Smt. Asha Higgins vs State Of U P And 5 Others
2021 Latest Caselaw 7776 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 36
 

 
Case :- WRIT - A No. - 1467 of 2021
 
Petitioner :- Smt. Asha Higgins
 
Respondent :- State Of U P And 5 Others
 
Counsel for Petitioner :- Pratik Srivastava,Rishabh Higgins,Sri Anil Bushan, Sr. Advocate
 
Counsel for Respondent :- C.S.C.,Naresh Chandra Tripahti
 

 
Hon'ble Mahesh Chandra Tripathi,J.

Heard Shri Anil Bhushan, learned Senior Advocate assisted by Shri Rishabh Higgins for the petitioner, Shri Surya Bhan, learned Standing Counsel for the State respondent nos.1 to 5 and Shri N.C. Tripathi, Advocate for the respondent no.6.

The petitioner is before this Court with request to issue direction to the respondents to take decision on her representations dated 01.8.2020 and 05.10.2020 for payment of arrears of salary with effect from the year 2003.

The matter was taken up on 05.2.2021 and on the said date, the Court had proceeded to pass following order:-

"The claim of the petitioner essentially is that in light of the judgment rendered inter partes on 14 January 2020, the petitioner would be entitled to claim promotion from 2007 i.e. the date when the Management had negatived the claim of promotion and which decision has come to be quashed. In light of the above, a prayer is made for liberty being granted to move an appropriate amendment application.

Include in the list of fresh cases of the appropriate Court on 15 February 2021.

The matter shall not be treated as tied up or part heard to this Court."

In response of the aforesaid order, the amendment application has been filed under Order VI Rule 17 CPC on 08.2.2021 and the same is allowed. Let necessary amendment be carried out forthwith.

Shri Anil Bhushan, learned Senior Advocate assisted by Shri Rishabh Higgins for the petitioner submits that the petitioner was appointed on 08.01.1990 in Mary Wannamaker Girls Inter College, Allahabad, which is a minority institution, recognized by the Board of High School and Intermediate Education, U.P. Allahabad and is receiving grant-in-aid. Her appointment was approved by Regional Inspectress of Girls Schools on 13.3.1985. The petitioner, claiming benefit of Regulation 7(2) of Chapter II of U.P. Intermediate Act, 1921, approached this Court by preferring Writ-A No. 5051 of 1998 for granting her LT Grade. On 20.02.1998, this Court directed District Inspector of Schools to decide her claim. By the order dated 18.02.1999, District Inspectress of Girls Schools rejected claim of the petitioner under Regulation 7(2). As there were 16 sanctioned posts of LT Grade in the institution and 25% of such sanctioned posts were to be filled by way of promotion of teachers from primary section having requisite qualification in pursuance of Regulation 7(2-a), which came into force in year 2003, the petitioner moved an application before respondent no.6 on 23.01.2006 and 28.04.2007 requesting to pass resolution for being promoted to LT Grade under 25% quota as she had already completed five years service in BTC Grade. Finally, the Committee of Management of the institution vide order dated 19.05.2007 rejected her claim on ground that the institution is a minority institution and further in judgment rendered by this Court in case of Committee of Management, Sri Kund Kund Jain Inter College, Muzaffarnagar vs. State of U.P. and others, 2006 (6) ADJ 663, the said benefit cannot be granted. The petitioner challenged the aforesaid order dated 19.5.2007 in Writ Petition No.54996 of 2007 and the same was allowed by this Court on 14.1.2020 with following directions:-

"26. After hearing learned counsel for the parties at length and also perusing the material on record, the question which emerges for consideration is as to whether petitioner in Writ-A No. 39978 of 2012 is entitled for appointment as Assistant Teacher, LT Grade in the Institution pursuant to selection made by Selection Committee and recommendation forwarded by Committee of Management for approval to DIOS, on the basis of Section 16-FF of Act of 1921, or writ petitioners in Writ-A No. 54996 of 2007 who were appointed in the BTC Grade in primary section of the Institution and their appointment being approved by RIGS are entitled to be promoted in LT Grade pursuant to Government Order of 2005, the insertion of Regulation 7(2-a) in the year 2003 and the decision of the Full Bench of 2017.

27. It is undisputed fact that there are 16 sanctioned posts of Assistant Teachers in LT Grade in Institution in question. It has not been disputed that out of these sanctioned 16 posts, 13 had already been filled up by direct recruitment. As CT Grade had already been declared a dead cadre in the year 1989 the Government provided in Regulation 5(2-a) in the year 1990 that 50% of the sanctioned posts in LT Grade or Lecturer Grade shall be filled up by promotion from LT Grade and CT Grade. Subsequently, in the year 2003 by insertion of Regulation 7(2-a), it was provided that in those High Schools, Intermediate Colleges having primary section, teachers in primary section attached with Intermediate College receiving salary under Payment of Salary Act, 1971, 25% of sanctioned posts in Lt Grade will be filled up from teachers of primary section having requisite qualification.

28. It is also not in dispute that three writ petitioners of Writ-A No. 54996 of 2007 had approached Management, who rejected their claim on 09.05.2007 after the insertion of Regulation 7(2-a), simultaneously DIOS had required the Institution not to proceed with advertisement dated 22.04.2007 for making appointment in the Institution by way of direct appointment and first resort to filling up the post by promotion from primary to LT Grade and from LT Grade to Lecturer Grade. Inspite of the direction of DIOS on 23.04.2007, it appears that Management proceeded to invite the application pursuant to advertisement and, thereafter, proceeded to make selection and issue appointment letters. The dispute arose when DIOS declined to grant approval to Smt. Vinita Promila Shepherd who was appointed pursuant to advertisement directly as an Assistant Teacher, LT Grade.

29. The Institution in question though is a minority institution under Article 30(1) of the Constitution, but as held by Apex Court in case of T M A Pai Foundation and others (supra) that State can regulate method of selection and appointment of teachers after prescribing requisite qualification as the same is fundamental to the maintenance of academic and administrative autonomy of an aided Institution. In the present case, Regulation 7(2-a) was inserted in the year 2003 by the State providing for the promotion of teachers in primary section to LT Grade to the extent of 25% quota of total sanctioned strength.

30. The judgment rendered by Division Bench of this Court in case of N B Lal (supra) was held to be an incorrect law, by Full Bench and further, Regulation 7(2-a) falling in Chapter II of the Regulations framed under the Intermediate Education Act, 1921 were held to be not violative of rights of minority institution guaranteed under Article 30 of the Constitution. It was also held that Regulations were clearly permissive and cannot be said to be violative of rights conferred on the said institution by Article 30 of the Constitution.

31. A minority institution would not be entitled to negative the claim of consideration for promotion of teachers of primary section of recognised Institution in terms of Regulations read with provisions of Government Order dated 25.11.2005. As the Regulations have been upheld by Full Bench and the judgment rendered in N B Lal (supra) having been held to be incorrect law, the submission made by Sri Saunders cannot be accepted and petitioners of Writ-A No. 54996 of 2007 are entitled for benefit which they are claiming under Regulation 7(2-a) falling under Chapter II framed under the Act of 1921.

32. The order passed by respondent no. 7, Committee of Management dated 19.05.2007 under challenge in Writ-A No. 54996 of 2007 is hereby quashed and the matter is remitted to respondent no. 5 to decide the claim for being promoted under 25% quota in LT Grade in view of Regulation 7(2-a) and decision of Full Bench of this Court within two months from the date of production of certified copy of this order. The writ petition stands allowed.

33. As far as Writ-A No. 39788 of 2012 is concerned, DIOS not only proceeded to decide the claim on the basis of recommendation of Instution but also keeping in view the Regulations wherein it has been provided that 25% sanctioned strength has to be filled up by promotion from teachers of primary section and Regulation 7(2-a) having been upheld by Full Bench of this Court. More so DIOS had already warned the Institution immediately after the advertisement not to proceed for appointment by direct recruitment, as the vacancies were first to be filled by promotion from CT Grade to LT Grade and from LT Grade to Lecturer Grade, in my considered opinion, I find that DIOS after determining the strength of Institution found that out of 16 sanctioned strength, 13 having already been filled by direct recruitment, no question arose for granting approval to Smt. Vinita Promila Shepherd for being appointed as Assistant Teacher, LT Grade, thus the order passed by DIOS needs no interference and Writ-A No. 39788 of 2012 is hereby dismissed. However no order as to cost."

In pursuance of the aforesaid judgment and order dated 14.1.2020, the District Inspector of Schools (II), Prayagraj has promoted the petitioner from the date of her eligibility from Assistant Teacher (Primary) to L.T. Grade. Finally, the petitioner has retired after attaining the age of superannuation on 31.3.2020 but she has not been given the arrears of salary till date. So far as the grievance of the petitioner is concerned, she has already filed representations dated 01.8.2020 and 5.10.2020 before the respondent no.4 for redressal of her grievance, which are still pending. He submits that the claim, as has been set up through amendment application, is admissible in law and her representations may be considered by the appropriate authority.

Learned Standing Counsel has no objection to the said prayer.

No useful purpose would be served in keeping the writ petition pending.

In view of above, without expressing any opinion on the merits of the issue and considering the facts and circumstances of the case, this writ petition is disposed of finally liberty to the petitioner to move a detailed representation within two weeks from today before the third respondent/Joint Director of Education, Allahabad Region, Allahabad, who may consider the representation filed by the petitioner and decide the same in accordance with law but certainly after taking into account the judgment so passed by this Court in the aforesaid matter in further two months.

The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the petitioner alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.

The concerned Authority/Official shall verify the authenticity of such computerised copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 12.7.2021

RKP