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DR. (SMT.) SUSHILA GUPTA versus JOIND DIRECTOR OF EDUCATION KANPUR REGION AND OTHERS

High Court of Judicature at Allahabad

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Dr. (Smt.) Sushila Gupta v. Joind Director Of Education Kanpur Region And Others - WRIT - A No. 41420 of 2004 [2005] RD-AH 6130 (22 November 2005)

 

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 OF ALLAHABAD

Reserved Judgment

Civil Misc. Writ Petition No. 41420 of 2004

Dr. (Smt.) Sushila Gupta Vs. The Joint Director of Education,

Kanpur Region, Kanpur and others

AND

Civil Misc. Writ Petition No.33360 of 2005

Dr. (Smt.) Sushila Gupta Vs. The State of U.P. and others

***

Hon'ble A.P. Sahi, J

The dispute in the present writ petition pertains to the appointment on the post of Head-mistress of an institution, which was initially established and recognized as a Junior High School and was also receiving grant-in-aid from State funds up to that level but was later on granted recognition vide orders dated 1.8.1992 and 14.9.1995 as a High School and then as an Inter College under the provisions of the U.P. Intermediate Education Act, 1921.

The controversy arose when the permanent Head-mistress/Principal of the institution Smt. Sarla Dixit retired on 30.6.1999. The petitioner Smt. Sushila Gupta was placed under suspension which came to be disapproved, but instead of the petitioner, one Smt. Kusum Srivastava was allowed to officiate as Principal who also retired on 30.6.2001. Instead of giving charge to the petitioner to officiate as the Head-mistress/Principal of the institution, the Management favoured one Smt. Shashi Prabha Mishra, who according to the petitioner, is junior to her and, therefore, the attempt of the respondent - committee to install Smt. Shashi Prabha Mishra was illegal. The Management further advertised the post on 11/12.6.2004 to fill up the post of Head-mistress/Principal of the institution treating the institution to be a Junior High School. The petitioner has challenged the advertisement as well as the attestation of signatures of Smt. Shashi Prabha Mishra as officiating Head-mistress on 6.9.2004 by the District Basic Education Officer, Kanpur Nagar, in writ petition no. 41420 of 2004. This Court passed an interim order on 5.10.2004 directing the authority concerned not to undertake any action pursuant to the advertisement and further stayed the operation of the order dated 6.9.2004. A Special Appeal was preferred against the said interim order being Special Appeal No. 1393 of 2004 in which, the interim order, granted by the learned single Judge referred to herein above, was modified to the extent that the selection pursuant to the interim order shall go on and any appointment made shall be subject to the writ petition. Further directives were issued to decide the seniority of the petitioner, vis-a-vis Smt. Shashi Prabha Mishra, pursuant whereto, an order was passed by the District Basic Education Officer on 26.10.2004 holding that the petitioner is senior to Smt. Shashi Prabha Mishra.

As a result of the order in Special Appeal referred to herein above, the selections were held by the Committee and one Smt. Manju Awasthi is stated to have been selected for the post of Head of the institution which was approved on 25.2.2005. This gave rise to another cause of action to the petitioner to file a second writ petition no. 33205 of 2005, wherein the order of the District Basic Education Officer approving the appointment of Smt. Manju Awasthi as a Head of the institution dated 25.2.2005 has been challenged. The approval has been given by the District Basic Education Officer treating the appointment to be under the Uttar Pradesh Recognized Basic School (Junior High School) Teachers Service Rules, 1978. The principal ground of challenge in writ petition no. 41420 of 2004 is that once the institution has been upgraded as a High School in 1992 and has further been given the status of an Intermediate College in the year 1995 by way of recognition under the U.P. Intermediate Education Act, 1921, therefore, the selection and appointment to the post of Head of the institution could have only been made under the provisions of the U.P. Secondary Education Services Selection Board Act 1982 and the Rules framed thereunder that the appointment could not have been proceeded with under the 1978 Rules (supra) which was applicable to a Junior High School.

I have heard Sri R.K. Ojha, learned counsel for the petitioner in both the writ petitions and Learned Standing Counsel on behalf of the State and its authorities and Sri K. Shahi for the Basic Education Officer. Sri Ashok Khare, learned Senior Counsel, assisted by Sri S.K. Srivastava had put in appearance on behalf of the Committee of Management as well as on behalf of Ms. Manju Awasthi as is evident from the order dated 28.4.2005 in Writ Petition No. 33360 of 2005.

Before entering upon the controversy and the decisions applicable to the same, it would be fruitful to quote the following definitions from the U.P. Intermediate Education Act 1921. The word institution is defined in Section 2 (b) as follows:-

"2 (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;

The word recognition has been defined under Section 2 (d), which is quoted herein below:-

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

The instant case is concerned with the recognition of a Junior High School for imparting education in higher classes of High School and Intermediate level. The provision for granting recognition to such institutions is provided in Section 7-A (a), which is quoted herein below:-

"7-A. Recognition of an institution in any new subject or for a higher class.--- Notwithstanding anything contained in clause (4) of Section 7 ---

(a) the Board may, with the prior approval of the State Government, recognise an institution in any new subject or group of subjects or for a higher class."

For the purposes of management of such a recognized institution, a Scheme of Administration has to be drawn up by which the institution shall be managed as provided under Section 16-A of the U.P. Intermediate Education Act. Thus, the provision of an approved Scheme of Administration is mandatory. The aforesaid is also evident from the detailed conditions required to be fulfilled for grant of recognition by the Board contained in Chapter-VII of the Regulations framed under the U.P. Intermediate Education Act. Regulation 9 of Chapter-VII provides as a condition precedent that the Scheme of Administration for managing the institution should be approved by the competent authority. The most relevant regulation for the purposes of the present controversy is Regulation 11 (b) of the said Chapter which provides for that the entire teaching staff of the institution, which means a recognized institution, shall be appointed in accordance with the qualifications for such Teachers as provided in Appendix-A of Regulation 1 of Chapter II of the U.P. Intermediate Education Act. Clause (c) of the said Regulation further provides that the institution shall be obliged to comply with the conditions of the education code and clause (d) of the said Regulation indicates that the institution shall be obliged to carry out all directions by the department. The aforesaid terms and conditions, therefore, apply with immediate effect upon recognition being granted by the Board. The Act also makes provisions for penal action in the event it is found that an institution has violated the aforesaid terms & conditions. The provision, which is relevant to the issue, is Section 16-D (3) (II). This provision empowers the Board to with draw  recognition on the ground that the Management has failed to appoint teaching staff possessing necessary qualifications or has retained in service teaching or non-teaching staff in contravention of the provisions of 1921 Act and the Regulations framed there under. The provisions of Section 16-G make it mandatory that every person employed in a recognized institution shall be governed by such conditions of service as may be prescribed by regulation. This is further fortified by another mandatory provision contained in regulation 14 (g) of Chapter I which provides that the scheme shall also provide that all the terms and conditions of employment of the employees of the institution shall be governed by the provisions of the U.P. Intermediate Education Act and the regulations framed there under. The mode of appointment of the head of the institution and Teachers is provided in Chapter III and the qualifications to be possessed for being appointed in a recognized institution either by direct recruitment or otherwise shall be as provided in Appendix-A to Chapter II of the Regulations.

The aforesaid provisions leave no room for doubt that the conditions of recognition mandate the compliance of the provisions of the U.P. Intermediate Education Act and do not make any exception for following the provisions of 1978 Rules for appointment of teachers in Junior High Schools.

Learned Standing Counsel on the strength of the Government Order dated 24.11.2001 and the provisions of Section 7-AB has urged that the Teachers so appointed on part time basis in an unaided High School or Intermediate College have been exempted from the applicability of the Payment of Salaries Act, 1971 and the Selection Board Act 1982. The aforesaid submission in the present context, does not hold water inasmuch as the instant case is in respect of the appointment of the Head of the institution. The provisions of Section 7-AB apply only in respect of Teachers, who are appointed on part time basis under Section 7-AA. Section 7-AA in turn does not make any provision for appointment of a part time Head of the institution. The said provision is only meant to enable the institution to bear the minimum expenses from its own sources and, as such, the appointment of these Teachers has been exempted from the rigors of Selection under the 1982 Act. The question of applying the Payment of Salaries Act does not apply as the part time Teachers have to be paid by the Management from its own sources and not from and government grant-in-aid. This Court in the case of Dr. Bhim Rao Ambedkar Shiksha Samiti and others Vs. State of U.P. and others, 2005 (4) ESC 2715, has held that Section 7-AA  does not make any provision for the appointment of the Head of the institution on part time basis. In these circumstances, there is absolutely no scope for the argument to be considered as raised on behalf of the respondents in this respect. Even otherwise, the nature and duties of the Head of the institution which are detailed in Regulation 10 of Chapter I do not indicate that the Head of the institution would be called upon to perform such duty on part time basis.

Apart from this, Section 16 of the U.P. Secondary Education Services Selection Board Act, 1982 mandates and prohibits the selection and appointment of the teaching staff by any other mode and provides that all such appointments shall be made only on the recommendation of the Board. The terms & condition of recognition of the institution clearly contain clause-5  specifying that a suitable Head of the institution shall be appointed in accordance with Rules. The Rules for appointing the Head of the institution and the qualifications in respect there to have been indicated herein above. The  recognition order and the Rules referred to herein above, do not provide  for the appointment of the Head of the Institution under the Rules governing a Junior High School. The Rules referred to in the order of recognition are, therefore, the Rules applicable in respect of recognized institution under the U.P. Intermediate Education Act and the Selection Board Act, 1982. The appointment of the Head of the institution, therefore, cannot be resorted to under the garb of a Government Order dated 24.11.2001 as suggested by the Respondents including the learned Standing Counsel.

Even though it is not necessary to state the proposition that a Government Order cannot have a over riding effect over the provisions of the Act, yet it is necessary to reiterate the same in view of the submissions advanced on behalf of the respondents. The decisions of the Apex Court, therefore, need to be referred at this stage. In the case of Union of India and others Vs. A.K. Roy, (1986) 1 SCC 675, the Apex Court has held that a piece of subordinate legislation in the shape of a notification cannot over ride Rules Statutorily made governing the conditions of service. In the case of K. Kuppu Swami Vs. State of Tamil Nadu, (1998) 8 SCC 469, has held that statutory rules cannot be over ridden by executive orders or executive practice. In the instant case, the Government Order dated 24.11.2001 does not either expressly or impliedly amend any or all the provisions which have been taken note of herein above. Even otherwise the Government Order cannot over ride these statutory rules as interpreting in such a way would amount to negating all the provisions that define and control the terms and conditions of an institution recognized under the U.P. Intermediate Education Act, 1921. The Government Order cannot run counter to the provisions of the Act and the Regulations so long as the provisions exist on the Statute book and the Government Order cannot be permitted to make room for inconsistency in such matters.

The question that has to be addressed to in these 2 writ petitions is in respect of the status of the institution. Before the coming into force of 1982 Act which made a provision for the first time for holding selections in High Schools and Intermediate Colleges recognized under the U.P. Intermediate Education Act, the institutions up to the level of Junior High School were upgraded and upon a up gradation as a High School or Intermediate College as the case may be, the employees of such institutions were given the benefit of up gradation and were absorbed as employees of the High School and Intermediate College respectively in terms of the provisions contained in Regulation 4 of Chapter II of the U.P. Intermediate Education Act, 1921. After the coming into force of the 1982 Act, no appointment to the post of Teachers or Head of the institution could be made except upon the recommendation of the Commission presently known as the Selection Board,  as per Section 16 of the said Act.

What comes in between is the consideration the impact of recognition granted to a Junior High School to run High School and Intermediate classes under the U.P. Intermediate Education Act and the Regulations framed thereunder. This question arose in a matter in the year 1979 when the Selection Board Act 1982 had not been enacted by the legislature. The question of up-gradation of an institution to the level of High School and Intermediate College was considered in detail vis-a-vis the applicability of the payment of salary Act. Needless to mention that in respect of Teachers of High Schools and Intermediate level, U.P. Act No.24 of 1971 is applicable for the purposes of payment of salary whereas in respect of Junior High Schools, U.P. Act No. 6 of 1979 has been made applicable. This Court finding a conflict between 2 Division Benches referred the matter to a Full Bench which decision is reported in State of U.P. and others Vs. District Judge, Varanasi, and others, 1981 UPLBEC 336, wherein this Court went on to hold as follows:-

"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. In this connection reformance may also be made to the decision of the Supreme Court in Commissioner, Lucknow Division Vs. Km. Prem Lata Misra (AIR 1971 SC 334). It would further be seen that administration including constitution of Committee of Management of an institution recognized under U.P. Act 11 of 1921 is to be carried out in accordance with a Scheme of Administration prepared under Section 16-A of the said Act and this section does not apply to a basic school or a Junior High School. For all these persons and in the absence of any specific provisions in this behalf none having been pointed out to us maintenance grant payable to the basic school or Junior High School which has been upgraded as High School cannot and does not automatically became payable to the recognized High School, Suppose after a Basic School or a Junior High School has been upgraded as a recognized High School, the State Government stops payment of the amount of maintenance grant which was being paid to the basic school, can the recognized High School claim as a matter of right that the said amount has become automatically payable to it. The answer, in the absence of any specific provision permitting such automatic formation, so to speak till, in our opinion, have to be in the negative. Such a recognized High School will have to wait maintenance grant payable to it as a recognized High School has been fixed as contemplated by Section 2 ( c) of U.P. Act 24 of 1972. Consequently, even if the maintenance grant payable to a basic school or a Junior High School is continued to be paid to those who were managing the erstwhile basic school or Junior High School it cannot be said that the upgraded recognized High School is receiving any maintenance grant as defined in Section 2 ( c) of U.P. Act 24 of 1971."

It was further held that in such a situation the grant-in-aid which was available to a Junior High School does not automatically become available to High School or Intermediate College. Realizing this difficulty having arisen on account of the interpretation given by the Full Bench, an amendment was brought about by introducing Section 13-A in U.P. Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 (U.P. Act No.6 of 1979), which is to the following effect:-

["13-A. Transitory provisions in respect of certain upgraded institutions.-- (1) Notwithstanding anything contained in this Act, the provisions of this Act shall, mutatis mutandis apply, to an institution which is upgraded to High School or Intermediate standard and, to such teachers and other employees thereof in respect of whose employment maintenance grant is paid by the State Government to such institution.

(2) For the purposes of this section the reference to the students wherever they occur in Section 5, shall be construed as reference to the students of classes up to junior High School level only.]

This Section was introduced as a transitory provision in order to meet the contingency of an institution which was receiving grant-in-aid up to the Junior High School level but was not extended this benefit of the level of High School. This was consciously done by the legislature keeping in view the difficulties that had arisen in such a situation and in view of the Full Bench decision referred to herein above.

However, observations made by the Full Bench to the effect that the Junior High School looses its identity when a High School comes into existence, still holds the field. No amendment has been brought about by the legislature in the U.P. Intermediate Education Act, 1921 to exclude the applicability of the Act on the employees of such an upgraded institution.

It is in the aforesaid back ground that the impact of recognition having been granted to the institution in question has to be considered. Copies of the recognition orders as communicated to the institution in question dated 1.8.1992 and 14.9.1995 have been handed down to the court about which there is no dispute. A perusal of the order dated 1.8.1992 indicates that the recognition had been granted by the State Government on the recommendation of the recognition Committee and the U.P. Board of High School and Intermediate Examinations under Section 7-A (a) of the U.P. Intermediate Education Act. One of the conditions of the said recognition is that in future only part time Teachers shall be appointed for teaching in the classes which will come into existence as a result of the said recognition. Part time teachers are appointed under Section 7-AA of the U.P. Intermediate Education Act, 1921. The recognition order further provides that one Headmaster/Principal shall be appointed in accordance with Rules. It further provides that all financial liabilities in respect of such appointments shall be borne by the management itself. In essence, the recognition is an unaided recognition. The recognition for running Intermediate classes vide order dated 14.9.1995 is also to the same effect.

A perusal of the aforesaid documents and the provisions of Section 2 (b) and 2 (d) coupled with the ratio of the decision of the Full Bench referred to herein above, it is evident that the institution binds itself to be governed by the provisions of the U.P. Intermediate Education Act and the Regulations made thereunder. The recognition and financial aid are 2 different things; the institution which has been recognized as High School or Intermediate College may not be receiving grant-in-aid and in such a situation it is only the payment of salaries Act i.e. U.P. Act No. 24 of 1971 would not be applicable, but after having been recognized by the State Government under Section 7-A (a) the institution is governed by the provisions of the U.P. Intermediate Education Act and the Regulations framed thereunder. As a necessary corollary to the same, since the appointments to the post of Teachers have to be made by way of selection and recommendations under the 1982 Act, the said Act would also apply to the institution.

Learned Standing Counsel for the State invited the attention of the Court to a Government order dated 24.11.2001 which provides that the matters relating to the service conditions of such employees of an upgraded institution shall continue to be dealt with by the Basic Education Officer and an action required to be taken would be under 1978 Rules pertaining to the employees of a Junior High School. It further indicates that for administrative purposes, even though the junior High School and the upgraded institution are being run under a single Management, they shall be treated to be different Units. There is another provision in the said Government Order indicating the applicability of the Rules pertaining to compassionate appointment.

The aforesaid Government Order became subject matter of scrutiny in 2 decisions of this Court. Clause 5 of the said Government order was found to be in consistent with the provision of U.P. Intermediate Education Act and was held to be ultra vires in the decision of Ramesh Singh Vs. State of U.P. and others, in Writ Petition No. 17422 of 2003 decided on 23.5.2003.

Learned counsel for the petitioner has brought to the notice of the Court the Government Order dated 23.11.2001 issued by the Principal Secretary, Education, in respect of the dependents of Teachers, who have died-in-harness  while serving in the primary section attached to an Intermediate College. This Government Order clearly recites that the primary sections attached to Intermediate Colleges are part and parcel of the institution and, as such, the dependents of such Teachers, who have died-in-harness while working in the primary section are entitled to seek appointment from the District Inspector of Schools for which Rules and Regulations are contained in Chapter III of the Regulations framed under the U.P. Intermediate Education Act. Thus, even for primary schools the State Government recognizes the applicability of the U.P. Intermediate Education Act on such Teachers. The said Government Order is only by way of an illustration, as the present case is a case of upgradation of a Junior High School to High School.

The Intermediate Education Act 1921 makes a provision for consideration of promotion of Teachers in JTC and BTC grade to CT grade. Since CT grade has been declared to be a dying cadre, therefore, the said benefits are available as a LT grade Teachers. This provision is contained in Regulation 7 of Chapter II of the Regulations framed under the U.P. Intermediate Education Act. The regulations had been deleted but have been reintroduced through a Government Order dated 26.2.2003 and 1.12.2003 whereby the aforesaid Regulations were amended. The said amendments are subject matter of controversy before this Court in Special Appeal No. 931 of 2005 in which orders are operating in favour of such promotees in the LT grade. The reference to the aforesaid is relevant in the context of the decision of this Court in the case of Samantika Chaterjee Vs. R.I.G.S.,  Allahabad, reported in (1990) 1 UPLBEC 289, and in the case of Smt. Aruna Ghosh  reported in 1995 (3) ESC 92. The aforesaid decisions consider the impact of the amendment brought about in the word institution in Section 2 (b) of the U.P. Intermediate Education Act and qualified that the previous decisions as referred to therein including the decision in the case of Pramila Mishra by the Apex Court had not considered the aforesaid amendment brought about in the definition referred to herein above.

The question as to whether what would be the provisions applicable upon an up gradation and have been recognized under the U.P. Intermediate Education Act even if remain unaided arose in the case of Shiksha Prasar Samiti Babhnan, district - Gonda Vs. State of U.P. and others which decision is reported in (1986) UPLBEC 477. The Court clearly held that once the institution was upgraded , the mode and Rule of recruitment was to be governed by the provisions of the Removal of Difficulties Orders, 1981 and the provisions of the U.P. Intermediate Education Act, 1921 read with the provisions of U.P. Act No.5 of 1982.

A question arose with regard to applicability of the U.P. Intermediate Education Act in respect of appointment of class 3 post in an upgraded institution. This Court clearly ruled  that the provisions of the Intermediate Education Act 1921 would apply and followed the ratio laid down in the case of Shiksha Prasad Samiti (supra). The decision is reported in 2000 (4) ESC 2768, R.C. Sharma Vs. State of U.P. and others.

This issue was further raised in the case of Vishwanath Singh Vs. District Inspector of Schools, Gorakhpur, and others, 1995 (1) UPLBEC 269. In para 12 of the said decision, the Court clearly ruled that in case the institution is upgraded to High School then it will be governed by the provisions of U.P. Intermediate Education Act instead of other provisions which might have been applicable earlier to the Teachers of the Junior High School.

Once the institution is recognized under the U.P. Intermediate Education Act, the institution binds itself with the terms and conditions of recognition which includes the applicability of the Act itself. It is not open to the institution to change its option in respect of the applicability of Rules and Regulations in view of the binding force of the Act which provides that an institution so recognized, shall be governed by the provisions of the same Act. The Intermediate Education Act does not carve out any exception for the applicability of Rules to the employees and the institution of the earlier Junior High School which stands upgraded .

In the recent case namely Shree Krishna Tripathi and another Vs. District Basic Education Officer, Kanpur Nagar, and another, a single Judge passed an order allowing a class-III employee to continue up to the age of 60 years, who had been appointed as an employee of a n earlier Junior High School. The institution was upgraded as a High School but was unaided. The learned single Judge allowed the continuance of the class-III employees up to the age of 60 years which provided under the U.P. Intermediate Education Act, 1921. The State went up in Appeal being Special Appeal No.170 of 2005 which appeal is pending in which on 18.2.2005 the following order was passed:-

"This appeal and the application is preferred from an order of Hon'ble Single Judge passed on 13.1.2005 whereby opposite party no.1, who was the writ petitioner in the Court below, was allowed to continue to serve the School in question up to the year 2006 when he would attain the age of 60 years.

The controversy arises because of a Vitta Vihin i.e. grantless upgradation and recognition granted to the School by an order, which is annexed to page 64 of the Annexures to the papers put before us, the  said order being of 19.2.97.

The argument of the appellants before us has run on this basis that as the recognition of the higher and upgraded status was granted without aid, it left the school to formulate its own administrative procedure and appointment without almost any supervision so far as the higher classes are concerned. However, as far as the junior school is concerned, the  school is wholly unaided and, therefore, the salary of opposite party no.1 would be a burden on the Board, which is received for the lower class of the School. As such, the appellants feel aggrieved and their case that without the employee like opposite party no. l, works in the junior section, his conditions of service including payment and retirement age should be governed by the U.P. Recognised Basic School Employees Rules, j1984 and not by the U.P. Intermediate Education Act, 1921.

The opposite party no.1 has argued before us that after granting of the upgraded status whether such grant is Vitta Vihin or without aid, the whole institution gets an upgraded status and, therefore, the U.P. Intermediate Education Act, 1921 would be applicable for all employees whether working in upper classes or lower ones. There are certain authorities, which are before us today and which do support the case that once the institution is upgraded, it is so for all purposes and for all its parts and becomes completely separate entity; the case of State of Uttar Pradesh and others Vs. District Judge, Varanasi and others, reported in 1981 UPLBEC 336, at paragraph 17 supports this proposition. In the judgment, under appeal, a reliance has been placed upon the case of Shiksha Prasar Samiti, Babhanan, District Gonda Vs. State of U.P. & others reported at 1986 UPLBEC 477, which also supports this proposition.

So far as our view at present is concerned, we do not find that there is any specific rule or any specific law to this effect, which would support the case of only controversial upgradation of School in case the upgradation is granted without any State aid.

From the practical view to the situation, it appears that the employee, who is a Clerk has been reported to duty even during and after 2004 i.e. after his attainment of the age of 58 years. Probably, he has not received any salary as yet.

In our prima facie view, the case leans very heavily in favour of opposite party No.1, but not quite so heavily as for us to dismiss the appeal here and now. However, opposite party no.1 deserves a very strong interim order. As such, we direct that notwithstanding pendency of this appeal, opposite party no.1 be permitted to work for the post in which he was working before he attained the age of 58 years and such permission be continued to be accorded to him until he attains the age of 60 years. This order, needless to say, will bind all concerned including School Management, appellants, the Government and all its wings. If and when, the appeal is decided, the court of appeal will have full jurisdiction to pass an order in accordance with law, but we specifically permit opposite party no.1 to withdraw appropriate of salary, as if the appeal had been decided in his favour and all arrears of salary be paid to opposite party no.1, positively, within a month. The application for compliance, if any, will be made before the Hon'ble Single Judge.

Sd/- Hon. Ajoy Nath Ray, CJ

Sd/- Hon. Vineet Saran, J

Dt. 18.2.2005"

It is, thus, clear from all the decisions cited herein above and the provisions discussed herein above that a Junior High School upgraded to the High School/Intermediate level, the institution is governed by the provisions of U.P. Intermediate Education Act and Service Rules as applicable to such institution, have to be applied. There is no distinction drawn between an aided or an unaided school. The recognition of the institution is by itself sufficient to exclude the applicability of the laws governing Junior High School once the institution is upgraded. It is for this reason that a special transitory amending provision was brought in by way of Section 13-A in U.P. Act No.6 of 1979 discussed herein above to enable such upgraded institution to continue to receive the grant-in-aid that they were receiving at the level of Junior High School.

In view of the conclusions and findings recorded herein above, the issue raised on behalf of the petitioner has to be answered  in the affirmative in favour of the petitioner. Consequently, the institutions where the respondents are proceeding to make an appointment on the post of the Head of the institution which is admittedly an upgraded institution, can only be made under the provisions of the U.P. Intermediate Education Act, 1921 and the Regulations framed thereunder coupled with the provisions of the U.P. Act No. 5 of 1982 and such other provisions that are consistent with the law laid down herein above.

The writ petition, therefore, succeeds and is allowed and the impugned advertisement as well as the consequential selection and appointment of Ms. Manju Awasthi stands quashed. So far as the appointment of Shashi Prabha Mishra is concerned, the same shall not automatically revive and for the purpose of officiation on the post in question till regular selection is made, the case of the petitioner for appointment shall also be considered keeping in view the fact that she has been declared to be senior than Smt. Shashi Prabha Mishra. Both the writ petitions, therefore, stand allowed with no orders as to cost.

Dt.        Nov., 2005

Irshad


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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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