Court No. - 26 Case :- WRIT - A No. - 5116 of 2010 Petitioner :- C/M Sharda Radha Raman Vashishtha Kanya J.H. School & Anr. Respondent :- State Of U.P. & Another Petitioner Counsel :- K.P. Shukla,Anurag Shukla Respondent Counsel :- C.S.C. Hon'ble Shishir Kumar,J.
Heard learned counsel for petitioners and learned Standing Counsel for
respondents.
Grievance raised by petitioners in the present writ petition is that Basic
Shiksha Adhikari has got no jurisdiction to disapprove appointment made by
Committee of Management. He is an authority to return the same for re-
consideration but by impugned order dated 5.11.2009 he has rejected the
recommendation of Selection Committee which is not permissible in view of
judgment of this Court reported in 1999 (2) E.S.C. 1215 Committee of
Management, Junior High School Rosangpur, Auraiya through it’s
Manager Vs. Basic Shiksha Adhikar, Etawah/Auraiya and reliance has
been placed upon para 4 of the said judgment. The same is being quoted
below:-
“4. After perusing the provisions of Rule 10 of the aforesadi rules Mr.
Y.K.Saxena, who has filed caveat on behalf of respondent No.2 as well as
learned standing counel have fairly conceded that the order passed by the
respondent no.1 is not in consonence with the provisions of sub-rule (5) of
Rule 10 of the said rules. The same is illegal and without jurisdiction in as
much as the respondent No.1 had no jurisdiction to out-right reject the
recomendation made by the committee of Management. He could at best
return the papers to the Committee of Management with the aforesadi
direction. In view of hte aforesadi facts, it is not necessary in the present case
to ask the respondents to file counter -affidavit. I have considered the
submissions made by the learned counsel for the petitioner and also persued
the record. Sub-rule (5) of Rule 10 of the aforesaid Rules provides as under:-
“10.(5) (I) If the District Basic Edcuation Officer is satisfied that a) the
candidats recommended by the Selection Committee possess the minimum
qualifications prescribed for the post; b) the procedure laid down in these
rules for hte seelction 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 Edcuation Officer is not satisfied as
aforesaid, he shall return the papers to the mangement with the direction that
the matter shall be reconsidered bythe selection committee. (iii) If the District
Basic Edcuation Offier does not communciate his deicsion within one month
from the date of receipt of the papers under clause (4) shall be deemed to
have accorded seelction committee.”
Under sub-clause (ii) of Clause-(b) of Sub-rule (5) of Rule 10 of U.P.
Recognized Basic Schools Rules 1978, the District Basic Education officer if
he was not satisfied by the recommendation made by the Selection
Committee, could at the best to return the papers to the Management with the
direction that the matter should be reconsidered by the Selection Committee.
He had no authority to reject the recommendation. Thus, the respondent No.1
exceeded his jurisdiction in passing the order dated 27.11.1998 and rejecting
the recommendation. The learned counsel appearing for respondent no.2 as
well as learned Standing Counsel have conceded that the aforesaid impugned
order is wholly illegal and without jurisdiction as stated above. Therefore, the
impugned order dated 27.11.1998 is liable to be quashed and the writ petition
deserves to be allowed.”
Taking support of aforesaid judgment learned counsel for petitioner submits
that this Court has taken a view that Basic Shiksha Adhikari has got no
authority to reject the recommendation to the post. He can return the papers to
the Management with a direction that matter should be reconsidered by
Selection Committee.
I have considered the submissions made on behalf of petitioner and learned
Standing Counsel. As ultimately, the effect of inviting counter affidavit will
be the same, therefore, with the consent of parties this writ petition is being
disposed of finally setting aside the order dated 5.11.2009 passed by Basic
Shiksha Adhikari (Annexure 7 to writ petition) and matter is remitted back to
Basic Shiksha Adhikari respondent No.2 to pass appropriate orders strictly in
accordance with observation made as well as in view of the judgment
mentioned above within a period of six weeks from the date of production of
certified copy of this order.
With these observations the writ petition is disposed of, however, without
imposing any cost.
Order Date :- 2.2.2010
SKD