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2014 DIGILAW 2356 (ALL)

OM PRAKASH v. STATE OF U. P.

2014-08-06

P.K.S.BAGHEL

body2014
JUDGMENT Hon’ble P.K.S. Baghel, J.—By way of this writ petition the petitioner, a class-IV employee of a recognized Institution, namely, Subhash Janta Vidyalaya, Majhupur, Kannau (for short, “the Institution”), is seeking quashment of the impugned order dated 25 October 2011 passed by the District Inspector of Schools, Kannuaj (for short, “the DIOS”), whereby he has rejected the claim of the petitioner for promotion. 2. The essential facts are that the Institution is governed by the provisions of U.P. Intermediate Education Act, 1921 (U.P. Act No. II of 1921), the Regulations framed thereunder and the Uttar Pradesh Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978 (U.P. Act No. 6 of 1979). 3. It is stated that the Institution was initially a Junior High School. The petitioner was appointed as a peon on 01 July 1978. The services of the petitioner were confirmed. The Institution was upgraded as High School in the year 2007 thus the provisions of U.P. Act No. II of 1921 and the Regulations framed thereunder are applicable to the Institution. The petitioner claims his promotion under Chapter-III Regulation 2(b) of the Regulations framed under the U.P. Act No. II of 1921 as on 50% quota on the post of clerk. 4. It is stated that the petitioner possesses the essential qualification for his promotion under the said provisions, however, the Committee of Management under malafidely in order to appoint the respondent No. 6, who happens to be son of a clerk of the Institution namely Balveer Singh who had taken voluntarily retirement, proceeded to fill up the post by direct recruitment. 5. The Committee of Management, it is alleged, issued an advertisement in a local newspaper, which has no wide circulation and without any prior permission from the District Inspector of Schools, Kannauj (for short, “the DIOS”) in terms of Regulation 101 of Chapter III of the Regulations, appointment of the respondent No. 6 was made. 6. Aggrieved by the said appointment, the petitioner preferred a Writ Petition No. 45053 of 2011. The said writ petition was disposed of on 09 August 2011 with a direction to the DIOS to consider the representation of the petitioner and pass appropriate order. 6. Aggrieved by the said appointment, the petitioner preferred a Writ Petition No. 45053 of 2011. The said writ petition was disposed of on 09 August 2011 with a direction to the DIOS to consider the representation of the petitioner and pass appropriate order. In furtherance thereof the DIOS passed the impugned order dated 25.10.2011, wherein he has rejected the claim of the petitioner for promotion on the post of class-III post on the ground that as per the Government order dated 24 November 2001 the service conditions of the class-III employee shall be governed under the provisions of Uttar Pradesh Recognized Basic Schools (Junior High Schools) Recruitment and Conditions of Services of Ministerial Staff and Group ‘D’ Employees) Rules 1984. 7. A counter-affidavit has been filed on behalf of the respondent authorities as well as the private respondent No. 6. 8. The stand taken in the counter-affidavit by the respondent Nos. 3 and 4 that although the Institution has thereafter upgraded up to the level of High School but it is on the grant-in-aid list only up to the level of High School, therefore, the provisions of the U.P. Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 (U.P. Act No. 6 of 1978) are applicable to the Institution. It is further mentioned in the counter-affidavit that the U.P. Act No. 24 of 1971 and the U.P. Act No. II of 1921 are not applicable. It is further stated that the Institution is on the grant-in-aid up to the level of Junior High School, therefore, the provisions of U.P. Recognized Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 are applicable to the Institution. 9. It is averred in the counter-affidavit that the selection of class-III employees in view of the said fact is to be made under the U.P. Recognized Basic Schools (Recruitment and Conditions of Service of Ministerial Staff and Group-D) Rules, 1984, which is applicable to the Institution. 10. The similar stand has been taken by the other respondents - State functionaries. 11. The same stand has been taken by the private respondent No. 6 that the provisions of Rules, 1984 are applicable to the Institution on the ground that the Institution does not receive any grant-in-aid up to the Intermediate Section. 12. 10. The similar stand has been taken by the other respondents - State functionaries. 11. The same stand has been taken by the private respondent No. 6 that the provisions of Rules, 1984 are applicable to the Institution on the ground that the Institution does not receive any grant-in-aid up to the Intermediate Section. 12. I have heard learned Counsel for the petitioner Sri K. Ajit, Sri K. Shahi, learned Counsel for the respondent Nos. 3 and 4, learned Standing Counsel for the State functionaries and Sri S.P. Yadav, learned Advocate holding brief of Sri Pankaj Gupta for the Committee of Management. 13. Learned Counsel for the petitioner Sri K. Ajit submits that once the Institution was upgraded from Junior High School to the High School irrespective of the fact that whether it was not on the grant-in-aid list in the High School, the provisions of the U.P. Act No. II of 1921 would be applicable. Thus the entire stand taken by the respondents that Group-D Rules, 1984 would be applicable is totally misconceived. He further submits that it is indisputable fact that the petitioner was appointed as a class-IV employee in the Institution and he is a confirmed employee, therefore, in terms of Chapter-III Regulation-2(b) he is entitled for the promotion on the post of clerk under 50% quota. 14. Sri K. Ajit has placed reliance on a judgment of Full Bench of this Court in 1981 UPLBEC 336 “State of U.P. and others v. District Judge, Varanasi and others” and the judgment in Smt. Manju Awasthi and others v. State of U.P. and others, 2013(3) ADJ 64 (DB). 15. Learned Counsel for the respondent Nos. 5 and 6 has invited attention of the Court to paragraph Nos. 6 and 7 of the counter-affidavit. Learned Standing Counsel has tried to justify the impugned order. 16. I have heard learned Counsel for the respective parties and considered their submissions. 17. Indisputably the Institution was upgraded up to the level of High School in the year 2007. The issue with regard to the applicability of the U.P. Act No. II of 1921 in such Institution which has been upgraded from Junior High School to the Intermediate is no more res integra. 17. Indisputably the Institution was upgraded up to the level of High School in the year 2007. The issue with regard to the applicability of the U.P. Act No. II of 1921 in such Institution which has been upgraded from Junior High School to the Intermediate is no more res integra. The Division Bench of this Court in Smt. Manju Awasthi (supra) has laid down the law that if the Institution receives grant-in-aid up to the level of Junior High School and is recognized up to High School or Intermediate, the provisions of the Rules, 1978 shall be applicable only in respect of the payment of salaries and in respect of other service conditions and other provisions of U.P. Act No. II of 1921 would be applicable in the Institution. The same view has been reiterated by the Division Bench in Smt. Manju Awasthi (supra). Relevant part of the judgement reads as; “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.” 18. In the impugned order the DIOS has relied on Group-D Rules, 1984 which are totally misconceived. It appears that the Government order dated 24.11.2001 came to be considered by the Division Bench, wherein the said Government order has been declared to be illegal and ultra vires. 19. After careful consideration of the matter, I find the order of the DIOS is totally unsustainable. It appears that the Government order dated 24.11.2001 came to be considered by the Division Bench, wherein the said Government order has been declared to be illegal and ultra vires. 19. After careful consideration of the matter, I find the order of the DIOS is totally unsustainable. Both the grounds mentioned in the order of the DIOS for applicability of the said Rules and the Government Order have already been considered by this Court and has been held to be inapplicable once the Institution is upgraded up to the High School. 20. For the aforestated reasons the order of the DIOS dated 25.10.2011 is liable to be set aside. Accordingly the order of the DIOS dated 25.10.2011 and the approval granted to the appointment of the respondent No. 6 are set aside. The DIOS is directed to pass an appropriate order for the promotion of the petitioner in accordance with law. 21. It is stated that the petitioner is reaching his age of superannuation on 30 August 2014. The DIOS shall complete the exercise within two months from the date of communication of the order. 22. Thus the writ petition is allowed. 23. No order as to costs. ———————