Court No. - 34
Case :- WRIT - A No. - 12431 of 2017 Petitioner :- Smt. Nirmal Rani Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Hari Nath Tripathi Counsel for Respondent :- C.S.C.,Krishna Murari Tripathi
Hon'ble Yashwant Varma,J.
Heard Dr. H.N. Tripathi, learned counsel for the petitioner and Sri Vikram Bahadur Yadav, learned Standing Counsel who appeared for the State respondents.
The instant writ petition has been preferred seeking the following reliefs:
“A. To issue a writ, order or direction in the nature of CERTIORARI quashing the impugned order dated 23.02.2017 passed by respondent no. 2 (Annexure no. 1 to the writ petition).
B. To issue a writ, order or direction in the nature of MANDAMUS directing the respondents to give the benefit of absorption to the petitioner in L.T. Grade in view of the Government Orders.
C. To issue a writ, order or direction in the nature of MANDAMUS directing the respondents to make absorption of the petitioner in L.T. Grade and to make fixation of the petitioner in L.T. Grade and to pay arrears of salary with payable interest for the period of 19.06.1991 to 30.06.2010.”
In terms of the order impugned, the respondents have denied the petitioner’s claim for absorption in the L.T. grade of Assistant Teachers. The impugned order holds against the petitioner by observing that since the petitioner was not engaged in an attached primary section, she would not be entitled to the benefits of the Government Orders of 09 December 2003 and 24 May 2004. Additionally, the respondents have held that the petitioner also did not possess the requisite qualifications required for appointment as an Assistant Teacher. Insofar as this issue is concerned, they hold against the petitioner by noting that she not only did not possess an Intermediate certificate issued by the Board of High School and Intermediate Examination, she also did not hold a recognized training qualification. Since this petition admittedly represents the fourth round of litigation inter partes, it would be apposite to briefly notice the following essential facts.
The petitioner claims to have been appointed as an Assistant Teacher in the C.T. grade on 01 July 1978. The post of Assistant Teacher required the holder thereof to possess a Graduation degree along with a recognized training qualification. The petitioner at the time of her initial appointment and as per her own showing had passed her High School Examination from the Board of High School and Intermediate Education of U.P. in 1969. She is thereafter stated to have obtained the “Madhyama” and “Uttama” certificates in 1975 and 1979 from the Hindi Sahitya Sammelan. The petitioner further avers that she also successfully cleared the Shiksha Visharad examination conducted by Hindi Sahitya Sammelan, which according to her is liable to be treated as equivalent to a B.Ed degree. Her appointment is stated to have been accorded financial approval and pursuant thereto, she drew salary up to 08 August 1995.
On 09 August 1995, the financial approval which was accorded was withdrawn. The petitioner was consequently relieved from the post of Assistant Teacher in C.T. Grade in the respondent institution. Those orders came to be challenged by the petitioner by way of a writ petition being Writ Petition No. 9000 of 19961. The learned Judge proceeded to quash the orders impugned holding that it was incumbent upon the respondents to draw regular disciplinary proceedings before terminating the services of an Assistant Teacher whose appointment had been duly approved. That writ petition was allowed on 17 November 1999 with the learned Judge holding thus:
“ In view of the unrebutted statements contained in the writ petition that termination order has been passed in violation of the principle of natural justice, that she was given no charge sheet, that no disciples of natural justice, that she was given' no charge sheet that no disciplinary enquiry was held as contemplated under Regulations framed under the U.P. High Schools and Intermediate Education Act and that the employer (Committee of Management of the Institution) had taken no 1 [Smt. Nirmal Rani Vs. Stated of U.P. & Others] decision its own and that she was directed to be relieved under the dictates of the District Inspector of Schools without giving opportunity as contemplated under law, the impugned orders are vitiated in law and cannot be sustained.
Accordingly, I issue a writ of certiorari quashing the impugned orders dated 9 August 1995 (Annexure – IV to the writ Petition) and 21 August 1995 (Annexure V to the writ petition). A writ of mandamus is also issue directing Respondents to reinstate the Petitioner treating her in services continuously with affect from 8th August 1995 for all purposes including seniority, pension, etc. Petitioner will be paid salary in future by giving benefit of and accounting for the annual increments, all allowances perks etc, and she will be paid future salary month by month along with other staff of the College. It is further directed that concerned authorities shall decide the question of payment of arrears of salary for the period from August 1995 till the date of joining after taking into account whether Petitioner has been willing to work and that she was not gainfully employed elsewhere including such other mitigating circumstances as may be relevant under law. In case Petitioner was not gainfully employees and willing to work, she shall be paid full back wages with 12% per annum simple interest from the date of salary being due till the date of actual payment of the dues.”
Admittedly, the aforesaid judgment attained finality with an intra- court appeal preferred by the State coming to be dismissed on 07 October 2002 and the Special Leave Petition preferred before the Supreme Court meeting an identical fate. The petitioner is thereafter stated to have been reinstated on 07 December 1999.
On 24 May 2004, a Government Order came to be issued declaring the C.T. Grade to be a dying cadre with effect from 16 February 1991. In order to undertake the requisite exercise of absorption of those teachers who were working in the C.T. Grade, that Government Order provided for certain relaxations. The aforesaid Government Order which forms part of the record and has been relied upon, makes the following provisions:
“उपर्यरक्त िविषयक िसिविविल िमिसिव िरिट िपर्टीशन सिवंख्या- 5441(एसिव०एसिव०)/97 रिाघवि रिामि िद्विविेदी वि अन्य बनामि उ०प्र० सिवरिकारि वि अन्य मिे मिा० उच्च न्यायालय के आदेश िदनांक- 11.7.2002 मिे सिवन्दिभरत िरिट यािचका सिवंख्या- 5545 (एसिव०बी०)/92 मिे पर्ािरित आदेश िदनांक 15-10-99 के अनपर्ालन मिे मिझे यह कहने का िनदेश हुआ है िक इसिव सिवम्बन्ध मिे पर्ूर्विर िनगरत शासिवनादेशों एविं िशक्षा अनुभाग- 7 की अिधसिवूर्चना सिवंख्या-यूर्०ओ०-83/15-7-97-3073/96, िदनांक-18-
12-97 मिे सिवी०टी० ग्रेड के िशक्षकों को एसिव०टी० ग्रेड के सिवम्विगर मिे सिवंिविलीन िकये जाने हेतु िनधारिरित की गयी अहरता एविं सिवेविावििध सिवम्बन्धी शतो को िशिथिल करिते हुये प्रदेश के अशासिवकीय सिवहायता प्राप ् त उच्चतर ि मिाध्यिमिक िविद्यालयो ं मिे कायररित सिवी०टी० ग्रेड के ऐसिवे िशक्षको ं को जो िदनांक 19-2-91 (सिवी०टी० सिवंविगर के मिृत घोिषत िकये जाने का ितिथि) या उसिवके बाद की ितिथ ि को 5 विषर की सिवंतोषजनक सिवेविा पर्ूर्णर करिते है, को एल०टी० ग्रेड के सिवंविगर मिे सिवंिविलीन करिने की श्री रिाज्यपर्ाल मिहोदय सिवहषर स्विीकृ ित प्रदान करिते है । 2. उपर्रिोक्तानुसिवारि सिवंिविलीन हुये अशासिवकीय सिवहायता प्राप्त उच्चतरि मिाध्यिमिक िविद्यालयों के सिवी०टी० सिवंविगर के िशक्षकों का एल०टी० सिवंविगर के सिवाधारिण विेतनमिान मि विेतन िनधारिण िवित्तीय िनयमि सिवंग्रह खण्ड-2 भाग-2 सिवे 4 के मिूर्ल िनयमि-22 के नीचे अंिकत सिवम्पर्रिीक्षा िनदेश के अनुसिवारि िकया जायेगा । इन िशक्षकों को मिूर्ल िनयमि-23 (1) के अन्तगरत िविकल्पर् का अिधकारि होगा ।"
The aforesaid Government Order was preceded by a Government Order of 09 December 2003 which dealt with the case of those existing Assistant Teachers who did not possess the requisite training qualification. The relevant part of that Government Order reads thus:
"उपर्यरक्त िविषयक िनदेशालय के पर्त्राकं सिवा० (3)/सिवा-(1)/िशिविरि/266 ए/2002-03 िदनांक 4 फरिविरिी 2003 के सिवंदभर मिे सिवम्यक िविचारिोपर्रिान्त मिझे आपर्सिवे यह कहने का िनदेश हुआ है िक अशासिवकीय सिवहायता प्राप्त मिाध्यिमिक िविद्यालयों सिवे सिवम्बध्द प्राईमिरिी प्रभाग मिे िनयक्त एविं कायररित अप्रिशिक्षत सिवहायक अध्यापर्कों को प्रिसिवक्षण मिुिक्त प्रदान िकये जाने हेतु िनम्नवित् िनणरय िलए गये है-
1. अशासिवकीय सिवहायता प्राप्ता मिाध्यिमिक िविद्यालयों सिवे सिवम्बध्द प्राइमिरिी प्रभाग मि िनयक्त एविं कायररित िजन अप्रिशिक्षत सिवहायक अधअयापर्कों की सिवविे ाये िदनांक 31.12.2003 को 5 विषर की हो गयी हो अथिविा िजनकी सिवेविा िनविृित्त मिे मिात्र दो विषर शेष रिह गये हों उन्हे (5 विषर के अध्यापर्न काल के प्रितबंध के सिवाथि) प्रिशक्षण मिुिक्त प्रदान की जाय ।
2. भिविष्य मिे अशासिवकीय सिवहायता प्राप्त मिाध्यिमिक िविद्यालयों सिवे सिवम्बध्द प्राइमिरिी प्रभाग मिे (मिृतक आिश्रतों के सिवेविायोजनों के अितिरिक्त) िकसिवी भी दशा मिे अप्रिशिक्षत सिवहायक अध्यापर्क की िनयिु क्तयाँ न की जाय ।
3. उक्त कट आफ डेट (िद० 31-12-2003) मिे अच्छािदत न होने विाले अप्रिशिक्षत सिवहायक अध्यापर्कों को प्रिशक्षण सिवे मिुिक्त का यह लाभ अनुमिन्य नही होगा।
4. ऐसिवे अध्यापर्क/अध्यािपर्काओं के सिवम्बन्ध मिे प्रिशक्षण सिवे मििु क्त के आधेश सिवम्बित न्धत मिण्डल के मिण्डलीय सिवंयक्त िशक्षा िनदेशक द्विारिा िनगरत िकये जायेगे ।
5. उक्त व्यविस्थिा पर्रि उपर्ाशियत व्यंग-भारि को अनुदान सिवंख्या 71 के सिवंगत लेखा शीषरक मिे प्रािविधािनत बजट सिवे विहन िकया जायेगा । कृ पर्या शासिवन के उपर्रिोक्त िनणरय को सिवम्बंिधत अिधकािरियों के सिवंज्ञान मिे लाते हुए आविश्यक कायरविाही सिवुिनित श्चत करिने का कष्ट करिे । भविदीय, (एल० पर्ी० पर्ाण्डेय) िविशेष सिविचवि ।"
The petitioner claims that notwithstanding the fact that she did not possess the training qualification as required and mandated under the Regulations, she would be entitled to be absorbed in the L.T. Grade in light of the aforementioned two Government Orders. That claim as raised by the petitioner came to be refused by the respondents. The petitioner thereafter and in light of the view so taken by the respondents filed Writ – A No. 8656 of 20102 assailing the order of 15 December 2009 whereby the District Inspector of Schools had refused her prayer for absorption in the L.T. grade. The Court while dealing with the challenge to the aforesaid order also took into consideration the provisions made in the Government Order of 23 June 2005 which again dealing with the question of relaxations made the following provisions:
“उपर्यरक्त िविषयक शासिवनादेश सिवंख्या-3096/ 15-7-2004-1 (215)/2004 िदनांक 24 मिई 2004 का सिवन्दभर ग्रहण करिे, िजसिवके द्विारिा पर्ूर्विर िनगरत शासिवनादेशों एविं िशक्षा अनुभाग-7 की अिधसिवूर्चना सिवंख्या-यूर्०ओ०-83/ 15-7-97-3073 िदनांक 18.12.1997 मिे सिवी०टी० ग्रेड के िशक्षकों को एल०टी० ग्रेड के सिवम्विगर मिे सिवंिविलीन िकये जाने हेतु िनधारिरित की गयी अहरता एविं सिवेविावििध सिवम्बन्धी शतों को िशिथिल करिते हुए प्रदेश के अशासिवकीय सिवहायता प्राप्त उच्चतर ि मिाध्यिमिक िविद्यालयो ं मिे कायररित सिवी०टी० ग्रेड के ऐसिवे िशक्षको ं को, जो िदनांक 19-2-1991 (सिवी०टी० सिवंविगर के मिृत घोिषत िकये जाने की ितिथि) या उसिवके बाद की ितिथ ि को 5 विषर की सिवंतोषजनक सिवेविा पर्ूर्णर करिते है, को एल०टी० ग्रेड के सिवंविगर मिे सिवंिविलीन करिने की सिवुिविधा प्रदान की गयी है । इसिव सिवंबंध मिे यह िशकायते प्राप्त हो रिही है िक कितपर्य जनपर्दों मिे उपर्ुयरक्त शासिवनादेश मिे उिल्लिखिखत व्यविस्थिा के अनुसिवारि कायरविाही नही की जा रिही है औरि िदनांक 19-2-91 या उसिवके बाद की ितिथि 5 विषर की सिवंतोषजनक सिवेविा पर्ूर्णर करिने विाले िशक्षकों को एल०टी० ग्रेड के सिवंविगर मिे सिवंिविलीन नही िकया जा रिहा है । 2 [Smt. Nirmal Rani Vs. Stated of U.P. & Others] शासिवनादेश मिे िदये गये िनदेशों का कठोरिता सिवे अनुपर्ालन िकया जाए ।”
After considering the submissions of respective parties on that writ petition, this Court proceeded to allow the writ petition as under:
“This Court finds that the counter affidavit filed on behalf of the State respondents does not deal with the issue of applicability of the Government Order dated 23 June 2005 at all. Insofar as the applicability of the Government Order dated 9 December 2003 is concerned, while the State respondents do take an objection to its applicability in the counter affidavit, the same does not form a ground for the passing of the order impugned in this writ petition. More importantly, there is no traverse to the pleadings taken in paragraphs 5 to 8 of the writ petition in which it has been categorically asserted that the institution was brought on the grant-in- aid list, had been duly upgraded up to the intermediate level and that the petitioner had been paid salary under the provisions of the 1971 Act. The other issue which the respondents have failed to advert to is the judgement rendered by this Court on 17 November 1999 when the order withdrawing financial approval to her initial appointment came to be quashed and set aside by this Court. These aspects in the opinion of this Court, which clearly fell for consideration in support of the claim of the petitioner have neither been alluded to nor considered by the respondents while rejecting her claim by the order dated 15 December 2009.
Consequently, the aforesaid order cannot be sustained. Accordingly, this writ petition shall stand allowed. The impugned order of 15 December 2009 is hereby quashed. The District Inspector of Schools, Bareilly shall proceed to consider the claim of the petitioner for absorption in the L.T. Grade afresh and in accordance with the observations appearing herein before. The above exercise shall be completed by the District Inspector of Schools expeditiously and preferably within a period of two months from the date of production of a certified copy of this order.”
Pursuant to the order of remand, the respondents again proceeded to reject the claim of the petitioner for absorption in the L.T. Grade by an order dated 03 September 2016. The order was challenged by the petitioner by way of yet another writ petition being Writ – A No. 45131 of 20163. That writ petition was allowed by a learned Judge on 20 September 2016 holding that while denying the claim of the petitioner, the respondents had failed to bear in mind the previous judgment which had required them to examine and evaluate the claim of the petitioner in light of the Government Orders of 09 December 2003 and 23 June 2005. It is pursuant to this last order passed on the writ petition that the impugned order has come to be passed.
Dr. Tripathi, learned counsel for the petitioner submits that the 3 [Smt. Nirmal Rani Vs. Stated of U.P. & Others] reasoning adopted by the respondents for refusing the claim of the petitioner solely on the ground that she was not working in an attached primary institution would clearly merit being set aside since undisputedly the institution was one composite unit and the respondents have failed to bear in mind the judgment of the Court rendered in Jai Ram Singh Vs. State of U.P. 4 Dealing with the issue of an attached primary section and answering the question whether a a formal order of “attachment” is required in law, the Court in Jai Ram Singh held thus:
“46. Whether the various sections of an institution imparting education to different tiers of classes are integrated, fundamentally and on first principles, is an issue of fact. A primary section which is an integral part of an institution, be it a junior high school, high school or intermediate college, would remain and be entitled to be recognised in law as such irrespective of an order of attachment made by the respondents. An institution would be entitled in law to be treated and viewed as one unit if its various components satisfy the tests propounded in Vinod Sharma I. This would not and cannot depend upon an order of attachment existing in this respect. An issue of whether an institution is ''one unit'' would have to be considered bearing in mind the determinative factors which were formulated in Vinod Sharma I and whether that institution has the requisite attributes of integrality. This would, as noted above, be an issue which would have to be tested on the anvil of the factors that were formulated in Vinod Sharma I in respect of each individual institution and in any case would not be dependent upon the existence or absence of an order of attachment.
…..
49. In the considered view of this Court, the fundamental aspect which would merit recognition and elucidation is of ''composite integrality''. An institution may be made up of various sections or compartments. This would depend upon the various tiers in the educational hierarchy that it serves. Be it a primary school, junior high school, high school or intermediate college, if it has the attributes of commonality as judicially evolved and recognised it would be deemed to be one institution. Its various components must be found to exist as an amalgam, indelibly fused together to constitute a singular institution. The factors of a common campus, functioning under the control of the same management, a singular Headmaster administering the institution and a seamless integration between different sections, would cumulatively establish its composite integrality. In the considered view of this Court, the question of composite integrality would have to be answered upon a conjoint consideration of the various factors noticed above.
50. However there is one aspect that needs to be elaborated upon before this Court proceeds further. Education has undergone a sea change since 4 [(2019) 6 ADJ 255] Vinod Sharma I came to be decided. The sheer number of students seeking admission in the system, the number of students in each class, the range of subjects which are taught, the student teacher ratio liable to be maintained, the infrastructural norms laid down by statute in respect of different levels of the education system, the allied facilities which are mandated to be established, may not leave it feasible for all sections to function out of a common campus. At least that cannot be viewed as the determinative norm or a sine qua non in today's times. There may in fact be situations where it may be expedient to segregate, insulate and shield a primary section from the higher classes. The nature of the environment which is required to be created and maintained in a primary institution, may itself mandate its insulation and be desirable and prudent. Judicial notice can also be taken of even Universities today functioning out of separate and yet integrated study centers and campuses. All that the Court seeks to emphasise is that the attribute of a common campus may have lessened in its relevance. At least it may no longer be liable to be viewed as the determinative norm in all situations.”
Insofar as this issue is concerned, Sri Vikram Bahadur Yadav, learned Standing Counsel, fairly concedes that the aforesaid reasoning may not sustain bearing in mind the fact that the issue of absorption of an Assistant Teacher in the C.T. Grade cannot be recognized as being dependent on whether a formal order of attachment existed in respect of the primary section as explained by the Court in Jai Ram Singh . Learned counsels for parties are ad idem that in light of the judgment of the Court in Jai Ram Singh , no formal order of attachment is in fact envisaged to exist. Whether a primary section is in fact and integral part of the institution is essentially a question of fact. The Court notes that in the impugned order, the respondents do not allude to any circumstance which may indicate that the primary section was not an integral part of the institution.
That then takes the Court to the second objection which weighed with the respondents in holding against the petitioner namely, that she did not possess the essential qualifications as required for appointment as an Assistant Teacher. Undisputedly, the Appendix which stands placed in Chapter -III of the Regulations framed under the Intermediate Education Act, 19215 require an Assistant Teacher to possess a Graduation degree along with a training qualification which may include 5 1921 Act certificates such as B.T.C. or in the alternative a B.Ed. degree. The respondents along with the counter affidavit have placed on the record Government Orders which clearly hold that the certificates of “Madhyama” and “Sahitya Ratna”, are not recognised as being equivalent to the Intermediate certificate or a Graduation degree. Regard must be had to the fact that neither of the two qualifications are recognised as equivalent to the Intermediate certificate or a Graduation degree under the various Regulations framed under the 1921 Act. The only certificate issued by the Hindi Sahitya Sammelan which finds recognition in the Regulations framed under the 1921 Act as a valid training qualification is the Visharad examination in terms of the provisions made in Chapter -III of the Regulations. From the aforesaid recordal of facts and the statutory regimen that stands in place, the following position emerges. While the Visharad examination certificate issued by the Hindi Sahitya Sammelan may be recognised as a valid training qualification under the provisions of the 1921 Act, the other two certificates which are relied upon by the petitioner have been accorded no recognition under the concerned statute as being equivalent either to the Intermediate certificate or a graduation degree. The position which indubitably emerges from the aforesaid discussion is that the petitioner at the time of her initial appointment, had only passed the High School Examination and did not hold either the Intermediate certificate or a Graduation degree. Regard must also be had to the fact that as per her own disclosure, she passed the Intermediate examination in 1980 whereas she had come to be appointed as an Assistant Teacher in 1978. It is thus manifest that the petitioner did not possess the essential qualifications which were prescribed under the 1921 Act for appointment as an Assistant Teacher. Significantly, this issue was neither raised nor examined in the earlier rounds of litigation which ensued inter partes.
That leaves the Court to deal with the contention of Dr. Tripathi that the Government Orders of 9 December 2003, 24 May 2004 and 23 June 2005 absolve Assistant Teachers in the C.T. grade of the obligation to possess the qualifications otherwise prescribed for an Assistant Teacher under the 1921 Act for the purposes of their absorption in the L.T. grade. As this Court views the provisions made in the three Government Orders noticed above, it is evident that the submission as addressed would not sustain for the following reasons.
It becomes apposite to note that that the Government Orders on which reliance has been placed, must be understood in the backdrop of the cadre of C.T. grade being declared to be a dying cadre and thus the consequential requirement of absorption of all those Assistant Teachers who were working in that cadre in the L.T. Grade. The respondents appear to have been cognizant of the fact that various Assistant Teachers in the C.T. grade had come to be appointed even though they did not hold the requisite training qualification. It was that issue which was essentially dealt with in those orders as would be evident from the following discussion. The Government Order of 9 December 2003 provided that all those Assistant Teachers working in primary sections attached to private and aided secondary educational institutions who would complete 5 years of service as on 31 December 2003 would stand exempted from undergoing requisite training. The Government Order of 24 May 2004 prescribed that consequent to the C.T. grade being declared a dying cadre with effect from 19 February 1991, all teachers in that grade who had completed 5 years of satisfactory service would stand absorbed in the L.T. grade. This position was reemphasized in the Government Order of 23 June 2005. However, neither of these three orders postulate or exempt Assistant Teachers from holding the essential qualifications which were prescribed in the 1921 Act. These orders merely prescribed the length of service which would be relevant for the purposes of adjudging the right of Assistant Teachers in the C.T. grade to be absorbed in the L.T. grade. The order of 9 December 2003 was confined to an exemption from the requirement of compulsory and mandatory training. It dealt with that limited aspect alone. In any case, none of the government orders exempted Assistant Teachers from the statutory obligation of possessing the essential qualifications prescribed by the 1921 Act.
Regard must be had to the fact that the provisions made in Appendix -A and Chapters II and III of the Regulations framed under the 1921 Act constitute an integral part of the statute itself. A statutory provision can be amended only in accordance with the procedure prescribed by law in that respect. The 1921 Act does not envisage an amendment to the provisions made therein by a mere executive order. Acceptance of such a submission would undoubtedly be violative of the provisions of Sections 15 and 16 of the 1921 Act. In any case the aforesaid issues need not detain the Court at all since on a reading of the three Government Orders, this Court is of the firm opinion that they did not envisage or postulate an exemption from essential qualifications which an Assistant Teacher was otherwise obliged to possess. The Court finds itself unable to accept the contention that those orders conferred a right on Assistant Teachers to be absorbed in the L.T. grade notwithstanding they not holding the essential qualifications which stood prescribed under the 1921 Act.
Accordingly, and for the aforesaid reasons, this writ petition fails and shall stand dismissed .
Order Date :- 29.9.2021 Arun K. Singh (Yashwant Varma, J.)