Mohd. Tariq And Another vs State Of U.P. And 3 Others
2017 Latest Caselaw 3854 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 17
 
Case :- WRIT - A No. - 28718 of 2017
 
Petitioner :- Mohd. Tariq And Another
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Pradeep Kumar Upadhyay, Ashok Khare
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

This writ petition is directed against the order passed by the District Inspector of Schools, Allahabad, the second respondent, dated 27th May, 2017, whereby he has rejected the representation of the petitioners for approval to the appointment of a Clerk in the institution.

The essential facts of the case are that Standard Intermediate College, Mau Aima, Allahabad1 is a recognised and aided institution. It has also been declared as a minority institution. The institution is run and conducted by the Committee of Management, the petitioner no. 2. The affairs of the institution are governed under the provisions of the Intermediate Education Act, 19212, Regulations3 framed thereunder and the Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 19784. Earlier the institution was a Junior High School. It was later raised to High School and then Intermediate level. However, it receives financial aid only upto the level of Junior High School.

The dispute arose when a post of Clerk in the institution fell vacant due to retirement of the permanent incumbent Sri Vishambhar Nath Mishra on 01st January, 2016. The said post is a sanctioned post and the salary was drawn by the regular incumbent from the salary payment account. The Committee of Management of the institution on 01st February, 2016 informed the District Inspector of Schools regarding the said vacancy and issued an advertisement on 13th February, 2016 in Hindi newspaper 'Dainik Jagran'. Petitioner no. 1 claims that he is fully eligible and qualified for appointment on the post of Clerk, hence he made an application pursuant to the said advertisement. He further claims that a duly constituted Selection Committee was convened on 06th March, 2016, which selected the petitioner no. 1 and placed him at Serial No. 1 in order of merit in its recommendations.

On 26th March, 2016 the recommendation of the Selection Committee was considered by the Committee of Management and it resolved to approve it and accordingly, sent the papers to the office of the District Inspector of Schools, the second respondent, for his approval along with the requisite papers. When no communication was received from the office of the District Inspector of Schools, the Committee of Management issued an appointment letter to the petitioner no. 1 in anticipation as without Clerk functioning of the institution was adversely affected. Petitioner no. 1 states that he has submitted his joining on 07th November, 2016 in the office of the Principal of the institution. When the salary bill of petitioner no. 1 was sent to the office of the third respondent, the Finance and Accounts Officer in the office of the District Basic Education Officer, Allahabad, he raised some objection with regard to payment of salary to petitioner no. 1.

When the third respondent did not pass any order regarding payment of salary to petitioner no. 1, the petitioners preferred a writ petition, being Writ-A No. 2012 of 2017 (Mohd. Tariq and another v. State of U.P. and others) for a direction upon the respondents for payment of salary.

From the record it appears that Kewal Prasad Singh, intervenor, had also preferred a writ petition, being Writ-A No. 2679 of 2016 (Kewal Prasad Singh v. State of U.P. and others), for his promotion to the post of Clerk inter alia on the ground that the post be filled by promotion and not by direct recruitment.

Both the aforesaid writ petitions were disposed of by this Court vide its order dated 02nd February, 2017 issuing a direction to the District Inspector of Schools to consider the grievance of the petitioners along with objection of intervenor Kewal Prasad Singh, who claimed his promotion on the post of Clerk.

After the aforesaid order of this Court, the petitioner no. 1 had submitted a detailed representation dated 09th February, 2017 before the District Inspector of Schools, a copy whereof is on the record as annexure-8 to the writ petition. The District Inspector of Schools, after hearing both the parties, by the impugned order dated 27th May, 2017 has decided the matter and taken the view that he does not have jurisdiction in the matter as the institution is receiving grant-in-aid upto the level of Junior High School, hence the District Basic Education Officer is the appropriate authority. Dissatisfied with the said order, the petitioners have preferred this writ petition.

Learned Standing Counsel has received the instruction from the District Inspector of Schools, Allahabad. At his request, it has been placed on the record.

The stand taken by the District Inspector of Schools in his instruction, which has been signed by him, is that the institution is aided only upto the level of Junior High School. It is governed under the provisions of the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 19785, the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Ministerial Staff and Group 'D' Employees) Rules, 19846 and the Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978. The institution is recognised upto Intermediate college as Vittaviheen. Therefore, the appropriate authority is the District Basic Education Officer. He has referred to a communication of the Additional Secretary, Madhyamik Shiksha Parishad, Uttar Pradesh, Allahabad dated 25th November, 1996 recognising the institution upto the level of Intermediate. He has mentioned that there is no provision for the payment of salary of the teachers, who are working in the High School and Intermediate Sections, and their salary is paid by the Committee of Management from its own resources. It is also mentioned that in the Junior High School only one post of Clerk is sanctioned, which fell vacant on 31st December, 2005 (sic 2015).

I have heard Sri Ashok Khare, learned Senior Advocate assisted by Sri Pradeep Upadhyay, learned counsel for the petitioners, and learned Standing Counsel.

Sri Ashok Khare, learned Senior Counsel appearing for the petitioners, submits that the view taken by the District Inspector of Schools that he has no jurisdiction and the appropriate authority is the District Basic Education Officer is contrary to the law laid down by this Court. He further submits that this Court has taken a consistent view that once a Junior High School is raised to the level of High School or Intermediate, Junior High School losses its entity and the institution is governed under the provisions of the Act, 1921, hence the District Inspector of Schools is the appropriate authority. He strenuously urged that the District Inspector of Schools has passed the order in most casual way and by a cryptic order he has rejected the claim of the petitioner no. 1. Sri Khare also submits that the District Inspector of Schools has called the written representations from both the sides and the petitioner has submitted a detailed representation dated 09th February, 2017 but the District Inspector of Schools has not adverted to the said representation which was on his record.

It is also submitted that the State Government vide a Government Order dated 03rd November, 2015 has provided that 80% posts shall be filled by direct recruitment and the promotion quota has been reduced to only 20%.

In support of his submissions, Sri Khare has placed reliance on the judgments of this Court in the cases of Smt. Manju Awasthi and others v. State of U.P. and others7, Om Prakash v. State of U.P. and others8, and Pramod Singh v. State of U.P. and others9, wherein it has been held that to a Junior High School on being upgraded to High School the provisions of the Act, 1921 and the Uttar Pradesh Secondary Education Services Selection Board Act, 1982 [U.P. Act No. 5 of 1982] are applicable and the District Basic Education Officer has no authority to deal with a recognised institution under the provisions of the Act, 1921. He has a limited authority only to deal with the payment of salary under the provisions of the Rules, 1978.

Sri A.K. Upadhyay, learned Standing Counsel, has supported the view taken by the District Inspector of Schools.

I have considered the submissions advanced by the learned counsel for the parties and perused the record.

The core question which arises in this case is whether a Junior High School, which is upgraded or raised to High School (unaided), losses its identity as Junior High School and becomes a recognised institution under the provisions of the Act, 1921 or it retains its identity upto the level of Junior High School or it is a split institution (i) retaining its identity as Junior High School and (ii) its High School section is governed under the provisions of the Act, 1921.

This question is no more res integra. This Court in a long line of decisions has settled this issue. Incidentally, no discordant note has been sounded in any judgment taking a view otherwise. But still the District Inspector of Schools has, in this case and in other cases also, taken and takes the view that in the matter of an institution which is raised to High School and which is receiving financial aid only upto the level of Junior High School, the District Inspector of Schools has no jurisdiction in the matter.

Before adverting to the impugned order, wherein the District Inspector of Schools, in spite of the direction of this Court to decide the matter, hands off on the ground that he has no jurisdiction in the matter as the institution is receiving aid upto the level of Junior High School and only the District Basic Education Officer can decide the dispute in respect of the teachers/ employees of the institution, it is expedient to understand and consider the necessary law and the judgments on the issue.

The Junior High Schools/ Basic Schools are governed under the provisions of the Uttar Pradesh Basic Education Act, 197210. The term 'basic education' is defined under Section 2(1)(b) of the Act, 1972, which provides that 'basic education' means education up to the eighth class imparted in schools other than high schools or intermediate colleges. The said definition reads as under:

"2.(1)(b). "basic education" means education up to the eighth class imparted in schools other than high schools or intermediate colleges, and the expression "basic schools" shall be construed accordingly;"

Before enactment of the Act, 1972 the primary schools were run and conducted by the local bodies (Zila Panchayats or Municipalities). After the enactment of the Act, 1972, all such institutions were placed under the control of the Uttar Pradesh Board of Basic Education11 constituted under Section 3 of the Act, 1972. The Board has control over the teachers and properties of the basic schools. Section 19 of the Act, 1972 empowers the State Government to make rules for carrying out the purposes of this Act among others for the recruitment and the conditions of service of teachers and employees working in these institutions.

In exercise of the said power, the State Government has framed the Uttar Pradesh Basic Education (Teachers) Service Rules, 198112, which deals with the recruitment and service conditions of the teachers working in the basic schools conducted by the Board.

The second category of the institutions are those Junior High Schools where education is imparted to boys or girls or both from Classes VI to VIII. These institutions are recognised by the Board though they are not established by the Board but by the societies registered under the Societies Registration Act and their affairs are conducted by the Managing Committee or other bodies. The State Government had framed a separate rule laying down the qualifications for teachers, procedure for selection, disciplinary proceedings, termination of services and their transfers.

These recognised Junior High Schools are entitled for the financial aid from the State Government subject to fulfillment of the criteria laid down by the State Government from time to time. In case the State Government finds that they fulfil the norms, it enlists them for financial aid (grant-in-aid). Once the institution is brought on the grant-in-aid list of the State Government, liability for payment of salary of teachers and non-teaching staff of every such institutions lies on the State Government.

By the U.P. Act No. 6 of 1979 the Legislature enacted the Act, 1978 i.e. the Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and Other Employees) Act, 1978. As noted above, under the provisions of this Act the State takes responsibility for the payment of salaries of staff of the institutions.

Similar Act, being the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 197113, has been enacted by the Legislature which takes the responsibility for the payment of teachers and employees of the recognised institutions under the Act, 1921.

The District Basic Education Officer is the appropriate authority to deal with the affairs of the basic schools conducted by the Board as well as the Junior High Schools established and run by the Managing Committees. If a Junior High School is desirous to raise itself to High School or higher secondary or Intermediate/secondary level and it has sufficient infrastructure in terms of the Regulations framed under the Act, 1921 and it applies for the recognition by the Uttar Pradesh Board of High School and Intermediate Education constituted under the provisions of the Act, 1921 and in the event the Board of High School and Intermediate Education is satisfied and it grants recognition to the institution, then the institution becomes a recognised institution under the definition of institution under Section 2(b) of the Act, 1921. Section 2(d) thereof deals with recognition. Sub-sections (b) and (d) of Section 2 of the Act, 1921 are extracted below:

"(b) "Institution" means a recognised Intermediate College, Higher Secondary School or High School, and includes, where the context so requires, a part of an institution, and 'Head of Institution' means the Principal or Head Master, as the case may be, of such institution;

* * *

(d) "Recognition" means recognition for the purpose of preparing candidates for admission to the Board's examinations;"

Once a Junior High School gets recognition under the provisions of the Act, 1921, its affairs are governed under the Act, 1921 and the Regulations framed thereunder. A survey of the scheme of the Act, 1921 indicates that there is no provision therein for a split institution. The Junior High School becomes an institution in terms of Section 2(b) of the Act, 1921. The word "Headmaster" used in Section 2(b) clearly indicates that its entire entity is merged as an institution recognised in the Act, 1921 along with its teachers and employees. Section 2(bb) of the Act, 1921 defines the 'Inspector', who performs all the functions assigned to him under the provisions of the Act, 1921 and the Regulations.

In a large number of cases serious dispute arose in respect of status of a Headmaster in a Junior High School, which is raised to the level of higher secondary/high school, and the said dispute has been settled in a series of decisions. Reference may be made to the judgments in State of U.P. and others v. District Judge, Varanasi and others14, Shiksha Prasar Samiti, Babhanan district Gonda v. State of U.P. and others15, Ajay Pratap Rai v. District Basic Education Officer, Jaunpur and others16, Committee of Management, Aditya Birla Intermediate College, Renukoot, Sonebhadra v. State of U.P. and others17, Banwari Prasad Pandey v. State of U.P. and others18, Basic Shiksha Adhikari, Ambedkar Nagar v. Paras Nath Gupta and others19, and Smt. Manju Awasthi and others (supra).

In State of U.P. and others v. District Judge, Varanasi and others (supra) a Full Bench of this Court had the occasion to consider a case where an aided junior high school was raised as a High School under the provisions of the Act, 1921, but it was not paid any maintenance grant at the High School level. The question arose whether it would be governed under the provisions of the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 197120. The Full Bench held that once a basic school or Junior High School is raised to High School or Intermediate college, identity of the institution as a basic school or Junior High School is lost. It ceases to exist and in its place another recognised institution comes into existence which is governed in a separate Act. The relevant part of paragraph-17 of the judgment reads as under:

"17. 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 other..."

The said view has been reiterated by a Division Bench of this Court in Ajay Pratap Rai (supra) in the following terms:

"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 dispute arose in those cases where an aided Junior High School was raised to High School level but the recognition was Vittaviheen. Such recognition is granted under Section 7-A of the Act, 1921. Section 7-AA was inserted in the Act, 1921 by U.P. Act No. 18 of 1987, which enables the Management for the employment of part-time teachers or part-time instructors. The State does not take liability for the payment of such teachers and the Management of the institution is liable for the payment of their salary from its own resources. Section 13-A of the Act, 1978 provides that the provisions of the said Act shall continue to apply for the purposes of payment of salaries to those teachers and employees, who were earlier drawing their salary from the salary payment account under the provisions of the Act, 1978.

The State Government issued an order dated 24th November, 2001 clarifying the said aspect. It provided that teachers and staff of an institution, which was recognised in the Act, 1921, who were receiving their salary under the Act, 1978, shall continue to be dealt with by the District Basic Education Officer. It further provided that not only the provisions of the Act, 1978 but the provisions of the Rules, 1978 shall also be applicable to such institutions.

Regard may be had to the fact that Section 13-A was inserted in Act, 1978 by U.P. Act No. 34 of 2000. Section 13-A does not provide that the provisions of the Rules, 1978 would also be applicable. For the first time this was provided in the Government Order dated 24th November, 2001.

Amendment in Section 13-A of the Act, 1978 and the Government Order dated 24th November, 2001 were first time considered by this Court in the case of Ramesh Singh v. State of U.P. and others21. In the said case the State Government had taken a stand that if an institution has been upgraded as Vittaviheen institution, in that event the Basic Shiksha Adhikari shall have the power to consider the issue incidental to the affairs of the institution and service conditions of the teachers. This Court did not accept the stand taken by the State Government and held that paragraph-5 of the Government order dated 24th November, 2001 was ultra vires.

In Smt. Manju Awasthi (supra) the Government order dated 24th November, 2001 again fell for consideration. The Court held that the District Basic Education Officer has no authority to exercise any administrative control over the institution except payment of salary. The Division Bench laid down the law in the following terms:

"77. We are of the view that the Government Order dated 24.11.2011 can be supported only to the extent of payment of salary of teachers at the Junior High School level and ancillary power thereunder. However, the Basic Shiksha Adhikari cannot exercise any administrative control over the institution except to the extent of payment of salary nor can make any appointment in view of the applicability of 1921 and 1982 Acts. The judgment of Hon'ble Single Judge in Committee of Management Beni Singh Vaidic Vidyawati Inter College, Baluganj, Agra and others (supra) to that extent cannot be approved. It is relevant to note that against the judgment of Hon'ble Single Judge dated 7.9.2005 in Committee of Management Beni Singh Vaidic Vidyawati Inter College, Baluganj, Agra and others (supra) special appeal No. 1419 of 2005, Agam Prakash Deepak v. State of U.P., was filed, which appeal was also dismissed on 29.11.2005.

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82. The selections made by the Basic Shiksha Adhikari under the provisions of U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978, have rightly been quashed in the writ petitions by Hon'ble Single Judge on the ground that after upgradation of a Junior High School, selection/appointment is to be made in accordance with 1921 Act and U.P. Act No. 5 of 1982...."

From the aforesaid judgments, following propositions of law can be culled out:

(1) After a Junior High School is raised to High School or higher secondary or Intermediate level, its entity is lost. It is governed under the provisions of the Act, 1921.

(2) The District Inspector of Schools is the appropriate authority to deal with the matters relating to service of teachers and employees of the institution in spite of the fact that the institution does not receive any financial aid at the High School or Intermediate level and it is recognised as Vittaviheen.

(3) The District Basic Education Officer has no jurisdiction to deal with the matters related to service of teachers or employees of the institution.

(4) The District Basic Education Officer has limited authority/power, which he can exercise under the provisions of the Act, 1978 in respect of salary of teachers and non-teaching staff only and not in relation to their service conditions.

Coming to the facts of the present case, I find that this Court while sending the matter back to the District Inspector of Schools directed him to consider the matter in accordance with law. Hence, it was obligatory on the part of the District Inspector of Schools to pass the appropriate order in accordance with law. However, I find that the District Inspector of Schools in most casual manner has decided the matter. He has taken the written synopsis/ representation which was submitted by the petitioners, a copy of which is on the record. The District Inspector of Schools has not taken pain to advert to the representation made by the petitioners wherein the issue referred above has been taken by them. In a cryptic and skeletal order he has recorded only his conclusions without support of any reason. Most part of his order deals with the facts of the case and in the operative portion he has expressed his conclusion that he does not have jurisdiction and the District Basic Education Officer has the jurisdiction.

The District Basic Education Officer is an important officer who has been conferred immense power by the Act, 1921 and the Regulations framed thereunder to deal with the important matters relating to affairs of the institutions and service conditions of teachers and staff. He recognises the Committees of Management (now the Regional Committee has been assigned this task by the executive order but he is Member of the Regional Committee also); he grants approval for the suspension of the teachers and employees; appeal lies to him against the decision of the Committee of Management related to service conditions of non-teaching staff, and various other incidental powers have been conferred on him by the Act, 1921 and the Regulations. The District Inspector of Schools is supposed to know the law relating to these important aspects of the institutions which governs the affairs of the institutions.

The issue involved in the present case was decided by a Full Bench of this Court way back in 1981 i.e. about 37 years back in State of U.P. and others v. District Judge, Varanasi and others (supra). The law laid down by the Full Bench has consistently been followed. Thus, the above conduct of the District Inspector of Schools shows that either he was completely oblivious of the law or he has decided the matter in casual way.

Regard may be had to the fact that this Court in its order dated 02nd February, 2017 has issued a direction to the District Inspector of Schools to consider the matter. Thus, a duty was cast upon the District Inspector of Schools to bestow his serious consideration on the issue to comply the order of the Court in letter and spirit. The District Inspector of Schools has completely failed to exercise his power with due care and deference to the order of the Court. Such casual approach generates unnecessary litigation which wastes precious judicial time and public exchequer. The Supreme Court in the case of Central Cooperative Consumers' Store Ltd. Through its General Manager v. Labour Court, H.P. at Shimla and another22 has taken judicial notice of the adamant attitude adopted by the bureaucrats which results in the wastage of precious judicial time.

For all the reasons mentioned above, I find that the impugned order dated 27th May, 2017 passed by the District Inspector of Schools, Allahabad, the second respondent, is unsustainable and accordingly, it is quashed. The matter is remitted to the second respondent to pass the order in the light of the observations made herein-above within two months from the date of communication of this order.

Accordingly, the writ petition is allowed with cost quantified at Rs. 5,000/- imposed upon the District Inspector of Schools, Allahabad. The cost shall be deposited in the High Court Legal Services Committee, Allahabad.

Order Date :- 31.8.2017

SKT/-