Allahabad High Court
C/M Standard Intermediate College ... vs The State Of U.P. And 6 Others on 13 August, 2019
Bench: Sudhir Agarwal, Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 23.04.2019 Delivered on 13.08.2019 Court No. - 34 (1) Case :- SPECIAL APPEAL No. - 503 of 2019 Appellant :- C/M Standard Intermediate College Mau-Aima and others Respondent :- State of U.P. and others Counsel for Appellant :- Pradeep Kumar Upadhyay, Sri Ashok Khare Counsel for Respondent :- C.S.C., Amit Saxena, Ashok Kumar Yadav, Harsh Vardhan Gupta, Ramesh Chandra Dwivedi, Sanjay Chaturvedi,Vikram Bahadur Singh (2) Case :- SPECIAL APPEAL No. - 549 of 2019 Appellant :- Committee Of Management, Arya Inter College Baroda Muzaffar Nagar and others Respondent :- State of U.P. and others Counsel for Appellant :- Grijesh Tiwari Counsel for Respondent :- C.S.C., Amit Saxena, Sanjay Chaturvedi, Shashi Kant Verma (3) Case :- SPECIAL APPEAL No. - 550 of 2019 Appellant :- Sri Nehru Junior High School and another Respondent :- Rana Vijendar Pratap Singh and others Counsel for Appellant :- Sanjay Kumar Singh, Rajesh Kumar Singh Counsel for Respondent :- C.S.C., Ramesh Chandra Dwivedi, Sanjay Chaturvedi (4) Case :- SPECIAL APPEAL No. - 551 of 2019 Appellant :- The Committee of Management, Jawahar Lal Nehru Smarak Inter College and others Respondent :- State of U.P. and others Counsel for Appellant :- Fuzail Ahmad Ansari, Ashok Khare, Senior Advocate Counsel for Respondent :- C.S.C., Amit Saxena (5) Case :- SPECIAL APPEAL No. - 438 of 2019 Appellant :- Shrikant Singh and another Respondent :- State of U.P. and others Counsel for Appellant :- Siddharth Khare, Ashok Khare,Senior Advocate Counsel for Respondent :- C.S.C., Deo Dayal, Prabhakar Awasthi (6) Case :- SPECIAL APPEAL No. - 397 of 2019 Appellant :- C/M Janta Jagiriti Higher Secondary School Respondent :- State of U.P. and others Counsel for Appellant :- Awadh Narain Rai Counsel for Respondent :- C.S.C., Amit Saxena, Ramesh Chandra Dwivedi, Sanjay Chaturvedi Hon'ble Sudhir Agarwal, J.
Hon'ble Rajendra Kumar-IV, J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. All these appeals have arisen from a common judgment dated 16.01.2019 passed by learned Single Judge deciding nine Writ Petitions collectively. Basic issue raised in all these appeals is that Junior High School when granted recognition under Section 7-A(a) of U.P. Intermediate Education Act, 1921 (hereinafter referred to as "U.P. Act, 1921") and upgraded to High School, if any vacancy of Teacher arises in such Institution subsequently whether it would be filled in following procedure laid down under U.P. Basic Education Act, 1972 (hereinafter referred to as "U.P. Act, 1972") read with U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (hereinafter referred to as "Rules, 1978") or for administrative and other purposes the Institution would be deemed to be governed by provisions of U.P. Act, 1921 and recruitment would be governed by provisions of U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as "U.P. Act, 1982"). Learned Single Judge has taken the view that once Institution is upgraded or recognition upto High School is granted under Section 7-A(a), provisions of U.P. Act, 1921 would be attracted and in such a case any vacancy of teaching staff caused in such Institution, would have to be filled in as per the provisions of U.P. Act, 1982.
2. Before considering the merits of the matter, it would be appropriate to have a brief retrospect of the facts giving rise to these appeals.
3. Special Appeal No. 503 of 2009 (hereinafter referred to as "Appeal-1") relates to Writ Petition No. 5512 of 2018 (Rana Vijendra Pratap Singh Vs. State of U.P.) decided vide judgment under appeal. Writ Petition was filed by sole petitioner Rana Vijendra Pratad Singh (hereinafter referred to as petitioner-respondent-7 in Appeal-1) praying for a writ of certiorari quashing the order dated 24.01.2018 whereby District Basic Education Officer (hereinafter referred to a "DBEO") cancelled transfer order dated 22.10.2016 transferring petitioner-respondent-7 in Appeal-1 from Chakphool Kisan Majdoor Inter College, Chakfool, Ballia to Janta Uchchaytar Madhyamik Vidyalaya, Singhpur, Ballia passed by the then DBEO, Ballia and he was directed to join his original post of Assistant Teacher in the parent School, i.e., Chakphool Kisan Majdoor Inter College, Chakphool, Ballia.
4. Petitioner-respondent-7 in Appeal-1 was appointed initially as Assistant Teacher in Chakphool Kisan Majdoor Junior High School, Ballia which was subsequently recognized and upgraded as Intermediate College and became Chakphool Kisan Majdoor Inter College, Chakphool, Ballia and thereafter is being governed by the provisions of U.P. Act, 1921. Appointment of petitioner-respondent-7 in Appeal-1 was made as Assistant Teacher on 23.11.1994. He sought his transfer to Janta Uchchattar Madhyamik Vidyalaya, Singhpur, District Ballia and submitted application before DBEO. It was allowed by the then DBEO vide order dated 22.10.2016. It was challenged in Writ Petition No. 12990 of 2017 before this Court. During pendency of writ petition, matter was re-examined by DBEO and he found that Institution, being Secondary Educational Institutions transfer was not made in accordance with Rules and consequently cancelled order dated 22.10.2016 vide order dated 24.01.2018.
5. In the counter affidavit filed on behalf of respondent-4, it was pointed out that Chakphool Kisan Majdoor Intermediate College, Chakphool, Ballia initially was a Junior High School recognized temporarily in July, 1978 under the provisions of U.P. Act, 1972. Permanent recognition upto Junior School was granted on 18.08.1983. Thereafter it was upgraded and recognized by U.P. Board of High School and Intermediate, Allahabad (hereinafter referred to as "U.P. Board") upto High School in 2002 and upto Intermediate Classes on 31.07.2014. Petitioner-respondent-7 in Appeal-1 was appointed as Assistant Teacher in 1994 when the said College was a Junior High School. No application was submitted by petitioner-respondent-7 in Appeal-1 seeking consent of Committee of Management, Chakphool Kisan Majdoor Inter College, Chakphool, Ballia and his transfer was clearly illegal and has rightly been cancelled. It is said that after upgradation, Institution would be governed by provisions of U.P. Act, 1921 hence DBEO had no power of transfer with reference to Rule 18 of Rules, 1978 which are applicable to Junior High Schools. Chakphool Junior High School was taken in grant-in-aid under the provisions of U.P. Junior High Schools (Payment of Salaries of Teachers and Other Employees) Act, 1978 (hereinafter referred to as "U.P. Act, 1978") by order dated 16.12.1998.
6. Special Appeal No. 549 of 2019 (hereinafter referred to as "Appeal-2") has been filed challenging order dated 16.01.2019 relating to Writ Petition No. 5512 of 2018. Appellant in this case are Committee of Management of; (a) Arya Inter College, Baroda Muzaffar Nagar, (b) Vishwakarma Inter College, Nara, Jarauda, Muzaffar Nagar, (c) Nehru Inter College, Kasauli, Muzaffar Nagar, (d) Raj Kumar Janta Inter College, Falauda, Muzaffar Nagar, (e) Naujagriti High School Purbaliyan and (f) Pran Nath Inter College, Ratanpuri, Inchauli, Muzaffar Nagar. All these Institutions were initially Junior High Schools but subsequently given recognition for High School Classes by U.P. Board by various orders as detailed below:
Sl.No. Name of College Date of Order Classes for which recognition was granted under Section 7A(a) of U.P. Act, 1921 1 Arya Uchchattar Madhyamik Vidyalaya, Baroda, Muzaffar Nagar 05.09.1992 Ninth 2 Raj Kumar Janta Junior High School, Falauda, Muzaffar Nagar 04.11.1993 Ninth 3 Vishwakarma Junior High School, Nara, Jarauda, Muzaffar Nagar 16.02.1995 Ninth 4 Pran Nath Uchchattar Madhyamik Vidyalaya, Ratanpuri, Muzaffar Nagar 25.02.1997 Ninth 5 Arya Uchchattar Madhyamik Vidyalaya, Baroda, Muzaffar Nagar
07.03.2005 Eleventh 6 Vishwakarma Uchchattar Madhyamik Vidyalaya, Nara, Jarauda, Muzaffar Nagar 26.09.2001 Eleventh 7 Naujagriti Janta Junior High School, Purbaliyan, Muzaffar Nagar 27.10.2001 Ninth 8 Raj Kumar Janta Inter College, Muzaffar Nagar 13.08.2010 Eleventh
7. Other facts are similar to Appeal-1 since judgment relating to same Writ Petition as in Appeal-1 is under challenge in this Appeal also, therefore we are not repeating the same.
8. In Special Appeal No. 550 of 2019 (hereinafter referred to as "Appeal-3") judgment in question relating to Writ Petition No. 5512 of 2018 has been assailed and has been filed by Committee of Management, Sri Nehru Junior High School, Khamauna Raisipur, Varanasi through its Manager. It is stated in the affidavit accompanying Stay Application that Sri Nehru Junior School was granted recognition by U.P. Basic Education Board and also brought in grant-in-aid. Staff, teaching and non-teaching, was approved on 07.05.1984 by competent authority for the purpose of salary under U.P. Act, 1978. Subsequently, the said Institution was granted recognition upto High School and also Intermediate by U.P. Board though such recognition is without financial assistance. For rest of the facts, appellant in this appeal is relying on the Writ Petition which is subject matter of Appeal-1, therefore we are not repeating the same.
9. Special Appeal No. 551 of 2019 (hereinafter referred to as "Appeal-4") has been filed by various Institutions through respective Committee of Management and names of Institutions are as under:
(A) Jawahar Lal Nehru Smarak Inter College, Ausanganj, District Pratapgarh, (B) Feroz Intermediate College, Patna, District Pratapgarh, (C) Sharinath Laghu Madhyamik Vidyalaya Redhigarapur, District Pratapgarh, (D) Satyendra Bahadur Singh Intermediate College, Rajapur Bindhan Kunda, District Pratapgarh, (E) Parmeshwar Prasad Intermediate College, Maladhar Chatta, District Pratapgarh, (F) Bhagwati Devi Uchchatar Madhyamik Vidyalaya, Poore Budhidhar, Babaganj, District Pratapgarh, (G) Kamla Nehru Balika Inter College, Lalganj, District Pratapgarh, (H) Kisan Majdoor Inter College, Narayanpur, District Pratapgarh, (I) Sri Durga Smarak Intermediate College, Dhikuhi Khempur, District Pratapgarh (J) Bhagwati Deen Mishra Intermediate College, Tarapur, District Pratapgarh (K) Ram Narayan Inter College, Patti, District Pratapgarh (L) Intermediate College, Para Hamidpur, District Pratapgarh
10. Here also judgment under question relates to Writ Petition No. 5512 of 2018. In the affidavit accompanying Stay Application in para-3, it is generally stated that all the appellants are upgraded Institutions recognized upto Intermediate Classes by U.P. Board under Section 7A(a) of U.P. Act, 1921 but the said recognition is without any financial assistant and grant-in-aid is available only upto Junior High School. Facts are same hence we are not repeating the same.
11. Special Appeal No. 438 of 2019 (hereinafter referred to as "Appeal-5") has been filed by Shrikant Singh and Vibha Singh assailing judgment dated 16.01.2019 insofar as it relates to Writ Petition No. 13274 of of 2017 (Shrikant Singh and others Vs. State of U.P. and others). The writ petition was filed initially by four petitioners, namely, Srikant Singh, Vibha Singh, Pankaj Kumar Singh and Jitendra Pratap Yadav praying for a writ of certiorari for quashing order dated 12.09.2016 passed by DBEO, Chandauli holding appointment of petitioners invalid and consequently rejecting petitioners' representation. Facts in brief disclosed in the writ petition are that Janta Junior High School, Nai Bazar, Mahesua, Sakaldiha, Chandauli was recognized and aided Junior High School governed by the provisions of U.P. Act, 1972 and Act, 1978. The Institution was granted recognition by U.P. Board upto High School though the said recognition was without any financial assistant. It is said that posts existing in the Institutions, were such which were sanctioned by competent authority under the provisions of Act, 1978 in the Junior High School and no new post was sanctioned for the High Schools Classes. There were four posts of Assistant Teacher vacant hence Management proceeded to make appointment for the said post in accordance with provisions of Rules, 1978. The selection was held on 24.09.2015 and petitioners were selected. The documents were forwarded to DBEO, Chandauli for his approval but having received no response, petitioner Srikant Singh filed Writ Petition No. 14061 of 2016 and petitioners Pankaj Kumar Singh and Jitendra Pratap Yadav filed Writ Petition No. 24750 of 2016. Both were disposed of vide judgment dated 31.03.2016 and 25.05.2016 directing DBEO, Chandauli to take a decision in the matter of selection and appointment of the said petitioners. Thereupon DBEO, Chandauli passed order dated 12.09.2016 rejecting claim of petitioners. Petitioners challenged order dated 12.09.2016 in Writ Petition No. 47111 of 2016 wherein following order was passed on 03.10.2016:
"By relief (iii) of the petition, the petitioners have sought for declaration to the effect that Rule 8 of the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Condition of Service of Teachers) Rules, 1978 is ultra-vires.
From the roster it appears that the matters, where vires of Central/State Legislation is challenged, are to be placed before a Division Bench which currently is presiding in Court No.10.
In view of the above, let this matter be put up before the Stamp Reporter so as to submit a fresh report as to whether the matter would be cognizable by a Division Bench or a single Judge Bench. In case it is found that the matter is cognizable by a Division Bench, then the matter shall be put up on 17th October, 2016 before the appropriate Division Bench. If it is found that the matter would be cognizable by single Judge Bench, then same shall be put up before the appropriate single Judge Bench.
When the matter is listed next, name of Sri K. Ajit shall be shown from the respondents side."
12. Matter stood transferred to Division Bench and vide judgment dated 17.10.2016, writ petition was disposed of passing following order:
"Heard Sri K.S. Kushwaha, learned counsel for the petitioners and Sri K. Ajeet, learned counsel for the respondents.
This writ petition challenges the order dated 12.09.2016 passed by the third respondent, rejecting approval to the appointment of the petitioners who are selected as Assistant Teachers.
One more writ petition, bearing Writ Petition No.54659 of 2015 (Ghanshyam Pathak and 19 others vs. State of U.P. and others) is pending in this Court wherein the advertisement dated 6.9.2015 is under challenge. By this advertisement, a selection process for the post of Assistant Teacher was initiated. By order dated 23.09.2015, the learned Single Judge as an interim measure restrained the respondents from finalizing the selection process which was initiated in pursuance of the said advertisement. That order (23.9.2015) was carried in Special Appeal Defective No.113 of 2016. The Division Bench while setting aside the order dated 23.9.2015 granted liberty to the parties to move the learned Single Judge afresh so that the preliminary objection to the maintainability of the writ petition can also be considered along with the grant or refusal to grant, as the case may be, of interim relief. In view of the order dated 15.02.2016 passed in special appeal, the selection process continued and the petitioners were selected. It is not in dispute that after selection they have not been appointed so far. In view thereof and having considered the order dated 12.9.2016, impugned in the present writ petition, learned counsel for the parties have agreed to the disposal of the writ petition by the following order:
It is open to the petitioners to seek intervention in Writ Petition No.54659 of 2015 and to oppose the prayers made in the said writ petition. If any such application is filed, we hope and trust that the learned Single Judge shall allow the said application. It is also open to the parties to the said writ petition either to apply for interim order or for hearing of the writ petition itself. We request the learned Single Judge to pass appropriate orders on such applications or dispose of the writ petition expeditiously. With these observations, this writ petition is disposed of."
13. However, it was subsequently revealed that Writ Petition No. 54659 of 2015 for which Division Bench said that petitioners may seek intervention was already dismissed as not pressed on 07.10.2016 and this fact was not in the knowledge of parties. Petitioners then filed Restoration Application in Writ Petition No. 54659 of 2015 in view of Division Bench's order dated 17.10.2016 but no order was passed therein. Petitioners then were advised that they were only allowed to intervene and writ petition which was dismissed as not pressed at the instance of original petitioners may not be restored on their request. Hence petitioners filed fresh petition, i.e., Writ Petition No. 13274 of 2017 which is subject matter of this appeal. Their contention is that appointment of Assistant Teacher in respect to posts which were sanctioned in Junior High School, irrespective of the fact that Institution has been recognized upto High School, would be governed by provisions of Rules, 1978 and any other view taken by DBEO is illegal and learned Single Judge in taking an otherwise view has erred in law.
14. In Special Appeal No. 397 of 2019 (hereinafter referred to as "Appeal-6) appellant has challenged judgment dated 16.01.2019 in relation to Writ Petition No. 5512 of 2018. This has been filed by Management of Janta Jagriti Higher Secondary Education, Ekadi, District Meerut. As per the facts disclosed by appellants in the affidavit accompanying Stay Application, the above Institution was initially a Junior High School governed by provisions of Act, 1978 and Rules, 1978 read with U.P. Act, 1972. U.P. Board has granted recognition to the said Institution upto High School by order dated 08.09.2000 and Intermediate by 31.12.2005 and has permitted it to make part time appointments under Section 7-A of U.P. Act, 1921. In respect to other facts, it is similar to writ petition subject matter of Appeal-1 and, therefore, we are not reiterating the same.
15. In all these Appeals, basic submission is that despite recognition having been granted by U.P. Board upto High School and Intermediate under Section 7-A of U.P. Act, 1921, appointments of teaching and non-teaching staff in respect to the classes upto Junior High School, Institution would continue to be governed by the provisions of U.P. Act, 1972 read with Rules, 1978 and U.P. Act, 1921 read with U.P. Act, 1982 would not apply. It is in this regard, judgment of learned Single Judge, taking an otherwise view, has been challenged.
16. We find that real issue need be considered by this Court to find out whether judgment of learned Single Judge is correct or not is "whether on recognition as High School, a Junior High School or Basic School would loose its identity and would be governed by provisions applicable to Secondary Schools or in respect to posts upto Junior High School, it would continue to be governed by provisions applicable to a Junior High School."
17. We find that this aspect is covered by a Division Bench Judgment of this Court in Ajay Pratap Rai Vs. District Basic Education Officer 2007 (4) ADJ 357 (DB), wherein Court has held that once an Institution is upgraded to High School level, it would cease to exist as a legal entity as a Junior High School and, therefore, provisions applicable to a Junior High School would not be applicable to govern the same and, on the contrary, it would be governed by provisions applicable to a High School. Court in para-10 of the judgment said as under:
"10. From the aforesaid discussions, it is evident that status of an institution after being upgraded looses its significance and the lower section of the school after upgradation completely merges into the upgraded institution. Interpreting the provisions otherwise would lead to complete absurdity and create a chaotic situation even for governance of the different parts of the same institution. An institution cannot have a multiple Code for its governance. There is no provision permitting continued applicability of the laws in relation to a Junior High School even after its upgradation."
(emphasis added)
18. This view is fortified from the fact that legislature had inserted Section 13-A in U.P. Act, 1978 providing for payment of salary to Teachers and other employees which has received grant-in-aid if it is upgraded and recognition is granted upto High School level. This provision was inserted to take care of a situation where without any grant-in-aid, a Junior High School which is in grant-in-aid, is upgraded and recognition is granted upto High Schol level and since it becomes a secondary educational institution, thereupon previsions of Junior High School will not be applicable, hence to obviate the difficulty in payment of salary to Teachers working upto Junior High School, who were already in grant-in-aid, Section 13-A was inserted and this also supports the view that after upgradation/ recognition granted to a Junior High School upto High School level, Statutes applicable to an institution which is upto Junior High School, become inapplicable.
19. Further this issue that a Junior High School when upgraded or recognized upto High School looses its identity as Junior High School has also has been considered by a Full Bench in State of U.P. and others Vs. District Judge, Varanasi and others 1981 UPLBEC 336, and it has been held that after a basic school or a Junior High School is upgraded as a High School or an Intermediate College, the identity of Institution 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. In fact Section 13-A was inserted after the aforesaid judgment of Full Bench so as to continue payment of salary from State Exchequer under the provisions of Act, 1978.
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.
21. All the appeals lack merits and are dismissed.
22. Interim order(s), if any, stand vacated.
Dt. 13.08.2019 PS Pronounced under Chapter VII R. 2 of High Court Rules, 1952.