Allahabad High Court
Brijesh Tripathi vs State Of U.P.Through The Secy. Basic ... on 29 November, 2013
Author: Saeed-Uz-Zaman Siddiqi
Bench: Saeed-Uz-Zaman Siddiqi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH RESERVED/A.F.R. Case :- SERVICE SINGLE No. - 2060 of 2010 Petitioner :- Brijesh Tripathi Respondent :- State Of U.P.Through The Secy. Basic Education Lko.And Ors. Counsel for Petitioner :- Dr. L.P.Misra Counsel for Respondent :- C.S.C., A.M.Tripathi,Avdhesh Shukla,Majeev Shukla,P.K.Singh Bishen Hon'ble Saeed-Uz-Zaman Siddiqi,J.
1. By means of the present writ petition under Article 226 of the Constitution of India, the petitioner has prayed for quashing order dated 2.2.2010, passed by opposite party no.3, Government Order dated 15.10.2205 and consequential circular letter dated 9.11.2009, issued by Assistant Director of Education (Basic) Faizabad region, Faizabad, as contained in Annexure No.1 2 and 3 respectively. Moreover, a writ in the nature of mandamus, commanding the opposite parties to pay salaries to the petitioner as Headmaster of Sarinath Laghu Madhyamik Vidyalaya (Junior High School), Redigarapur, Patti, District Pratapgarh along with the arrears of the same with effect from 25.01.2010 and further commanding opposite parties to adhere to the prescriptions made in the government order no.3143 (1)/5.6.2001 dated 24.11.2001, as contained in Annexure No.13.
2. Brief facts of the case are that, admittedly, the Institution was recognized as Junior High School, which is opposite party no.4 and the petitioner was posted as Headmaster which fell vacant due to retirement on 30.06.2009. Consequently, the Management of the Institution sent a letter dated 14.04.2009 to opposite party no.3 for according permission for advertising the said post through direct recruitment which is contained as Annexure No.4; on 24.10.2009 the opposite party no.3 accepted the said request and consequently advertisement was published to which eight candidates applied including the petitioner. The opposite party no.3 vide order dated 10.12.2009 appointed Assistant Basic Education Officer as member of selection committee so constituted upon selection the petitioner was selected on the basis of interview dated 13.12.2009. The opposite party no.4 wrote to opposite party no.3 for according permission to the selection vide letter dated 15.12.2009 but the opposite party no.3 did not intimate his decision of approval. The opposite party no.4 decided in its meeting dated 20.01.2010 that in the interest of the Institution the approval is deemed to have been accorded by the Basic Education Officer and accordingly the petitioner was issued an appointment letter. The petitioner joined as Headmaster on 25.01.2010. Thereupon the opposite party no.3 passed the impugned order dated 2.2.2010 canceling his earlier order dated 24.10.2009 in an arbitrary manner.
3. Among the disputed facts, the petitioner claimed that Government order dated 24.10.2009 is not applicable as Institution is not receiving grant-in-aid for High School and Intermediate Sections. The petitioner had challenged this order on the ground that his appointment was made after following due procedure of selection, alleging therein that opposite party no.4 was recognized as Junior High School vide order dated 26.03.1970. The factum of recognition as Junior High School is not disputed between the parties.
4. The opposite party no.1 to 3 filed counter affidavit of Basic Education Officer and admitted that opposite party no.4 was initially recognized and aided up to Junior High School which was upgraded to High School and, as such the Junior High School lost its legal entitlement and in its place new Institution took birth under Intermediate Education Act, 1921 and U.P. Secondary Education Service Selection Boards Act, 1982 as well as the Payment of Salaries Act, 1971; after the retirement of the Headmaster the post of Headmaster fell vacant in the Institution and the Manager of opposite party no.4 sought permission for filling up of the posts vide letter dated 14.04.2009 which was granted with direction that the said post shall be filled in by issuing advertisement as per the provisions of U.P. Recognized Basic Schools Junior High Schools (Recruitment of Teachers and Condition of Service) Rule, 1978. The said permission was obviously illegal and against the provisions of U.P. Intermediate Education Act, 1921 as well as U.P. Secondary Education Services Selection Boards' Act, 1982. It was further deposed in the counter affidavit that three other Institutions also proceeded with the selection in pursuance of the illegal permission. Three writ petitions bearing writ petition no.40581 (SS) of 2008, 44350 (SS) of 2008 and 30677 (SS) of 2008 were instituted on identical issues. All the writ petitions were clubbed and decided the case upon earlier judgment of Full Bench of this Court in the case of State of U.P. and others v. District Judge, Varanasi and others, 1981 UPLBEC 336. The selection made by the Basic Education Officer was quashed in the writ petition. The relevant provision as mentioned in Section 7 (A) of the Act have also been relied upon.
5. In para 4 of the counter affidavit the opposite party no.1 and 3 have specifically deposed that the Institution, being a Junior High School was upgraded to secondary level and after upgradation the provisions of Intermediate Education Act, 1921 and U.P. Secondary Education Service Selection Boards Act, 1982 as well as the Payment of Salaries Act, 1971 became applicable and, as such, no appointment of any teacher or Headmaster could have been made under these rules. The Manager of the opposite party no.4 sought permission through letter dated 14.04.2009 for filling up the post of Headmaster. In pursuance of the permission the opposite party no.4 proceeded with the selection for appointment on the post of Headmaster. The counter affidavit also recites authorities under which no appointment of Headmaster in Junior High School shall remain as the post of Headmaster of Junior High School became inoperative after upgradation. Due to this reason the Basic Education Officer, Pratapgarh vide letter dated 2.2.2010 directed the opposite party no.4 that the post of Principal shall be filled only under the provisions of U.P. Intermediate Education Act, 1921 and U.P. Secondary Education Service Selection Boards Act, 1982 and rejected his earlier order dated 24.10.2009 and the permission was granted to opposite party no.4 to proceed with selection on the post of Headmaster. Thus, the order dated 2.2.2010 was issued in pursuance of the government order dated 15.10.2009 which was issued in compliance of the directions of this Court dated 21.05.2009.
6. Pleadings have been exchanged. I have heard learned counsel for parties and perused the records.
7. Admitted case between the parties is that the Institution/opposite party no.4 has been upgraded as an unaided Institution and any act of any state instrumentality, in contravention of the provisions of law cannot be said to be the law. Like other persons the state instrumentalities are also human beings and can commit wrong. The position has already been settled by this Court in Ravendra Pal Singh v. State of U.P. passed in writ petition No.40581 of 2008, in which it has been observed as under:-
"The Authorized Controller, after his appointment on 28.11.2007, immediately took steps for filling in the post of the Principal of the Junior High School and advertised the vacancy on 23.12.2007 (Annexure-1 to the writ petition) published in Hindi daily newspapers "Aaj" and "Swatratra Bharat". Pursuant to the said advertisement, the respondent no. 4 was selected and appointed by order dated 21.1.2008 after receiving approval from BSA vide his letter dated 19.1.2008. The aforesaid appointment of respondent no. 4 has been challenged on the ground that the College being recognised upto Intermediate classes, the respondent no. 4 could not have been appointed as Principal of the Junior High School since the institution has seized to be a Junior High School after its upgradation upto the level of Intermediate College.
It is however said that the High School and Intermediate section is not aided and no post has been sanctioned by the Government in the High School and Intermediate section of the College. It is said that the Government Order dated 24.11.2001 has clarified the position with respect to the financial and administrative control of an aided recognised non government Junior High School. This Government Order says where the High School and Intermediate College are unaided but recognised, in respect to payment of salary of the aided staff of such College, the provisions of 1978 Act will continue to govern and shall be monitored by the BSA and for administrative purposes, the institution would be treated separately as Junior High School and the High School/Intermediate, as the case may be. It is said that the State Government by letter dated 18.4.2007 granted approval for filling in the post of Principal of the Junior High School pursuant whereto the Advertisement was made by the College and the said appointment was approved by BSA vide his letter dated 19.1.2008 (Annexure CA-6).
The respondent no. 4 in his counter affidavit has said that the College was initially recognised on 7.5.1983 as a Junior High School in the name and style of Sunasir Nath Junior High School, Banda, Shahjahanpur. It was brought in grant-in aid on 9.10.1984. By letter dated 14.1.1988 (Annexure CA-1), the Board of High School and Intermediate recognised the College under Section 7-AA of the of U.P. Intermediate Education Act, 1921 (hereinafter referred to as "1921 Act") upto High School and by letter dated 20.10.1995 (Annexure CA-2) it was recognised upto Intermediate. Since the post of the Principal of Junior High School fell vacant on 30.6.2006 due to retirement of Sri Parmeshwari Deen Verma, the BSA by letter dated 7.6.2007 sought permission from Director of Education (Basic) to fill in the said post of Principal in Junior High School which is said to have been granted by letter dated 18.10.2007 issued by State Government pursuant whereto the respondent no. 4 was selected and her selection was approved by BSA by letter dated 19.1.2008 and consequently she has been appointed by letter dated 21.1.2008.
The first question up for consideration in both these matters is whether it is permissible to make any appointment as Principal/Head Master of the Junior High School by invoking powers under "Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978" (hereinafter referred to as "1978 Rules") though the Institution has been recognised and upgraded upto High School and/or Intermediate.
This issue is no more res intetra having been decided by two single-Judge judgments of this Court and one Division Bench judgment following an earlier full Bench decision of this Court. Accepting the contention of the persons, who have been appointed as Principal of the Junior High School would amount to assuming a situation where the same Institution will have two Principals one for the High School or Intermediate, as the case may be, and another for the Junior High School, though it is one and the same entity. A Full Bench of this Court in State of U.P. &others Vs. District Jduge, Varanasi & others 1981 UPLBEC 336 in para 17 observed as under :
"17. A basic school or a Junior High School is thus different from a High School or an Intermediate College. On the plaint language of these definitions the same institution cannot be called a basic school or a Junior High School as well as a High School or an Intermediate College. Each one has a distinct legal entity. On a basic school or a Junior High School being upgraded as a High School or an Intermediate College the identity of the institution known as basic school or Junior High School is lost. It ceases to exist as a legal entity and in its place another institution with a new legal entity comes into being. One cannot be equated with the other."
A Division Bench of this Court in Ajay Pratap Rai Vs. District Basic Education Officer, Jaunpur & others 2007 (4) ADJ 357 (DB) considered a similar case, as the cases are in hand, and in para 9 and 10 of the judgment held as under :
"9. The aforesaid observations of the Full Bench as explained in the judgment of 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 recognized 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.
10.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 previsions 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."
This Division Bench decision has been followed by this Court also in Smt. Shail Kumari Singh Vs. State of U.P. & others 2008 (1) ESC 365 (All). There also this Court has observed that while granting recognition as High School and Intermediate, the Board of High School imposes a condition upon the Institution that they shall make an appointment of a Principal of the Intermediate College and such appointment shall not be made as an interim measure or on a part time basis, but has to be made as per procedure prescribed in U.P. Secondary Education Services Selection Board Act, 1982. There can be only one Principal of the Institution. Para 16 of the jdugment is reproduced as under :
"16. In the case in hand, while granting recognition as High School, the Board clearly imposed a condition that the management has to make appointment of Principal of High School. Obviously, such appointment was not to be made as an interim measure or on part-time basis and, therefore, the appointment of Principal has to be in respect of upgraded institution as per the procedure prescribed in 1982 Act and the management could not have made appointment by resorting to the provisions applicable to Junior High School, since after upgradation as High School, no appointment of Headmaster/Headmaster of Junior High School could have been made in law as the post of Headmaster/Headmistress of Junior High School becomes inoperative after upgradation since only one head of the institution could have continued at a time. Therefore, there could be only one Principal and that too of High School. This is what has been held by Division Bench in Ajay Pratap Rai (supra) also and in my view, that is the only cogent and practical solution in such cases otherwise it would create a chaotic situation. Issue No. 2 is decided accordingly."
8. In another case namely Raj Karan Nishad v. The State of U.P. through the Principal Secretary of Education, State Govt. of U.P. and others, in writ petition no.8781 (SS) of 2009, in which it has been observed as under:-
"Submission of the learned counsel for the petitioner is that the petitioner is senior most Assistant Teacher having been appointed on 1.7.1973, he is entitled to continue as Principal of the College in question. It is also submitted that once the institution has been upgraded, the provisions of U.P. Intermediate Education Act would be applicable in accordance with the law propounded by this Court in the case of Dr.(Smt.) Sushila Gupta Vs. The Joint Director of Education, Kanpur and others, 2006 (1) ALJ 523 which has been rendered relying upon the judgment of Full Bench wherein Clause 5 of the Government Order dated 24.11.2001 was found to be ultra vires and against the provisions of U.P. Intermediate Education Act and as such no selection could be made on the post of Principal in the College in question as the identity of the Junior High School has come to an end and at the moment the School is an upgraded unaided Intermediate College whereas the opposite party no.8 is being selected for the post of Principal of the Junior High School. The Junior High School has lost its identity and, therefore, no selection can be made on the said post. As a consequence the selection of Principal at this juncture would defeat the rightful claim of the petitioner who happens to be the senior most teacher by virtue of the fact that the Principal of the College would be treated as L.T. Grade teacher after the up-gradation. He has also submitted that the provisions of U.P. Intermediate Education Act would be applicable after upgradation and the provisions of U.P. Basic Education Act and Rules framed there under shall not be applicable in the field as ruled by this Court.
After Full Bench decision by this Court Section 13-A was brought into effect by way of amendment in Junior High School (Payment of Salaries of Teachers and other Employees) Act,1978 (U.P. Act No.6 of 1979) with a view to fill the Vacuum created by the impugned decision of the Full Bench and to allow uninterrupted payment of salary to the teachers of the Junior High School. He also placed reliance upon a judgment reported in AIR 1977 S.C.334, Commissioner Lucknow Division and others Vs. Kumari Prem Lata Misra. It is also submitted by him that the salary can not be paid by the DIOS as the institution is an unaided institution. The provisions of Intermediate Education Act can not be applied so far the payment of salary is concerned. The selection on the post of Principal of Junior High School can be made where the institution is upgraded in view of the provisions contained under Chapter II-Regulation 2(g) and, therefore, the selection made by the opposite parties is well within their competence and the said selection is to be made for limited purposes i.e. for payment of salary to the teachers of the aided Junior High School. He also submits that the payment can only be made under the U.P. Act No.6 of 1979 and the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act 1971 does not authorize the DIOS to exercise any jurisdiction to pass the salary bill or to make payment of salary. The provisions of Intermediate Education Act after up gradation of the Institution would be applicable to the extent of up gradation but there is no provision under the U.P. Intermediate Education Act or Regulations framed thereunder except Chapter II Regulation 2(g) which takes care of the aforesaid contingency where the institution is up graded to High School, the selection for the post of Principal is to be made by the committee of management in accordance with the procedure provided in Regulation 2 sub regulation (1) and (2)(a) to (2)(f)."
9. Lately, a Division Bench of this Court in Manju Awasthi and others v. State of U.P., (2013) 3 ADJ 64, has also confirmed the view taken by the authorities mentioned above by the Single Judges of this Court, and following observations have been made:-
"Brief facts giving rise to the writ petitions and thereafter special appeal No. 25 of 2006 now need to be noted. The institution Dosar Vaish Balika Junior High School was recognised as Junior High School within the meaning of U.P. Basic Education Act, 1972 and was also receiving grant-in-aid at Junior High School level. The institution was granted recognition as high school without finance (Vitta Vihin) under section 7A (a) of U.P. Intermediate Education Act, 1921 (hereinafter referred to as '1921 Act') on 1.8.1992. The High School was further recognised as Intermediate college in the year 1995 under section 7A(a) of the Act. No posts were created either at a High School level or Intermediate level after the recognition under the 1921 Act. The permanent Head Mistress as well as other teachers of the Junior High School level continued to receive their salary under the grant-in-aid granted to the institution at Junior High School level. Permanent Head Mistress retired on 30.6.1999 thereafter senior most Assistant Teacher functioned as officiating head Mistress. Smt. Sushila Gupta, the respondent no. 5 to the appeal was next senior most teacher who was not given charge of the officiating head mistress by the management and management passed resolution dated 1.7.1992 giving charge to Smt. Shashi Prabha Misra as officiating Head Mistress whose signature was attested by the District Inspector of Schools on 10.7.2001. District Inspector of Schools passed an order on 16.7.2001 that Smt. Sushila Gupta would function as an officiating Head Mistress against which order, Smt. Shashi Prabha Misra filed writ petition being writ petition No. 30736 of 2001 in which an interim order was passed on 29.8.2001. The signature of Smt. Shashi Prabha Misra was attested on 6.9.2004 by the District Basic Education Officer and an advertisement was also issued by the management on 12.6.2004 inviting applications for appointment on the post of Head Mistress of Dosar Vaish Balika Junior High School. Smt. Sushila Gupta filed writ petition No. 41420 of 2004 in which an interim order was passed on 5.10.2004 restraining the respondents from proceeding with the advertisement. However, in special appeal No. 1393 of 2004 the interim order granted by Single Judge was modified to the extent that selection pursuant to the interim order shall go on and any appointment made shall be subject to the decision of the writ petition. Selection was thereafter held for the post of Head Mistress and Selection Committee recommended Smt. Manju Awasthi, which was also approved by the District Basic Education Officer on 25.2.2005. Smt. Sushila Gupta filed writ petition being writ petition No. 33360 of 2005 challenging the order of District Basic Education Officer approving the appointment of Smt. Manju Awasthi. Approval of the appointment order was given by the District Basic Education Officer under the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978. Both the writ petitions were allowed by Single Judge by judgment and order dated 22.11.2005. Hon'ble Single Judge held that the institution having been upgraded as High School and Intermediate, appointment on the post of head of the institution has to be made in accordance with the U.P. Intermediate Education Act, 1921 and the regulations framed thereunder as well as under U. P. Secondary Education Service Selection Boards Act, 1982. Advertisement and consequent selection of the appellant as Head Mistress of the Junior High School was set aside. Smt. Manju Awasthi as well as committee of management aggrieved by the aforesaid judgment of Hon'ble Single Judge have filed the appeal.
Special Appeal No. 170 of 2005 District Basic Education Officer and another Vs. Shree Krishna Tripathi has been filed challenging the judgment and order of Hon'ble Single Judge dated 13.1.2005, passed in writ petition No. 29697 of 2004, Shree Krishna Tripathi Vs. State of U.P. Writ petition No. 29697 of 2004 was filed by Shree Krishna Tripathi, who was working as a Clerk in the institution, challenging the order dated 1.7.2004 by which he was superannuated at the age of 58 years. Shree Krishna Tripathi was appointed as clerk in the Junior High School, which Junior High School was upgraded from Junior High School to High School by order dated 19.2.1997. The upgraded institution was not receiving any grant-in-aid. The writ petitioner after having completed 58 years was directed to be superannuated in accordance with the provisions of the U.P. Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Ministerial Staff and Group 'D' Employees) Rules, 1984. The said order was challenged by the writ petitioner contending that institution having been upgraded, his service conditions shall be governed by U.P. Intermediate Education Act, 1921 and the Rules framed thereunder and the date of retirement under the Regulations being 60 years, he cannot be asked to be retired at the age of 58 years. Hon'ble Single Judge allowed the writ petition and quashed the order of retirement at the age of 58 years and directed that writ petitioner should be allowed to continue till 60 years. Hon'ble Single Judge held that after up gradation of institution, the service conditions of the employees shall be governed by U.P. Intermediate Education Act,1921 and Regulations framed thereunder. The District Basic Education Officer as well as the Assistant Director of Education Basic have filed the Special Appeal challenging the said judgment.
Special Appeal No. 1468 of 2005 Surendra Datt Kaushik Vs. State of U.P. has been filed against the judgment and order dated 24.11.2005, passed by Hon'ble Single Judge in writ petition No. 63578 of 2005, Naresh Pal Singh Vs. State of U.P. and others. Sarvaodaya Mandir Junior High School was a recognised Junior High School receiving grant-in-aid. The institution was upgraded as High School in the year 1993 and Intermediate in the year 1997. However, recognition was without any finance (Vitta Vihin) and the salary was being disbursed at Junior High School level. An advertisement was issued by the management on 24.11.2004 inviting applications for appointment on the post of Head Master, in pursuance of which selection was undertaken which was approved by letter dated 16.9.2005 of District Basic Education Officer approving Surendra Datt Kaushik as Head Master of Junior High School. Naresh Pal Singh filed writ petition No. 63578 of 2006, challenging the order of District Basic Education Officer approving the appointment. The writ petition has been allowed by Hon'ble Single Judge by the impugned judgment dated 24.11.2005 quashing the order of District Basic Education Officer. Hon'ble Single Judge following his earlier judgment in the case of Dr. Sushila Gupta Vs. Joint Director of Education and others (supra) held that after up gradation of the institution, the appointments has to be made in accordance with the provisions of the U.P. Intermediate Education Act, 1921 and U.P. Act No. 5 of 1982. District Basic Education Officer has no jurisdiction to make any selection. "
10. Learned Senior Counsel Dr. L.P. Mishra argued the chronological events and submitted that it shall be deemed that the opposite party no.1 and 3 have affirmed the selection of the petitioner. I am helpless, there cannot be any deeming fiction as against expressed provisions of various statutes which have been interpreted in a catena of decisions even by this Court. He also argued relating to Section 7 (4) of U.P. Intermediate Education Act, 1921 but there is a difference between mere grant of sanction to a Junior High School or Intermediate with or without financial aid of the State. Since admittedly the petitioner was selected in an unaided Institution, he cannot derive any benefit at par with a Headmaster/Principal of an aided High School or Intermediate College. Learned counsel for the petitioner also attracted the attention of this Court regarding legal fiction due provision and relied upon the law laid down by the Hon'ble Apex Court in G. Viswanathan v. Hon'ble Speaker Tamil Nadu Legislative Assembly, Madras and another, (1996) 2 SCC 353, wherein following observations have been made:-
"The deeming fiction enacted in the Explanation (a) to para 2(1) of the Tenth Schedule must be given full effect for otherwise the expelled member would escape the rigour of the law which was intended to curb the evil of defections which has polluted our democratic polity.
The legislature is competent to enact a deeming provision for the purpose of assuming the existence of a fact which does not even exist. It means that the courts must assume that such a state of affairs exists as real, and should imagine as real the consequences and incidents which inevitably flow therefrom, and give effect to the same. The deeming provision may be intended to enlarge the meaning of a particular word or to include matters which otherwise may or may not fall within the main provision."
11. In this case the Hon'ble Apex Court has also relied upon its earlier decision of a larger Bench in M. Venugopal v. Divisional Manager,LIC, (1994) 2 SCC 323, wherein following observations have been made:-
"The effect of a deeming clause is well-known. Legislature can introduce a statutory fiction and courts have to proceed on the assumption that such state of affairs exists on the relevant date. In this connection, one is often reminded of what was said by Lord Asquith in the case of East End Dwellings Co. Ltd. v. Finsbury Borough Council3 that when one is bidden to treat an imaginary state of affairs as real, he must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which inevitably have flowed from it one must not permit his "imagination to boggle" when it comes to the inevitable corollaries of that state of affairs."
This argument was rightly refuted by the learned Chief Standing Counsel Sri M. Mansoor, that these authorities are not at all applicable to the facts and circumstances of the present case. As mentioned earlier there cannot be any deeming fiction against a statute when any state instrumentality has acted illegally. The State cannot be vicariously liable for any illegal act or omission of any of its instrumentality. In this case, it was also held that it is the exclusive prerogative of the legislature to create a legal fiction to enact a deeming provision for the purpose of assuming the existence of a fact which does not really exist.
12. The same is the position with law laid down in Ali M.K. And others v. State of Karala and others, (2003) 11 SCC 632 which does not help the petitioner.
13. Another leg of argument on behalf of the petitioner was that the petition deserves to be allowed by applying doctrin of promissory estoppel. This argument is also not applicable in this case, as the dispute has already been settled by this Court by a full bench, division bench and number of single bench judgments. Learned counsel for the petitioner relied upon the law laid down by a larger Bench of Hon'ble Apex Court in National Building Construction Corporation v. S. Raghunathan and others (1998) 7 SCC 66, wherein following observations have been made:-
"The doctrine of "Legitimate Expectation" has its genesis in the field of administrative law. The Government and its departments, in administering the affairs of the country are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without any iota of abuse of discretion. The policy statements cannot be disregarded unfairly or applied selectively. Unfairness in the form of unreasonableness is making to violation of natural justice. It was in this context that the doctrine of "Legitimate Expectation" was evolved which has today became a source of substantive as well as procedural rights. But claims based on "Legitimate Expectation" have been held to require reliance on representations and resulting detriment to the claimant in the same way as claims based on promissory estoppel. Unfairness in the purported exercise of power can amount to an abuse or excess of power. Thus the doctrine of "Legitimate Expectation" has been developed, both in the context of reasonableness and in the context of natural justice. The State actions have to be in conformity with Article 14 of the Constitution, of which non-arbitrariness is a significant facet. There is no unfettred discretion in public law. A public authority possesses powers only to use them for public good. Though the doctrine of legitimate expectation is essentially procedural in character and assures fair play in administrative action, it may, in a given situation, be enforced as a substantive right.
The doctrine of "legitimate Expectation" can be invoked if the decision which is challenged in the Court has some person aggrieved either (a) by altering rights or obligations of that person which are enforceable by or against him in private law; or (b) by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he had received assurance from the decision-maker that it will not be withdrawn without giving him first an opportunity of advancing reasons for contending that it should not be withdrawn. Indian scenario in the field of legitimate expectation is not different."
This law is fully applicable but does not help the petitioner in this case because the petitioner is claiming a benefit which has not at all been sanctioned by the State of U.P. as the Institution, in itself, is unaided educational institution. Mere approval to function as Junior High School, High School or Intermediate College without any grant-in-aid does not create any obligation against the U.P. State.
14. In U.P. Intermediate Education Act, 1921 the word "recognition" has been defined in Section 2(d) which means recognition for the purpose of preparing candidates for admission to the boards examination. Section 7 (A) of this Act also does not deal with financial aspect of the State Government. On the strength of Section 7 (aa) of this Act, learned counsel for the petitioner submitted that the petitioner has to function as Headmaster in the High School/Intermediate College but on the strength of this provision the petitioner can claim any benefit from opposite party no.4 who are controlling the purse of the Institution. The State Government has nothing to do with the financial management of an unaided educational institution. Under High School and Intermediate Colleges (Payment of Salaries) Act, 1971 the word "institution" has been defined in Section 2 (b) which means a recognized institution......receiving maintenance grant from the State Government. It makes it clear that the liability of opposite party no.1 to 3 regarding payment of salary to the petitioner would not arise unless the Institution has been granted in-aid by the State of U.P.
15. On the totality of circumstances, the petition lacks merit and is accordingly dismissed.
(Hon'ble Saeed-Uz-Zaman Siddiqi,J.) Order Date :- 29th November, 2013.
Nitesh/Ram.