Allahabad High Court
Smt. Vinita Promila Shepherd vs State Of U.P. And Others on 14 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 134
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 12.12.2019 Delivered on 14.01.2020 In Chamber Case :- WRIT - A No. - 39788 of 2012 Petitioner :- Smt. Vinita Promila Shepherd Respondent :- State of U.P. and Others Counsel for Petitioner :- A.D. Saunders,Sandeep Saxena,Vimal Chandra Mishra Counsel for Respondent :- C.S.C.,N.C. Tripathi with Case :- WRIT - A No. - 54996 of 2007 Petitioner :- Smt. Asha Higgens And Others Respondent :- State Of U.P. Thru Principal Secretary And Others Counsel for Petitioner :- N.L. Pandey Counsel for Respondent :- C.S.C.,A.D. Saunders,Naresh Chandra Tripahti Hon'ble Rohit Ranjan Agarwal,J.
1. The dispute in these two writ petitions are interconnected, as such they are heard together and being decided by common order.
2. Heard Sri A.D. Saunders, learned counsel for the petitioner, learned Standing Counsel for respondent nos. 1 to 3 and Sri N.C. Tripathi, learned counsel for respondent no. 4 in Writ-A No. 39788 of 2012 and Sri N.L. Pandey, learned counsel for petitioners, learned Standing Counsel for respondent nos. 1 to 6 and Sri N.C. Tripathi, learned counsel for respondent no. 7 in Writ-A No. 54996 of 2007.
Facts of Writ-A No. 39788 of 2012
3. The dispute relates to the appointment of an Assistant Teacher in an Institution known as Mary Wanamaker Girls' Inter College, Allahabad (for short 'Institution') which is an aided minority institution, governed by provisions of U.P. Intermediate Education Act, 1921 and regulations framed therein.
4. One Smt. Asha Mavis Wonderward, an Assistant Teacher in general category of Institution attained the age of superannuation on 30.06.2007. Manager of Institution on 20.02.2007 had intimated the vacancy in the Institution to be caused due to retirement of Teachers and Assistant Teachers. Pursuant thereof, vacant posts were advertised in two daily newspapers, Amar Ujala (published in Hindi) and Northern India Patrika (published in English) on 22.04.2007.
5. It appears that petitioner Smt. Vinita Promila Shepherd applied, and duly constituted Selection Committee after interview selected her for post of Assistant Teacher, LT Grade in General Category. Recommendation of Selection Committee was approved by Committee of Management of the Institution, and an appointment letter was issued to petitioner on 13.08.2007 directing her to join duty within ten days. As disclosed in petition, petitioner joined the Institution on 16.08.2007. Papers for approval were forwarded by Manager to District Inspector of Schools (DIOS) on 21.08.2007, letter whereof has been brought on record as Annexure-5 to writ petition.
6. It appears that DIOS, respondent no. 2 on 11.09.2007 disapproved appointment of petitioner under Chapter II, Regulation 17(g) of the Act raising four objections.
7. Manager of Institution on 18.10.2007 replied to objections of respondent no. 2, it was stated in reply that qualification as required by respondent no. 2 was for Class IX to X which was not applicable in the case of petitioner, as she was appointed in general category for teaching Class VI, VII and VIII for which prescribed qualification was B.A. It appears that respondent no. 2 on 18.10.2017 further raised three queries.
8. It is stated that Section 16-FF of Act governs the appointment of Teacher/ Assistant Teacher in a minority Institution and under Sub-section (3), Clause (b) and Sub-section (4), DIOS cannot withhold approval of a selected candidate having minimum qualification. It is also stated that petitioner had passed B.Sc examination in 1979 and had done B.Ed in year 1991 from Utkal University, Odisha. Petitioner had challenged the order passed by respondent no. 2 on 11.09.2007 and 12.11.2007 through Writ Petition No. 8837 of 2008. This Court on 12.12.2011 quashed the order dated 12.11.2007 and directed DIOS to decide the issue within three months. It was on 25.07.2012 that respondent no. 2 complying the directions of this Court decided the issue once again and rejected the claim of petitioner.
9. Committee of Management of the Institution contested the petition and filed its counter affidavit, wherein it is stated that in appointment letter it was clearly mentioned that payment of salary would only be on accord of approval by respondent no. 2. Further, appointment letter issued was for the post of Assistant Teacher, LT Grade, thus the fact that post in question was advertised for Assistant Teacher in General Category for Class VI to VIII and minimum qualification required as published in advertisement is also incorrect, and petitioner is not having training of CT, BTC, GTC or JTC. It is also stated that right of promotion is inherent and same cannot be denied by Management of minority institution getting grant in aid from State Government.
Facts of Writ-A No. 54996 of 2007
10. Smt. Asha Higgens, petitioner no. 1 was appointed on 08.01.1990 in the Institution in question, while Smt. Bertela Rodney, petitioner no. 2 was appointed on 25.02.1986 and Smt. Saroj Bishwal, petitioner no. 3 was appointed on 03.10.1979 in primary section of Institution in B.T.C. Grade. Appointment letters issued to them by respondent no. 7 which are part of record as Annexures-1, 2 and 3 to the writ petition. Their appointments were approved by Regional Inspectoress of Girls Schools (RIGS).
11. Petitioners claiming benefit of Regulation 7(2) of Chapter II of U.P. Intermediate Act, 1921 approached this Court through Writ-A No. 5051 of 1998 for granting them LT Grade. On 20.02.1998, this Court directed District Inspector of Schools to decide their claim. On 18.02.1999, DIOS rejected claim of the three petitioners under Regulation 7(2).
12. As there are 16 sanctioned posts of LT Grade in Institution and 25% of such sanctioned posts are to be filled by way of promotion of teachers from primary section having requisite qualification in pursuance of Regulation 7(2-a) which came into force in year 2003. Petitioners moved applications before respondent no. 7 on 23.01.2006 and 28.04.2007 requesting to pass resolution for being promoted to LT Grade under 25% quota as they had already completed 5 years service in BTC Grade. Copies of applications are on record as Annexures-8 and 9 to writ petition.
13. The Institution on 19.05.2007 rejected their claim on ground that Institution is a minority Institution and further in judgment rendered by this Court in case of Committee of Management, Sri Kund Kund Jain Inter College, Muzaffarnagar vs. State of U.P. and others, 2006 (6) ADJ 663, the said benefit cannot be granted. It appears that petitioner had approached DIOS, who on 23.04.2007 wrote a letter to respondent no. 7 directing the Institution to immediately cancel the advertisement made by them for appointment of Assistant Teacher on vacant post in Institution and proceed to promote teachers from Primary to LT Grade and from LT Grade to Lecturer Grade. The letter dated 23.04.2007 has been brought on record as Annexure-12 to writ petition.
14. It is also stated that till date petitioners are getting BTC grade, despite the fact that CT Grade has been declared dead cadre in the year 1989 and are eligible for benefit under Regulation 7(2) of U.P. Act No. 1921. The State filed counter affidavit stating that order passed by DIOS on 15.02.1999 was justified and at that relevant point of time Regulation 7(2) was not applicable in primary schools attached with Intermediate College, however, subsequently Government Order dated 25.11.2005 provided for 25% of total posts sanctioned in LT Grade to be filled up from eligible and qualified teachers working in attached primary schools.
15. It is also stated that proceedings undertaken by Management on 19.05.2007 is in teeth of provisions of the Act as well as directions issued by office of DIOS. Further when claims of petitioners were rejected by Management, DIOS had directed the Management to undertake promotion of eligible and qualified teachers working in primary school to the post of LT Grade Teacher under 25% quota on 01.09.2007 and further, appointment made by Institution on three posts of LT Grade Teacher and two posts of Science Teacher pursuant to the advertisement by direct recruitment has also been disapproved by answering respondent and Committee of Management is required to fill up 25% posts of LT Grade from teachers attached to primary school.
16. An impleadment application was filed by petitioner on 13.05.2012 for impleading petitioner of Writ Petition No. 39788 of 2012, as one of the respondents. A counter affidavit has been filed by petitioner of Writ-A No. 39788 of 2012 stating that Regulation 7(2) of Chapter II are not applicable to minority institution. It is also averred that there is no provision for promotion applicable to a minority institution and Committee of Management had rightly rejected their claim. It is also stated that judgment rendered by Apex Court in case of T M A Pai Foundation and others Vs. State of Karnataka and others, 2002 8 SCC 481 has been considered in case of Committee of Management, Sri Kund Kund Jain Inter College (supra) and provisions of U.P. Act 1921 are only applicable to the extent that it relates to minority institution.
Submission:
17. Sri A.D. Saunders, learned counsel appearing for petitioner, Smt. Vinita Promila Shepherd submitted that once vacancy stood on the retirement of an Assistant Teacher, Smt. Asha Mavis Wonderward and requisition was sent by Committee to DIOS, an advertisement, thereafter, being made and Selection Committee finding her the most suitable candidate, selected her for post of Assistant Teacher, LT Grade in general category. Pursuant to appointment letter, she joined the Institution on 16.08.2007, thus, respondent no. 2 was not correct to go into question of her appointment as Section 16-FF clearly envisages that approval cannot be withheld of a candidate possessing minimum qualification. Further, once order of DIOS was quashed by this Court on 12.12.2011 and matter was remitted back for decision afresh in light of Section 16-FF, respondent no. 2 could not have travelled beyond and decide the issue on the basis of 25% promotion quota not being complied by Management in the Institution.
18. He further relied upon a decision of Division Bench of this Court in Civil Misc. Writ Petition No. 9776 of 1984 (N B Lal vs. District Inspector of Schools and others), decided on 31.08.1984, wherein this Court held that provisions of Regulation 5 of Chapter II was not applicable to a minority institution established under Article 30 of Constitution of India. Thus, order passed by respondent no. 2 on 25.07.2012 was in teeth of directions of this Court passed on 12.12.2011 and the Division Bench judgment in case of N B Lal (supra).
19. Sri N.L. Pandey, learned counsel appearing for petitioners in Writ-A No. 54996 of 2007 at the very outset submitted that pursuant to amendment in Chapter II, Regulation 7 in the year 2003, Regulation 7(2-a) was inserted wherein a provision was made that in those intermediate colleges where primary section is attached and is getting salary under the Payment of Salary Act, 1971, 25% of total sanctioned post in LT Grade was to be filled by way of promotion from teachers of primary section having requisite qualification.
20. It was also contended that the three petitioners for whom he was representing were appointed in Institution between the year 1979 to 1986 in primary section in BTC Grade. Their services were approved and confirmed by RIGS. As CT Grade was declared a dead cadre in year 1989, provision was made in Regulation 7(2), wherein benefit was provided to those teachers imparting education in primary section attached to an intermediate college to be promoted to LT Grade and Committee of Management was not correct in rejecting their claim on 19.05.2007.
21. Further, DIOS had restrained the Institution from proceeding to make any appointment in Institution pursuant to advertisement so made by them on 22.04.2007 and was required to proceed to promote teachers from primary to LT Grade and from LT Grade to Lecturer Grade.
22. Sri Pandey refuted the arguments made in Writ-A No. 39788 of 2012 and placed before this Court a decision of Full Bench in case of Committee of Management, Swami Lila Shah Adarsh Sindhi Inter College and another vs. State of U.P. and others, 2017 (2) ADJ 377 (F.B.), wherein it has been held that provisions of Regulation 7(2-a) does not violate Article 30 of the Constitution, and, therefore, applies in a minority Institution also. This Full Bench found the decision rendered by Division Bench of this Court in N B Lal (supra) as laying down incorrect law. The Full Bench also took notice of the judgment rendered in case of Committee of Management, Sri Kund Kund Jain Inter College (supra) which had relied upon the decision of N B Lal (supra). Relevant portion of Full Bench judgment is extracted hereasunder:
"29. The second premise upon which N B Lal is based is that these Regulations have not been made applicable to minority institutions specifically. Hon'ble Ashok Bhushan, J (as he then was), in his referral order has, in detail, referred to the various regulations which have been held to be applicable to minority institutions even though they may not have been specifically so worded in the statute. In our considered view, the view so taken is correct and merits affirmation. More fundamentally, we note that no provision of the Regulations exclude the applicability of Regulations 5 and 7(2-a). The Regulations themselves do not hold out to be inapplicable to minority institutions. The Division Bench in N B Lal was, therefore, in our opinion, clearly incorrect in proceeding on this premise.
30. In view of the aforesaid, we answer Questions 1, 2 and 3 in the negative and hold that Regulation 7(2-a) as falling in Chapter II of the Regulations framed under the Intermediate Education Act, 1921 do not violate the rights of minority institutions guaranteed by Article 30 of the Constitution. The Regulation is clearly permissive and cannot be said to be violative of rights conferred on such institutions by Article 30 of the Constitution. A minority institution would not be entitled to negative the claim of consideration for promotion of teachers of the primary section of recognised institutions in terms of the Regulation aforementioned, read with the provisions of the Government Order dated 25 November 2003."
23. Sri Pandey also submitted that Apex Court in T M A Pai Foundation and others (supra) had considered in depth Article 30(1) of the Constitution in regard to religious minorities and linguistic minorities wherein the Court held that State can regulate the method of selection and appointment of teachers after prescribing requisite qualification for the same. He also invited attention of this Court to Para 19 and 22 of the judgment in case of Committee of Management, Swami Lila Shah Adarsh Sindhi Inter College and another (supra). Relevant Paras 19 and 22 are extracted hereasunder:
"19. Article 30 (1) of the Constitution deals with religious minorities and linguistic minorities. The opening words of Article 30 (1) make it clear that religious and linguistic minorities have been put at par, insofar as that Article is concerned. The Supreme Court in T M A Pai Foundation & Ors Vs State of Karnataka & Ors, (2002) 8 SCC 481, has exhaustively considered and dealt with Article 30. Several questions were formulated and addressed by the Supreme Court in the said judgment. In the present case, we are concerned with Question 5 (c) : whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and principals including their service conditions and regulation of fees etc. would interfere with the right of administration of minorities? After dealing with Article 30 exhaustively, the Supreme Court observed in paragraph 450 of the judgment (majority view):
"So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as conditions of affiliation to a university or board have to be complied with, but in the matter of day-to-day management, like appointment of staff, teaching and non-teaching and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for selection of teaching staff and for taking disciplinary action has to be evolved by the management itself. For redressing the grievances of such employees who are subjected to punishment or termination from service, a mechanism will have to be evolved and in our opinion, appropriate tribunals could be constituted, and till then, such tribunal could be presided over by a judicial officer of the rank of District Judge. The State or other controlling authorities, however, can always prescribe the minimum qualifications, salaries, experience and other conditions bearing on the merit of an individual for being appointed as a teacher of an educational institution.
Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State without interfering with the overall administrative control of the management over the staff, government/university representative can be associated with the Selection Committee and the guidelines for selection can be laid down. In regard to unaided minority educational institutions such regulations, which will ensure a check over unfair practices and general welfare of teachers could be framed.
There could be appropriate mechanism to ensure that no capitation fee is charged and profiteering is not resorted to.
The extent of regulations will not be the same for aided and unaided institutions."
(emphasis supplied) The Supreme Court has, thus, made it clear that a rational procedure for selection of teaching staff and for taking disciplinary action has to be evolved by the management itself, and that the regulatory measure of control should be minimal. It further observed that regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State without interfering with the over all administrative control of the management over the staff. Even in regard to unaided minority institutions, such regulations, which will ensure a check over unfair practices and protect the general welfare of teachers could be framed. The emphasis is to ensure a check over 'unfair practices' and 'general welfare of teachers' by framing regulations, more particularly if the management has not evolved a rational procedure for selection of teaching staff. In paragraph 136 of the judgment, the Supreme Court also observed that the right to administer does not include the right to maladminister. Right to administer is not absolute but it must be subject to reasonable regulations for the benefit of the institution as a vehicle of education, consistent with the national interest. General laws of the land applicable to all persons have been held to be applicable to minority institutions also - for example, laws relating to taxation, sanitation, social welfare, economic regulation, public order and morality.
22. In Brahmo Samaj Education Society & Ors Vs State of West Bengal & Ors, AIR 2004 SC 3358, the Supreme Court in paragraph 7 thereof, observed thus:
"7. But that control cannot extend to the day-to-day administration of the institution. It is categorically stated in T M A Pai (cited supra at page 551, paragraph 72) that the State can regulate the method of selection and appointment of teachers after prescribing requisite qualification for the same. Independence for the selection of teachers among the qualified candidates is fundamental to the maintenance of the academic and administrative autonomy of an aided institution. The State can very well provide the basic qualification for teachers. Under the University Grants Commission Act, 1956, the University Grants Commission (UGC) has laid down qualifications to a teaching post in a University by passing Regulations. As per this Regulations UGC conducts National Educational Testing (NET) for determining teaching eligibility of candidates. UGC has also authorized accredited States to conduct State Level Eligibility Test (SLET). Only a person who has qualified NET or SLET will be eligible for appointment as a teacher in an aided institution. This is the required basic qualification of a teacher. Petitioner's right to administer includes the right to appoint teachers of its choice among the NET/SLET qualified candidates."
(emphasis supplied)"
24. Sri N.C. Tripathi, learned counsel appearing for Institution in question fairly submitted that total sanctioned strength of LT Grade teachers in Institution is 16, out of which 13 teachers had already been appointed by direct recruitment and in view of Regulation 7(2-a), applying 25% quota, 4 teachers are to be promoted from primary section to LT Grade, as such respondent no. 2 rightly proceeded to decide the claim regarding approval of Smt. Vinita Promila Shepherd which was not in accordance with Regulations. It was also contended that judgment of Full Bench was applicable as far as the Institution is concerned and the claim of writ petitioner of Writ No. 39788 of 2012 cannot be considered, while claim of writ petitioners in Writ-A No. 54996 of 2007 has to be considered in view of Full Bench decision and Regulation 7(2-a).
25. Learned Standing Counsel appearing in both the petitions, apart from the stand taken in counter affidavit submitted that appointments to be made in the Institution in question are to be as per Regulation 7(2-a) and the decision of Full Bench of this Court.
Conclusion:
26. After hearing learned counsel for the parties at length and also perusing the material on record, the question which emerges for consideration is as to whether petitioner in Writ-A No. 39978 of 2012 is entitled for appointment as Assistant Teacher, LT Grade in the Institution pursuant to selection made by Selection Committee and recommendation forwarded by Committee of Management for approval to DIOS, on the basis of Section 16-FF of Act of 1921, or writ petitioners in Writ-A No. 54996 of 2007 who were appointed in the BTC Grade in primary section of the Institution and their appointment being approved by RIGS are entitled to be promoted in LT Grade pursuant to Government Order of 2005, the insertion of Regulation 7(2-a) in the year 2003 and the decision of the Full Bench of 2017.
27. It is undisputed fact that there are 16 sanctioned posts of Assistant Teachers in LT Grade in Institution in question. It has not been disputed that out of these sanctioned 16 posts, 13 had already been filled up by direct recruitment. As CT Grade had already been declared a dead cadre in the year 1989 the Government provided in Regulation 5(2-a) in the year 1990 that 50% of the sanctioned posts in LT Grade or Lecturer Grade shall be filled up by promotion from LT Grade and CT Grade. Subsequently, in the year 2003 by insertion of Regulation 7(2-a), it was provided that in those High Schools, Intermediate Colleges having primary section, teachers in primary section attached with Intermediate College receiving salary under Payment of Salary Act, 1971, 25% of sanctioned posts in Lt Grade will be filled up from teachers of primary section having requisite qualification.
28. It is also not in dispute that three writ petitioners of Writ-A No. 54996 of 2007 had approached Management, who rejected their claim on 09.05.2007 after the insertion of Regulation 7(2-a), simultaneously DIOS had required the Institution not to proceed with advertisement dated 22.04.2007 for making appointment in the Institution by way of direct appointment and first resort to filling up the post by promotion from primary to LT Grade and from LT Grade to Lecturer Grade. Inspite of the direction of DIOS on 23.04.2007, it appears that Management proceeded to invite the application pursuant to advertisement and, thereafter, proceeded to make selection and issue appointment letters. The dispute arose when DIOS declined to grant approval to Smt. Vinita Promila Shepherd who was appointed pursuant to advertisement directly as an Assistant Teacher, LT Grade.
29. The Institution in question though is a minority institution under Article 30(1) of the Constitution, but as held by Apex Court in case of T M A Pai Foundation and others (supra) that State can regulate method of selection and appointment of teachers after prescribing requisite qualification as the same is fundamental to the maintenance of academic and administrative autonomy of an aided Institution. In the present case, Regulation 7(2-a) was inserted in the year 2003 by the State providing for the promotion of teachers in primary section to LT Grade to the extent of 25% quota of total sanctioned strength.
30. The judgment rendered by Division Bench of this Court in case of N B Lal (supra) was held to be an incorrect law, by Full Bench and further, Regulation 7(2-a) falling in Chapter II of the Regulations framed under the Intermediate Education Act, 1921 were held to be not violative of rights of minority institution guaranteed under Article 30 of the Constitution. It was also held that Regulations were clearly permissive and cannot be said to be violative of rights conferred on the said institution by Article 30 of the Constitution.
31. A minority institution would not be entitled to negative the claim of consideration for promotion of teachers of primary section of recognised Institution in terms of Regulations read with provisions of Government Order dated 25.11.2005. As the Regulations have been upheld by Full Bench and the judgment rendered in N B Lal (supra) having been held to be incorrect law, the submission made by Sri Saunders cannot be accepted and petitioners of Writ-A No. 54996 of 2007 are entitled for benefit which they are claiming under Regulation 7(2-a) falling under Chapter II framed under the Act of 1921.
32. The order passed by respondent no. 7, Committee of Management dated 19.05.2007 under challenge in Writ-A No. 54996 of 2007 is hereby quashed and the matter is remitted to respondent no. 5 to decide the claim for being promoted under 25% quota in LT Grade in view of Regulation 7(2-a) and decision of Full Bench of this Court within two months from the date of production of certified copy of this order. The writ petition stands allowed.
33. As far as Writ-A No. 39788 of 2012 is concerned, DIOS not only proceeded to decide the claim on the basis of recommendation of Instution but also keeping in view the Regulations wherein it has been provided that 25% sanctioned strength has to be filled up by promotion from teachers of primary section and Regulation 7(2-a) having been upheld by Full Bench of this Court. More so DIOS had already warned the Institution immediately after the advertisement not to proceed for appointment by direct recruitment, as the vacancies were first to be filled by promotion from CT Grade to LT Grade and from LT Grade to Lecturer Grade, in my considered opinion, I find that DIOS after determining the strength of Institution found that out of 16 sanctioned strength, 13 having already been filled by direct recruitment, no question arose for granting approval to Smt. Vinita Promila Shepherd for being appointed as Assistant Teacher, LT Grade, thus the order passed by DIOS needs no interference and Writ-A No. 39788 of 2012 is hereby dismissed. However no order as to cost.
Order Date :- 14.01.2020 V.S.Singh