# Shailendra Pratap Singh v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 475
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-30
- **Case number:** Writ A No. 6879 of 2012
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shailendra-pratap-singh-v-state-of-u-p-ors-52127
- **Pages:** 13

## Headnote

A. Service Law - UP Recognised Basic
Schools
(Junior
High
Schools)
(Recruitment of Conditions of Service of
Ministerial Staff and Group D Posts), Rules
1984 - Rule 14 - Selection - Post of Clerk
- Constitution of three members Selection
Committee - Third member i.e. Specialist
was appointed by two other members of
the Selection Committee, not by the
Committee of Management - Effect - Held,
appointment of third member, made by the
remaining two members, but not by
Committee, vitiates the constitution of the
selection committee. (Para 30 and 31)

B. Service Law - UP Recognised Basic
Schools
(Junior
High
Schools)
(Recruitment of Conditions of Service of
Ministerial Staff and Group D Posts), Rules
1984 - Rule 15(5)(iii) - Appointment -
Post of Clerk - Appointment was made
without waiting one month period - Effect
- Held, Rule 15(5)(iii) provides that if, the
DBEO does not communicate his decision
on the due intimation by the Committee of
Management, within one month form 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 - High Court held
the appointment made not in-consonance
with Rules 15(5)(iii). (Para 30 and 31)

C. Service Law - Upgradation of the
institution from Junior High School to High
School/Intermediate College - Whether
Intermediate
Education
Act,
1921
is
applicable or Rules of 1984 - Held, the
institution in question is covered with the
provisions of the Act, 1921 - Manju
Awasthi's case relied upon - Basic Siksha
Adhikari
cannot
exercise
any
administrative control over the institution,
except to the extent of payment of salary.
(Para 32 and 33)

Writ petition dismissed. (E-1)

List of Cases cited:

## Text

_Characters 0–39,820 of 44,455. This is a partial read: ask again with offset=39820 for what follows._

5 All. Shailendra Pratap Singh Vs. State of U.P. & Ors.
475

22. No order as to costs.
----------
(2024) 5 ILRA 475
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.05.2024

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Writ A No. 6879 of 2012

Shailendra Pratap Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
G.C. Verma, Sharad Pathak

Counsel for the Respondents:
C.S.C., Anurag Kumar Singh, P.C. Chauhan,
Pradeep Kumar Singh Bisen

A. Service Law - UP Recognised Basic
Schools
(Junior
High
Schools)
(Recruitment of Conditions of Service of
Ministerial Staff and Group D Posts), Rules
1984 - Rule 14 - Selection - Post of Clerk
- Constitution of three members Selection
Committee - Third member i.e. Specialist
was appointed by two other members of
the Selection Committee, not by the
Committee of Management - Effect - Held,
appointment of third member, made by the
remaining two members, but not by
Committee, vitiates the constitution of the
selection committee. (Para 30 and 31)

B. Service Law - UP Recognised Basic
Schools
(Junior
High
Schools)
(Recruitment of Conditions of Service of
Ministerial Staff and Group D Posts), Rules
1984 - Rule 15(5)(iii) - Appointment -
Post of Clerk - Appointment was made
without waiting one month period - Effect
- Held, Rule 15(5)(iii) provides that if, the
DBEO does not communicate his decision
on the due intimation by the Committee of
Management, within one month form 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 - High Court held
the appointment made not in-consonance
with Rules 15(5)(iii). (Para 30 and 31)

C. Service Law - Upgradation of the
institution from Junior High School to High
School/Intermediate College - Whether
Intermediate
Education
Act,
1921
is
applicable or Rules of 1984 - Held, the
institution in question is covered with the
provisions of the Act, 1921 - Manju
Awasthi's case relied upon - Basic Siksha
Adhikari
cannot
exercise
any
administrative control over the institution,
except to the extent of payment of salary.
(Para 32 and 33)

Writ petition dismissed. (E-1)

List of Cases cited:

1. Dhirendra Pratap Singh Vs St. of UP & ors.;
2019 (7) ADJ 250 (LB)

2. Special Appeal No. 667 of 2014; St. of UP
through Principal Secretary Vs Pravin Kumar
Mishra & anr. decided on 07.03.2018

3. Ramesh Singh Vs St. of U.P.; (2020) 5 SCC 677

4. Manju Awasthi & ors. Vs St. of U.P. & ors.;
Manu/UP/3739/2012

5.St. of U.P. & ors.Vs District Judge, Varanasi &
ors.; 1981 SCC OnLine All 279

6. Dr. (Smt.) Sushila Gupta Vs The Joint Director
of Education, Kanpur & ors.; (2005 SCC OnLine
All 1183)

7. Standard Intermediate College Mau-Aima &
ors. Vs St. of U.P. & ors. (MANU/UP/2108/2019)

8. Rakesh Chandra Sharma Vs St. of U.P. & ors.;
2001 (1) UPLBEC 131

9. Sharda Prasad Yadav & ors.Vs District
Inspector of Schools, Deoria & ors.; 2002 (49)
ALR 800
476 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri G. C. Verma, learned
counsel for the petitioner, Sri Ran Vijay
Singh, learned counsel for the respondent
no.2, Sri Anurag Kumar Singh, learned
counsel for the respondent no. 4, i.e.,
Committee of Management, Sri Shailendra
Kumar Singh, Chief Standing Counsel, Sri
Vivek Shukla, additional chief standing
counsel and Sri Piyush Kumar, learned
Standing Counsel for the State.

2. Vide the instant petition, a challenge
is made to the order dated 13.9.2012 passed
by the District Basic Education Officer,
Pratapgarh.

3. Factual matrix of the case is that a
post of clerk became vacant due to
retirement of regular clerk, namely, Mohan
Lal Sharma in the Uchchatar Madhyamik
Vidyalaya,
Para
Hamidpur Pratapgarh
(hereinafter referred to as 'the institution'),
on 30.9.2011. Thereafter, the then Manager
of the Committee of Management moved an
application on 4.11.2011, to the District
Basic
Education
Officer
(hereinafter,
referred to as 'DBEO') for granting
permission for filling up the post of Clerk.
On such application, the 'DBEO' granted
permission and, thereafter, the post of Clerk
(Class-III) was advertised in the newspaper
as per the provisions of UP Recognised
Basic Schools (Junior High Schools)
(Recruitment of Conditions of Service of
Ministerial Staff and Group D Posts), Rules
1984 (hereinafter referred to as 'the Rules
1984').
The
qualification
and
other
description as an eligibility criterion, was
also mentioned in the advertisement and on
30.11.2011, the Manager i.e opposite party
no.4 sent a letter to the 'DBEO' for
providing Observer on 4.12.2011, i.e., the
date fixed for interview but the same
remained unheard. Again on 27.12.2011, a
letter
was
sent
for
providing
Observer/Nominee for 1st of January 2012
and in response, after the expiry of the
aforesaid date, the DBEO informed to the
opposite party no.5 that since, assembly
election
is
notified,
therefore,
the
appointment process would be conducted
after the election is denotified. After the
election was over again, the date of
interview was fixed on 1st of April 2012 and
it was intimated by the opposite party no.4,
vide letter dated 3.3.2012 to the DBEO and,
thereafter,
on
29.3.2012,
28.6.2012,
11.7.2012 and 24.7.2012, the same request
was repeated before the DBEO while fixing
the dates for interview but, ultimately, when
the Entire effort went unsuccessful, the
interview was held on 29.7.2012 and the
selection so made was placed before the
Committee of Management, who sent the
papers before the opposite party no.2 for
approval, which was received in the office
of opposite party no.2, on 14.8.2012, which
is undisputed fact.

4. Thereafter, on 13.9.2012, after
expiry of period of one month, the
appointment letter was issued to the
petitioner, while following the provisions of
Rule 15 (5) (iii) of the Rules, 1984, which
says about the deemed approval after expiry
of period of one month. After the letter was
issued
on
14.9.2012,
the
petitioner
submitted his joining on 20.9.2012 and he
was allowed to join and was permitted to
work since, 19.9.2012. On 13.9.2012, the
impounded order was passed by the opposite
party no. 2/DBEO and request for the
approval of the appointment of the petitioner
was rejected precisely, on the ground that
the appointment of the petitioner is done by
an
unlawfully
constituted
selection
committee.
5 All. Shailendra Pratap Singh Vs. State of U.P. & Ors.
477

5. Contention of the learned counsel
for the petitioner is that there is no dispute
that a substantive vacancy arose on the
retirement of regular Clerk, Mohan Lal
Sharma and, thereafter, the Manager, i.e.,
opposite party no.4, sent several letters,
started from the month of November, 2011
till July 2012, wherein the repeated request
was made for appointment of nominee. In
response, only one letter is sent by opposite
party no.3, i.e. dated 6.1.2012, whereby, he
has directed that the nominee will be
provided after finalization of the Assembly
election and once the Assembly election was
over, five letters were written to the opposite
party no.2, with the request to provide a
nominee, but no response was given.

6. He further argued that looking into
the exigency of the services of the Clerk in
the institution, under the compelling
circumstances, the selection was held by a
duly
constituted
selection
committee,
comprises of three members wherein, the
then Manager, Head Master of the school
and one other member was nominated by the
Committee of Management, when no
nominee was sent by opposite party no. 2, as
per the provisions of Rule 14 of the Rules,
1984, and two members, i.e., the Manager
and the Head Master, were present in
selection committee and the Manager, who
is one of the members, is of Scheduled Caste
Category. Adding his arguments, he submits
that time and again, in several verdicts, this
Court has held that if out of three members,
two were present in selection, the selection
would be valid.

7. Further contention of counsel for the
petitioner is that the Government Order
dated 24.11.2001 provides that where, the
aided Junior High School upgraded to High
School/Intermediate
(Un-aided),
the
administrative control of DBEO would
remain continue for the Junior High School
including the payment of salary and
subsequently, the said Government order is
also considered while another order dated
09.05.2022 is issued.

8. In support of his contention, He has
placed reliance on a judgement reported in
2019 (7) ADJ 250 (LB), Dhirendra Pratap
Singh Vs. State of UP and others, and has
referred paras 10 to 12 of the above said
judgement. Paras 10 to 12 are extracted as
under:-

"10. Learned counsel for the
petitioner has also submitted that in the
instant case, one nominee was sought from
the office of the District Basic Education
Officer for making selection on the post in
question, but said nominee was not sent and
the selection exercise was completed in
absence of the nominee of the District Basic
Education Officer. Learned counsel for the
petitioner has cited judgment of this Court
rendered in a batch of writ petitions, leading
Writ Petition No. 5118 (S/S) of 2016, Sanjay
Kumar Singh v. State of U.P. and others,
MANU/UP/5726/2018 : 2019 (5) ADJ 583
(LB). In para-24 of the aforesaid judgment,
it has been observed as under:

"(24) On overall consideration of
the respective arguments advanced by the
learned counsel for the parties, it is crystal
clear that the main issue in rejecting the
approval is that the nominee of the District
Basic Education Officer was not present in
the Selection Committee and in his absence,
the Selection Committee was permitted to
conclude the selection proceeding. It is
recorded that in case one Member of the
Selection Committee is absent and the
decision has been taken by majority of
Members including the Chairman of the
Selection Committee in making selection,
the same does not vitiate the selection made
478 INDIAN LAW REPORTS ALLAHABAD SERIES
in absence of nominee of the District Basic
Education Officer. Upon bare perusal of the
judgment relied upon and after examination
of the law laid down by the Division Bench
of this Court in the case of District Basic
Shiksha Adhikari, Ambedkar Nagar (supra)
and Fateh Bahadur Singh (Supra), this
Court holds that issue involved in the
aforesaid judgments was in regard to the
appointment on the post of Clerk, wherein in
the selection proceedings nominee of the
District Basic Education Officer did not
participate. The learned Single Judge on the
basis of material placed on record found
that the District Basic Education Officer to
send the nominee on the letter submitted by
the Manager/Principal of the Institution, did
not respond and in consequence thereto, the
Selection
Committee
comprising
of
Manager and Headmaster met and made
recommendation for the appointment and
thereafter, the selection was made in
absence of nominee of the District Basic
Education Officer. Thus, in the present case,
in case the same has been disapproved on
the ground of non-appearance of nominee of
the District Basic Education Officer, the
impugned order appears to be not justifiable
in law."

11. Therefore, in view of the above,
the approval of the appointment of the
petitioner may not be denied for the reason
that there was no nominee on behalf of the
District Basic Education Officer at the time
of selection.

12. Considering the facts and
circumstances of the issue in question and
also considering the legal position, I am of
the considered view that the District Basic
Education Officer, Sitapur should accord
formal approval of the appointment of the
petitioner w.e.f. 7.1.2017 after expiry of one
month from the date of receipt of papers for
approval."

9. Referring the aforesaid, he
submitted that identical controversy has
been dealt with, while answering that once
the request of appointment of the nominee is
ignored by the District Basic Education
Officer, two member selection committee
fulfills the quorum and there is no
unlawfulness in selection proceeding by
such selection committee.

10. He further placed reliance on
judgment dated 7.3.2018 passed in Special
Appeal No. 667 of 2014 (State of UP
through Principal, Secretary, District Basic
Education Officer, Lucknow Vs. Pravin
Kumar Mishra and another and has referred
para 14 of the judgment which is quoted as
under:-

"A perusal of the impugned order,
it reveals that learned Single Judge, after
appreciating the submissions of the parties
and Rule 15 (5) (ii) of the Rules, 1984, has
recorded a clear cut finding that it is not in
dispute that receipt of the letter dated
26.9.2006 has not been denied anywhere in
the counter affidavit. In the said letter, the
Institution had indicated that three dates
have been fixed for holding the interview on
which dates the Observer was not sent by the
District Basic Education Officer, Raibareli
and finally the selection was fixed for
30.9.2006. On 30.9.2006, also no Observer
was sent and as such, the Selection
Committee met and finalized the process in
which the writ petitioner was selected for
Class-IV post. The entire papers relating to
the selection were forwarded to the District
basic Education Officer, Raebareli, on
15.10.2006 as is evident from the letter of
the Institution dated 17.11.2006. In these
backgrounds, learned Single Judge opined
that the District Basic Education Officer
despite requests having been made by the
Institution for forwarding the name of an
5 All. Shailendra Pratap Singh Vs. State of U.P. & Ors.
479
Observer, did not do so and even after the
selection papers were received in his office
on 15.10.2006, he neither approved nor
disapproved the same. In this situation, on
the expiry of one month from the date of
receipt of the papers, the selection would be
deemed to have been approved by the
District Basic Education Officer in view of
the provisions of Rules 15(5) of the Rules,
1984. Accordingly, learned Single Judge
rightly came to the conclusion that it is not
open for the respondent now to take the
stand that the selection suffers from the vice
of illegality since no observer was present in
the selection."

11. He submitted that the aforesaid
judgment also determine the question
regarding non-appointment of nominee and
with respect to the validity of the selection
committee, which is decided positively in
favour of the respondent while dismissing
the special appeal.

12. Next contention is that the
Government
order
dated
24.11.2001,
contemplates the teacher and staff of junior
high school/high school, whose services are
governed
by
the
provision
of
U.P.
recognized basic schools (Junior High
Schools)(Recruitment and conditions of
Service of Teacher) Rules, 1978 (hereinafter
referred as 'Rules 1978' and the 'Act 1978').
He added that the provisions of the act, 1978
as well as Rules 1984 shall also apply to an
institution, which is upgraded up to the level
of High School or Intermediate college.

13. Continuing with argument, he
submits that Hon'ble Single Judge, while
noticing judgment rendered in Ramesh
Singh vs State of U.P. [(2020) 5 SCC 677]
has held that 'upgradation of an Aided
Junior High School as Un-Aided High
School/Intermediate College' does not take
away the institution from the financial
control of the Basic Siksha Adhikari and the
State Government is well within the
authority to issue the Government Order
invoking the powers under section 9(4) of
the Act, 1921 and in order to remove
difficulties and smooth functioning of the
powers, the State Government can always
fill in the gaps.

14. Concluding his arguments, he
submits that the impugned order is totally
perverse as the same is passed on the
premises that the selection committee is not
duly constituted. He added that the specific
pleading of para 14 has not been
controverted by the opposite party no. 2, in
his counter affidavit dated 30.3.2013, as is
evident from the para 15 of the counter
affidavit that there is no specific denial
regarding the letters which were issued for
appointment of Nominee. He submits that
the present Manager of Committee of
Management is having anonymity with the
petitioner, though, he has failed to
demonstrate that the letters to the District
Basic Education Officer were not duly sent.
Therefore, submission is that the order
impugned dated 13.9.2012 passed by the
opposite party no. 2, i.e., the District Basic
Education Officer is erroneous and suffers
from non-application of mind, thus, the
same may be quashed and the opposite party
no. 2 may be directed to make payment of
salary to the petitioner treating approval of
the appointment as deemed approval under
the provisions of section 15 (2) of the Rules,
1984.

15. On the other hand, Sri Anurag
Kumar Singh, counsel appearing for the
private-respondent
submits
that
the
committee of management had never taken
any decision for filling up the post in
question
which
fell
vacant
on
the
480 INDIAN LAW REPORTS ALLAHABAD SERIES
superannuation of Mohan Lal Sharma and
the documents which have been relied upon
by the petitioner, is not in the knowledge of
committee of management, as the alleged
resolution dated 17.09.2011 under the
signature of the then Manager, was never
passed and the thumb impression is also
forged as Sri Babu Lal Verma the then
president stated on an affidavit dated
05.10.2018 that no meeting took place on
17.09.2011 and no decision has ever been
taken for appointment of Amar Bahadur
Singh (Assistant Teacher) as third member
of selection committee.

16. Adding his arguments, he submits
that the records, which has been appended
by the petitioner along with writ petition, is
evident that once the nominee was not
appointed by the DBEO, the members of the
selection
committee
themselves,
have
appointed a third member, which is
impermissible under the law and thus, the
selection committee vitiates in the eyes of
law.

17. Further contention is that if any
proceedings have been carried out by the
then Manager, namely, Sitaram Saroj
regarding the appointment of the petitioner,
without the resolution of committee of
management, the same is against the law. He
also added that the letter dated 14.08.2012
was received in the office of opposite party
no.
2 on
19.08.2012,
therefore,
no
appointment letter could have been issued to
the petitioner before 19.09.2012.

18. Further contended that vide
Government Order dated 15.03.2012, the
ban was imposed on all appointments in the
aided Junior High School and that was lifted
on 15.09.2014. Further the committee of
management did not appoint third member
of
the
selection
committee
and
no
advertisement was ever published in any
newspaper.

19. In support of his contention, he has
placed reliance on the judgments rendered in
case of Manju Awasthi and Ors. Vs. State of
U.P. and Ors. (MANU/UP/3739/2012),
State of U.P. and Others Vs. District Judge,
Varanasi and Others reported in 1981 SCC
OnLine All 279, Dr. (Smt.) Sushila Gupta
Vs. The Joint Director of Education, Kanpur
and Ors. (2005 SCC OnLine All 1183) and
Standard Intermediate College Mau-Aima
and Ors. Vs. State of U.P. and Ors.
(MANU/UP/2108/2019).

20. Finally, he submits that the
appointment of the petitioner is not only
dehors the rules, but the same is done while
preparing
the
forged
and
fabricated
documents, thus, submission is that the
petitioner is not entitled for any relief.

21. Counsels appearing for the State
submitted that so far as the contention of
counsel for the petitioner is with respect to
the Government Order dated 24.11.2001
read with section 9(4) of the Act, 1921 is
concerned,
the
same
speaks
about
'modified,
re-signed
and
make
any
regulation' which does not cover any
'order'. It is submitted that submits that the
Rules, 1984 is not applicable to the
institution in question and the Government
Order dated 24.11.2001 is only clarificatory
in nature and do not constitute any
provision.

22. In support of contention, reliance is
placed on judgement reported in 2001 (1)
UPLBEC 131, Rakesh Chandra Sharma Vs.
State of U.P. and others, and has referred
paras 6 and 7 of the abovesaid judgement. It
has been held that once the institution is
upgraded up to intermediate level, the Rules
5 All. Shailendra Pratap Singh Vs. State of U.P. & Ors.
481
1984 will not attract as the provision of
Intermediate Education Act, 1921 read with
the Regulations will come into force in such
institutions.

23. Paragraphs 6 and 7 are extracted as
under:-

"6. The first question which arises
for
consideration
is
whether
after
upgradation of the institution to High
School if a vacancy of clerk occurs in the
institution, it has to be filled under the
provisions of the Act, 1921 and Regulations
framed thereunder or under the provisions
of the U. P. Recognised Basic Schools
(Junior High Schools) (Recruitment and
Conditions of Service of Ministerial Staff
and Group 'D' Employees) Rules, 1984 (in
brief Rules, 1984). It is not disputed that the
institution was upgraded from Junior High
School to High School on 24.8.1993. A clerk
of the institution was dismissed from service
after the institution was upgraded and this
vacancy was sought to be filled by the
management through an advertisement
made on 2.4.1999. Section 2 (e) of Rules,
1984 defines a Junior High School to mean
an institution other than High School or
Intermediate College imparting education
to boys and girls or both from class VI to
VIII. Therefore, Rules, 1984 would apply to
the institutions where education is imparted
from class VI to VIII but it shall not apply to
the institutions which impart education from
classes IX and X. Since the institution was
upgraded as High School in 1993, Rules,
1984 ceased to apply to the institution. And
the only provision to fill the non-teaching
post of clerk was Regulation 101 of Chapter
III of the regulations. Under Regulation 101
prior approval of District Inspector of
Schools had to be obtained before making
appointment on a class-III post. It has been
held by this Court In Civil Misc. Writ
Petition No. 50266 of 2000, Amit Kumar v.
District Inspector of Schools, Jaunpur and
another decided on 21.11.2000, that
provisions of Regulation 101 are mandatory.
Therefore, appointment of the petitioner on
the post of clerk could not be made by the
management
without
obtaining
prior
approval of the District Inspector of
Schools. BSA had no power to grant
approval to the appointment of the
petitioner. Thus, the approval granted to the
petitioner's appointment on 20.4.1999 by
BSA was void. It has rightly been cancelled
by BSA.

7. The next question is what would
be the effect of payment of salary, etc., to the
teachers and staff from the grant-in-aid
received from the Government as Junior
High School under interim order passed by
this Court and whether services of such
teachers and staff would be governed by
Basic Education Act and Rules or U. P.
Intermediate Education Act, 1921 and
Regulations framed thereunder. I have
earlier held that after upgradation of the
institution to High School, the provisions of
Act, 1921 and Regulations would apply and
the provisions of Rules, 1984 would not be
applicable for recruitment on the nonteaching post. If teachers and non-teaching
staff of the institution are receiving salary
from grant-in-aid which was earlier payable
to the institution prior to its upgradation as
High School. Even then, fresh appointments
in unaided recognised High School would be
governed by the provisions of Act, 1921 and
Regulations. A Division Bench of this Court
(Lucknow Bench) in Shiksha Prasar Samiti,
Babhnan, District Gonda v. State of U. P.
and others 1986 UPLBEC 477, has held that
the provisions of U. P. Intermediate
Education Act, 1921, apply to a recognised
institution. It is not necessary that the
institution should be receiving grant-in-aid.
Therefore, even though the institution is not
482 INDIAN LAW REPORTS ALLAHABAD SERIES
receiving grant-in-aid from the Government
and has been granted recognition as
unaided High School. The management
could fill vacancy of clerk, only by following
the provisions of recruitment as provided
under the U. P. Intermediate Education Act,
1921 and Regulations framed thereunder.
Since the management did not appoint the
petitioner under Act, 1921 and Regulations,
therefore, no relief could be granted to the
petitioner."

24. Again reliance is placed in a case
reported in 2002 (49) ALR 800, Sharda
Prasad Yadav and others Vs. District
Inspector of Schools, Deoria and others, and
paras 16 to 19 are referred.

25. Paragraphs 16 to 19 are quoted
hereinunder:-

16. The second contention of the
petitioners that Annexure-C.A-1 is an
exparte report as no point of time the
petitioners were ever associated in the
enquiry and as such the salary of the
petitioners cannot be withheld, is also
misconceived. It is admitted to the
petitioners that either appointments were
made by the Principal of the institution and
according to them, he had forwarded the
papers to the D.I.O.S., Deoria for grant of
financial sanction for payment of their
salary. The District Inspector of Schools,
Deoria, respondent No. 1 has categorically
denied that no such papers had ever been
received in his office for granting financial
sanction. On the contrary it has been stated
that these appointments are FARZI and the
State is not liable to pay salary to the
petitioners. In so far as the enquiry is
concerned, D.I.O.S. has rightly based his
conclusion on the papers and submitted to
the
interrogatories
submitted
by
the
Principal. It has nothing to do with the
petitioners, it cannot be said that the report
of the D.I.O.S. is an exparte without hearing
the necessary parties, and even otherwise
also whatever the petitioners could have
shown, they have stated in the rejoinder
affidavit, which has been examined by this
Court.

17. As regards the third contention
of the petitioners, it is apparent from the
records of this case as well as from the
contention
of
the
parties
that
the
appointments of the petitioners were not as
per Rules. There were only fourteen
sanctioned posts of class-IV employee and
the District Inspector of Schools, Deoria
was not at all applied to grant financial
sanction for four additional posts, which has
been made against the rules. The contention
of the petitioners that their appointments
have been made on the posts in accordance
with law by the Principal of the institution,
is not correct.

18. Apart from the above, under
Regulation 101 it is mandate upon the
appointing authority not to pay the nonteaching staff except without prior approval
of the District Inspector of Schools. The use
of word shall in the Regulation 101 makes it
obligatory upon the appointing authority to
obtain prior approval from the D.I.O.S.
before filling any vacancy of non-teaching
post in the institution. Further use of word
'except' with prior approval of the D.I.O.S.
do not give discretionary power to the
appointing authority, Regulation 101 is as
under:

"101. The appointing authority
shall not fill any vacancy in the non-
teaching staff of a recognized aided
institution except with the prior approval of
the inspector."

19. In Amit Kumar v. D.I.O.S.,
Jaunpur [ 2001 (42) ALR 153.] , it has been
held by a Single Judge of this Court that the
Regulation 101 cannot be treated to be
5 All. Shailendra Pratap Singh Vs. State of U.P. & Ors.
483
directory and this interpretation would
result in giving power to the appointing
authority for making appointment and
thereafter obtain financial sanction. This
Court held:

"If Regulation 101 is treated to be
directory then the appointing authority
could make appointment on non-teaching
post even without prior approval of the
DIOS. It would result in giving power to the
appointing authority to make appointment
first
and
thereafter
obtain
financial
approval. This was not the intention of
legislature or the Rule making authority.
And it clearly intended that before
makingany appointment the appointing
authority must obtain prior approval of the
DIOS. The legislative intent has to be given
effect to while interpreting regulatory
provisions of Regulation 101. Regulations
103 to 106 further make it clear that the
Regulation 101 cannot be construed as
permissive
or
directory.
Further
the
procedural
safeguard
contained
in
Regulation 101, making it obligatory for the
appointing authority in matter of making
appointment on non-teaching post, not to fill
the vacancy except with the prior approval
of the DIOS, has an element of public
interest."

26. He next submits that school is
upgraded uptill high school in year, 1982
vide letter no. I.B.Recognitaion/96 dated
02.11.1982, which is an undisputed fact and
thus, thereafter, the provisions of the Act,
1921 shall apply therefore, any appointment
following the provisions of the Act 1978 or
Rule 1984, would apparently be against the
settled law, thus, submission is that the
petitioner is not entitled for any relief.

27. Considering upon contentions of
counsels for the parties and after perusal of
material placed on record, it transpires that
the institution was upgraded as high school
on 02.11.1982 and once, one of the regular
class III employee namely, Mohan Lal
Sharma retired, several request were made
by the Committee of Management for
appointed on the post of Clerk, but when, no
nominee was sent by the District Basic
Education Officer, the other members of the
selection committee, nominated the third
member and held the selection, wherein, the
petitioner was declared successful and got
joined on the post of clerk, but once it was
send for the financial concurrence, the same
was denied by the District Basic Education
Officer vide letter dated 13.09.2012 with the
observations that 'appointment of the
petitioner is done by unlawfully constituted
a selection committee.'

28. Having perused the impugned
order dated 13.09.2012, it emerges that the
District Basic Education Officer has passed
the order, on the premises that the selection
committee is not constituted lawfully,
meaning thereby, that the provision which is
prescribed under Rule 15 of the Rules, 1984
meant for the appointment of Non-Teaching
Staff in the Recognized Basic Schools
(Junior High Schools).

29. For ready reference, the provisions
of rules 14, 15 and 16 of Rules, 1984 are
quoted hereinafter:-

"14. Selection Committee.- (1)
Manager

(2) Headmaster of the recognised
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.
484 INDIAN LAW REPORTS ALLAHABAD SERIES

15. Procedure for selection.-(1)
The Selection Committee shall. after
interviewing such candidates as appear
before it on a date 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 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 date of receipt of the papers
under Clause (3), send a copy of the list to
the District Basic Education Officer.

(5)
(i)
The
District
Basic
Education Officer is satisfied that-

(a) the candidates recommended
by the Selection Committee possess the
minimum qualification prescribed for the
post:

(b) the procedure laid down in
these rules for the selection of Ministerial
staff and Group 'D' employees, as the case
may be. has been followed, he shall aecord
approval to the recommendations made by
the
Selection
Committee
and
shall
communicate
his
decision
to
the
management within two weeks from the date
or 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
recommendatioris made by the Selection
Committee.

16. Appointment- Appointment by
by the management.-111 On receipt of
communication of approval or as the case
may be, on the expiry of the period of one
month under Clause (iii) of sub-rule (5) of
Rule 15, the management shall first offer
appointment to the candidate given the first
preference by the Selection Committee and,
on his failure to join the post, to the
candidate next to him in the list prepared by
the Selection Committee, and on the failure
of such candidate also, to the last candidate
mentioned in such list.

(2) (a) The appointment letter
shall be sent under the signature of the
Manager, by registered past to the selected
candidate.

(b) The appointment letter shall
clearly specify the name of post, the pay
scale and the nature of appointment,
whether permanent or temporary and shall
also specify that if the candidate does not
join within 15 days from the date of receipt
of the appointment letter. his appointment
shall be cancelled.

(c) A copy of the appointment
letter shall also be sent to the District Basic
Education Officer."

30. As per the rule 14, the selection
committee consists of three members i.e.
Manager, Headmaster and an Specialist
nominated by the DBEO and at the same
time, Rule 15(5)(iii) provides that if, the
DBEO does not communicate his decision
on the due intimation by the Committee of
Management, within one month form 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. One of the
5 All. Shailendra Pratap Singh Vs. State of U.P. & Ors.
485
exigencies has also been dealt with that in
case, the DBEO did not sent his nominee,
the committee of management shall appoint
third member.

31. It is an undisputed fact that the
third member has been appointed by two
other members of the selection committee
and not by the Committee of Management,
which vitiates the constitution of the
selection
committee.
Further
the
appointment of the petitioner is done
without waiting for completion of a month
and therefore, the same is not in-consonance
with the provisions of Rules 15(5)(iii) of
Rules, 1984.

32. Now the question crops up that
whether, the institution in question is
governed with the provisions of Rules, 1984
or the same is governed with the provision
of the Act, 1921. The undisputed fact is that
uptill 01.11.1982, the institution was
running at the level of Junior High School
and by virtue of an order dated 02.11.1982,
this has been upgraded, however, there is no
overt provision in the Rules, 1984 for
appointment of Group D posts, in such
institution, but time and again this issue was
brought
up
before
this
Court
and
ultimately, this was decided in the case of
Manju Awasthi and Ors. Vs. State of U.P.
and Ors, reported in Manu/UP/3739/2012
wherein, in the paragraphs 77,78 and 82,
the Division Bench has very categorically
held that the 'Government Order dated
24.11.2001 can be supported only to the
extent of payment of salary at the Junior
High School level and the ancillary power
thereunder, but the Basic Siksha Adhikari
cannot exercise any administrative control
over the institution, except to the extent of
payment of salary.' Paragraphs 77, 78 and
82 of the abovesaid judgment are extracted
as under:-

"We are of the view that the
Government Order dated 24.11.2011 can be
supported only to the extent of payment of
salary of teachers at the Junior High School
level and ancillary power thereunder.
However, the Basic Shiksha Adhikari cannot
exercise any administrative control over the
institution except to the extent of payment of
salary nor can make any appointment in
view of the applicability of 1921 and 1982
Acts. The judgment of Hon'ble Single Judge
in Committee of Management Beni Singh
Vaidīc Vidyawati Inter College, Baluganj,
Agra and others (supra) to that extent
cannot be approved. It is relevant to note
that against the judgment of Hon'ble Single
Judge dated 7.9.2005 in Committee of
Management Beni Singh Vaidic Vidyawati
Inter College, Baluganj, Agra and others
(supra) special appeal No. 1419 of 2005,
Agam Prakash Deepak. State of U.P., was
filed, which appeal was also dismissed on
29.11.2005.

78. The Special Appellate bench
considered the submissions of the appellant
only qua the qualifications of the Assistant
Teacher and laid down that Assistant
Teacher must possess the training course
recognised by the State Government hence,
the appellant could not have been appointed
as Assistant Teacher hence, the appeal was
dismissed. No other ratio was laid down in
the said judgment.

82. The selections made by the
Basic Shiksha Adhikari under the provisions
of U.P. Recognized Basic Schools (Junior
High Schools) (Recruitment and Conditions
of Service of Teachers) Rules, 1978, have
rightly been quashed in the writ petitions by
Hon'ble Single Judge on the ground that
after up-gradation of a Junior High School,
selection/appointment is to be made in
accordance with 1921 Act and U.P. Act No.
5 of 1982. As noticed above, we have found
that the State Government as well as the
486 INDIAN LAW REPORTS ALLAHABAD SERIES
educational authorities have not been
properly construing the provisions of
Section 7A and under the misconception,
they have granted recognition to the
institution under Section 7A, for the first
time whereas recognition under Section 7A
is to be granted to an existing recognised
institution within the meaning of Section
2(b). We thus, feel that certain directions are
necessary to be issued in this context. We
have already observed that our observations
and interpretation of Section 7A in no
manner shall affect any recognition already
granted to an institution under Section 7A
and institution which has been granted
recognition shall be treated to be duly
recognised but necessary action which has
not yet been taken with respect to the said
institution is required to be taken by the
educational
authorities
as
per
our
observation. The appeals are disposed of
with following directions:

1. The judgment of Hon'ble Single
Judge Impugned in the appeal holding that
after up-gradation of a Junior High School
to High School, appointment and selection
on the post of Head Master shall be made in
accordance with 1921 Act and U.P. Act No.
5 of 1982 are upheld and prayer of the
appellant to set aside the judgment of
Hon'ble Single Judge is refused.

2.
The
recognition/permission
under Section 7A shall be granted to an
institution which is already recognised
institution within meaning of Section 2(b) of
1921 Act.

3. Recognition to a junior high
school as High School is to be granted in
accordance with the provisions of Section
7(4) of 1921 Act.

4. The State is fully empowered to
grant recognition under Section 7(4) or
Section 7A without finance (Vitta vihin).

5.