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Special Appeal No. 170 of 2005 District Basic Education Officer and another Vs. Shree Krishna Tripathi has been filed challenging the judgment and order of Hon'ble Single Judge dated 13.1.2005, passed in writ petition No. 29697 of 2004, Shree Krishna Tripathi Vs. State of U.P. Writ petition No. 29697 of 2004 was filed by Shree Krishna Tripathi, who was working as a Clerk in the institution, challenging the order dated 1.7.2004 by which he was superannuated at the age of 58 years. Shree Krishna Tripathi was appointed as clerk in the Junior High School, which Junior High School was upgraded from Junior High School to High School by order dated 19.2.1997. The upgraded institution was not receiving any grant-in-aid. The writ petitioner after having completed 58 years was directed to be superannuated in accordance with the provisions of the U.P. Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Ministerial Staff and Group 'D' Employees) Rules, 1984. The said order was challenged by the writ petitioner contending that institution having been upgraded, his service conditions shall be governed by U.P. Intermediate Education Act, 1921 and the Rules framed thereunder and the date of retirement under the Regulations being 60 years, he cannot be asked to be retired at the age of 58 years. Hon'ble Single Judge allowed the writ petition and quashed the order of retirement at the age of 58 years and directed that writ petitioner should be allowed to continue till 60 years. Hon'ble Single Judge held that after up gradation of institution, the service conditions of the employees shall be governed by U.P. Intermediate Education Act,1921 and Regulations framed thereunder. The District Basic Education Officer as well as the Assistant Director of Education Basic have filed the Special Appeal challenging the said judgment.

Learned counsel for the appellants in support of their appeals submitted that the Junior High School which was receiving grant-in-aid were upgraded as High School/Intermediate college under section 7-A(a) of the U.P. Intermediate Education Act, 1921 which recognition clearly contemplated that recognition is without finance (Vitta Vihin) and no post having been created for the High School or Intermediate colleges, only post on which payment of salary is made is post of Head Master of Junior High School, hence, no error has been committed in making selection on the post of Head Master or Head Mistress of Junior High School level as the provisions of 1978 Rules regarding selection and appointment of head master/ Head Mistress still continues and no exception can be taken to selection on the post of Head Master/ Head Mistress of Junior High School. It is submitted that post of Principal of High School or Intermediate college having not been created, no appointment can be made on the post of Principal of Intermediate college under the U.P. Intermediate Education Act, 1921 and U.P. Act No. 5 of 1982. Reliance has also been placed on the Government Order dated 24.11.2001 which provided that administrative control of Basic Shiksha Adhikari shall continue with regard to the post which were receiving grant-in-aid at the Junior High School level even after upgradation of the institution. It is further submitted that the institution is continued to be managed by the Head Master of the Junior High School even after upgradation who performs all administrative functions. The selection made by the Basic Shiksha Adhikari has been supported by learned counsel for the appellant assailing the judgment of Hon'ble Single Judge allowing the writ petitions. Learned counsel appearing for the District Basic Education Officer, Sri K. Sahi, has also contended that Basic Shiksha Adhikari continues to have administrative control over the institution since salary is being paid from grant-in-aid received by the institution at Junior High School level which is being disbursed by the Basic Shiksha Adhikari.

Learned Additional Advocate General in his submissions relying on the affidavit of Secretary Department of Secondary Education submitted that after upgradation of Junior High School as High School/ Intermediate, the identity of Junior High School is lost although the teachers who were working at Junior High School level shall be paid salary even after upgradation of Junior High School and the provisions of U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 shall not be applicable. The upgraded institution shall be governed by the approved scheme of administration undere U.P. Intermediate Education Act, 1921. Recognition which have been granted under section 7A are recognition without finance (Vitta Vihin) and the institution is to be run by part time teachers appointed under section 7AA of the Act. In so far as part time teachers are concerned no post are created for them and their service conditions are to be governed by the Government Order dated 10.8.2001. The Head Master of the Junior High School however, shall continue to function as Head Master but he shall be receiving the salary of Junior High School level. For disciplinary action against the teachers of the upgraded institutions, the provisions of U.P. Act No. 5 of 1982 shall be applicable only to the teacher who are receiving the grant-in-aid up to Junior High School, further so far as part time teachers are concerned they will be governed by the Government Order dated 10.8.2001. The report which has been brought on record by means of affidavit of the Secretary has also made certain recommendations regarding bringing certain amendments in 1978 Rules and U.P. Act No. 5 of 1982.

"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."