# Committee of Management of Pandit Ram Dev Mishra Intermediate College Khaptiha, District Allahabad v. State and another

- **Citation:** (2009) 2 ILRA 384
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-05-08
- **Case number:** Civil Misc. Writ Petition No. 24290 of 2009
- **Bench:** Vineet Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/committee-of-management-of-pandit-ram-dev-mishra-intermediate-college-khaptiha-41493
- **Pages:** 4

## Headnote

of Teachers)Rules 1978-Rule 9-after
retirement of one Assistant Teacher-
management send information seeking
permission to hold selection and to get
the nominee of Basic Education Officer -
Refusal even after the direction of Courtunfortunate- G.O. relied by the BSA
already quashed- can not be defence to
BSA-
held-
to
give
permission
by
forthwith
along
with
one
nomineedirector to call explanation from erring
officer.

Held: Para 10-

Since the order has been passed in the
teeth of the judgement of this Court
passed in the case of Committee of
management of Vishva Nath Vidyalaya
Mundera, Allahabad (supra), which has
also been noticed by the Zila Basic
Shiksha Adhikari in its order dated
17.02.2009 but he has refused to comply
with the direction issued by this Court, it
is directed that a copy of this judgment
2 All] C/M, Pt. Ram Dev Mishra Intermediate College V. State of U.P. and another
385
be sent to the Directorate of Education
(Basic) who shall call for an explanation
from the Zila Basic Shiksha Adhikari,
Allahabad, respondent no. 2 for referring
the matter to the State Government
despite the directions of this Court
having
been
issued
whereby
the
conditions laid down in the Government
Order dated 20.01.2003 for seeking
approval of the State Government had
been set aside.
Case Law discussed:
(2008) 3 UPLBEC 2876

## Text

384 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
of the said order on the ground that there
was no occasion for the petitioner to file
the revision, as he was satisfied with the
Consolidation and secondly, there was no
occasion for the Deputy Director of
Consolidation to have reversed the said
position to the detriment of the petitioner
and to the complete advantage of the
contesting respondent no. 2.

6. Sri J.C. Chandel has urged that
the said findings have been recorded by
the Deputy Director of Consolidation
after perusing the records and they are
findings of fact, which should not be
interfered with under Article 226 of the
Consolidation.

7. It is apparent that the real issue is
as to whether the petitioner had endorsed
his signature or thumb impression on the
order-sheet or on the memo of revision as
recorded by the Deputy Director of
Consolidation. The said issue could only
have been decided after verifying the
same and the Deputy Director of
Consolidation should not have acted as a
handwriting expert. Reference may be had
to the decision in the case of Ram Sukh
Vs. Sughara and others reported in 2000
R.D. (91) 155 Para 7. In view of this it
was incumbent upon the Deputy Director
of Consolidation to have got the signature
not done so, the Deputy Director of
Consolidation has committed a patent
error by recording his conclusions without
completing the formalities of evidence in
this regard.

8. Accordingly, the order dated
7.11.2008 is unsustainable and is set
aside. The matter stands remitted back to
the Deputy Director of Consolidation for
decision afresh in the light of the
observations made here in above. The
Writ petition is allowed. No order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.05.2009

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 24290 of 2009

Committee of Management of Pandit
Ram Dev Mishra Intermediate College
Khaptiha, District Allahabad...Petitioners
Versus
State and another
...Respondents

Counsel for the Petitioner:
Sri L.K. Dwivedi

Counsel for the Respondents:
S.C.

U.P. Recognised Basic School (Junior
High School Recruitment and Condition
of Teachers)Rules 1978-Rule 9-after
retirement of one Assistant Teacher-
management send information seeking
permission to hold selection and to get
the nominee of Basic Education Officer -
Refusal even after the direction of Courtunfortunate- G.O. relied by the BSA
already quashed- can not be defence to
BSA-
held-
to
give
permission
by
forthwith
along
with
one
nomineedirector to call explanation from erring
officer.

Held: Para 10-

Since the order has been passed in the
teeth of the judgement of this Court
passed in the case of Committee of
management of Vishva Nath Vidyalaya
Mundera, Allahabad (supra), which has
also been noticed by the Zila Basic
Shiksha Adhikari in its order dated
17.02.2009 but he has refused to comply
with the direction issued by this Court, it
is directed that a copy of this judgment
2 All] C/M, Pt. Ram Dev Mishra Intermediate College V. State of U.P. and another
385
be sent to the Directorate of Education
(Basic) who shall call for an explanation
from the Zila Basic Shiksha Adhikari,
Allahabad, respondent no. 2 for referring
the matter to the State Government
despite the directions of this Court
having
been
issued
whereby
the
conditions laid down in the Government
Order dated 20.01.2003 for seeking
approval of the State Government had
been set aside.
Case Law discussed:
(2008) 3 UPLBEC 2876

(Delivered by Hon'ble Vineet Saran, J.)

1. Heard Sri L.K. Dwivedi, learned
counsel for the petitioner 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 30.06.2008, 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') provides for appointment of
Headmaster and Assistant Teacher. As per
Rule 3, it is the responsibility 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 advertisement 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 recognised school and
a nominee of District Basic Education
Officer.

3. After the vacancy occurred on
28.08.08, the petitioner wrote to the Zila
Basic
Shiksha
Adhikari,
Allahabad,
respondent no. 2 for grant of permission
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 Vs.
State of U.P.), which was disposed of on
03.12.2008 with the directions 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 17.02.2009 has been passed by the
Zila Basic Siksha Adhikari, Allahabad has
been passed by the Zila Basic Siksha
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.

4. The sole ground taken in the
impugned
order
for
denying
such
permission is a Government Order dated
20.01.2003
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 Vs.
386 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
State of U.P., (2008) 3 UPLBEC 2876,
wherein it has been held that "District
Basic Education Officer is enjoined upon
to provide nominee in case there exists
vacancy and some has to be filled up in
terms of 1978 Rules. Government Order
dated 21.02.2003 in the fact of the present
case is uncalled for inasmuch as 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 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."

5. After holding the provision for
taking prior approval from the State
Government in the said Government
Order as ultra vires the provision
contained 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.

6. In the present case, although the
Zila Basic Shiksha Adhikari has noticed
the aforesaid decision passed in the case
of Committee of Management of Vishva
Nath Vidyalaya, Mundera, Allahabad
(supra) but has stated that the 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.

7. It is very surprising that even after
the provision of obtaining prior approval
provided for in Government Order dated
20.1.2003 has been held to be ultra vires
by this Court in the case of Committee of
Management of Vishva Nath Vidyalaya,
Mundera, Allahabad (supra), still the Zila
Basic
Shiksha
Adhikari
even
after
noticing the said judgement of this Court,
does not honour the same and states that it
is the State Government alone which can
modify or amend the order, meaning
thereby that the order of this High Court
is not to be given effect until the same
gets
the
approval
of
the
State
Government. Such stand of the Zila Basic
Shiksha Adhikari is very unfortunate as it
is in total disregard of the directions
issued by this Court.

8. In the facts and circumstances of
this case since the Zila Basic Shiksha
Adhikari is obliged under law (Rule 9 of
1978 Rules) to send a nominee for the
selection of Assistant Teacher in nongovernment aided institution, it is directed
that the respondent no. 2, the Zila Basic
Shiksha Adhikari shall forthwith grant
permission to the petitioner to advertise
the post for filling up the vacant post of
Assistant Teacher in their college within
three weeks from the date of filing of a
certified copy of this order and send a
nominee for selection of the Assistant
Teacher on the dated fixed for such
selection. It is, however, provided that at
the time of according approval, the Zila
Basic Shiksha Adhikari, Allahabad shall
2 All] Neeraj Kumar Pandey V. The High Court Judicature at Allahabad and others
387
ensure that only such person is appointed
as Assistant Teacher, who is eligible as
per law.

9. Accordingly, the impugned order
dated 17.02.2009 passed by the Zila Basic
Shiksha Adhikari, respondent no. 2 is
hereby quashed and this writ petition
stands allowed with the directions given
hereinabove.

10. Since the order has been passed
in the teeth of the judgement of this Court
passed in the case of Committee of
management of Vishva Nath Vidyalaya
Mundera, Allahabad (supra), which has
also been noticed by the Zila Basic
Shiksha Adhikari in its order dated
17.02.2009 but he has refused to comply
with the direction issued by this Court, it
is directed that a copy of this judgement
be sent to the Directorate of Education
(Basic) who shall call for an explanation
from the Zila Basic Shiksha Adhikari,
Allahabad, respondent no. 2 for referring
the matter to the State Government
despite the directions of this Court having
been issued whereby the conditions laid
down in the Government Order dated
20.01.2003 for seeking approval of the
State Government had been set aside.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.05.2009

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No.22335 of 2009
AND
Civil Misc. Writ Petition No. 22368 of 2009

Neeraj Kumar Pandey
 ...Petitioner
Versus
The
High
Court
of
Judicature
at
Allahabad and others
...Respondents

Counsel for the Petitioner:
Sri Pankaj Kumar Srivastava

Counsel for the Respondents:
Sri Amit Sthalekar

Constitution
of
India
Art.
226Deputation-
petitioner
a
senior
administrative officer- challenged the
order passed by district Judge Mathura-
refusing consent for appointment on
deputation keeping in view of decision of
Administrative Committee of High Court-
held-deputanist has no right to claim the
post on deputation-being subordinate to
High Court-District Judge rightly refused
to grant permission.

Held: Para 10

In the present case, the petitioner's
employer i.e. District Judge, Mathura has
refused to accord consent on the basis of
policy decision taken by the High Court,
and hence in the absence of the consent
of his employer, the petitioner cannot
claim
as
of
right
much
less
a
fundamental right for appointment to a
post under Debt Recovery Tribunal,
Chandigarh on deputation. The petitioner
being an employee of district judgeship
subordinate to and under control of the
High Court, is bound by the policy
decision taken by the High Court in its