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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