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BHAGWAT SARAN ADARSH SHIKSHA SAMITI MORADABAD AND OTHERS versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Bhagwat Saran Adarsh Shiksha Samiti Moradabad And Others v. State Of U.P. And Others - WRIT - C No. - 73672 of 2005 [2007] RD-AH 15381 (12 September 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 33

Civil Misc. Writ Petition No. 73672 of 2005

Sri Bhagwat Saran and others

Versus

State of U.P. and others

Hon'ble V.K. Shukla,J

Present writ petition has been filed by the group of institutions for issuance of writ in the nature of mandamus directing the respondents to abolish/amend the provision of U.P. Secondary Education Services Selection Board Act 1982 (U.P. Act No. V of 1982) and for various other relief which in substance is no interference at any level in the matter of selection/appointment/and disciplinary proceedings.

Reliance has been placed by the petitioner on the case of Brahmo Samaj Education Society v. State of West Bengal and others, (2004) 6 SCC 224 for the proposition that State can very well provide the basic qualification for teachers, but as far as matter of selection and appointments are concerned, same vests with the Management and any restriction on the same by Legislature on the said front would be making serious inroad in the rights of the Management to run and administer the institution. In this regard case of Brahmo Samaj Education Society has been looked into. In the said judgment of Hon'ble Apex Court the provision of West Bengal College Teacher (Security of Service) Act, 1975 was under challenge, and same was neither declared invalid nor was held ultra vires by Hon'ble Apex Court. In paragraphs 10 and 11 of the said judgment categorical mention was made, that when a larger Bench of 11 Judges in case of T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, has declared what the law on matter is, then we do not want to dilute the effect of the same by analysing various statements made therein or indulge in any dissection of the principles underlying it, and it was mentioned that State Government shall take note of the declarations of law in this regard and make suitable amendments to bring them in conformity with the principles set out therein, and in this background, State Governments were asked to make suitable amendments to their laws, rules and regulations.

Before this Court, placing reliance on the case of Brahmo Samaj Education Society (supra), Committee of Management of Bhagwati Adersh Vidyalaya Inter College filed writ petition, challenging the rights of State Government, and this Court vide its judgment reported in 2005 (5) AWC 4041, took the view that in view of the proposition of law propounded in the case of T.M.A. Pai Foundation and others v. State of Karnataka and others, 2002 (4) AWC 3297 (SC), State Government can regulate method of selection and appointment of teachers after prescribing requisite qualifications for the same. Relevant extract of the said judgment (paragraphs 7 to 12) are being quoted below:

"7. The appointment of teachers in Secondary institutions recognized by the Board of High School and Intermediate Education was governed by the Intermediate Education Act, 1921 and Regulations made thereunder. It was felt that the selection of teachers under the provisions of the said Act and Regulations was at times not free and fair. Field of selection was also restricted which adversely affected the availability of suitable teachers and standard of education. It was, thus, considered necessary to constitute the Secondary Education Service Commission at the State level to select Principals, Lecturers, Headmasters and L.T. Grade teachers. Under Section 16G (3) (a) of 1921 Act managements were authorized to impose punishment with the approval of the District Inspector of Schools in the matters pertaining to disciplinary action. This was found to be inadequate in cases where the Management proposed to impose punishment of dismissal, removal or reduction in rank and so it was considered necessary that power should be exercised subject to approval of the Commission or Selection Boards. With a view to achieve the above objects, Uttar Pradesh Secondary Education Service Selection Board Act, 1982 was enacted. Pursuant to the same Secondary Education Service Selection Board for selection of teachers in Institutions recognized under the intermediate Act, 1921 was established.

8. Sections 3 and 4 of the 1982 Act prescribed for the establishment and composition of the Board while Section 9 lays down the powers and duties of the Board, one such power being to prepare guidelines relating to the method of direct recruitment of teachers and to make recommendations regarding the appointment of the selected candidates. Section 12 lays down the procedure for selection of candidates by promotion and Sect8iion 16 provides for appointment to be made by the Management on the recommendations of the Board. Section 18 (1) vests the Management with the power for appointment of Principals and Headmaster on ad hoc basis while Section 18 (4) prescribes that every appointment of an ad hoc Principal and Headmaster shall cease to have effect from the date wen the candidate recommended by the Board joins the post. Section 22 of the Act prescribes punishment for appointment of teachers in contravention of the provisions of the Act. Section 33 prescribes the procedure for regularization of certain appointments and Section 34 empowers the Board to make regulations for holding selections, interviews and laying down the procedure to be followed by the Bord for discharge of its duties and performance of its functions.

9. Thus, as would appear that a complete procedure has been prescribed for selection and recommendation of the selected candidates to the Management for appointment of candidates, the power of appointment being with the Management.

10. In Brahmo Samaj Education Society's case (supra) West Bengal College Teacher (Security of Service) Act, 1975 was under challenge. The said Act was neither declared invalid nor was held ultra vires by the Hon'ble Supreme Court. The petition was decided in terms of interim orders made by the Apex Court. In paras 10 and 11 of the said report , it was observed as follows:

"10. When a larger Bench consisting of 11 Judges of this Court in T.M.A. Pai has declared what the law on matter is, then we do not want to dilute the effect of the same by analysing various statements made therein or indulge in any dissection of the principles underlying it. We would rather state that the State Government shall take note of the declarations of law in this regard and make suitable amendments to their laws, rules and regulations to bring them in conformity with the principles set out therein.

11. In this view of the matter, it is unnecessary to examine whether the present rules are valid or not. Until such time as such rules are framed in terms of the order made by us now, the interim orders made by this Court in these proceedings will operative."

11. In case T.M.A. Pai Foundation and others v. State of Karnataka and others, 2002 (4) AWC 3297 (SC) : (2002) 8 SCC 481, the Hon'ble Supreme Court in para 72 held as follows:

"Once aid is granted to a private professional educational institution, the government or the State agency, as a condition of the grant of aid, can put fetters on the freedom in the matter of administration and management of the institution. The State, which gives aid to an educational institution, can impose such conditions as are necessary for the proper maintenance of the high standards of education as the financial burden is shared by the State. The State would also be under an obligation to protect the interest of the teaching and non-teaching staff. In many States, there are various statutory provisions to regulate the functioning of such educational institutions where the States give, as a grant or aid, a substantial proportion of the revenue expenditure including salary, pay and allowances of teaching and non-teaching staff. It would be its responsibility to ensure that the teachers working in those institutions are governed by proper service conditions. The State, in the case of such aided institutions, has ample power to regulate the method of selection and appointment of teachers are prescribing requisite qualifications for the same."

12. In view of the aforesaid proposition laid down by the Apex Court the State can regulate the method of selection and appointment of teachers after prescribing requisite qualifications for the same, thus it cannot be gainsaid that Act of 1982 encroaches upon the right of the petitioners to manage the affairs of the institution. Act of 1982 is an exhaustive piece of legislation prescribing the method of selection, recruitment and appointment of teachers for the aided institutions, It does not run contrary to any of the provisions of 1921 Act or the Constitution of India, nor it is in derogation of any of the principles laid down by the Hon'ble Supreme Court in the aforesaid two decisions. Act of 1982 had been enacted so as to select best amongst the academicians in order to maintain high standard in the matter of training and imparting education to the students who in their future years would play an important role in moulding the destiny of the nation. Their chances of selection/appointment cannot be marred by allowing the ad hoc appointees to continue."

Thus, it cannot be gainsaid that U.P. Act No. V of 1982 encroaches upon the right of the petitioners to manage the affairs of the institution. U.P. Act No. V of 1982 is an exhaustive piece of legislation prescribing the method of selection recruitment and appointment of teachers on substantive as well as ad hoc basis for the aided institutions, and it does not run contrary to any of the provisions U.P. Intermediate Education Act, 1921 or the Constitution of India nor is it in derogation of any of the principles laid down by Hon'ble Supreme Court in the aforesaid two decisions . U.P. Act No. V of 1982 has been enacted so as to select best amongst the academicians in order to maintain high standard in the matter of training and imparting education to the students, and further to safeguard the interest of teachers, before they are subjected to any punishment prescribed. Paragraph 72 of the judgment in the case of T.M.A. Pai Foundation and others v. State of Karnataka and others, 2002 (4) AWC 3297 (SC) is the complete reply, which unequivocally provides that when State aid is extended, it would be responsibility of the State Government to ensure that teachers working in such institutions are governed by proper service conditions, and further State in cases of such aided institutions has ample power to regulate the method of selection and appointment of teachers after prescribing requisite qualifications for the same.

In the present case Legislative competence of the State Government to make Act is not at all disputed as such said relief claim cannot be accorded.

At last, it has been contended that till date Educational Tribunal has not been constituted, providing forum for redressal of dispute inter se employees and employer of recognized aided and unaided institutions. Hon'ble Apex Court in the case of T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 11 judges judgment by majority note in paragraph 162 of the judgment, decided on 31.10.2002 clearly mentioned that for redressal of grievances of employees of aided and unaided institution who are subjected to punishment or termination from service, a mechanism will have to be evolved and appropriate Tribunal could be constituted and till then such tribunal could be presided over by the Judicial officers of the rank of District Judge. Considerable period has elapsed since then and till date no step whatsoever has ever been undertaken in the said direction, and said direction is being rendered otiose.

Consequently, Chief Secretary of the State of U.P. is directed to see and ensure that direction given by Hon'ble Apex Court on 31.10.2002, in the case of T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 is complied with within next six months from the date of receipt of certified copy of the orders.

Copy of this order be supplied to the Chief Standing Counsel for necessary follow up action.

Consequently relief nos. (a) (b) (d) and (e) writ petition is dismissed and qua relief no. (c) and (f) directives are being issued accordingly.

No orders as to cost.

Dated : 12th September.2007

Dhruv


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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