Affidavit filed by the Chief Secretary, U.P. Government today, is taken on record.
Janta Uchchatar Madhyamik Vidyalaya, Kallarpur, Kachhauli, District Muzaffarnagar was initially granted recognition upto Junior High School and upto that level the Institution was also aided. Consequently, in the matter of appointment of teachers and staff and payment of salary to them the following statutory provisions were applicable:-
(a) U.P. Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978 (hereinafter referred to as the 'Act, 1978').
(b) U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Services of Teachers) Rules, 1978 (hereinafter referred to as the 'Rules, 1978').
(c) U.P. Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Ministerial Staff and Group 'D' Employees) Rules, 1984 (hereinafter referred to as the 'Rules, 1984').
Under the aforesaid, the power to create a new post in the recognized and aided institution vests in the Director of Education (Basic) Ref: Section 9 of the Act, 1978. The Institution to which Act, 1978 would apply had been defined under Section 2(e) of the Act, 1978, which reads as follows:-
"2(e).- 'Junior High School' means an Institution other than High School or Intermediate College imparting education to boys or girls or both from classes VI to VII (inclusive);"
In respect of teachers of such Institutions appointment and other terms and conditions of service are regulated by the Rules of 1978 referred to above whereunder the definition of Junior High School has been provided under Rule 2(e) which reads as, "an Institution other than High School or Intermediate College imparting education to boys or girls or both from classes VI to VII."
Similarly, in respect of the Ministerial staff and Group 'D' employees of such Institutions Rules, 1984 defines 'Junior High School' as under:-
"2(e).- 'Junior High School' means an institution other than High School or Intermediate College imparting education to boys or girls or both from Classes VI to VIII;"
From a simple reading of the aforesaid statutory provisions, it would be clear that so far as the appointment of teachers and staff in Junior High School where education from classes VI to VIII alone is imparted, is regulated by Rules of 1978 and Rules of 1984 respectively. The definition of Junior High School contained in aforesaid two Rules specifically mentions that Junior High Schools are institutions other than institution imparting education to High School or Intermediate classes.
The Institution in question was granted recognition as a High School in the year 1993. However, such recognition was granted under Section 7-A of the Intermediate Education Act, 1921, i.e., without any financial assistance. It cannot be disputed that once Institution has been granted recognition as High School irrespective of whether being aided or unaided, it will be covered by the provisions of the Intermediate Education Act, 1921. In such Institutions where education is imparted in classes 9 and 10 also would by operation law go out of the definition of Junior High School as provided under the 1978 Rules and 1984 Rules. No legal interpretation is required for the same as it follows from simple reading of the language used in the provisions.
The State Government, however, in its wisdom, issued a Government Order dated 24.11.2001 providing therein that such aided Junior High Schools which are granted recognition as High School or Intermediate College without any financial assistance, shall be treated to be two different units in the same institution and for the purpose it had been clarified that in respect of the High School and Intermediate schools which have been granted recognitions without financial assistance, the District Inspector of Schools would continue to exercise his administrative power while qua the part upto Junior High School level, the administrative powers would vest in the Basic Shiksha Adhikari. Clause 5 of the aforesaid Government Order dated 24.11.2001 reads as follows:-
" 5- bl izdkj iz'kklfud iz;kstusak ds fy, lgk;rk izkIr twfu;j gkbZLdwy vkSj foRr foghu ekU;rk izkIr gkbZLdwy @b.VjehfM,V fo++|ky; ,d gh ifjlj rFkk ,d gh izcU/k ra= ds v/khu gksrs gq, Hkh iz'kklfud iz;kstuksa ds fy, i`Fkd bdkbZ ekus tk;saxsA muds leLr iz'kklfud dk;Z mi;qZDrkuqlkj lEcfU/kr ftyk csfld f'k{kk vf/kdkjh rFkk ftyk fo++|ky; fujh{kd }kjk iwoZor lEikfnr fd;s tk;saxsA"
Clause 5 came to be for consideration before this Court in Writ Petition No. 17422 of 2003, Ramesh Singh Vs. State of U.P. and others decided on 23.5.2003. The High Court after reproducing the Government Order dated 24.11.2001 in its entirety proceeded to hold that bifurcation of the same institution into two different units made under the Government Order dated 24.11.2001 for administrative purposes is not consistent with the provision of the Intermediate Education Act. It was held that under the Intermediate Education Act the District Basic Education Officer has not been vested with any administrative control. Reference was especially made to the Full Bench judgement of this Court in the case of State of U.P. Vs. District Judge, Varanasi reported in 1981 UPLBEC 336. Paragraph 17 wherein Division Bench has observed as under:-
"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 others."
The Hon'ble Single Judge in the case of Ramesh Singh Vs. State of U.P. and others, went on to hold that the District Basic Education Officer has got no authority or jurisdiction to deal with upgraded Junior High School as the entire entity of the institution changes on account of upgradation. The Court proceeded to hold that condition no. 5 of Government Order dated 24.11.2001 is ultra vires the provisions of Section 16A of the U.P. Intermediate Education Act, 1921 and it was held that Basic Shiksha Adhikari has no authority or jurisdiction to deal with such an upgraded Institution. The said judgement and order of the Hon'ble Single Judge still holds the field meaning thereby that the declaration issued by this Court qua clause 5 being ultra virus the Intermediate Education Act stands on record.
A Division Bench of this Court in Ajay Pratap Rai Vs. District Basic Education Officer, Jaunpur & others 2007(4) ADJ 357 (DB) considered a similar case, as the case in hand, and in para 9 and 10 of the judgement held as under:-
"9. The aforesaid observations of the Full Bench as explained in the judgement of Sushila Gupta's case, therefore, leave no room for doubt that the selection and appointment on the post of Head of the Institution which has been recognized as a High School and intermediate College cannot be made under the provisions which are applicable to a Junior High School. In Sushila Gupta (supra), the learned Single Judge considered all the Amendment made in the Statute and held that in spite of so many amendments to the statutory provisions, the proposition of law laid down by the above referred to Full Bench remained the same. Mr. Saxena has not brought to our notice any provision which have altered the legal position.
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."
Single Judge of this Court while deciding Writ Petition No. 41420 of 2004, Dr. (Smt.) Sushila Gupta Vs. The Joint Director of Education, Kanpur Region, Kanpur and others connected with Writ Petition No. 33360 of 2005, Dr. (Smt.) Sushila Gupta Vs. the State of U.P. and others, after specifically referring to the Full Bench Judgments of the High Court in the case of Shiksha Prasar Samiti Babhman, District Gonda Vs. State of U.P., 1986 UPLBEC 477, R.C. Sharma Vs. State of U.P. and others, 2000(4) ESC 2768 and Vishwanath Singh Vs. District Inspector of Schools, Gorakhpur and others, 1995(1) UPLBEC 269 opined as follows:-
"However, observations made by the Full Bench to the effect that the Junior High School looses its identity when a High School comes into existence, still holds the field. No amendment has been brought about by the legislature in the U.P. Intermediate Education Act, 1921 to exclude the applicability of the Act on the employees of such an upgraded institution."
Against the said order of the Hon'ble Single Judge Special Appeal No. 25 of 2006 has been filed and in the said appeal no interim order has been granted.
Hon'ble Single Judge has further specifically held that the Government Order cannot have an overriding effect over the provisions of the Act and Regulation.
As a matter of fact, in the case of R.C. Sharma Vs. State of U.P. and others reported in 2000 (4) ESC 2768 the Hon'ble High Court has specifically held that on upgradation of a school from Junior High School to High School, appointment on the post of clerk has to be made under the Intermediate Education Act and Regulation framed thereunder. The Rules of 1984 will have no application. It is worthwhile to reproduce relevant portion of paragraph 6 of the said Judgement :-
"Para 6.- The first question which arises for consideration is whether after upgradation of the institution to High School if a vacancy of clerk occurs in the Institution, it has to be filled under the provisions of the Act 1921 and Regulations framed thereunder or under 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 (in brief Rules 1984). It is not disputed that the institution was upgraded from Junior High School to High School on 24.8.1993. A clerk of the institution was dismissed from service after the institution was upgraded and this vacancy was sought to be filled by the management through an advertisement made on 2.4.1999. Section 2(e) of Rules, 1984 defines a Junior High School to mean an institution other than High School or Intermediate College imparting education to boys and girls or both from classes VI to VIII. Therefore, Rules 1984 would apply to the institutions where education is imparted from classes VI to VIII but it shall not apply to the institutions which impart education from classes IX and X. Since the institution was upgraded as High School in 1993, Rules 1984 ceased to apply to the institution. And the only provision to fill the non-teaching post of clerk was Regulation 101 of Chapter III of the Regulations. Under Regulation 101 prior approval of District Inspector of Schools had to be obtained before making appointment on a class III post."
Reference may also be had to the proceedings, which are pending before the Division Bench of this Court in Special Appeal No. 25 of 2006 (to which I am a party) wherein after noticing various controversies, which are involved in the matter of upgradation of Junior High School to High School, the Division Bench passed following order on 10.1.2011:-
"We have perused the affidavit. The same is not to our satisfaction. Various issues are up for consideration in these appeals. A recognised and aided junior high school has been granted recognition under Section 7-A of the U.P. Intermediate Education Act, 1921. Under Regulation 4 of Chapter II, teachers of junior high school are not entitled to be considered as teachers of the high school, which is granted recognition under Section 7-A and not under Section 7, in view of the specific language of said Regulation. Similarly, the issues as to (a) who is to act as the authority for the disciplinary action in respect of teachers of the institution after upgradation, (b) who is to act as the approving authority, (c) which authority would recognise the Committee of Management of the institution after such up-gradation and (d) who is to participate as the principal in the Selection Committee in terms of the Government order, 2001 regulating the appointment of part time teachers. These are only few of such issues, which have not been examined nor have been clarified. Many more similar issues may arise, which did need address by the State Government at the first instance in view of powers vested under Section 9 of the U.P. Intermediate Education Act, 1921 and other statutory provisions.
Respondent No. 1, Secretary, Department of Secondary, Government of U.P. at Lucknow after examining all aspects of the matter including those referred to above must file a comprehensive affidavit enclosing all relevant materials, which may throw light on the issues involved"
In pursuance of the order dated 10.1.2011 passed by the Division Bench, the Secretary of the Education Department filed a counter affidavit on behalf of the State respondents and brought on record the recommendations made by the Committee constituted in terms of the order of the High Court for examining the matter which was enclosed as Annexure No. CA-2 to the counter affidavit (copy of which has been filed today in the Court and is kept on record). The relevant portion of the recommendation reads as follows:-
" ekuuh; mPp U;k;ky; ds mi;ZqDr Observations ds vk/kkj ij ekuuh; mPp U;k;ky; }kjk dh x;h i`PNkvksa dk ijh{k.k djus ij fuEufyf[kr fLFkfr;ka mHkj dj lkeus vkrh gSaa%& 1- ekuuh; mPp U;k;ky; dh c`gn ihB ,oa vU; fu.kZ;ksa ls ;g Li"V gS fd lgk;rk izkIr twfu;j gkbZLdwy ds foRr foghu [email protected],V ds :i esa mPphd`r gks tkus ij twfu;j gkbZLdwy viuk vfLrRo [kks nsrk gSA vr% ,sls fo|ky; tks twfu;j gkbZLdwy Lrj ij vuqnkfur gSa vkSj ckn esa gkbZLdwy ;k b.VjehfM,V Lrj dh foRr foghu ekU;rk izkIr djrs gSa] ,d bdkbZ ekus tk;saxsA 2- iz'uxr izdkj ds fo|ky;ksa esa twfu;j gkbZLdwy ds Lrj rd ds lHkh iz/kku v/;[email protected]'k{kd iwoZ dh Hkkafr twfu;j gkbZLdwy ¼v/;kidksa vkSj vU; deZpkfj;ksa ds osru dk Hkqxrku½ vf/kfu;e] 1978 ds vUrxZr osru izkIr djrs jgsaxsA ekuuh; mPp U;k;ky; us vius fu.kZ; esa ;g mYys[k fd;k gS fd%& "The recognition and financial aid are two different things; the institution which has been recognized as High School or Intermediate College may not be receiving grant-in-aid and in such a situation it is only the payment of salaries Act,i.e., U.P. Act No. 24 of 1971 would not be applicable."
laLFkk ds foRrfoghu va'k ds f'k{kd va'kdkfyd v/;kid gksrs gSa rFkk izcU/k lfefr }kjk vius Jksrksa ls lsok;ksftr fd;s tkrs gSa vkSj dksbZ Hkh va'kdkfyd v/;kid fdlh Hkh l`ftr in ij fu;qDr ugha gSA blfy, muds osru dk Hkqxrku iwoZ dh Hkkafr izcU/kra= }kjk vius futh Jksrksa ls fd;k tkrk jgsxkA"
From the aforesaid, it shall be apparently clear that the Committee constituted by the State Government itself after having due regard to the judgements of the Court has specifically opined that once the Junior High School is granted recognition as a High School, it has to be regulated in accordance with the provisions of Intermediate Education Act only. Further after upgradation as High School, the provisions of Rules 1978 and Rules 1984 will not be applicable and the appointment of teachers and other staff of the upgraded Junior High School cannot be made under the Rules of 1978 and Rules of 1984 respectively. This is what has been held out to the Division Bench of this Court by filing an affidavit by the Secretary of the Education Department itself.
Now, turning to facts of the case again, one Raja Ram who was working as clerk in the Institution, superannuated, accordingly, the post of clerk fell vacant. On 23.9.2006 the authorised controller working in the upgraded Institution namely Associate District Inspector of Schools, Muzaffar Nagar, proceeded to make appointment of one Vikas Pawar-respondent no. 6 on the post of clerk in the Institution after following the procedure prescribed under the Rules 1984. Such appointment was got approved from the Basic Shiksha Adhikari on 20.9.2006 as per the provisions of 1984 Rules which applied to the Junior High School only.
Vikas Pawar, so appointed made an application for his being attached elsewhere because of threat to his life and on that basis the Basic Shiksha Adhikari in pursuance to the letter of Regional Joint Director of Education, Meerut Region, Meerut dated 7.11.2007 passed an order on 30.11.2007 attaching Vikas Pawar to the office of Secretary, Zila Saksharata Samiti, Muzaffar Nagar. On 4.4.2008 an order was passed cancelling the attachment and asking Pawar to resume his duties in the Institution. Before any further action could be taken in pursuance to the cancellation of the attachment, the Chief Development Officer, Muzaffar Nagar intervened in the matter and passed an order that Vikas Pawar be attached with the Secretary, Zila Saksharata Samiti, Muzaffar Nagar until further orders. This order by the Chief Development Officer has been made with reference to the letter dated 30.1.1993 issued by the office of the Chief Secretary, Uttar Pradesh Government, Lucknow.
On record there is an order of the Secretary, Saksharata Samiti dated 5.6.2009 cancelling the attachment of Vikas Pawar and asking him to work in the Institution. There is nothing on record to indicate as to what action was taken in pursuance of that order. Pawar, however, is stated to have joined the Institution only on 30.4.2011.
What is surprising to note is the manner in which payment of salary has been made qua the period Pawar had actually not worked in the Institution. On 4.11.2010 a cheque for a sum of Rs. 73,392/- was issued in his favour and thereafter on 25.5.2011 another cheque of Rs. 3,40,471/- has been issued in favour of Vikas Pawar which was got encashed. These payments have been made against the post of clerk which has been sanctioned for the Institution in question.
From the record it is apparently clear that during this period of four years, Vikas Pawar had actually not worked even for a single day in the Institution. Under which provision such payment of salary can be made against the fund allocated for the Institution is not known. The situation takes a turn for the worst as would be reflected from the facts which are given hereinbelow.
This writ petition was presented before this Court by the Committee of Management of the Institution disclosing the facts qua appointment and working of Pawar. Taking note of the facts so brought on record, the Court passed an order on 26.5.2011 staying the order of the Joint Director of Education dated 5.5.2011 whereunder single operation of accounts was directed only for ensuring payment of salary to Pawar in exercise of power under the 1978 Act.
Despite the interim order granted by this Court on 26.5.2011 in the presence of the Standing Counsel representing the respondent-Education Authorities including the Secretary of the Education Department, Joint Director of Education, Saharanpur, District Basic Education Officer, Muzaffarnagar, District Inspector of Schools, Muzaffarnagar, and Finance and Accounts Officer, Muzaffarnagar, they got the cheque encashed on 28th of May 2011, i.e., after passing of the order by this Court and thereby ensured that more than three lakhs of rupees were paid to Vikas Pawar without his having worked in the Institution even for a single day.
This Court, vide order dated 26.5.2011, required the Secretary of the Education Department to examine the matter and to inform the Court by means of an affidavit as to how such appointment could be made for the Institution with the approval of Basic Shiksha Adhikari and how an employee of a private Institution could be attached to Government Office. The Secretary-responded in a peculiar manner and instead of answering the query put by the Court adopted an evasive attitude.
The Court not being satisfied passed a reasoned order on 5.7.2011 requiring the Chief Secretary of the State to intervene in the matter and inform the Court as to how such appointment and such attachment could be directed. The order dated 5.7.2011 passed by this Court reads as follows:
"The affidavit filed by the Secretary in response to the order of the Court dated 26.05.2011 makes no sense. The Court is sorry to record that despite being the highest officer of the department, he has not applied his mind to any of the relevant factor which could throw light on the subject up for consideration in the present writ petition.
From the facts on record, it is an admitted position that the institution which was originally a recognized and aided junior High School had been subsequently granted recognition as an High School, meaning thereby, that the provisions of the Intermediate Education Act became applicable to the said institution on such up-gradation by operation of law. It is wholly irrelevant whether the recognition was Vittvihin at the High School level and as to whether the provisions of Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 were attracted to the teachers and staff of the institution or not.
The Court may clarify that the provisions of Intermediate Education Act do not in any way restrict the operation of the said Act and the regulations framed thereunder with reference to the fact as to whether the institution is aided by the State Government and as to whether it is covered by the U.P. Act No. 24 of 1971 or not.
It is an admitted position that an Institution on being recognized under the Intermediate Education Act cannot have an independent existence of a Recognized Junior High School within itself. Once the institution is recognized as High School, provisions of Regulation 101 to 106 of Chapter III of the regulations framed under the Intermediate Education Act became applicable. Any appointment on Class IV post in such an institution can be made after following the procedure prescribed therein and with approval of the District Inspector of Schools only.
It appears that only in order to shield the illegal appointment made on Class IV post with the approval of the Basic Shiksha Adhikari by the Authorized Controller who was admittedly appointed for the recognized High School, the Secretary has taken an stand that the appointment on Class IV post in such a recognized High School could be made with the approval of the Basic Shiksha Adhikari, because it was granted recognition at High School level without any financial assistance and the earlier incumbent on the post was being paid salary through Basic Shiksha Adhikari.
It appears that the State itself is not aware as to what provisions are to be applied in the fact situation of this case.
What is further surprising to note is that the Secretary in order to justify an illegal order of attachment of an employee of private recognized High School to the office of the District Literacy Mission has relied upon a Government Order dated 30.01.1993 in his affidavit. This Government Order has absolutely no application in respect of employees of private recognized and aided institutions. It refers to government employees only.
Such affidavits of the Secretary, in the opinion of the Court only create confusion and have the effect of misleading the Court.
This Court is aware that harsh words have used in this order, but the affidavit filed by the Secretary has necessitate the Court to act as such. The contents of his affidavit reflect a casual and irresponsible attitude qua the proceedings before the High Court.
Let the Chief Secretary of the State examine the statutory provisions, Government Order issued on the subject and file his affidavit in response to the queries made by this Court under the order dated 26.05.2011. Standing Counsel is directed to forward a copy of this order along with a copy of the order dated 26.05.2011 to the Chief Secretary by 07.07.2011 so that necessary affidavit may be filed by the Chief Secretary on or before 12.07.2011.
Put up on 12.07.2011.
Interim order to continue till then.
Counter affidavit filed today by Shri Ranjeet Saxena, Advocate is taken on record. Rejoinder, if any, may be filed by the next date fixed."
Three affidavits have been filed by the Chief Secretary till date. The first one dated 9.7.2011 seeks time to examine the matter and refers to the documents asked for the purpose. The request was granted. He then filed an affidavit on 20.7.2011 taking a stand that a report has been prepared on the basis of the documents and meetings held with the officers of the Department concerned after considering the judgements applicable. The Chief Secretary concluded that the 1984 Rules will be applicable, as per the Government Order dated 24.11.2001 as the Institution has been upgraded to High School without any financial assistance. In respect of the attachment of Vikas Pawar, it was stated that under the Government Order dated 30.1.1993, it is open to the Education Authorities to attach any employee who is paid salary from the State exchequer for the purposes of Saksharata Karyakram and, therefore, the attachment of Vikas Pawar in the facts of the case was legal.
The Court after going through the Government Order dated 30.1.1993 found that it was applicable to the Government servants only and not to the Teachers and staffs of the recognised and aided private institutions. Various Judgments of the High Court in the matter of appointment in upgraded High School had not been taken note of. Therefore, an order was passed asking the Chief Secretary to re-examine the issue of appointment as well as attachment of an employee of a private aided institution to a Government office in terms of the Government order dated 30.1.1993, afresh.
For ready reference, the order of this Court dated 23.8.2011 reads as follows:-
"This Court is not happy with the manner in which the Judgment of the High Court in Writ Petition No. 17422 of 2003 (decided on 23.5.2003) is being read by the highest officers of the State. However, before any further directions could be issued, Sri R.B. Pradhan, learned Additional Chief Standing Counsel, seeks one last indulgence for the legal impact of the said Judgment as well as its binding nature upon the State authorities can be re-examined.
This Court may clarify that mere pendency of a reference in respect of a particular Judgment before the Division Bench will not dilute the law laid down by the learned Single Judge. The authorities are bound to act in accordance with the law laid down by the learned Single Judge till the Division Bench answers the reference otherwise. Similarly, this Court finds that there has been complete misreading of the Government Order. This Court fails to understand as to how the definition of 'employees in Rajkiya Sewa' can be extended by the Chief Secretary so as to make it applicable to the employees of private recognized institutions. It appears that in order to justify the illegal attachment of an illegally appointed employee for payment of salary from the State Exchequer, all kinds of excuses are being made even to the extent of misreading the definition of employees in Rajkiya Sewa. This Court may record that an employee appointed in a private recognized institution was attached by the Education Authorities to a different Government office. This is being justified by the Chief Secretary with the help of the definition of 'employees under Rajkiya Sewa'.
Let the Chief Secretary file a better affidavit after considering all the legal issues by the next date.
Put up on 5.9.2011.
Interim order to continue till the next date of listing."
The Chief Secretary prayed for time to reply which was again granted under Order dated 5.9.2011.The Court also required the Chief Secretary to examine as to how payment could be released despite there being any interim order of this Court.
As was the past practice, the Chief Secretary in his affidavit filed today has not taken any responsibility upon himself nor has taken a stand in respect to the orders referred to above. He has only enclosed a report in terms of the order passed by this Court dated 5.9.2009 as the answer to the questions of the Court. The purpose is obvious. The Chief Secretary does not want to commit as to what is the correct position of law in the opinion of the State Government on the issues mentioned. Three orders have been passed by this Court asking the Chief Secretary to take a stand in the matter. Two reports have been prepared and enclosed with an affidavit without satisfactorily replying to the query of the Court.
For the reasons best known to the Chief Secretary, all the aforesaid Judgments and orders have been completely ignored in the report and reference has been made to a judgement dated 7.9.2005 of the Single Judge passed in Writ Petition No. 41591 of 2002, Prabandh Tantra Beni Singh Vaidik Vidyawati Inter College, Baluganj, Agra and another Vs. State of U.P. There is no reference to the Full Bench judgements of this Court in the case of Shiksha Prasar Samiti Babhman, District Gonda (supra), Division Bench judgement in the case of Ajay Pratap Rai (supra) as well as to the order passed by the Division Bench in Special Appeal No. 25 of 2006, to the judgement directly on the point in the case of R.C. Sharma (supra) as well as the judgement of Single Judge in the cases of Ramesh Singh (supra) and Dr. (Smt.) Susheela Gupta (supra). The report submitted by the Secretary Education in Special Appeal No. 25 of 2006 as has been quoted above, is diametrically opposite to the report filed by the Chief Secretary today along with his affidavit.
He must explain that after meeting with the officers of the same Department could there be a change in the stand of the Government, one before the Division Bench and the other before the Single Judge.
Either the complete facts, judgments and legal provisions are not being placed before the Chief Secretary or he is deliberately avoiding to respond to them. The statutory provisions applicable have completely been ignored in the report submitted. A better affidavit is required from an officer of the status of the Chief Secretary after due consideration of all the aspects of the matter including the various judgement of the High Court and the statutory provisions applicable. Such half hearted response, only complicates the legal proceedings.
The Chief Secretary must consider the provisions of the Intermediate Education Act, the Act 1978, Rules 1978 and Rules 1984 and the judgements of the High Court passed from time to time on the subject and then file an affidavit categorically taking a stand as to whether after an Institution is upgraded as a High School is it open to any authority to bifurcate the same into two different units for the administrative purposes. Could in an upgraded High School appointment of teacher and staff be still made under Rules 1978 and Rules 1984 respectively.
What is worst is that the Chief Secretary has not taken note of the fact that for last more than four years Pawar continued to remain attached to the office of Secretary, Saksharata Samiti and had not worked even for a single day in the Institution. Could he be attached under Government Order dated 30.1.1993 and that too for more than four years in a stretch. Prima facie, the Government Order of 1993 does not permit such an attachment specifically when the employee concerned is not a Government servant.
The Chief Secretary in his report has informed that it is being inquired as to how despite the order of the Court the cheques have been encashed. He must respond and take action in the matter.
Let a better affidavit be filed by the Chief Secretary by the next date for the reasons noticed above. In case it is not so done, he shall remain present before this Court for explaining the inaction.
List on 29.9.2011.
Interim order is to continue till then.
Dt/-15.9.2011 Ram Murti