passed by the Basic
Shiksha Adhikari in compliance of the
order dated 29.2.2012 passed in Writ-A
No.75497 of 2011. The selection and
appointment of the teaching and nonteaching staff of the school is required to be
made strictly in accordance with the
provisions of Rules, 1978 as well as, as per
the relevant extant Government Orders. It
is also submitted that in the letter dated
24.4.2011 allegedly written by petitioner
no.1 seeking permission for advertisement
and demand of observer, there were
cuttings and erasing in the sanctioned posts,
as such the same was being got verified,
but before the said exercise could get
completed, petitioner no.1 illegally selected
and appointed petitioners no.2 and 3 and
submitted
their
papers
for
financial
approval.

28. It is also submitted that as per
Rule 4(2)(iii) of Rules, 1978, in which fifth
amendment was made in the year 2008,
minimum five years
experience was
required for the post of Head Master in
place of three years teaching experience.
The minimum age of the Head Master has
been provided as 30 years in place of 25
years,
but
in
the
alleged
interview
proceedings dated 8.4.2012, no documents
regarding experience had been enclosed.

29. It is further submitted that till the
last date of receipt of applications, only
nine application forms were received,
however, in the interview, it was said that
19 application forms were received. The
Director has found substance in the
allegations that three candidates, namely,
Vaibhav Pandey, Arti Pandey and Savita
Kumari
vide
letter
dated
29.3.2012
informed that they had received the
registered envelop dated 24.3.2012 sent by
the institution having blank papers. It is
further submitted that under the Right to
Education Act, 2009, National Counsel for
Teacher Education had issued notification
dated 23.8.2010 for having the minimum
eligibility criteria for the Teachers of ClassI to VIII to qualify the Teachers Eligibility
Test conducted by the State Government. It
is further submitted that petitioner no.1 had
selected and appointed ineligible persons
on the post of Head Master and Assistant
Teacher and Class-IV employee and,
therefore, financial approval has not been
granted.

30. Once the Director has held that
appointments of Kaushal Kishore Tripathi
on the post of Head Master and Saurabh
Kumar Pandey and Km. Beena on the post
of Assistant Teachers were on the basis of
forged documents in the institution and the
selection of these candidates was made in
collusion and conspiracy with the Basic
Shiksha Adhikari, Dealing Clerk and
Khand Shiksha Adhikari, the Basic Shiksha
Adhikari had cancelled the selection of
such persons and disciplinary proceedings
have been initiated against the guilty
officials. Therefore, submission is that
petitioners no.2 and 3 are not eligible to be
appointed and before the
sanctioned
strength could be verified, in a hurried
manner, the advertisement was issued. The
advertisement is also illegal inasmuch as it
did not contain the details of the post,
qualification,
eligibility
criteria,
experience, pay scale and the place of
interview etc. It is submitted that correct
decision has been taken for not granting the
886 INDIAN LAW REPORTS ALLAHABAD SERIES
financial approval and this Court may not
grant any indulgence in this writ petition.

31. I have considered the submissions
advanced on behalf of the learned counsel
for the petitioners as well as by the learned
counsel for the opposite parties and perused
the record.

32. It is not in dispute that the Junior
High School in question is governed under
the provisions of Act, 1972 and the Rules
framed thereunder as well as the provisions
of Uttar Pradesh Junior High School
(Payment of Salaries of Teachers and Other
Employees) Act, 1978 and the provisions of
Rules, 1978. The State Government has
framed Rules in pursuance to the powers
vested under Section 19 of the Act, 1972,
which are called "Uttar Pradesh Basic
Education (Teachers) Service Rules, 1981".

33. Rule 4 of the Rules, 1978 provides
the minimum qualification for the post of
Assistant Teacher and Head Master of a
recognized School, which reads as under :-

"4. Minimum qualification. - (1) The
minimum qualifications for the post of
Assistant Teacher of a recognised school
shall be a Graduation Degree from a
University recognised by U.G.C., and a
teachers training course recognized by the
State Government or U.G.C. or the Board as
follows :-

1. Basic Teaching Certificate.

2. A regular B.Ed. degree from a duly
recognized institution.

3. Certificate of Teaching.

4. Junior Teaching Certificate.

5. Hindustani Teaching Certificate.

(2) The minimum qualifications for the
appointment to the post of head master of a
recognized school shall be as follows -

(a) A degree from a recognized
University or an equivalent examination
recognized as such.

(b)
A
teacher's
training
course
recognized by the State Government or
U.G.C. or Board as follows :-

1. Basic Teaching Certificate.

2. A regular B.Ed. degree from a duly
recognized Institution.

3. Certificate of Teaching;

4. Junior Teaching Certificate.

5. Hindustani Teaching Certificate.

(c) Five years teaching experience in a
recognized school]."

34. It is also important to note here
that how the advertisement has to be
published. Rule 7 of Rules, 1978 provides
the procedure for issuing advertisement,
which reads as under :-

"7. Advertisement of vacancy. -[(1)
No vacancy shall 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 the school is situated.]

(2)
In
every
advertisement
and
intimation
under
clause
(1),
the
Management shall give particulars as to
the name of the post, the minimum
qualifications
and
age-limit,
if
any,
prescribed for such post and the last date
for receipt of applications in pursuance of
such advertisement."

35. From perusal of Rule 7 of Rules,
1978, it is evident that Rule 7(2) provides
that the advertisement for the post shall
give particulars as to the name of the post,
the minimum qualifications and age-limit,
if any, prescribed for such post and the last
date for receipt of applications in pursuance
of such advertisement. The advertisement
as noted above, does not satisfy the
2 All. C/M Sri Shanker Junior High School & Ors. Vs. State of U.P. & Ors.
887
conditions of Rule 7 of Rules, 1978. If the
advertisement is defective, it is sufficient to
cancel the selection and for not giving
approval to the appointment made in
pursuance
to
such
a
defective
advertisement.

36. The defect in advertisement would
be fatal in selection proceedings. The law is
well settled that a defective advertisement
may preclude the eligible candidates from
applying
for
selection.
A
valid
advertisement
ensure
the
recruitment
process as it enable the eligible candidates
to participate in the selection. In case such
eligible candidates are prevented from
participating in the selection due to the
defect in the advertisement, the selection
proceedings would stand vitiated.

37. When the statute provides for
issuing advertisement in a particular
manner and the advertisement has not been
issued in compliance of the said statutory
prescription,
the
selection
made
in
pursuance
to
the
said
defective
advertisement would get vitiated.

38.

From
perusal
of
the
advertisement, it would be evident that
the advertisement was not issued for
making selection from the most eligible
candidates, but an information was
published for holding the interview. Such
advertisement is wholly defective and
cannot be considered to be issued in
accordance with requirement of Rule 7 of
Rules, 1978. It is also relevant to note
here
that
requirement
is
that
the
advertisement should be issued in two
newspapers
having
wide
circulation.
Newspaper, Dainik Dinrat, wherein the
advertisement was also issued along with
advertisement
in
Swatantra
Bharat
virtually has no circulation. Thus, the
advertisement was highly defective on
this
ground
also
inasmuch
the
advertisement was not issued in two
newspapers having wide circulation.

39. U.P. Basic Education (Teachers)
Service
Rules,
1981
provides
the
essential qualification for appointment of
the Head Master of a Junior High School.
Minimum age for appointment on the
post of Assistant Teacher and the Head
Master is provided under Rule 8 of the
Rules, 1978, which reads as under:-

"8. Age limit. - The minimum age
shall on the first day of July of the
academic year following next after the
year in which the advertisement of the
vacancy is made under Rule 7 be :

(1) In relation to the post of an
Assistant Teacher 21 years.

(2) In relation to the post of Head
Master 30 years.]"

40. It is also important to note here
that after coming into force the Right to
Education Act, 2009, National Council for
Teacher Education had issued notification
dated 23.8.2010 for providing the minimum
eligibility criteria for the Teachers of ClassI to VIII as well as requirement of
quantifying the Teacher's Eligibility Test
conducted by the State Government.