Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 387 of 2008 (S/S) Jai Prakash Pandey S/o sri Indrasan Pandey R/o Assistant Teacher Junior High School Tarai Vidya Peeth Premnagar, Gadarpur, District Udham Singh Nagar. ...…………. Petitioner [ Versus 1. State of Uttarakhand through Secretary Education Govt. of Uttarakhand, Dehradun. 2. Addl. Director of Education Kumaon Mandal, Nainital. 3. Addl. District Education Officer (Basic) Udham Singh Nagar. 4. Committee of Management Tarai Vidyapeeth Junior High School, Premnagar, Gadarpur, U.S. Nagar. 5. Jai Prakash Singh S/o Sri Ram Kishun Singh R/o Assistant Teacher, Junior High School, Tarai Vidya Peeth, Prem Nagar, Gadarpur, Udham Singh Nagar. ...…………. Respondents Mr. S.K. Babulkar, Sr. Advocate assisted by Mr. Tumul Nailwal, Advocate for the petitioner. Mr. N.P. Sah, Standing Counsel for respondents Nos. 1 to 3. Mr. S.K. Mandal, Advocate for respondent No. 4. Mr. M.C. Kandpal, Sr. Advocate assisted by Mr. S.S. Chaudhary, Advocate for respondent No. 5. Hon’ble Prafulla C. Pant, J. By means of this writ petition, the petitioner has sought writ in the nature of certiorari quashing the order dated 04.03.2008 (copy Annexure –16 to the writ petition), passed by respondent No. 2. A mandamus has also been sought commanding the respondents to allow the petitioner to function on the post of Assistant Teacher in the Institution run by respondent No. 4 and to pay him salary w.e.f. 07.07.1984. 2) Heard learned counsel for the parties and perused the affidavits, counter affidavits and rejoinder affidavits filed by them. 3) Brief facts of the case are that Junior High School Tarai Vidya Peeth, Premnagar, Gadarpur, Udham Singh Nagar is an aided and recognized Institution under the U.P. Basic Education Act, 1972, and governed by the Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978. The Institution is managed by the Committee of Management (respondent No. 4). The aforesaid Institution was initially established in the year 1979, and in February 1991, it came under grant-in-aid of the Government. Services of the teachers of the aforesaid Junior High School are governed under the Uttar Pradesh Recognised Basic Schools (Junior High Schools)(Recruitment and Conditions of Services of Teachers) Rules 1978 (hereinafter referred as Rules of 1978). Petitioner’s case is that he was initially appointed on 05.07.1980, as Assistant Teacher, in the aforesaid school. But, he was an untrained teacher, as he did not possess Basic Training Certificate. It is alleged by the petitioner that at the time the Institution was brought under grant-in-aid, the management was allowed to continue with 15 per cent of untrained teachers, in the Institution. As the petitioner was working since 05.07.1980, and again re- appointed on 07.07.1984, he has a right to function as an Assistant Teacher in the Institution, and he is entitled to the salary payable for the post held by him. It is further alleged by the petitioner that in the year 1984, one Madan Gopal Singh became Manager of the Institution, and he stopped paying salary to the petitioner, though, the petitioner continued to work till October 2005 in the Institution, where after he was not permitted to sign the attendance register. In Para 10 of the writ petition, it is stated that in the year 1989, Madan Gopal Singh, the new Manager of the Institution, got the vacancies of Assistant Teachers advertised and illegally appointed his own nephew Jai Prakash Singh (respondent No. 5) as Assistant Teacher in violation of Rule 6(1)(2) of the Rules of 1978. Though, the new teachers were appointed in the School, but petitioner’s services were not terminated. Meanwhile, the petitioner passed B.Ed. (Bachelor of Education) Degree in the year 1994 from Meharshi Dayanand University, Rohtak. (A copy of provisional certificate of said Degree issued in 1995, is Annexed as Annexure –10 to the writ petition). The petitioner earlier filed Writ Petition No. 29832 of 1995 before the Allahabad High Court, which was decided on 07.11.1996, directing the District Basic Education Officer, Nainital to decide the representation of the petitioner. The said authority while deciding the representation of the petitioner found appointment of Jai Prakash Singh illegal, and cancelled the approval granted for his (Jai Prakash Singh’s) appointment. On this, Jai Prakash Singh (present respondent No. 5) filed Writ Petition No. 13233 of 1997, which was received by this Court by transfer and re-numbered as Writ Petition No. 2981 (S/S) of 2001. Said writ petition was disposed of vide order dated 26.04.2007, directing the Joint Director of Education to decide as to which of the two teachers are legally appointed in the Institution. In compliance of said order, the impugned order dated 4th of March 2008 was passed by respondent No. 3, in which it has been observed that the appointment of Jai Prakash Pandey (present petitioner) is not in accordance with Rules of 1978 and nor is he being paid salary from the public exchequer. As to Jai Prakash Singh (respondent No. 5) it is observed by respondent No. 3 that he is duly appointed under the Rules of 1978, and is being paid salary from the public exchequer regularly. Challenging the said order as illegal, this writ petition is filed by Jai Prakash Pandey. 4) On behalf of respondent No. 3, a counter affidavit is filed stating that Junior High School Tarai Vidya Peeth, Prem Nagar, Gadarpur, District Udham Singh Nagar was temporarily recognized in the year 1981, and was given permanent recognition in the year 1987 with following strength of the staff: (i) Principal One post (ii) Assistant Teacher Four posts (iii) Clerk One post (iv) Class IV / Peon One post It is admitted in the counter affidavit that in the year 1989, post of Assistant Teachers were advertised for recruitment and 03 candidates, namely Babu Lal Ram, Krishana Singh and Jai Prakash Singh (present respondent No. 5) were selected and appointed as Assistant Teachers. As to the petitioner Jai Prakash Pandey, it is stated in the counter affidavit filed on behalf of respondent No. 3 that neither he is eligible for recruitment under the Rules of 1972, nor was he selected. However, it is not specifically denied by respondent No. 3 that Jai Prakash Singh (respondent No. 5) is nephew of Madan Gopal Singh, the Manager of the Institution (in the year 1989). 5) In the counter affidavit filed on behalf of respondent No. 4 i.e. Committee of Management, it is admitted that the Institution came under grant-in-aid since February 1991 and the payment of salary of the teachers and employees is made under the Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and Other Employees) Act, 1978. It is admitted by this answering respondent also that advertisement was made in 1989 for recruitment of the Assistant Teachers, but petitioner neither applied for the post, nor had minimum qualification to apply for the same. Six years after the recruitment i.e. in the year 1995, suddenly petitioner Jai Prakash Pandey filed a writ petition claiming salary of the regularly appointed teacher in the Institution. It is admitted that respondent No. 5 filed Writ Petition No. 13233 of 1997, which was transferred from Allahabad High Court to this Court and re-numbered as Writ Petition No. 2981 (S/S) of 2001, as mentioned in the writ petition. Apart from this, the answering respondent No. 4, Committee of Management also filed Writ Petition No. 10770 of 1997 (transferred to this Court and re- numbered as Writ Petition No. 2978 (S/B) of 2001) in which interim order was passed on 30th April 1997, by Allahabad High Court, and Jai Prakash Singh (respondent No. 5) continued to get salary under interim orders of this Court. The present writ petitioner Jai Prakash Pandey filed yet another Writ Petition No. 2000 of 1998, but no relief was granted to him in said writ petition. As to the appointment of Jai Prakash Singh during the period when Madan Gopal Singh was the Manager of the Institution, the relationship between the two alleged in the writ petition, is not specifically denied. Lastly, it is stated that the liability to pay salary under Section 10 of the Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and Other Employees) Act, 1978, is of the State Government, and not that of the Management. 6) Respondent No. 5 Jai Prakash Singh has filed separate counter affidavit stating that initially he was appointed as Assistant Teacher in the Institution in the year 1983, by the then Manager Sri Vibhuti Prasad, and as such, appointment of respondent No. 5 is not in violation of provisions contained in Rule 6(1)(2) of the Rules of 1978. It is further stated in the counter affidavit that the appointment of answering respondent No. 5 in the year 1989, after he got selected by the selection committee, suffers from no illegality. It is further stated by respondent No. 5 in his counter affidavit that petitioner Jai Prakash Pandey is not a qualified person and even the Degree of B.Ed. obtained by him (petitioner) in 1995, from Meharshi Dayanand University, Rohtak, is not a recognized Degree, as the course of B.Ed. was done by the petitioner through correspondence. Neither the petitioner was trained teacher at the time of his initial appointment in the year 1980, nor could he be appointed in the year 1989 for want of necessary qualification. Admitting that the writ petitions were filed by the parties concerned, it is stated that the present petitioner had neither continued to work since 1984, nor is he entitled to the salary. 7) Before further discussion, it is pertinent to mention here, relevant provisions of law applicable to this case. Rule 6 of the Uttar Pradesh Recognised Basic Schools (Junior High Schools)(Recruitment and Conditions of Services of Teachers) Rules 1978, provides as to disqualification of a candidate for appointment of Head Master and Assistant Teacher in a recognized school. Sub Rule (1) of Rule 6 of said Rules provides that no person who is related to any member of the management shall be appointed as Head Master or Assistant Teacher of recognized school. Sub Rule (2) of Rule 6 enumerates the members of the family who shall be treated to be related to the candidates. And they are father or mother; grandfather, grandmother; father-in-law, mother-in-law; uncle, aunt, maternal uncle, maternal aunt; son daughter, son-in-law, daughter-in-law; brother, sister; grandson, granddaughter; husband, wife; nephew niece; cousin, wife’s brother, or wife’s sister, brother’s wife, sister’s husband; husband’s brother, husband’s brother’s wife; brother’s or cousin’s wife. As such, respondent No. 5 being nephew of the Manager of the College, disqualifies him from being appointed in 1989 as Assistant Teacher in the recognized school. 8) Perusal of the record shows that report dated 10.03.1997 submitted by District Education Officer, Nainital (copy Annexure –11 to the writ petition) and report dated 11.02.2008 of Additional District Education Officer (Basic), Udham Singh Nagar (copy Annexure –15 to the writ petition) disclose that respondent No. 5 Jai Prakash Singh, who was appointed through selection process in the year 1989, was nephew of the then Manager Madan Gopal Singh of the Junior High School Tarai Vidya Peeth, Premnagar, Gadarpur, Udham Singh Nagar. As such, his selection to the post of Assistant Teacher in the year 1989 is clearly in violation of Rule 6(1)(2) of the Rules of 1978, as the same is illegal. Mr. M.C. Kandpal, learned Senior Counsel appearing on behalf of respondent No. 5 submitted that respondent No. 5 was originally appointed in the school as Assistant Teacher in the year 1983, and at that time Vibhuti Prasad was the Manager, as such, even if Madan Gopal Singh, who became Manager in 1989, was uncle of respondent No. 5, it does not make his appointment illegal. However, I am unable to accept the contention advanced on behalf of respondent No. 5. Respondent No. 5 got appointed through selection process in the school under the rules only in the year 1989, and for that reason alone his name was sent for approval to the Education authorities, and after the school came under grant in aid he became entitled to get the salary from public exchequer. Had he not undergone the selection process in the year 1989, and not been appointed on the post of Assistant Teacher in the school, he would not have been entitled to the salary as a teacher of grant-in-aid school. As per the report dated 10.03.1997, passed by District Basic Education Officer, Nainital (earlier Gadarpur was part of District Nainital) the approval granted for appointment in respect of respondent No. 5 had already been cancelled and said order has become final. As such, the continuance of respondent No. 5 as Assistant Teacher in the school is illegal, nor is he entitled to any salary from the public exchequer. 9) As far as petitioner Jai Prakash Pandey is concerned, his appointment in the school is also illegal and in violation of Rules of 1978. The petitioner’s first appointment letter (a copy of which is Annexure –1 to the writ petition) shows that he was appointed in the year 1980, as Assistant Teacher, without undergoing through any selection process. It is admitted in the writ petition itself that he was not a trained teacher. Rule 4 of the Rules of 1978, provides that minimum qualification for the post of Assistant Teacher of recognized school shall be Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or equivalent examination with Hindi and teacher’s training course recognised by the State Government or the Board such as Hindustani Teaching Certificate (HTC); Junior Teaching Certificate (JTC); Basic Training Certificate (BTC), or Certificate of Training. The petitioner is neither HTC, nor JTC, nor BTC, nor has any certificate of training. It is also evident from the affidavits, counter affidavits and rejoinder affidavits that when in the year 1989, selection process was advertised for the appointment of Assistant Teachers in the Junior High School Tarai Vidya Peeth, Premnagar, Gadarpur, petitioner neither applied for said post nor he was selected by the selection committee, nor was he qualified as he did not possess teaching training certificates. His continuance after 1989 in the school, on the face of it is illegal, and in violation of Rules of 1978. 10) Mr. S.N. Babulkar, learned Senior Counsel appearing on behalf of the petitioner referred to letter dated 25.01.1982, issued by the District Basic Education Officer, Nainital (a copy of which is Annexure –3 to the writ petition). In Para 9 of said letter it is provided that not exceeding 15 per cent untrained teachers may be appointed in special circumstances. But the same clause provides that even that cannot be made without approval from the District Basic Education Officer. There is no approval of District Basic Education Officer of the appointment of the petitioner in the school. Learned counsel for the petitioner argued that it was the duty of the Management to send the name of the petitioner for approval and for that the petitioner cannot be faulted. Assuming for a moment, that the argument advanced on behalf of the petitioner is acceptable but the same cannot be stretched to mean that the petitioner could have continued in service beyond 1989 when the selection process had taken place and the petitioner neither fulfilled the conditions nor had applied for being appointed as Assistant Teacher. Apart from this, the letter dated 09.06.1989, passed by District Basic Education Officer, Nainital (a copy of which is Annexure –4 to the counter affidavit filed by respondent No. 5) shows that the earlier order of 1982 stood superceded as the subsequent order of 1989 clearly provides that no untrained teacher shall be appointed in any case nor the approval of such teachers shall be considered at all. Perusal of the Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and Other Employees) Act, 1978 read with Rule 20 of the Rules of 1978 framed there under, makes it abundantly clear that appointment of an Assistant Teacher cannot be made for a period more than six months and for that also prior approval of the District Basic Education Officer would be required. It further provides that in no case a person who does not possess minimum qualifications prescribed for the purpose can be given even temporary appointment. In this circumstance, the petitioner is not entitled to the relief sought by him for his continuance as Assistant Teacher in Junior High School Tarai Vidya Peeth, Premnagar, Gadarpur, nor is he entitled to any salary, claimed by him. 11) For the reasons as discussed above, this writ petition is partly allowed only to the extent that impugned order dated 04.03.2008, passed by respondent No. 2, holding appointment of respondent No. 5 as lawful, is quashed. For rest of the reliefs the writ petition is dismissed with the observation that neither petitioner nor respondent No. 5 shall also be paid any salary from the public exchequer. (Prafulla C. Pant, J.) [ [ Dt. August 07, 2008. H.Negi