Allahabad High Court
C/M Gram Vikas Shiksha Samiti And ... vs State Of U.P. And 7 Others on 20 January, 2017
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved. Court No. - 33 Case :- WRIT - C No. - 34669 of 2016 Petitioner :- C/M Gram Vikas Shiksha Samiti And Another Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- Prabhakar Awasthi Counsel for Respondent :- C.S.C.,P.N.Saxena,Pranesh Dutt Tripathi,Vidya Bhushan Srivastava Hon'ble Suneet Kumar,J.
The petition is being decided without calling for counter affidavit on the consent of the parties as per rules of the Court.
The committee of management of Gram Vikas Shiksha Samiti, Village Khojowapur, Post and Tehsil Manjhanpur, District Kaushambi, a society registered under the Societies Registration Act, 1860, is assailing the order dated 22 June 2016, 12 July 2016, passed by District Basic Education Officer, Kaushambi and the consequential order attesting the signature of eighth respondent as Manager, and order dated 6 July 2016, passed by the fourth respondent, Assistant Registrar, Firms, Societies and Chits, Allahabad.
Petitioner society was constituted and registered on 17 July 1983, which was renewed time to time. The society established a Junior High School, namely, Kisan Junior High School. In 2000, the institution was upgraded to High school and name of the institution was changed to Kishan Uchchatar Madhyamnik Vidyalaya, Khojowapur, Manjhanpur, District Kaushambi. Pursuant thereof, it is managed as per the approved Scheme of Administration under the U.P. Intermediate Act, 1921 (for short Intermediate Act). The institution is in grant-in-aid upto Junior High School and the High School is unaided.
A dispute having arisen regarding election of the committee of management of the society, the Assistant Registrar, Firms, Societies and Chits on 9 June 2005 directed for holding of election from the list of 18 members. The order was assailed in a petition being Writ Petition No. 58850 of 2005, wherein, the order, passed by the Assistant Registrar was kept in abeyance, however, subsequently the petition was dismissed on 2 July 2013. Upon dismissal of the writ petition, the election of the committee of management of the society was held on 9 March 2014, wherein, the second petitioner was elected Secretary/Manager. The election was subjected to challenge in a petition being Writ Petition No.15525 of 2014 wherein, an interim order came to be passed on 12 March 2014; the effect of the order was that there was no committee of the society.
In the meantime, it appears that the eighth respondent approached the second respondent, District Basic Education Officer, who requested the Assistant Registrar to verify the list of office bearers of 2016-17 vide communication dated 22 June 2016. Pursuant thereof, the Assistant Registrar verified the list of office bearers for 2015-16 instead of 2016-17. Upon verification, an order dated 12 July 2016 was passed by the second respondent addressed to the Finance and Accounts Officer, directing removal of single operation of the account of the institution upon attestation of signature of the eighth respondent. Immediately, within two days thereafter i.e. on 14 July 2016, a notification was published by the eighth respondent in the daily news papers including "Aaj" inviting applications for appointment for the post of Assistant Teacher.
It is sought to be urged by Sri Prabhakar Awasthi, learned counsel for the petitioner that the purpose of attestation of signature of eighth respondent was to facilitate appointment of Assistant Teachers. Learned counsel, therefore, would submit: (i) the District Basic Education Officer has no authority or jurisdiction to attest the signature upon the institution being upgraded; (ii) the provision of Intermediate Act, is applicable upon the institution and the competent authority is District Inspector of Schools; (iii) there is no valid committee constituted under the Scheme of Administration to manage the day-to-day affairs of the institution;(iv) the attestation of the signature of eighth respondent by the second respondent is without authority of law.
Sri P.N. Saxena, learned senior counsel appearing for the seventh and eighth respondent would submit: (i) the second respondent, District Basic Education Officer was within his jurisdiction in attesting the signature of eighth respondent, as the institution upto Junior High School is in grant in aid;(ii) provision of Uttar Pradesh Junior High Schools (Payment of Salary to Teachers and other Employees) Act, 1978, would apply upon the institution; (iii) the District Basic Education Officer was justified in attesting the signature of eighth respondent as no committee was constituted under the Scheme of Administration under the Intermediate Act.
Rival submissions falls for consideration.
The sole question for determination is as to whether the second respondent, District Basic Education Officer would have jurisdiction in the affairs of an upgraded institution duly recognized under the Intermediate Act, or in the alternative, whether the second respondent was within his jurisdiction and authority to attest the signature of the eighth respondent as manager of the institution governed under the Intermediate Act.
The facts, inter se, parties are not in dispute. It is admitted that the institution was upgraded as a Junior High School in 2000 and there is an approved Scheme of Administration, under which the committee is required to run and manage the institution. The committee of management of the society constituted under the Societies Registration Act is distinct from that of the institution governed under Intermediate Act.
Section 2 (e) of the Intermediate Act would define 'institution' to mean recognized Intermediate College or Higher Secondary School or a High School. Section 2(d) defines 'recognition' to mean recognition for the purposes of preparing candidates for admission to the Boards' examination. Scheme of Administration has to be drawn for management of the institution in terms of Section 16A of Intermediate Act which is mandatory provision as is evident from the condition required to be fulfilled for granting recognition by the Board contained under Chapter VII of the Regulation framed under Intermediate Act.
Full Bench in State of U.P and others Vs. District Judge, Varanasi and others, 1981 UPLBEC 336, in para 17, held that "a basic School or a Junior High School is thus different from a High School or an Intermediate College. On the plain 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".
The Court further held that "administration including constitution of committee of management of an institution recognized under U.P. Act 11 of 1921 is to be carried out in accordance with a Scheme of Administration prepared under Section 16A of the said Act and this section does not apply to a basic school or a Junior High School".
It is in the aforesaid statement of law, impact of recognition granted to the petitioner institution under Intermediate Act has to be considered. The recognition and financial aid are too different things. The institution which has been recognized as High School or Intermediate College, may not be receiving grant in aid, and in such a situation, the U.P. High School and Intermediate College (Payment of Salaries of Teachers and other Employees) Act 1971 ( U.P. Act 24 of 1971) would not be applicable to the institution having been recognized by the State Government under Section 7A(a). As a necessary corollary, the appointment to the post of teachers have to be made by way of selection and recommendation as per provision of Intermediate Act and U.P. Secondary Education Service Selection Board Act, 1982 (U.P.Act No.5 of 1982) which is applicable to the upgraded institution.
Which of the provisions would be applicable upon up-gradation from basic to high school level, even if the institution has remained unaided arose, in Shiksha Prasar Samiti Babhnan, district-Gonda v. State of U.P. and Ors, (1986) UPLBEC 477, the Court clearly held that once the institution was upgraded, the mode and recruitment was to be governed by the provisions of the Intermediate Act read with the provisions of U.P. Act No. 5 of 1982.
A question arose with regard to applicability of the Intermediate Act in respect of appointment of class 3 post in an upgraded institution. The Court ruled that the provisions of the Intermediate Act, would apply. (Ref:, R.C. Sharma Vs. State of U.P and ors. 2000 (4) ESC 2768).
Once the institution is recognized under the Intermediate Act, the institution binds itself with the terms and condition of recognition which includes the applicability of the Act itself. The Intermediate Act does not carve out any exception for the applicability of Rules to the employees and the institution of the earlier Junior High School which stands upgraded.
It is, thus, clear from the statement of law and the provisions discussed herein above that a Junior High School upon being upgraded to High School/Intermediate level, would be governed by the provisions of Intermediate Act and the service Rules as applicable to such upgraded institution, have to be applied. There is no distinction drawn between an aided or an unaided school. The recognition of the institution is by itself sufficient to exclude the applicability of the laws governing Junior High School once the institution is upgraded. It is for this reason that a special transitory amending provision was brought in by way of Section 13-A by U.P. Act No. 6 of 1979, to enable such upgraded institution to continue to receive the grant-in-aid that they were receiving at the level of Junior High School.
Division Bench of this court in Smt. Manju Awasthi and others Vs. State of U.P; 2013 (3) ADJ 64(DB) specifically held that the provisions of the Intermediate Act and the Societies Registration Act are not overlapping, both operate in separate fields. The Court was of the view that the Government Order dated 24.11.2011 can be supported only to the extent of payment of salary of teachers at the Junior High School level and ancillary power thereunder. However, the Basic Shiksha Adhikari cannot exercise any administrative control over the upgraded institution except to the extent of payment of salary nor can make any appointment in view of the applicability of Intermediate Act and U.P. Act No. 5 of 1982.
Upon considering the relevant provisions of Intermediate Act, Sections 2(b) 2(d) and 7-A, as well as, provisions of U.P. Act No. 5 of 1982, the Court upheld the view of the learned Single Judge that upon a Junior High School being upgraded to High School, the provisions of Intermediate Act and U.P. Act No. 5 of 1982 are applicable and selection made by the Basic Shiksha Adhikari of the Assistant Teacher was quashed.
For the reasons and law stated herein above, the writ petition is allowed, the impugned orders and the consequential notification stands quashed.
No costs.
Date: 20.01.2017 sfa/