Allahabad High Court
Ajay Pratap Rai S/O Raj Narayan Rai vs District Basic Education Officer, C/M ... on 15 March, 2007
Author: B.S. Chauhan
Bench: B.S. Chauhan
JUDGMENT B.S. Chauhan, J.
1. The dispute in this Special Appeal is about the post of the Head of the Institution, namely, Kisan Purva Madhyamik Vidyalaya, Itaili, Gazna Kudda, District Jaunpur which post is being claimed by the appellant Ajai Pratap Rai and respondent No. 3 Shri Krishna Dixit respectively. The judgment under appeal rejects the claim of the appellant as well as the respondent No. 3 and directs that the teacher next to the respondent No. 3 In seniority shall be handed over charge as the Head of the Institution till the respondent No. 3 is not cleared of the charges against him or till a permanent regular selection is made in accordance with law. The learned Single Judge has also recorded a finding that the appellant and respondent No. 3 as well as the then District Basic Education Officer have Indulged in certain malpractices for which a direction has been issued to launch ciminal prosecution against them and other directions have been issued in respect of the connected writ petition pertaining to the management of the institution with which the present appellant is not concerned.
2. The facts of the case have already been set out in detail in the judgment of the learned Single Judge and, therefore, are not being exhaustively reproduced. However, bare minimum facts which are necessary for adjudication of the controversy are that the institution was initially a Junior High School recognized and governed by the U.P. Basic Education Act, 1972 (hereinafter called the 'Act 1972'). The said institution applied for recognition as a High School and was awarded the said status with effect from 25.01.1993. Further the Institution succeeded in promoting itself into an Intermediate College with effect from 16.01.1999 for which a recognition was granted under the provisions of the U.P. Intermediate Education Act, 1921 (hereinafter called the 'Act 1921'). On 30th June, 1999, the Head Master of the institution Shri H.P. Maurya attained the age of superannuation as a result whereof a vacancy occurred on the said post. The respondent No. 3 Shri Krishna Dixit is stated to have been handed over the charge as he was the next senior most teacher of the institution to function on the said post. The handing over charge was preceded by an alleged advertisement doted 06.06.1999 stated to have been issued by the then manager and it is alleged that the signatures of the respondent No. 3 were attested by the educational authorities on 13.07.1999. It appears that the respondent No. 3 was seeking a declaration of his status as Head Master of the institution for which he had approached the District Basic Education Officer. Having failed to receive any response from him, the respondent No. 3 filed Writ Petition No. 893 of 2000, which was disposed of on 11.01.2000 with a direction to the District Basic Education Officer to decide the representation of the respondent No. 3 in respect of his claim to the post of Head Master. From the records, it appears that in December 2002/January 2003, the Basic Education officer attested the signatures of respondent No. 3.
3. In between, there appears to have been a dispute with regard to the 'management of the institution and one Raja Ram Vishwakarma claimed himself to be the Manager of the institution and a rival claim was set up by Subhash Chandra Yadav. Both these persons staked their claims and the dispute came to this Court in several writ petitions which have been referred to in the judgment of the learned Single Judge. For the purposes of this controversy, suffice would be to say that Shri Raja Ram Vishwakarma as a Manager claimed that he appointed the appellant Ajai Pratap Rai. The said alleged appointment of the appellant is stated to have been approved on 07.03.2003 by the District Basic Education Officer, which was challenged by the respondent No. 3 in Writ Petition No. 14612 of 2003, which has given rise to the present Special Appeal. An order Of status quo was passed on 21st May, 2003, yet the salary has been disbursed by the District Basic Education Officer to the appellant. The District Inspector of Schools intervened and issued directions in favour of respondent No. 3 which was reviewed by him on 03.03.2006. The order dated 7th March, 2003 had been assailed by the respondent No. 3 and the order dated 03.03.2006 was again challenged by the respondent No. 3 in Writ Petition No. 16925 of 2006, which has also been disposed by the same judgment of the learned Single Judge.
4. The relief claimed in this Special Appeal is confined only to the judgment insofar as it rejects the claim of the appellant in Writ Petition No. 14612 of 2003 and a prayer has been made to dismiss the said writ petition filed by respondent No. 3. In essence, the relief claimed is that the judgment of the learned Single Judge be set aside and the appellant be permitted to continue as Head of the Institution.
5. We have heard Shri P.N. Saxena, learned Senior Counsel assisted by Shri R.M. Vishwakarma for the appellant; Shri Ashok Khare, learned Senior Counsel assisted by Shri P.N. Tripathi for respondent No. 3 and the learned Standing Counsel for the other respondents.
6. On behalf of the appellant, it has been urged that the identity of the Junior High School is intact and, therefore, the appellant's appointment as Head Master of the Junior High School was in accordance with the provisions of U.P. recognized Basic (Junior High School) (Recruitment and Condition of the Service of Teachers) Rules, 1978 (herein after referred to as the V Rules 1978'). It has futher been contended that the appointment of respondent No. 3 was never made in accordance with the said Rules 1978 and there is no valid approval and as such the claim of the respondent No. 3 deserves to be rejected. Shri Saxena has further stated that the appellant is fully qualified and possesses the requisite qualification for the post of the Head Master of the Junior High School. He has further contended that the learned Single Judge has erred by ordering prosecution without there being any enquiry with regard to the genuineness or otherwise of the newspapers from the Information Bureau and further the direction for refund of salary from the appellant is unsupported in law.
7. Replying to the aforesaid submissions, Shri Khare has taken us to the findings recorded by the learned Single Judge with the aid of the Full Bench decision in the case of State of U.P. and Ors. v. District Judge, Varanasi and Ors. 1981 UPLBEC 336 and the decision of the learned Single Judge in the case of Dr.Smt. Sushila Gupta v. Regional Joint Director of Education (2006) 1 AD 523 and has urged that the entire claim of the appellant has to be rejected in view of the findings recorded by the learned Single Judge and, therefore, the appeal deserves to be dismissed.
8. The learned Standing Counsel has also made his submissions and has Invited the attention of the Court to the various definitions as contained in Act, 1972, the Rules, 1978, the U.P. Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978, the provisions of the Act, 1921 and the U.P. Secondary Education Services Selection Boards Act, 1982 (hereinafter called the 'Act 1982') and has urged that the directions given by the learned Single Judge in respect of the claim on the post of the Head of the Institution do not deserve any interference as no ground has been made out either in law or in fact for any further judicial intervention.
9. Having considered the rival submissions, we find that the learned Single Judge after having noticed the Full Bench decision in the case of State of U.P. and Ors. (supra) and the judgment of the learned Single Judge in Sushila Gupta (supra) has held that once a Junior High School stands upgraded as a High School or an Intermediate College, then in that event the post of the Head of the Institution has to be filled up in accordance with the procedure prescribed under the Act, 1921 read with Act, 1982. It has been held that in such eventuality the Junior High School looses its identity as such and upon upgradation of the Institution, there cannot be any appointment of a Head Master in a Junior High school under Rules 1978. For this, the learned Single Judge has placed reliance upon the decisions referred to therein and has also indicated the ratio of the decision in Sushila Gupta's case to be fully applicable to the facts of the present controversy.
10. The issue raised by the appellant, therefore, in respect of the status of the institution as still to be that of a Junior High School for the purposes of appointment on the post of Head of the Institution, has to be rejected for the reasons given by the learned Single Judge with which we find ourselves to be in full agreement with, The word "upgradation" in its normal connotation means improvement; enhancement of status; more efficient. The word "grade" is derived from the latin word 'gradus' which means degree, step. In Hari Nandan Sharan Bhatnagar v. S.N. Dixit and Anr. ; and A.K. Subraman v. Union of India and Ors. , the Apex Court held 'grade' means rank, position in a scale, a class or position in a class according to the value. It means a degree in the scale of rank, dignity, proficiency etc. (Section 15 of Code of Civil Procedure, 1908). The word 'upgradation' therefore means improvement in degree, raising of status, rank, quality or in value. It is an improvement in proficiency and reflects a rising gradient. The institution was admittedly a Junior High School and was raised to the status of a High School in 1993 and to that of Intermediate College in the year 1999. It is undisputed that upon being upgraded as a High School, the institution has been recognized as such under the provisions of Act, 1921. This undisputed position, therefore, clearly establishes that the institution ceases to be a Junior High School and for the purposes of appointment of Head of the Institution, the appointment can only be made by resorting to the provisions as indicated in the judgment rendered in Sushila Gupta's case (supra). The observations made by the Full Bench in the case of State of U.P. v. District Judge Varanasi (supra), which have been quoted in detail by the learned Single Judge are worth reiterating to the effect that Basic School or a Junior High School is different from a High School or an Intermediate College as the same institution cannot be called Basic School or a Junior High School as well as a High School or an Intermediate College. The Full Bench above referred to held as under:
On a Basic School or a Junior High School being upgraded as a High School or Intermediate College, the identity of the institution known as Basic School or a Junior High School is lost and it ceases to exist as a legal entity and in its place another institution with a legal entity comes into being. One cannot be equated with the other.
11 The aforesaid observations of the Full Bench as explained in the judgment Sushila Gupta's case, therefore, leave no room for doubt that the selection and appointment on the post of Head of the Institution which has been cognized as a High School and Intermediate College cannot be made under the provisions which are applicable to a Junior High School. In Sushila Gupta (supra), the learned Single Judge considered all the Amendment made in the Statute and held that in spite of so many amendments to the statutory provisions, the proposition of law laid down by the above referred to Full Bench remained the same. Mr. Saxena has not brought to our notice any provision which have altered the legal position.
12. From the aforesaid discussions, it is evident that status of an institution after being upgraded looses its significance and the lower section of the school after upgradation completely merges into the upgraded institution. Interpreting the provisions otherwise would lead to complete absurdity and create a chaotic situation even for governance of the different parts of the same institution. An institution cannot have a multiple Code for its governance. There is no provision permitting continued applicability of the laws in relation to a Junior High School even after its upgradation.
13. The contention of Shri Saxena, therefore, to the effect that institution did not loose its identity as a Junior High School has to be necessarily rejected. Accordingly, we are of the considered opinion that neither the selection norappointment of the appellant nor the appointment of the respondent No. 3 was inorder and, therefore, the learned Single Judge was perfectly justified in holding that no selection or appointment has been held in accordance with law to thepost of Head of the Institution.
14. The second submission made by Shri Saxena that the finding has been recorded by the learned Single Judge that the appellant did not possess the eligibility as he did not have experience of three years as required under the law for being appointed as a Head Master in the Junior High School is liable to be set aside only on the ground that such an issue had been raised by the petitioner-respondent while filing the rejoinder affidavit. Had it been the ground in the writ petition, the appellant could have taken the pleadings to rebut the same. The learned Single Judge has dealt with the issue as under:
There is requirement of three years experience as teacher for being appointed as Headmaster of Junior High School under Rule 4(2)(c) of 1978 Rules. Large Scale manipulation appears to have been made. Ajai Pratap Rai in his affidavit dated 30.12.2003, has mentioned that he has worked as Assistant Teacher at Mahantha Ram Asrey Das Madhyamik Vidyalaya Madhuban Nagar, Laparey, Jaunpur since 01.07.1999 to June 2002 and said fact finds support from the certificate issued by the Principal of the college on 18.01.2003 and also from the attendance register of July 1999 to June 2002. Certificate dated 18.01.2003, certifying functioning of Sri Ajai Kumar Rai has been given by Manager Ram Daur Yadav. Sri Ram Daur Yadav, pursuant to letter written by petitioner has categorically informed that Sri Ajai Pratap Rai has never functioned in the institution and has never been appointed in the institution. Notarial Affidavit has also been given, by Sri Ram Daur Yadav, reiterating same statement of fact and further documents submitted in this regard be treated as forged. These documents have been filed as Annexure RA-2 and 3 to rejoinder affidavit filed in Civil Misc. Writ Petition No. 16925 of 2006,copy of which has been served on Sri R.M. Vishwakarma, Advocate on 04.05.2006 and qua which no dispute has been raised. In attendance register which has been appended at various places, Sri Ajai Pratap Rai who claims himself to be Assistant Teacher has appended his signature below Class IV employee. In the data list (Annexure RA-I and RA-II of rejoinder affidavit dated 11.01.2004) maintained at Madhyamik Shiksha Parishad, Regional Office Varanasi, qua teachers of institution name of Sri Ajai Pratap Rai is conspicuously missing. All these circumstances mentioned above, prima facie speaks for itself, and until and unless there is nexus in between Manager, candidate and the District Basic Education Officer,such appointment is not at all feasible.
15. Admittedly, in this case such a plea had been taken by filing a rejoinder affidavit and annexing the affidavit of the Manager of the institution where the appellant alleged to have served from 01.07.1999 to June 2002. The copy of the rejoinder affidavit had been served upon the learned Counsel for the appellant on 4th May, 2006 though the matter was decided on 09.01.2007. Thus, there was a sufficient time of eight months for the appellant to file reply to the rejoinder affidavit rebutting the averments made in the rejoinder affidavit. The plea taken by Shri Saxena is preposterous as there was a notice of new facts to the appellant and sufficient time for rebuttal of the same but he, for the reasons best known to him, did not avail the opportunity to controvert the same. In Sri-La Sri Subramania Desika Gnanasambanda Pandarasannidi v. State of Madras and Anr. , the Hon'ble Supreme Court considered the similar issue and held that such a plea is permissible provided the defendant does not have a notice of new facts taken in the replication or did not have sufficient time to rebut the same. In the instant case, no attempt had ever been made by the appellant to rebut the said factual averments taken in the rejoinder affidavit nor any attempt has been made in appeal to show that the factual averments made in the rejoinder affidavit could not be factually correct. In view of the above, the learned Single Judge was justified in drawing adverse inference against the appellant. Thus, the aforesaid finding does not warrant any interference in appeal.
16. The contention with regard to the direction of the learned Single Judge in respect of lodging a First Information Report also does not deserve to be interfered with as the learned Single Judge having recorded his finding in respect of the manipulations in the publication in the newspaper, has concluded that the same requires to be investigated by an investigating agency. We do not find any error in the same as, prima facie, there was ample material before the learned Single Judge to have arrived at the aforesaid conclusion. We have ourselves also perused the two copies of the Hindi Daily "Dainik Manyavar" alleged to have been published on Monday, the sixth of January, 2003. On page two of the said newspaper there is a clear difference as the same space in one copy carries a news item of arrest of two persons whereas the other copy contains the advertisement under scrutiny. The same therefore leaves no room for a genuine doubt that fraud has been apparently practiced. Both copies at page four disclose the name of the Editor Sri Om Prakash Jaiswal and recite the name and address of Mamta Printers, Khwajgi Tola, Jaunpur as Publishers. The same further discloses the name of the printing press as Bharatdoot Press, 6 Rampuri, Varanasi. The telephonic and E-mail address are also indicated therein. The Investigating agency shall also take notice of the above while initiating proceedings and copies of the newspapers shall be made available and obtained for the said purpose as the involvement of the publishing and printing agency in this matter cannot be ruled out. The investigation shall forthwith be set into motion as per the directions of the learned Single Judge.
17. So far as the issue of refund of the salary received by the appellant is concerned, Mr. Saxena, learned Senior Counsel has vehemently submitted that the appellant had been working on the post of Head Master and, therefore, the order of refund of the salary received by the appellant could not have been passed. The learned Single Judge has dealt with the issue in detail observing as under:
The fact of the matter is that appointment letter had been issued in his favour, signature had also been attested, but he never functioned in the institution, and this is fortified from the circumstance that Sri Raja Ram Vishwakarma on 26.05.2005 asked Sri Krishna Dixit to hand over the charge to Sri Ajai Pratap Rai and Sri Krishna Dixit then apprised the Manager of interim order of this Court. There is voluminous documents on record to suggest that it was Sri Dixit who had functioned as Principal, at all point of time and not Sri Ajai Pratap Rai, filed along with rejoinder affidavit, copy of which has been served on Sri R.M. Vishwakarma, Advocate on 04.09.2003. On 20.06.2003, Additional Director of Education, Basic gave categorical direction for not ensuring salary to Sri Ajai Pratap Rai, but ignoring the same it appears salary has been ensured to Sri Ajai Pratap Rai.
18. In the aforesaid factual matrix, as the finding of fact has been recorded by the learned Single Judge that the appellant had not worked and the said finding seems to be correct otherwise there was no occasion for the Manager of the Institution to ask Mr. Sri Krishna Dixit on 26.05.2005 to hand over the charge to the appellant and there was no need to pass an order by the Additional Director of Education on 20.06.2003 for ensuring that the appellant does not get the salary. The salary has been paid to him definitely in violation thereof.
19. Recovery of the salary received by the appellant at such a belated stage is admittedly very harsh and the Court must be alive of the existing circumstances that such a refund may cause great hardship to him but in view of the fact that we have already reached the conclusion that he was not even eligible to make an application for want of experience and there was no occasion for making the appointment of Head Master after upgradatlon of the Junior High School to High school and subsequently Intermediate, the entire proceedings had been nothing but fraud upon the Statute. In such circumstances, recovery of the salary paid to him cannot be held to be unjustified.
20. In sum and substance, we are of the view that after upgradation of an Institution from Junior High School to High School and then to Intermediate, the lower section of the institution, i.e. Junior High School looses its existence and merges into the higher section and in that eventuality, the question of making the appointment of Head Master for the Junior High School, a Principal for the High School and another Principal to run the Intermediate classes would lead to complete chaotic situation and absurdity. Thus, the appointment on the post of Head Master could not be made. The appellant did not possess the eligibility, i.e. experience as required under the law in making an application to the said post and had illegally been appointed. Further, the serious illegality/irregularity in advertising the vacancy existed and the possibility of committing fraud cannot be ruled out. As the appointment of the appellant had been made in total violation of law and without possessing the eligibility, the recovery of salary received by him in contravention of the order passed by the Statutory Authority does not warrant any interference.
21. In view of the above, the appeal is misconceived and accordingly dismissed.