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Allahabad High Court · body

2019 DIGILAW 770 (ALL)

Khajan Singh v. State of U. P.

2019-03-28

ASHWANI KUMAR MISHRA

body2019
JUDGMENT : 1. These two petitions relate to same cause, and therefore, are being disposed of by this common order. 2. The first Writ Petition No.13023 of 2018 challenges an order passed by the District Inspector of Schools, Amroha dated 2.5.2018, as also the order dated 10.5.2018, passed by the Joint Director of Education. A further prayer has been made to command the respondents to approve the resolution of the Managing Committee dated 1.4.2018 and to attest the signatures of petitioner Khajan Singh as Officiating Principal of the institution concerned. 3. The second Writ Petition No.4081 of 2019 is by one Surendra Singh, who alleges himself to be the senior most Lecturer in the institution and is aggrieved by attestation of signatures of respondent no.5, who is the petitioner in first writ petition, as Officiating Principal of the institution. A further prayer is made not to allow respondent no.5 to function as Officiating Principal. 4. Sikh Inter College, Narangpur, Post Joya, District Amroha is a recognized intermediate institution under the provisions of the U.P. Intermediate Education Act, 1921 and the provisions of Payment of Salaries Act, 1971 are also applicable. The institution admittedly is a minority institution. The post of Principal in the institution has fallen vacant on 31.3.2018 and the petitioners in both the writ petitions are claiming entitlement to officiate as such. Petitioner Khajan Singh is a postgraduate trained teacher, who is working as Assistant Teacher in L.T. Grade for the last 12 years. The other petitioner Surendra Singh is also a postgraduate trained teacher, who is Lecturer and also claims himself to be senior most teacher in the institution. It appears that when vacancy arose on the post of Principal the Managing Committee of the minority institution proceeded to pass a resolution on 1.4.2018 appointing petitioner Khajan Singh as Officiating Principal of the institution. This apparently was done as the scheme of the institution required Principal to be an 'Amritdhari Sikh' and he was 'Amritdhari Sikh'. The other petitioner also claims to be a Amritdhari Sikh, but this fact is disputed by the petitioner Khajan Singh. The resolution of the Managing Committee in favour of Khajan Singh was not approved by the authorities vide their orders impugned in the first writ petition. The other petitioner also claims to be a Amritdhari Sikh, but this fact is disputed by the petitioner Khajan Singh. The resolution of the Managing Committee in favour of Khajan Singh was not approved by the authorities vide their orders impugned in the first writ petition. The District Inspector of Schools in his order dated 2.5.2018 observed that there are various lecturers, senior to Khajan Singh in the lecturers grade, whose claim stands ignored, and therefore, a direction was issued to the Managing Committee to pass a fresh resolution taking note of claim of other persons. The other order of the Joint Director also directs the Managing Committee to consider claim of senior lecturer who may be eligible for the purposes of handing over charge of the office of Principal. The Writ Petition No.13023 of 2018 has been entertained and affidavits have been exchanged. In the counter affidavit filed in Writ Petition No.13023 of 2018 as also in the other Writ Petition No.4081 of 2019 it is asserted that the officiating appointment ought to have been given to the senior most person and that appointee must also possess requisite qualification for appointment prescribed in Appendix 'A' of Chapter II of the Act of 1921. It is also asserted that petitioner Khajan Singh is a teacher in L.T. Grade and has no experience of teaching class at intermediate level, and therefore, he is not eligible and qualified for appointment. It is also asserted that about 17 other teachers senior to Khajan Singh in the institution and there is no justification to ignore their claim. 5. I have heard learned counsel for the parties in both the writ petitions as also the learned Standing Counsel for the State authorities and perused the materials brought on record. 6. So far as minority status of institution is concerned, there is no issue. The question as to what would be extent of authority of Managing Committee of minority institution to appoint Principal of its own choice has been a subject matter of consideration by the Apex Court in Manager, Corporate Educational Agency vs. James Mathew and others reported in AIR 2017 SC 3762 . Having examined the law in that regard the Apex Court went on to observe as under in para 6 & 7 of the judgment:- "6. Having examined the law in that regard the Apex Court went on to observe as under in para 6 & 7 of the judgment:- "6. As far as the validity of the declaration of minority status is concerned, this Court in N. Ammad Vs. Manager, Emjay High School and Others, [ (1998) 6 SCC 674 ], has held that the certificate of the declaration of minority status is only a declaration of an existing status. Therefore, there is no question of availability of the status only from the date of declaration. What is declared is a status which was already in existence. Paras 12 and 13 of the Judgment are quoted hereunder :- 12. Counsel for both sides conceded that there is no provision in the Act which enables the Government to declare a school as a minority school. If so, a school which is otherwise a 7 minority school would continue to be so whether the Government declared it as such or not. Declaration by the Government is at best only a recognition of an existing fact. Article 30(1) of the Constitution reads thus: "30(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice." 13. When the Government declared the school as a minority school it has recognised a factual position that the school was established and is being administered by a minority community. The declaration is only an open acceptance of a legal character which should necessarily have existed antecedent to such declaration. Therefore, we are unable to agree with the contention that the school can claim protection only after the Government declared it as a minority school on 2-8-1994. 7. We also have to refer to another faulty stand taken by the High Court in the impugned Judgment regarding the jurisdiction of the National Commission for Minority Educational Institutions. The Commission was established under the National Commission for Minority Educational Institutions Act, 2004 for the purpose of constituting the National Commission for Minority Educational Institutions and to provide assistance for matters connected therewith or incidental thereto." 7. The view taken by the Apex Court has been followed by this Court in C/M of Ewing Christian College Society, Allahabad and another vs. Union of India and others being Writ Petition No.30363 of 2018. The view taken by the Apex Court has been followed by this Court in C/M of Ewing Christian College Society, Allahabad and another vs. Union of India and others being Writ Petition No.30363 of 2018. The law, therefore, is well settled that it is the discretion of minority institution to appoint a person of its choice on the post of Officiating Principal. This right is hedged only by the condition that such person must possess requisite qualification as is prescribed in the appropriate rule for appointment to the post of Principal. 8. In such view of the matter the issue with regard to seniority of teachers would not be of any relevance. The Apex Court has otherwise clarified that it need not be the senior-most person from minority community who has to be necessarily allowed to officiate as Principal. The Managing Committee was, therefore, well within its right to have appointed a person of its liking notwithstanding his seniority position amongst the teachers. The educational authorities were clearly not justified in interfering with the resolution of the Managing Committee only on the ground that the person appointed as Officiating Principal was not the senior most person in the institution. 9. Sri H. N. Singh, learned senior counsel assisted by Sri A.A. Kazmi submits that under the provisions of the Act of 1921 qualification for the post of Principal stands prescribed and that such qualification is not possessed by petitioner Khajan Singh. Reliance is placed upon provisions of section 2(b) of the Act of 1921 as also the qualification specified in Appendix 'A' for the head of the institution. Section 2(b) and Appendix 'A' insofar as it prescribes the qualification for head of the institution alongwith its note is reproduced hereinafter:- "2(b). "Institution" means a recognised Intermediate College, Higher Secondary School or High School, and includes, where the context so requires, a pan of an institution, and 'Head of Institution' means the Principal or Head Master, as the case may be, of such institution. S. No. Name of the post & Educational Training Experience Age Desirable qualification (1) Head of the institution (1) Trained M.A. or M.Sc. or M. Com. or M.Sc. S. No. Name of the post & Educational Training Experience Age Desirable qualification (1) Head of the institution (1) Trained M.A. or M.Sc. or M. Com. or M.Sc. (Agri) or any equivalent post-graduate or any other degree which is awarded by corporate body specified in abovementioned para one and should have at least teaching experience of four years in classes 9 to 12 in any training institute or in any institution or University specified in abovementioned para one or in any degree college affiliated to such University or institution, recognized by Board or any institution affiliated from Boards of other States or such other institutions whose examinations recognized by the Board, or should the condition is also that he/she should not be below 30 years of age. Minimum 30 years. (2) First or second class post-graduate degree along with teaching experience of ten years in Intermediate classes of any recognized institutions or third class post-graduate degree with teaching experience of fifteen years, (2) Trained post-graduate diploma-holder in science. The condition is that he has passed this diploma course in first or second class and have efficiently worked for 15 or 20 years respectively after passing such diploma course. Notes - (1) Assistant teachers having at least second class post-graduate degree and specialized teaching experience of ten years in Intermediate classes of a recognized institution may be exempted from training qualifications, (as per the provisions contained in the Act.) (2) Teaching experience includes teaching prior to or after teaching or both. (3) Higher classes means classes from 9 to 12 and experience of teaching these classes is admissible for the post of Head Master of Intermediate college." 10. Perusal of the aforesaid provision would go to show that an institution recognized under the Act of 1921 can be a intermediate college, higher secondary school or high school and that head of institution means the Principal or Headmaster, as the case may be, of such institution. In case of an intermediate college the head of institution therefore would be the Principal while in case of a high school it would be the Headmaster. In the facts of the present case it is not in issue that the institution is an intermediate college. In case of an intermediate college the head of institution therefore would be the Principal while in case of a high school it would be the Headmaster. In the facts of the present case it is not in issue that the institution is an intermediate college. The qualification for head of the institution is a trained postgraduate alongwith four years teaching experience in classes 9 to 12 in any training institute or recognized institution or any other classes of institution specified therein. The note specifies the nature of teaching experience which is required for appointment to the post of head of the institution. It is not in dispute that Khajan Singh is a trained postgraduate and has the teaching experience of more than 12 years in class 9 and 10. Note 3 specifies higher classes to mean classes from 9 to 12 and experience of teaching these classes is admissible for the post of Headmaster of the intermediate college. Sri H. N. Singh has tried to submit that the teaching experience of 4 years in classes 9 to 12 has to be necessarily in the intermediate section and L.T. Grade teacher who is teaching classes 9 & 10 cannot be treated to be possessing the requisite teaching experience required for appointment of head of the institution. 11. The submission advanced on behalf of petitioner Surendra Singh is opposed by Sri Sujeet Kumar, learned counsel appearing for the petitioner Khajan Singh by contending that teaching experience of four years has to be in classes 9 to 12 and therefore the teaching experience of classes 9 & 10 cannot be ignored for the purposes of computing the teaching experience. 12. The issue, therefore, that falls for determination would be as to whether teaching experience for appointment to the post of head of institution in a recognized intermediate institution is restricted to teaching in intermediate section alone or would include teaching experience in classes 9 and 10 also. The expression "teaching experience of four years in classes 9 to 12" has to be understood in the manner as is specified in appendix itself. The provision does not restrict teaching experience to intermediate section alone. The term "9 to 12" would include teaching experience in any of the classes from classes 9 to 12. The teaching experience of petitioner Khajan Singh of 12 years in classes 9 and 10 is not in issue. The provision does not restrict teaching experience to intermediate section alone. The term "9 to 12" would include teaching experience in any of the classes from classes 9 to 12. The teaching experience of petitioner Khajan Singh of 12 years in classes 9 and 10 is not in issue. The Court is of the considered view that such teaching experience would answer the requirement of requisite teaching experience specified in Appendix 'A'. It would, therefore, not be open for the authorities or the petitioner Surendra Singh to allege that Khajan Singh does not possess requisite qualification for appointment to the post of Principal of intermediate institution. It has to be borne in mind that the institution is a minority institution and the provisions of U.P. Secondary Education Services Selection Board Act, 1982 or the Rules framed thereunder would not be applicable in the case of such institution. The relevant statute to determine the qualification in such institution therefore would be the Act of 1921 as well as the Appendix 'A'. 13. In view of the aforesaid discussions it cannot be said that petitioner Khajan Singh lacks qualification for appointment to the post of Principal. In view of the fact that right to appoint a teacher of its own choice is constitutionally protected for a minority institution, as has been held by the Apex Court, the appointment of petitioner Khajan Singh otherwise is found to be valid, and therefore, the authorities would not be justified in refusing to accord approval to the resolution of the Managing Committee in his favour or to direct it to appoint somebody else merely because he is the seniormost person. 14. In that view of the matter, Writ Petition No.13023 of 2018 succeeds and is allowed. Orders dated 2.5.2018 and 10.5.2018 stands quashed. The signatures of petitioner Khajan Singh have already been attested, and therefore, no further directions are required to be issued. Writ Petition No.4081 of 2019 accordingly fails and is dismissed.