Wednesday, January 18, 2012

DECESION OF 11.01.2012

DECESION OF 11.01.2012

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Deputy Registrar(Copying).


Court No.
- 33

Case :- WRIT - A No. - 76039 of 2011

Petitioner :- Yadav Kapildev Lal Bahadur
Respondent :- State Of U.P. & Others
Petitioner Counsel :- Alok Kumar Yadav,Rajesh Yadav
Respondent Counsel :- C.S.C.,K.S. Kushwaha

Hon'ble Sudhir Agarwal, J.
1. Pursuant to this Court's order dated 4.1.2012, Sri Anil Sant, Secretary, Basic Education and Sri Indrapal Sharma, Secretary, U.P. Basic Education Board are present. An affidavit has been filed on behalf of respondent no. 1 purported to be in compliance of this Courts' order dated 4.1.2012. Sri K.S. Kushwaha, learned Standing Counsel started his argument by submitting that respondent no. 1 and 2 both were required to justify only how the advertisement was issued on behalf of all District Basic Education Officers and whether it is so permissible under the Rules. He contended that under Rule 13 of U.P. Basic Education Act, 1972 (hereinafter referred to as "Act, 1972") such power is possessed by State Government. He also stated that in purported exercise of power under the aforesaid provision, a Government Order dated 27.9.2011 was issued after a decision was taken to this effect by the Cabinet. A copy of the said Government Order is Annexure 3 to the affidavit of respondent no. 1, Sri Anil Sant, Secretary, Basic Education. He read the aforesaid Government Order, but when enquired as to where this Government Order authorizes the Board of Education to publish an advertisement calling applications for appointment on the post of Assistant Teacher is discard of Rule 14 (1) since though under Rule 14 (1) of Rules, 1981 such power is conferred upon Appointing Authority i.e. District Basic Education Officer, and none else, he firstly said that he shall go through entire Order but when asked whether entire order anywhere authorizes the Board to make such advertisement on behalf of the Appointing Authority, he could not give any reply and said that he would have to obtain further instructions and shall file counter affidavit for which time should be granted. This very question was put to Sri Sant, Secretary himself, and he also stated that on behalf of all District Basic Education Officer, the advertisement was published by Board but ultimately the appointments shall be made by Appointing Authority and therefore in his understanding there is no error in the matter. However, he also could not show whether the Board specifically was authorized by Government in exercise of power allegedly under Section 13 of Act, 1972, to exercise power of Appointing Authority under Section 14 (1) of Rules, 1981 for the purpose of advertisement for making selection and appointment on the post of Assistant Teacher.
2. Learned Chief Standing Counsel, however, fairly stated that this matter requires serious consideration and for that purpose he may be allowed some time to file counter affidavit.
3. Ex facie after hearing submissions of learned counsel for parties as also Secretary, Basic Education who has appeared in person, I find that the real issue which is to be replied by respondents is, whether for making selection and appointment on the post of Assistant Teachers in primary schools governed by Rules, 1981, can an advertisement be made by an authority other than the Appointing Authority, i.e. District Basic Education Officer. When law require something to be done in a particular manner, any other mode and manner is prohibited, illegal and void-ab-initio and anything has to be done in the manner prescribed in statute otherwise it is illegal and void ab-initio. At this stage, I do not propose to make any further observation in the matter except that after having gone through the entire Government Order dated 27.9.2011 I find that it lays down procedure for making selection for providing six months training but for the purpose of selection and appointment which is governed by Rules, 1981, the said Government Order does not make ppointment which is govenred ths training but for the purpsoe r dated 27.9.2011 I find that it lays down proceduany deviation therein and on the contrary at different places stress upon its strict compliance. Since learned counsel appearing for respondents have sought time, I defer the hearing in the matter further.
4. As prayed by learned Chief Standing Counsel, list/put up this matter on 1.2.2012 to enable him to file a detailed counter affidavit. He also submitted that there are some other matters involving the same question, therefore, they may be connected with this matter and may be heard together. Let all similar matter be connected.
5. Interim order, already granted, shall continue till the next date of listing.
6. Personal appearance of respondents 1 and 2 is exempted unless required otherwise.
Dt. 11.1.2012

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