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Allahabad High Court · body

2007 DIGILAW 1100 (ALL)

RAM CHANDRA SINGH v. STATE OF U. P.

2007-04-23

V.K.SHUKLA

body2007
( 1 ) IN the District of Allahabad there is an institution known as Jagdish Uchchattar Madhyamik Vidyalay Soraon, Pratappur. Petitioner has contended that he has been appointed on 01. 07. 1973 as Clerk. Petitioner has disclosed his date of birth as 01. 02. 1946. Petitioner has contended that he has been served with the order dated 16. 09. 2004 informing the petitioner that he would attain the age of superannuation on 28. 02. 2004 on completing the age of 58 years and further mentioned that salary for the months of March, April and May, 2004 has been wrongly paid to him and same be returned. Petitioner has contended that he represented by requesting that he is entitled to be continued till he attains the age of 60 years. Petitioner has contended that institution in question was initially as Junior High School and thereafter it has been upgraded as High School in the year 1999 under the provision as contained in U. P. Act No. II of 1921 and as such now services of the petitioner is to be Governed by U. P. Act No. II of 1921. Petitioner has contended that in this background he has been wrongly superannuated at the age of 58 years, as such order directing superannuation of the petitioner is bad. ( 2 ) COUNTER affidavit has been filed and therein it has been contended that institution in question was not in-grant-in aid list of the State Government at the level of Junior High School and institution in question was upgraded for taking examination of High School etc. It has also been stated that institution has been accorded Vit-vihin recognition and liability to make payment of salary is on the Management, as such no relief is liable to be accorded. Rejoinder affidavit has been filed and therein it has been contended that institution in question has been upgraded from Junior High School to High School and it is true that High School section is non-aided but the provisions of U. P. Intermediate Education Act 1921 are fully applicable. It has also been contended that service condition of the petitioner shall be governed by the provision of Section 16 G read with Chapter III Regulation 21 framed under U. P. Act No. II of 1921, in this background it has been contended that petitioner is entitled for all benefits. It has also been contended that service condition of the petitioner shall be governed by the provision of Section 16 G read with Chapter III Regulation 21 framed under U. P. Act No. II of 1921, in this background it has been contended that petitioner is entitled for all benefits. Writ petition has also been got amended on this score. After pleadings mentioned have been exchanged, present writ petition has been taken up with the consent of the parties for final hearing and disposal. ( 3 ) DR. H. N. Tripathi, Advocate, contended with vehemence that one petitioner has been appointed in Junior High School and said institution in question has been upgraded to High School then service condition is government by Regulation 21 of Chapter III of U. P. Act No. II of 1921 as such order which has been passed superannuating the petitioner is bad and is liable to be set aside. ( 4 ) LEARNED Standing Counsel on the other hand contended that rightful view has been taken and no interference is required and writ petition is liable to be dismissed. After respective arguments have been advanced, factual position which is emerging is that this Court has consistently taken the view that once institution in question is upgraded from Junior High School to High School then it loses its identity as Junior High School and affairs of the same is governed by the provision as contained in U. P. Act No. II of 1921 in stead of other provisions which might have been applicable earlier to the teacher of the Junior High School. ( 5 ) THIS Court in the case of Shree Krishna Tripathi and another Vs. District Basic Education Officer, Kanpur Nagar, and another, has already decided on 13. 01. 2005 the issued raised in the present writ petition holding therein that class-III employee is entitled to continue up to the age of 60 years, who had been appointed as an employee of an earlier Junior High School. Against the said order Special Appeal No. 170 of 2005 has been filed and the same is pending and therein on 18. 2. 2005 the following order was passed:- "this appeal and the application is preferred from an order of Honble Single Judge passed on 13. 1. 2005 whereby opposite party no. Against the said order Special Appeal No. 170 of 2005 has been filed and the same is pending and therein on 18. 2. 2005 the following order was passed:- "this appeal and the application is preferred from an order of Honble Single Judge passed on 13. 1. 2005 whereby opposite party no. 1, who was the writ petitioner in the Court below, was allowed to continue to serve the School in question up to the year 2006 when he would attain the age of 60 years. The controversy arises because of a Vitta Vihin i. e. grantless upgradation and recognition granted to the School by an order, which is annexed to page 64 of the Annexures to the papers put before us, the said order being of 19. 2. 97. ( 6 ) THE argument of the appellants before us has run on this basis that as the recognition of the higher and upgraded status was granted without aid, it left the school to formulate its own administrative procedure and appointment without almost any supervision so far as the higher classes are concerned. However, as far as the junior school is concerned, the school is wholly unaided and, therefore, the salary of opposite party no. 1 would be a burden on the Board, which is received for the lower class of the School. As such, the appellants feel aggrieved and their case that without the employee like opposite party no. l, works in the junior section, his conditions of service including payment and retirement age should be governed by the U. P. Recognised Basic School Employees Rules, 1984 and not by the U. P. Intermediate Education Act, 1921. ( 7 ) THE opposite party no. 1 has argued before us that after granting of the upgraded status whether such grant is Vitta Vihin or without aid, the whole institution gets an upgraded status and, therefore, the U. P. Intermediate Education Act, 1921 would be applicable for all employees whether working in upper classes or lower ones. There are certain authorities, which are before us today and which do support the case that once the institution is upgraded, it is so for all purposes and for all its parts and becomes completely separate entity; the case of State of Uttar Pradesh and others Vs. District Judge, Varanasi and others, reported in 1981 UPLBEC 336, at paragraph 17 supports this proposition. District Judge, Varanasi and others, reported in 1981 UPLBEC 336, at paragraph 17 supports this proposition. In the judgment, under appeal, a reliance has been placed upon the case of Shiksha Prasar Samiti, Babhanan, District Gonda Vs. State of U. P. and others reported at 1986 UPLBEC 477, which also supports this proposition. ( 8 ) SO far as our view at present is concerned, we do not find that there is any specific rule or any specific law to this effect, which would support the case of only controversial upgradation of School in case the upgradation is granted without any State aid. From the practical view to the situation, it appears that the employee, who is a Clerk has been reported to duty even during and after 2004 i. e. after his attainment of the age of 58 years. Probably, he has not received any salary as yet. ( 9 ) IN our prima facie view, the case leans very heavily in favour of opposite party No. 1, but not quite so heavily as for us to dismiss the appeal here and now. However, opposite party no. 1 deserves a very strong interim order. As such, we direct that notwithstanding pendency of this appeal, opposite party no. 1 be permitted to work for the post in which he was working before he attained the age of 58 years and such permission be continued to be accorded to him until he attains the age of 60 years. This order, needless to say, will bind all concerned including School Management, appellants, the Government and all its wings. If and when, the appeal is decided, the court of appeal will have full jurisdiction to pass an order in accordance with law, but we specifically permit opposite party no. 1 to withdraw appropriate of salary, as if the appeal had been decided in his favour and all arrears of salary be paid to opposite party no. 1, positively, within a month. The application for compliance, if any, will be made before the Honble Single Judge. ( 10 ) THIS Court in the case of Dr. (Smt.) Sushila Gupta Vs. Regional Joint Director of Education, Kanpur Region Kanpur and others reported in [ 2006 (1) ADJ 89 (All)] decided on 22. 11. 1, positively, within a month. The application for compliance, if any, will be made before the Honble Single Judge. ( 10 ) THIS Court in the case of Dr. (Smt.) Sushila Gupta Vs. Regional Joint Director of Education, Kanpur Region Kanpur and others reported in [ 2006 (1) ADJ 89 (All)] decided on 22. 11. 2005 following view has been taken which is being quoted below: "it is, thus, clear from all the decisions cited herein above and the provisions discussed herein above that a Junior High School upgraded to the High School/intermediate level, the institution is governed by the provisions of U. P. Intermediate Education Act and Service Rules as applicable to such institution, have to be applied. There is no distinction drawn between an aided or an unaided school. The recognition of the institution is by itself sufficient to exclude the applicability of the laws governing Junior High School once the institution is upgraded. It is for this reason that a special transitory amending provision was brought in by way of Section 13-A in U. P. Act No. 6 of 1979 discussed herein above to enable such upgraded institution to continue to receive the grant-in-aid that they were receiving at the level of Junior High School. In view of the conclusions and findings recorded herein above, the issue raised on behalf of the petitioner has to be answered in the affirmative in favour of the petitioner. Consequently, the institutions where the respondents are proceeding to make an appointment on the post of the Head of the institution which is admittedly an upgraded institution, can only be made under the provisions of the U. P. Intermediate Education Act, 1921 and the Regulations framed thereunder coupled with the provisions of the U. P. Act No. 5 of 1982 and such other provisions that are consistent with the law laid down herein above. " ( 11 ) CONSEQUENTLY in the present case as petitioner was working as Clerk in Junior High School and Institution in question has been upgraded as High School then service condition of the petitioner would be governed by the provisions as contained in U. P. Intermediate Education Act 1921 and merely because it is Vitt-Viheen recognition same would make no difference. ( 12 ) THUS, order of superannuation of petitioner at the age of 58 years was illegal and unjustifiable as statutory age of superannuation under Chapter III Regulation 21 is 60 years as such order impugned is hereby quashed. Writ Petition is allowed. Salary which has been paid to the petitioner, same shall not be recovered from petitioner and petitioner is entitled for all consequential benefits. No orders as to cost. .