Shiksha Prasar Samiti v. State of U. P. — 1985 DIGILAW 173 (ALL)

JUDGMENT : S. SAGHIR AHMAD, J. 1. The Petitioner is a registered society which established Janta Junior High School in 1969. The school was granted temporary recognition but in 1974 it was granted permanent recognition and then with effect from 1-7-74 one Sri Ram Prakash Misra, M.A. B.Ed. was appointed as its Head Master. In 1980 the school was raised to High School and was recognised as such by the Board of High School and Intermediate Education (for short, Board) established under the U.P. Intermediate Education Act and is now being run under a duly approved scheme of Administration. Sri Ram Prakash Misra continued as Head Master of the upgraded Janta High School and he was also approved by the Managing Committee, as he possessed the necessary qualifications in that regard. The school, it is claimed, is not an aided institution and is not on the list of grants-in-aid institutions so the salaries to the teaching and non-teaching staff are paid by the Managing Committee and it is not the responsibility of the Government to pay salary to the said stati, as the provisions of the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 is not applicable. 2. In 1981 U.P. Secondary Education Service Commission and Selection Board Ordinance (Ordinance No. VIII of 1981) was promulgated which was later replaced by U.P. Ordinance No XXIII of 1981 and then by U.P. Act V of 1982 with retrospective effect from 14-7-81, the date on which the Ordinance was first promulgated. Under this Act the appointment to the post of head of the Institution and teachers are to be made through Commission or Board constituted thereunder. 3. The post of Head Master of the upgraded Janta Higher Secondary School (hereinafter to be referred to as the Schools) was advertised by the U.P. Secondary Education Service Commission (for short, Commission) on 9th April, 1983 through the advertisement contained in Annexure 1 to the writ petition. Subsequently the Commission by its letter dated December 9, 1983 (annexure 2) directed the Petitioner to appoint Sri Ras Behari Misra (opposite party No. 5) as the Principal of the Janta Higher Secondary school. Subsequently the Commission by its letter dated December 9, 1983 (annexure 2) directed the Petitioner to appoint Sri Ras Behari Misra (opposite party No. 5) as the Principal of the Janta Higher Secondary school. It is this selection and appointment which has been impugned in the present writ petition on the grounds, inter alia that U.P. Act V of 1982 was not applicable to the institution in question which was not on the list of grants-in-aid institutions and that, in any case, the post of head of the institution was not vacant which could be advertised or on which an appointment could be directed to be made by the commission as Sri Ram Prakash Misra, Head Master, appointed by the Managing Committee, was already working on that post after the institution was raised to High School and recognised as such by the Board. It has also been contended that the provisions of the Act are ultra vires the Constitution, as it restricts the functioning of the members of a registered society, who under Article 19 have fundamental right to form association and to act through the society or the association. Since under U.P. Act V of 1982 the members could not make appointment of the teachers including the head of the institution, their functioning it is claimed, has been curtailed and, therefore, the Act is hit by Article 14 and 19 of the Constitution. The Petitioner Society has also contended that the regulations made under the U.P. intermediate Education Act were still available and consequently under Regulation 4 of Chapter II of the Regulations, the permanent and temporary teachers of the Janta Junior High School became the permanent and temporary teachers of the Janta Higher Secondary School. The provisions of Regulation 4 though they speak of teachers only, would be treated to cover the case of the head of the institution also so that Sri Ram Prakash Misra, who was also otherwise quailed, as lie possessed the degrees of M.A. and B.Ed., became the Principal of the Janta Higher Secondary School, particularly when he was also approved by the Managing Committee for the said post. The Commission in this situation had no jurisdiction to advertise the post or to make any appointment on the said post. 4. Let us first take up the question of vires of the Act. The Commission in this situation had no jurisdiction to advertise the post or to make any appointment on the said post. 4. Let us first take up the question of vires of the Act. We may in this connection point out at the very out set that the Petitioner has not laid a strong foundation in this writ petition for challenging the vires of the Act. The pleadings set out in the writ petition do not make out a case that the Act is ultra vires the Constitution. The necessary averments, of facts m this regard arc contained in paras 13 and 19 of the petition which are reproduced below: 13. That the application of the said Act No. V of 1982 upon the institution of the Petitioner is wholly arbitrary, either it is not applicable or it is applicable then it is ultra vires to Articles 14 and 19(1) of the Constitution of India 19. That the Petitioner being a registered society had a right to carry out its lawful activities in pursuance of its objects manage its affairs, including the appointment of the teachers and the Secondary Education Service commissions Act cannot totally curtail or take away the functions of the society, this restriction is beyond the scope of Article 19(ii) of the Constitution of India and is not a reasonable restriction. 5. How the Act is discriminatory or arbitrary in its application to various institutions has not been spelt out with any precise clarity. The averments are vague and general in character and it is not possible to hold on the basis of the pleading contained in the writ petition that whole of the Act or any part thereof is ultra vires the Constitution. 6. Article 19(1)(a) lays down that all citizens shall have a right to form association or unions. Article 19(4) provides that nothing in Sub-clause (c) shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of public order or morality, reasonable restrictions on the exercise of the right conferred by the said Sub-clause. 7. Clause (1)(c) of Article 19 guarantees the right to form associations or unions. This clause has to be read with Clause (4) which permits the imposition of legal restrictions in the interest of public order or morality. 7. Clause (1)(c) of Article 19 guarantees the right to form associations or unions. This clause has to be read with Clause (4) which permits the imposition of legal restrictions in the interest of public order or morality. The restriction imposed should not only be in the interest of public order or morality but must also be reasonable. U.P. Act No. V of 1982 does not restrict the right of the citizens to form associations or unions. The members who constitute Petitioner society are free to form as many associations or unions as they likes The right to form association is different from making appointment of teachers in an institution. The Supreme Court in D.A.V. College, Vs. State of Punjab and Others, AIR 1971 SC 1737 has held that compulsory affiliation of an institution run by a society docs not affect the right to form association guaranteed under Article 19. In any case, the activities of the members of the association can be reasonably regulated in the interest of public order or morality. The U.P. Act V of 1982 is, therefore, neither discriminatory nor violative of any right under Article 19 of the Constitution. 8. It was noticed, as it was common knowledge, that the management of private institutions were not always fair in the matter of appointment of teachers or head of the institutions. The extraneous consideration, and not the merit of the candidates, always weighed with the management in the matter of appointments. The Legislature, therefore, intervened by restricting the rights of the management to make appointment at their will and statutory control was provided by an amendment in the U.P. Intermediate Education Act. Strangely, these provisions are not challenged by the Petitioner but he challenges U.P. Act No. V of 1982 which is uniformly applicable to all institutions and which inter alia, provides that the appointment shall be made through the Commission or Selection Board. 9. The contention of the Petitioner that U.P. Act No. V of 1982 is not applicable to the institution in question is equally without merit. The applicability of the Act is not dependent upon the institution being on the list of grants-in-aid institutions. Whether it receives or does not receive any grant from the Government is immaterial. What is material is that it should be a recognised institution. 10. The applicability of the Act is not dependent upon the institution being on the list of grants-in-aid institutions. Whether it receives or does not receive any grant from the Government is immaterial. What is material is that it should be a recognised institution. 10. Under the U.P. Intermediate Education Act, the Board has been constituted to conduct the High School and Intermediate examinations. Only those institutions as are recognised under the Act by the said Board are entitled to send students to examinations conducted by the Board. The word "recognition" has been denned in Section 2(d) which means recognition for the purposes of preparing candidates for admission to the Board's examination. "Institution" has been defined u/s 2(b) as a recognised Intermediate College, Higher Secondary School or High School. The constitution of the Board is provided u/s 3 and the powers of the Board have been specified in Section 7. Clause (3) empowers the Board to conduct examinations at the end of High School and Intermediate courses. Clauses (4) and (5) authorise it to recognise an institution for the purposes of its examination and to admit candidates to such examinations. Clause (g) empowers the Board to call for reports from the Director of Education on the condition of recognised institutions or of an institution applying for recognition. Section 7-A provides that an order of the Board giving recognition to an institution for the first time shall not have effect until it is approved by the State Government. Section 13 authorises the Board to appoint various committees including the Recognition Committee. u/s 15(2)(c) the Board has the power to make regulations laying down the conditions of the recognition of the institutions for the purposes of its examinations. Section 16-A provides that there shall be a scheme of administration in every institution. Section 16-E lays down the procedure for selection of teachers and head of the institution. Section 16-F deals with selection committee while Section 16-G deals with conditions of service of the head of the institution, teachers and other employees and provides that conditions of service may be prescribed by regulations 11. It is thus clear that an institution which is a recognised institution would be governed by the provisions of U.P. Intermediate Education Act. Section 16-F deals with selection committee while Section 16-G deals with conditions of service of the head of the institution, teachers and other employees and provides that conditions of service may be prescribed by regulations 11. It is thus clear that an institution which is a recognised institution would be governed by the provisions of U.P. Intermediate Education Act. u/s 2(e) of U.P. Act V of 1982 "institution" means an Intermediate College or Higher Secondary School or High School recognised under the U.P. Intermediate Education Act, 1921. Section 16 of the Act provides that notwithstanding anything to the contrary contained in the Intermediate Education Act or regulations made thereunder, every appointment of a teacher specified in the Schedule shall on or after July 10, 1981 be made by the management only on the recommendation of the Commission or the Board constituted under the said Act. The Head Master of a High School is a post which is included in the Schedule. 12. Since U.P. Act No. V of 1982 applies to all recognised institutions, the post of the Head Master or the Principal in any such school can be filled only through the selection made by the Commission. Learned Counsel for the Petitioner in support of his contention that U.P. Intermediate Education Act as also U.P. Act V of 1982 apply only to aided institutions, has placed reliance on a decision of this Court in City Montessori Schools v. District Inspector of Schools 1983 AWC 614. It has been pointed out by the Learned Counsel for the Petitioner that the decision in City Montessori Schools' case (Supra; has been explained by a Division Bench of this Court in 1984 Education Cases 92 committee of Management of Sri Shankaracharya Inter College v. District Inspector of Schools Sultanpur decided on 6-1-84. We have looked into both the judgments. The institutions in that case were recognised institutions but they were not receiving any aid from the Government. The services of teachers were terminated without complying with the provisions of Section 16-G(3)(a) of the U.P. Intermediate Education Act under which it was mandatory to obtain prior approval in writing of the District Inspector of Schools with regard to the notice by which services of teachers were proposed to be terminated. The services of teachers were terminated without complying with the provisions of Section 16-G(3)(a) of the U.P. Intermediate Education Act under which it was mandatory to obtain prior approval in writing of the District Inspector of Schools with regard to the notice by which services of teachers were proposed to be terminated. Similarly, services of teachers of certain other City Montessori Schools which were governed by the provisions of the Basic Shiksha Adhiniyam were terminated without prior approval of the Zila Basic Shiksha Adhikari. The termination orders were declared to be illegal by the District Inspector of Schools and the Zila Basic Shiksha Adhikari who directed the management to re-instate the teachers. The Division Bench comprising of Hon'ble K.N. Goyal and Hon'ble R.C. Deo Sharma, JJ. held as under: (i) Notwithstanding that the prior approval of the District Inspector of Schools or Zila Basic Shiksha. Adhikari was not obtained as to the proposed termination of services of teachers, the said authorities i.e. the District Inspector of Schools and the Zila Basic Shiksha Adhikari who had declared the termination order to be bad and had directed the reinstatement of the teachers, had no jurisdiction either to make a declaration of invalidity of termination or to direct reinstatement of teachers. (ii) The termination of service was sought to be effected without securing prior approval. Such termination may be good or bad but the jurisdiction of the Inspector or of Basic Education Officer was never invoked by the management. Neither the Inspector nor the Basic Education Officer has been given power to intervene after an invalid termination. (iii) Even if the mandatory provisions of law are contravened by the management of an institution in not obtaining prior approval of the education authorities, the discretion under Article 226 of the Constitution can still be exercised in favour of the management and the illegal termination orders can be upheld if the order of the education authorities who had directed reinstatement of teachers on finding the termination order to be bad, was found to be without jurisdiction. Other points decided by the Division Bench may not be summarised as they are not relevant for the present case. Without subscribing to the view expressed in City Montessori Schools' case (Supra) we may observe that the controversy raised in this case is not; covered by the decision in City Montessory Schools' case. Other points decided by the Division Bench may not be summarised as they are not relevant for the present case. Without subscribing to the view expressed in City Montessori Schools' case (Supra) we may observe that the controversy raised in this case is not; covered by the decision in City Montessory Schools' case. The judgments in Writ Petition No. 228 of 84- See 1934 Education Cases 92 which were separately rendered by Hon'ble K.N. Goyal, J. and one of us (S. Saghir Ahmad, JJ. are also of no avail to the Petitioner, as it was held in that case that the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 would apply to an institution receiving grants-in-aid from the Government It was not laid down that U.P. Intermediate Education Act or U.P. Act V of 1982 would not apply to an institution which does not receive grants-in-aid. The question of applicability of Payment of Salaries Act is not involved in the instant case, although Learned Counsel for the Petitioner has contended that the question is very much involved, as the management is free to pay salary to the head of the institution in a scale in which it would like the salary to be paid and not in the scale prescribed by the Government. We would advert to this aspect of the matter later. For the pre eat, we hold on the basis of the above discussion, that the Petitioner's institution being an institution recognised under the U.P. Intermediate Education Act would be governed not only by that Act but also by the provisions of U.P. Act V of 1982. 13. Learned Counsel for the Petitioner has next contended that Sri Ram Prakash Misra, who was already working as Head Master of the Junior High School would be deemed to have become the Head Master of the upgraded Janta High School. For this purpose he has placed reliance on regulation contained in Chapter II of the Regulations. The relevant portion of the said regulation has been quoted in para 14 of the petition which is reproduced here: Regulation 4. For this purpose he has placed reliance on regulation contained in Chapter II of the Regulations. The relevant portion of the said regulation has been quoted in para 14 of the petition which is reproduced here: Regulation 4. Where any Junior High School is recognised as a High School u/s 7, a permanent or temporary teacher of such school possessing the minimum qualifications under Regulation 1, shall be deemed to be permanent or temporary teacher, as the case may be, of such High School provided that the service of a temporary teacher who is not selected for appointment in accordance with the provisions of the Act and the regulations shall be dispensed with after giving him one month’s notice in that behalf or one month’s pay in lieu of such notice. 14. Learned Counsel for the Petitioner has contended that regulation 4 does not speak of the head of the institution but lays down that where a Junior High School is recognised as High School, the permanent or temporary teacher of such school would become the permanent or temporary teacher of the High School. The word 'teacher' in regulation 4 should, it is contended, be treated to include head of the institution also or else the provision will have to be struck down as bad inasmuch as a teacher under regulation 4 would become the teacher of the High School, the Head Master of the Junior High School would not become the Head Master of the High School so that the provision in its applicability to teachers of Junior High School raised to a High School would be discriminatory in character. He has also drawn our attention to Regulation 2-A(2)(a) which provides that where an institution is raised from High School to Intermediate College, the post of Principal of such college shall be filled by promotion of the Head Master of such High School provided he possesses the minimum qualification prescribed in that behalf or has been granted exemption from such qualification by the Board. It is pointed out by the Learned Counsel for the Petitioner that there should have been a similar provision for the post of the head of the institution raised to High School and that a provision should have been made that the Head Master of Junior High School would become the Head Master of the High School or Higher Secondary School. We are not prepared to accept the contention of the Learned Counsel for the Petitioner the provisions of regulation 4 are not discriminatory and, therefore, they cannot be struck down as being bad. As a matter of fact, the whole argument has been made in complete ignorance of the provisions of Regulation 2(2)(g) of Chapter II of the Regulations Clause (g) of the said regulation which is the relevant clause is quoted below: (g) A Head Master of a High School who is not found fit for promotion as Principal of the upgraded Intermediate College OT a Headmaster of a Junior High School who on its being raised as a High School, is not selected by the Selection Committee for the post of the Headmaster of the upgraded High School shall be retained as an assistant teacher on the highest post for which he is qualified, provided that his pay scale shall not be reduced. Explanation--Nothing in this Sub-clause shall apply to a person who was not permanent or was not duly appointed in accordance with law on the date on which the institution was raised to the level of a High School or an Intermediate College, as the case may be. 15. A perusal of the provisions quoted above would indicate that even under the regulations, the Head Master of a Junior High School does not become the Principal or Head Master of such High School on its being raised to High School. He has to be selected by the Selection Committee for the post of Head Master of the upgraded High School or else he would be retained as an Assistant Teacher on the highest post for which he is qualified and there would be no reduction in the scale of his pay. Since even under the regulations framed under the, Intermediate Education Act the post of the Head Master of the upgraded High School was to be filled up and was not to be treated as already filled up by the automatic appointment on that post of the Head Master of the Junior High School, the said post, after the enforcement of U.P. Act V of 1982, came within the purview of that Act and consequently on that post also the appointment can be ma le only through the Commission constituted under that Act. This will also be clear from a perusal of para 4 of the U.P. Secondary Education Service Commission (Removal of Difficulties) Order, 1981. This para is headed as 'adhoc appointment by promotion'. The relevant portion is quoted below: 4 Ad hoc appointment by promotion:--(1) Every vacancy of the Head of an institution may be filled by promotion: (a) in the case of an Intermediate College, by the senior most teacher of the institution in the lecturer's grade; (b) in the case of a High School raised to the level of an Intermediate College, by the Head Master of such High School; (c) in the case of a Junior High School raised to the level of a High School, by the Headmaster of such High School. 16. The provisions contained in para 4(c) quoted above would indicate that it is only in adhoc capacity that promotion can be made on the post of Head Master of an upgraded High School. The Removal of Difficulties Order, 1981 might not be applicable to the instant case but the legislative intent is clear and it is obvious that a regular appointment on that post can be made only through the agency of the Commission. In this situation, therefore, the Commission was fully justified in advertising the post in question and detecting the opposite-parties to appoint Sri Ras Behari Misra (opposite party No. 5) as the Principal of the upgraded Janta Higher Secondary School as he was a duly selected candidate. 17. Learned Counsel for the Petitioner has contended that Sri Ram Prakash Misra, who was working as Head Master of the Junior High School was being paid his salary in the scale of Rs. 450-490 even after the upgradation of the said School into a High School but opposite-party No. 5 who has been directed by the Commission to be appointed as Principal of the Janta Higher Secondary School would have to be paid his salary in the scale of Rs. 770-1600. 450-490 even after the upgradation of the said School into a High School but opposite-party No. 5 who has been directed by the Commission to be appointed as Principal of the Janta Higher Secondary School would have to be paid his salary in the scale of Rs. 770-1600. This, it is contended by the Learned Counsel for the Petitioner, cannot be done as the institution, as stated earlier, does not receive any grant from the Government and consequently it was free to pay the salary of the head of the institution in an scale of its own choice, particularly as the provisions of the U.P. High Schools and Intermediate Colleges (Payment of Salaries to the Teachers and other Employees) Act, 1971 was not applicable. The Commission by directing the appointment of opposite party No. 5 on the post of the head of the institution was indirectly compelling the Petitioner to pay the salary in a higher scale and was thereby applying the provisions of the Payment of Salaries Act to the institution in question. The contention cannot be accepted. The scale of pay of the Head Master of a High School has been fixed under the provisions of the U.P. Intermediate Education Act which, as found earlier, is applicable to all recognised institutions The Petitioner's institution unquestionably is a recognised institution and consequently it has also to pay the salary for the post of the Principle in the scale in which it has been fixed the Petitioner's institution cannot make a departure by not paying the salary in that scale or else it would be violating the provisions of the Immediate Education Act as also the Regulations made thereunder so as to render itself to be 1 derecognized. 18. Learned Standing Counsel has drawn our attention to decision of a Division Bench of this Court in Indra Raj Singh Yadav v. U.P. Madhyamik Shiksha Sewa Ayog and other connected writ petitions including Civil Misc. Writ Petition No. 448 of 84, 1984 Education Cases 197. These petitions were dismissed and a SLP which was filed in Hon'ble Supreme Court against the said judgment by which the vires of the Act was upheld was also dismissed. Writ Petition No. 448 of 84, 1984 Education Cases 197. These petitions were dismissed and a SLP which was filed in Hon'ble Supreme Court against the said judgment by which the vires of the Act was upheld was also dismissed. Learned Standing Counsel has pointed out that in Writ Petition No. 448 of 84 Shyara Babu Dwivedi v. U.P. Secondary Education Service Commission which was one of the petitions disposed of by the common judgment, it was inter alia pleaded in para 27 of the writ petition as under: 27. That under Regulation 4 the Petitioner became a permanent Head Master of the upgraded Institution, as such there is no vacancy on the post of Head Master, and as such the proceedings for making selection on the post of Head Master are illegal. Ground A of the said writ petition read as under: A. Because under Clause 4 of Chapter II of the Regulations framed under the Act, the post of Head Master of a duly recognised High School upgraded from the Junior High Schools to be treated as duly held and filled by the Head Master of the said Junior High School, and to this extent the post held by a Head Master of a Junior High School does not fall vacant, which could be sought to be filled when the said institution is being raised to the level of a Junior High School, and to this extent the vacancies notified by the Commission vide the impugned notification (Annexure 2' to this Writ Petition) are arbitrary, illegal and without jurisdiction. 19. Learned Standing Counsel has, therefore, contended that in view of the judgment in Indra Raj Singh Yadav's case (Supra) the contention raised in writ petition No. 448 of 84 about the automatic appointment on the post of the head of the institution shall be treated to have been disposed of by the common judgment. Be that as it may, we have given our own reasons for not accepting an identical contention raised in the present petition. 20. No other point was pressed. 21. We do not find any merit in the petition which is hereby dismissed. 22. Immediately after we had pronounced the judgment, Learned Counsel for the Petitioner orally prayed for a certificate to file an appeal in the Hon'ble Supreme Court. 20. No other point was pressed. 21. We do not find any merit in the petition which is hereby dismissed. 22. Immediately after we had pronounced the judgment, Learned Counsel for the Petitioner orally prayed for a certificate to file an appeal in the Hon'ble Supreme Court. Since the petition does not raise any substantial question of law of general importance to be decided by the Hon'ble Supreme Court, the certificate prayed for is refused.