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Allahabad High Court · body

2009 DIGILAW 3023 (ALL)

NAND RAM SINGH v. STATE OF U. P.

2009-09-03

ARUN TANDON

body2009
JUDGMENT Hon’ble Arun Tandon, J.—Both the writ petitions are between the same parties and pertain to the suspension of the writ petitioner and its continuance, therefore, both have been clubbed together and are being decided together with the consent of the counsel for the parties without calling for any further affidavits. 2. Heard Sri Ashok Khare, Senior Advocate assisted by Shri Siddharth Khare, Shri Rahul Sripat, Advocate on behalf of the respondent Committee of Management and Standing Counsel on behalf of the other respondents. 3. Facts in brief leading to the writ petitions are as follows : Shri Chaturbhuj Bhagwan Uchchtar Madhyamik Vidyalaya, Palgaon, Mathura was initially a recognised and aided Junior High School. At that point of time the petitioner Shri Nand Ram Singh was appointed as head master of the said institution to be precise on 1.7.1973. It is also not disputed that with the enforcement of the Uttar Pradesh Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978, the petitioner alongwith other teachers of the Junior High School started getting their salary from the State Exchequer. 4. The Institution was upgraded as High School in the year 2002. The recognition at High School level was granted under Section 7-A of the Intermediate Education Act, 1929 (hereinafter referred to as Act 1929) i.e. Vitta Vihin as a result whereof no post of head master or teacher has been created for the institution at High School level till date. The Institution having been granted recognition as Vitta Vihin is required to make appointment on the post of teachers from its own resources as per Section 7-AA read with Section 7-AB of the Act, 1929 alongwith G.O. dated 10.8.2001. The Institution is to appoint teachers on part time basis as clarified by means of the G.O. dated 24.11.2001, and qua such part time teachers different set of rules have been framed regulating their terms and conditions of selection appointment and removal etc. 5. Since the petitioner has not been appointed under the said G.O. of 2001, none of the provisions contained therein shall be attracted and therefore, this Court is not required to enter into the issue of fulfilment of the provisions of G.O. of 2001 applicable to part time teachers. At this stage reference may also be made to the judgment of our Hon’ble Single Judge of this Court in the case of Dr. At this stage reference may also be made to the judgment of our Hon’ble Single Judge of this Court in the case of Dr. (Smt.) Sushila Gupta v. Joint Director of Education, Kanpur Region, Kanpur and others, 2006(1) ADJ 89 , wherein it has been held that on upgradation of a Junior High School as a High School the provisions applicable to the Junior High School shall cease to be applicable to the teachers of the High School. It is for this reason that Section 13-A has been added to U.P. Act No. 6 of 1979 (Payment of salaries of Teachers and other Employees) Act for continuance of payment of salary to the teachers even after upgradation as High School which has been accorded Vitta Vihin recognition. This Court may record that the teachers permanent or temporary who were working earlier in a recognised Junior High School prior to its upgradation as a High School shall be deemed to be permanent or temporary teachers of the High School on upgradation provided they possess the minimum essential qualification as per Regulation 4 of Chapter II of the Regulation framed under the Intermediate Education Act which reads as follows : “4. Where any Junior High School is recognised as a High School under Section 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 services 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. Explanation.—Nothing in this regulation shall be construed to mean that High School includes Classes I to V.” 6. In view of Regulation 4 of Chapter II of the Regulations framed under the Intermediate Education Act and in view of the law as explained in the case of Sushila Gupta referred to above there is no room to doubt that the petitioner before this Court namely Nand Ram Singh is to be deemed to be a teacher of the High School on upgradation of the Junior High School. Consequently all the provisions qua service condition as per the provision of Intermediate Education Act and Regulation framed thereunder would be attracted to the petitioner including the provisions of Section 16-G(5) and 16-G(7) read with Regulation framed under Chapter III. 7. In view of the aforesaid conclusion arrived at by this Court any order of suspension passed by Committee of Management against the petitioner has to be approved by the District Inspector of Schools, by means of an order in writing within sixty days of the passing of the order. 8. Now returning to the facts of this case respondent No. 5 Committee of Management was recognition as lawful management of the institution under an order of Joint Director of Education dated 1.10.2008. The effective control of the Committee of Management over the institution is not in dispute. The said Committee passed a resolution on 16.10.2008 placing the petitioner under suspension. The papers pertaining to the suspension of the petitioner was transmitted to the District Inspect of Schools for necessary consideration and approval under Section 16-G(5) of the Intermediate Education Act. 9. Since the District Inspect of Schools, did not take any decision on the papers so transmitted and the period of sixty days expired, the petitioner filed first writ petition No. 25333 of 2009 before this Court wherein an order was passed on 15.5.2009 to the following effect : “Learned Standing Counsel has accepted notice on behalf of respondent Nos. 1 to 2. Issue notice to respondent No. 5. Each one of respondents is granted six weeks time to file counter-affidavit. Rejoinder affidavit may be filed within next two weeks. List thereafter.” 10. In compliance to the order of the High Court, the District Inspect of Schools, considered the matter pertaining to the suspension of the petitioner by means of order dated 19.6.2009 and held that since the institution has been granted recognition as a High School only as Vitta Vihin the service conditions as applicable to the teachers of Junior High School will continue to apply and, therefore, suspension of the petitioner has to be examined by the Basic Shiksha Adhikari and in that regard District Inspect of Schools, has no jurisdiction. This order is challenged by means of second writ petition No. 42890 of 2009 has been filed. 11. This order is challenged by means of second writ petition No. 42890 of 2009 has been filed. 11. It has been contended on behalf of the petitioner that the moment of the Committee of Management has been recognised and has taken over charge, it has proceeded to exercise its authority by passing an order placing the petitioner under suspension on 16.10.2008. Petitioner submits that institution has been upgraded and the provisions of U.P. Act No. 2 of 1921 are fully applicable to it. 12. Petitioner further submits that till date order of suspension passed by Managing Committee has not been accorded approval by the District Inspect of Schools, and the period of sixty days from the date of order of suspension has already expired, as such by operation of law, the petitioner would be entitled to function and receive salary. 13. I have heard counsel for the petitioner and perused the record of the present writ petition. For the reasons which has been noticed herein above this Court comes to a conclusion that since the petitioner was working as head master prior to the institution being upgraded as High School he is to be deemed as a teacher of the High School after upgradation in view of Regulation 4 of Chapter II and therefore, the provisions of Intermediate Education Act qua the service condition would become applicable. Therefore, it is the District Inspect of Schools, who has to take appropriate decision on the papers transmitted qua suspension of the petitioner under Section 15-G(5). 14. The order of District Inspect of Schools, refusing to examine the papers so filed dated 19.6.2009 cannot be sustained and is hereby set aside. The District Inspect of Schools will take appropriate decision on the papers transmitted by the Committee of Management for suspension of the petitioner after summoning the same from the office of the Basic Shiksha Adhikari within 4 weeks from the date of a certified of this order is filed before him after affording an opportunity to the petitioner and the Committee of Management. A Full Bench of this Court in the case of Chandra Bhushan Misra v. District Inspect of Schools, Deoria and others, 1995 Vol. 71 FLR 581, has held that after expiry of sixty days the District Inspect of Schools shall become functus officio and he is deemed to either approve the suspension or disapprove the same. A Full Bench of this Court in the case of Chandra Bhushan Misra v. District Inspect of Schools, Deoria and others, 1995 Vol. 71 FLR 581, has held that after expiry of sixty days the District Inspect of Schools shall become functus officio and he is deemed to either approve the suspension or disapprove the same. The aforesaid direction has been issued by this Court. Based on the aforesaid Full Bench a Division Bench of this Court in the case of State of West Bengal v. M/F Gouranga Lal Chatterjee, 1994 ALR 33 and 1992 Vol. 2 UPLBEC 13, has held that during the interregnum i.e. between the expiry of sixty days and the date on which the District Inspect of Schools passes order on the order of suspension, the suspension will become inoperative. 15. In view of the aforesaid, it is further provided that so long as the order of suspension as recommended by Committee of Management is not approved by the District Inspect of Schools, the petitioner shall continue to function in the institution and shall be paid his full salary. However, his continuance shall be subject to the orders to be passed by the District Inspector of Schools, on the resolution of the suspension as indicated above. 16. With the aforesaid direction both the writ petitions are disposed of. ————