All the aforesaid writ petitions raise common questions of facts and law and hence for convenience they are being disposed of by a common order.
U.P. State Electricity Board Inter College, Parichha (hereinafter referred as an Institution) is an Intermediate College run and managed by U.P. Rajya Vidyut Parishad. The Institution is recognised under the provisions of U.P. Intermediate Education Act 1921 and the regulations framed thereunder and the provisions of U.P. Secondary Education (Services Selection Board) Act 1982 and the rules framed therein are applicable. The Institution does not receive grant from the State of UP and liability to pay the salary rest with the U.P. Electricity Board. It is also not in dispute that the U.P. Electricity Board is a State within the meaning of Article 12 of the Constitution of India.
The dispute in these writ petitions is as to whether the regulation framed by the U.P. Electricity Board under Section 79(c) of the Electricity (supply) Act 1948 will govern the service conditions of the teachers who stands appointed in the Institution established by the UP Electricity Board or under Act of 1921.
The dispute arose when on account of vacancy which arose on the post of Principal which was required to be filled up from amongst the eligible senior most lecturer working in the Institution.
An advertisement dated 17.1.2007 was issued by the Company Secretary of the Board for making selection to the various posts including the post of Principal in the Institution. It seems that no selection process was undertaken after advertisement notice and the present petitioner was allowed to continue on the post of the Principal on adhoc basis.
It is contended by learned counsel for the petitioner that the power to make selection vests with the respondent no. 4 i.e. UP Secondary Education Service Selection Board. It is the only power of appointment which vests with the respondent no. 5 & 6. Selection process is to be undertaken by the respondent no. 4 and on its recommendation appointment orders are required to be issued. Respondents no. 5 & 6 have no competence either to issue advertisement or to initiate the selection process for making such appointment.
In this behalf reliance has been placed by the petitioner on U.P. Secondary Education (Services Selection Board) Act 1982. The intent and purpose of promulgating this Act was to constitute the secondary education Commission at the State level to select lecturers and teachers in the institutions recognised under the Intermediate Education Act, 1921. Section 10 of the Act of 1982 provides procedure of selection by direct recruitment. Under Section 11 the Board as soon as may be after the vacancy is notified under sub section (1) of Section 10 hold examination, where necessary and interview of the candidates and prepare a panel of those found most suitable for appointment. Selection shall be conducted by the Selection Committee constituted under the Act. Section 16 of the Act clearly envisages that every appointment of a teacher shall on or after the date of commencement of the UP Secondary Education Services Selection Board (Amendment) Act 2001 be made by the Management only on the recommendation of the Board. Thus any selection process undertaken for making appointment in the Institution has to be done in consonance with the Act of 1982. Advertisement notice issued by the respondents is de-horse the rules as they do not have competence to make the appointment of teachers/staffs in the Institution even though they are being run and managed by the U.P. Rajya Vidyut Parishad.
On the other hand stand of the respondents is that under Section 79 (c) of the Electricity Supply Act 1948 the Board is empowered to make regulations for the duties of officers and other employees of the Board, and their salaries, allowances and other conditions of service. In the light of this Regulation 95 has been issued in the year 1995 and thus the service conditions of the teachers of the concerned 'College' is governed by the U.P. Rajya Vidhut Parishad Shikshak Sewa Viniyamawali, 1995 (hereinafter referred to as the 1995 Viniyamawali).
Empowered under the regulations, advertisement notice was issued for the purposes of filling up the vacancies which had fallen vacant in the Institution run by the Board. It is stated that the teachers working in the Institution established by the Board are employees of the Board as such their service conditions will be regulated by 1995 Regulation.
Heard learned counsel for the parties and perused the material on record.
There is no dispute that the Institution has been established by the Board and the employees borne on the strength are paid from the funds of the Board. They are not receiving any grant in aid from the State Government. It is also not in dispute that the Board is an Instrumentality of the State and by way of peripheral activity it has established various schools and colleges basically for imparting education to the children of the employees of the Electricity Board and are run and managed by the Board. The Principal and teachers including employees of these schools were throughout employees of the U. P. State Electricity Board and their services are governed by the Regulations framed by the Board in exercise of powers conferred by Section 79(c) of the Electricity (Supply) Act, 1948. The Board framed rules known as U. P. Rajya Vidyut Parishad Shikshak Sewa Viniyamawali, 1995 which is a complete Code dealing with all aspects in regard to the teachers including recruitment, service conditions, etc. It is trite law that that in order to establish an educational institution in the State of UP which are non aided in their character is regulated by the Intermediate Education Act 1921. When the Electricity Board seeks recognition of its institution under the provisions of U. P. Intermediate Education Act, 1921 it binds itself with the conditions of the recognition and the provisions of the Act under which it seeks recognition. Once the institution becomes a recognised institution, the provisions of U. P. Intermediate Education Act, 1921 will be applicable. It is admitted case of the parties that the Board has sought recognition of the Institution under the Act as such it is deemed to be recognised Institution. Since the recognition has been granted under the Act of 1921 the Board cannot escape the consequence of the Act and rules framed therein.
Thus, every recognised Institution has to act in accordance with the provisions of U.P. Intermediate Education Act 1921 except which is covered by Section 16 H of the 1921 Act. Section 16H grants exemption of certain classes of institutions from the operation of certain sections. It provides that the provisions of Sections 16A, 16B, 16C : sub-sections (2) to sub-section (13) of Section 16D and Sections 16E or 16F and 16G shall not apply to recognised institutions maintained by the State Government or the Central Government. Sub-section (2) provides that in the case of recognised institutions maintained by a local body, the State Government may declare that all or any of the provisions referred to in subsection (1) shall not apply or shall apply subject to such alteration, modifications or additions as it may make and the provisions, if any, so made applicable, shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.
Electricity Board is neither the State Government nor the Central Government and it is not covered by sub-section (1) of Section 16H of the Act. It has also not been declared as Local Body under sub-section (2) of Section 16H of the Act. Reliance has been placed on the decision of this Court reported in 1998 (1) AWC 681, Smt Satyawati Verma Vs U.P. State Electricity Board and another, wherein it has been held as under:
"Thus every recognised institution has to act in accordance with the provisions of U.P. Intermediate Education Act except where it is covered by the exception given under Section 16H of the Act. It leaves no room for any further controversy. The terms and conditions of service of employees of all the recognised institutions will be the same as provided under the Act and Regulations framed under the Act.
A Division Bench of this Court in Brahm Dayal v. Senior Personnel Executive, Indian Drugs and Pharmaceuticals (1990) 3 UPLBEC 1570, held that the institution maintained by Indian Drugs and Pharmaceuticals Ltd. Is neither State nor Central Government. The institution run by it having recognised under the provisions of U.P. Intermediate Education Act, the age of retirement of its emoloyees employees will be governed by Regulation 21 of Chapter III of the Regulations framed under the Act and not on the basis of contract entered into by I.D.P.L. with its employees of the institution. In Km. Shamim Fatima v. Manager, B.V.M. School, 1994 HVD (All) IV 143, where the institution was recognised under the provisions of U.P. Basic Education Act, it was held that the age of retirement will be 60 years as provided under the U.P. Basic Education (Teachers' Service) Rules. 1981 end not on the basis of contract entered into with the Electricity Board.
Regulation 21 of Chapter III of the Regulations framed under the U.P. Intermediate Education Act provides that the age of superannuation of the Principal or Head Master, Matron, Teacher, Clerk or Librarian and other servants shall be 60 years and if the date of superannuation falls within the mid-session, it shall extend to the end of the session. This provision will be applicable in respect of recognised institution of U.P. Electricity Board and Regulation 37 of U.P. Rajya Vidyut Parishad Shikshak Viniyamavali, 1995 will not be applicable. Such provisions will be applicable when the Board has not taken recognition of the institution under the provisions of U.P, Intermediate Education Act, 1921."
Thus, in view of aforesaid discussion, it clearly emerges that the regulation framed in terms of Act of 1921 will govern the recruitment and selection process of the employees working in the Institution run by the Board. Statutory regulation framed under the Act of 1948 would only operate in case no recognition is sought by the Institution run by the Board from the State Government.
In view of the aforesaid facts and circumstances of the case, the writ petitions are allowed. Impugned orders are hereby quashed.
Order Date :- 18.7.2012 RKS/