The Management of an institution named Ram Parshad Shastri Inter College, Amrauna, Mehnauna, District Basti has filed this petition challenging an order dated 16.08.2016 passed by the Joint Director of Education, Basti Region, Basti by which he has recalled his earlier order dated 14.06.2016 and has restored the order dated 31.05.2016 passed by the District Inspector of Schools, Basti.
In nutshell the facts giving rise to this petition are that an institution by the name and style of Shastri Smarak Junior High School, Mehnauna, District Basti was established by a Society named Ram Parshad Shastri Uchchatar Madhyamik Vidyalaya Samiti which was registered under the Societies Registration Act. The aforesaid institution was granted recognition as a Junior High School in the year 1974 and, thereafter, was brought on grant-in-aid in the year 1983. Salaries of the teaching and non-teaching staff of the institution were paid under the U.P. Junior High Schools (Payment of Salaries of Teachers and Other Employees) Act, 1978 (hereinafter referred to as the Act, 1978). Subsequently, the institution was upgraded as a High School in the year 1986 and, thereafter, in the year 2006 was accorded recognition, under Section 7-A of the U.P. Intermediate Education Act, 1921 (hereinafter referred to as the Act, 1921), to hold examination up to intermediate level with effect from 2008. The terms and conditions of recognition to hold higher intermediate level classes are contained in a letter dated 04.10.2006 which has been brought on record as Annexure No.1 to the writ petition. One of the conditions for according aforesaid recognition was that the Management shall appoint an eligible person as Principal of the Institution. The initial recognition up to high school level and the subsequent permission to take higher classes up to intermediate level were both Vitta Vihin (without aid). The salary of the staff of the institution up to the junior high school level continued to be paid under Act, 1978, as per the Section 13-A of the Act, 1978. Controversy arose on retirement of one Ratan Mohan Mishra on 30.06.2015 who was the Headmaster of the upgraded institution as per Regulation 2(2) of Chapter II of the Regulations framed under the Act, 1921 and was, therefore, acting as Principal of the institution. On his retirement, the dispute was as to who should be appointed an officiating principal of the institution, inasmuch as, there were competing claims. On the one side there were teachers who were in the junior section but drawing salary from State aid and on the other there were teachers who were appointed for the higher secondary section but not getting salary from State aid.
In the above backdrop, the Management of the Institution proposed the name of one Pankaj Kumar, who was seemingly the senior most teacher at the intermediate level though not drawing salary from state aid, as Principal of the Institution and forwarded the papers to the District Inspector of Schools, Basti for according approval. The District Inspector of Schools, Basti, by order dated 27.01.2016, attested the signature of Pankaj Kumar as Officiating Principal. In the meantime, there was a seniority dispute in between Raj Dhari Pal (respondent no.4) and one Pashupati Nath, who were both teachers in the junior section of the Institution. The seniority dispute came to be adjudicated by the Joint Director of Education, Basti Region, Basti by order dated 31.03.2016, whereby, the Joint Director held Raj Dhari Pal to be senior and requested the Management to appoint a Principal for the institution. Placing reliance on the order dated 31.03.2016, the District Inspector of Schools, Basti took opinion of the DGC (Civil) and passed an order dated 31.05.2016 thereby taking a view that since Raj Dhari Pal (respondent no.4) was the senior most Assistant Teacher of the Institution drawing salary from the State Fund, he was entitled to be appointed as Headmaster/ Principal of the Institution and, accordingly, the earlier signature attestation order dated 27.01.2016, attesting the signature of Pankaj Kumar as Officiating Principal, was put in abeyance. The Joint Director of Education, however, took exception to the order dated 31.05.2016. As a result, by his order dated 14.06.2016 he set aside the order dated 31.05.2016. Subsequently, by the impugned order dated 16th August, 2016, he recalled the order dated 14.06.2016 and restored the order dated 31.05.2016 passed by the District Inspector of Schools. Assailing the order dated 16.08.2016 the present petition has been filed by the management.
In nutshell the legal question involved in this petition is whether in an institution, which has been upgraded as an intermediate college without state aid, the appointment of Officiating Principal is necessarily to be made from teacher receiving salary from state aid or it has to be made as per the provisions of U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as U.P. Act No.5 of 1982) read with the provisions of Act, 1921 and the regulations framed thereunder.
I have heard Sri P.N. Saxena, learned Senior Counsel, assisted by Sri Uma Nath Pandey, for the petitioners; learned Standing Counsel for the respondent nos.1, 2 and 3; and Sri R.K. Ojha, learned Senior Counsel, assisted by Sri Devendra Vikram Singh, for the respondent no.4. Considering the legal nature of the controversy involved in this petition, the learned counsel for the parties have agreed that the matter be decided finally and, therefore, the respondents' counsel have not prayed for time to file counter affidavit and the matter was heard at length.
The undisputed factual position is that the institution concerned was upgraded as a High School in the year 1986 and, thereafter, was recognized for higher classes (intermediate level) in the year 2006, under Section 7-A of the Act, 1921. A Division Bench of this Court in Smt. Manju Awasthi and others Vs. State of U.P. and others: 2013 (3) ADJ 64 (DB), held that when an institution is granted recognition as a High School, it is contemplated that there shall be minimum necessary posts of teacher as well as Headmaster for the institution though they may be without finance (Vitta Vihin); and the same are to be filled in accordance with the provisions of U.P. Act No.5 of 1982 read with Act, 1921 and the regulations framed thereunder. In Manju Awasthi's case (supra) it has been held that recognition/permission under Section 7-A of the Act, 1921 is to be granted to an institution, as defined by Section 2(b) of the Act, 1921, which means a recognised intermediate college or higher secondary school or high school, whereas recognition to a Junior High School as a High School is to be granted in accordance with the provisions of Section 7(4) of the Act, 1921. It has been held that State is fully empowered to grant recognition under Section 7(4) or Section 7-A of the Act, 1921 without finance (Vitta Vihin). Even prior to the decision of the Division Bench in Smt. Manju Awasthi's case, a Single Judge of this Court in Dr. Smt. Sushila Gupta Vs. Joint Director of Education, Kanpur Region, Kanpur and others: 2006 (1) ADJ 89 (All) held, in paragraphs 29 and 30 of the judgment, as follows:-
"29. It is, thus, clear from all the decisions cited herein above and the provisions discussed herein above that a Junior High School upgraded to the High School/Intermediate level, the institution is governed by the provisions of U.P. Intermediate Education Act and Service Rules as applicable to such institution, have to be applied. There is no distinction drawn between an aided or an unaided school. The recognition of the institution is by itself sufficient to exclude the applicability of the laws governing Junior High School once the institution is upgraded. It is for this reason that a special transitory amending provision was brought in by way of Section 13-A in U.P. Act No.6 of 1979 discussed herein above to enable such upgraded institution to continue to receive the grant-in-aid that they were receiving at the level of Junior High School.
30. In view of the conclusions and findings recorded herein above, the issue raised on behalf of the petitioner has to be answered in the affirmative in favour of the petitioner. Consequently, the institutions where the respondents are proceeding to make an appointment on the post of the Head of the institution which is admittedly an upgraded institution, can only be made under the provisions of the U.P. Intermediate Education Act, 1921 and the Regulations framed thereunder coupled with the provisions of the U.P. Act No. 5 of 1982 and such other provisions that are consistent with the law laid down herein above."
The above ratio of Sushila Gupta's case was affirmed by Division Bench of this Court in Ajay Pratap Rai Vs. District Basic Education Officer, Jaunpur and others: 2007 (4) ADJ 357 (DB) where, in paragraphs 9 and 10 of the judgment, the Division Bench had observed as follows:-
"9. The aforesaid observations of the Full Bench as explained in the judgment 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."
The aforesaid Division Bench decision was followed by this Court in Smt. Shail Kumari Singh Vs. State of U.P. and others: 2008 (1) ESC 365 (All). There also, this Court had observed that while granting recognition as High School and Intermediate, the Board of High School imposes a condition upon the Institution that there shall be appointment of a Principal of the Intermediate College and such appointment shall not be made as an interim measure or on a part time basis, but has to be made as per procedure prescribed in U.P. Secondary Education Services Selection Board Act, 1982; and that there can be only one Principal of the Institution. Para 16 of the judgment is reproduced herein below:-
"16. In the case in hand, while granting recognition as High School, the Board clearly imposed a condition that the management has to make appointment of Principal of High School. Obviously, such appointment was not to be made as an interim measure or on part-time basis and, therefore, the appointment of Principal has to be in respect of upgraded institution as per the procedure prescribed in 1982 Act and the management could not have made appointment by resorting to the provisions applicable to Junior High School, since after upgradation as High School, no appointment of Headmaster/Headmaster of Junior High School could have been made in law as the post of Headmaster/Headmistress of Junior High School becomes inoperative after upgradation since only one head of the institution could have continued at a time. Therefore, there could be only one Principal and that too of High School. This is what has been held by Division Bench in Ajay Pratap Rai (supra) also and in my view, that is the only cogent and practical solution in such cases otherwise it would create a chaotic situation."
Following the law laid down by this Court in the judgments noticed herein above, a Single Judge of this Court in Civil Misc. Writ Petition No.40581 of 2008: Ravendra Pal Singh Vs. State of U.P. and others, decided on 21.05.2009, directed that appointment of a Principal of such an Intermediate College i.e. one which has been upgraded from a Junior High School without aid, shall be made in accordance with the provisions of the U.P. Act No.5 of 1982 Act read with Act, 1921 and the regulations framed thereunder and it restrained the authorities from appointing a separate Head for the Junior High School so long the institution continues to be recognized and upgraded as High School / Intermediate College.
In the light of the legal principle noticed herein above, the impugned order has been assailed by the learned counsel for the petitioners on the ground that once the Institution had been upgraded, the appointment of Principal had to be made in accordance with the provisions of the U.P. Act No.5 of 1982 read with Act, 1921 and the regulations framed thereunder and, therefore, only that teacher can be appointed an Officiating Principal who has at least four years experience of teaching Class 9 to 12 and is possessed of minimum qualifications as provided in Appendix-A of Chapter-II of the Regulations framed under the Act, 1921. It has been submitted that since the respondent no.4 did not hold the requisite four years experience of teaching Class 9 to 12 and, otherwise also, was not qualified for the post of Principal, he could not have been appointed therefore the order dated 14.06.2016 annulling the order dated 31.05.2016 was legally valid and ought not to have been recalled as has been done by the impugned order, particularly, without opportunity of hearing to the petitioners. It has also been submitted by the learned counsel for the petitioners that the Management had proposed the appointment of Pankaj Kumar as the Principal because he had the requisite teaching experience and he held all the relevant qualifications for the post of Principal and since Section 7-AA of the Act, 1921 did not contemplate appointment of a Principal but only of a part time teacher, therefore, the provisions of Section 7AB of the Act, 1921, which excludes applicability of the provisions of U.P. Act No.5 of 1982, would not come in way when appointment on the post of Principal is to be made and, therefore, the appointment has to be as per the provisions of U.P. Act No.5 of 1982 read with the provisions of Act, 1921 and the Regulations framed thereunder, regardless of payment of salary from state aid. It has been submitted that while passing the order dated 31.05.2016 the District Inspector of Schools had taken into consideration only one aspect, which was that the respondent no.4 had been drawing salary from the State Aid, but he failed to consider whether the respondent no.4 was eligible for appointment as Principal or not. It has been submitted that under the circumstances the Joint Director was well within his jurisdiction to set aside the order dated 31.05.2016; and, accordingly, there was no justification to recall the order dated 14.06.2016 as has been done by the impugned order.
Sri R.K. Ojha, who appeared on behalf of the respondent no.4, submitted that since Pankaj Kumar had been appointed as Part Time Teacher, under Section 7-AA of the Act, 1921, therefore, he could not be considered eligible and, in any case, since the respondent no.4 was the senior most teacher in the institution drawing salary from the State Aid, he alone was entitled to officiate on the post of Principal of the Institution.
In reply to the above submission of Sri R.K. Ojha, Sri P.N. Saxena, the learned counsel for the petitioners placed reliance on a decision of this Court in Dr. Deepak Bhatia Vs. State of U.P. and others: 2010 (82) ALR 115 in which, this Court, by relying upon observations made by the apex court, observed that Full Time Teachers, working in self financing institutions having due recognition from statutory boards, cannot be excluded if they satisfy all other conditions. It was observed that although termed as part time teacher they, in fact, are required to work as full time teachers therefore their claim ought not be excluded en masse but be examined individually, after verifying the facts. Sri P.N. Saxena, therefore, contended that the case of Pankaj Kumar could not have been ignored merely because he was a teacher appointed under Section 7-AA of the Act, particularly, when he was a teacher on a higher grade and, therefore, ought to have been considered senior to the respondent no.4.
Having considered the rival submissions, this Court finds that the law, as has been settled by a series of decisions of this Court including the Division Bench decision in Manju Awasthi's case (supra) as well as in Ajay Pratap Rai's case (supra), is that once a Junior High School is upgraded it loses its identity as Junior High School and is therefore to be governed by the provisions of the Act, 1921 and the U.P. Act No.5 of 1982 regardless of its recognition, as a High School or as an Intermediate College, being without grant (Vitta Vihin). In fact, one of the necessary conditions for according recognition to an Institution as a High School or as an Intermediate College is that there shall be a post of Headmaster/Principal regardless of the said post being within the purview of grant-in-aid. Section 7AB of the Act, 1921 provides that nothing in U.P. Act No.24 of 1971 or U.P. Act No.5 of 1982 would apply in relation to Part Time Teachers and Part Time Instructors employed in an Institution under Section 7AA. Section 7AA of the Act, 1921 only provides for appointment of Part Time Teachers and Part Time Instructors but does not relate to appointment of Principal. Therefore, in an Institution, which has been upgraded from a Junior High School to a High School and, thereafter, from a High School to an Intermediate College, there has to be a full time Principal appointed, whether he is paid salary from State Fund or from own sources of the institution; and since appointment of a Principal is not contemplated by Section 7AA of Act, 1921, the provisions of section 7AB of Act, 1921 would not come into play so as to exclude applicability of the provisions of U.P. Act No.5 of 1982 as regards appointment of a Principal. Accordingly, this Court is of the view that in matter of appointment on the post of Principal, the provisions of U.P. Act No.5 of 1982 read with the provisions of Act, 1921 and the Regulations framed thereunder would apply to an institution which has been upgraded as a High School/ Intermediate college regardless of being without grant. Once that is the position, appointment of Principal as well as Officiating Principal has to be as per the provisions of U.P. Act No.5 of 1982 read with the provisions of Act, 1921 and the Regulations framed thereunder, regardless of payment of salary from the State Aid. As a natural corollary thereof, while considering appointment of an officiating principal, the consideration is not to be limited to appointing a teacher receiving salary from State Aid but it has to be as per the provisions of U.P. Act No.5 of 1982 read with Act, 1921 and the regulations framed thereunder. This court is therefore of the considered view that even if the up-gradation of the institution is without aid, the appointment of Principal or an Officiating Principal has to be as per the provisions of U.P. Act No.5 of 1982 read with Act, 1921 and the Regulations framed thereunder; and it is not necessary that a teacher, to be eligible, must have been receiving his salary from the State Aid.
Reverting to the facts of the present case, initially, the proposal of the Management to appoint Pankaj Kumar as an Officiating Principal of the Institution was approved, but, thereafter, it appears, the District Inspector of Schools felt that only those teachers who are being paid salary from state fund could be appointed. Therefore, by order dated 31.5.2016, the earlier approval order was recalled and the respondent no.4 was directed to be appointed. This order dated 31.5.2016 was set aside by the Joint Director, vide order dated 14.06.2016, apparently, on the premise that the earlier order dated 31.05.2016 was passed without proper consideration and merely on the advice of the government counsel. However, thereafter, by the impugned order dated 16.08.2016, the subsequent order, which had recalled the order dated 31.05.2016, was recalled without giving opportunity of hearing to the management i.e. the petitioners. At neither stage, from the record, it appears that the second and third respondent (i.e. the Joint Director and the District Inspector of Schools) applied their mind as to whether the proposed appointee was entitled to be appointed as per the provisions of U.P. Act No.5 of 1982 read with Act, 1921 and the regulations framed thereunder; keeping in mind that once the institution had been upgraded to a High School and, thereafter, as an Intermediate College, the provisions of the Act No.5 of 1982 read with Act, 1921 became applicable and, therefore, the appointment ought to be made in accordance with those provisions. As in the decision making process, the second and third respondents have not examined the matter in proper perspective that is by testing the candidature of appointee/ proposed appointee in the light of the provisions of U.P. Act No.5 of 1982 read with Act, 1921, this Court finds it appropriate to remit the matter back to the Joint Director of Education, Basti Region, Basti (second respondent) to accord fresh consideration to the proposal of the petitioners i.e. the Management of the Institution for appointment of an officiating principal in the institution, pending appointment of a regular principal, in accordance with law and in the light of the observations made herein above.
Accordingly, and in view of the above, the order dated 16.08.2016 passed by the Joint Director of Education, Basti Region, Basti (Annexure No.8 to the writ petition) is set aside with a direction to the Joint Director of Education (second respondent) to hear both sides including any of the teachers of the institution who may be affected by such decision and pass a fresh order on the proposal of the Management in accordance with law and in the light of the observations made herein above, preferably, within a period of twelve weeks from the date of filing of certified copy of this order in his office. It goes without saying that any interim arrangement operating in the institution, as on date, would abide the decision taken by the second respondent pursuant to this order. It is also clarified that this order would not, under any circumstances, come in the way of appointment of a regular Principal as is required by law.
The writ petition stands allowed to the extent indicated above.
Order Date :- 10.11.2016 AKShukla/-