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Allahabad High Court · body

2009 DIGILAW 3334 (ALL)

KAUSHAL KUMAR SINGH v. STATE OF U. P.

2009-10-24

A.P.SAHI

body2009
JUDGMENT Hon’ble A.P. Sahi, J.—Heard Sri R.K.Ojha, learned counsel for the petitioner assisted by Sri Ripu Daman Singh and Sri V.K.Upadhyaya, learned Senior Counsel assisted by Sri Ritvik Upadhyaya for the respondent No. 4-Committee of Management. Sri Ashok Khare, learned Senior Counsel has filed an impleadment application on behalf of the person, who is stated to be functioning as an Officiating Principal of the Institution. The said application has been entertained under Chapter 22 Rule 5-A of the Allahabad High Court Rules. Sri A.K.Yadav, learned counsel has been heard for respondent No. 5 and learned Standing Counsel for the respondents No. 1 to 3. 2. This petition questions the selections on the post of Principal in Aditya Birla Inter College, Renukoot, Sonebhadra, which is an institution recognized and governed by the provisions of the U.P. Intermediate Education Act, 1921 and the Regulations framed thereunder. The institution is under the grant-in-aid list of the State Government for running twenty-four Sections upto the level of High School for which recognition already stood granted by the State Government. The selection of teachers and the Head of the Institution is governed by the provisions of the U.P. Secondary Education Services Selection Board Act, 1982. 3. The facts shorn of details are that the Institution was initially recognized as a Junior High School under the relevant provisions then existing on 19th June, 1964. The institution was accorded permission and recognition whereupon it stood upgraded as High School w.e.f. 25th January, 1965. A copy of the said recognition order has been filed as Annexure- 2 to the counter-affidavit filed on behalf of the Management. The High School level of the institution was from time to time given the benefit of running additional sections which according to Sri Upadhayaya has swelled to 24, and grant-in-aid to the High School level of the Institution was extended on 31st March 1984. Subsequently, upon expansion of the Institution, the Management applied for recognition upto the Intermediate level upon which the competent authority vide order dated 30th March, 1998 extended the benefit of running Intermediate classes under the provisions of Section 7-A(a) of the 1921 Act. The said recognition was modified later on with additional sanction of subjects vide order dated 23.8.2000, Annexure-8 to the counter-affidavit, 21.8.2004, Annexure 9 to the counter-affidavit and 03.5.2005, Annexure 10 to the counter-affidavit. The said recognition was modified later on with additional sanction of subjects vide order dated 23.8.2000, Annexure-8 to the counter-affidavit, 21.8.2004, Annexure 9 to the counter-affidavit and 03.5.2005, Annexure 10 to the counter-affidavit. There is a significant indication with regard to condition No. 5 in the recognition order dated 30.3.1998 wherein Clause 5 of the said recognition indicates that the institution shall appoint a qualified Head of the Institution. However, this condition has been scored out in the subsequent orders of the year 2000, 2004 and 2005. 4. The present dispute relates to the selection and appointment on the post of Principal of the Institution by the U.P. Secondary Education Service Selection Board which has proceeded to select the petitioner Kaushal Kumar Singh treating the Institution of having a post of a Headmaster of the High School level for which selections have been held and against which the placement of the petitioner has been made. The requisition for such selection on an earlier occasion had been sent in the year 1991. However, selections were not held on the said post and as noticed above, in between, the institution came to be recognized as an Intermediate college for the subjects, as referred to in the recognition orders and filed along with counter-affidavit from 30.3.1998 onwards. It appears that there was an internal communication about the holding of selection on the said post and it is alleged that the requisition was again sent on 27th of September, 2000 by the District Inspector of Schools, Sonebhadra requesting the Commission to hold a selection on the post in question. It has also been stated that a further verification was made in this regard whereafter the Board has proceeded to hold selections and has selected the petitioner against the said post. 5. The petitioner after having been selected could not join the Institution. According to the allegations made, the petitioner inspite of having been selected against advertisement No. 1 of 2002 was unable to join on account of the litigation which was pending in the matter which went upto the Supreme Court in relation to the said advertisement that consumed a considerable time and was ultimately answered in the case of Balbir Kaur v. Service Selection Board and others, 2008 (3) ESC 409. 6. 6. It is on account of having failed to join in the institution that the petitioner has filed the present writ petition seeking a writ of mandamus commanding the respondents to ensure that the petitioner is made to join as Principal in the Institution and function as such. This writ petition was initially entertained and an order was passed on 3rd March, 2009 whereby the District Inspector of Schools was called upon to explain as to why action has not been taken by the Management for ensuring the joining of the petitioner. A counter-affidavit was filed by the Committee of Management refuting the stand taken on behalf of the petitioner. The District Inspector of Schools filed a counter-affidavit asserting therein that inspite of repeated reminders, the Committee of Management has failed to respond to the request of the District Inspector of Schools. The Officiating Head of the Institution has also filed an impleadment application and has contended that so far as the petitioner is concerned, he does not hold the qualification to be appointed as Head of the Institution of an Intermediate College and even otherwise the selections are contrary to the provisions of the Act and the Rules applicable. 7. The attention of the Court has been invited to the advertisement against which the selection has been made and according to the said advertisement, the institution has been indicated under Category-03 which undisputedly relates to a boys institution upto the High School level. 8. Sri R.K.Ojha, learned counsel for the petitioner contends that the resistance put forth by the Committee of Management is absolutely unfounded, inasmuch as, the post was requisitioned under the relevant rules framed under the U.P. Secondary Education Services Selection Board Act, 1982 and the said requisition is valid, inasmuch as, the post in question is that of a Headmaster as the Institution in question is aided upto the High School level and once the requisition had been made for the same, there is no error committed by the Board in proceeding to make the selections. He further submits that the petitioner is fully qualified to hold the post and further the placement made by the Board is in accordance with the category of the institution that was advertised. He further submits that the petitioner is fully qualified to hold the post and further the placement made by the Board is in accordance with the category of the institution that was advertised. He further submits that in the absence of any infirmity much less a legal infirmity, there is no occasion for the Committee of Management to resist the selection and placement of the petitioner. 9. Sri V.K.Upadhyaya, learned Senior Counsel for the Management advanced his submissions with the aid of the decisions which have been placed before the Court. The decisions cited at the bar are that of State of U.P. and others v. District Judge, Varanasi and others, 1981 UPLBEC 336; Dr. (Smt.) Sushila Gupta v. Joint Director of Education, Kanpur Region, Kanpur and others, 2006(1) ADJ 89 ; Ajay Pratap Rai v. District Basic Education Officer, Jaunpur and others, 2007(4) ADJ 357 (DB) and the decision in the case of Smt. Shail Kumari Singh v. State of U.P. and others, 2007 (10) ADJ 248 . Sri Upadhyaya contends that a perusal of the ratio of the decisions referred to herein above leave no room for doubt that once the institution in question was given recognition as an Intermediate College then the identity of the Institution as a High School stood finally merged in the Intermediate College and that the post of Headmaster automatically vanishes and substituted by the post of Principal of the Institution. His contention is that it is for this reason no payment of salary has been made to the Headmaster since 1990 and the upgradation brings about a complete change in the status of the Institution as also the automatic evaporation of the post of the Headmaster in the institution. On such facts he contends that the Board had no authority to proceed to make selections once the Institution had been upgraded and its status stood altered. He contends that the requisition, which has been sent in 1990 and stated to have been reasserted in the year 2000 are both erroneous, inasmuch as, once the institution was upgraded, there was no occasion for the Board to have proceeded to make any selection for a Headmaster and consequently the entire exercise of sending the requisition or verifying the same behind the back of the Committee of Management was a futile exercise. He further submits that there was no requirement of any further creation of the post, inasmuch as, once the recognition was granted on 30th March, 1998 at the Intermediate level, the said recognition itself postulates the existence of the post of the Principal of the institution. He further submits that there is no requirement with regard to the creation of a fresh post of Principal, inasmuch as, the Institution is not under the grant-in-aid list upto the Intermediate level and therefore, there is no occasion for seeking any sanction under Section 9 of the U.P. Act No. 24 of 1971. He further submits that this automatic disappearance of the post of Headmaster disentitles the Board to proceed to make any selections and the requisition if sent by the District Inspector of Schools was a stillborn requisition. He submits that the lower section of High School looses its identity as held by this Court in State of U.P. (supra) and as noticed and interpreted by the subsequent decisions cited at the bar. He submits that merely because there is a recognition upto the High School level and grant-in-aid, the same would not eclipse the recognition granted upto the Intermediate level. The submission in essence is that the Committee of Management cannot be saddled with the selectee of the Board who could not have been selected against a post which according to the management does not exist and secondly, even otherwise which post could not have been filled up without being advertised in the appropriate category of a Boys Intermediate College. Sri Khare has invited the attention of the Court to the provisions of Chapter II, regulation 2 which according to him would be available in the event the Institution would have promoted the Headmaster as a Principal of the Institution and which has actually been done in the instant case by the resolution of the Committee of Management of the year 1998. 10. Sri A.K.Yadav, learned counsel for the Board, contends that the petitioner cannot be prevented from joining in the institution, inasmuch as, the proposed respondent Daya Shankar Pandey, who is continuing as an ad hoc Principal, is entitled to continue only till regular selections are made. 10. Sri A.K.Yadav, learned counsel for the Board, contends that the petitioner cannot be prevented from joining in the institution, inasmuch as, the proposed respondent Daya Shankar Pandey, who is continuing as an ad hoc Principal, is entitled to continue only till regular selections are made. Any order, which is obviously interim in nature, cannot prevent the joining of the petitioner, as contended by the Management on the strength of the order passed in Writ Petition No. 10237 of 2008. He further submits that an interim order was passed in this very petition on 3rd of March, 2009 calling upon the authorities to show cause as to why action be not taken for preventing or obstructing the joining of the petitioner. He submits that the Management did not challenge the requisition, which had been sent to the Board nor did the Management intimate the Board at the time of the selections in the year 2002 that there was any legal impediment in holding of the selections. Even otherwise, there is no impediment in law to withhold the selections, inasmuch as, the post of the Headmaster, which is duly sanctioned and aided up to the High School level has not been abolished and on the other hand there is no sanction of the post of Principal of the Intermediate College. He contends that the recognition order dated 30th March, 1998 simply requires that as a result of the recognition, so granted, there has to be a qualified person to hold the office of Principal/Head of the Institution. Learned Standing Counsel has also adopted the same arguments as Sri Yadav and has supported the cause of the petitioner. 11. Having heard learned counsel for the parties, what emerges from the record is that the vacancy on the post of Headmaster of the Institution, which was a High School, came into existence on 16th October, 1989 upon the death of the permanent incumbent of the post. The Institution was only recognized and aided upto the High School level then. The U.P. Secondary Education Service Selection Board Act, 1982 had already been enforced and was very much applicable for the purpose of holding selections on the post of the Head of the Institution in question. Accordingly, a requisition was sent as per the then existing Rules through the District Inspector of Schools for selection on the post of the Head of the Institution. Accordingly, a requisition was sent as per the then existing Rules through the District Inspector of Schools for selection on the post of the Head of the Institution. For reasons best known to the Board, the selections could not be held within time and the advertisement was also delayed. In between the order dated 30th March, 1998 granting recognition to the Institution to impart education in certain subjects at the Intermediate level was granted. This recognition is under Section 7-A(a) of the U.P. Intermediate Education Act, 1921 which reads as follows : Recognition of an Institution in any new subject or for a higher class.—Notwithstanding anything contained in clause (4) of Section 7— (a) The Board may, with the prior approval of the State Government, recognize an institution in any new subject or group of subjects or for a higher class; 12. The consequence of such a recognition is that the Institution does not get any automatic aid nor there are any automatic creation of posts. The said recognition is on a voluntary request of the Institution, and is for the purpose of permitting the institution to prepare students to appear in examinations at the Intermediate level in certain subjects. The recognition does not bring about any automatic creation of posts. However, realizing the difficulties that were likely to arise for imparting such education in a higher class, the provisions of Section 7-AA were introduced to permit employment of part time teachers and instructors as an interim measure for the benefit of students on the condition that the honorarium payable to such teachers would be borne by the Management from its own resources. The status of such teachers is, therefore, of part time teachers who do not form part of the regular cadre. The aforesaid Section does not contemplate the creation of the post of the Head of Institution. Even otherwise, there cannot be a part time Head of the Institution as neither the Act contemplates so nor the Regulations indicate the engagement of a part time Head of the Institution. It is under such conditions that the Institution was granted recognition. 13. The Management did not challenge the requisition relating to the post of Headmaster and according to the Management, after the Institution was granted recognition at the Intermediate level, a resolution was passed to continue Sri Daya Shankar Pandey as the Head of the Institution upon its upgradation. It is under such conditions that the Institution was granted recognition. 13. The Management did not challenge the requisition relating to the post of Headmaster and according to the Management, after the Institution was granted recognition at the Intermediate level, a resolution was passed to continue Sri Daya Shankar Pandey as the Head of the Institution upon its upgradation. The Selection Board during these intervening events had sought verification from the District Inspector of Schools about the requisition sent earlier in the year 1991 and the District Inspector of Schools reaffirmed the existence of the vacancy on the post of Headmaster. 14. The main question, which is the foundation of the argument on behalf of the Committee of Management is, as to the impact of the recognition order dated 30th March, 1998. Sri Upadhyay, on the strength of the decisions referred to herein above contends that once the status of the Institution was raised to the level of an Intermediate College under the recognition order dated 30th March, 1998, there is an automatic transition in the status of the Institution and as submitted by him earlier, the High School level Institution stood merged loosing its identity as such and resulting in a transformed Intermediate level institution. In order to appreciate this argument a reference to the order of recognition and the relevant provision namely Section 7-A(a) of the 1921 Act would be appropriate. A reading between the lines of the aforesaid Section would leave no room for doubt that the same is in the nature of a permission to run classes of higher level for imparting education to students to enable them to prepare and appear as students in the Intermediate level examination to be conducted by the Board. The purpose of such recognition is not creation of posts or abolition of any post. The purpose is to provide education to the students who offer themselves as candidates to appear in the examination of the Intermediate level conducted by the U.P. Board. For this, the word ‘recognition’ has to be understood in the context as defined under Section 2(d) of the U.P. Intermediate Education Act quoted below : “Recognition means recognition for the purpose of preparing candidates for admission to the Board’s examinations.” 15. For this, the word ‘recognition’ has to be understood in the context as defined under Section 2(d) of the U.P. Intermediate Education Act quoted below : “Recognition means recognition for the purpose of preparing candidates for admission to the Board’s examinations.” 15. A perusal of the said Section would indicate that it is a privilege or a facility which is extended by the Board for preparing students to appear in the examination conducted by the Board. It is a competence created in the Institution to impart education as recognized by the State through the Board. While doing so, the State Government has the power to extend the benefit of grant-in-aid by providing for posts in such institution and extended amenities which may be required for running of the such institution. However, the State itself has evolved a statutory provision to grant recognition without the benefit of grant in aid or any financial benefit and it is therefore, open to an institution to either accept such condition or not. The Institution cannot compel the State Government to automatically extend the benefit of creation of posts or financial aid. The recognition of an institution and benefits of financial aid are entirely two different concepts. To explain this position it would be apt to refer to the case of Gopal Dubey v. District Inspector of Schools, 1999 (1) Education and Service Cases 168. It would, however, be relevant to clarify that the said Full Bench came to the conclusion that upon a recognition being granted under Section 7-A, there cannot be any deemed creation of the posts without there being any sanction under Section 9 of the U.P. Act No. 24 of 1971. 16. In the instant case, the contention goes ahead to the extent that by virtue of the recognition under Section 7-A(a), the institution may not be entitled to claim grant in aid as that would require a formal creation and sanction order under Section 9 of U.P. Act No. 24 of 1971 but at the same time mere non-availability of a creation or sanction order for grant in aid would not dilute the status of the Institution which has been recognized up to the Intermediate level and for which the post of Principal of that level comes into existence by virtue of such recognition. The aforesaid argument does appeal at first flush and it raises a vital issue in relation to the status of an institution as also the consequence thereof relating to the post of the Head of the Institution. The reason is that there cannot be two Heads of Institutions for the same school. In such a situation the question arises, can there be a selection by the Board on the post of Headmaster when the requirement is of a Principal of an Intermediate level. The answer to this question would rest on as to whether there is an automatic disappearance of the post of Headmaster on transformation of a High School level institution into an Intermediate College. 17. In the instant case the recognition order, which has been granted to the Institution under Section 7-A (a) does not rescind or withdraw the recognition granted to the Institution at the High School level. It also does not abolish the post of Headmaster nor is there anything on record to indicate that the grant in aid to the institution up to the High School level has been withdrawn. To my mind, it appears that realizing this position, the Management has come up with a case that it has already requested the State Government to withdraw the institution from the grant in aid list. The management went to the extent of filing a writ petition before this Court for a direction to the State Government to decide said representations about which facts have been indicated in paragraph 30 to 32 of the counter-affidavit of the Management. The fact that the Institution still continues to be recognized as a High School and receives grant in aid, therefore, till today continues to exist and there is nothing on record to the contrary. Accordingly, the status of the Institution upto the High School level remains undisputed and the same has not been dislodged so far. 18. So much on the facts of this case that emerge from the pleadings. The legal submission on behalf of the Committee of Management is that in view of the law laid down by this Court in the Full Bench case of State of U.P. (supra) which has been followed in the case of Dr. 18. So much on the facts of this case that emerge from the pleadings. The legal submission on behalf of the Committee of Management is that in view of the law laid down by this Court in the Full Bench case of State of U.P. (supra) which has been followed in the case of Dr. (Smt.) Sushila Gupta (supra) and upheld by a Division Bench in the case of Ajay Pratap Rai (supra), the institution which was a High School till 1998 became an Intermediate College and has therefore, lost its identity as such. It is on the strength of these decisions Sri Upadhyay contends that the post of Headmaster evaporates, inasmuch as, there can be only one Head of the Institution at the Intermediate level and as such the Board could not have proceeded to advertise and hold the selection in the year 2002. In order to analyse the aforesaid submission it would be appropriate to point out that the said decisions are in relation to consequences of upgradation in order to apply the relevant rules it was concluded that in view of the provisions of Regulation 4 of Chapter II, no appointment could be made except upon the recommendation of the Selection Board. The dispute in the Full Bench decision of State of U.P. (supra) was nowhere concerned with the interpretation of the provisions relating to Section 7-A(a) and Section 7-AA. In that case, the observation was that once a Junior High School was recognized as a High School then for the purpose of applicability of the Rules it would be governed as a High School and the Junior High School would loose its identity. The said case was in relation to extension of the benefit of grant in aid and the Full Bench ruled that the grant in aid which has been made available at the Junior High School level would continue to be made available even after upgradation. Accordingly, the said decision does not directly or even indirectly answer the issue involved herein. 19. So far as the decision in the case of Sushila Gupta (supra) is concerned, the same was a dispute where the Management was proceeding to appoint the Head of the Institution treating the same as a Junior High School inspite of the fact that recognition had been granted under Section 7-A of the Act. 19. So far as the decision in the case of Sushila Gupta (supra) is concerned, the same was a dispute where the Management was proceeding to appoint the Head of the Institution treating the same as a Junior High School inspite of the fact that recognition had been granted under Section 7-A of the Act. The Court came to the conclusion that the Institution looses its identity of that as a Junior High School and therefore the provisions of the U.P. Intermediate Education Act would apply. The nature of the conflict resolved therein was of a situation where the employee of an upgraded institution was claiming benefits arising out of upgradation. The said case was nowhere concerned with the appointment of a Head of an Institution as is presently involved where the Institution already stands recognized and aided as a High School with permission to run Intermediate Classes. The dispute in this case as noticed above is with regard to the competence of the Board to proceed to hold a selection where the recognition order under Section 7-A(a) has been granted to the Institution during the intervening period. Accordingly, the decision in the case of Sushila Gupta (supra) does not in any way bring about any improvement in the submissions advanced on behalf of the Committee of Management. 20. The reason for the same is not far to see. The Institution can always appoint part time teachers upon the recognition granted to it under Section 7-A(a). The Institution can have a person who is duly qualified to be appointed against the sanctioned post of Head Master and such appointee can also handle the Intermediate Section provided he is otherwise qualified for the same. Thus, there is no necessity of raising an argument of there being a conflict in the mind of the Management for appointment on the post of the Head of the Institution. The petitioner if selected as Headmaster and appointed can also look after the Intermediate Section if he is qualified but the selection cannot be resisted, inasmuch as, the post of Headmaster or Head of the Institution as sanctioned earlier does not evaporate under any automatic transition, as suggested by the Management. Neither the order of recognition dated 30th March, 1998 contemplates so nor do the provisions of the relevant statute as noticed above in any way contradict each other so as to warrant such an argument. Neither the order of recognition dated 30th March, 1998 contemplates so nor do the provisions of the relevant statute as noticed above in any way contradict each other so as to warrant such an argument. The teachers, who are to be appointed under Section 7(AA) are part time teachers. There is no vacuum on the post of Head of the Institution, inasmuch as, there is only a transition in the level of education imparted and not of any posts that were already existing in the Institution. The requisition for the post of Headmaster, which was sent to the Board appears to have remained unchallenged on the presumption of the Management that it was an exercise in futility. The management appears to have not challenged the advertisement and was making efforts to wriggle out of the control of the State Government and the statutory provisions by seeking withdrawal. The management therefore can be presumed to be aware of the proceedings of selections as it was making preparations for its defences. The Management in effect wants the Board not to select the Principal for the Institution and in order to avoid the same has also gone to the extent of requesting the State Government to withdraw the grant-in-aid. 21. There is a third dimension to the matter also. The State Government in its wisdom brought about Section 7-AA making provisions for part time teachers when recognition is granted under Section 7-A (a). While doing so, the State Government could have clarified the position also in respect of the position as to who would be entitled to head the Institution. This situation has to be taken care of for the simple reason that the qualification for the post of a Headmaster of a High School is slightly different from the post of a Principal of an Intermediate College. In view of this variation of qualification such difficulties can arise and therefore, it is the obligation of the State Government to issue an appropriate clarification. Taking an instance where there is already a permanent selected Headmaster of the institution, what would happen if such an institution is granted recognition to the Intermediate level under Section 7-A(a) if the existing Headmaster of the Institution does not hold the qualification of a Principal of an Intermediate level college. Taking an instance where there is already a permanent selected Headmaster of the institution, what would happen if such an institution is granted recognition to the Intermediate level under Section 7-A(a) if the existing Headmaster of the Institution does not hold the qualification of a Principal of an Intermediate level college. To that extent, an argument can be entertained and in such an event if a fresh post of Principal is presumed to be sanctioned then in a converse situation upon the selection of a Principal of an Intermediate College what would be status of the Headmaster who has been already selected by the Board to function as the Head of the Institution. Thus, the situation does require an appropriate legislation to clarify the situation lest any further confusion is perpetuated. In such a situation the Court may not be called upon to legislate, as through a judicial intervention, the Court can “iron out the creases and not weave a new texture”. On facts also this case does not warrant such an attempt and the issue is left open to be adjudicated in an appropriate case. 22. So far as the present petitioner is concerned, there is nothing to indicate that the petitioner is not qualified to hold the post of the Principal of the Institution. In my opinion, the advertisement issued in the category of High School and not as an Intermediate College does vitiate the selection of the petitioner which has been made on the post of the Headmaster of the High School level. The selections having been made for the post that was requisitioned is therefore in order. The said requisition or the advertisement is not invalidated on account of the recognition order dated 30th March, 1998 inasmuch as, as explained above, the alleged transformation in the status of the post is not such so as to invalidate the selection of the petitioner on the post in question. 23. Accordingly, the writ petition is allowed. A mandamus is issued to the respondents, the respondent No. 4 in particular to allow the petitioner to join and function in the Institution within three weeks from the date of production of a certified copy of the order before the said respondent. The interim order passed herein stand discharged. ————