1. Proceedings of this Special Appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 have been instituted by the appellants-petitioners assailing the order dated 02.03.2023 passed by the learned Single Judge whereby Writ ‘A’ No. 907 of 2020 has been dismissed and the reliefs prayed for by the appellants-petitioners have been denied.

2. Heard Pt. S. Chandra, learned Counsel for the appellantspetitioners, Sri V. P. Nag, learned Additional Chief Standing Counsel representing the State-Authorities, Sri Prashant Arora, learned Counsel representing the Basic Shiksha Adhikari, Amethi [here-in-after referred to as ‘BSA’] and Shri Jay Narayan Mishra, learned Counsel representing the Committee of Management of Shri Ram Shah Junior High School, Amethi [here-in-after referred to as ‘the Institute’].

3. Learned Counsel for the appellants-petitioners has submitted that the learned Single Judge while passing the order under Appeal has not appreciated the facts and the law applicable thereto and has wrongly not granted reliefs prayed for in the Writ Petition. He has also stated that although the reasons assigned by the BSA disapproving the claim of the appellantspetitioners for their appointment as Assistant Teacher in the Institution are not tenable, however, learned Single Judge without appreciating the legal grounds raised by the appellantspetitioners challenging the Order of BSA dated 31.12.2019 has wrongly dismissed the Writ Petition.

4. On the other hand, learned State Counsel Sri V. P. Nag and learned Counsel representing BSA Shri Prashant Arora have opposed the prayers made in this Special Appeal and have submitted that the appointment of the appellants-petitioners on the post in question was made in violation of the statutory prescriptions in U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Services of Teachers) Rules, 1978 [here-in-after referred to as ‘the Rules, 1978’], as such, the claim of the appellants-petitioners of their appointment on the post of Assistant Teachers in the Institution is not tenable. They have further stated that in view of various violations of the statutory prescriptions available in the Rules, 1984, the petitioners’ claim for appointment and approval thereof has rightly been rejected by the BSA in his Order dated 31.12.1999 and hence, there is no discrepancy in the Order passed by the learned Single Judge, which is under Appeal in this case.

5. Shri Jay Narayan Mishra, learned Counsel representing the Committee of Management of the Institution, however, supports the case of the appellants-petitioners.

6. We have given our thoughtful consideration to the competing submissions made by learned counsel representing the respective parties and have also perused the records available before us on this Special Appeal.

7. Before adverting to and considering the arguments made by the learned Counsel for the parties, it is essential to note certain facts of the case which are necessary for appropriate adjudication of the issues between the parties.

8. One vacancy on the post of Assistant Teacher (Basic) arose in the institution, namely, Sri Ram Shah Junior High School, Tikari, Amethi on 30.06.2012 and thereafter another such vacancy on the same post arose on 31.03.2017. As per the case set-up by the appellants-petitioners, an information about the occurrence of these vacancies was furnished to the Basic Education Officer concerned on 18.04.2017 seeking his permission to advertise the same for the purpose of making selection for appointment against these two vacancies. It is the case of the appellants-petitioners that a reminder was also sent on 11.05.2017 and since nothing had happened on the prayer for permission to advertise the posts, the Committee of Management of the Institution filed Writ Petition No. 12099 (MS) of 2017 which was finally disposed of by a learned Single Judge of this Court by means of the order dated 29.05.2017 whereby the Committee of Management was permitted to make a fresh representation in respect of it’s grievances to the Basic Education Officer, Amethi, who, in turn, was directed to consider and decide the same within a period of six weeks from the date of receipt of such representation. The representation, however, was rejected by the Basic Education Officer vide his order dated 09.08.2017. Challenging the said order dated 09.08.2017, the Committee of Management filed another writ petition, namely, Writ Petition No. 20786 (MS) of 2017 wherein an order was passed on 05.09.2017 requiring the Basic Education Officer to look into the judgment dated 31.01.2017 passed in Writ-A No. 58220 of 2016 and the order dated 19.08.2017 passed in Writ Petition No. 18830 (MS) of 2017. The Basic Education Officer thereafter passed an order dated 08.09.2017 whereby he defferred the earlier order dated 09.08.2017 and directed the Committee of Management of the institution to furnish certain information in Form – 1 to Form – 5 pursuant to the Circular dated 23.08.2017 issued by the Director of Basic Education in relation to the Government Order dated 15.09.2014. The Committee of Management by the said order dated 08.09.2017 was also required to furnish information in respect of there being no dispute in the Committee of Management, the details of teachers working and also that of the vacancies subject-wise and other relevant facts alongwith the proposal of the Committee of Management so that the prayer for grant of permission to proceed with the selection to fill-up the posts of Assistant Teacher may be considered and accorded.

9. The Committee of Management is said to have responded to the order dated 08.09.2017 by means of its letter dated 10.09.2017. However, the Basic Education Officer has strongly denied that any such letter dated 10.09.2017 was ever received in his office. Even there is nothing on record on this Special Appeal which can establish that the letter dated 10.09.2017 said to have been sent by the Committee of Management to the Basic Education Officer was ever received in his office. There is no postal receipt available on record which can establish that the said letter dated 10.09.2017 was received in the office of the Basic Education Officer. The Committee of Management thereafter issued an advertisement on 26.09.2017 in daily newspaper ‘Aaj’ as also in another daily newspaper, namely, ‘Voice of Musafir’. The advertisements which are available at page Nos.159 and 160 of Special Appeal do not however spell out the requisite information so that all the eligible candidates could have applied for their participation in the selection for appointment to the posts in question. It is alleged by the learned Counsel for the appellants-petitioners that on 24.10.2017, an interview was held wherein the appellants-petitioners participated and based on the said interview, the Committee of Management appears to have passed a resolution on 25.10.2017 which is available at page No.163 of Special Appeal. The said alleged resolution of the Committee of the Management of the Institution dated 25.10.2017 is only signed by the Manager and it is not signed by any other Member of the Committee of Management. Further submission of the learned Counsel for the appellantspetitioners is that the papers relating to selection of the appellants-petitioners which took place in the interview held on 24.10.2017 were sent to the Basic Education Officer by means of a letter dated 28.10.2017 said to have been written by the Manager of the Institution.

10. It is to be noticed that the said letter dated 28.10.2017 has been strongly denied to have been received in the Office of Basic Education Officer. Moreover, the said letter contains certain enclosures, such as the documents relating to all the candidates, who had applied, the list of selected candidates dated 24.10.2017, a copy of advertisement dated 26.09.2017, a copy of resolution dated 25.10.2017, Form – A and Form – B dated 25.10.2017 and a Certificate that the selected candidates were not related to the Members of the Committee of Management. The appellants-petitioners are said to have been appointed under an order dated 30.11.2017 passed by the Management. However, since they were not being paid salary, they instituted Writ Petition No. 9992 (SS) of 2019. It is to be noticed at this juncture itself that the appointment order dated 30.11.2017 was issued without any requisite approval as per the requirement of the Rules, 1978 from the Basic Education Officer. The said Writ Petition No. 9992 (SS) of 2019 was disposed of by a learned Single Judge of this Court by means of an order dated 22.10.2019 with a direction to the Basic Education officer to pass appropriate order on the pending representation said to have been preferred by the appellants-petitioners in accordance with law. The Court had clearly indicated in the order dated 22.10.2019 that it had not gone into the merit of the claim of the appellants-petitioners and it was for the Basic Education Officer to consider all aspects of the matter and take a decision in accordance with law. The Basic Education Officer thereafter considered the matter in compliance of the order dated 22.10.2019 and rejected the claim of the appellants-petitioners by means of the order dated 31.12.2019 stating various reasons including the reason that by means of letter/order dated 08.09.2017, the Office of Basic Education Officer has sought from the Management of the Institution various relevant informations in Form No.1 to Form No.5 so that the matter relating to permission for selection to the posts in question may be considered and requisite permission may be accorded. The Basic Education Officer in his order dated 31.12.2019 has further observed that on account of the fact that there was a dispute in the Committee of Management in respect of which Special Appeal No. 144 of 2018 was pending before this Court wherein the order passed by the Deputy Registrar, Firms, Societies and Chits, Faizabad Division, Faizabad was stayed by means of an order dated 09.04.2018, as such the Basic Education Officer did not accord any permission for advertising the posts in question for recruitment. The Basic Education Officer has already categorically stated in the said order dated 31.12.2019 that the Management did not furnish any information in pursuance of the letter/Order of the Basic Education Officer dated 08.09.2017.

11. The Basic Education Officer while passing the order dated 31.12.2019 referred to Rule 7 (1) of the Rules, 1978, according to which the advertisement shall contain minimum eligibility qualification, the age limit, if any and the last date of submission of the application form. The Order dated 31.12.2019 passed by the Basic Education Officer also refers to Rule 9 of Rules, 1978 according to which for the post of Assistant Teacher, a selection committee shall be constituted which will comprise of (i) Manager of the Institution; (ii) an Officer nominated by the District Basic Education Officer and (iii) Headmaster of the Institution, where the appointment is to be made. The Basic Education Officer in his order dated 31.12.2019 also referred to a Government Order dated 31.10.2019 whereby a ban was imposed on appointments in the non-government aided institutions, as the process of amending the Rules, 1978 was in the last phase. Thus, when we peruse the order dated 31.12.2019 passed by the Basic Education Officer whereby the representation of the appellants-petitioners claiming that approval to their appointment be granted and accordingly they may be allowed to be paid salary of the post of Assistant Teacher has been rejected, what we find is that the Basic Education Officer has assigned three reasons for the same. The first reason assigned by the Basic Education Officer is that no permission for advertising the post in question was accorded by the Basic Education Officer and further that the advertisements published by the Committee of Management do not contain the requisite particulars as per the requirement of Rule 7 of Rules, 1978. The second reason assigned by the Basic Education Officer while rejecting the claim of the appellantspetitioners by passing the order dated 31.12.2019 is that the Selection Committee which is said to have conducted the selection was not constituted in terms of the statutory requirement for the reason that no Member of the Committee nominated by the Basic Education Officer was present and hence the selection held by such a Selection Committee being illegal, cannot be approved of. The third reason assigned by the Basic Education Officer in his order dated 31.12.2019 is that the State Government has imposed a ban on appointments in privately managed aided institutions by means of Government Order dated 31.10.2019, hence no appointment can be permitted.

12. It is the aforesaid order dated 31.12.2019 passed by the Basic Education Officer which was challenged by the appellantspetitioners by filing Writ-A No. 907 of 2020 which has been dismissed by a learned Single Judge of this Court by means of judgment and order dated 02.03.2023 which is under appeal before us in this Special Appeal.

13. From the pleadings available on record as also from the respective submissions made by the learned Counsel representing the parties, the issue which emerges for consideration in this case is as to whether the reasons assigned by the Basic Education Officer while passing the order dated 31.12.2019 rejecting the claim of the appellants-petitioners for grant of approval to their appointment and in turn for payment of salary are tenable or not.

14. It is needless to observe at this juncture that in case the appointment against a post is governed by the statutory prescriptions available under some statutory Rules, the appointment has to be necessarily made by following the procedure as prescribed in the Rules and in case such appointment is made without following the Rules, the same would not be permitted to be sustained being de hors the Rules. So far as filling-up the posts of Assistant Teacher are concerned, the same are governed by the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Services of Teachers) Rules, 1978 which are statutory in nature having been framed under the relevant provisions of Basic Shiksha Adhiniyam. Rule 3 of Rules, 1978 provides that it shall be the responsibility of the Management to fill a vacancy. Rule 7 of Rules. 1978 provides that any vacancy to be filled-in will be advertised in two daily newspapers one of which should have circulated in the State of U.P. and the other should have local circulation. The provisions contained in Rule 7 specifically provide that the advertisement to be published for the purposes of inviting applications for selection shall contain the name of the Management, the minimum qualification for the post and the minimum age limit, if any for the post in question. It also mandates that such advertisement shall also contain the last date of submission of the application form. It also requires that the management will get justification for filling up the post and it is only on the permission to be accorded by the Basic Education Officer that the advertisement shall be issued.

15. The advertisements admittedly published in this case are on record at page Nos.159 and 160 of this Special Appeal. The tenor of language used in the said advertisement is as follows:-

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

16. A perusal of the aforesaid advertisement clearly establishes that the same is not in conformity with the requirement of Rules 1978. As per the statutory requirement, Rule 7 of Rules, 1978 the advertisement shall contain necessarily the minimum qualification for the post in question and the age limit, if any, prescribed for the post. The advertisements which are on record before us do not indicate as to what is the minimum qualification for the post in question. The advertisement is said to have been published on 26.09.2017 and the last date for submission of application form indicated in the advertisement was 12.10.2017.

17. At this juncture, we may observe that the requirement of publishing minimum qualification for the post to be filled-in in the advertisement has a rationale. Undoubtedly, any recruitment followed by appointment in a government aided institution lies in the realm of public employment and one of the requirements of the proceedings with any process for public employment is to publicize the information relating to process of recruitment amongst all eligible candidates. In case an advertisement as per requirement of Rule 7 of Rules, 1978 does not contain the requisite qualification for the post to be filled-in, in our considered opinion that may lead to a situation where all eligible candidates may not have such information which will deprive of their fundamental right enshrined in Article 16 of the Constitution of India which ensures that every eligible candidate will have fundamental right of consideration of appointment in public employment.

18. Since in this case an advertisements published by the Committee of Management for the posts in question were themselves not in conformity with the statutory requirement as provided in Rule 7 of Rules, 1978 any subsequent proceedings conducted thereafter, in our opinion, will be vitiated and also hit by Article 16 of the Constitution of India inasmuch as that deficiency in the advertisement regarding the eligibility qualification for the post in question would lead to denial of many eligible candidates of their fundamental right of participation in the selection.

19. So far as the other reason given by the Basic Education Officer while rejecting the claim of the appellants-petitioners by passing the order dated 31.12.2019 that the Selection Committee which is said to have conducted the selection was not properly constituted as no Member of the Selection Committee nominated by the Basic Education officer was present is concerned, we may note that Rule 9 of Rules, 1978 prescribes the constitution of Selection Committee for the post of Assistant Teacher which is to comprise of (i) Manager of the Institution, (ii) Headmaster of the recognized school in which appointment is to be made and (iii) a nominee of Basic Education Officer.

20. It is not in dispute that the Selection Committee which is said to have conducted the selection on the post of Assistant Teacher in the School in question did not comprise of the nominee of the Basic Education Officer. An explanation has been sought to be given by the learned Counsel for the appellants-petitioners as also the learned Counsel representing the Committee of Management that despite request made to the Basic Education officer when he did not nominate any Member to participate in the Selection Committee, the selection was conducted by two Members, i.e., the Manager and Principal of the School and since the selection in this case was conducted by majority of the members of the Selection Committee, as such no fault can be found in the Selection Committee. In support of the submission of this ground, learned Counsel for the appellants-petitioners has relied upon the judgment of a learned Single Judge of this Court in the case of Dhirendra Pratap Singh v. State of U.P. and others [2019 (7) ADJ 250 (LB)].

21. So far as the aforesaid judgment in the case of Dhirendra Pratap Singh (supra) is concerned, the same does not have any application in this case for the reason that the Committee of Management is said to have made the request for nominating the Member of the Selection Committee to the Basic Education Officer by means of a letter dated 26.09.2017. However, this fact has categorically been denied by the Basic Education Officer by stating that no such letter was ever received in the Office of Basic Education Officer. The letter dated 26.09.2017 is on record which is written by the Manager of the Institution, however alongwith the documents enclosed with the Special Appeal as also with the Writ Petition, no document was enclosed by the appellants-petitioners which could establish that the said letter was ever received in the Office of Basic Education Officer. The documents available before us do not even contain a postal receipt on the basis of which it can be said that the alleged letter dated 26.09.2017 was even sent by post to the Basic Education Officer. Thus, in absence of any request as contained in the letter dated 26.09.2017 for nomination of a Member of the Selection Committee in the Office of Basic Education Officer, the judgment cited by the learned counsel for the appellants-petitioners in the case of Dhirendra Pratap Singh (supra) is of no avail to the appellants-petitioners.

22. So far as the third reason of there being a ban of the State Government on the fresh appointments is concerned, we need not go into for the reason that we have already found that the selection and consequent appointment in this case was not made as per the statutory requirement and the mandates contained in the Rules, 1978 which govern the conditions of service of Assistant Teacher in an aided school including their appointment.

23. There is yet another argument which has been made by the learned counsel for the appellants-petitioners which is based on the provisions contained in Rule 10(5)(iii) of Rules, 1978 according to which once the selection is held and all the relevant papers relating to Selection Committee are to be sent by the management of the institution to the Basic Education Officer and in case the Basic Education Officer does not communicate his decision regarding approval/disapproval of the selection within one month from the date of receipt of the papers, the Basic Education Officer shall be deemed to have accorded approval to the recommendation made by the Selection Committee. Thus a case has been set up by the learned counsel for the appellants-petitioners that on conclusion of selection process after interview which was held on 24.10.2017, the requisite papers were sent by the Committee of Management on 28.10.2017 to the Basic Education Officer seeking his approval to the selection/appointment and since no approval/disapproval was communicated to the Committee of Management by bereft of the provisions contained in Rule 10(5)(iii) of Rules, 1978, the Basic Education Officer would be deemed to have accorded his approval to the recommendations made by the Selection Committee. Reliance in support of this submission has been placed by the learned Counsel for the appellants-petitioners on the judgment of a learned Single Judge of this Court in the case of Sanjay Kumar Singh v. State of U.P. and others [2019 (5) ADJ 583 (LB)].

24. We are afraid, we cannot agree with the aforesaid submissions having regard to the facts of the instant case. The letter dated 28.10.2017 by means of which the requisite papers relating to selection were allegedly sent by the Manager of the School to the Basic Education Officer has been categorically denied to have been received in the office of Basic Education Officer. In case no such papers relating to selection pursuant to the alleged interview held on 24.10.2017 were received in the office of Basic Education Officer, the question of there being deemed approval of the Basic Education Officer to the recommendation of the Selection Committee in this case does not arise at all. The appellants-petitioners as also the Committee of Management of institution has utterly failed to establish the factum of letter dated 28.10.2017 allegedly containing the requisite papers relating to selection of the appellants-petitioners, to have ever received in the Office of Basic Education Officer.

25. Since the requisite papers relating to selection of the appellantspetitioners were never received in the Office of Basic Education Officer, the law laid down by the learned Single Judge in the case of Sanjay Kumar Singh (supra) also will have no application to the facts of the present case and the same does not in any way help the appellants-petitioners.

26. When we examine the judgment rendered by the learned Single Judge dated 02.03.2023 which is under appeal herein, what we find is that the learned Single Judge has elaborately considered all the aforesaid aspects of the matter and has given a finding that the alleged selection/appointment of the appellantspetitioners was made in utter violation of various statutory provisions contained in Rules, 1978, specifically Rules 7, 9 and 10. Nothing has been brought to our notice by the learned counsel for the appellants-petitioners as also learned counsel representing the Committee of Management of the School in question which can persuade us to take a view different from the view taken by the learned Single Judge.

27. Resultantly, the Special Appeal fails which is hereby dismissed.

28. There will be however no order as to costs.