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IN THE HIGH COURT OF ALLAHABAD AT LUCKNOW BENCH
S. SAGHIR AHMAD, BRIJESH KUMAR, JJ.
Shiksha Prasar Samiti - Appellant
Versus
State of U.P. and Others - Respondent
Writ Petition No. 561 of 1985
Decided On : 11-02-1985
UP SECONDARY EDUCATION SERVICE COMMISSION ACT, 1982 - APPLICABILITY - RECOGNIZED INSTITUTIONS - HEAD OF INSTITUTION - APPOINTMENT - SELECTION COMMITTEE - SALARY SCALE - PAYMENT OF SALARIES ACT, 1971 - APPLICABILITY - Vires of the Act - Appointment of Head of Institution - Applicability of Regulations - Salary Scale of Head Master - U.P. High Schools and Intermediate Colleges (Payment of Salaries to the Teachers and other Employees) Act, 1971.
Fact of the Case:
Petitioner, a registered society, established Janta Junior High School in 1969. In 1980, the school was raised to High School and recognized as such by the Board of High School and Intermediate Education. Sri Ram Prakash Misra continued as Head Master of the upgraded Janta High School. In 1981, U.P. Secondary Education Service Commission and Selection Board Ordinance was promulgated, which was later replaced by U.P. Act V of 1982 with retrospective effect from 14-7-81. The post of Head Master of the upgraded Janta Higher Secondary School was advertised by the Commission. The Commission directed the Petitioner to appoint Sri Ras Behari Misra as the Principal of the Janta Higher Secondary school. The Petitioner challenged the selection and appointment, contending that U.P. Act V of 1982 was not applicable to the institution, that the post of head of the institution was not vacant, and that the provisions of the Act were ultra vires the Constitution.
Finding of the Court:
1. The Petitioner's institution being an institution recognized under the U.P. Intermediate Education Act would be governed not only by that Act but also by the provisions of U.P. Act V of 1982. 2. Regulation 4 of Chapter II of the Regulations does not speak of the head of the institution but lays down that where a Junior High School is recognized as a High School, the permanent or temporary teacher of such school would become the permanent or temporary teacher of the High School. 3. Under Regulation 2(2)(g) of Chapter II of the Regulations, the Head Master of a Junior High School does not become the Principal or Head Master of such High School on its being raised to High School. 4. The scale of pay of the Head Master of a High School has been fixed under the provisions of the U.P. Intermediate Education Act which is applicable to all recognized institutions. 5. The Petitioner's institution cannot make a departure by not paying the salary in that scale or else it would be violating the provisions of the Immediate Education Act as also the Regulations made thereunder so as to render itself to be derecognized.
Issues: 1. Whether U.P. Act V of 1982 was applicable to the Petitioner's institution? 2. Whether the post of Head Master of the upgraded Janta Higher Secondary School was vacant? 3. Whether the provisions of U.P. Act V of 1982 were ultra vires the Constitution? 4. Whether Regulation 4 of Chapter II of the Regulations covered the head of the institution? 5. Whether the Petitioner's institution could pay the salary of the head of the institution in a scale of its own choice?
Ratio Decidendi: 1. U.P. Act V of 1982 applies to all recognized institutions, including the Petitioner's institution. 2. The post of Head Master of the upgraded Janta Higher Secondary School was vacant as Regulation 2(2)(g) of Chapter II of the Regulations does not provide for automatic appointment of the Head Master of the Junior High School to the post of Head Master of the upgraded High School. 3. The provisions of U.P. Act V of 1982 are not ultra vires the Constitution as they do not restrict the functioning of the members of a registered society or curtail their fundamental right to form association. 4. Regulation 4 of Chapter II of the Regulations does not cover the head of the institution. 5. The Petitioner's institution cannot pay the salary of the head of the institution in a scale of its own choice as the scale of pay has been fixed under the provisions of the U.P. Intermediate Education Act.
Final Decision: The petition was dismissed. The Petitioner's request for a certificate to file an appeal in the Hon'ble Supreme Court was refused.
S. SAGHIR AHMAD, J.
1. The Petitioner is a registered society which established Janta Junior High School in 1969. The school was granted temporary recognition but in 1974 it was granted permanent recognition and then with effect from 1-7-74 one Sri Ram Prakash Misra, M.A. B.Ed. was appointed as its Head Master. In 1980 the school was raised to High School and was recognised as such by the Board of High School and Intermediate Education (for short, Board) established under the U.P. Intermediate Education Act and is now being run under a duly approved scheme of Administration. Sri Ram Prakash Misra continued as Head Master of the upgraded Janta High School and he was also approved by the Managing Committee, as he possessed the necessary qualifications in that regard. The school, it is claimed, is not an aided institution and is not on the list of grants-in-aid institutions so the salaries to the teaching and non-teaching staff are paid by the Managing Committee and it is not the responsibility of the Government to pay salary to the said stati, as the provisions of the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 is not applicable.
2. In 1981 U.P. Secondary Education Service Commission and Selection Board Ordinance (Ordinance No. VIII of 1981) was promulgated which was later replaced by U.P. Ordinance No XXIII of 1981 and then by U.P. Act V of 1982 with retrospective effect from 14-7-81, the date on which the Ordinance was first promulgated. Under this Act the appointment to the post of head of the Institution and teachers are to be made through Commission or Board constituted thereunder.
3. The post of Head Master of the upgraded Janta Higher Secondary School (hereinafter to be referred to as the Schools) was advertised by the U.P. Secondary Education Service Commission (for short, Commission) on 9th April, 1983 through the advertisement contained in Annexure 1 to the writ petition. Subsequently the Commission by its letter dated December 9, 1983 (annexure 2) directed the Petitioner to appoint Sri Ras Behari Misra (opposite party No. 5) as the Principal of the Janta Higher Secondary school. It is this selection and appointment which has been impugned in the present writ petition on the grounds, inter alia that U.P. Act V of 1982 was not applicable to the institution in question which was not on the list of grants-in-aid institutions and that, in any case, the post of head of the institution was not vacant which could be advertised or on which an appointment could be directed to be made by the commission as Sri Ram Prakash Misra, Head Master, appointed by the Managing Committee, was already working on that post after the institution was raised to High School and recognised as such by the Board. It has also been contended that the provisions of the Act are ultra vires the Constitution, as it restricts the functioning of the members of a registered society, who under Article 19 have fundamental right to form association and to act through the society or the association. Since under U.P. Act V of 1982 the members could not make appointment of the teachers including the head of the institution, their functioning it is claimed, has been curtailed and, therefore, the Act is hit by Article 14 and 19 of the Constitution. The Petitioner Society has also contended that the regulations made under the U.P. intermediate Education Act were still available and consequently under Regulation 4 of Chapter II of the Regulations, the permanent and temporary teachers of the Janta Junior High School became the permanent and temporary teachers of the Janta Higher Secondary School. The provisions of Regulation 4 though they speak of teachers only, would be treated to cover the case of the head of the institution also so that Sri Ram Prakash Misra, who was also otherwise quailed, as lie possessed the degrees of M.A. and B.Ed., became the Principal of the Janta Higher Secondary School,
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