JUDGMENT
Sunil Ambwani, J.
1.Heard Sri Vinod Kumar Singh, learned counsel for the petitioner and Sri O.P. Shurmu for Sri Again Prakash Deepak-respondent No. 6. Learned standing counsel appears for the State respondents, and the Basic Shiksha Adhikari.
2. The back ground facts in brief are as follows;
3. The Beni Singh Vaidic Vidyawati Inter College.’Baluganj, Agra is an educational institution running classes up to Intermediate level. It was initially recognised only up to High School and was receiving grant-in-aid from the state government. The U.P. Junior High Schools (Payment of Salary to Teachers and Other Employees) Act 1978 (in short the Act of 1978) was applicable to the institution. On 21.12.1988 the Regional Secretary, Board of High School and Intermediate Education gave recognition to the school as unaided (Vitta Viheen) High School with permission for the students of the institution to appear in the High School examination of the year 1990. A consequential order was issued by the District Inspector of Schools, Agra on 13.10.1989. The Accounts Officer in the office of Basic Shiksha Adhikari, Agra informed the Management on 17.5.1990. that after the school has received the recognition for conducting the classes up to High School. It is not possible to pay the salaries under the Act of 1978.
4. The Committee of Management filed a writ petition No. Nil of 1990 (Badam Singh and 13 others v. State of U.P. and Ors.) for payment of salaries to its teachers. On 25.5.1990 the court passed an interim order directing respondent nos. 2 and 3 to pay the petitioners’ salary as they were entitled to prior to the up gradation of the institution as High School. The writ petition is still pending and the salary is being paid upto Junior High School level from the office of Basic Shiksha Adhikari, Agra in accordance with the Act of 1978.
5. The Act of 1978, was amended by U.P. Junior High School (Payment of Salaries to Teachers and Ors. Employees) Amendment Act 2000 ( U.P. Act No. 34/2000) inserting Section 13-A in U.P. Act No. 7 of 1979. The newly inserted section is quoted as under;
“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, hall be construed as reference to the students of classes up to junior high school level only. ”
6. The school applied and that the Additional Secretary, Board of High School and Intermediate Education by his order dated 16.10.1995 passed an order giving un-aided (Vitta Viheen) recognition to the institution at the Intermediate level. The school is now imparting.classes from Class VI to XII and that the students are “regularly appearing in High School and Intermediate examination. The salary of the staff upto Junior High School level is being paid from the Government grants through Basic Shiksha Adhikari; Agra. There are five substantive vacancies on account of retirement and deaths of Assistant Teachers at Junior High School level. The Committee of Management took initiative in 1998 and 1999 for making selections and appointment but no selection could be made on account of objections taken by the Basic Shiksha Adhikari on the ground that the institution has been upgraded upto intermediate level and thus no selections can be undertaken treating the institution as a Junior High School.
7. The Basic Shiksha Adhikari, however, passed an order on 6.6.2002 directing the management to appoint Sri Again Prakash Deepak-respondent No. 6, as untrained Assistant Teacher in the institution on compassionate grounds. The petitioner protested to this appointment and in their representation dated 11.6.2002 they stated that no resolution has been passed to appoint the respondent No. 6 on compassionate grounds. The management took objection to the fact that when the Basic Shiksha Adhikari did not agree to initiate proceedings to fill up the post on the ground that the institution has been upgraded up to Intermediate level, how could be exercising powers of making compassionate appointments. The Basic Shiksha Adhikari by his order dated 4.9.2002 again issued orders for appointment of respondent No. 6 failing which the salaries of the Head Master and other teachers shall be stopped. By interim order dated 4.10.2002 the operation of these orders dated 6.6.2002, and 4.9.2002 passed by Basic Shiksha Adhikari, Agra were stayed.
8. The first question to be decided in this writ petition is whether in the facts and circumstances when an aided Junior High School is upgraded as unaided Higher School and thereafter an Intermediate College, the Basic Shiksha Adhikari continues to have the administrative control for payment of salaries under the Act of 1978; and second, whether in such case the Basic Shiksha Adhikari can direct a compassionate appointment to be made in the institution, in pursuance of Government Order dated 31.1.1997.
9. Learned counsel for the petitioner has relied upon the newly inserted Section 13-A in the Act of 1978 and the Government Order dated 24.11.2001 by which the Principal Secretary, Government of U.P. provided in para 5, that for administrative purpose the aided Junior High School and unaided High School/Intermediate Colleges situate in same campus and under same management, shall be treated as separate units and that all administrative functions in such cases shall be performed by the concerned District Basic Education Officer, and District Inspector of Schools separately, and for all purposes the Accountant Officers shall continue to discharge their functions. He submits That the Basic Shiksha Adhikari having objected to the initiation of the appointment process to fill up the five vacancies in Junior High School section on the ground that the school has been upgraded as High School and then Intermediate college cannot turn around and make compassionate appointment without there being any resolution of the Committee of Management. It is further submitted that once the school has been upgraded with High School and thereafter as Intermediate for the purpose of appointments of teachers the provisions of U.P. Intermediate Education act 1921 and the U.P. Secondary Education Service Selection Board 1982 will be applicable. The Basic Shiksha Adhikari can have administrative control only for payment of salaries upto Junior High School, and has not been provided with the administrative control over the appointments.
10. Sri O.P. Sharma, learned counsel for respondent No. 6 submits that the grant of un-aided, recognition to High School and Intermediate Sections, does not take away the control of the Basic Shiksha Adhikari over the Junior High School, and that so long as U.P. Act of 1978 is applicable the Basic Shiksha Adhikari has administrative powers including the powers to make compassionate appointment. The Selection Committee constituted under Regulation 105 of the U.P. Intermediate Education Act 1921, in its meeting held on 18.9.2000 considered the petitioner’s application and decided in his favour. However, since the institution was under administrative control of District Basic Education Officer, Agra, the District Inspector of Schools, Agra by his letter dated 2.10.2000 directed the District Basic Education Officer, to take appropriate action. The father of respondent No. 6 died in harness on 27.5.1998. The respondent No. 6 is fully qualified for appointment. The Committee of Management has not complied with the order and thus the Basic Education Officer, Agra was left with no other option to stop the salary of teachers and employees of the institution. The Government Order dated 24.11.2001 has divided the administrative control of the aided Junior High School and upgraded unaided High School/Intermediate under same management and same campus between the District Basic Shiksha Adhikari and District Inspector of Schools.
11. Once an aided Junior High School is up graded as an unaided High School/Intermediate and the State Government has not taken liability for payment of salary of teachers of High Schools and Intermediate classes, the salary continues to be paid to the teachers under the provisions of the Act of 1978, which is applicable to the institutions as defined in Section 2 (e) to mean, a recognised junior high school for payment being receiving maintenance grants from the State Government. This Act of 1978 (U.P. Act No. 6/1979) regulates the payment of salaries to the teachers and other teachers of Junior High School receiving aid out of the State funds. Section 3 of the Act provides for the payment of salary within time and without unauthorized deductions. The power of inspections is given in Section 4, . and Section 5 provides for procedure for payment of salary. The enforcement of provisions and directions are given in Section 6 and the Appeal is provided in Section 7. Section 9 restricts the institution to create a new post of teachers or other employee except with previous approval of the, Director, or such other officers. The recruitment and conditions of services of teachers of aided Junior High School not being institution belonging to or wholly maintained by the U.P. Board of Basic Education, is provided under the U.P. recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Services of Teachers) Rules 1978, made under the U.P. Basic Education Act 1972. The minimum qualifications for appointment on the post of Assistant Teacher of recognised school is Intermediate Examination by the Board of High School and Intermediate Education, U.P., or an equivalent examination with Hindi, and a teachers training course recognised by the State Government or the Board such as Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teachers Teaching Certificate and Certificate of Training.
12. The payment of salary is linked with the sanction of post and validity of the appointments. The Rules of financial management require that the salary is paid to the determined number of validly appointed teachers. Where the institution has been upgraded as High School/Intermediate without sanction of maintenance grants the financial control over the institution is restricted only upto junior high school level. The management may be under supervision for maintaining the standards of education which include adherence to the qualifications of teachers as prescribed under the U.P. Intermediate Education Act 1921, but unless the financial liability is taken over the District Inspector of Schools will not get any financial control over the institution. The State Government has clarified such a dichotomy of administrative and financial control over the aided junior high schools upgraded as unaided high school/intermediate classes, vide Government Order dated 24.11.2001.
13. Learned counsel for the respondent No. 7, has rightly placed reliance of Section 9 (iv) of the U.P. Intermediate Education Act 1921, which confers wide powers to the State Government to make any regulations modify and rescind it in respect to any matter under provisions of the Act. In Krishna Pal Singh v. Government of U.P. 1981 UPLBEC 6521 a Division Bench of this Court had held that any order issued by the State Government under the Section 9 (iv) will acquire statutory character and the same would be effective, notwithstanding any regulation framed by the board. The submission of the petitioner based upon the judgement of learned single judge of this Court in Ramesh Singh v. State of U.P. and Ors. (Writ Petition No. 17422 of 2003, decided on 23.5.2003). holding that para 5 of the Government Order dated 16.11.2001, is inconsistent with the provisions of Section 16-A of the U.P. Intermediate Education Act 1921, is not a relevant decision for the present case. In that case the Court was dealing with the powers of the District Basic Education Officer to decide the question of no confidence motion passed by the Committee of Management against its Manager. After examining the provisions of the U.P. Intermediate Education Act 1921 and the act of 1978 it was held relying upon State of U.P. v. District Judge, Varanasi 1981 UPLBEC 336 (Full Bench, para 17) that the Junior High School and High School or Intermediate Colleges are distinct legal entities. Once a Basic School or a Junior High School is upgraded as a High School its identity as a Basic School or Junior High School is lost. It ceases to exist as legal entity and it place another institution with new legal entity comes into being. Learned Judge held that once a Committee of Management is recognised and the Memorandum of Association is approved under Section 16-A of the U.P. Intermediate Education Act 1921, the District Basic Education Officer ceases to have any authority or jurisdiction to deal with the upgraded junior high school. These observations were made in the context of a management dispute, where the Deputy Director had approved the scheme of administration, having in exercise of powers under Section 16-A of the U.P. Intermediate Education Act 1921. In this case we are concerned with the financial control,and consequently the validity of appointment of the Assistant Teacher in the Junior High School.
14. The up gradation of an aided Junior High School as unaided High School/Intermediate College does not take away the institution from the financial control of the Basic Shiksha Adhikari. The power of the State Government to issue Government Order dated 24.11.2001 can be traced to Section 9 (iv) of U.P. Intermediate Education Act 1921. In order to remove difficulties and smooth functioning of the powers, where they are not so clearly defined the State Government can always, fill in the gap. The Basic Education Officer as such does not cease to have administrative or financial control over the institution. He, however, ceases to have control over the management in so far as it touches and deals with the scheme of administration and the functioning of the High School and Intermediate classes are concerned.
15. The petitioner does not have any teaching qualification. He was appointed without consent and resolution of the committee of management of the institution. The District Basic Education Officer has defended his action under Government Order dated 31.1.1997, which provides for compassionate appointment. Para 3 of this Government Order provides with such appointment can be given even to untrained teachers provided he completes the training after he is appointed.
16. I find substance in the submission of .learned counsel for the petitioner that the Government Order dated 31.1.1997 is in conflict with Rule 4 of the U.P. Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Services of Teachers) Rules 1978 which provides for educational qualification for appointment as assistant teachers in junior high school including the teaching qualifications. These rules do not provide for any exception from the teaching qualifications. Further, I find that after enforcement of National Council of Teachers Education Act 1993 no untrained teacher can be appointed even on compassionate grounds in any school receiving grant-in-aid from the State Government.
17. Learned counsel for respondent No. 6 has relied upon Rule 8 of the U.P. Appointments of Dependants of Government Servant Dying in Harness Rules 1974. A perusal of the Rule 8 shows, it refers to age and the procedure for appointment to be relaxed, but no relaxation is provided for minimum qualification for the post. There is no provision under these rules to relaxing essential educational, qualification and training qualification. The respondent No. 6 as such could not be appointed as Assistant Teacher in the institution and to that extent 1 hold that the Para 3 of the Government Order dated 31.1.1998 is ultra, vires Rule 14 of U.P. Recognised Basic-Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules 1978 as well as the provisions of Section 14 of the National Council of Teachers Education Act 1993.
18. The writ petition is consequently allowed. The orders of the District Basic Education Officer, Agra dated 6.6.2002 and 4.9.2002 (Annexure 8 and 10 to the writ petition) are set aside with no order as to costs.