JUDGMENT Ashok Bhushan, J.
1. Heard counsel for the petitioner, Sri P.M. Saxena, Senior Advocate appearing for the respondents and the learned standing counsel.
2. By this writ petition, the petitioner has prayed for quashing the order dated 7th August, 2004 passed by Joint Director of Education (Annexure-1 to the writ petition).
3. The dispute in the writ petition relates to the seniority of the petitioner and respondent No. 6. the Joint Director of Education by the impugned order dated 7th August, 2004 has declared the respondent No. 6 senior to the petitioner while exercising jurisdiction under Chapter- II, Regulation 3 of the U.P. Intermediate Education Act, 1921.
4. Brief facts necessary for deciding the writ petition are; the petitioner was appointed in the year 1969 in a recognised institution, namely, Sahay Singh Balika Vidyalaya, Narhi, District Lucknow. By an order dated 28th September, 1983 the Regional Inspectress of Girls Schools, 4th Region, Allahabad transferred the petitioner from Sahay Singh Balika Vidyalaya, Narhi, District Lucknow to Arya Kanya Inter College, Govindpur, Kanpur. The said transfer order specifically mentioned Regulations 55 to 62 of Chapter-III of the U.P. Intermediate Education Act, 1921. The petitioner in pursuance of the said transfer order joined at Arya Kanya Inter College, Govindpur, Kanpur and is continuing in the said institution. Respondent No. 6 was appointed in Arya Kanya Inter College, Govindpur, Kanpur with effect from 7th November, 1975. The Committee of Management has shown the petitioner senior to respondent No. 6 in its seniority list. Respondent No. 6 has challenged the said seniority list and submitted an appeal before the Joint Director of Education which has been decided by the impugned order. The Joint Director of Education in the impugned order has taken the view that there were no service rule with regard to teachers of the primary section. He further held that inter-se seniority of the petitioner and respondent No. 6 shall be determined from the date of their appointment after the institution was taken in grant in aid. The Joint Director of Education held that seniority of the petitioner shall be treated only from 1st November, 1983 when she joined after transfer in Arya Kanya Inter College.
5. Learned Counsel for the petitioner, challenging the order, contended that the order of Joint Director of Education holding respondent No. 6 senior is incorrect. He submits that petitioner's transfer being under Chapter- III, Regulations 55 to 62, her services prior to transfer have to be added for the purposes of seniority by virtue of Regulation 59 of Chapter- III. He submits that Joint Director of Education committed error in reckoning the seniority of the petitioner only from 1.11.1983.
6. Sri P.N. Saxena, learned Senior Advocate, appearing for the contesting respondent, has submitted that both petitioner and respondent No. 6 being teachers of the primary section running attach to the Intermediate College their services are not governed by the provisions of Regulations 55 to 62 of Chapter- III of U.P. Intermediate Education Act, 1921 and the petitioner is not entitled to reckon her services prior to transfer.
7. I have considered the submissions raised by both the parties and perused the record.
8. The main issue which has arisen in the writ petition is with regard to applicability of the provisions of Regulations 55 to 62 of Chapter-III of UP. Intermediate Education Act, 1921 on the teachers working in attach primary section. Both petitioner and respondent No. 6 are teachers of the primary section of the girls Intermediate College, The institution is running from Class-1 to 12.
9. The question as to whether on the teachers of the primary section the provisions of UP. Intermediate Education Act, 1921 and regulations framed thereunder are applicable or not, has been answered by a Division Bench of this Court in 1993 (2) E.S.C. 177; Committee of Management v. Director of Education and Ors.. Following has been laid down in paragraphs 11 to 14 of the said judgment:
11. In view of the submissions made by the learned Counsel for the parties, the first question that requires consideration is whether the Act applies to the Primary Section also or not. Section 2(b) of the Act, as amended by the Ordinance which came into force on 7th July, 1975, defines the term 'Institution' as follows:
"Institution" means a recognised Intermediate College, Higher Secondary School or High School, and includes, where the context so requires, a part of an institution.
(emphasis supplied).
In view of this definition, the Act applied not only to Intermediate College, Higher Secondary School or High School but also to a part of such college or School. After the definition of 'institution' was amended, Appendix 'A' to the Act was also amended and minimum educational qualifications were prescribed for assistant teachers employed to teach primary classes (Classes I to V). In view of these amendments it is not possible to accept the submission of the learned Counsel for the appellant that the Act does not apply to the Primary Section. In taking this view, we have the support of the decision of a Division Bench of this Court in Smt. Samantika Chatterjee v. Regional Inspectress of Girls School (1990)1 UPLBEC 239. In paragraph 12 of the Report at page 246, the Division Bench after noticing the relevant provisions of the Act, has observed thus:
In the context and setting of Regulation 7(2), there can be no difficulty in taking the view that a teacher working in J.T.C./B.T.C. grade and assigned the task of taking the primary classes attached to a recognised Intermediate College or Higher Secondary School or High School would be considered to be working in the part of the institution.
12. Relying upon the decision of their Lordships of the Supreme Court in Km. Prem Lata Mishra's case (supra), the learned Single Judge held that the Act was not applicable to the Primary Section. In the said case, the order of termination of service had been passed in the year 1970, that is, before the definition of "Institution" was amended. After the amendment of the definition this authority has become irrelevant.
13. In Mahanand Singh and Ors. v. State of U.P. and Ors. 1978 ALJ 1042, a Division Bench of this Court held that the Act was inapplicable to Junior High School Section of a High School as it did not contain any provision regulating the administration or teaching of students of Junior High School standard. In making this observation the Division Bench solely relied upon the decision of their Lordships of the Supreme Court in Im. Prem Lata Misra's case (supra). It appears that the attention of the Division Bench was not invited to the amendments in Section 2(b) and the Appendix 'A' thereof referred to hereinabove.
14. In view of the amendments in the Act and the law laid down in Smt. Samantlka Chatterjee's case (supra), the finding of the learned Single Judge that the Primary Section of the Institution is not covered by the Act cannot be sustained.
10. Learned Counsel for the contesting respondent has also very fairly drawn my attention to Appendix 'A' of Chapter- II, which provides qualifications for teachers of junior classes (6 to 8) and teachers of primary sections (Classes 1 to 5). The prescription of qualification in Appendix 'A' clearly indicates that the teachers of the primary sections are not out of the purview of the U.P. Intermediate Education Act, 1921. The Division Bench has already held that provisions of U.P. Intermediate Education Act, 1921 are applicable to the teachers of primary section. Moreso, in the present case the transfer order was passed by the Regional Inspectress of Girls School specifically referring Regulations 55 to 62, thus, the transfer order itself was under the power conferred under Regulations 55 to 62. In this writ petition there cannot be any challenge to the transfer order which was passed 23 years ago nor any such challenge has been made. Regulation 59A is squarely applicable as it was existing at the relevant time, hence the petitioner's services prior to transfer has to be added for the purposes of seniority.
11. In view of the foregoing discussions, the order of Joint Director of Education, impugned in the writ petition, cannot be sustained and is hereby quashed. It is held that petitioner is senior to respondent No. 6.
12. The writ petition is allowed accordingly.