# Sant Ram v. State of U.P. & Ors

- **Citation:** (2021) 2 ILRA 756
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-21
- **Case number:** Service Single No. 2207 of 2013
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sant-ram-v-state-of-u-p-ors-46802
- **Pages:** 6

## Headnote

C.S.C., Arvind Kumar Misra, Jyoti Sikka,
Rajendra
Pratap
Singh,
Rajiv
Singh
Chauhan, Surendra Pratap Singh

A. Civil Law- U.P. Basic Schools (Junior
High School) (Recruitment and Conditions
of Services of Teachers) Rules, 1978 -
Rules 7, 8, 9 and 10 - Appointment on
Teacher
post
-
Selection
process
-
Deemed Approval - Paper sent after
selection - No order of District Basic
Education Officer - Effect - District Basic
Education Officer (DBEO) did not pass any
order within a period of one month, the
selection made on the post of Assistant
Teacher or Head Master shall be deemed
to be approved. (Para 24)
B. Service Law - Appointment on Teacher
post - Selection - Complaint by third
person - Re-advertisement - Validity -
Mala fide of District Basic Education
Officer (DBEO) - Held, Only to dislodge
the claim of the petitioner of deemed
approval, a concocted story has been
framed by the DBEO - DBEO appears to be
interested in selection of complainant -
Finding returned by the DBEO in this
regard, held, perverse in nature and not
liable to be sustained. (Para 31, 33 and
35)
Writ Petition allowed .(E-1)

## Text

756 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)02ILR A756
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.01.2021

BEFORE

THE HON'BLE IRSHAD ALI, J.

Service Single No. 2207 of 2013

Sant Ram ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Prem Shanker Pandey

Counsel for the Respondents:
C.S.C., Arvind Kumar Misra, Jyoti Sikka,
Rajendra
Pratap
Singh,
Rajiv
Singh
Chauhan, Surendra Pratap Singh

A. Civil Law- U.P. Basic Schools (Junior
High School) (Recruitment and Conditions
of Services of Teachers) Rules, 1978 -
Rules 7, 8, 9 and 10 - Appointment on
Teacher
post
-
Selection
process
-
Deemed Approval - Paper sent after
selection - No order of District Basic
Education Officer - Effect - District Basic
Education Officer (DBEO) did not pass any
order within a period of one month, the
selection made on the post of Assistant
Teacher or Head Master shall be deemed
to be approved. (Para 24)
B. Service Law - Appointment on Teacher
post - Selection - Complaint by third
person - Re-advertisement - Validity -
Mala fide of District Basic Education
Officer (DBEO) - Held, Only to dislodge
the claim of the petitioner of deemed
approval, a concocted story has been
framed by the DBEO - DBEO appears to be
interested in selection of complainant -
Finding returned by the DBEO in this
regard, held, perverse in nature and not
liable to be sustained. (Para 31, 33 and
35)
Writ Petition allowed .(E-1)
(Delivered by Hon'ble Irshad Ali, J.)

1. Heard learned counsel for the
petitioner, learned standing counsel for
respondent No.1, Sri Rajiv Singh Chauhan,
learned counsel for respondent Nos.2 & 3
and Sri Rajendra Pratap Singh, learned
counsel for respondent Nos.4 & 5.

2. By means of present writ petition,
the petitioner is challenging the order dated
04.03.2013,
whereby
his
claim
for
appointment on the post of Assistant
Teacher (Scheduled Caste) as well as claim
for payment of salary has been rejected.

3. Brief fact of the case is that there is
an institution in the name of Janta Nimna
Madhyamik Vidyalaya, Byoli, Islamabad,
District Unnao, which is recognized under
the provisions of U.P. Basic Education Act,
1972 and is receiving grant in aid from the
State Government, thus, the provisions of
U.P. Junior High School (Payment of
Salaries of Teachers and other Employees)
Act, 1978 as well as the provisions of The
U.P. Recognised Basic Schools (Junior
High
Schools)
(Recruitment
And
Conditions Of Service Of Teachers) Rules,
1978 are applicable to the said institution.

4. In the institution, there are six
sanctioned posts of Assistant Teachers
including the post of Head Master. Two
teachers namely Ram Khelawan and Jagat
Narayan retired from service on attaining
the age of superannuation on 30.06.2001
and
30.06.2007,
respectively.
The
committee of management filled aforesaid
two vacancies under the category of Other
Backward Class (OBC) and Scheduled
Caste (SC) and requested to the District
Basic Education Officer (for short, 'DBEO')
2 All. Sant Ram Vs. State of U.P. & Ors.
757
for grant of prior approval to initiate
selection proceeding vide letter dated
23.07.2009 in view of the provisions
contained under Rule 7(3) of the amended
Rules of 1978.

5. The DBEO granted permission to
issue advertisement inviting applications
from eligible and qualified candidates. In
compliance of the order of DBEO,
vacancies
were
advertised
in
two
newspapers inviting applications from
eligible and qualified candidates in the year
2009
fixing
date
for
interview
on
25.10.2009.

6. Several candidates under OBC
category as well as Scheduled Castes
Category applied for in pursuance to the
advertisement
issued.
The
selection
committee selected to Sri Saurabh Kumar
under OBC Category and Sri Santram
under Scheduled Castes Category on the
basis of quality point marks.

7. Papers were submitted before the
DBEO for grant of approval to the selection
on 28.10.2009. The DBEO accorded
approval to the appointment made under
OBC category and rejected the appointment
made under Scheduled Castes Category
vide letter dated 11.11.2009 on the ground
that the appointment was not in accordance
with law.

8. In pursuance to the order of DBEO,
vacancies were re-advertised on 17.12.2009
inviting applications for selection under
Scheduled
Castes
Category.
The
advertisement is part of the writ petition as
annexure-5.
In
pursuance
to
the
advertisement, seven candidates applied
including the petitioner and the selection
committee selected the petitioner and
placed him at serial No.1 under Scheduled
Castes Category.

9. The papers were submitted for
approval as required under Rule 10 before
the DBEO on 18.01.2010. The DBEO did
not pass
the
order disapproving
or
approving the selection neither raised any
objection in regard to the selection for a
period of one month.

10. In the meantime, a complaint was
lodged by one Ramesh Chandra on
29.12.2009 before the DBOE to the effect
that the committee of management without
permitting him to participate in the
selection proceeding has proceeded to
make selection in a wholly illegal and
arbitrary manner.

11. The complaint was entertained
and by means of order dated 25.10.2010,
the DBEO rejected the selection proceeding
holding that no information in regard to
selection was given to him. The proceeding
was initiated in a wholly illegal and
arbitrary manner and candidature of the
complainant Ramesh Chandra has illegally
been not considered.

12. The order passed by the DBEO
was subject matter of challenge in Writ
Petition No.8082 of 2010 and after hearing
the parties, the writ petition was allowed
vide judgment and order dated 07.08.2012
holding that the order has been passed in
utter disregard of principles of natural
justice and remanded the matter back to the
DBEO for reconsideration and to pass
appropriate order.

13. In compliance of the judgment
and order passed by this court on
07.08.2012, the DBEO passed an order on
758 INDIAN LAW REPORTS ALLAHABAD SERIES
04.03.2013, whereby the claim setup by the
petitioner has been rejected.

14. Assailing the impugned order,
submission of learned counsel for the
petitioner
is
that
in
the
second
advertisement, applications were invited
afresh from all eligible candidates, who
were interested in applying the same. There
was no stipulation in the advertisement that
candidates, who were part of the first
selection proceeding are required not to
submit the application form.

15. He submitted that the complainant
- Ramesh Chandra did not apply in
pursuance to the fresh advertisement
issued, therefore, the complaint lodged by
him was not entertainable and the DBEO
without considering this aspect of the
matter, has proceeded to pass the order.

16. His next submission is that after
recommendation
of
the
selection
committee, the committee of management
submitted
papers
vide
letter
dated
18.01.2010, which was duly received in the
office of DBEO and in view of Rule 10 of
Rules of 1978, the selection was deemed to
be approved under the rules after lapse of
one month's period. Therefore, it was not
left open to the DBEO to pass the
impugned order rejecting the selection of
the petitioner.

17. His further submission is that it
has been admitted that papers were
received
on
18.01.2010,
which
was
returned by three objections but in the
submission, there is no recital of date on
which the papers were returned. This
clearly demonstrates the ill will of the
DBEO in passing the impugned order
taking shelter that the selection has not
been deemed to be approved.

18. On the other hand, learned
standing counsel and Sri R.P. Singh,
learned counsel for the committee of
management submitted that the order
passed by the DBEO does not suffer from
any infirmity or illegality and is just and
valid. They further submitted that the
DBEO
returned
the
papers
to
the
committee of management with three
objections on 24.02.2010, therefore, the
provisions of deemed approval is not
applicable to the facts and circumstances of
the case of the petitioner.

19. In regard to submission advanced
by learned counsel for the petitioner that
Ramesh
Chandra
did
not
apply
in
pursuance to the second advertisement, no
objection has been made by learned
counsel for the respondents in this regard.

20. I have considered the submissions
advanced by learned counsel for the parties
and perused the material on record.

21. To resolve the controversy in
hand, the provisions contained under
relevant rules of The U.P. Recognised
Basic Schools (Junior High Schools)
(Recruitment And Conditions Of Service
Of Teachers) Rules, 1978 are being quoted
below:

"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
2 All. Sant Ram Vs. State of U.P. & Ors.
759
for receipt of applications in pursuance of
such advertisement.

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.] [9.
Selection Committee. - For appointment of
Headmaster and Assistant Teacher in
institutions other than minority institutions
and in the minority institutions, tire
Management shall constitute a Selection
Committee as follows :] A - Institutions
other than Minority Institutions :

(i) For the post of headmaster :

(1) Manager;

(2) a nominee of the District Basic
Education Officer;

(3) a nominee of the Management;

(ii) For the post of Assistant Teacher;

(1) Manager;

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

(3) a nominee of the District Basic
Education Officer;

B - Minority Institutions :

(i) For the post of Headmaster;

(1) Manager;

(2) two nominees of Management;

(ii) For the post of Assistant Teacher;

(1) Manager;

(2) Headmaster of the recognised
school in which the appointment is to be
made;

[(3) A specialist in the subject
nominee by the District Basic Education
Officer.]

10. Procedure for selection. - (1) The
Selection
Committee
shall,
after
interviewing such candidates as appear
before it on a date to be fixed by it in this
behalf, of which due intimation shall be
given to all the candidates, prepare a list
containing as far as possible the names, in
order of preference, of three candidates
found to be suitable for appointment. (2)
The list prepared under clause (1) shall
also contain particulars regarding the date
of birth, academic qualifications and
teaching experience of the candidates and
shall be signed by all the members of the
Selection Committee. (3) The Selection
Committee shall, as soon as possible,
forward such list, together with the minutes
of the proceedings of the Committee to the
management. (4) The Manager shall within
one week from the date of receipt of the
papers under clause (3) send a copy of the
list to the District Basic Education Officer.
(5) (i) If the District Basic Education
Officer is satisfied that -

(a) the candidates recommended by
the Selection Committee possess the
minimum qualifications prescribed for the
post;

(b) the procedure laid down in these
rules for the selection of Headmaster or
Assistant Teacher, as the case may be, has
been followed he shall accord approval to
the
recommendations
made
by
the
Selection
Committee
and
shall
communicate
his
decision
to
the
Management within two weeks from the
date of receipt of the papers under clause
(4).

(ii) If the District Basic Education
Officer is not satisfied as aforesaid, he
shall return the papers to the Management
with the direction that the matter shall be
reconsidered by the Selection Committee.

(iii) If the 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
recommendations made by the Selection
Committee."
760 INDIAN LAW REPORTS ALLAHABAD SERIES

22. On perusal of the aforesaid rules
and material on record, it is reflected that
requirement of prior approval as per
Section 7 was taken from the DBEO and
then
the
committee
of
management
proceeded to advertise the vacancy in the
news paper inviting applications from
eligible and qualified candidates.

23. In regard to selection made
against the scheduled caste category, there
is no challenge on the rejection order by the
DBEO directing re-advertisement and to
invite
the
application
afresh.
The
committee of management complied the
order of the DBEO and re-advertised the
vacancy inviting applications from eligible
and qualified candidates belonging to
scheduled caste category.

24.

The
selection
committee
constituted under Rule 9 of the Rules of
1978
selected
the
petitioner
and
recommended for appointment to the
committee of management after taking
approval from the DBEO. The committee
of management submitted the entire papers
before the DBEO on 18.01.2010. Under
Rule 10(5) of Rules of 1978, it has been
provided that in case the DBEO did not
pass any order within a period of one
month, the selection made on the post of
Assistant Teacher or Head Master shall be
deemed to be approved.

25. Therefore, the selection of the
petitioner is deemed to be approved on
17.10.2010 in view of non passing of any
order of approval or disapproval on the
proposal of the committee of management
neither raising objection by the DBEO in
regard to the selection made.

26. The committee of management
issued appointment letter to the petitioner
and in pursuance thereof the petitioner is
discharging duties in the institution without
salary from the State Exchequer.

27. On perusal of the impugned order,
it is reflected that entire proceeding has
been initiated on the complaint lodged by
Ramesh Chandra that he has not been
permitted to participate in the selection
proceeding.

28. On perusal of the record, it is
evident that it is not his case that he has
applied in pursuance to the second
advertisement issued for selection under
Scheduled Caste Category, therefore, this
court has no hesitation to hold that the
complaint lodged by Ramesh Chandra was
not entertainable and the the DBEO for the
reasons best known to him has entertained
the same and has cancelled the selection.

29. On perusal of the impugned order,
it is apparent that the objection is that the
candidates who have appeared in the earlier
selection proceeding would have been
intimated in regard to interview fixed on
30.12.20009 and due to non furnishing
information,
the
selection
proceeding
vitiates in law.

30. In this regard, on the said
objection, I have perused the order of
DBEO, whereby direction was issued to
readvertise the vacancy and to invite the
applications afresh.

31. In pursuance to the order of
DBEO, fresh advertisement was issued
inviting application from open market.
Under the advertisement, it was not
provided that the candidates who have
applied in the earlier selection proceeding,
are not required to submit application
afresh, therefore, the finding returned by
2 All. Mahendra Kumar Gautam Vs. State of U.P. & Ors.
761
the DBEO in this regard is perverse in
nature and cannot be sustained.

32. The second objection that Ramesh
Chandra who was candidate of earlier selection
proceeding was not informed in regard to
interview scheduled to be held on 30.12.2009.
This objection is also wholly irrelevant and in
this regard sufficient reasons have been
assigned in the above referred paragraphs of the
judgment.

33. On perusal of next objection, it is
evident that the DBEO appears to be interested
in selection of Ramesh Chandra, therefore,
without going through the earlier order of
cancellation of advertisement and to make fresh
selection against the scheduled caste vacancy,
has proceeded to record perverse and illegal
finding that Ramesh Chandra was entitled for
consideration for selection in the fresh selection
proceeding although he did not apply in
pursuance to the second advertisement.

34. In regard to last objection, it reveals
that similar reasons have been assigned that the
petitioner - Santram was not liable to be issued
appointment letter by Manager of the institution
on 08.03.2010. In this regard, I have perused
the contents of the writ petition made in
paragraph-11, which recites that the committee
of
management
submitted
papers
on
18.01.2010. Reply to the same has been given
in paragraph-11 of the counter affidavit and in
paragraph-10 of the supplementary counter
affidavit, which admits that papers were
received in the office of DBEO on 18.01.2010
but without any material on record it has been
stated that same were returned to the Manager
of the institution without disclosing any date.

35. To meet out ends of justice, I have
perused the order, which was passed earlier on
24.02.2010, annexed at page-58, wherein it
has been admitted that letter dated 18.01.2010
was made available to the office of DBEO on
27.02.2010. It clearly demonstrates that the
statement made in paragraph-11 of the counter
affidavit and page - 10 of supplementary
counter affidavit do not corroborate with the
letter dated 24.02.2010 and it appears that only
to dislodge the claim of the petitioner of
deemed approval, a concocted story has been
framed by the DBEO. If this was the position,
then clear cut statement of fact would have
been made in the statement given along with
counter affidavits. Thus, the claim setup by the
DBEO in the counter affidavits is not
acceptable in law.

36. Accordingly, the impugned order
dated 04.03.2013 suffers from apparent
illegality and cannot be sustained and is hereby
quashed.

37. The writ petition succeeds and is
allowed.

38. The DBEO, District Unnao is directed
to pay the petitioner regular monthly salary
month by month forthwith as well as arrears of
salary w.e.f. 12.03.2010 till date within a period
of three months from the date of production of a
certified copy of this order.
----------
(2021)02ILR A761
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.02.2021

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Service Single No. 2842 of 2021

Mahendra Kumar Gautam ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sameer Kalia, Abhishek Yadav