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Allahabad High Court · body

2000 DIGILAW 1439 (ALL)

RAKESH CHANDRA SHARMA v. STATE OF UTTAR PRADESH

2000-11-22

V.M.SAHAI

body2000
V. M. SAHAI, J. ( 1 ) JANTA Uchchatar Madhyamik Vidyalaya. Arkauli, Moradabad (In brief institution) was recognised on 26. 4. 1968 as Higher Secondary School. It was taken in grant-in-aid list under The uttar Pradesh Junior High Schools (Payment of Salaries to Teachers and Other Employees) Act. 1978 (in brief Act 1978) with effect from 1. 5. 1979. The institution was upgraded and granted unaided recognition as High School on 24. 9. 1993. Permission to open class-lx was granted on 4. 12. 1993. After upgradation of the institution as High School, a writ petition was filed before this Court being Civil Misc. Writ Petition No. 947 of 1995 and under the interim order of this court dated 11. 1. 1995, salary of teachers and staff of the institution is being paid from the grant-in-aid received by the institution under Act 1978, till the institution is brought in the grant-in-aid list of High School. ( 2 ) AFTER upgradation of the institution as High School, one clerk working in the institution was dismissed from service. The post of clerk fell vacant. The management Issued an advertisement on 2. 4. 1999 in newspaper nav Amar Bharat inviting applications for appointment on the post of clerk. The petitioner applied and he was selected by the selection committee on 24. 4. 1999. Appointment letter was issued to him on 22. 4. 1999. He joined on 23. 4. 1999. The management sent the papers of appointment of the petitioner for granting financial approval to District Basic education Officer (in brief BSA) who granted approval on 20. 4. 1999 with a condition that if any fact was found incorrect, then the approval shall be treated to be void. The management sent salary bill of the petitioner for the month of April, 1999. The Accounts Officer working in the office of BSA raised objection on the salary bill and sent a letter to Director of Education, U. P. , allahabad, along with the documents making a query as to whether payment of salary could be made or not. Correspondence took place between the office of the Director and the Accounts officer but salary was not paid. The petitioner filed Civil Misc. Writ Petition No. 30438 of 2000 praying that his salary be paid by the respondents. This Court, on 26. 7. Correspondence took place between the office of the Director and the Accounts officer but salary was not paid. The petitioner filed Civil Misc. Writ Petition No. 30438 of 2000 praying that his salary be paid by the respondents. This Court, on 26. 7. 2000, issued an interim mandamus to the Accounts Officer to pass salary bill of the petitioner or show cause by filing counter-affidavit within six weeks. In paragraph 18 of the counter-affidavit filed by the Accounts officer, it has been stated that after upgradation of the institution as High School, provisions of the U. P. Intermediate Education Act, 1921, is applicable to the institution. It was further stated that by order dated 2. 9. 2000, approval granted to the appointment of the petitioner on 20. 4. 1999 has been cancelled by BSA, as it was void. This order dated 2. 9. 2000 passed by BSA has been challenged by the petitioner by means of Civil Misc. Writ Petition No. 48316 of 2000. ( 3 ) I have heard Sri Birendra Pratap Singh, learned counsel for the petitioner and Sri P. D. Tripathi, learned counsel appearing for respondent Nos. 3 and 4 and standing counsel appearing on behalf of respondent Nos. 1 and 2. Since both the writ petitions raise a common dispute, therefore, they are being taken up together for final disposal with the consent of the learned counsel for the parties. ( 4 ) LEARNED counsel for the petitioner has urged that once BSA granted approval to the appointment of the petitioner as clerk, he could not cancel the approval granted earlier by him. Learned counsel has further urged that since the institution was upgraded as unaided High school and salary of the petitioner was paid from the grant-in-aid received by the Junior High school, the petitioner could be appointed as clerk under the Rules applicable to clerks of Junior high Schools and BSA had the power to grant approval to the appointment. Hence, the approval granted by the BSA could not be cancelled by him. Hence, the approval granted by the BSA could not be cancelled by him. ( 5 ) LEARNED counsel appearing for respondents has urged that after upgradation of the institution as High School, appointment of clerk could only take place under the provisions of U. P. Intermediate Education Act, 1921 and the Regulations framed thereunder (in brief Act 1921 and regulations) and the petitioner could not be appointed under the rules which applicable to clerks of Junior High School imparting education from classes VI to VIII. He urged that since appointment of the petitioner was not made under Act. 1921 and Regulations, BSA did not have any power to grant approval to the appointment of the petitioner. Since the order passed by BSA was void he was empowered to cancel the approval earlier granted by him. ( 6 ) THE first question which arises for consideration is whether after upgradation of the institution to High School if a vacancy of clerk occurs in the institution, it has to be filled under the provisions of the Act, 1921 and Regulations framed thereunder or under the provisions of the U. P. Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of ministerial Staff and Group d Employees) Rules, 1984 (in brief Rules, 1984 ). It is not disputed that the institution was upgraded from Junior High School to High School on 24. 8. 1993. A clerk of the institution was dismissed from service after the institution was upgraded and this vacancy was sought to be filled by the management through an advertisement made on 2. 4. 1999. Section 2 (e) of Rules, 1984 defines a Junior High School to mean an institution other than High School or Intermediate College imparting education to boys and girls or both from class VI to VIII. Therefore, Rules, 1984 would apply to the institutions where education is imparted from class VI to VIII but it shall not apply to the institutions which impart education from classes IX and X. Since the institution was upgraded as High School in 1993, Rules, 1984 ceased to apply to the institution. And the only provision to fill the non-teaching post of clerk was Regulation 101 of chapter III of the regulations. Under Regulation 101 prior approval of District Inspector of schools had to be obtained before making appointment on a class-III post. And the only provision to fill the non-teaching post of clerk was Regulation 101 of chapter III of the regulations. Under Regulation 101 prior approval of District Inspector of schools had to be obtained before making appointment on a class-III post. It has been held by this Court In Civil Misc. Writ Petition No. 50266 of 2000, Amit Kumar v. District Inspector of schools, Jaunpur and another decided on 21. 11. 2000, that provisions of Regulation 101 are mandatory. Therefore, appointment of the petitioner on the post of clerk could not be made by the management without obtaining prior approval of the District Inspector of Schools. BSA had no power to grant approval to the appointment of the petitioner. Thus, the approval granted to the petitioners appointment on 20. 4. 1999 by BSA was void. It has rightly been cancelled by BSA. ( 7 ) THE next question is what would be the effect of payment of salary, etc. , to the teachers and staff from the grant-in-aid received from the Government as Junior High School under interim order passed by this Court and whether services of such teachers and staff would be governed by basic Education Act and Rules or U. P. Intermediate Education Act, 1921 and Regulations framed thereunder. I have earlier held that after upgradatlon of the institution to High School, the provisions of Act, 1921 and Regulations would apply and the provisions of Rules, 1984 would not be applicable for recruitment on the non-teaching post. If teachers and non-teaching staff of the institution are receiving salary from grant-in-aid which was earlier payable to the institution prior to its upgradation as High School. Even then, fresh appointments in unaided recognised high School would be governed by the provisions of Act, 1921 and Regulations. A Division bench of this Court (Lucknow Bench) in Shiksha Prasar Samiti, Babhnan, District Gonda v. State of U. P. and others, 1986 UPLBEC 477, has held that the provisions of U. P. Intermediate education Act, 1921, apply to a recognised institution. It is not necessary that the institution should be receiving grant-in-aid. Therefore, even though the institution is not receiving grant-in-aid from the Government and has been granted recognition as unaided High School. The management could fill vacancy of clerk, only by following the provisions of recruitment as provided under the U. P. Intermediate Education Act, 1921 and Regulations framed thereunder. It is not necessary that the institution should be receiving grant-in-aid. Therefore, even though the institution is not receiving grant-in-aid from the Government and has been granted recognition as unaided High School. The management could fill vacancy of clerk, only by following the provisions of recruitment as provided under the U. P. Intermediate Education Act, 1921 and Regulations framed thereunder. Since the management did not appoint the petitioner under Act, 1921 and Regulations, therefore, no relief could be granted to the petitioner. ( 8 ) FOR the aforesaid reasons, I do not find any merit in these petitions. Both the writ petitions fails and are hereby dismissed. Parties shall bear their own costs. .