High Court

Judgment

1. allowed, which is being quoted below :- "

1. IA No.1 of 2024- Delay Application Heard.

2. In paragraph-2 of the objection filed, objection has been raised, which has no merit. The reasons assigned in the affidavit filed in support of the application are sufficient. Accordingly, the application is allowed. The delay in filing the review application is condoned. Review Application

1. Heard Sri Anurag Kumar Singh, learned counsel for the applicant and Sri Sharad Pathak, learned counsel for the respondent.

2. This review application has been filed for review of judgment and order dated 14.2.2023, passed in Writ-A No.2823 of 2004.

3. It is submitted by learned counsel for the applicant that at no point of time, correct facts were brought into the notice of the Court, neither the validity of the 2 appointment was shown by the respondent/ petitioner, therefore, writ of mandamus cannot be issued for the payment of salary to the respondent/ petitioner from the State exchequer. He next submitted that once the institution has been upgraded to high school and intermediate, the provisions of U.P. Intermediate Education Act, 1921 and U.P. Secondary Education Services Selection Board Act, 1982 are applicable, therefore, the appointment made under the U.P. Recognised Basic Schools (Junior High Schools) (Recruitment And Conditions Of Service Of Teachers) Rules, 1978 is not permissible in the eyes of law. Sri

4. Advocate Sharad Pathak, opposed the review application filed by the applicant on the ground that the Committee of Management was issued notice and did not turn up to file counter affidavit before this Court and in absence of the Committee of Management, the judgment was passed by this Court on 14.2.2023, therefore, the submission advanced by learned counsel for the applicant is not sustainable in law. In rebuttal, learned counsel for the 5. applicant submitted that after filing of Writ- A No.2823 of 2004, several other disputes came before this Court in the writ petition and special appeal and it was nowhere disclosed that in the writ petition filed by the petitioner, the Committee of Management was not represented, therefore, it is pure concealment of fact, therefore, the review application is maintainable.

6. I have heard the submission so advanced by both the parties. The respondent has concealed material fact in regard to appointment of the petitioner that will the Rules of 1978 are applicable and the institution has been upgraded to intermediate college, has obtained the order for payment of salary in the writ petition, 3 therefore, the review application is maintainable. I am of the considered opinion that once the Committee of Management was not represented by any of the counsel before this Court in the writ petition (Writ-A No.2823 of 2004), therefore, by coming alongwith the relevant facts, the review application is maintainable and is hereby allowed.

7. In the present writ petition, writ of mandamus has been prayed on the ground that the petitioner was appointed by the approval of the District Basic Education Officer dated 21.10.2003 on the post of Headmistress in the institution. Question arose that whether after upgradation of the institution as intermediate college, the appointment made with the approval of the District Basic Education Officer and selection committee appointed by him, is in accordance with law or not and whether a writ of mandamus can be issued for payment of salary from the State exchequer.

8. For dealing with the matter, relevant facts are necessary to be brought into notice. Initially, the institution was junior school, District Para Hamidpur, Pratapgarh. There is sanctioned strength of one Headmaster and Teachers. On 2.11.1995, recognition was granted to the society running the junior high school under Section 7(4) of U.P. Intermediate Education Act, 1921 for the purpose of examination up to the intermediate level.

9. The petitioner's service was terminated from the School and she filed Writ Petition No.4534 (S/S) of 1993 on 30.5.1993. The petitioner was appointed as Assistant Teacher in the said junior high school on 30.8.1991. She took leave and started working in a Co-operative Bank and 4 since she was not paid salary, she filed Writ Petition No.7000 of 1992. Leave was granted from 1.10.1992 to 19.5.1993. She joined back as Assistant Teacher in the School on 1.11.1993. Communications were made for payment of salary to the petitioner as Assistant Teacher on 24.6.1997. Recognition was granted under Section 7(4) of the U.P. Intermediate Education Act, 1921 on 5.1.2001.

10. Vacancy on the post of Headmaster occurred due to retirement of one Ramsamugh Maurya in intermediate college. The Committee of Management sent letter for permission from Basic Education Officer for starting selection process, which was granted on 8.8.2003.

11. Vide letter dated 22.8.2003, the Committee of Management request the District Basic Education Officer to appoint Observer at the time of holding of selection. On 20.9.2003, Observer was appointed by the Basic Education Officer and selection was held by duly constituted selection committee. Basic Education Officer approved the selection of the petitioner and she joined the post on 1.12.2003 and started getting salary. The Finance and Accounts Officer stopped the salary of the petitioner vide order dated 27.3.2004. The petitioner filed the present writ petition, in which interim order was passed and notice was issued to the Committee of Management, which is duly served and no counter affidavit has been filed during the pendency of the writ petition.

12. Election of the Committee of Management was held and new office bearers came into the office on 20.9.2008 and dispute arose in the Committee of Management of the School. Vide order dated 11.10.2008, the petitioner was suspended on the ground that she does not follow the 5 contained under dictates of the new Manager. In view of the provisions U.P. Intermediate Education Act, after expiry of sixty days period, suspension order stood revoked. An enquiry report has been submitted in regard to the appointment of the petitioner on 25.9.2008, in which selection process of the petitioner has been found to be appropriate. Thereafter, various orders were passed for payment of salary of the petitioner, which was stopped by the Committee of Management.

13. The Committee of Management filed Writ Petition No.5640 (S/S) of 2012, alleging therein that the appointment of the petitioner is illegal. Learned Single Judge directed for enquiry to be conducted by the Commissioner. An application

14. The petitioner filed Special Appeal No.818 of 2012, wherein the enquiry order was stayed and question was framed by the Court in regard to validity of appointment of the petitioner. modification of the judgment passed in the present writ petition was filed, which was dismissed as withdrawn. The special appeal was also filed against judgment and order dated 14.2.2023, which was also dismissed as withdrawn vide order dated 20.8.2024 and the review application in the present writ petition has been filed thereafter. Submission of Sri Sharad Pathak, 15. learned counsel for the petitioner is that there is no prohibition in regard to the appointment of the petitioner on the post of Headmistress in an intermediate college, which is receiving grant in aid from the State Government. The appointment made by constituting a selection committee at the level of Basic Education Officer is the criteria to make appointment on the post of Headmaster/ Headmistress intermediate college. Next submission is that 6 in view of government order dated 15.10.2009, a ban was imposed on appointment in intermediate colleges. He next submitted

16. appointment of the petitioner is not dehors the rules, that is in accordance with law under U.P. Recognised Basic Schools (Junior High Schools) (Recruitment And Conditions Of Service Of Teachers) Rules, 1978, therefore, the salary of the petitioner cannot be denied in view of the fact narrated above. Relying on certain judgments, learned counsel for the petitioner submitted that prior to judgment of Manju Awasthi and others Vs. State of U.P. and others, there is no prohibition in regard to appointment in intermediate colleges under U.P. Recognised Basic Schools (Junior High Schools) (Recruitment And Conditions Of Service Of Teachers) Rules, 1978, therefore, the judgment relied upon by the learned counsel for the respondent is not applicable to the facts and circumstances of the present case.

17. The moot question in the present writ petition is that whether the appointment of the petitioner is in accordance with law or not. The question arises for consideration is that once the institution has been upgraded from junior high school to high school and intermediate, the process of appointment will be under U.P. Recognised Basic Schools (Junior High Schools) (Recruitment And Conditions Of Service Of Teachers) Rules, 1978 or U.P. Intermediate Education Act, 1921 and U.P. Secondary Education Services Selection Board Act, 1982. In support of his submission, Sri 18. Sharad Pathak, learned counsel for the petitioner placed reliance upon judgment rendered in the case of Vinod Kumar and others Vs. Union of India and others arising out of SLP (C) Nos.22241-42 of 7

2016. Relevant paragraph-7 is being quoted below :- "7. The judgement in the case Uma Devi (supra) also distinguished between "irregular" and "illegal" appointments underscoring importance of considering certain appointments even if were not made strictly in accordance with the prescribed Rules and Procedure, cannot be said to have been made illegally if they had followed the procedures of regular appointments such as conduct of written examinations or interviews as in the present case. Paragraph 53 of the Uma Devi (supra) case is reproduced hereunder: Act, 1921. The undisputed fact is institution was running at the level of Junior High School and by an order dated virtue of 02.11.1982, this has been upgraded, however, there is no overt provision in the Rules, 1984 for appointment of Group D posts, in such institution, but time and again this issue was brought up before this Court and ultimately, this was decided in the case of Manju Awasthi and Ors. Vs. State of U.P. and Ors, reported in Manu/ UP/3739/2012 wherein, in the paragraphs 77,78 and 82, the Division Bench has very categorically held 'Government Order 24.11.2001 can be supported only to the extent of payment of salary at the Junior High School level and the ancillary power thereunder, but the Basic Siksha Adhikari cannot exercise any administrative control over the institution, except to the extent of payment of salary.' Paragraphs 77, 78 and 82 of the abovesaid judgment are extracted as under:- Order "We are of the view that the Government 24.11.2011 can be supported only to the extent of payment of salary of teachers at the Junior High School and ancillary power thereunder. However, the Basic Shiksha Adhikari cannot exercise any administrative control over the institution except to the extent of payment of salary nor can make any appointment in view of the applicability of 1921 and 1982 Acts. The judgment of Hon'ble Single Judge in Committee of Management Beni Singh Vaidīc Vidyawati Inter College, Baluganj, Agra and others (supra) to that extent cannot be approved. It is relevant to note that against the judgment of Hon'ble Single Judge 24 dated 7.9.2005 in Committee of Management Beni Singh Vaidic Vidyawati Inter College, Baluganj, Agra and others (supra) special appeal No. 1419 of 2005, Agam Prakash Deepak. State of U.P., was filed, which appeal was also dismissed on 29.11.2005.

78. The Special Appellate bench considered the submissions of the appellant qualifications of the Assistant Teacher and laid down that Assistant Teacher must possess the training course recognised by the State Government hence, the appellant could not have been appointed as Assistant Teacher hence, the appeal was dismissed. No other ratio was laid down in the said judgment. (Recruitment

82. The selections made by the Basic Shiksha Adhikari under the provisions of U.P. Recognized Basic Schools (Junior High Schools) Conditions of Service of Teachers) Rules, 1978, have rightly been quashed in the writ petitions by Hon'ble Single Judge on the ground that after up-gradation of a School, High Junior selection/appointment is to be made in accordance with 1921 Act and U.P. Act No. 5 of 1982. As noticed above, we have found that the State Government as well as the educational authorities have not been properly construing the provisions of Section 7A and under the misconception, they have granted recognition institution under Section 7A, for the first time whereas recognition under Section 7A is to be granted to an existing recognised institution within the meaning of Section . 2(b) We thus, feel that certain directions are necessary to be issued in this context. We have already observed our observations and interpretation of Section 7A in no 25 manner shall affect any recognition already granted to an institution under Section 7A and institution which has been granted recognition shall be treated to be duly recognised but necessary action which has not yet been taken with respect to the said institution is required to be taken by the educational authorities as per our observation. The appeals are disposed of following directions:

1. The judgment of Hon'ble Single Judge Impugned in the appeal holding that after up-gradation of a Junior High School to High School, appointment and selection on the post of Head Master shall be made in accordance with 1921 Act and U.P. Act No. 5 of 1982 are upheld and prayer of the appellant to set aside the judgment of Hon'ble Single Judge is refused.

2. The recognition/permission under Section 7A shall be granted to an institution which is already institution within recognised meaning of Section 2(b) of 1921 Act.

3. Recognition to a junior high school as High School is to be granted in accordance with the provisions of Section 7(4) of 1921 Act.

4. The State is fully empowered to grant recognition under Section 7(4) or Section 7A without finance (Vitta vihin).

5. After an institution is granted recognition for the first time as a High School minimum necessary post of teachers and Head Master is contemplated to be created even though without finance (Vitta Vihin) so as to fill up those posts in accordance with 1921 Act and 1982 Act.

6. Against recognition/permission granted 26 under Section 7A, the appointment of a part time teacher or instructor as contemplated under Section 7A(a) shall be continued to be made by the management as per the Government Orders issued from time to time regulating their terms and conditions. All the appeals are disposed of accordingly. Parties shall bear their own costs."

33. While dealing with the aforesaid issue, the coordinate division bench of this Court at Allahabad has also sketched out the difference in the judgment and order passed in earlier Special Appeal, thereby holding that the same considered the qualification of Assistant Teacher and no other ratio was laid down in the said judgement and therefore, this was open to the coordinate bench to dealt with the issue, regarding the applicability of the other provisions. The law laid down in the case of Manju Awasthi and Ors. Vs. State of U.P. and Ors still holds filled and therefore, the institution in question is covered with the provisions of the Act, 1921."

20. After having heard the rival submission of learned counsel for the parties, I perused the material on record as well as law report cited by the parties. Arguments are concluded and

21. judgment is reserved."

2. Initially, the institution was junior high school, Para Hamidpur, District Pratapgarh. The institution was granted recognition for high school vide order dated 2.11.1985 and thereafter, the institution was upgrade to the level of intermediate college by granting recognition under Section 7(4) of U.P. Intermediate Education Act, 1921.

3. The petitioner was appointed as Assistant Teacher in graduate scale on adhoc basis till the appointment of regularly 27 selected candidate by the Board on 3.8.1991. During the course of appointment, the petitioner was also enrolled as a regular student for Master of Education course in Dr. Ram Manohar Lohiya Avadh University, Faizabad and completed M.Ed. in 1994. She was also working in the National Urban Cooperative Bank Limited, Pratapgarh from 16.4.1992 to 18.9.1992 on the post of Clerk-cum-Typist and her service was terminated, then she filed Writ Petition No.7000 (S/S) of 1992, challenging her termination. The petitioner also filed Writ Petition No.4534 (S/S) of 4. 1993, claiming salary w.e.f. 30.8.1991 in the Bank and this Court directed the respondents to allow her to work and pay her salary and the said writ petition was subsequently dismissed as infructuous. On 30.6.2003, the regular Headmaster of the school retired 5. from his post after completing his superannuation. The District Basic Education Officer granted permission for advertisement of the post of Headmaster in two newspapers on 18.8.2003. The post of Headmaster was advertised in two newspapers i.e. Dainik Jagran and Swatantra Bharat on 22.8.2003.

6. The respondent No.3 wrote for providing Observer in the selection scheduled to be held on 21.9.2003. The Assistant Basic Education Officer was directed by the respondent No.1 to participate in the selection. A selection committee was constituted under 1978 Rules and the petitioner-Km. Poonam Sharma was selected in the selection so held on 21.9.2003. Papers were sent for grant of approval and the District 7. Basic Education Officer, by granting approval on 21.10.2003, issued direction to appoint the petitioner and in pursuance thereof, the petitioner joined by issuing appointment letter on 21.11.2003 and when no payment of salary was made, the petitioner filed Writ-A No.2823 of 2004, alleging her appointment made under 1978 Rules, in spite of the fact that the institution has been upgraded to high school and intermediate by granting recognition under Section 4 of the U.P. Intermediate Education Act. 28

8. The moot question for consideration is that whether the appointment of the petitioner has been made in accordance with the Act and Rules of U.P. Intermediate Education Act and U.P. Act No.5 of 1982 or not. A Basic School or a Junior High School is different from a 9. High School or an Intermediate College. On the plain 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. Once 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.

10. It is admitted by the parties that the appointment of the petitioner has been made as a Headmistress in an institution, which has been upgraded to intermediate college, therefore, consideration for payment of salary as well as appointment under 1978 Rules is in question that whether appointment after upgradation to another college can be made under 1978 Rules or not.

11. It would further be seen that administration including constitution of Committee of Management of intermediate college recognized under U.P. Act No.2 of 1921 is to be carried out in accordance with a Scheme of Administration prepared u/s 16-A of the said Act and this Section does not apply to basic school or a Junior High School. For all these, junior high school which has been upgraded as high school cannot and does not automatically become payable to the recognized high school. Suppose after a basic school or a junior high school has been upgraded as a recognized high school, the State Government stops payment of the amount of maintenance grant which was being paid to the basic school or the junior high school, can the recognized high school claim as a matter of right that the said amount has become automatically payable to it. The answer, in 29 the absence of any specific provision permitting such automatic transformation, so to speak will, in my opinion, have to be in the negative. Such a recognized High School will have to wait till maintenance grant payable to it as a recognized high school has been fixed as contemplated by Section 2(c) of U.P. Act 24 of 1971. Consequently, even if the maintenance grant payable to a basic school or a junior high school is continued to be paid to those who were managing the erstwhile basic school or junior high school it cannot be said that the upgraded recognized high school is receiving any maintenance grant as defined in Section 2(c) of U.P. Act 24 of 1971.

12. Sri Anurag Kumar Singh, counsel for the review applicant invited attention of this Court to various definitions as contained in Act, 1972, the Rules, 1978, the U.P. Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978, the provisions of the Act, 1921 and the U.P. Secondary Education Services Selection Boards Act, 1982 and has argued that the claim on the post of the Head of the Institution do not deserve any payment of salary under U.P. Act No.24 of 1971, such recognition was granted vitta vihin.

13. Once a junior high school stands upgraded as a high school or an intermediate college, then in that event the post of the Head of the Institution has to be filled up in accordance with the procedure prescribed under the Act, 1921 read with Act, 1982. In such eventuality the junior high school looses its identity as such and upon upgradation of the institution, there cannot be any appointment of a Headmaster in a junior high school under Rules 1978. Submission of Sri Sharad Pathak, Advocate in respect of 14. the status of the institution as still to be that of a junior high school for the purposes of appointment on the post of Head of the institution, has to be rejected for the reasons hereinabove. The word "upgradation" in its normal connotation means 15. improvement; enhancement of status; more efficient. The word "grade" is derived from the latin word 'gradus' which means rank, 30 position in a scale, a class or position in a class according to the value. It means a degree in the scale of rank, dignity, proficiency. The word 'upgradation' therefore means improvement in degree, raising of status, rank, quality or in value. It is an improvement in proficiency and reflects a rising gradient. The institution was admittedly a junior high school and was raised to the status of a high school in 1985 and to that of intermediate college in the year 2002. It is undisputed that upon being upgraded as a high school, the institution has been recognized as such under the provisions of Act, 1921. This is undisputed position, therefore, clearly establishes that the institution ceases to be a junior high school and for the purposes of appointment of Head of the institution, the appointment can only be made by resorting to the provisions as indicated hereinabove. The above paragraphs clearly demonstrate the fact that 16. once 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.

17. The basic issue raised in the writ petition is that the appointment of the petitioner has been made under U.P. Recognised Basic Schools (Junior High Schools) (Recruitment And Conditions Of Service Of Teachers) Rules, 1978. A junior high school when granted recognition under Section 7-A(a) of U.P. Intermediate Education Act, 1921 and upgraded to high school, if any vacancy of Teacher arises in such institution subsequently whether it would be filled in following procedure laid down under U.P. Basic Education Act, 1972 read with U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 or for administrative and other purposes the institution would be deemed to be governed by provisions of U.P. Intermediate Education Act, 1921 and recruitment would be governed by provisions of U.P. Secondary Education Services Selection Board Act, 1982. 31

18. In my opinion, once Institution is upgraded or recognition upto High School is granted under Section 7-A(a), provisions of U.P. Intermediate Education Act, 1921 would be attracted and in such a case any vacancy of teaching staff caused in such Institution, would have to be filled in as per the provisions of U.P. Secondary Education Services Selection Board Act, 1982. The judgments relied upon by the review applicant are 19. fully applicable to the facts and circumstance of the present case and the judgment relied upon by learned counsel for the petitioner in the case of Vinod Kumar and others Vs. Union of India and others has not applicability to the case in hand and is distinguishable in nature.

20. In view of the overall facts and circumstances of the case, I am of the considered opinion that the appointment of the petitioner made on the post of Headmistress is totally against the provision of U.P. Intermediate Education Act, 1921 and U.P. Secondary Education Services Selection Board Act, 1982, therefore, the petitioner is not entitled for the appointment made against the provisions referred hereinabove, therefore, the petitioner is not entitled for issuance of writ of mandamus, directing for payment of salary to her. In view of the above, the writ petition fails and is hereby

21. dismissed. Order Date :- 14.8.2025 Gautam [Irshad Ali]

4. Advocate Sharad Pathak, opposed the review application filed by the applicant on the ground that the Committee of Management was issued notice and did not turn up to file counter affidavit before this Court and in absence of the Committee of Management, the judgment was passed by this Court on 14.2.2023, therefore, the submission advanced by learned counsel for the applicant is not sustainable in law. In rebuttal, learned counsel for the 5. applicant submitted that after filing of Writ- A No.2823 of 2004, several other disputes came before this Court in the writ petition and special appeal and it was nowhere disclosed that in the writ petition filed by the petitioner, the Committee of Management was not represented, therefore, it is pure concealment of fact, therefore, the review application is maintainable.

6. I have heard the submission so advanced by both the parties. The respondent has concealed material fact in regard to appointment of the petitioner that will the Rules of 1978 are applicable and the institution has been upgraded to intermediate college, has obtained the order for payment of salary in the writ petition, 3 therefore, the review application is maintainable. I am of the considered opinion that once the Committee of Management was not represented by any of the counsel before this Court in the writ petition (Writ-A No.2823 of 2004), therefore, by coming alongwith the relevant facts, the review application is maintainable and is hereby allowed.

7. In the present writ petition, writ of mandamus has been prayed on the ground that the petitioner was appointed by the approval of the District Basic Education Officer dated 21.10.2003 on the post of Headmistress in the institution. Question arose that whether after upgradation of the institution as intermediate college, the appointment made with the approval of the District Basic Education Officer and selection committee appointed by him, is in accordance with law or not and whether a writ of mandamus can be issued for payment of salary from the State exchequer.

8. For dealing with the matter, relevant facts are necessary to be brought into notice. Initially, the institution was junior school, District Para Hamidpur, Pratapgarh. There is sanctioned strength of one Headmaster and Teachers. On 2.11.1995, recognition was granted to the society running the junior high school under Section 7(4) of U.P. Intermediate Education Act, 1921 for the purpose of examination up to the intermediate level.

9. The petitioner's service was terminated from the School and she filed Writ Petition No.4534 (S/S) of 1993 on 30.5.1993. The petitioner was appointed as Assistant Teacher in the said junior high school on 30.8.1991. She took leave and started working in a Co-operative Bank and 4 since she was not paid salary, she filed Writ Petition No.7000 of 1992. Leave was granted from 1.10.1992 to 19.5.1993. She joined back as Assistant Teacher in the School on 1.11.1993. Communications were made for payment of salary to the petitioner as Assistant Teacher on 24.6.1997. Recognition was granted under Section 7(4) of the U.P. Intermediate Education Act, 1921 on 5.1.2001.

10. Vacancy on the post of Headmaster occurred due to retirement of one Ramsamugh Maurya in intermediate college. The Committee of Management sent letter for permission from Basic Education Officer for starting selection process, which was granted on 8.8.2003.

11. Vide letter dated 22.8.2003, the Committee of Management request the District Basic Education Officer to appoint Observer at the time of holding of selection. On 20.9.2003, Observer was appointed by the Basic Education Officer and selection was held by duly constituted selection committee. Basic Education Officer approved the selection of the petitioner and she joined the post on 1.12.2003 and started getting salary. The Finance and Accounts Officer stopped the salary of the petitioner vide order dated 27.3.2004. The petitioner filed the present writ petition, in which interim order was passed and notice was issued to the Committee of Management, which is duly served and no counter affidavit has been filed during the pendency of the writ petition.

12. Election of the Committee of Management was held and new office bearers came into the office on 20.9.2008 and dispute arose in the Committee of Management of the School. Vide order dated 11.10.2008, the petitioner was suspended on the ground that she does not follow the 5 contained under dictates of the new Manager. In view of the provisions U.P. Intermediate Education Act, after expiry of sixty days period, suspension order stood revoked. An enquiry report has been submitted in regard to the appointment of the petitioner on 25.9.2008, in which selection process of the petitioner has been found to be appropriate. Thereafter, various orders were passed for payment of salary of the petitioner, which was stopped by the Committee of Management.

13. The Committee of Management filed Writ Petition No.5640 (S/S) of 2012, alleging therein that the appointment of the petitioner is illegal. Learned Single Judge directed for enquiry to be conducted by the Commissioner. An application

14. The petitioner filed Special Appeal No.818 of 2012, wherein the enquiry order was stayed and question was framed by the Court in regard to validity of appointment of the petitioner. modification of the judgment passed in the present writ petition was filed, which was dismissed as withdrawn. The special appeal was also filed against judgment and order dated 14.2.2023, which was also dismissed as withdrawn vide order dated 20.8.2024 and the review application in the present writ petition has been filed thereafter. Submission of Sri Sharad Pathak, 15. learned counsel for the petitioner is that there is no prohibition in regard to the appointment of the petitioner on the post of Headmistress in an intermediate college, which is receiving grant in aid from the State Government. The appointment made by constituting a selection committee at the level of Basic Education Officer is the criteria to make appointment on the post of Headmaster/ Headmistress intermediate college. Next submission is that 6 in view of government order dated 15.10.2009, a ban was imposed on appointment in intermediate colleges. He next submitted

16. appointment of the petitioner is not dehors the rules, that is in accordance with law under U.P. Recognised Basic Schools (Junior High Schools) (Recruitment And Conditions Of Service Of Teachers) Rules, 1978, therefore, the salary of the petitioner cannot be denied in view of the fact narrated above. Relying on certain judgments, learned counsel for the petitioner submitted that prior to judgment of Manju Awasthi and others Vs. State of U.P. and others, there is no prohibition in regard to appointment in intermediate colleges under U.P. Recognised Basic Schools (Junior High Schools) (Recruitment And Conditions Of Service Of Teachers) Rules, 1978, therefore, the judgment relied upon by the learned counsel for the respondent is not applicable to the facts and circumstances of the present case.

17. The moot question in the present writ petition is that whether the appointment of the petitioner is in accordance with law or not. The question arises for consideration is that once the institution has been upgraded from junior high school to high school and intermediate, the process of appointment will be under U.P. Recognised Basic Schools (Junior High Schools) (Recruitment And Conditions Of Service Of Teachers) Rules, 1978 or U.P. Intermediate Education Act, 1921 and U.P. Secondary Education Services Selection Board Act, 1982. In support of his submission, Sri 18. Sharad Pathak, learned counsel for the petitioner placed reliance upon judgment rendered in the case of Vinod Kumar and others Vs. Union of India and others arising out of SLP (C) Nos.22241-42 of 7

2016. Relevant paragraph-7 is being quoted below :- "7. The judgement in the case Uma Devi (supra) also distinguished between "irregular" and "illegal" appointments underscoring importance of considering certain appointments even if were not made strictly in accordance with the prescribed Rules and Procedure, cannot be said to have been made illegally if they had followed the procedures of regular appointments such as conduct of written examinations or interviews as in the present case. Paragraph 53 of the Uma Devi (supra) case is reproduced hereunder: Act, 1921. The undisputed fact is institution was running at the level of Junior High School and by an order dated virtue of 02.11.1982, this has been upgraded, however, there is no overt provision in the Rules, 1984 for appointment of Group D posts, in such institution, but time and again this issue was brought up before this Court and ultimately, this was decided in the case of Manju Awasthi and Ors. Vs. State of U.P. and Ors, reported in Manu/ UP/3739/2012 wherein, in the paragraphs 77,78 and 82, the Division Bench has very categorically held 'Government Order 24.11.2001 can be supported only to the extent of payment of salary at the Junior High School level and the ancillary power thereunder, but the Basic Siksha Adhikari cannot exercise any administrative control over the institution, except to the extent of payment of salary.' Paragraphs 77, 78 and 82 of the abovesaid judgment are extracted as under:- Order "We are of the view that the Government 24.11.2011 can be supported only to the extent of payment of salary of teachers at the Junior High School and ancillary power thereunder. However, the Basic Shiksha Adhikari cannot exercise any administrative control over the institution except to the extent of payment of salary nor can make any appointment in view of the applicability of 1921 and 1982 Acts. The judgment of Hon'ble Single Judge in Committee of Management Beni Singh Vaidīc Vidyawati Inter College, Baluganj, Agra and others (supra) to that extent cannot be approved. It is relevant to note that against the judgment of Hon'ble Single Judge 24 dated 7.9.2005 in Committee of Management Beni Singh Vaidic Vidyawati Inter College, Baluganj, Agra and others (supra) special appeal No. 1419 of 2005, Agam Prakash Deepak. State of U.P., was filed, which appeal was also dismissed on 29.11.2005.

78. The Special Appellate bench considered the submissions of the appellant qualifications of the Assistant Teacher and laid down that Assistant Teacher must possess the training course recognised by the State Government hence, the appellant could not have been appointed as Assistant Teacher hence, the appeal was dismissed. No other ratio was laid down in the said judgment. (Recruitment

82. The selections made by the Basic Shiksha Adhikari under the provisions of U.P. Recognized Basic Schools (Junior High Schools) Conditions of Service of Teachers) Rules, 1978, have rightly been quashed in the writ petitions by Hon'ble Single Judge on the ground that after up-gradation of a School, High Junior selection/appointment is to be made in accordance with 1921 Act and U.P. Act No. 5 of 1982. As noticed above, we have found that the State Government as well as the educational authorities have not been properly construing the provisions of Section 7A and under the misconception, they have granted recognition institution under Section 7A, for the first time whereas recognition under Section 7A is to be granted to an existing recognised institution within the meaning of Section . 2(b) We thus, feel that certain directions are necessary to be issued in this context. We have already observed our observations and interpretation of Section 7A in no 25 manner shall affect any recognition already granted to an institution under Section 7A and institution which has been granted recognition shall be treated to be duly recognised but necessary action which has not yet been taken with respect to the said institution is required to be taken by the educational authorities as per our observation. The appeals are disposed of following directions:

1. The judgment of Hon'ble Single Judge Impugned in the appeal holding that after up-gradation of a Junior High School to High School, appointment and selection on the post of Head Master shall be made in accordance with 1921 Act and U.P. Act No. 5 of 1982 are upheld and prayer of the appellant to set aside the judgment of Hon'ble Single Judge is refused.

2. The recognition/permission under Section 7A shall be granted to an institution which is already institution within recognised meaning of Section 2(b) of 1921 Act.

3. Recognition to a junior high school as High School is to be granted in accordance with the provisions of Section 7(4) of 1921 Act.

4. The State is fully empowered to grant recognition under Section 7(4) or Section 7A without finance (Vitta vihin).

5. After an institution is granted recognition for the first time as a High School minimum necessary post of teachers and Head Master is contemplated to be created even though without finance (Vitta Vihin) so as to fill up those posts in accordance with 1921 Act and 1982 Act.

6. Against recognition/permission granted 26 under Section 7A, the appointment of a part time teacher or instructor as contemplated under Section 7A(a) shall be continued to be made by the management as per the Government Orders issued from time to time regulating their terms and conditions. All the appeals are disposed of accordingly. Parties shall bear their own costs."

33. While dealing with the aforesaid issue, the coordinate division bench of this Court at Allahabad has also sketched out the difference in the judgment and order passed in earlier Special Appeal, thereby holding that the same considered the qualification of Assistant Teacher and no other ratio was laid down in the said judgement and therefore, this was open to the coordinate bench to dealt with the issue, regarding the applicability of the other provisions. The law laid down in the case of Manju Awasthi and Ors. Vs. State of U.P. and Ors still holds filled and therefore, the institution in question is covered with the provisions of the Act, 1921."

20. After having heard the rival submission of learned counsel for the parties, I perused the material on record as well as law report cited by the parties. Arguments are concluded and

21. judgment is reserved."

2. Initially, the institution was junior high school, Para Hamidpur, District Pratapgarh. The institution was granted recognition for high school vide order dated 2.11.1985 and thereafter, the institution was upgrade to the level of intermediate college by granting recognition under Section 7(4) of U.P. Intermediate Education Act, 1921.

3. The petitioner was appointed as Assistant Teacher in graduate scale on adhoc basis till the appointment of regularly 27 selected candidate by the Board on 3.8.1991. During the course of appointment, the petitioner was also enrolled as a regular student for Master of Education course in Dr. Ram Manohar Lohiya Avadh University, Faizabad and completed M.Ed. in 1994. She was also working in the National Urban Cooperative Bank Limited, Pratapgarh from 16.4.1992 to 18.9.1992 on the post of Clerk-cum-Typist and her service was terminated, then she filed Writ Petition No.7000 (S/S) of 1992, challenging her termination. The petitioner also filed Writ Petition No.4534 (S/S) of 4. 1993, claiming salary w.e.f. 30.8.1991 in the Bank and this Court directed the respondents to allow her to work and pay her salary and the said writ petition was subsequently dismissed as infructuous. On 30.6.2003, the regular Headmaster of the school retired 5. from his post after completing his superannuation. The District Basic Education Officer granted permission for advertisement of the post of Headmaster in two newspapers on 18.8.2003. The post of Headmaster was advertised in two newspapers i.e. Dainik Jagran and Swatantra Bharat on 22.8.2003.

6. The respondent No.3 wrote for providing Observer in the selection scheduled to be held on 21.9.2003. The Assistant Basic Education Officer was directed by the respondent No.1 to participate in the selection. A selection committee was constituted under 1978 Rules and the petitioner-Km. Poonam Sharma was selected in the selection so held on 21.9.2003. Papers were sent for grant of approval and the District 7. Basic Education Officer, by granting approval on 21.10.2003, issued direction to appoint the petitioner and in pursuance thereof, the petitioner joined by issuing appointment letter on 21.11.2003 and when no payment of salary was made, the petitioner filed Writ-A No.2823 of 2004, alleging her appointment made under 1978 Rules, in spite of the fact that the institution has been upgraded to high school and intermediate by granting recognition under Section 4 of the U.P. Intermediate Education Act. 28

8. The moot question for consideration is that whether the appointment of the petitioner has been made in accordance with the Act and Rules of U.P. Intermediate Education Act and U.P. Act No.5 of 1982 or not. A Basic School or a Junior High School is different from a 9. High School or an Intermediate College. On the plain 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. Once 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.

10. It is admitted by the parties that the appointment of the petitioner has been made as a Headmistress in an institution, which has been upgraded to intermediate college, therefore, consideration for payment of salary as well as appointment under 1978 Rules is in question that whether appointment after upgradation to another college can be made under 1978 Rules or not.

11. It would further be seen that administration including constitution of Committee of Management of intermediate college recognized under U.P. Act No.2 of 1921 is to be carried out in accordance with a Scheme of Administration prepared u/s 16-A of the said Act and this Section does not apply to basic school or a Junior High School. For all these, junior high school which has been upgraded as high school cannot and does not automatically become payable to the recognized high school. Suppose after a basic school or a junior high school has been upgraded as a recognized high school, the State Government stops payment of the amount of maintenance grant which was being paid to the basic school or the junior high school, can the recognized high school claim as a matter of right that the said amount has become automatically payable to it. The answer, in 29 the absence of any specific provision permitting such automatic transformation, so to speak will, in my opinion, have to be in the negative. Such a recognized High School will have to wait till maintenance grant payable to it as a recognized high school has been fixed as contemplated by Section 2(c) of U.P. Act 24 of 1971. Consequently, even if the maintenance grant payable to a basic school or a junior high school is continued to be paid to those who were managing the erstwhile basic school or junior high school it cannot be said that the upgraded recognized high school is receiving any maintenance grant as defined in Section 2(c) of U.P. Act 24 of 1971.

12. Sri Anurag Kumar Singh, counsel for the review applicant invited attention of this Court to various definitions as contained in Act, 1972, the Rules, 1978, the U.P. Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978, the provisions of the Act, 1921 and the U.P. Secondary Education Services Selection Boards Act, 1982 and has argued that the claim on the post of the Head of the Institution do not deserve any payment of salary under U.P. Act No.24 of 1971, such recognition was granted vitta vihin.

13. Once a junior high school stands upgraded as a high school or an intermediate college, then in that event the post of the Head of the Institution has to be filled up in accordance with the procedure prescribed under the Act, 1921 read with Act, 1982. In such eventuality the junior high school looses its identity as such and upon upgradation of the institution, there cannot be any appointment of a Headmaster in a junior high school under Rules 1978. Submission of Sri Sharad Pathak, Advocate in respect of 14. the status of the institution as still to be that of a junior high school for the purposes of appointment on the post of Head of the institution, has to be rejected for the reasons hereinabove. The word "upgradation" in its normal connotation means 15. improvement; enhancement of status; more efficient. The word "grade" is derived from the latin word 'gradus' which means rank, 30 position in a scale, a class or position in a class according to the value. It means a degree in the scale of rank, dignity, proficiency. The word 'upgradation' therefore means improvement in degree, raising of status, rank, quality or in value. It is an improvement in proficiency and reflects a rising gradient. The institution was admittedly a junior high school and was raised to the status of a high school in 1985 and to that of intermediate college in the year 2002. It is undisputed that upon being upgraded as a high school, the institution has been recognized as such under the provisions of Act, 1921. This is undisputed position, therefore, clearly establishes that the institution ceases to be a junior high school and for the purposes of appointment of Head of the institution, the appointment can only be made by resorting to the provisions as indicated hereinabove. The above paragraphs clearly demonstrate the fact that 16. once 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.

17. The basic issue raised in the writ petition is that the appointment of the petitioner has been made under U.P. Recognised Basic Schools (Junior High Schools) (Recruitment And Conditions Of Service Of Teachers) Rules, 1978. A junior high school when granted recognition under Section 7-A(a) of U.P. Intermediate Education Act, 1921 and upgraded to high school, if any vacancy of Teacher arises in such institution subsequently whether it would be filled in following procedure laid down under U.P. Basic Education Act, 1972 read with U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 or for administrative and other purposes the institution would be deemed to be governed by provisions of U.P. Intermediate Education Act, 1921 and recruitment would be governed by provisions of U.P. Secondary Education Services Selection Board Act, 1982. 31

18. In my opinion, once Institution is upgraded or recognition upto High School is granted under Section 7-A(a), provisions of U.P. Intermediate Education Act, 1921 would be attracted and in such a case any vacancy of teaching staff caused in such Institution, would have to be filled in as per the provisions of U.P. Secondary Education Services Selection Board Act, 1982. The judgments relied upon by the review applicant are 19. fully applicable to the facts and circumstance of the present case and the judgment relied upon by learned counsel for the petitioner in the case of Vinod Kumar and others Vs. Union of India and others has not applicability to the case in hand and is distinguishable in nature.

20. In view of the overall facts and circumstances of the case, I am of the considered opinion that the appointment of the petitioner made on the post of Headmistress is totally against the provision of U.P. Intermediate Education Act, 1921 and U.P. Secondary Education Services Selection Board Act, 1982, therefore, the petitioner is not entitled for the appointment made against the provisions referred hereinabove, therefore, the petitioner is not entitled for issuance of writ of mandamus, directing for payment of salary to her. In view of the above, the writ petition fails and is hereby

21. dismissed. Order Date :- 14.8.2025 Gautam [Irshad Ali]