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SMT.SNEH LATA SHARMA versus ADDL. DIRECTOR EDUCATION(BASIC) AGRA DIVISION & OTHERS

High Court of Judicature at Allahabad

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Smt.Sneh Lata Sharma v. Addl. Director Education(Basic) Agra Division & Others - WRIT - A No. 29784 of 2001 [2006] RD-AH 933 (13 January 2006)

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.30

Civil Misc. Writ Petition No. 29784 of 2001

Smt.Sneh Lata Sharma .............Petitioner

Vs.

Additional Director of Education, (Basic), Agra Division Agra

and others ................Respondents.

Hon'ble V.C.Misra,J

Heard Sri K.S.Misra,learned counsel for the petitioner, Sri P.K.Sharma, learned counsel for respondent no.2, Sri B.L.Yadav, learned counsel for respondent no.3 and learned standing counsel. Counter and rejoinder affidavits have been exchanged.

This writ petition has been filed by the petitioner against alleged interference by respondent no.3 in discharging the petitioner's duty as Head Mistress of the Saraswati Vidyalaya, Junior High School with prayer for quashing the posting of newly appointed Headmistress in place of the petitioner.

The facts of the case of the petitioner in brief are that she joined the institution of respondent no.3, as assistant teacher on 1.7.1982 and she has been continuously and uninterruptedly taking her class throughout. It is alleged that she being the senior most teacher was appointed by the Managing Committee-respondent no.3 on the post of Headmistress by way of promotion vide appointment letter dated 26.1.1998 on the vacancy having fallen vacant due to the resignation of then Headmaster-Mohd. Ismail. The institution though recognized was unaided at the time of alleged appointment of the petitioner as Headmistress. Though, the post of Headmistress was not vacant, but still an advertisement was wrongly issued and a selection committee was constituted and one Smt. Poonam Rani Sharma was illegally selected and appointed as Headmistress. It is also alleged that she was the relative to the Manager. In spite of several representations being made, no action was taken. The petitioner was forced to file the present writ petition on the ground that she had been validly appointed on the post of Headmistress by the Manager-respondent no.3 in the year 1998 and being a senior most teacher and also being one of the candidate for appointment had been illegally removed from service orally without any show cause notice or disciplinary proceedings having been initiated against her against all the principle of natural justice.

Counter affidavit has been filed on behalf of respondent no.2 wherein it has been stated that in the case of petitioner the Uttar Pradesh Recognized Basic Schools (Junior High Schools) (Recruitment & Condition of Service of Teachers) Rule, 1978 (in short the Rules, 1978) are not applicable and there is no provision to permit any assistant teacher to be appointed on the post of Headmistress. The said post could only be filled up after adopting due selection process under the Rules, 1978 and that once the petitioner herself was candidate on the said post, she has no right to be the member of the Selection Committee and once she accepted to participate in the selection process of the Committee then she should have accepted the result of the selection duly approved by the District Basic Education Officer and, therefore, the claim of the petitioner was not sustainable. The appointment of Smt. Poonam Rani Sharma was duly made in accordance with law, and she is working on the post of Head- mistress since the date of her approval. The institution is unaided and private and the salary is paid to the assistant teacher and other staff from own source of the Committee of Management. The Payment of Salaries Act is not applicable.

Counter affidavit has also been filed on behalf of respondent no.3. In the counter affidavit it has been stated that the appointment letter are issued on the letter-pad of the institution, but in the present case, the alleged appointment letter was not issued on the letter-pad of the institution, therefore, the said appointment letter of the Committee of Management filed as Annexure no.1 to the writ petition seems to be fabricated. The District Basic Education Officer directed to appoint a regular Head- mistress in the institution as the aforesaid post was lying vacant, consequently, he gave permission and the post was advertised and six candidates including petitioner and Smt. Poonam Rani Sharma, the present Headmistress applied. Smt Poonam Rani Sharma was found most suitable amongst all and was duly selected on the post of Headmistress in the institution and the petitioner was not selected. The petitioner was not permitted to join the Selection Committee as a candidate for Headmistress, because she was herself a candidate that respondent no.3 was not related to the selected candidate Smt. Poonam Rani Sharma.

Learned counsel for the petitioner has submitted that the Uttar Pradesh Recognized Basic Schools (Junior High Schools) (Recruitment & Condition of Service of Teachers) Rule, 1978 are not applicable in the present case and having once been appointed as Headmistress her services could not be discharged or removed or dismissed from service or reduced in rank or subject to any diminution in emoluments or served with notice of termination of service except with the prior approval in writing of the District Basic Education Officer in terms of Rule 15 of the aforesaid Rules.1978. Learned counsel for the petitioner has relied upon a Government Order No. Basic Shiksha Parishad/20457-897/95-96, dated 2.8.1995, which has been issued under the Uttar Pradesh Basic Shiksha Adyapak Service Rules, 1981 ( Vth Amendment), wherein it has been laid down for the post of Headmistress, the senior most assistant teacher shall be promoted and the aforesaid Rule, 1981 has been wrongly applied to the teachers/employee for the Basic Education in establishment by the Board under Rule 3 of the aforesaid Rule. The present institution does not fall within ambit of these Rules as it is a private and unaided institution and is not established by the Board.

Learned counsel for the petitioner has relied upon a judgment in the case of Tulshi Ram and others Vs. State of U.P. and others, reported in (1998 (3) E.S.C. 1617 (Allahabad) in regard with the appointment of principal of the Government College and criteria for eligibility for other appointment. He has also relied upon the case of Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and others, wherein it was held that the power to terminate the services of a permanent employee without holding any enquiry was invalid. He has also referred to paragraph 38 in respect with section 2 of U.P. Secondary Education (Removal of Difficulties) Order, 1975, where in a reference has made to fill up the vacancies of the head of the institution in case of the Intermediate College by the senior most teacher of the lecturer's grade post, which created in the case of High School raised to the level of Intermediate college or a Junior High School raised to the level of High Schools, during the current academic session, by the Headmaster of such High School or Junior High School as the case may be. These provisions also do not apply in the facts and circumstances of the present case.

I have looked into the record of the case and find that the alleged appointment of the petitioner as Headmistress was wrong and illegal being de-hors Rule, 1978. The argument of the learned counsel for the petitioner that once appointment has been made even if illegally cannot be set-aside without following the procedure laid down under Rule 15 of the said Rules, 1978 is baseless, since no right accrues to the petitioner to hold the post of Headmistress appointed de-hors Rules, 1978. An illegal order cannot be allowed to perpetuate. More so, as Rules, 1978 provided that the post of Headmistress is to be filled up by direct recruitment, it could not be filled up by way of promotion or otherwise. The initial order of appointment of the petitioner is per-se being illegal and non est and she cannot take recourse to the Rule 15 of the Rules, 1978.

In view of the above stated facts and circumstances of case, I do not find any violation of Articles 14 and 16 of the Constitution of India. A duly selected candidate has taken charge of the post of Headmistress in accordance with law and procedure laid down. There is no illegality in the impugned order dated 16.6.2000 (Annexure No.7 to the writ petition) passed by respondent no.2. The writ petition lacks merit and is dismissed. No order as to costs.

Dated: 13.1.2006

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