Friday, May 25, 2012

“Whether the right to a Principal , Head Master, on attaining the age of superannuation, except by denial by himself before 2 months of attaining the age of superannuation, is not amenable to the officiating principal drawing the salary and other benefit as regular Principal in furtherance of Regulation 21 under U.P. Intermediate Education Act, 1921?

  IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD
          Legal Arguments On the Referred Question
SPECIAL    APPEAL     NO.   1987 OF 2009
                    (Under Chapter VIII Rule 5 of High Court Rules, 1952)
(connected with  SPECIAL APPEAL No. - 1991 of 2009)
                                                          (DISTRICT – ETAWAH)
Surendra Prasad  Agnihotri S/o Sri Babu Ram Agnihotri , Officiating Principal, Shri Gandhi Adarsh Inter College, Labedi, Etawah. - Appellant /Petitioner.
                                            Versus
1.     The State of U.P. through Secretary Madhyamik Education, Government of U.P., Lucknow.
2.     Director of Education ( secondary) , U.P. , Allahabad
3.     The Uttar Pradesh Madhyamik Shiksha Sewa Chayan Board, 23, Alen Ganj, Allahabad through its Secretary.
4.     The Regional Joint Director of Education, Kanpur Region, Kanpur.
5.     The District Inspector of School, Etawah.
6.     The Committee of Management, Sri Gandhi Inter College, Labadi, Etawah through its Manager Ishwar Chandra Tiwari S/o Shri Ram Nath Tiwari, Village and post Labedi, Etawah .
7.     Satyendra Kumar Shukla Son of late Sri Krishna Kumar Shukla  , Senior Most Lecturer in Sanskrit, Sri Gandhi Adarsh Inter College,  Labadi, Etawah
8.      Harindra Prasad Son of Sri Shiv Nath Ram , Lecturer in psychology, Sri Gandhi Inter College, Labedi, Etawah  - - - -  Opposite parties/ Respondents
To
    The Hon’ble the Chief Justice and his other companion Judges of the aforesaid Court.
    The humble writ petition of the above-named petitioner most respectfully showeth as under: -
                                 The synopsis of the argument pertaining to the controversy involved and the legal preposition of  law advanced regarding  automatic extension of service till the end of academic session  to the principal and the head master and the re appointment of the teacher in the degree college without having any extension of such right after attaining the age of superannuation. Thus on the basis of the submissions advanced herein after, the language of the referring order and the question framed there under is required to be modified. It is submitted that in view of the case law in re Bhuwalka Steel Industries ltd. Versus Bombay Iron and Steel labour Board and another (2010)2 SCC 273, the opinion of the constitutional bench is only  confined up to the scope of the referred question which will not be the determination for the relevance of the decision advanced in relation to the controversy involved and the impugned order dated 4-8-2009 confining the dimension of Regulation 21 of the Intermediate Education Act                      

               Statute 16.24 of first statutes of Kanpur University-       (3) No extension in service beyond age of superannuation shall be granted to any teacher after the date of commencement of these statutes provided that a teacher- 22nd Amendment 1st Statute’ 1985 shall continue in services till the end of academic session, i.e.  June 30 following, and will be treated as on RE-EMPLOYMENT from the date immediately following his superannuation i.e. June, 30 of the commencing year.
                             Since under the statute of a Universities, a teacher is discontinued in service beyond age of superannuation and he is in  RE-EMPLOYMENT till the end of academic session, he Shall loose  his seniority of his cadre automatically  and  thereafter he shall continue to remain serving under a teacher in the Lower cadre and thus a concept of his continuance as  head of the department or officiating Principal on account of his being the senior most teacher, he  shall not continue as such on the said posts . Thus  in view of the fact that no extension in service beyond the age of superannuation is provided to the teacher of the degree college, the  incumbent may be reverted to his original post.
                               Thus, this analogy, which has been taken place  in case of S.K. Rathi  Vs Prem Hari Sharma 2001, SCC, Vol.9, pg.377 and is being followed up in case of(Dr. R.C. Gupta Vs State of U.P.)  2002 Vol.1 UPLBEC pg.767 may not be imported as identical to Regulation 21 of Ch.3 of the Intermediate Education Act.
                            The appointment of the officiating principal is for the period of 3 months in a Degree college or until the appointment of the regular principal and thus the senior most teacher in the college shall officiate as principal until a regular principal is appointed Statute  13.20 of the First  statute of the Kanpur University .
                         However, In  U.P. Intermediate Education Act, 1921 Chapter II regulation 1-appointment, in appendix –a , the regulation shows that the person must have 4 years of teaching experience in class 9th to 12th in a recognized institution. There is no mention of the permanent principal or the principal in substantive capacity in imparting the definition. There is no difference that  teaching experience must only be in a permanent capacity and not in ad-hoc capacity/ officiating.  such  a view has been taken by the apex court in State of M.P. Vs Lakshmi Shankar Mishra AIR SC 1979, relied upon in case of Committee of Management B.D. Bajeria Inter college, Saharanpur, Vs Director of Education, 2000 ESC Allahabad 1326 is  a correct law. In the case of Uday Narayan Pandey case reported in 1999 Vol.1 AWC pg.897 where in the provisions of  Regulation 21 The Intermediate Education Act has been dealt with.
                    Rule 9 of 1983 made under U.P.  Secondary Education Service commission Act , 1982 bearing the requirement of a person having 5 years continuous services  by deleting the substantive service for promotion to the next grade was introduced .
                        Thus coupled with the aforesaid provisions, Section 18 of U.P. Secondary Education Services Selection Board Act, 1982 providing appointment as ad-hoc principal and head masters, the post remain vacant for more than 2 months, the same be filled up from amongst the senior most teacher serving in teacher grade in respect of vacancy on the post of the principal.
                                        Regulation 21 U.P. Intermediate Education Act, 1921  prescribes the post of principal, headmaster, teacher and other employees.
                      Except in the condition when the he himself, before 2 months of the date of superannuation, furnishes in writing the information for not seeking extension of service up to 30th  June, shall be deemed  to the be conferred on him so that after summer vacation , substitute can be arranged in the month of July. In such cases,the Doctrine of Promissory estoppels  as held in case of State of Bihar Versus Kalyanpur cement Ltd. 2010 Vol. 3 Supreme Court Cases 274 may be applicable .
                    Thus the analogy advanced that the extension of the services of the teachers and principals (Which Includes Officiating Principal, as there is no rider Imposed  by the Legislative competence between the two classes) after age of Superannuation is not the vested right, but a benefit to such teacher  in Regulation 21  under U.P. Intermediate Education Act, 1921  is not the correct proposition of law. It is not the vested right, but a benefit to such teacher may be applicable only to the teachers of the Degree Colleges due to the restrictions imposed under 16.24 (3) of the of first statutes of Kanpur University as submitted earlier.
                 It is submitted that under the U.P. Intermediate Education Act, 1921, the benefit of regularization in services is not extended to the principal under Section 33 B of U.P. Secondary Education Services Selection Board Act, 1982.  
 Thus the language of Referring order may be modified to the aforesaid extent:-
                            “Whether the right to   a Principal , Head Master, on attaining the age of superannuation, except by denial  by himself before 2 months of attaining the age of superannuation, is not  amenable to the officiating principal drawing the salary and other benefit as regular Principal   in  furtherance of Regulation 21  under U.P. Intermediate Education Act, 1921?
This is in reference to the Right and not the benefit in the interest of the students and the institution, ( having deeming clause to avail the right  for extension of his services  up to the end of academic session i.e. 30th June).
It is worth while to mention here that the scope of the reference is always confined up to the wording  framed under the aforesaid referring order and it may not be extended any further. Since the post of the principal is included in the right to avail the extention of the services up to the end of the academic session even after attaining the age of suprannuasion which is not available under the statute of the university act pertaining to statute 16.24(3) of the first statute  of the Kanpur and other universities of Uttar Pradesh. And as such the language of the reference to the extent of only confining up to the right of the teacher is not  the correct preposition under law (2010)2 SCC 273.
 It may be  further be added as to ;-
            Whether the analogy drawn in case of state of Madhya Pradesh versus laxmi Shankar mishra AIR 1979 SC 979. Relied upon in case of committee of management B.D Bajoria inter college versus Director of Education (2001)3 E.S.C. 1326 is applicable to the Intermediate Education Act, 1921?
              Whether the officiating principal may be Replaced/displaced by another officiating principal Under the guise of the provisions Regulation 21  under U.P. Intermediate Education Act, 1921?
This practice of replacement of officiating principal by another officiating principal in Ad-hoc arrangement, when the incumbent posted as officiating principal under Ad-hoc arrangement and has gained experience which will be more beneficial to the colleges as held by the Hon’ble Supreme Court in Hargurupratap Singh Versus State of Punjab (2007)13 SCC 292.
                           In this manner there is automatic extension to the principal and since the post of principal held by the senior most teachers has not been classified as to whether it is substantive post or being occupied in officiating capacity, there may not be any reversion of such incumbent to the lower post.
A distinction has to be drawn between the phraseology provided in the case degree college where in no extension in service beyond the age of superannuation and the re-appointment after completion of age of superannuation is provided only to the teacher till the end of the academic session.
                       There is a conta- distinction between a teacher on account of being the senior most appointed as  officiating principal till a duly recommended candidate join at his place than the appointment of the ad-hoc principal from amongst the senior most teacher of the degree college having no provision for extension in ser vice beyond the age of superannuation, accept for being continue as the teacher.
                           Even the word teacher has been imparted from the statute of the degree colleges as the definition of the teacher is not prescribed under the Intermediate Education Act. However, section 2 (k) of U.P. Secondary Education Services Examination Board Act 1982 and Section 2 e) of act no.24 of 1971, the word teacher is defined along with the head of institution or the principal hereunder. 
                       The rational imported from the judgment of 1987 in cases of Ram Lal Prasad reported in AWC 1987 pg.1314, C/M Jagdish saran Rajvanshi Kanya Inter College, Meerut Versus 2000 (1) ESC 645 ( Recommendation of Board for Extension of service of Principal after attaining the age of Superannuation), Raja Ram Chaudhary Versus Satya Narain Gupta  2003 (2 ) ESC 956, C/M Indian Girls Inter College, Allahabad Versus State of U.P. 2004 (2) ESC 875,   Hari Om Tatsat Brahma Shukla Vs. State of U.P. and others, Special Appeal No.1454 of 2006 decided on 27.11.2006, and in  Shri Nath Sahai Vs. Devendra Nath Dwivedi and others 2008 (8) ADJ 337 having the limitation upon the functioning on the officiating principal only as a teacher after attaining the age of superannuation is based upon the analogy of the rights conferred to the officiating principal of the degree college, but the said analogy is not attracted under Regulation 21 of the Intermediate Education Act. The post of Principal in Degree College is an administrative post. The period of superannuation up to the end of academic session is not provided to the Principal of the degree college. In the definition of the teacher of affiliated college to the university, if the post of Principal is included than it will not ensure the right to the Principal to get the benefit of Statute 16.24 of The first statute of the University of Kanpur and other Universities, without being any supplement by the Government Order. S.K. Rathi  Vs Prem Hari Sharma 2001, SCC, Vol.9, pg.377.  Regulation 21 is inclusive to the post of the principal along with teachers. If the officiating principal continues to function for a considerable period of length after being selected from amongst the lecturers as senior most lecturers and functions on such administrative post with the protection of the pay scale including revised pay scale, the reversion of such officiating principal to the post of the lecturer may effect his entitlement to the post retirement benefit. Such officiating principal, who got his appointment till a duly recommended candidate selected from the Board/Commission, may not join at his place.  An officiating principal may not be replaced by another officiating principal  as held  as per analogy derivate in a case   reported in re Har Guru Pratap Singh Vs State of Punjab, 2007 Vol.13, SCC, Pg.292, as there is no exclusion clause which prohibit  a teacher to function as officiating principal.
                                The Hon’ble Supreme Court has laid down in case of Triveni Himanshu Ghasyambhai Vs Ahamadabad Municipal Corporation,(2007) 8 SCC 644, that  the eligibility condition ’10 years of administrative experience’ , all  together different, as  the individual was doing the mix duty of technician and administrative work, it is for the experts in interview committee to accept such certificate for eligibility condition. The court has no jurisdiction to impose its opinion over and above the opinion of the expert of the selection committee.
                          It is submitted that the present case, This  is not the case pertaining to the teacher working on the extension on account of being state awarded and nationally awarded teacher seeking further extension of services up to the end of academic session as are  case of Hari Om Tatsath Bramh Shukla  (2006 ) (10) ADJ 767 , Sri Nath sahay, 2008 (8) ADJ 337 and Committee of Management Indian Girls Inter College, Allahabad 2004 Vol.2 ESC 875 and as such the observation laid down  in these case after importing the  incorrect analogy under the wrong premises of the teacher of the degree college from the cases of S.K.Rathi  and R.C.Gupta (Dr.) is not the correct in  interpolation of Regulation 21 of Intermediate Education Act.
                        In case of M.P. State Co-operative Bank Ltd. 2007 Vol.8  Pg.264, even in case of a irregular appointment  the same can not be se aside except on the condition laid down in the earlier decision in 8 points. Thus reversion of Officiating Principal to the post of Lecturer till the end of academic session under Regulation 21 is not permissible.
                 
 Dt- 15th April . ,2010                (YOGESH KUMAR SAXENA)
                                                                              Advocate
                                                          Counsel for the Appellants
                                                          Chamber no.139, High Court


    

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