Allahabad High Court
State Of U.P. & Ors. vs Raj Karan Nishad And Others on 20 February, 2020
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 4 Case :- SPECIAL APPEAL DEFECTIVE No. - 169 of 2011 Appellant :- State of U.P. and others. Respondent :- Raj Karan Nishad and others Counsel for Appellant :- Standing Counsel Counsel for Respondent :- Pt. S. Chandra,Ajay Kumar Singh 'Raj',Ajay Pratap Singh Hon'ble Sudhir Agarwal,J.
Hon'ble Virendra Kumar-II,J.
(In Re: C.M. Application No.27752 of 2011)
1. Heard.
2. Delay in filing appeal is explained satisfactorily. It is hereby condoned. The application is accordingly allowed.
Order Date :- 20.2.2020 KA AFR Court No. - 4 Case :- SPECIAL APPEAL DEFECTIVE No. - 169 of 2011 Appellant :- State of U.P. and others.
Respondent :- Raj Karan Nishad and others Counsel for Appellant :- Standing Counsel Counsel for Respondent :- Pt. S. Chandra,Ajay Kumar Singh 'Raj',Ajay Pratap Singh Hon'ble Sudhir Agarwal,J.
Hon'ble Virendra Kumar-II,J.
1. Heard learned Standing Counsel for appellants. None has appeared on behalf of respondents though called in revise, hence we proceed to decide this appeal after hearing learned Standing Counsel.
2. This intra Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952, has arisen from judgment dated 13.5.2010 passed by learned Single Judge, dismissing Writ Petition No. 8781 (S/S) of 2009, Raj Karan Nishad Vs. The State of U.P. and others, but therein at the end of judgment, learned Single Judge has allowed selection and recruitment to the post of Headmaster of upgraded Junior High School, though Junior High School has already been upgraded and now Principal of Intermediate College has to be appointed, and no Headmaster of Junior High School could be appointed. Hence, the said selection cannot be allowed to continue.
3. He placed reliance on this Court's judgment in Smt. Manju Awasthi and others vs, State of U.P. and others 2013(3) ADJ 634.
4. We have gone through the aforesaid judgment and find that issue raised before us was squarely raised therein and Division Bench, in a detailed judgment, has decided appeals giving following directions:
"1. The judgment of Hon'ble Single Judge impugned in the appeal holding that after upgradation of a Junior High School to High School, appointment and selection on the post of Head Master shall be made in accordance with 1921 Act and U.P. Act No. 5 of 1982 are upheld and prayer of the appellant to set aside the judgment of Hon'ble Single Judge is refused.
2. The recognition/permission under section 7A shall be granted to an institution which is already recognised institution within meaning of section 2(b) of 1921 Act.
3. Recognition to a junior high school as High School is to be granted in accordance with the provisions of section 7(4) of 1921 Act.
4. The State is fully empowered to grant recognition under section 7(4) or Section 7A without finance (Vitta vihin).
5. After an institution is granted recognition for the first time as a High School minimum necessary post of teachers and Head Master is contemplated to be created even though without finance(Vitta Vihin) so as to fill up those posts in accordance with 1921 Act and 1982 Act.
6. Against the recognition/permission granted under section 7A, the appointment of a part time teacher or instructor as contemplated under section 7A(a) shall be continued to be made by the management as per the Government Orders issued from time to time regulating their terms and conditions."
5. Again matter came up before another Division Bench in Special Appeal No.105 of 2017, Pramod Singh vs. State of U.P. and 7 Others, which was decided vide judgment dated 27.02.2017 and the judgment reads as under :
"Pramod Singh is before this Court assailing the validity of the order dated 20.1.2017 passed by the learned Single Judge in Writ-C No. 34669 of 2016 (C/M Gram Vikas Shiksha Samiti and another Vs. State of U.P. & others) wherein the learned Single Judge has proceeded to allow the writ petition in question with the direction 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 cannot be made by the Basic Shiksha Adhikari of the Assistant Teacher.
Brief background of the case is that there has been an institution known as Kisan Junior High School recognized under the provisions of U.P. Basic Education Act, 1972. The said institution in question, accepted position is, has been upgraded as Junior High School in the year 2000 and in consonance with the provisions of Section 16-A of U.P. Intermediate Education Act, 1921 there has been scheme of administration under which a managing committee is constituted to run and manage the affairs of the institution as per the provisions contained under 1921 Act and the regulations framed thereunder. This much is reflected that in spite of the fact that the institution has been upgraded, the elections, that have been so held, same has been recognized by the District Basic Education Officer and, thereafter, proceedings have been undertaken in daily newspaper 'Aaj' inviting applications for the appointment on the post of assistant teachers. At this juncture, the managing committee of the institution in question came to this Court complaining therein that District Basic Education Officer has no authority or jurisdiction to recognize the committee of management. The said claim in question has been considered and allowed by this Court and impugned order alongwith consequential notifications have been quashed and now Pramod Singh is before this Court describing himself as Manager of the Committee of Management assailing the validity of the said order passed by the learned Single Judge.
Learned counsel for the appellant submitted before us that District Basic Education Officer had rightly proceeded to attest the signatures and had rightly accorded permission to fill in the vacancies in question, in view of this, order passed by learned Single Judge is per se illegal.
Resisting the claim in question, learned Standing Counsel as well as counsel appearing for the private respondent has contended that the view that has been expressed by the learned Single Judge is based on Full Bench decision of this Court in the case of State of U.P and others Vs. District Judge, Varanasi and others, 1981 UPLBEC 336, followed by a Division Bench of this Court in the case of Smt. Manju Awasthi and others Vs. State of U.P; 2013 (3) ADJ 64(DB), and, in view of this, it has been contended that judicial discipline warrants that similar view be taken.
After respective arguments have been advanced, the factual situation on which there is no dispute that the institution in question is an upgraded institution recognized under the 1921 Act. The institution in question on being accorded recognition has to be run and managed strictly in consonance with the provision of U.P. Act No. 2 of 1921 and at no point of time and at no place, once the institution has been upgraded it creates or carves out any exception for applicability of the Rules for making appointment of employees at junior high school level which otherwise stands upgraded.
The issue is no more res integra, inasmuch as, a Full Bench of this Court 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".
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).
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.
Once the law on the subject is clear, then learned Single Judge is absolutely right 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 upholds 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 Basic Shiksha Adhikari has no authority to deal with recognition of Managing Committee of Institution nor has authority to permit appointments being made, as per the provisions of U.P. Basic Education Act, 1972 and U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978.
Special appeal sans merit and same is dismissed, accordingly."
6. Another Division Bench consisting of one of us (Hon'ble Sudhir Agarwal,J.) in Special Appeal No.503 of 2019 (C/M Standard Intermediate College Mau-Aima and others vs. State of U.P. and others) along with connected appeal, following judgment in Smt. Manju Awasthi and others (supra) has decided the matter vide judgment dated 13.08.2019 and relevant extract of judgment reads as under :
"20. The view taken by Division Bench in Ajay Pratap Rai Vs. District Basic Education Officer (supra) has been reiterated by another Division Bench in Manju Awasthi and others Vs. State of U.P. and others 2013 (3) ADJ 64 (DB). Once a Junior High School ceased to continue with a separate entity, provisions relating to selection and appointment of Teachers applicable to Junior High School will not apply and entire Institution as a whole will be a Secondary Educational Institution and governed by provisions of Statute applicable to a Secondary Institution. Therefore, the view taken by learned Single Judge, we find, is consistent with the authorities discussed above. We find no legal infirmity therein so as to warrant interference in these appeals."
7. We are, therefore, satisfied that issues raised in this appeal are squarely covered by aforesaid judgment and the direction giving in the judgment of learned Single Judge under appeal, being contrary to above authorities, cannot be sustained.
8. Appeal is partly allowed and following part of directions/ judgment of learned Single Judge, which is subject matter of appeal in the present appeal, contained in para 13 of certified copy, is hereby set aside:
"The selection process has been initiated. In view of the provisions indicated herein above the process of selection cannot be faulted in any manner. The vacancy has also fallen vacant and, therefore, the selection can be made against the aforesaid vacancy is valid even if the vacancy had not fallen vacant then also the aforesaid exercise of selection of Headmaster of upgraded Junior High School was a necessary requirement."
Order Date :- 20.2.2020 Arvind/KA