# Prabhu Dayal v. Sate of U.P. and Ors

- **Citation:** (2013) 2 ILRA 1012
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-07-12
- **Case number:** Service Single No. 4407 of 2008
- **Bench:** Devendra Kumar Upadhyaya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prabhu-dayal-v-sate-of-u-p-and-ors-42535
- **Pages:** 7

## Headnote

'D' Employees)Rules 1984- Rule 14 & 15Payment of salary on post of junior
clerk-admittedly no approval granted by
Basic Education Officer as yet-hence no
question of appointment-moreover as
per Rule 14 selection Committee not
properly
constituted-in
absence
of
export
nominated
by
BEO-selection
process and as well as appointment both
illegal-petition
dismissed-liberty
to
complete fresh selection process in
accordance with law given within 3
month.

Held: Para-19 & 20

## Text

1012 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Judge Special Judge (E.C. Act), Jhansi in
criminal revision no.249 of 2011, the
consequential summoning order dated
1.12.2012 as well as order dated 3.4.2013
issuing non-bailable warrants against the
accused persons passed by Chief Judicial
Magistrate, Jhansi in complaint case no.
9946 of 2010 are quashed and the matter
is
remanded
to
learned
Additional
Sessions Judge / Special Judge (E.C. Act),
Jhansi for a fresh decision. Learned
Additional Sessions Judge shall direct the
complainant to implead the accused
persons in the revision and notices will be
issued to them and the revision shall be
disposed of in accordance with law after
giving an opportunity of hearing to all the
accused persons irrespective of the fact
that they have filed writ petitions and
application u/s 482 Cr.P.C. before this
Court or not.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.07.2013

BEFORE
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.

Service Single No. 4407 of 2008

Prabhu Dayal

 ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri S.C. Verma, Sri Ajay Sharma
Sri Pradeep Singh

Counsel for the Respondents:
C.S.C., Sri Prashant Arora

U.P. Recognized & Basic School,(Junior
High School)(Recruitment and Condition
of Service of Ministerial Staff and Group
'D' Employees)Rules 1984- Rule 14 & 15Payment of salary on post of junior
clerk-admittedly no approval granted by
Basic Education Officer as yet-hence no
question of appointment-moreover as
per Rule 14 selection Committee not
properly
constituted-in
absence
of
export
nominated
by
BEO-selection
process and as well as appointment both
illegal-petition
dismissed-liberty
to
complete fresh selection process in
accordance with law given within 3
month.

Held: Para-19 & 20
19. The presence of three members of
the Selection Committee as envisaged
under Rule 14 of the Service Rules is
mandatory
in
nature.
Presence
or
absence of either of the members of the
Selection Committee may change the
very colour of the selection, hence, I am
of the considered opinion that in absence
of specialist to be nominated by the
District Basic Education Officer in the
Selection Committee, any selection made
by the such a Selection Committee
cannot be termed to be legal and
therefore, any recommendation made by
such a Selection Committee cannot be
legally permitted to be given effect to.

20. Further, any appointment based on
the
recommendation
made
by
the
Selection Committee can be made only
once it is approved by the District Basic
Education Officer as per requirement
contained in Rule 15 (5) of the Service
Rules.
Appointment
letter
by
the
appointing authority can be issued under
the
direction
of
the
District
Basic
Education Officer only once he accords
his approval to the selection proceedings
undertaken by the Selection Committee.
Any deviation of the procedure laid down
under Rule 15 of the Service Rules will
not
be
in
conformity
with
the
requirement
of
the
Rules,
hence
selection and appointment both will be
vitiated.

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.)
2 All] Prabhu Dayal Vs. Sate of U.P. and Ors.
1013

1. Heard Sri Ajay Sharma, learned
counsel
for
the
petitioner,
learned
Standing Counsel for opposite party No.1
and Sri Prashant Arora, learned counsel
appearing for District Basic Education
Officer, Hardoi.

2. Under challenge in the instant
writ petition is an order dated 31.10.2007,
passed by the District Basic Education
Officer, Hardoi whereby representation
made by the petitioner for payment of
salary on the post of clerk in Jan Shyogi
Sardar Patel Junor High Court, Selapur,
Hardoi (herein after referred to an
'Institution') has been rejected. The said
order has been passed in compliance of
the order dated 13.09.2007, passed in an
earlier writ petition filed by the petitioner
bearing Writ Petition No. 5478 (SS) of
2007, Prabhu Dayal Vs. State of U.P. and
other.

3. Submission of learned counsel for
the petitioner is that the petitioner's
appointment on the post of clerk in the
institution was made in accordance with
rules and regarding the approval of his
appointment, which was sought, the
District Basic Education Officer sat tight
over the matter and ultimately did not
accord his approval, therefore, in terms of
the provisions contained in Rule 15 (5)
(iii) of the U.P. Recognised Basic Schools
(Junior High Schools)(Recruitment &
Conditions of Service of Ministerial Staff
& Group 'D' Employees) Rules, 1984
(hereinafter referred to 'Service Rules'), it
is a case of deemed approval of the
selection
and
appointment
of
the
petitioner, hence, he is entitled to be paid
salary.

4. Learned counsel for the petitioner
submits that on occurrence of substantive
vacancy of clerk in the institution, the
Management of the Institution made a
request to the District Basic Education
Officer by means of letter dated 16.2.2005
seeking
his
permission
to
publish
advertisement for initiating selection
process to fill up the said vacancy. The
District Basic Education Officer in reply
to the aforesaid letter 16.02.2005 appears
to have intimated to the Management of
the Institution that fresh appropriate
proposal for filling up post in question be
sent to him. Learned counsel for the
petitioner thereafter submits that since no
permission to advertise the post was being
given and the work of the Institution was
suffering as such, in the exigency of
work, the Management of the Institution
issued
advertisement
on
04.05.2006
inviting
applications
from
eligible
candidates to participate in the selection
for the post of clerk and accordingly the
selection was held on 13.06.2006 in
which, as per evaluation made by the
selection
committee,
name
of
the
petitioner was kept at Sl. No. 3 in the
order of merit. Learned counsel for the
petitioner has submitted that a request was
made to the District Basic Education
Officer for according his approval to the
appointment of the petitioner and for
according financial sanction for payment
of salary vide letter dated 19.06.2006. He
further submits that on 09.08.2006,
appointment order was issued pursuant to
which petitioner submitted his joining in
the Institution on 14.08.2006.

5. However, the District Basic
Education Officer by means of order
dated 05.09.2006 sent back the papers
submitted by the Management of the
Institution
seeking
approval
of
the
selection/appointment of the petitioner
stating therein the certain reasons.
1014 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

6. Petitioner thereafter appears to
have filed a writ petition bearing No.
5478 (SS) of 2007 which was finally
disposed of by means of order dated
13.09.2007 directing the District Basic
Education Officer, Hardoi to decide
representation of the petitioner which was
made by him in respect of his grievance
pertaining to approval of his appointment
and payment salary. In compliance of the
aforesaid order of this Court dated
13.09.2007, the impugned order rejecting
the claim of the petitioner has been passed
by the District Basic Education Officer on
31.10.2007.
It
is
this
order
dated
31.10.2007, passed by the District Basic
Education
Officer
which
has
been
assailed by the petitioner by way of filing
instant writ petition.

7. As observed above, learned counsel
for the petitioner has empathetically stated
that it was a case of deemed approval as
contemplated in Rule 15 (5) (iii) of the U.P.
Recognised Basic Schools (Junior High
Schools)(Recruitment &
Conditions
of
Service of Ministerial Staff & Group 'D'
Employees) Rules, 1984 and hence the
rejection of claim of the peittioner by District
Basic Education Officer is not justified.

8. Per contra, Sri Prashan Arora,
learned
counsel
for
District
Basic
Education Officer has categorically stated
that the entire selection process adopted
by the Management of the Institution was
carried out in derogation and disregard of
the provisions of the Service Rules in as
much
as
the
Selection
Committee
constituted for the purposes of making
selection was not in terms of the
provisions contained in Rule 14 of the
Service Rules. Drawing attention of this
Court to Rule 14 of the Service Rules, Sri
Arora has stated that Selection Committee
as contemplated under Rule 14 of the
Service Rules is to consist of (1)
Manager, (2) Head Master of the
Institution concerned and (3) Specialist to
be nominated by the District Basic
Education Officer. He further stated that
in the instant case Selection Committee,
admittedly,
did
not
have
specialist
nominated by the District Basic Education
Officer as provided under Rule 14 of the
Service Rules, hence any selection made
by such a Selection Committee which
admittedly was not constituted as per
Service Rules cannot be permitted to be
given effect to.

9.

The
aforesaid
categorical
assertion made by learned counsel for the
District Basic Education Officer has not
been denied by the learned cousnel for the
petitioner. Thus, there is no dispute that
Selection Committee which conducted the
selection
in
which
petitioner
was
recommended/appointed on the post in
question did not consist of specialist to be
nominated by the District Basic Education
Officer.

10. Learned counsel for the
petitioner, however, has stated that
despite several requests made to the
District Basic Education Officer specialist
was not nominated by him and hence,
Committee
of
Management
of
the
Institution was left with no other option
but to proceed with the selection in
absence of specialist to be nominated by
the District Basic Education Officer and
hence in this view of the matter no fault
can be found in the selection of the
petitioner.

11. Having considered the respective
arguments raised by the learned counsel
appearing for the parties, two issues
2 All] Prabhu Dayal Vs. Sate of U.P. and Ors.
1015
which emerge for adjudication are that (a)
as to whether in absence of specialist to
be nominated by the District Basic
Education Officer as member in the
Selection Committee, selection in which
the petitioner has been declared to be
successful can be said to be lawful and (b)
as to whether for the reason that decision
of the District Basic Education Officer on
the selection of the petitioner was not
communicated within the time stipulated
under the Rules, it was a case of deemed
approval of the District Basic Education
Officer and if so, whether the petitioner
shall be entitled to be paid salary.

12. Service conditions including the
appointment of non-teaching staff in a
recognized Junior High School are
governed by the Service Rules 1984. The
Service
Rules
prescribes
detailed
procedure for selection and appointment.
It
further
prescribes
minimum
qualification, eligibility of appointment,
age, nationality, reservations and physical
fitness etc. According to Rule 13 of the
Service Rules, no vacancy can be filled in
except after advertisement in at least one
newspaper having adequate circulation in
the locality and the intimation of such
vacancy to the District Basic Education
Officer.

13. Rule 14 of the Service Rules
provides for constitution of Selection
Committee which is as under:-

"Selection
Committee.-
The
management shall constitute a selection
committee consisting of :-

(1)Manager.

(2)Headmaster of the recognized
school in which the appointment is to be
made.

(3)A specialist nominated by the
District Basic Education Officer who will
be from amongst minority in respect of a
school established and administered by a
minority or from amongst Scheduled
Castes in respect of any other school."

14. Rules 15, however, provides that
Selection
Committee
shall,
after
interviewing such candidates, prepare a
list containing the names of three
candidates in order of preference who are
found to be suitable for appointment and
thereafter the list so prepared along with
other relevant papers is required to be
forwarded
to
the
Committee
of
Management. The Management thereafter
is required to send copy of select list to
the District Basic Education Officer
within one week from date of receipt of
the papers from the Selection Committee.

15. Sub Rule (5) of Rule 15 of the
Service Rules further provides that if the
District Basic Education Officer is
satisfied that the candidates recommended
by the Selection Committee possess the
minimum qualifications prescribed for the
post and also that procedure laid down in
the Service Rules for the selection has
been followed, he is required to accord his
approval to the recommendation made by
the Selection Committee. Thereafter, the
District Basic Education Officer is
required to communicate his decision to
the Management within two weeks from
the date of receipt of the papers from the
Management of the Institution. Thus, any
selection in a recognized Junior High
School on a clerical post or Group "D post
can be given effect to only after approval
of the District Basic Education Officer as
per requirement of Sub-Rule (5) of Rule
15 of the Service Rules as mentioned
above.
1016 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

16. Rule 15 (5) (ii) of the Service
Rules further provides that if the District
Basic Education Officer is not satisfied ,
he shall return the papers to the
Management with the direction that the
matter shall be reconsidered by the
Selection Committee. Rule 15 (5) (iii) of
the Service Rules, hovever, further
provides that in case 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 recommendation made by
the Selection Committee.

17.

The
first
question
for
consideration is as to whether the
Selection Committee, which conducted
the selection in which petitioner has been
declared successful, can be said to be
appropriately or legally constituted.

18. From a perusal of the provisions
contained in Rule 14 of the Service Rules
quoted above, it is clear that Selection
Committee is to consist of (1) Manager,
(2) Headmaster and (3) Specialist to be
nominated by the District Basic Education
Officer. It may be noticed that Committee
of Management may have in the instant
case made request to the District Basic
Education Officer to nominate specialist
for the purposes of constitution of
Selection Committee and the District
Basic Education Officer may not have
performed his obligation to nominate the
specialist but in absence of specialist to be
nominated by the District Basic Education
Officer as a member of the Selection
Committee,
the
constitution
of
the
Selection Committee in the instant case
cannot be said to be legal i.e. as per the
provisions of Rule 14 of the Services
Rules.

19. The presence of three members
of the Selection Committee as envisaged
under Rule 14 of the Service Rules is
mandatory in nature. Presence or absence
of either of the members of the Selection
Committee may change the very colour of
the selection, hence, I am of the
considered opinion that in absence of
specialist to be nominated by the District
Basic Education Officer in the Selection
Committee, any selection made by the
such a Selection Committee cannot be
termed to be legal and therefore, any
recommendation
made
by
such
a
Selection Committee cannot be legally
permitted to be given effect to.

20. Further, any appointment based on
the recommendation made by the Selection
Committee can be made only once it is
approved by the District Basic Education
Officer as per requirement contained in Rule
15 (5) of the Service Rules. Appointment
letter by the appointing authority can be
issued under the direction of the District
Basic Education Officer only once he
accords his approval to the selection
proceedings undertaken by the Selection
Committee. Any deviation of the procedure
laid down under Rule 15 of the Service Rules
will not be in conformity with the
requirement of the Rules, hence selection and
appointment both will be vitiated.

21. In the instant case, there is no
denial of the fact that District Basic
Education Officer has not accorded his
approval to the selection held by the
Selection
Committee
and
therefore,
issuance of appointment letter in favour of
petitioner on 09.08.2006 cannot be held to
be lawful.

22. As far as the plea being taken by
the learned counsel for the petitioner to
2 All] Prabhu Dayal Vs. Sate of U.P. and Ors.
1017
the effect that since the decision by the
District Basic Education Officer on the
papers
sent
by
the
Committee
of
Management relating to selection in which
petitioner was declared successful, was not
communicated
to
the
Committee
of
Management of the Institution within one
month from the date of receipt of papers by
him, the selectee i.e. petitioner will be
deemed to have been accorded approval by
the District Basic Education Officer and as
such the appointment of the petitioner cannot
be faulted, it would suffice to say that
aforesaid provision of deemed approval in
case of non-communication of the decision
of the District Basic Education Officer shall
be applicable only once the selection has
been held appropriately, lawfully and as per
Rules.

23. Admittedly, in the instant case,
the very constitution of the Selection
Committee which held the selection in
which petitioner was declared successful
was not as per the provisions contained
under Rule 14 of the Service Rules. Thus,
the question to application of deeming
fiction regarding deemed approval of the
selection of the petitioner by District
Basic Education Officer, in the instance
case, does not arise at all.

24. In view of the aforesaid facts and
circumstances of the case as also in light of
the observations and discussions made
above, the Court is of the considered opinion
that selection and appointment of the
petitioner cannot be held to be lawfull being
in complete derogation of the provisions of
the Service Rules. The writ petition, thus
lacks merit and as such the same deserves to
be dismissed.

25. Accordingly, writ petition is
hereby dismissed.

26. However, it is directed that
selection on the post of clerk in the
Institution shall be held within a period of
four months from the date a certified copy of
this order is produced before the Committee
of Management of the Institution as well as
before the District Basic Education Officer,
Hardoi. It is further directed that District
Basic Education Officer shall nominate the
specialist for the purposes of formation of
Selection Committee as contemplated under
Rule 14 of the U.P. Recognized Basic
Schools (Junior High Schools)(Recruitment
& Conditions of Service of Ministerial Staff
& Group 'D' Employees ) Rules 1984 within
a period of one week from the date such a
request is received by him from the
Committee of Management. The Committee
of Management shall advertise the post as
per requirement of Rule 13 of the Services
Rules simultaneously with moving its
application to the District Basic Education
Officer for nomination of the specialist for
the purposes of formation of Selection
Committee. After conclusion of formalities
selection to the post in question will be
completed within four months, as directed
above.

27. At this juncture, Sri Prashant
Arora, learned counsel for District Basis
Education Officer has submitted that the
State Government has issued a Government
Order dated 15.03.2012 whereby fresh
appointments have been prohibited.

28. A perusal of the Government
Order dated 15.03.2012, however, reveals
that such prohibition is not operative in
case selection/appointment is to be made
under the orders of this Court. Thus, so
far
as
instant
case
is
concerned,
Government Order dated 15.03.2012 does
not have any applicability.
---------
1018 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
ORIGINAL JURISDICTION
CIVIL- SIDE
DATED: ALLAHABAD 09.07.2013

BEFORE
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Contempt Application No.4930
of 2012

Vandhana Singh & Ors.
 ...Petitioner
Versus
Javed Usmani, Chief Secretary & Ors.

 ...Respondents

Counsel for the Petitioner:
Sri Subedar Mishra, Sri S.K. Mishra

Counsel for the Respondents:
Sri R.B. Pradhan(Addl. C.S.C.)

Contempt of Court, 1971-Section12- willful
disobedience-petitioner working as project
officer-after
abolition
of
Scheme-on
humanitarian ground-give appointment on
post of L.T. Grade Teacher-writ petition
decided
by
common
judgment
dated
05.04.2002-SLP against also dismissed-by
further order government propose to give
appointment on post of L.T. grade giving
pay
protection-objection
that
as
per
direction of Court pay protection as well
status not given-held-if in compliance of
judgment any order passed-can not be
willful disobedience-validity of such order
can be adjudged by writ court and not
under
contempt
jurisdiction-application
rejected.

Held: Para-9
In the present case, the direction issued by
the Division Bench of this Court, affirmed by
the Hon'ble Apex Court was to reconsider
the feasibility of protection of pay and
status of the applicants. On an analysis of
the entire facts and circumstances as well
as decision taken by the State Government
in compliance of the order, this Court finds
that the order passed by the Division Bench
has been complied in letter and spirit and it
cannot be said to be a merely eyewash in
order to wriggle out of the contempt
proceeding. In so far as the legality and
merits of the order on various grounds
urged on behalf of the applicants, it is not
for this Court to enter into the same.
Needless to say that in such a situation the
remedy
of
the
applicants
lies
by
undertaking appropriate proceeding before
appropriate forum.

(Delivered by Hon'ble Krishna Murari, J.)

1. Heard learned counsel for the
applicants and learned Standing Counsel for
the opposite parties.

2. This application under Section 12
of the Contempt of Courts Act has been
filed alleging will disobedience of the
judgment and order dated 5.4.2002 passed
on writ petition no. 18619 of 2001 as well
as leading writ petition no. 12879 of 2001
along with other connected writ petitions.

3. Undisputed facts are that a nonformal educational scheme was introduced
by the Central Government in the year 197980 for imparting education to children in the
age group 6 to 14 who either did not attend
any school or left the studies before
completing primary education. The scheme
was implemented in the State of U.P. under
the Director of Education (Basic), U.P. In
order to successful run the scheme, certain
posts including the post of Supervisor were
created at various levels. Later on in the year
1987-88, the scheme was modified and it
was given shape of a project and in order to
meet the requirements of the project, which
came to be known Non-formal Education
Project, various posts including the post of
Project
Officer
was
created
by
the
Government Order dated 30.3.1988. Since
the project itself was temporary in nature, the
Government Order visualized that all posts
should be temporary and liable to be