Allahabad High Court
Rana Vijendra Pratap Singh vs State Of U.P. on 16 January, 2019
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 58 Case :- WRIT - A No. - 5512 of 2018 Petitioner :- Rana Vijendra Pratap Singh Respondent :- State Of U.P. Counsel for Petitioner :- Amit Saxena,Chandra Shekhar Singh Counsel for Respondent :- C.S.C.,R.C.Dwedi Connected with Case :- WRIT - A No. - 21829 of 2018 Petitioner :- Mukesh Kumar Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Hritudhwaj Pratap Sahi,Sankalp Narain,Vijay Kumar Singh Counsel for Respondent :- C.S.C.,Grijesh Tiwari,Virendra Chaubey And Case :- WRIT - A No. - 26014 of 2018 Petitioner :- C/M, Anglo Uchchatar Madhyamik Vidyalaya, Gorakhpur, And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Sudeep Dwivedi,Radha Kant Ojha, Sr. Advocate,Shivendu Ojha Counsel for Respondent :- C.S.C. And Case :- WRIT - A No. - 22219 of 2018 Petitioner :- C/M Gram Vikas Shiksha Samiti And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Prabhakar Awasthi Counsel for Respondent :- C.S.C.,Harsh Vardhan Gupta,S.K. Singh Vashisht And Case :- WRIT - A No. - 8064 of 2018 Petitioner :- C/M Sri Nath Baba Inter College Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Amit Saxena Counsel for Respondent :- C.S.C.,Sanjay Chaturvedi And Case :- WRIT - A No. - 12990 of 2017 Petitioner :- Diwakar Mishra Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Ramesh Chandra Dwivedi Counsel for Respondent :- C.S.C.,Amit Saxena,J.P.N.Singh,Sanjay Chaturvedi And Case :- WRIT - A No. - 20335 of 2018 Petitioner :- Lalchand Singh Respondent :- State Of U P And 3 Others Counsel for Petitioner :- Chandra Jeet Yadav,Prabhakar Awasthi Counsel for Respondent :- C.S.C.,Jay Ram Pandey,Mahesh Kumar Dubey,R.C. Dwivedi,V.K. Singh And Case :- WRIT - A No. - 20391 of 2018 Petitioner :- Keshari Naryan Tripathi Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Prabhakar Awasthi,Ajeet Kumar Shukla Counsel for Respondent :- C.S.C.,Deo Dayal,Saurabh Pratap Singh And Case :- WRIT - A No. - 25526 of 2018 Petitioner :- Praveen Kumar Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Vinod Kumar Singh Counsel for Respondent :- C.S.C.,Virendra Chaubey Hon'ble Ashwani Kumar Mishra,J.
1. These writ petitions have been connected and heard together, as they involve common questions of law and fact and are therefore being disposed of by this common judgment. An issue of vital significance arises in all these writ petitions. What would be the procedure to be followed for recruitment of teachers in a private managed and aided recognized Junior High School once it is accorded recognition under Section 7-A(a) of the U.P. Intermediate Education Act, 1921 (hereinafter referred to as 'the Act of 1921'), is the issue which calls for determination in these batch of writ petitions. The issue emerges for consideration as a Division Bench of this Court in Smt. Manju Awasthi and others Vs. State of U.P, 2013 (3) ADJ 64 conclusively held that after upgradation of such Junior High School under Section 7-A(a) of the Act of 1921, the procedure otherwise contemplated under the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (hereinafter referred to as 'the Rules of 1978') would not apply.
2. The procedure contemplated under the Rules of 1978 regarding appointment of teachers in recognized Junior High Schools stood ousted in respect of upgraded Junior High Schools by reason of the Division Bench judgment of this Court in Manju Awasthi's case (supra) yet ambiguity prevailed regarding the procedure to be followed for recruitment of teachers in such upgraded institution.
3. The concern having been noticed in the leading case, this Court had heard the counsels at length, so as to steer clear of the stalemate. Various submissions were advanced in that regard by Sri Amit Saxena, Sri R.K. Ojha, learned Senior Advocate, and Sri Prabhakar Awasthi for the parties. Learned State Counsels present in the Court have been a part of the deliberation throughout. However, in order to specifically invite stand of the State in this regard, following order was passed on 3.1.2019:-
"During the course of hearing of this writ petition a question of vital significance for the cause of education in the State of Uttar Pradesh crops up before this Court. The issue is that after Sections 7-A & 7-AA were introduced in U.P. Intermediate Education Act, 1921 vide U.P. Act No.18 of 1987 w.e.f. 14.10.1986 and the erstwhile junior high schools were granted recognition to run higher classes or allowed recognition in new subjects at the high school or intermediate level, fresh appointment of Assistant Teachers in such junior high schools throughout the State of Uttar Pradesh stands stalled for the last many years. The question as to what would be the consequence of grant of recognition under Sections 7-A & 7-AA was referred to a Larger Bench in Smt. Manju Awasthi vs. State of U.P. and others reported 2013 (2) ESC 2844. The Larger Bench in paragraph 77 categorically held as under:-
"77. We are 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 institution except to the extent of payment of salary nor can make any appointment in view of the applicability of 1921 and 1982 Acts. The judgment of Hon'ble Single Judge in Committee of Management Beni Singh Vaidic Vidyawati Inter College, Baluganj, Agra and others (supra) to that extent cannot be approved. It is relevant to note that against the judgment of Hon'ble Single Judge dated 7.9.2005 in Committee of Management Beni Singh Vaidic Vidyawati Inter College, Baluganj, Agra and others (supra) special appeal No. 1419 of 2005, Agam Prakash Deepak Vs. State of U.P. was filed, which appeal was also dismissed on 29.11.2005."
The procedure for appointment of teachers under the U.P. Recognised Basic Schools (Junior High Schools) (Recruitment And Conditions Of Service Of Teachers) Rules, 1978 would, therefore, be no longer available for the purposes of making appointment of teachers in such institutions.
Ordinarily, when a junior high school is upgraded to high school or intermediate level, it is granted recognition under Section 7(4) of the Act of 1921 and the situation is taken care of by virtue of Regulation 4 of Chapter II of the Act of 1921, inasmuch as fresh appointment of teachers would henceforth be made under the provisions of U.P. Secondary Education Services Selection Board Act, 1982. The State Government, however, restricted recognition under Section 7-A of the Act of 1921 and the provisions of Section 7(4) was not attracted, as a consequence the appointment procedure contemplated under the Act of 1982 was not attracted to such institutions. The consequence is that all vacancies which came into existence in these erstwhile junior high school continue to remain blocked, inasmuch as any attempt to fill it up under the Rules of 1978 have not been approved of by this Court in view of the law laid down in Smt. Manju Awasthi (supra). The provisions of the Act of 1982 are otherwise not attracted. The ultimate casualty in the process is the cause of education itself, inasmuch as junior high schools, which are otherwise catering to the need to provide education to large sections of society in the State of Uttar Pradesh.
Irrespective of the controversy raised in the present writ petition, learned counsel for either sides submits that this aspect has to be addressed inasmuch as an appointment procedure would have to be worked out for such institutions, otherwise most of these institutions would have to be close down due to lack of teachers. This Court realizing the seriousness of the issue involved has allowed learned counsel for the parties to make their submissions at length. Learned counsels submit that grant of recognition under section 7-A of the Act of 1921 pre-supposes existence of recognition under section 7(4) of the Act of 1921, inasmuch as the grant of permission under section 7-A is to an institution existing and recognized under the Act of 1921 only. Submission is that in case such recognition is treated to implicitly have recognition under Section 7(4) of the Act, the appointment procedure, which is otherwise available in case of upgraded institution, would be available and appointments would be open to be made under the Act of 1982.
Before proceeding further, it would be appropriate to call upon the Principal Secretary of the department concerned to place the stand of the State in the matter, keeping in view the law laid in Smt. Manju Awasthi (supra), as also the statutory scheme.
As prayed by learned Additional Chief Standing Counsel appearing for the State, let this matter appear in the additional cause list once again on 7.1.2019, alongwith records of Writ Petition Nos.8064 of 2018, 20335 of 2018 and 20391 of 2018.
Sri Sanjay Chaturvedi, learned counsel for the District Basic Education Officer concerned shall produce relevant records relating to claim of present petitioner.
Copy of this order shall be furnished to the learned Standing Counsel during course of the day."
4. In response to the aforesaid order, learned Additional Chief Standing Counsel obtained instructions and submitted that the proceedings be deferred as the State Government requires more time to coordinate with the Department of Basic Education to find the way out for resolving the stalemate as already noticed hereinabove. The written instructions received from the State acknowledges the fact that recruitment in these institutions would be impermissible under the Rules of 1978 but the provisions of the Act of 1982 are yet to be made applicable. Prayer for adjournment is strongly opposed on behalf of the counsel for the petitioners contending that State has throughout been aware of this grave situation but has done nothing to resolve it. Submission is that attempt to have the matter deferred has only one objective i.e. to allow the status quo to continue, as otherwise the State had sufficient time to resolve the existing policy paralysis.
5. It may be noticed that the judgment of this Court in Smt. Manju Awasthi (supra) was delivered on 6.11.2012. A period of more than six years have passed since then. Thousands of petitions are pending before this Court, wherein the issue is directly or indirectly involved. Large number of vacancies in such institutions are otherwise lying vacant. The obvious causality in the process is the cause of education. A society cannot flourish, much less as an egalitarian society, based on principles of equality and justice, unless it is able to offer quality education to its children. Privately managed Junior High Schools recognized by the U.P. Basic Education Board are catering to the need of providing education to large number of students. Most of the children coming from the rural or semi-urban background are receiving education in these institutions. Lack of teachers, therefore, has a direct adverse impact in providing quality education in rural and semi-urban areas, apart from adversely impacting students in urban townships also. The state of flux, in such circumstances, ought not be allowed to continue any further and the laws will have to be analyzed and interpreted in such a manner so as to ensure that teachers in desired numbers are appointed forthwith. Consequently, the prayer for adjournment on behalf of the State, therefore is rejected.
6. Before proceeding to examine the issues involved, it would be necessary to refer to the relevant statutory provisions and also the judgments of this Court operating in the field.
7. State of Uttar Pradesh enacted the U.P. Basic Education Act, 1972 (hereinafter referred to as 'the Act of 1972'), with the object to provide for the establishment of a Board of Basic Education and for the matters connected therewith. The statement of objects and reasons specifies that the responsibility of providing primary education had, so far, rested with the Zila Parishads in rural areas and with Municipal Boards and Mahapalikas in urban areas. The administration of education at this level by the local bodies was not satisfactory, and it was deteriorating day by day. The Government with an intent to take immediate remedial steps for improving education at this level, by recognizing, reforming or expanding elementary education took a decision to take over its control into its own hand. That is how the U.P. Basic Education Act, 1972 came into being. A Board was constituted and its functions were defined. Board had the jurisdiction to recognize institutions imparting education upto Class VIIIth. While Board established its own institutions it also recognized private managed Junior High Schools. Norms were fixed subject to which recognition itself was to be granted to these institutions which included provisions for land, building and teachers etc. In respect of basic institutions run by the Basic Education Board, service rules were framed known as 'The Uttar Pradesh Basic Education (Teachers) Service Rules, 1981' (hereinafter referred to as 'the Rules of 1981'). In respect of privately managed institutions, the State Government framed 'The Uttar Pradesh Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978'. The recruitment procedure for teachers were prescribed in the Rules of 1978 whether or not such institutions were receiving grant-in-aid.
8. So far as education to High School and Intermediate level is concerned, the U.P. Intermediate Education Act, 1921 already existed. This act established a Board of High School and Intermediate education as being the competent body to regulate grant of education at High School and Intermediate level. Regulations were also framed under the Act of 1921 to deal with relevant exigencies. The powers of Board were defined under Section 7, which included conduct of examinations for High School and Intermediate courses at the end of each academic session, as also to recognize institutions for the purpose of its examinations. Section 7(4) of the Act of 1921 would require reference at this stage and is, therefore, reproduced hereinafter:-
"7. Powers of the Board. - Subject to the provisions of this Act, the Board shall have the following powers, namely, -
(1) .......
(2) .......
(3) ........
(4) to recognise institutions for the purposes of its examinations."
9. The regulations framed under the Act of 1921 contains Chapter-VII prescribing conditions for grant of recognition to the institution by the Board. Requirements are specified and the same are to be possessed by an institution before it could be granted recognition. Requirement of teaching staff, school building, playgrounds etc. were made pre-conditions for grant of recognition.
10. The Act of 1921, apart from establishing a Board also provides for statutory framework, wherein the mode and method of recruitment was initially specified. However, over a period of time, need was felt to establish a Secondary Education Service Selection Board for the selection of teachers in the institutions recognized under the Act of 1921. The regulatory mechanism for appointment of teachers, therefore, was substituted by the provisions of the U.P. Secondary Education Services Selection Board Act, 1982. It was only to the extent of residuary issues not dealt with by the Act of 1982 and the rules framed thereunder that the provisions under the Act of 1921 or the Regulations framed thereunder survived.
11. The State while regulating conditions of service of teachers in the privately managed Junior High School and High School or Intermediate institutions also enacted laws for payment of salary to the teachers and the staff. Reference in this regard be made to the provisions of the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 (hereinafter referred to as 'the Act of 1971'), and also the Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and Other Employees) Act, 1978 (hereinafter referred to as 'the Act of 1978'). Payment of salary under the Act of 1971 and 1978 was dependent upon sanction of maintenance grant under specific orders of the State. Creation of posts in these institutions was also a matter of issue, and therefore, the authorities were specified, who could create post. Its strict compliance was made mandatory, considering the fact that it had direct financial implications upon the State.
12. Establishment of privately managed institution to impart education upto High School or Intermediate level, as also appointment of teachers therein, as well as payment of salary to them from the State Exchequer are regulated by the Act of 1921, the Act of 1982 and the Act of 1971, as well as rules and regulations framed thereunder. So far as Junior High School is concerned, it is the Act of 1972, the Rules of 1978, as also the Act of 1978, which regulate the field.
13. However, the specific aspect which requires consideration herein is the method and methodology to be followed qua upgradation of a Junior High School to High School level. Existence of Junior High School, therefore, with its recognition under the Act of 1972 and appointment of teachers under the Rules of 1978 etc. is already in existence. The upgradation of Junior High School therefore starts with grant of recognition as a High School or Intermediate institution. Such recognition by law has to come from the Board established under the Act of 1921. The only provision that exists in that regard is Section 7(4) and the regulations contained in Chapter-VII of the Regulations framed under the Act of 1921. The teachers and other staff engaged in the institution, while it was a Junior High School, were to continue in the upgraded institution also, and specific provisions were introduced in that regard. Chapter-II of the Act of 1921 contains regulations dealing with appointment of Heads of the institutions and teachers corresponding to Sections 16-E, 16-F and 16-FF of the Act of 1921. Regulation 4 of Chapter-II is relevant to be noticed at this stage, as it deals with consequence of such upgradation for permanent or temporary teachers. Regulation 4 of Chapter-II of the Act of 1921 is, therefore, reproduced hereunder:-
"4. Where any Junior High School is recognised as a High School under Section 7, a permanent or temporary teacher of such school, possessing the minimum qualifications under Regulation I, shall be deemed to be permanent or temporary teacher, as the case may be, of such High School, provided that the services of a temporary teacher who is not selected for appointment in accordance with the provisions of the Act and the regulations shall be dispensed with after giving him one month's notice in that behalf or one month's pay in lieu of such notice."
14. "Teacher" in a recognized Junior High School is defined under the Act of 1978. Section 2(h) of the Act of 1978 is as follows:-
"2(h). "Teacher" of an institution means a headmaster or other teacher in respect of whose employment maintenance grant is paid by the State Government to the institution;"
15. By virtue of the aforesaid statutory interdict, the teacher of a Junior High School thus becomes a teacher of the upgraded institution. Teacher, moreover, includes the headmaster of a Junior High School.
16. It was in the aforesaid background that the issue arose before a Division Bench of this Court in Smt. Manju Awasthi's case (supra) as to what would be the procedure to be followed for appointment of the head of the upgraded institution. The issues occurring in Smt. Manju Awasthi (supra) were crystallized by the Division Bench in para 18 of the judgment and the same are reproduced hereinafter:-
"18. From the submissions and pleading of the parties, following are the issues which have arisen for consideration in these appeals.
1. Whether after the Junior High School is recognised as High School/Intermediate college, the post of Head Master/ Head Mistress of the Junior High School is to be filled in accordance with the provisions of U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 or selection and appointment to the post of Head Master/Principal of recognised institution is to be made in accordance with the provisions of U.P. Intermediate Education Act, 1921 and U. P. Secondary Education Service Selection Boards Act, 1982?
2. Whether after a Junior High School is recognised as High School/Intermediate college and there being no post created of Head Master/ Principal in the recognised institution, it is the Head Master of the Junior High School, who is to function as Principal of the recognised institution and perform functions and duties which are required to be performed by the principal of the recognised upgrade institution?
3. Whether after recognition is granted under section 7-A (a) to an institution for the first time which recognition is without finance (Vitta Vihin), there is any obligation on the management to make appointment on the post of Head Master /Principal of High School/Intermediate College?
4.Whether under section 7A(a) of the U.P. Intermediate Education Act, 1921, the Board with the prior approval of the State Government can recognise an institution in any new subject or group of subjects or for a higher class; which institution is already a recognised institution under the U.P. Intermediate Education Act, 1921 or such recognition can be granted for the first time under section 7A(a) of the U.P. Intermediate Education Act, 1921 to an institution which is not a recognised institution under U.P. Intermediate Education Act, 1921?
5. Whether the word "institution" occurring in Section 7A(a) of U.P. Intermediate Education Act is to be read as "institution" as defined under section 2(b) of the U.P. Intermediate Education Act, 1921?"
17. The Division Bench had to examine the aforesaid issues in the context of the amendments introduced vide U.P. Act No. 18 of 1987 w.e.f. 14.10.1986 in the Act of 1921, whereby Sections 7-A, 7-AA and 7-AB were added which are reproduced hereinafter:-
"[7A. Recognition of an institution in any new subject or for a higher class. - Notwithstanding anything contained in clause (4) of Section 7, -
(a) the Board may, with the prior approval of the State Government, recognise an institution in any new subject or group of subjects or for a higher class;
(b) the Inspector may permit an institution to open a new section in an existing class.] [7AA. Employment of part-time teachers or part-time instructors. - (1) Notwithstanding anything contained in this Act, the management of an institution may, from its own resources, employ, -
(i) as an interim measure part-time teachers for imparting instructions in any subject or group of subjects or for a higher class for which recognition is given or in any section of an existing class for which permission is granted under Section 7-A;
(ii) part-time instructors to impart instructions in moral education or any trade or craft under socially useful productive work or vocational course.
(2) No recognition shall be given and no permission shall be granted under Section 7-A, unless the Committee of Management furnishes such security in cash or by way of Bank guarantee to the Inspector as may be specified by the State Government from time to time.
(3) No part-time teacher shall be employed in an institution unless such conditions as may be specified by the State Government by order in this behalf are complied with.
(4) No part-time teacher or part-time instructor shall be employed unless he possesses such minimum qualifications as may be prescribed.
(5) A part-time teacher or a part-time instructor shall be paid such honorarium as may be fixed by the State Government by general or special order in this behalf.
(6) Nothing in this Act shall preclude a person already serving as a teacher in an institution from being employed as a part-time teacher or a part-time instructor under Section 7AA].
[7AB. Exemption. - Nothing in the Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 (U.P. Act 24 of 1971), or the Uttar Pradesh Secondary Education Services Commission and Selection Board Act, 1982 (U.P. Act 5 of 1982), shall apply in relation to part-time teachers and part-time instructors employed in an institution under Section 7AA.]"
18. Section 7-A of the Act of 1921 as introduced vide U.P. Act No.26 of 1975 was as under:-
"7-A. Approval of the State Government for recognition. - Notwithstanding anything contained in clause (4) of Section 7, any order of the giving recognition to an institution for the first time or in any new subject or Board group or for a higher class shall not have effect until it is approved by the State Government."
19. The amended statutory scheme vide U.P. Act No. 18 of 1987 permitted the Board, with the prior approval of the State Government, to recognize an institution in any new subject or group of subjects or for higher classes and the management could employ part time teachers for such courses, from its own resources, as an interim measure. Section 7-AB clarified that provisions of the Act of 1971 or the Act of 1982 would not apply to part time teachers and part time instructors employed in an institution under Section 7-A(a). One of the issues that, therefore, arose before the Division Bench in Smt. Manju Awasthi's case was whether recognition under Section 7-A(a) of the Act of 1921 could be granted to an institution already recognized under the Act of 1921, or such recognition could be granted for the first time also. This aspect was specifically noticed in para 29 of the judgment which is as under:-
"29. The issues, which have arisen in these appeals, include the issue pertaining to interpretation of provisions of Section 7A of the 1921 Act. Section 7A provides that notwithstanding anything contained in Clause (4) of Section 7 the Board may, with the prior approval of the State Government, recognise an institution in any new subject or group of subjects or for a higher class. In the present appeals the Junior High Schools, which were receiving grant-in-aid up to High School level, were granted recognition under Section 7A(a). Whether Section 7A(a) contemplated grant of recognition for the first time under the 1921 Act or Section 7A(a) could be utilised for grant of recognition/permission in an institution already recognised under the 1921 Act, is the core question to be answered."
20. The definition of Institution as contained in Section 2(b) of the Act of 1921, was specifically noticed, and for ready reference the same is reproduced hereinafter:-
"[2(b) "Institution" means a recognised Intermediate College, Higher Secondary School or High School, and includes, where the context so requires, a pan of an institution, and 'Head of Institution' means the Principal or Head Master, as the case may be, of such institution;]"
21. In paras 44 and 45 of the report in Smt. Manju Awasthi, the Division Bench observed that the three exigencies contemplated under Section 7-A(a), would presuppose existence of an institution under the Act of 1921. Paras 44 & 45 are accordingly reproduced:-
"44. Now we proceed to consider three phrases used in Section 7A of the 1921 Act as noted above. Taking first clause (i) i.e. recognise an institution in any new subject, again presupposes existence of some subject already recognised as recognition in a new subject can be only in addition to subjects already recognised. Thus the definition of Section 2(b) is clearly attracted in interpreting the aforesaid phrase. The phrase (ii) i.e. recognise an institution in group of subjects, is also to be interpreted similarly as phrase (i). Now remains the interpretation of phrase (iii) i.e. recognise an institution for higher class. The question is whether recognition in a higher class has to be with respect to an institution recognised under the 1921 Act or recognition of higher class refers to an institution which is not recognised under the 1921 Act. The words "higher class" presupposes existence of a class in an institution. Thus the words "higher class" has to be read to mean classes higher to one which has already received recognition and the same has to be in an institution which has already been recognised under the 1921 Act.
45. Had the legislature intended that Section 7A of the 1921 Act shall also regulate recognition for the first time to an institution, it would not have qualified the grant of such recognition by three phrases as noted above. The legislature clearly intended to give restrictive meaning to Section 7A and therefore mentioned the three phrases in the said section. The legislature never contemplated a very wide meaning to higher classes i.e. to admit recognition for the first time of an institution under the 1921 Act."
22. In Paragraph 46, the Division Bench applied the principles of ejusdem generis to hold that all three exigencies occurring in Section 7-A(a) belong to same class or genus and have to be interpreted in the same manner.
23. The statements of object were also taken note of while substituting Section 7-A vide U.P. Act No. 18 of 1987 and thereafter the Division Bench proceeded to hold as under in paragraphs 51 to 55:-
"51. For interpreting Section 7A of the 1921 Act, the above "statement of objects and reasons" throws considerable light which reinforces our view that object of 7A was not to grant recognition to an institution for the first time but object was to (i) make available services of local specified experts on honorarium for giving encouragement to trades and socially useful subjects and (iii) to provide a flexible scheme.
52. Section 7A of the 1921 Act was never meant to grant recognition for the first time to an institution. For taking an institution for the first time under the 1921 Act there are several requirements including the requisite staff to man the institution. The legislature intended to lesser its financial burden by providing for employment of part-time teacher while inserting Section 7A(a) and (b) in the 1921 Act. The Apex Court in the case of Commissioner of Income Tax vs. Hindustan Bulk Carriers reported in (2003)3 SCC 57, has laid down that a statute or any enacting provision therein must be so construed as to make it effect and operative. Following was laid down by the Apex Court in paragraphs 14 and 21 which are as follows:-
"14. A construction which reduces the statute to a futility has to be avoided. A statute or any enacting provision therein must be so construed as to make it effective and operative on the principle expressed in maxim ut res magis valeat quam pereat i.e. a liberal construction should be put upon written instruments, so as to uphold them, if possible, and carry into effect the intention of the parties. (See Broom's Legal Maxims (10th Edition), page 361, Craies on Statutes (7th Edition) page 95 and Maxwell on Statutes (11th Edition) page 221.
21. The provisions of one section of the statute cannot be used to defeat those of another unless it is impossible to effect reconciliation between them. Thus a construction that reduces one of the provisions to a "useless lumber' or 'dead letter' is not a harmonised construction. To harmonise is not to destroy."
53. In view of the above discussions, we are of the view that recognition/permission under Section 7A of the 1921 Act by the Board with the approval of the State Government is contemplated with regard to an institution already recognised under the 1921 Act and Section 7A of the 1921 Act never contemplated grant of recognition for the first time to an institution. We thus hold that the word "institution" occurring in Section 7A of the 1921 Act has to be read as per definition of the word "institution" in Section 2(b) of the 1921 Act.
54. Learned counsel for the appellants as well as learned Additional Advocate General have submitted that after insertion of Sections 7A and 7AA, large number of institutions have been granted recognition for the first time under Section 7A and they never received any recognition under Section 7(4) of the 1921 Act.
55. Be, that as it may, any institution which has already been recognised under Section 7(4) or 7A of the 1921 Act shall be treated as institution duly recognised under the 1921 Act and our observations/order shall not affect any recognition which has already been granted to an institution under Section 7A of the 1921 Act and our order/observation should not be read to the prejudice of any such institution which has already been recognised under Section 7A of the 1921 Act."
24. Thus the inescapable conclusion in the light of the discussion made in the case of Manju Awasthi (supra) would be that an institution which is upgraded under Section 7-A(a) in any of the three exigencies, would necessarily be deemed to have been granted recognition under Section 7(4) of the Act of 1921. This would be so as essential attributes of an institution for it to be granted recognition under Section 7(4) of the Act of 1921 would already exist in a recognized Junior High School before the Board proceeds to grant recognition to it under Section 7-A(a) of the Act.
25. What follows from the above discussion is that Regulation 4 of Chapter - II would immediately come into play and by operation of law the permanent or temporary teachers of Junior High School who possess requisite qualification in terms of Regulation 1 framed under the Act of 1921 would become the permanent or temporary teacher of the upgraded institution i.e. High School/Intermediate. The Division Bench in Manju Awasthi's case was basically concerned with the post of Head Master in the upgraded institution, since it was contended that a specific order for creation of post had not been passed under Section 9(4) of the Act of 1971 by the Director. Following observations made in Paragraphs 59 to 63 would, therefore, be relevant, at this stage, and are extracted hereinafter:-
"59. Thus, the regulations do not obviate the requirement of teachers to man the institution. As held above, the appointment of part time teachers under section 7AA is contemplated only after recognition is granted under section 7A. Thus, those part time teachers are not contemplated to be in existence at the time the school seeks recognition. We have already come to the conclusion that the first recognition of an institution as High School under the 1921 Act cannot be granted under section 7A and recognition under section 7A is a recognition of an existing recognised institution under the 1921 Act. Thus, where a recognition is granted under section 7A as per the conditions mentioned in Section 7A, the institution is already in existence as a recognised institution. The existing institution has to be envisaged along with skeleton teachers to man the high school. Thus, the requirement of creation of post when an institution is recognised for the first time is very much there. It is another thing that Government may not take any financial responsibility for payment of salary to such teachers when an institution is recognised for the first time and it is always open to the Government to grant recognition vitta Vihin or not to take the institution on grant-in-aid but whether an institution is taken on aid or not taken on aid has nothing to do with the standard with which an educational institution is to maintain or inspire. We are thus, of the clear view that when an institution is recognised for the first time, the institution contemplates creation of skeleton of post to man the institution and when a Junior High School is recognised as High School under the 1921 act for the first time, the post of Principal Head Master has to be there whether the institution receives an aid or does not receive an aid, which factor is immaterial.
60. There has to be a Head Master of the High School, is reinforced by looking to the scheme of employment of part time teachers or part time instructors under section 7AA. Section 7A contemplates recognition in following three circumstances:
(i)Recognition of an institution in any new subject.
(ii)Recognition of institution in group of subjects
(iii) recognition of an institution for higher class.
61. The appointments of part time teachers under section 7AA is contemplated in above three circumstances and when an inspector permit to open new section in existing class also there can be appointment of part time teachers. When a recognition is granted for any new subjects or group of subjects or for higher class only teachers are required to man the classes and Section 7AA satisfies the requirement by engagement of teachers or part time instructors by the management, who are to be paid salary from their own resources but section 7AA does not contemplated an appointment of Head Master of the High School nor when an institution is recognised under section 7A any Head Master is contemplated to be appointed under section 7AA. However, existence of an institution cannot be envisaged without there being head of the institution. In the regulations framed under the U.P. Intermediate Education Act, it was envisaged that when a Junior High School is recognised as High School under section 7, the Head Master of Junior High School may be promoted as Head Master of the High School. Thus, the post of Head Master of the High School was very much contemplated and provided for under regulation 2 of Chapter II, which provides for Appointment of Heads of Institutions and Teachers. Regulation 2 (2)(a) of Chapter II is as follows:
"(2)(a) Where an institution is raised from a High School to an Intermediate College, the post of Principal of such college shall be filled by promotion of the Headmaster of such High School, if he was duly appointed as Headmaster in substantive capacity in accordance with law for the time being in force and possesses a good record of service and the minimum qualifications prescribed in that behalf or has been granted exemption from such qualifications by the Board."
62. After the enforcement of U.P. Act No. 5 of 1982 also it was contemplated in U.P. Secondary Education Services Commission (Removal of Difficulties) Order 1981 clause 4 (1) (C) that in the case a Junior High School is raised to the level of a High School, the post of Principal be filled by the Head Master of such Junior High School by adhoc appointment by promotion. Thus, 1982 Act also contemplated filling up of the post of Head Master of a High School by promotion of Head Master of Junior High School on adhoc basis. However, scheme of 1982 Act contemplated the regular appointment on the post of head of the institution thereafter. Thus, the post of head of institution after recognition under section 1921 Act has to be filled up and no situation can be contemplated where post has to remain vacant or there has to be no post of head of institution in the High School. We have already held that recognition under section 7A cannot be granted for the first time to an institution as a High School and the said recognition under section 7A has to be for an institution which is already recognised under the 1921 Act within the meaning of section 2(b) of 1921 Act. Thus, when a request is prayed for and granted under section 7A there is an already recognised institution contemplating a head of institution since no appointment on the post of head of institution is contemplated under section 7AA. There has to be full time Head Master of a High School and above interpretation is in accordance with the statutory scheme as delineated by 1921 Act , Regulations framed thereunder and 1982 Act.
63. Thus, we are of the view that there has to be a Head Master of the High School when it is recognised for the first time and requiring a Head Master to be appointed clearly contemplated a post of Head Master and the said post is to be created by educational authorities irrespective of the fact whether State is giving any aid or not. State can very well recognise an institution as High School (vitta vihin) but that itself does not absolve the requirement of having of a post of head of institution or creating the said post. When a post is contemplated in an institution either of Head Master or teacher which is required to be granted on Manak fixed by the Government for the purpose of recognising an institution for the first time, management cannot be absolved from its responsibility to make appointment of qualified teachers to man the minimum post of teachers required for establishing an institution or for recognising an institution in the High School and it cannot be absolved from its responsibility to make the payment of their salary as has already been laid down in various Government Orders from time to time."
26. The upgradation of institution as also consequential upgradation of teachers of Junior High School to High School level would otherwise not pose any difficulty regarding payment of salary as only those teachers would continue to receive salary from the State who were already getting salary from the State under the Act of 1978. The obvious consequence of upgradation of teachers in such institutions to High School level would mean that the provisions of the Act of 1982 would become operative. Any vacancy that would arise in the upgraded institution, consequent upon retirement of an existing teacher would then be filled by the provisions contained under the Act of 1982 or the Act of 1921. In Manju Awasthi (supra), this Court examined the Government Order dated 24.11.2001 in the context of applicability of the Act of 1978 notwithstanding the upgradation of the institution in paragraph 75, which is also reproduced hereinafter:-
"75. The said Government Order thus, contemplate that teachers and staffs of private Junior High School/High School, whose services are governed by 1978 Act, Payment of Salaries Act shall continue to be dealt with by Basic Shiksha Adhikari and provisions of U.P. Recognized Basic Schools (Junior High Schools) ( Recruitment and Conditions of Service of Teachers) Rules, 1978 shall also be applicable. As noticed above, by virtue of Section 13A inserted in 1978 Act by U.P. Act No. 34 of 2000, the provisions of 1978 Act shall apply to an institution which is upgraded High School or Intermediate college. 1978 Act relates to payment of salary. Thus, in so far as payment of salary part is concerned by virtue of statutory provisions, 1978 Act shall apply and the Government Order dated 24.11.2001 in so far as powers regarding payment of salary is concerned can be exercised by the said Government Order. However, whether the administrative control of Basic Shiksha Adhikari shall still be exercised after the institution is upgraded as High School, is the question which is to be answered. The Government Order dated 24.11.2001 came for consideration before this Court in two judgements. First judgment delivered by Hon'ble Single Judge of this Court was in writ petition No. 17422 of 2003 Ramesh Singh Vs. State of U.P. and others decided on 23.5.2003. The writ petition was filed by the Manager of the committee of management challenging the authority/jurisdiction of the Basic Shiksha Adhikari deciding the question of no confidence motion. The institution which was Junior High School and was receiving grant-in-aid and governed by provisions of Payment of Salaries Act, 1978 was upgraded in 1997 as High School Vitta Vihin institution. The institution was not brought on salaries Act, 1971. An order passed by Basic Shiksha Adhikari dated 5.1.2003 was under challenge. Reliance was placed on the Government Order dated 24.11.2001 by the petitioner stating that Basic Shiksha Adhikari retains the administrative control by virtue of the said Government Order. The Hon'ble Single Judge considered the Government Order and held that the power of administrative control in Basic Shiksha Adhikari is totally destructive of the very scheme. Hon'ble Single Judge held that paragraph 5 of the Government Order is ultravires to the provisions of section 16A. Following was laid down by Hon'ble Single Judge at pages 5 and 7:
"A bare perusal of the item No. 5 of the G.O. Dated 24.11.2001 would go to show that this fact has been accepted therein that institution in question is one and the same, but the same has been directed to be treated as a separate unit for administrative purposes. This notification is not at all consistent with the provisions of U.P. Intermediate Education Act, 1921; inasmuch as, no where under the U.P. Intermediate Education Act, 1921, the District Basic Education Officer has been vested with any administrative control, this direction is totally destructive of the very scheme.
....The District Basic Education Officer has got no authority or jurisdiction to deal with upgraded junior High School, inasmuch as the entire entity of the institution changes, but only on account of payment being made t teaching and non-teaching staff under U.P. Act No. 6 of 1979. The District Basic Education Officer has role to play within the four corner of provisions of U.P. Act No. 6 of 1979 i.e. the District Basic Education Officer can exercise and invoke power under Sections 3(3), 5(1), 6(3) of U.P. Act No. 6 of 1979, in case pre-requisite terms and conditions for exercising and invoking aforementioned power in question is in existence and apart from this the District Basic Education Officer has got no authority or jurisdiction to go into question of validity of elections or continuance of manager or office bearers. Even otherwise total anomalous situation would be created in case, in respect of same Committee of Management, treating them separate unit, both District Basic Education Officer and District Inspector of Schools are permitted to adjudicate the question of validity of elections and continuance of office bearers.""
27. Once the provision of the Act of 1921 becomes applicable upon the upgraded institution, any vacancy caused in such institution, would have to be filled in accordance with the provisions of the Act of 1982 and the Act of 1921, like any other institution recognized under the Act of 1921. Section 2(e) of the Act of 1982 defines 'institution' to mean an intermediate college or a higher secondary school or a High School recognized under the Act of 1921. Section 16 of the Act of 1921 further contemplates that notwithstanding anything to the contrary contained in the Act of 1921 or the regulations made thereunder, but (subject to sections 12, 18, 21-B to 21-G, 33, 33-A to 33-G of Act of 1982) every appointment of a teacher shall be made by the Management on the recommendation made by the U.P. Secondary Education Service Selection Board and any appointment made in contravention of it shall be void. 'Teacher' is defined in the Act of 1982 to include Principal or a Headmaster.
28. At this stage, it would be pertinent to refer to a Full Bench judgment of this Court in State of U.P. and others Vs. District Judge, Varanasi and others, 1981 UPLBEC 336, wherein the Court considered as to whether an institution receiving maintenance grant as Junior High School, once is recognized as High School under the Act of 1921, would be covered within the meaning of institution "as defined under Section 2(ii)(c) of the Act of 1971" such that maintenance grant under the Act of 1971 would be payable to it. The Full Bench observed that for the provisions of the Act of 1971 to apply upon such upgraded institution, the grant of maintenance under the Act of 1971 would be necessary and the provisions of the Act of 1971 would not become applicable automatically. Para 17 of the judgment of the Full Bench is reproduced hereinafter:-
"17. 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. In this connection reference may also be made to the decision of the Supreme Court in Commissioner Lucknow Division v. Km. Prem Lata Mtera MANU/SC/0064/1976 : AIR 1977 SC 334. It would further be seen that administration including constitution of Committee of Management of an institution recognized under U, P. Act II of 1921 is to be carried out in accordance with a Scheme of Administration prepared under Section 16-A of the said Act and this Section does not apply to basic school or a Junior High School. For all these persons and in the absence of any specific provisions in this behalf-none having been pointed out to us-maintenance grant payable to the basic school or Junior High School which has been upgraded as High School cannot and does not automatically become payable to the recognised High School. Suppose after a Basic School or a Junior High School has been upgraded as a recognised High School, the State Government stops payment of the amount of maintenance grant which was being paid to the Basic School or the Junior High School, can the recognized High School claim as a matter of right that the said amount has become automatically payable to it. The answer, in the absence of any specific provision permitting such automatic transformation, so to speak will, in our opinion, have to be in the negative. Such a recognized High School will have to wait till maintenance grant payable to it as a recognized High School has been fixed as contemplated by Section 2(c) of U.P. Act 24 of 1971. Consequently, even if the maintenance grant payable to a Basic School or a Junior High School is continued to be paid to those who were managing the erstwhile Basic School or Junior High School it cannot be said that the upgraded recognized High School is receiving any maintenance grant as defined in Section 2(c) of U.P. Act 24 of 1971."
29. The State having realized the difficulty caused in payment of salary to teachers of such upgraded instituted introduced Section 13-A in the Act of 1978, which is extracted hereinafter:-
"[13A. Transitory provisions in respect of certain upgraded institutions. - (1) Notwithstanding anything contained in this Act, the provisions of this Act shall, mutatis mutandis apply, to an institution which is upgraded to High School or Intermediate standard and, to such teachers and other employees thereof in respect of whose employment maintenance grant is paid by the State Government to such institution.
(2) For the purposes of this section the reference to the students wherever they occur in section 5, shall be construed as reference to the students of classes up to junior High School level only.]"
30. Section 13-A adequately takes care of transitory situation caused on account of upgradation of a Junior High School to High School, or Intermediate level, till maintenance grant is sanctioned under the Act of 1971. It duly protects all teachers who were receiving salary out of maintenance grant sanctioned to Junior High School under the Act of 1978. Such benefit would be confined to teachers and other employees of the institution who were already receiving salary from the maintenance grant received under the Act of 1978 to the institution prior to its recognition/upgradation.
31. Consequent upon upgradation of the institution to High School or Intermediate level, therefore, no additional financial obligation would be imposed upon the State as any additional post would have to be created only after complying with the requirement contained in the Act of 1971 and not otherwise.
32. In Manju Awasthi's case (supra), the Division Bench confined the scope of applicability of the Act of 1978, as well as jurisdiction of Basic Shiksha Adhikari to the extent of payment of salary alone and it was categorically held that the Basic Shiksha Adhikari cannot exercise any administrative control over the institution except to the extent of payment of salary. Making of any appointment by the Basic Shiksha Adhikari was also made impermissible in view of the applicability of the 1921 and 1982 Acts. Para 77 of the judgment in Manju Awasthi's case (supra) is extracted hereinafter:-
"77. We are 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 institution except to the extent of payment of salary nor can make any appointment in view of the applicability of 1921 and 1982 Acts. The judgment of Hon'ble Single Judge in Committee of Management Beni Singh Vaidic Vidyawati Inter College, Baluganj, Agra and others (supra) to that extent cannot be approved. It is relevant to note that against the judgment of Hon'ble Single Judge dated 7.9.2005 in Committee of Management Beni Singh Vaidic Vidyawati Inter College, Baluganj, Agra and others (supra) special appeal No. 1419 of 2005, Agam Prakash Deepak Vs. State of U.P. was filed, which appeal was also dismissed on 29.11.2005."
33. The aforesaid observation clearly lend support to the view taken by this Court that the appointment of teachers in an institution upgraded under Section 7-A(a), would be regulated by the provisions of 1921 Act and 1982 Act.
34. An additional aspect that arises incidentally may also be noticed, at this stage. Under the Act of 1982 all appointments in a High School or Intermediate Institution is made only in L.T. Grade or in Lecturer Grade whereas appointments in the Junior High School made in C.T. Grade. The consequence of a teacher of Junior High School appointed in C.T. Grade due to his upgradation to the High School also needs to be clarified. The appointments in C.T. Grade were made in an institution recognized under the Act of 1921 also and it was only under a Government Order dated 11.8.1989 that C.T. Grade itself was declared as a dying cadre. A further provision was made vide Government Order dated 4.9.1990 for the teacher appointed in C.T. Grade who has completed 10 years service to become entitled to payment of salary in L.T. Grade. A further provision was made in the Government Order that as and when a teacher appointed in C.T. Grade attains the age of superannuation the resulting vacancy caused would be of a teacher in L.T. Grade and not C.T. Grade. The relevant portions of the Government Orders dated 11.8.1989 and 4.9.1990, in that regard, are reproduced hereinafter:-
Government Order dated 11.8.1989:-
"उपर्युक्त विषयक श्री हरि प्रसाद पाण्डेय, अपर शिक्षा निदेशक (मा०) उत्तर प्रदेश इलाहाबाद के प्रदेश के समस्त मण्डलीय उप शिक्षा निदेशकों/ समस्त मण्डलीय बालिका विद्यालय के निरीक्षकाओं को सम्बन्धित अर्द्धशासकीय पत्र संख्या सा०1/ तृतीय/116-1280/1989-90 दिनाँक 20 जून,1989 तथा उक्त अधिकारियों और प्रदेश के समस्त जिला विद्यालय निरीक्षकों को सम्बोधित रेडियोग्राम संख्या- सी०टी० 1000-1150-89-90, दिनाँक 20 जून, 1989 की ओर आपका ध्यान आकृष्ट करते हुये मुझे यह कहने का निर्देश हुआ है कि प्रदेश के विभिन्न वर्गों के शिक्षकों के वेतनामनों के पुनरीक्षण हेतु गठित "वेतन पुनरीक्षण समिति 1989" के प्रतिवेदन के अध्ययन- दो में प्रस्तर 3-10(2) में की गयी संस्तुतियों के आलोक में शिक्षा निदेशालय, उत्तर प्रदेश, इलाहाबाद द्वारा जारी किए गये।
उपर्युक्त आदेशों की समग्र रूप से सहर्ष पुष्टि करते हैं और कार्योत्तर अनुमोदन प्रदान करते है।
2. मुझे यह भी कहना है कि यह सुनिश्चित करने की कृपा करें कि अशासकीय मान्यता प्राप्त उच्चतर माध्यमिक विद्यालयों तथा गैर सहायता प्राप्त उच्चतर माध्यमिक विद्यालयों में सी०टी० ग्रेड में कोई भी पद सृजित न किए जायें और न ही किसी अध्यापक की नियुक्त ही की जाय।
इन आदेशों का पालन कड़ाई से सुनिश्चित कराया जाय।"
xxx xxx xxx Government Order dated 4.9.1990:-
"उपर्युक्त विषयक निदेशालय के अर्द्ध० शा० प० सां० (1)/तृतीय शिविर 24116/89-90 दिनांक 17-10-89 के संदर्भ में मुझे यह कहने का निर्देश हुआ है कि आपके उक्त पत्र में उल्लिखित जिज्ञासाओं का बिन्दुवार स्पष्टीकरण संलग्न है।
संलग्नक- उपरोक्तानुसार।
भवदीय, (अशोक गाँगुली) अनु सचिव।
शा०सं०6039/15-7-89-1(136)/89 दिनाँक 4 सितम्बर,1990 का संलग्नक जिज्ञासायें स्पष्टीकरण
1. प्रशिक्षित अधिस्नातक वेतनक्रम (मृत संवर्ग) ने कार्यरत शिक्षकों द्वारा बिना वेतन अवकाश, चिकित्सा अवकाश, प्रसूतिस्थ अवकाश, निलम्बन के कारण अल्पकालिक रिक्तियों में छात्रों के पठन पाठन को देखते हुए प्रबन्ध तन्त्र द्वारा नियुक्त अध्यापकों का अनुमोदन निरीक्षक द्वारा दिया जाय अथवा नहीं।
2. सी०टी० वेतनक्रम में मौलिक रिक्ति की स्थिति जो मृत्यु, सेवा निवृत्ति, पद त्याग के कारण या अन्यथा हुई हो या भविष्य में हों उस पर सी०टी० वेतनक्रम में नियुक्त की जायेगी अथवा नहीं ? यदि नहीं तो क्या पद स्वतः एल०टी० वेतनक्रम में परिवर्तित मानकर नियमानुसाल नियुक्ति की जायेगी।
3. इण्टरमीडिएट शिक्षा अधिनियम 1921 की धारा 16(ड़), 16(च), 16 (च च) के अन्तर्गत निर्मित विनियमों के अध्याय दो के विनियम-1 में विनिर्दिष्ट परिशिष्ट "क" के अन्तर्गत जूनियर कक्षाओं (कक्षा-6,7 और 8) को अध्यापन करने वाले अध्यापकों की न्यूनतम निर्धारित शौक्षिक/प्रशिक्षण अर्हता अब क्या होगी?
4. कतिपय प्रबन्धतन्त्रों ने मौलिक रिक्तियों में 13-5-89 के बाद तदर्श नियुक्तियाँ कर ली है क्या इन्हें अनुदान आगणन हेतु अमान्य किया जाय।
1. जूनियर कक्षाओं में पठन पाठन प्रभावित होने के फलस्वरूप अल्पकालिक रिक्तियों में नितान्त अस्था नियुक्ति की अनुमति दी जाय परन्तु जिन शिक्षकों का वेतन निर्धारण राजाज्ञा सं०-4749/15-8-89-3087/89, दिनांक 4-10-1989 द्वारा अल०टी० वेतनक्रम में हो गया है या हो जाय उनके स्थान पर एल०टी० वेतनक्रम हेतु अर्ह अध्यापक ही नियुक्त किये जायें।
2. सी०टी० वेतनक्रम मृत संवर्ग शासन द्वारा घोषित किया जा चुका है। सी०टी० वेतनक्रम के मौलिक पद की रिक्त की तिथि से पद स्वतः एल०टी० वेतनक्रम में परिवर्तित माना जायेगा और नियमानुसार नियुक्तियाँ प्रशिक्षित स्नातक वेतनक्रम में होंगी।
3. स्नातक तथा प्रशिक्षित या इसके समक्ष कोई अन्य प्रशिक्षण अर्हता।
4. वेतन पुनरीक्षण समिति उत्तर प्रदेश 1989 के प्रतिवेतन के अध्याय-2 के प्रस्तर-2- 11(7) के अन्तर्गत सी०टी० ग्रेड को डाइंग कैडर तथा भविष्य में एल०टी० वेतनक्रम में नियुक्त करने की संस्तुति को शासन ने राजाज्ञा सं० वे० आ०-2-1235/दस-1989/जी-89, दिनाँक-19-5-1989 द्वारा भी स्वीकार कर लिया है। अतः सी०टी० वेतनक्रम में मौलिक रिक्ति में की गई तदर्थ नियुक्ति अमान्य की जाय और अनुदान आगणन हेतु न माना जाय।"
35. Once the teachers appointed in the Junior High School become the teacher of upgraded institution under the Act of 1921 on account of grant of recognition under Section 7A(a) of the Act, the teachers appointed in C.T. Grade would continue in the same cadre and would be entitled to benefit of the aforesaid Government Orders, inasmuch as, they would be entitled to grant of L.T. Grade upon completion of 10 years working in the C.T. Grade and after their retirement the vacancy created would be a vacancy in the L.T. Grade and would be filled in accordance with the Act of 1982.
36. Having examined the central issue arising in all these petitions, it would now be appropriate to deal with the factual aspects that require examination in individual cases. Learned counsel for the parties have placed facts in the leading writ petition no.5512 of 2018 (Rana Vijendra Pratap Singh Vs. State of U.P. and others), and therefore it is being dealt with at the outset. Challenge is laid in the leading petition to an order dated 24.1.2018, contained in Annexure-13 to the writ petition. The District Basic Education Officer, Ballia has rejected claim of petitioner for being transferred pursuant to the order dated 22.10.2016, and repatriated him to his substantive post of Assistant Teacher in Chakphool Kisan Mazdoor Inter College, Chakphool, Ballia.
37. It appears that petitioner was appointed as Assistant Teacher in Chakphool Kisan Mazdoor Inter College, Chakphool, Ballia, which is a recognized Junior High School and was subsequently granted recognition to run higher classes under section 7-A(a) of the Act of 1921. Petitioner claims that his appointment was approved on 23.11.1994 by the District Basic Education Officer. However, the approval order is not on record. It is alleged that despite the order of approval since salary had not been paid to him and he was being continuously harassed by the Committee of Management, the petitioner was compelled to file Writ Petition No.58514 of 2008, which was disposed of with a direction upon the Assistant Director (Basic) to examine grievance of the petitioner. This order, however, is not on record. It is further alleged that an enquiry was instituted to look into the grievance of the petitioner and based upon such enquiry the petitioner was attached to Srinath Baba Inter College, Jaam, Ballia. The alleged attachment order is also not on record. It is further stated that an order dated 29.1.2015 was passed for payment of salary to petitioner, but the arrears were not paid. The order dated 29.1.2015 has also not been annexed. Petitioner, however, asserts that an application was submitted by him for his transfer from Chakphool Kisan Mazdoor Inter College, Chakphool, Ballia to Janta Uchchatar Madhyamik Vidyalay, Ballia and the Committee of Management issued a No Objection Certificate on 30.5.2016 for such transfer. It is asserted that petitioner moved an application before the District Basic Education Officer for his transfer on 9.9.2016, upon which certain comments were called for and an enquiry report was also submitted on 30.10.2016. According to the petitioner, No Objection Certificate was also issued by Janta Ucchatar Madhyamik Vidyalaya, Singhpur, Ballia for his transfer. An order passed by the District Basic Education Officer dated 22.10.2016 has been brought on record as per which petitioner's transfer from Chakphool to Janta has been approved.
38. The records further reveal that the District Basic Education Officer called upon the respondent no.3 institution to submit all records relating to petitioner's transfer vide letter dated 14.7.2017. This letter is stated to have been replied by the institution concerned stating that records have already been submitted earlier and there is no justification in asking for all these records again. The District Basic Education Officer on 8.8.2017 has again called for records from the institution concerned. According to the petitioner, this letter was also responded by the Management of the respondent no.3 institution in favour of the petitioner. It is in this context that the District Basic Education Officer has passed an order dated 14.8.2017 stopping payment of salary to petitioner unless all relevant records are made available with regard to his appointment and transfer. Subsequent correspondence appears to have been made by the office of the Assistant Director (Basic) which ultimately resulted in passing of the order impugned. The order of the District Basic Education Officer, under challenge, records that no records relating to petitioner's transfer application as also the alleged order passed upon it are available in the office concerned.
39. After the leading writ petition was entertained, Sri Prabhakar Awasthi, Advocate, has filed an application seeking impleadment of the Committee of Management of Chakphool Inter College as respondent no.4, which has been allowed by a separate order of date. It is claimed that in the writ petition an interim order was passed by this Court on 28.2.2018 staying the effect and operation of the order dated 24.1.2018. This order was assailed by the Management of Chakphool Inter College by filing Special Appeal No.166 of 2018. The appeal was disposed of on 12.4.2018 with the direction for the writ petition itself to be heard and decided on merits. A counter affidavit has also been filed by the institution concerned in which it is stated that neither any application for transfer was moved by the petitioner before the institution, nor any No Objection Certificate was given by the Committee of Management. Various allegations have otherwise been made against the petitioner suggesting that petitioner's alleged transfer was a result of manipulation and fraud, and that no valid transfer otherwise existed.
40. In view of the facts, noticed above, this Court on the previous occasion had directed Sri Sanjay Chaturvedi, learned counsel representing the District Basic Education Officer, Ballia to produce all relevant records relating to petitioner's appointment. Learned counsel for the District Basic Education Officer states that there exists no record available in the office concerned with regard to filing of any application by the petitioner for his transfer or for grant of any approval to it by the competent authority.
41. It is in this factual backdrop that petitioner's claim needs to be examined. The institution is a recognized Junior High School and has been granted permission to conduct higher classes under section 7-A of the Act of 1921. Such permission was granted to the institution in the year 2002. The institution was further upgraded under section 7-A(a) of the Act of 1921 in the year 2014. In view of the discussions made in the previous part of this judgment, the application under Rule 18 of the Rules of 1978 itself was not maintainable at the instance of the petitioner when the institution got recognized under the Act of 1921. No permission for transfer could thus be granted by the District Basic Education Officer.
42. However, petitioner's grievance is also examined at the touchstone of the Rules of 1978 in order to ascertain whether petitioner has a case even under the Rules of 1978. Petitioner submits that he had made an application for transfer in terms of the provisions contained in the Rules of 1978. Rule 18 of the Rules of 1978 contemplates transfer of a permanent Headmaster or Assistant Teacher of recognized school from one institution to another. Rule 18 in its entirety is reproduced hereinafter:-
"18. Transfer. - (1) A Permanent Headmaster or Assistant Teacher of a recognised school may, on an application in this behalf, be transferred to another recognised school in which he may be lawfully employed under these rules.
(2) Such application shall be given by tire Headmaster or Assistant Teacher, as the case may be, to the District Basic Education Officer through tire Manager of the school from which the transfer is sought.
(3) The Manager shall along with the application for transfer, forward copies of service book and character roll of such Headmaster or Assistant Teacher, as the case may be, to the District Basic Education Officer.
(4) No transfer shall take effect unless it is agreed to by the managements of the recognised schools concerned and is approved under clause (5).
(5) The approval for the transfer of a Headmaster or Assistant Teacher of a recognised school shall be accorded by:
(i) The District Basic Education Officer in case of transfer from one School to another School within the District;
(ii) The Regional Deputy Director of Education in case of transfer from one School to another School situated in different districts but within the same division;
(iii) Secretary of the Board, in case of transfer from one School to another School situated in different divisions."
43. A bare perusal of the aforesaid rule would go to show that an application for transfer has to be given by the Headmaster or Assistant Teacher to the District Basic Education Officer through Manager of the institution wherefrom transfer is sought. The Manager, thereupon, alongwith application for transfer forwards copies of the transfer application and character role of the Headmaster or Assistant Teacher to the District Basic Education Officer. By virtue of sub-rule (4) such a transfer cannot be given effect to unless it is forwarded by the Management of the concerned recognized institution and is also approved under sub-rule (5). The statutory scheme is absolutely clear. An application for transfer has to be given in the manner prescribed in the rule itself.
44. In the facts of the present case it is admitted to the petitioner that no such application was submitted by him to the District Basic Education Officer through the Manager, nor the Management had ever forwarded such application to the District Basic Education Officer. In case the Management was not forwarding petitioner's application a grievance could have been raised, but no such eventuality exists in the facts of the present case. In the statutory scheme filing of application directly before the District Basic Education Officer is not contemplated. The District Basic Education Officer, in such circumstance, was otherwise incompetent to entertain an application unless it was validly made in the manner prescribed in the rules. In the facts of the present case, it otherwise appears that no such records relating to petitioner's transfer exists in the office concerned. Unless the petitioner can demonstrate that a valid application for transfer in accordance with the provisions of rule 18 had been made and thereupon an appropriate order was passed by the competent authority i.e. District Basic Education Officer, after obtaining approval of the Committee of Managements concerned a valid order of transfer cannot come into existence. Necessary ingredients to attract rule 18 of the Rules of 1978 are not found to exist in the facts of the present case. In such circumstances the District Basic Education Officer has not acted in an unjustified or arbitrary manner in refusing to recognize petitioner's transfer and directing him to report for duty at his parent institution.
45. The institution having been upgraded and recognized under the Act of 1921 the District Basic Education Officer was otherwise incompetent to entertain any application for transfer and, therefore, the petitioner would not be entitled to assert before this Court that a valid transfer order has been passed in his favour. The claim of present petitioner Rana Vijendra Pratap Singh for transfer, therefore, fails and is rejected. Challenge made to the order dated 24.1.2018 passed by the District Basic Education Officer, Ballia, fails. Writ Petition No.5512 of 2018 is dismissed.
46. So far as facts of the other cases are concerned, learned counsel for the parties submit that the determination of larger issue regarding procedure to be followed for appointment of teacher in a recognized privately managed aided Junior High School, which has since been upgraded under Section 7-A(a) of the Act of 1921, would also determine other cases and their individual facts are not required to be considered separately.
47. In that view of the matter, this bunch of writ petitions, except leading Writ Petition No.5512 of 2018, are finally disposed of in terms of the discussions and directions contained hereinafter.
48. In view of the aforesaid discussions this Court comes to the conclusion that consequent upon grant of recognition under Section 7A(a) of the Act of 1921 to a erstwhile Junior High School, the procedure for appointment of teachers therein would be regulated by the Act of 1982 and the Act of 1921. As recruitment in most of such upgraded institution is stalled on account of lack of clarity on the subject, notwithstanding authoritative pronouncement of law in Smt. Manju Awasthi's case (supra), it is expedient in the interest of justice to issue following directions:-
(i) The District Basic Education Officer of each district shall intimate details of all recognized and aided Junior High Schools, which have been upgraded under Section 7-A(a) of the Act of 1921, to the District Inspector of Schools concerned, specifying the strength of sanctioned teachers therein, who are entitled to receive salary from the State under the Act of 1978, as also the existing vacancies on the post of teachers in each of such institutions by 15th February, 2019.
(ii) The District Inspector of Schools shall proceed forthwith to send requisition in respect of such vacancies to the U.P. Secondary Education Service Selection Board under Section 10 of the Act of 1982, within three weeks thereafter.
(iii) The U.P. Secondary Education Service Selection Board is requested to expedite the process of recruitment for all posts requisitioned, as directed above, and conclude it at the earliest possible, preferably by 15th of June, 2019, so that adequate number of teachers are made available to the institutions concerned by 1st July, 2019.
(iv) In order to meet immediate requirement of teachers against existing substantive vacancies, till regular selections are made by the Board, it would be open for the Institutions concerned to approach the District Inspector of Schools for providing services of teachers to them. The Inspector shall forthwith provide services of teachers from the pool of retired teachers created vide Government Order dated 26th October, 2017. Such teachers shall continue to work in the institutions concerned till regular teachers are made available by the Board.
49. Before concluding it would be necessary to invite immediate attention of the State Government to certain important aspects which require consideration at its end. First and foremost it is emphasized that U.P. Act No.18 of 1987 permitted employment of part-time teachers by the Management under Section7-AA, for imparting instructions in any subject or group of subjects or for higher classes or of an existing class for which permission is granted under Section 7-A, from its own resources, only as an interim measure. Some mechanism has to be evolved by the State for recruitment of regular teachers against it as the interim measure cannot continue indefinitely. More than three decades have otherwise gone by but the interim arrangement continues. Part-time teachers engaged under Section 7-AA by the private Managements although possess minimum qualification prescribed for regular teachers and are also performing functions of a regular teacher yet they are invariably paid much lesser salary and have also to face naked hire and fire policy without much safeguards. The State must evaluate as to whether such teachers would be able to provide quality education to the students. Desirability of having two different set of teachers drawing different salary and governed by different set of rules, in the same institution, may also be examined.
50. A mechanism would also be required to be evolved for the upgraded institutions under Section 7-A(a) of the Act of 1921 to be brought within the purview of the Payment of Salaries Act, 1971. The language of Section 13-A of the Act of 1978 clearly shows that the provision itself is transitory in nature. Once the institution is upgraded under Section 7-A(a) of the Act of 1921 the provisions of the Act of 1921 and the Act of 1982 get attracted and it is the department of Secondary Education which would then regulate such upgraded institutions. The association of the office of District Basic Education Officer for the purposes of payment of salary must remain for a limited period, inasmuch as the Department of Basic Education and Secondary Education are otherwise separate and distinct and their overlapping often results in uncalled for controversies. Moreover, ultimately it is the State Exchequer which has to bear the financial burden incurred for payment of salary to teachers of upgraded institutions and it is immaterial whether salary is paid under the Act of 1971 or under the Act of 1978. No additional financial burden would otherwise arise upon the State.
51. Copy of this judgment shall be provided to the learned Chief Standing Counsel within 48 hours for being placed before the Chief Secretary of the State of Uttar Pradesh as also the Additional Chief Secretary of the Department of Secondary and Basic Educations for compliance of the directions issued in this judgment.
52. No order is passed as to costs.
Order Date :- 16.1.2019 Ashok Kr./Anil/Ranjeet Sahu (Ashwani Kumar Mishra, J.)