[U.P. Recognised Basic School Rules] Employee Shall Be Entitled To Pay If Initial Approval Of Appointment Not Recalled: Allahabad High Court

The Allahabad High Court has held that under the U.P. Recognised Basic School Rules (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978, an employee shall be considered to be in service and entitled to his pay if no adverse action or order of termination is issued against him.

“The salary of the petitioners cannot be withheld or stopped unless the petitioners are suspended or dismissed from service,” held Justice Piyush Agrawal.

Case Background

Petitioners applied for the post of Assistant Teacher in the Keshav Nath Senior Basic School in the district of Jaunpur. Having conducted their interviews and finding them to be the most suitable candidates, the petitioners were recommended for selection by the Selection Committee. The Authorised Controller appointed to the institute then forwarded all the required documents related to the said selection to the District Basic Education Officer.

On being satisfied with the documents, on 21.08.2003, the District Basic Education Officer awarded the petitioners an approval for their selection to the post of Assistant Teacher. Petitioners joined the posts and were paid their salaries on a regular basis. However, by an interim order passed in a writ petition, instituted by one 'Bachai Singh', the payment of salaries to the petitioners was stayed.

The writ petition was dismissed by order dated 11.04.2018 and the interim order stood vacated, in the meantime, an enquiry was made in 2008. On the basis of the report dated 24.08.2008, wherein it was stated that the petitioners had been colluding with the State Authorities, the salaries of the petitioners were again withheld and they were stopped from working on their appointed posts. Further, with regard to the report of 2008, FIRs were lodged against the petitioners and chargesheets had subsequently been issued. In response, petitioners filed an application under Section 482 of the CrPC in which an interim order had been passed. Aggrieved by the discontinuance of their salary, the petitioners approached the High Court with a writ petition under Article 226 of the Constitution.

Counsel for petitioners argued that their appointments to said posts were approved by the District Basic Education Officer, Jaunpur and that the procedure had been followed correctly in that regard. It was contended that nothing had been established to the contrary by the respondents, and their appointments could be termed to be irregular at best.

Counsel for respondents submitted that specific provisions of the Uttar Pradesh Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers), Rules, 1978, had not been followed while appointing the petitioners to their posts and thus, the appointment of the petitioners had been illegal. It was argued that the authorities were justified in withholding their salaries.

High Court Verdict

The Court held that there was only a “bald allegation” about the collusion of the petitioners with the State Authorities and that no proof had been presented to establish the same. The Court relied on the judgment of the Supreme Court in Radhey Shyam Yadav v. State of U.P. And Ors., where in similar circumstances, it was held that a mere allegation of collusion, without any substantive proof, would not justify withholding the salary of an individual appointed to the post of an Assistant teacher.

The Court held that the State Authorities had taken a conscious decision and awarded approval for the selection of the petitioners by order dated 21.08.2003 to the posts of Assistant Teacher. It was held that as per the decision of the Supreme Court in Md. Zamil Ahmad, where the State has of its own accord condoned a lapse due to the passage of time, it would not be permissible to them to raise an issue based on such an error and terminate the services of the employee in question.

The Court held that the appointment of the petitioners could not be said to be illegal as the selection interviews were made in the presence of the nominee of the District Basic Education Officer. It was stated that it was only after the satisfaction of the District Basic Education Officer that the approval was granted to the petitioners on 21.08.2003.

Reliance was placed on Vinod Kumar and Ors. v. Union of India, where the Apex Court had distinguished between “irregular” and “illegal” appointments and held that even if appointments were not made in strict accordance with the prescribed rules, they could not be said to have been made in contravention of the law.

The Court also placed reliance on Nahar Singh and Ors v. State of U.P. and Ors., where the Supreme Court held that the appointments of the petitioners (in that case) could not be disturbed only on the basis of the alleged lack of qualification, given that they had been in service for a long period of time.

Further, keeping in view the decision of the Allahabad High Court in Basic Shiksha Adhikari, District Basti and Anr. v. Uday Pratap Singh and Ors., the Court held that it was not the case of the respondents that the petitioners had committed fraud in getting their appointments.

Justice Agrawal held that the salary of the petitioners could not be withheld unless the petitioners were suspended or dismissed from service as held by the Allahabad High Court in Committee of Management of Dadaur Inter College, Dadaur, Rae Bareilly v. District Inspector of Schools, Rae Bareily And Ors.

“As long as they are teachers in the institution and their appointment subsists, they are entitled to their salary,” had held the Allahabad High Court.

The Court observed that the respondents had to date not brought on record any proof to show whether, in the furtherance of the report dated 24.03.2008, any form of adverse action was passed against them. It was held that the respondents had only resorted to filing an F.I.R. against the petitioners and had not even recalled the order by the District Basic Education Officer, awarding them their appointment.

The Court held that termination of services could not take place in such a situation without holding a disciplinary enquiry beforehand.

The Court held that the appointment of the petitioners was never recalled, and thus with regard to the judgement in Radhey Shyam Yadav v. State of U.P. and Ors., their appointments would still be in force. It was held that the petitioners would be deemed to in service and would be entitled to receive arrears of salary with all consequential benefits.

“The conduct of the respondent authorities shows that the petitioners are only made scape goat leaving aside the role of the erring officers,” held the Court.

The Court directed the respondents to pay the petitioners the arrears of salary and all the consequential benefits that they were entitled to on the basis of such service.

Accordingly, the writ petition was allowed.

Case Title: Sanjay Kumar and 3 Ors. v. District Basic Education Officer, Jaunpur and 2 Ors. 2024 LiveLaw (AB) 399 [WRIT - A No. - 23843 of 2018]

Citation: 2024 LiveLaw (AB) 399

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