Neutral Citation No. - 2025:AHC:75370 Court No. - 6 Case :- WRIT - A No. - 6305 of 2025 Petitioner :- Shyam Narayan Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ashish Kumar Singh,Jitendra Kumar Upadhyay Counsel for Respondent :- C.S.C. Hon'ble Saurabh Shyam Shamshery,J. 1. Heard Sri Birendra Kumar holding brief of Sri Ashish Kumar Singh, for the petitioner and Ms. Shruti Malviya, Brief Holder. 2. Petitioner has earlier approached this Court by way of filing Writ Petition No.31103 of 2016, Neutral Citation No.2024:AHC:29954, which was disposed of vide order dated 21.2.2024 to consider case of the petitioner, whether his appointment was in terms of Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Services of Teachers) Rules, 1978. 3. In pursuance of aforesaid order, case of the petitioner was considered, however he was unsuited by the impugned order dated 7.12.2024, mainly on two grounds i.e. no permission was granted by the District Basic Education Officer for publishing advertisement for recruitment as well as procedure for appointment was initiated before any vacancy arose. 4. Learned counsel for the petitioner submitted that petitioner was appointed in the year 2015, when there was no requirement of any permission for publishing advertisement from B.S.A. and such requirement was inserted by way of amendment in the year 2019 2 in Rules, 1978. However, the other requirement as mentioned in Rule 7 of Rules, 1978 were required to be followed. For reference, Rule 7 of Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Services of Teachers) Rules, 1978 is mentioned hereinafter: “7. Advertisement of vacancy.- [(1) No vacancy shall be filled, except after its advertisement in at least two newspapers one of whom must have adequate circulation all over the State and the other in a locality the school is situated.] (2) In every advertisement and intimation under clause (1), the Management shall give particulars as to the name of the post, the minimum qualifications and age-limit, if any, prescribed for such post and the last date for receipt of applications in pursuance of such advertisement.“ 5. Learned counsel for the petitioner refers a judgment passed by co-ordinate Bench of this Court in Writ-A No.31104 of 2016, (Tahira Tarannum Vs. State of U.P. & Ors, Neutral Citation No.2020:AHC:32998) and relevant paragraphs 13 and 14 of it are reproduced hereinafter: “ 13. On perusal of the 1978 Rules, it is evident that to initiate recruitment process for selection on the post of Assistant Teacher, no prior sanction of the State Government is required. The finding return in the impugned order to the effect that no prior concurrence of the State Government to initiate selection proceeding was taken, is contrary to the 1978 Rules. Therefore, the District Basic Education Officer, while passing the impugned order, erred in law. In regard to the finding return that there does not exist any vacancy in the institution, it is recorded that on perusal of the material on record, it is evident that one Smt. Roshan Jahan was transferred with the approval of the District Basic Education Officer on 23.7.2013, then against the vacancy which was caused due to transfer 2 of 4 3 permission was sought from the District Basic Education vide letter dated 27.5.2015 to initiate proceeding of selection on the post of Assistant Teacher. When no order was passed, to meet hardship came into existence in imparting education to the students, vacancy was advertised in two newspapers on 4.6.2016 inviting applications from the eligible and qualified candidates. Accordingly, the finding return on the point that there is no vacancy based on no material and based on non-existent ground, thus is not sustainable in law. 14. Considering the entire facts and circumstances of the case, this Court is of the opinion that impugned order suffers from apparent illegality being contrary to the Rules applicable to the institution and passed on non-existent ground. Therefore, the impugned order dated 31.03.2016 passed by District Basic Education Officer, Mau being unsustainable in law is set aside.“ 6. Learned Brief Holder fairly submitted that prior to amendment carried out in the year 2019, aforesaid Rule 7 of Rules, 1978, prior permission for publishing advertisement in two news papers was not mandatory and by referring Rule 3 of Rules, 1978 she further submitted that the process can be initiated only against the vacant seat. 7. I have considered above submissions and perused the records. 8. The petitioner has made out a case for interference in the impugned order since the concerned respondents has decided the case of the petitioner on the basis of amended provisions of Rules, 1978, however the matter was required to be considered on the basis of unamended provisions of Rules, 1978. 9. At this stage, Court is not entering into the merits of the case whether other requirement was complied with by the Committee of 3 of 4 4 Management or not and for that concerned respondent is at liberty to verify it. 10. In the aforesaid circumstances, impugned order dated 7.12.2024 passed by District Basic Education Officer, Mau, respondent no.2 is set-aside and the matter is remanded to respondent no.2 to pass a fresh order taking note of judgment passed in Tahira Tarannum (supra) as well as verify it as to whether other conditions were fulfilled or not and claim of the petitioner shall not be rejected on ground that there was no prior permission for publishing advertisement. 11. With aforesaid direction, this writ petition is disposed of. Order Date :- 9.5.2025 SB 4 of 4 Digitally signed by :- SANDEEP BHATTACHARYA High Court of Judicature at Allahabad