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2014 DIGILAW 2131 (ALL)

RAM BAKSH SINGH v. STATE OF U. P.

2014-07-18

ASHWANI KUMAR MISHRA

body2014
JUDGMENT Hon’ble Ashwani Kumar Mishra, J.—All the aforesaid 4 writ petitions are connected to each other and have been heard together, therefore, are being disposed of by this common judgment. 2. Writ Petition No. 35465 of 2002 has been filed challenging the order dated 23.7.2002 and 29.7.2002, appointing respondent No. 2 Jai Prakash as officiating Principal of the institution and attesting his signature, respectively. Writ Petition No. 8108 of 2003 has been filed challenging the advertisement issued for appointment to the post of Principal/Head Master dated 31.1.2003, in accordance with the provisions of U.P. Basic Shiksha Service Recruitment Rules published in daily news paper ‘Aaj’ and also for restraining the respondents from interfering with the petitioner’s working as officiating principal. In this writ petition, an order dated 20.2.2003 has been passed by this Court, restraining the management of the institution from making appointment, pursuant to the advertisement under challenge. Thereafter Writ Petition No. 29790 of 2003 has been filed by the petitioner for quashing the order dated 28.6.2003 passed by the District Inspector of Schools, Mainpuri attesting the signatures of Raghuraj Singh as officiating principal, pursuant to his appointment as Principal on 19.5.2003, which had been approved by the District Basic Shiksha Adhikari on 21.2.2003 as head master. Lastly, writ petition No. 70159 of 2005 has been filed challenging the Government Order dated 24.11.2001, whereby, the procedure to regulate functioning of Junior High School upgraded to High School and Intermediate levels have been specified. 3. The dispute in these petitions relates to the office of Principal/Head Master in the institution known as Gautum Budh Junior High School Agra road Mainpuri, hitherto a recognised Junior High School. The institution was upgraded for the Sessions 1994-1995 upto High School level by order of the Secondary Education Board dated 30.5.1994 and the District Inspector of Schools, Mainpuri allowed running of High School Classes vide his order dated 1.5.1995. The institution was further upgraded in July, 1997 upto Intermediate level. The provisions of The Uttar Pradesh Junior High Schools, Payment of Salaries of Teachers and other Employees) Act, 1978 (hereinafter referred to as the ‘Salaries Act 1978’) are applicable upon the institution. The institution was further upgraded in July, 1997 upto Intermediate level. The provisions of The Uttar Pradesh Junior High Schools, Payment of Salaries of Teachers and other Employees) Act, 1978 (hereinafter referred to as the ‘Salaries Act 1978’) are applicable upon the institution. The petitioner in the institution had been appointed as Assistant Teacher in the year 1980, and at that stage, he possessed the qualification of Intermediate with B.T.C. The petitioner claims that with the prior permission of the concerned authorities, he pursued and passed B.A. and M.A. Examinations from University and also completed B. Ed. 4. One Sri Sardar Singh, who had qualification of M.A. B.Ed. was functioning as principal in the institution till he attained the age of superannuation on 30.6.2002. Sri Jai Prakash Shastri, B.A.BTC, respondent No. 4 in Writ Petition No. 35465 of 2002 was given the charge of officiating principal of the institution, pursuant to his appointment on 23.7.2002 and his signatures were also attested on 29.7.2002. Petitioner claimed that he being senior most teacher having qualification of M.A. B.Ed. instead, was entitled to officiate as Principal. The petitioner challenged the appointment of Sri Jai Prakash Shastri on the ground that he lacked the required qualification for Principal of an Intermediate College i.e. M.A. B.Ed. Representations were submitted by the petitioner to the concerned educational authorities. It appears that an order was passed by the District Inspector of Schools, Mainpuri on 5.1.2002, whereby the management was directed to appoint the petitioner as officiating principal in place of Jai Prakash Shastri and his signatures were also directed to be attested. This order of the District Inspector of Schools was not complied with and as such a reminder was sent to the Manager of the institution by the then District Inspector of Schools, Mainpuri on 17.10.2002. Since the reminder also did not work, as such, yet another communication was sent on 27.11.2002 by District Inspector of Schools, requiring the action to be taken for appointing the petitioner as officiating principal, failing which proceedings were to be drawn against the management. The District Inspector of Schools by registered letter dated 9.12.2002 reiterated the contents of previous letters and expressed his dis-pleasure at the attitude of the manager in not appointing the petitioner. The District Inspector of Schools by registered letter dated 9.12.2002 reiterated the contents of previous letters and expressed his dis-pleasure at the attitude of the manager in not appointing the petitioner. In this series, an order dated 17.1.2003 was passed and the signatures of the petitioner as officiating principal were attested on 17.1.2003 by the District Inspector of Schools. The District Inspector of Schools issued letter dated 8.2.2003, addressed to Sri Jai Prakash Shastri to forthwith deliver charge of the office of officiating principal of the institution to the petitioner. 5. The case of the petitioner is that the management of the institution, in order to circumvent the orders of District Inspector of Schools directing handing over of charge of the office of officiating Principal to the Senior most eligible teacher, adopted a novel method of advertising the post of Head Master in accordance with the provisions of U.P. Basic Education Service Recruitment Rules, inviting applications till 12.2.2003 and for holding of interview on 16.2.2003, even though the post of Head master had seized to exist after the up-gradation of the institution and recruitment could not be made as per the Provisions of the U.P. Basic Education Service Recruitment Rules. 6. Aggrieved against this action, petitioner filed Writ Petition No. 8108 of 2003, wherein, following orders were passed on 20.2.2003. “In view of the averments made in para Nos. 8, 9 & 10, no appointment will be made pursuant to the advertisement issued by the Manager of the college published in the news paper ‘ Aaj’ on 31.1.2003 issued to the respondent No. 3. List after return of the notice. Sd/S. Harkauli, J 20.2.2003" 7. It is stated that pursuant to the advertisement dated 31.1.2003, and before passing of the interim order dated 20.2.2003, the management appointed Sri Raghuraj Singh, Assistant Teacher who was working in the same institution and was otherwise junior to petitioner, on 16.2.2003, and his appointment was also approved by the District Basic Education Officer on 21.2.2003. The petitioner, consequently, filed another writ petition challenging the appointment and financial approval granted to Sri Raghuraj Singh. It was further prayed that the petitioner being the senior most eligible teacher be allowed to officiate till the regularly selected Principal is made available by the Commission. 8. I have heard Sri K. Ajit, learned counsel appearing for the petitioner, Sri Ashok Khare, learned Sr. It was further prayed that the petitioner being the senior most eligible teacher be allowed to officiate till the regularly selected Principal is made available by the Commission. 8. I have heard Sri K. Ajit, learned counsel appearing for the petitioner, Sri Ashok Khare, learned Sr. Advocate, assisted by Sri Siddharth Khare for the respondent No. 5 and learned Standing Counsel appearing for the State-Respondents. 9. Learned counsel for the petitioner Sri K. Ajit relied upon the Division Bench judgment of this Court in Special Appeal No. 25 of 2006, connected with other matters of Smt. Manju Awasthi and others v. State of U.P. and others, 2013 (3) ADJ 64 . It is submitted that law has been settled that once a Junior High School is upgraded to High School/Intermediate level, the upgraded institution is covered within the definition of ‘institution’ under the provisions of Section 2 (b) of the U.P. Intermediate Education Act, 1921 (hereinafter referred to as the ‘Act of 1921’) thereafter, the provisions of the Act of 1921 as well as U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as the ‘ Selection Board Act 1982’) would get attracted. Thus, it is argued the appointment of Raghuraj Singh as head master in the year 2003 under the provisions of the The Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 was wholly without is liable to be set aside. 10. This argument has been opposed by Sri Ashok Khare, learned Senior Advocate on the ground that mere up gradation of the institution to High School or Intermediate level would not amount to automatic creation of post of Principal in the up-graded institution and the head of the institution would continue to be governed by the 1978 Rules. He has relied upon the Full Bench judgment of this Court in the case of Gopal Dubey v. District Inspector of Schools, Maharajganj and another, (1999) 2 AWC 962 , to submit that creation of post is not automatic. The submission of Sri Khare is that in the absence of creation of post of Principal, in the upgraded institution, the appointment of headmaster under 1978 rules was the only alternative course available to the management in the peculiar facts and circumstances of the case, and as such, interference of this Court is not required. 11. The submission of Sri Khare is that in the absence of creation of post of Principal, in the upgraded institution, the appointment of headmaster under 1978 rules was the only alternative course available to the management in the peculiar facts and circumstances of the case, and as such, interference of this Court is not required. 11. Admittedly, the institution had been upgraded as High School in 1995 and Intermediate in 1997 under the provisions of the Act of 1921 and, therefore, the provisions of Act of 1921 got attracted. Appointment to the post of Principal could thus be made under the provisions of the Act of 1921 and the Commission Act of 1982. 12. The office of the head of the institution fell vacant on 30.6.2002. At that stage, the institution had already been upgraded to Intermediate level. The provisions of the Act of 1921 and the Commission Act, 1982 were clearly applicable as such, the office of the head of the institution could not be filled by resorting to the procedure contemplated for appointments of head master to a Junior High School. The appointment of Raghuraj Singh as head master, pursuant to advertisement dated 31.1.2003 was, therefore, wholly without jurisdiction and could not have been approved. The appointment of Sri Raghuraj Singh to the non existent post of head master, as well as its subsequent approval by the Basic Shiksha Adhikari suffers from inherent lack of jurisdiction and are, therefore, liable to be set aside. 13. From the perusal of the record of the Writ Petition No. 8108 of 2003 and Writ Petition No. 29790 of 2003, it is apparent that the District Inspector of Schools had rightly found the institution to be governed by the provisions of the Act of 1921 and consequently had called upon the committee of management to permit the petitioner to function as officiating principal of the institution in view of the fact that he was senior most teacher, possessing the required qualification for the post of Principal of the institution. The series of letters sent by the District Inspector of Schools, Mainpuri, already referred to above, demonstrates that the committee of management was made aware of the requirement of allowing the post of head of the institution to be filled with officiating appointment of the petitioner. The series of letters sent by the District Inspector of Schools, Mainpuri, already referred to above, demonstrates that the committee of management was made aware of the requirement of allowing the post of head of the institution to be filled with officiating appointment of the petitioner. There is force in the contention of Sri K. Ajit that the committee of management deliberately refused to comply with the direction of District Inspector of Schools and in order to circumvent it invented a unique design of advertising the post of Head master and thereafter filled it up with the appointment of Sri Raghuraj Singh, who was otherwise junior to the petitioner. The attestation of signature of Sri Raghuraj Singh by DIOS relying upon the approval on the post of head master by Basic Shiksha Adhikari, was clearly contrary to law and is equally liable to be set aside. The petitioner being the senior most teacher in the institution, having requisite qualification for the post of Principal, is entitled to continue as officiating principal of the institution. 14. The argument of Sri Khare about the non creation of the post of Principal in the upgraded institution, and therefore, appointment of head master cannot be accepted. The Division Bench in Smt. Manju Awasthi (Supra) dealt with the issue of creation of post of Principal in the upgraded institution and came to the conclusion that the upgradation of the institution contemplates creation of skeleton post, required to man the institution. Paras 59, 62 and 63 of Smt. Manju Awasthi (Supra) is reproduced : “59. Thus, the regulations do not obviate the requirement of teachers to man the institution. As held above, the appointment of part time teachers under Section 7AA is contemplated only after recognition is granted under Section 7A. Thus, those part time teachers are not contemplated to be in existence at the time the school seeks recognition. We have already come to the conclusion that the first recognition of an institution as High School under the 1921 Act cannot be granted under Section 7A and recognition under Section 7A is a recognition of an existing recognised institution under the 1921 Act. Thus, where a recognition is granted under Section 7A as per the conditions mentioned in Section 7A, the institution is already in existence as a recognised institution. The existing institution has to be envisaged alongwith skeleton teachers to man the high school. Thus, where a recognition is granted under Section 7A as per the conditions mentioned in Section 7A, the institution is already in existence as a recognised institution. The existing institution has to be envisaged alongwith skeleton teachers to man the high school. Thus, the requirement of creation of post when an institution is recognised for the first time is very much there. It is another thing that Government may not take any financial responsibility for payment of salary to such teachers when an institution is recognised for the first time and it is always open to the Government to grant recognition vitta Vihin or not to take the institution on grant-in-aid but whether an institution is taken on aid or not taken on aid has nothing to do with the standard with which an educational institution is to maintain or inspire. We are thus, of the clear view that when an institution is recognised for the first time, the institution contemplates creation of skeleton of post to man the institution and when a Junior High School is recognised as High School under the 1921 act for the first time, the post of Principal Head Master has to be there whether the institution receives an aid or does not receive an aid, which factor is immaterial. 62. After the enforcement of U.P. Act No. 5 of 1982 also it was contemplated in U.P. Secondary Education Services Commission (Removal of Difficulties) Order 1981 clause 4 (1) (C) that in the case a Junior High School is raised to the level of a High School, the post of Principal be filled by the Head Master of such Junior High School by adhoc appointment by promotion. Thus, 1982 Act also contemplated filling up of the post of Head Master of a High School by promotion of Head Master of Junior High School on adhoc basis. However, scheme of 1982 Act contemplated the regular appointment on the post of head of the institution thereafter. Thus, the post of head of institution after recognition under Section 1921 Act has to be filled up and no situation can be contemplated where post has to remain vacant or there has to be no post of head of institution in the High School. Thus, the post of head of institution after recognition under Section 1921 Act has to be filled up and no situation can be contemplated where post has to remain vacant or there has to be no post of head of institution in the High School. We have already held that recognition under Section 7A cannot be granted for the first time to an institution as a High School and the said recognition under Section 7A has to be for an institution which is already recognised under the 1921 Act within the meaning of Section 2(b) of 1921 Act. Thus, when a request is prayed for and granted under Section 7A there is an already recognised institution contemplating a head of institution since no appointment on the post of head of institution is contemplated under Section 7AA. There has to be full time Head Master of a High School and above interpretation is in accordance with the statutory scheme as delineated by 1921 Act, Regulations framed thereunder and 1982 Act. 63. Thus, we are of the view that there has to be a Head Master of the High School when it is recognised for the first time and requiring a Head Master to be appointed clearly contemplated a post of Head Master and the said post is to be created by educational authorities irrespective of the fact whether State is giving any aid or not. State can very well recognise an institution as High School (vitta vihin) but that itself does not absolve the requirement of having of a post of head of institution or creating the said post. When a post is contemplated in an institution either of Head Master or teacher which is required to be granted on Manak fixed by the Government for the purpose of recognising an institution for the first time, management cannot be absolved from its responsibility to make appointment of qualified teachers to man the minimum post of teachers required for establishing an institution or for recognising an institution in the High School and it cannot be absolved from its responsibility to make the payment of their salary as has already been laid down in various Government Orders from time to time”. 15. The jurisdiction of Basic Shiksha Adhikari has been held to be confined to payment of salary alone, as the Salaries Act, 1978 continues to operate. 15. The jurisdiction of Basic Shiksha Adhikari has been held to be confined to payment of salary alone, as the Salaries Act, 1978 continues to operate. However, he has no jurisdiction in the matter relating to appointment of Principal/head of the institution. The Division Bench in para-80 of Smt. Manju Awasthi, proceeded to endorse the view of the Hon’ble Single Judge that consequent upon upgradation of the institution to High School level, the provisions of 1921 Act and U.P. Act No. 5 of 1982 are applicable and the selection made by the Basic Shiksha Adhikari was quashed. Para-80 of the judgment in Smt. Manju Awasthi is reproduced : “80. The judgment of Hon’ble Single Judge which is impugned in the leading appeal being Special appeal No. 25 of 2006 relying on the Full Bench in State of U.P. v. District Judge (Supra) and Division Bench judgment in Shiksha Prasar Samiti v. State of U.P. and others, as well as after considering the relevant provisions of U.P. Intermediate Education Act, 1921, Sections 2(b) 2(d) and 7A as well as provisions of 1982 Act, held that after a Junior High School is upgraded as High School, the provisions of U.P. Intermediate Education 1921 and U.P. Act No. 5 of 1982 are applicable and selection made by the Basic Shiksha Adhikari of appellant Manju Awasthi was quashed. We are of the view that judgment of Hon’ble Single Judge cannot be faulted and we do not find any good ground in the appeal to interfere with the impugned judgment”. 16. In the peculiar facts of the present case, deliberate intent on part of the management to deny handing over charge of officiating principal to the petitioner who was senior most teacher possessing required qualification for appointment to the post is apparent on the face of record. Series of letters sent by District Inspector of Schools, in this regard, were ignored. A novel method to circumvent the directions of the District Inspector of Schools was invented. Even despite passing of the order dated 20.2.2003 by this Court, the management allowed Sri Raghuraj Singh to continue working as head of the institution. The petitioner, for no fault of his, had been denied the right to officiate as head of the institution. A novel method to circumvent the directions of the District Inspector of Schools was invented. Even despite passing of the order dated 20.2.2003 by this Court, the management allowed Sri Raghuraj Singh to continue working as head of the institution. The petitioner, for no fault of his, had been denied the right to officiate as head of the institution. In such circumstances, petitioner is clearly entitled to the relief prayed for and consequently, a direction is issued to the authorities concerned to forthwith allow the petitioner to join as officiating principal of the institution with all consequential benefits and continue till a regularly selected candidate on the post of Principal is made available by the Commission. The petitioner is also entitled to be compensated for the harassment meeted out to him by the committee of management. 17. Consequently, Writ Petition No. 8108 of 2003 and Writ Petition No. 29790 of 2003 are allowed. The advertisement dated 31.1.2003 as well as all consequential action undertaken including appointment of Sri Raghuraj Singh as head master/officiating principal are quashed. The order dated 28.6.2003 passed by the District Inspector of Schools, Mainpuri, attesting the signature of Sri Raghuraj Singh as officiating Principal is also quashed. A writ of mandamus is issued commanding the respondents to forthwith allow the petitioner to assume responsibility of officiating principal of the institution alongwith all consequential benefits till regular selection by the Commission. The petitioner is also entitled for payment of costs assessed as Rs. 25,000/- from the respondent committee of management for harassing the petitioner. Writ Petitions No. 35465 of 2002 and 71059 of 2005 do not require passing of any further orders and are also disposed off accordingly. —————