CWP No. 19499 of 2006 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 19499 of 2006 Date of Decision: 29.2.2008 Ram Karan ......Petitioner Versus State of Haryana and others .....Respondents Coram: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE MOHINDER PAL Present: Shri R.K. Malik, Senior Advocate, with Shri Sandeep Thakan, Advocate, for the petitioner. Shri O.P. Sharma, Additional AG, Haryana, for respondent Nos. 1 to 3. Shri Deepak Sharma, Advocate, for respondent No.4. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? HEMANT GUPTA, J. The petitioner has sought a writ of certiorari for quashing of the order dated 26.10.2003 (Annexure P.13), whereby, the respondents have not granted approval to the appointment of the petitioner as Sanskrit Teacher. M/s B.D. Senior Secondary School, Ambala, is a Government aided private School receiving 95% grant-in-aid from the State of Haryana. The petitioner was appointed against the post of Sanskrit Teacher on the basis of requisition sent by the School to the Employment Exchange. The Employment Exchange recommended the name of the petitioner along with the other candidates for appointment to the post of Sanskrit Teacher. In pursuance of such selection, the petitioner was appointed on 22.8.2001 vide CWP No. 19499 of 2006 (2) appointment letter (Annexure P.1). The Principal of the School sent the case of the petitioner to the District Education Officer for approval. It will be relevant to note at this stage that there were two posts of Sanskrit Teacher in the School. One post was occupied by Shri Yog Raj Sharma Shastri, which fell vacant on 24.4.1998 on Shri Sharma's joining Government Service. Shri Naresh Kumar was appointed as Sanskrit Teacher against the said post. But the services of Shri Naresh Kumar were terminated during the probation period. Civll Writ Petition No. 9169 of 2001, challenging his termination is pending consideration before this Court. While seeking approval of the petitioner as Sanskrit Teacher, the School communicated to the District Education Officer that the post fallen vacant on 24.4.1998 was not filled up as the number of students was low but now the strength has gone up and that the petitioner has been selected for the post of Sanskrit Teacher out of the 10 candidates recommended by the Employment Exchange. Later on, it was explained by the management that since there are two posts of Sanskrit Teacher, even if the writ petition filed by Naresh Kumar is allowed, still one post is available for the petitioner. However, the approval of the petitioner's appointment to the post of Sanskrit Teacher was declined unless writ petition filed by Naresh Kumar is decided. Earlier, the petitioner filed a writ petition which was disposed of on 24.1.2006 with the directions to the respondents to pass a speaking order. In pursuance of such directions, a speaking order has been passed on 26.10.2006, wherein approval has been declined, inter-alia, on the ground that the petitioner was appointed on 22.8.2001 without prior CWP No. 19499 of 2006 (3) approval of the Director against the sanctioned post of Sanskrit teacher, which was lying vacant since 24.4.1998. The Management has appointed the petitioner on its own level without prior permission of the Director. It was also found that in terms of the letter dated 12.7.2000 issued by the Finance Department of the State Government, the posts, which are lying vacant for more than two years as on 22.9.2000, were to be abolished. Thus, the post against which the petitioner was appointed stood abolished as it was lying vacant for more than two years. It is the said order, which is subject matter of challenge in the present writ petition. The Haryana Aided Schools (Security of Service) Act, 1971, inter-alia, provides for a uniform Code of Service for employees of the aided Schools. In terms of the Act, Haryana Aided Schools (Security of Service) Rules, 1974, have been framed. Rule 3 thereof provides for the post shown in column No. 2 of Appendix-A. The post of Sanskrit Teacher falls against serial No. 5. The relevant extracts from the Rules read as under:- “3. Character of posts [Section 4] – (1) The Service shall comprise all or any of the posts shown in column 2 of Appendix A to these rules, as the Management may, from time to time after getting the previous approval of the Director, decide. (2) The Government may by notification, make addition to, or reduction in the posts shown in column 2 of Appendix A to these rules.” It is not disputed by the respondents that two posts of Sanskrit Teacher were approved in the respondent-School and the petitioner was appointed after complying with the procedure provided in Rule 7 of the aforesaid Rules i.e. after sending requisition to the Employment Exchange CWP No. 19499 of 2006 (4) and consideration by a duly appointed selection Committee. The stand of the respondents is that the appointment against aided post could be made only after getting the previous approval of the Director, is misconceived. In terms of the Rules referred to above, the approval of the Director is required for creation of the post in the aided Schools. Once, the post is created, the same can be filled up in the manner suggested in Rule 7 of the aforesaid Rules. No other rule could be brought to our notice which requires previous approval of the Director, Education before the appointment is made to such post. Consequently, the stand of the respondents that the appointment could be made only with the previous approval of the Director is not supported by any statutory provisions of law. The other reasons given by the respondents that since the post of a Sanskrit Teacher remained vacant for a period of two years, therefore, the same stood abolished in terms of the directions of the Finance Department of the State Government dated 12.7.2000, is again not tenable. Apart from the fact that the said circular (Annexure P.14) is not addressed to the management of the aided Schools, we are of the opinion that such circular cannot be ipso facto applied to the post in aided Schools as well. Circular Annexure P.14 has been issued in respect of an exercise carried out by the State authorities for reduction of the expenditure. The creation of the post in privately managed but aided Schools is governed by a statute. Once the post has been sanctioned under a statute in a privately managed aided School, the same could not be abolished by implication. It was open to the Director to pass an order for reducing the number of posts approved in an aided School but without passing such order, the circular of CWP No. 19499 of 2006 (5) the Finance Department, cannot be pressed into service for deemed abolition of the post in the privately aided School. Therefore, we are of the opinion that the action of the respondents in not granting approval to the appointment of the petitioner as a Sanskrit Teacher is not sustainable. Consequently, we allow the present writ petition. The order Annexure P.13 is set aside. The petitioner shall be entitled to all consequential benefits, if any. (HEMANT GUPTA) JUDGE (MOHINDER PAL) JUDGE February 29, 2008 ds