Sudhir Agarwal, J.@mdashAll these petitions involve common questions of law and fact and, therefore, as agreed and requested by the learned counsels for the parties, have been heard together and are being decided by this common judgment at this stage under the rules of the Curt.
2. The writ petition no. 40581 of 2008 (hereinafter referred to as the ''first set'') has been filed by one Ravendra Pal Singh working as a teacher in Sunasir Nath Uchchatar Madhyamik Vidyalaya, Banda, Shahjahanpur (hereinafter referred to as the "College") challenging the appointment of respondent no. 4 as Principal of College in the pay scale of Rs. 6,50010,5000/ made by the Manager/Authorized Controller after obtaining approval from the District Basis Education Officer, Shahjahanpur (hereinafter referred to as "BSA").
3. The facts in brief, as borne out from the writ petition, are that the College was initially running as an Junior High School and was brought in grantinaid in the year 1984. It was a duly recognised Junior High School by the Board of Basic Education under the Basic Education Act, 1972 (hereinafter referred to as "1972 Act") and after getting grantinaid, the payment of salary of its staff was governed by the provisions of U.P. Junior High School (Payment of Salaries to Teachers and other Employees) Act, 1978 (hereinafter referred to as "1978 Act"). It appears that in 1994, the institution was upgraded upto the level of intermediate and recognised by the Board of High School and Intermediate, U.P., Allahabad. There appears to be some dispute about the management inasmuch as the last committee of management after expiry of its tenure in 1997, ceased to function and, since then, it was being managed by an Authorized Controller. It is said that in April 2006, the Principal, Government Inter College, Shahjahanpur was appointed as Authorized Controller, but, thereafter by order dated 28.11.2007, the Authorized Controller was changed and the Finance and Accounts Officer, Madhyamik Shiksha, Shahjahanpur was appointed as Authorized Controller. Earlier, upto April 2006, one Sri Parmeshwari Deen Verma was working as Principal of the College, who retired on 30.6.2006 handing over charge to his brother Ram Chandra Verma, which was subsequently given to one Sri Jitendra Prasad Verma, a Senior Teacher of the College on 16.7.2006. The Authorized Controller, after his appointment on 28.11.2007, immediately took steps for filling in the post of the Principal of the Junior High School and advertised the vacancy on 23.12.2007 (Annexure1 to the writ petition) published in Hindi daily newspapers "Aaj" and "Swatratra Bharat". Pursuant to the said advertisement, the respondent no. 4 was selected and appointed by order dated 21.1.2008 after receiving approval from BSA vide his letter dated 19.1.2008. The aforesaid appointment of respondent no. 4 has been challenged on the ground that the College being recognised upto Intermediate classes, the respondent no. 4 could not have been appointed as Principal of the Junior High School since the institution has seized to be a Junior High School after its upgradation upto the level of Intermediate College.
4. Counter affidavit has been filed on behalf of the respondents no. 1 and 2 as well as respondent no. 4. The respondents no. 1 and 2, in the counter affidavit, have not disputed the upgradation of the College from Junior School upto the level of intermediate> It is however said that the High School and Intermediate section is not aided and no post has been sanctioned by the Government in the High School and Intermediate section of the College. It is said that the Government Order dated 24.11.2001 has clarified the position with respect to the financial and administrative control of an aided recognised non government Junior High School. This Government Order says where the High School and Intermediate College are unaided but recognised, in respect to payment of salary of the aided staff of such College, the provisions of 1978 Act will continue to govern and shall be monitored by the BSA and for administrative purposes, the institution would be treated separately as Junior High School and the High School/Intermediate, as the case may be. It is said that the State Government by letter dated 18.4.2007 granted approval for filling in the post of Principal of the Junior High School pursuant whereto the Advertisement was made by the College and the said appointment was approved by BSA vide his letter dated 19.1.2008 (Annexure CA6).
5. The respondent no. 4 in his counter affidavit has said that the College was initially recognised on 7.5.1983 as a Junior High School in the name and style of Sunasir Nath Junior High School, Banda, Shahjahanpur. It was brought in grantin aid on 9.10.1984. By letter dated 14.1.1988 (Annexure CA1), the Board of High School and Intermediate recognised the College under Section 7AA of the of U.P. Intermediate Education Act, 1921 (hereinafter referred to as "1921 Act") upto High School and by letter dated 20.10.1995 (Annexure CA2) it was recognised upto Intermediate. Since the post of the Principal of Junior High School fell vacant on 30.6.2006 due to retirement of Sri Parmeshwari Deen Verma, the BSA by letter dated 7.6.2007 sought permission from Director of Education (Basic) to fill in the said post of Principal in Junior High School which is said to have been granted by letter dated 18.10.2007 issued by State Government pursuant whereto the respondent no. 4 was selected and her selection was approved by BSA by letter dated 19.1.2008 and consequently she has been appointed by letter dated 21.1.2008.
6. The petitioner has filed a rejoinder affidavit wherein it is said that after the recognition of the Institution and its upgradation upto High School and Intermediate, the Principal of Junior High School section could not have appointed. It is also pointed out that the respondent no. 4 is in fact working as Principal of an Intermediate College issuing mark sheets of the students of Intermediate classes signing the same as Principal of Sunasir Nath Inter College, Banda, Shahjahanpur, as is evident from Annexure2 to the rejoinder affidavit.
7. The writ petition no. 44350 of 2008 (hereinafter referred to as "second set") has been filed by one Suresh Singh challenging the selection and appointment of the respondent no. 6, Kamlesh Kumar, as Principal of Sri Shankar Bux Singh Junior High School, Pali, Kanpur Nagar (hereinafter referred to as "Collegesecond set") though the same was already upgraded and recognised upto intermediate College as long back as in 1997. The facts in brief as discern from the writ petition (second set) are that the "Collegesecond set" was recognised as a Junior High School in 1974, and was brought in grantinaid in 1984 as a Junior High School. It was upgraded and granted recognition by the Board of High School and Intermediate, U.P., Allahabad under Section 7AA of 1921 Act in 1990 and further upgraded and recognised upto Intermediate level on 3.5.1997 (Annexure1 to the writ petition). The post of erstwhile Head Master, Junior High School held by one Sri B.D. Tiwari since prior to 1990 fell vacant after his retirement in 2002, whereafter the District Basic Education Officer, Kanpur Mandal (hereinafter referred to as BSA, Kanpur Mandal) granted permission to the Manager of the College (second set) by his letter dated 6.2.2007 to make appointment of Head Master of Junior High School and pursuant thereto the respondent no. 6 has been appointed as Principal of the Junior High School in the pay scale of Rs. 6,50010,5000/ by order dated 26.5.2007 impugned in this writ petition. It is also said that a complaint was made to the Director of Education (Basic), U.P., Lucknow who got an enquiry conducted through the Joint Director of Education, Kanpur Mandal, Kanpur and in his report dated 21/22.5.2008, the Joint Director of Education, Kanpur Mandal, Kanpur has found that the respondents no. 6 has submitted his experience certificates which are forged and has recommended for cancellation of her selection. Pursuant whereto, the DIOS vide order dated 28.5.2008 cancelled the approval dated 26.5.2007 whereagainst the respondent no. 6 filed writ petition no. 30677 of 2008 (hereinafter referred to as the "third set") wherein the cancellation order dated 28.5.2008 of the BSA, Kanpur Mandal has been stayed by this Court vide interim order dated 17.5.2008.
8. Writ petition no. 30677 of 2008 (third set) has been filed by Kamlesh Kumar (respondent no. 6 in writ petitionsecond set) challenging the order dated 21/22.5.2008, Annexure12 to the writ petition, whereby the Joint Director of Education has recommended for cancellation of his selection to the post of Principal of Junior High School of the Collegesecond set. He has challenged the said order mainly on the ground that before submitting the said report, he was not granted any opportunity of hearing.
9. A counter affidavit has been filed on behalf of respondents no. 9 and 10 in the writ petition (third set), who have placed on record certain documents to show that the respondent no. 6 has submitted forged documents about his experience inasmuch the Principal, Ambedkar Junior High School, Danshah, Sahar, Auraiya has certified that the respondents no. 6 has never worked in his institution and the letter, Principal''s seal and signature to this effect are all forged. A perusal of the record of the writ petition (third set) also shows that the petitioner filed an amendment application seeking to challenge the order dated 28.5.2006, which is said to have been passed after filing of the writ petition and the said amendment application was allowed by this Court on 17.7.2006 giving a week''s time to incorporate the said amendments in the writ petition, but the same has not been incorporated by the petitioner till the date, the judgement was reserved in this matter.
10. The first question up for consideration in both these matters is whether it is permissible to make any appointment as Principal/Head Master of the Junior High School by invoking powers under "Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978" (hereinafter referred to as "1978 Rules") though the Institution has been recognised and upgraded upto High School and/or Intermediate.
11. This issue is no more res intetra having been decided by two singleJudge judgments of this Court and one Division Bench judgment following an earlier full Bench decision of this Court. Accepting the contention of the persons, who have been appointed as Principal of the Junior High School would amount to assuming a situation where the same Institution will have two Principals one for the High School or Intermediate, as the case may be, and another for the Junior High School, though it is one and the same entity. A Full Bench of this Court in State of U.P. &others Vs. District Jduge, Varanasi & others 1981 UPLBEC 336 in para 17 observed as under :
"17. A basic school or a Junior High School is thus different from a High School or an Intermediate College. On the plaint 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."
12. A Division Bench of this Court in Ajay Pratap Rai Vs. District Basic Education Officer, Jaunpur & others 2007 (4) ADJ 357 (DB) considered a similar case, as the cases are in hand, and in para 9 and 10 of the judgment held as under :
"9. The aforesaid observations of the Full Bench as explained in the judgment of Sushila Gupta''s case, therefore, leave no room for doubt that the selection and appointment on the post of Head of the Institution which has been recognized as a High School and Intermediate College cannot be made under the provisions which are applicable to a Junior High School. In Sushila Gupta (supra), the learned Single Judge considered all the Amendment made in the Statute and held that in spite of so many amendments to the statutory provisions, the proposition of law laid down by the above referred to Full Bench remained the same. Mr. Saxena has not brought to our notice any provision which have altered the legal position.
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 previsions 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."
13. This Division Bench decision has been followed by this Court also in Smt. Shail Kumari Singh Vs. State of U.P. & others 2008 (1) ESC 365 (All). There also this Court has observed that while granting recognition as High School and Intermediate, the Board of High School imposes a condition upon the Institution that they shall make an appointment of a Principal of the Intermediate College and such appointment shall not be made as an interim measure or on a part time basis, but has to be made as per procedure prescribed in U.P. Secondary Education Services Selection Board Act, 1982. There can be only one Principal of the Institution. Para 16 of the jdugment is reproduced as under :
"16. In the case in hand, while granting recognition as High School, the Board clearly imposed a condition that the management has to make appointment of Principal of High School. Obviously, such appointment was not to be made as an interim measure or on parttime basis and, therefore, the appointment of Principal has to be in respect of upgraded institution as per the procedure prescribed in 1982 Act and the management could not have made appointment by resorting to the provisions applicable to Junior High School, since after upgradation as High School, no appointment of Headmaster/Headmaster of Junior High School could have been made in law as the post of Headmaster/Headmistress of Junior High School becomes inoperative after upgradation since only one head of the institution could have continued at a time. Therefore, there could be only one Principal and that too of High School. This is what has been held by Division Bench in Ajay Pratap Rai (supra) also and in my view, that is the only cogent and practical solution in such cases otherwise it would create a chaotic situation. Issue No. 2 is decided accordingly."
14. To the same effect is the view taken by another Hon''ble Single Judge (Hon''ble A.P. Sahi) in Dr. (Smt.) Sushila Gupta Vs. Joint Director of Education, Kanpur Region, Kanpur & others 2006 (1) ADJ 89 (All).
15. In both these matters, the Court found that in the recognition order of the Colleges, first and second set, the Board has imposed a condition of appointment of a Principal. Annexure2 to the counter affidavit of the respondent no. 4 in the writ petition (first set) Clause 5 under the "general conditions for recognition" reads as under :
12. Any other view in the matter is bound to create complexity in the matter as is also evident from the record inasmuch in the writ petition (first set), though the respondent no. 4 Malti Verma was appointed as Principal of Junior School, but Annexure2 to the rejoinder affidavit shows that she is issuing mark sheets of the High School and Intermeidate students designating herself as the Principal, Sunasir Nath Inter College, Banda, Shahjahanpur, Uttar Pradesh. This is clearly usurpation of power not vested in her. This is patently illegal.
13. In the writ petition (second set) there is another glaring serious illegality in the very appointment of respondent no. 6 inasmuch her experience certificates have been found to be forged and fictitious as certified by the College in which she claims to have worked. This document has been placed on record as Annexure CA5 to the counter affidavit of respondent no. 9 served upon the petitioner of the writ petition (third set) on 7.7.2008, but no rejoinder affidavit has been filed disputing the same. No other material has been placed on record by the petitioner of the writ petition (third set) to show that the certificate of her working at Ambedkar Junior High School, Danshah, Sahar, Auraiya was not forged but genuine. In my view, generally an adverse order against a person ought not to have been passed without affording any opportunity but where from the facts and circumstances of the case, only one view is possible showing that the very appointment of the person concerned is void and illegal, no interference would be called for by this Court even if the order adverse has been passed without issuing any show cause notice to the person concerned.
.. In the case in hand, however, even this is not correct since the petitioner of the writ petition (third set) admits that she was issued a notice by the Joint Director of Education fixing 5.4.2008 for hearing. However, the petitioner could not appear since the aforesaid letter was addressed to the Manager of the College (second set), but thereafter when she got the information, she appeared before the Joint Director of Education on 21.4.2008 and informed that she has not submitted any certificate of experience with respect to her working at Ambedkar Junior High School, Danshah, Sahar, Auraiya but certificate submitted by her were with respect to her teacing at Sri Shivdas Tyagi Madhyamik Vidyalaya, Ramgarh, District Auriya. This fact of the petitioner of the writ petition (third set) stands belied from the application form, a photocopy whereof has been filed as CA4 to the counter affidavit filed by respondent no. 9 in the writ petition (third set) wherein the petitioner in the column "education institution" has given details of teaching at Ambedkar Junior High School, Danshah, Sahar, Auraiya and not that of any other College. That being so, her submission that she appeared before the Joint Director of Education on 21.4.2008 and clarified the position nullify the argument with respect to lack of opportunity. So far as as her experience in another college is concerned, the same is belied from her own application which has not been denied by her by filing any rejoinder affidavit.
... So far as the writ petition (second set) is concerned, this Court is of the view that an interim order passed by this Court staying an order would not give rise to a cause of action to file another writ petition and the petitioner of the writ petition (second set), in my view, was illadvised to file the said writ petition challenging the letter of appointment dated 26.5.2007 though it became non est when the BSA, Kanpur Mandal already recalled his order of approval dated 26.5.2007 by order dated 28.5.2008 and, therefore, so far as the writ petition (second set) is concerned, it was open to the petitioner of the writ petition (second set) to have filed an impledment/amendment application in the writ petition (third set), which he in fact had filed and was allowed by this Court on 17.7.2008. A fresh writ petition, in my view, therefore, is not maintainable.
13. In view of the above discussion :
(a)the writ petition no. 40581 of 2008 is hereby allowed. the order dated 21.1.2008 passed by respondent no. 3 (Annexure 3 to the writ petition) is hereby quashed and it is declared that the appointment of respondent no. 4 as Principal of Sunasir Nath Uchchatar Madhyamik Vidyalaya, Banda, Shahjahanpur was illegal and contrary to law. The respondents are directed to make appointment of the Principal of the Intermediate College in accordance with provisions of 1921 Act read with 1982 Act and shall refrain from appointing a separate Principal of the Junior High School so long as the institution continues to be recognised and upgraded as High School and Intermediate College. The petitioner shall be entitled for cost quantified to Rs. 10,000/ which shall be recoverable from the respondent no. 2 who enabled the concerned College to make appointment of Principal, Junior High School despite the institution having been upgraded upto Intermediate College, in flagrant violation of the law of this Court in Ajay Pratap Rai (supra).
(b)The writ petition no. 44350 of 2008 is dismissed as not maintainable.
(c)Since this Court does not find any error, legal or factual, in the order dated 21/22.5.2008 of the Joint Director of Education as well as 28.5.2008 of the District Basic Eduction Officer, Kanpur Nagar recalling the selection and approval order of the petitioner as Principal of Sri Shanker Bax Singh Junior High School, the writ petition no. 30677 of 2008 is dismissed with cost quantified to Rs. 5,000/ payable by respondent no. 5. The respondents are directed not to make an appointment on the post of Principal of the Junior High School section of the College, Sri Shanker Bax Singh Junior High School, Pali, District Kanpur Nagar so long as the said institution continues to be a recognized High School and Intermediate College, and, instead they are directed to make appointment on the post of Principal in accordance with the provisions of 1921 and 1981 Act without any further delay.
