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Chandra Deo Chauhan v. District Basic Education Officer Mau & Ors. - WRIT - A No. 14817 of 2002  RD-AH 7514 (10 April 2006)
Hon.Shishir Kumar, J.
List has been revised. No one appears to press this petition.
I have heard Sri G.K.Singh, Advocate, who has appeared for the respondents.
The facts arising out of the present writ petition are that the petitioner has approached this Court for issuing a writ of mandamus directing the respondents to make fresh appointment in ad hoc or temporary capacity on the post of Assistant Teacher in the institution on the basis of an advertisement dated 3.4.2002 published in daily newspaper Purvanchal Sandesh and further issuing a writ in the nature of mandamus not to interfere in the peaceful working of the petitioner on the post of Assistant Teacher.
There is an institution namely as St.Joseph Junior High School, Indara, District Mau. After the retirement of one Sri Mariyanush Prakash, Assistant Teacher, one vacancy has taken place. On 7th June, 1997, on the basis of publication made by the respondent No.2 in the daily newspaper, for appointment of one assistant teacher, the petitioner applied for the said post and was selected and the appointment letter was issued on 27.6.1997. A copy of the same has been annexed as Annexure 2 to the writ petition. On the basis of the aforesaid appointment letter the petitioner has joined the post and continuously working on the said post. It has been stated that in spite of discharging the function from 1997 the services of the petitioner has not been regularized. In the meantime, an advertisement was made on 3.4.2002 for appointment on the post of Assistant Teacher in Hindi subject. When the petitioner came to know that the respondents are making some fresh appointment, he filed a writ petition for regularization.
This Court while entertaining the writ petition was pleased to pass an order on 12.4.2002 to this effect that the respondents were granted time to file a counter affidavit and any appointment made on the post in question will abide by the decision of this Court. A counter affidavit on behalf of the contesting respondents as well as the State has been filed.
The Learned Standing Counsel has submitted and stated in the counter affidavit that the record which has been produced by the Management, it appears that the petitioner is working from 1994 when the institution in question was not grant-in-aid but the petitioner submits that he is working from 1997 in the aforesaid school after the school comes under the grant-in-aid on a vacant post and has prayed for regularization. In the year 1997, there was no vacancy. In such circumstances, as there was no vacancy and without any proper selection, no regularization of the services of the petitioner can be made. If the appointment is not in conformity with the provisions of Basic School (Junior High School) Niyamavali, 1978, it cannot be considered to be an appointment.
It has been stated that the petitioner was appointed on a temporary basis by the Committee of Management to teach Class IX and X. The petitioner was never appointed in Junior High School level by the Committee of Management according to Rules and the appointment of the petitioner was never approved, as such, the petitioner cannot claim regularization. It has further been submitted by the contesting respondents that there is no provision for regularization under the Basic Education Act. The present institution being the Junior Basic School, therefore, the U.P. Recognized Basic School (Junior High School) (Recruitment and Condition of Service of teachers) Rules 1978 is applicable. Under the aforesaid Rules, the temporary appointment can be made up to junior High School level and that too for a period of six months and the same can be extended only for further period of six months only. The petitioner was never employed under Rule 1998 Rules as a temporary teacher, therefore, there is no question for consideration of regularization of the petitioner. Admittedly, the respondent has been appointed as a teacher but the salary to the contesting respondents is not being paid due to the pendency of the writ petition and due to the order of this Court.
I have heard learned counsel for the petitioner and Sri G.K.Singh, who appears for the contesting respondents and have perused the record.
From the record, it is clear that the appointment of the petitioner was not in accordance with law and after following the procedure as laid down under the Nimyawali 1978. From the averment made in the counter affidavit, it is clear that there was no vacancy and the appointment of the petitioner is in clear violation of the relevant rules, therefore, there is no question of any regularization.
In view of the aforesaid fact, the writ petition is devoid of merits and is hereby dismissed. The interim order, if any, is vacated.
There shall be no order as to costs.
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