ALLAHABAD HIGHCOURT, BSA, APPOINTMENT : जूनियर हाईस्कूल को उच्चीकृत होकर मिली हाईस्कूल की मान्यता तो बीएसए नहीं कर सकते नियुक्ति, हाईकोर्ट का आदेश भी देखेंं।

ALLAHABAD HIGHCOURT, BSA, APPOINTMENT : जूनियर हाईस्कूल को उच्चीकृत होकर मिली हाईस्कूल की मान्यता तो बीएसए नहीं कर सकते नियुक्ति, हाईकोर्ट का आदेश भी देखेंं।



HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved on 01.10.2019
Delivered on 17.04.2020
In Chamber

Case :- WRIT - A No. - 51868 of 2015

Petitioner :- Kamlesh
Respondent :- State of U.P. and others
Counsel for Petitioner :- Vikas Upadhyay
Counsel for Respondent :- C.S.C., Ajay Kumar Tiwari, H.P. Shahi, Manoj Kumar Singh, V.K. Singh

Hon'ble Sudhir Agarwal,J.
Hon'ble Neeraj Tiwari,J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. Heard Sri Vikas Upadhyay, learned counsel for the petitioner, learned Standing Counsel for State of U.P. and Sri H.N. Singh, learned Senior Advocate assisted by Sri Manoj Kumar Singh, learned counsel for respondents - 6, 7 and 8.
2. This writ petition under Article 226 of Constitution of India has been filed by the sole petitioner Kamlesh with a prayer to issue a writ of quo warranto restraining respondents 6 and 7 i.e. Prem Shankar Rai and Sunil Kumar Tiwari, respectively, from working as Assistant Teacher in Jangali Baba Uchchatter Madhyamic Vidya Mandir, Kathaura, District Ballia (hereinafter referred to as "the School") and also to restrain respondent 8 i.e. Rajesh Kumar Prajapati from working as Clerk in the School. A further writ of mandamus has been prayed for commanding respondents-authorities to conduct a fair and impartial inquiry in respect of alleged appointments including Office-bearers of Committee of Management and guilty Officers/officials who proceeded against law for appointments and misappropriation of public money.
3. Facts, in brief, giving rise to present writ petition, as borne out from record, are as under.
4. The case set up by petitioner is that he is a permanent resident of Village- Kathaura, District Ballia and engaged in social work. The School is run by a registered society namely Jangali Baba Uchchatter Madhyamic Vidya Mandir Kathaura, District Ballia (hereinafter referred to as "Society") goverened by bye-laws framed by it and duly registered under the provisions of Societies Registration Act, 1860 (hereinafter referred to as "Act, 1860"). School was intially established as a Junior High School. It was included in the list of grant-in-aid by State Government and thereupon payment of salary to teaching and non-teaching staff came within the purview of U.P. Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 (hereinafter referred to as "Act, 1978").
5. In the year 1988, School was upgraded and granted recognition up to High School by U.P. Board of High School and Intermediate, governed by Intermediate Education Act, 1921 (hereinafter referred to as "Act, 1921").
6. Elections were held on 11.12.2009, but rival claims were set up by three different sets. District Inspector of Schools (hereinafter referred to as "DIOS") attested signatures of Committee of Management wherein one Vishwajeet Sharma was elected as Manager. This led to Writ Petition No. 59662 of 2011 (Virendra Rai vs. State of U.P. and others) wherein an interim order was passed on 17.10.2011. Order dated 17.10.2011 was challenged in intra Court Appeal i.e. Special Appeal No. 2126 of 2011 (C/M Jangli Baba Uchchattar Madhyamic Vidya Mandir & Anr. Vs. State Of U.P. And Others). Appeal was allowed by a Division Bench of this Court vide judgment dated 23.05.2014 holding that writ petition was filed by a single life member at whose behalf it was not maintainable and interim order dated 17.10.2011 was set aside. Division Bench order left it open that any aggrieved person may raise dispute which may be referred to Regional Level Committee. Committee of Management's term, as per Clause-8 of Scheme of Administration, was three years which came to an end on 03.10.2014. Thereafter respondent 5-Committee of Management ceased to be a competent and valid Committee of Management to continue and manage affairs of the School. Respondent 5, however appointed respondent 6 as Assistant Teacher. District Basic Education Officer, Ballia (hereinafter referred to as "DBEO, Ballia") vide letter dated 14.05.2015 granted approval to the appointment of respondent 6 as Assistant Teacher against a substantive vacancy caused due to retirement of Rama Kant Ram. Similarly, DBEO vide letter of the same date i.e. 14.05.2015 granted approval to appointment of respondent 7-Sunil Kumar on the post of Assistant Teacher in a substantive vacancy caused due to retirement of Sahjada Nand Chaudhary. Appointment of respondent 8 was made by respondent 5 on the post of Clerk against a substantive vacancy caused due to retirement of Shiv Shankar and same was also approved by DBEO vide letter dated 14.05.2015.
7. Petitioner made a query from respondent No. 4 i.e. DBEO, Ballia as to under which power he granted approval vide letters dated 14.05.2015 to appointments of respondents 6, 7 and 8, since School was already upgraded as High School and appointments of teaching and non-teaching staff thereafter would have to be governed by U.P. Intermediate Education Act, 1921 (hereinafter referred to as Act, 1921) and Regulations framed thereunder read with U.P. Secondary Education Services Selection Boards Act, 1982 (hereinafter referred to as Act, 1982). No reply was given hence present writ petition has been filed challenging appointments of respondents 6 to 8.
8. By order dated 10.09.2015, this Court required DBEO, Ballia to appear before it and place record to show provisions under which he approved appointments of respondents 6, 7 and 8 vide letter dated 14.05.2015. Pursuant thereto, DBEO, Ballia has placed before Court, record and his explanation titled as 'Instructions' stating that School was given permanent recognition as a Junior High School in 1974 and included in grant-in-aid list in 1978. It was upgraded as High School in 1988. Vide Government order dated 24.11.2001, it was provided that non-Government Junior High Schools governed by Act, 1978 shall continue to be dealt with by DBEO; the terms and conditions of service of teachers and other staff, matter of resignation, retirement etc., would be governed by Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Condition of Services of Teachers) Rule, 1978 (hereinafter referred to as "Rules, 1978"); no strength shall be increased and the strenght of staff as it was at the time of upgradation shall continue; such aided Junior High Schools after getting recognition as High School or Intermediate without financial assistance in respect of High School or Intermediate work shall be looked after by DIOS concerned, but with respect to Junior High School, despite the fact that both are in the same premises and under same management, but shall be treated to be separate units for administrative purposes and be looked after by DBEO and DIOS, separately. Director, Basic Education, U.P. consequently issued a circular dated 31.03.2015 directing all DBEOs in the State of U.P. to fill in all existing vacancies as per the standards determined for aided Junior High Schools. DBEO thus, granted approval pursuant to the aforesaid orders.
9. Director, Basic Education also filed personal affidavit taking a similar stand and claimed that his letter dated 31.03.2015 find support from paragraph 79 of judgment in Manju Awasthi and others Vs. State of U.P. and others 2013 (3) ADJ 64 (D.B.).
10. Respondents 6, 7 and 8 have filed collectively a counter affidavit sworn by respondent 6- Prem Shankar Rai. Stand taken therein is that petitioner has no locus standi to maintain above writ petition as he was not an applicant to the posts on which respondents 6, 7 and 8 have been appointed, therefore, at his instance, writ petition is not maintainable. It is further said that he was not even member of Society and has no interest in the affairs of the School, therefore, has no locus standi to file present writ petition. On merits, it is said that the School admittedly was upgraded as High School but with regard to payment of salary to teaching and non- teaching staff of aided Junior High Schools, provisions of Act, 1978 continued by virtue of Section 13-A thereof. Vacancies occurred in Junior High School section have to be filled in accordance with Rules, 1978 applicable to Junior High Schools and mere upgradation as High School, that too without any financial assistance, will not deprive Institution, applicability of Rules, 1978 with respect to the section which is Junior High School. Election of Committee of Management was approved on 6/15.09.2011 where against writ petition of Virendra Rai was dismissed vide judgment dated 23.05.2014 passed by Division Bench of this Court in Special Appeal No. 2126 of 2011. Thereafter, fresh election was held on 29.09.2014 and same Committee of Management, as elected in September, 2011, was elected. No objection with regard to the election held in 2014 was raised by anyone and that Committee of Management managed affairs of School without any hindrance. Appointments of respondents 6, 7 and 8 have been made validly in accordance with the procedure prescribed and applicable to a Junior High School. The recognition granted to upgraded School up to High School under Section 7-A does not have any effect on the application of the provisions of Act, 1978 and Rules, 1978 applicable to Junior High Schools. Hence, respondents 6, 7 and 8 have been rightly and validly appointed.
11. Learned counsel for the petitioner contended that it is a writ of quo warranto wherein Court can examine, whether appointments in question are validly made or not. He submitted that once an institution is upgraded, for all purposes, entire institution will be governed by the provisions applicable to upgraded institutions and it can not be divided in two sections like pre-upgraded institution i.e. Junior High School and upgraded institution i.e. High School, taking it as two separate entities.
12. We find that real issue need be considered by this Court to find out whether judgment of learned Single Judge is correct or not is "whether on recognition as High School, a Junior High School or Basic School would loose its identity and would be governed by provisions applicable to Secondary Schools or in respect to posts upto Junior High School, it would continue to be governed by provisions applicable to a Junior High School."
13. We find that this aspect is covered by a Division Bench Judgment of this Court in Ajay Pratap Rai Vs. District Basic Education Officer 2007 (4) ADJ 357 (DB), wherein Court has held that once an Institution is upgraded to High School level, it would cease to exist as a legal entity as a Junior High School and, therefore, provisions applicable to a Junior High School would not be applicable to govern the same and, on the contrary, it would be governed by the provisions applicable to a High School. Court in para-10 of the judgment said as under:
"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."
(emphasis added)
14. This view is fortified from the fact that legislature had inserted Section 13-A in U.P. Act, 1978 providing for payment of salary to Teachers and other employees which has received grant-in-aid if it is upgraded and recognition is granted upto High School level. This provision was inserted to take care of a situation where without any grant-in-aid, a Junior High School which is in grant-in-aid, is upgraded and recognition is granted upto High Schol level and since it becomes a secondary educational institution, thereupon previsions of Junior High School will not be applicable, hence to obviate the difficulty in payment of salary to Teachers working upto Junior High School, who were already in grant-in-aid, Section 13-A was inserted and this also supports the view that after upgradation/ recognition granted to a Junior High School upto High School level, Statutes applicable to an institution which is upto Junior High School, would render inapplicable.
15. Further this issue that a Junior High School when upgraded or recognized upto High School looses its identity as Junior High School has also has been considered by a Full Bench in State of U.P. and others Vs. District Judge, Varanasi and others 1981 UPLBEC 336, and it has been held that after a basic school or a Junior High School is upgraded as a High School or an Intermediate College, the identity of Institution 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. In fact Section 13-A was inserted after the aforesaid judgment of Full Bench so as to continue payment of salary from State Exchequer under the provisions of Act, 1978.
16. The view taken by Division Bench in Ajay Pratap Rai Vs. District Basic Education Officer (supra) has been reiterated by another Division Bench in Manju Awasthi and others Vs. State of U.P. and others 2013 (3) ADJ 64 (DB). Once a Junior High School ceased to continue with a separate entity, provisions relating to selection and appointment of Teachers applicable to Junior High School will not apply and entire Institution as a whole will be a Secondary Educational Institution and governed by provisions of Statute applicable to a Secondary Institution.
17. We may also notice therein that reliance placed by DBEO on Government order dated 24.11.2001 is clearly misplaced and appears to be a delibrate misrepresentation before this Court. This Government order was considered by Division Bench in Manju Awasthi (Supra) and in paragraph-77 of judgment, Court said that Government order dated 24.11.2001 can be supported only to the extent of payment of salary of teachers at Junior High School level and ancillary power thereunder. However, 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. Even in paragraph-79 of judgment in Manju Awasthi (Supra), Division Bench has categorically referred to a Single Judge judgment in Smt. Shail Kumari Singh v. State of U.P., 2008(1) ESC 365 that after upgradation, only for the purpose of part time appointments of teachers, Section 7-A of Act 1921 will be available otherwise appointments have to be made as per the procedure laid down in Act, 1982 and that procedure cannot be violated. DBEO, however misconstruing paragraph-79 of judgment in Manju Awasthi (Supra), has made an absolutely incorrect submission.
18. In view of above, appointments of respondents- 6, 7 and 8 made with the approval of DBEO in upgraded High School only on the ground that said appointments were made in respect of Junior High School section, are clearly illegal. The same cannot be sustained since DBEO after upgradation of Institution as High School, has no authority. Such matter would be governed by the provisions of Acts, 1981 and 1982.
19. The writ petition is accordingly, allowed.
20. It is declared that respondents- 6, 7 and 8 were illegally appointed, hence their appointments are hereby quashed.
Order Date :- 17.04.2020
Sartaj



Post a Comment

0 Comments