High Court · 2025

Mr. B.D. Upadhyaya, Senior Advocat e, for t he pet it ioner. Mr. P.S. Bisht , Addit ional CSC, for t he St at e. Mr. Navnish Negi, Advocat e, for t he respondent no. 4. Pet it ioner challenged ( 2) Governm ent Order dat ed 28.10.2020, issued by Secret ary, Secondary Educat ion, which provides t hat in t he absence of a t eacher, eligible for prom ot ion as Principal on t he t he dat e of occurrence of vacancy on t he post of Principal should be advert ised for direct recruit m ent . t he vacancy, Mr. P.S. Bisht , ( 3) learned St at e Counsel, has drawn at t ent ion of t his Court t o a j udgm ent dat ed 23.2.2021, rendered by a coordinat e Bench in Writ Pet it ion ( S/ B) No. 62 of 2021. Para 9 of t he said j udgm ent is reproduced below: “ 9. Nat urally t he answer t o t his issue is given by t he m ain provision cont ained in Regulat ion 2( 1) . Therefore, if t he senior m ost lect urer is found t o be neit her eligible, nor suit able for t he post of Principal, t he Managem ent is legally bound t o t ake recourse t o t he m ain provision of law, and t o init iat e regular recruit m ent for t he post of Principal. I t is not t he requirem ent of t he law t hat t he Managem ent should draw up a com parat ive m erit list of t he senior lect urers and t hen appoint t he lect urer who is found t o be eligible and suit able for t he post of downgrade Principal. Hence, t he cont ent ion being raised by t he learned counsel for t he pet it ioner t hat since Mr. Virendra Kum ar Pet wal is ineligible and unsuit able for t he post , it is t he pet it ioner who m ust be appoint ed as t he downgrade Principal, t he said cont ent ion is belied by t he provisions of law it self.” Learned St at e Counsel has also ( 4) drawn at t ent ion j udgm ent dat ed t o a 2.7.2019, rendered by a coordinat e Bench in Writ Pet it ion ( S/ B) No. 270 of 2019. Para 11, 12 & 13 of t he said j udgm ent are reproduced below: t o t he vacancy int im at ion of “ 11. Sect ion 36 of t he Act prescribes t he procedure for select ion of t eachers and heads of inst it ut ions. Sect ion 36( 2) st ipulat es t hat every post of Head of t he I nst it ut ion or t eacher of an inst it ut ion shall, except t o t he ext ent prescribed for being filled up by prom ot ion, be filled up by direct recruit m ent t he Dist rict aft er Educat ion Officer, and obt aining approval of t he Dist rict Educat ion Officer for advert ising, and t he vacancy cont aining such advert isem ent of, part iculars as m ay be prescribed, in at least t wo daily newspapers having w ide circulat ion t he St at e. Sect ion 39( 1) of t he Act requires every person em ployed in a recognized inst it ut ion t o be governed by such condit ions of service as m ay be prescribed by Regulat ions, and Sect ion 39( 2) of t he t he Act st ipulat es generalit y of t he powers conferred by sub- Sect ion ( 1) , t he Regulat ions m ay provide for ( a) t o ( e) t hereunder. t hat , wit hout prej udice t o

12. Sect ion 36( 2) requires every post of t he Head of t he I nst it ut ion t o be filled up by direct recruit m ent , except t o t he ext ent prescribed. The word “ prescribed” has been defined under Sect ion 2( m ) of t he Act t o m ean prescribed by Regulat ions under t he Act . Consequent ly, Sect ion 36( 2) requires t he post of t he Head of t he I nst it ut ion t o be filled up by direct recruit m ent save t o t he ext ent prescribed by Regulat ions. The 2018 am endm ent t o t he 2009 Regulat ions prescribes t he m anner in which t he post of t he Head of t he I nst it ut ion is required t o be filled up by prom ot ion. To t he ext ent t hat t he 2018 Regulat ions so provides ot herwise, Sect ion 36( 2) of t he Act does not require t he post of t he Head of t he I nst it ut ion filled up by w ay of direct recruit m ent . t o be

13. While t he learned Single Judge was j ust ified in holding t hat a Regulat ion cannot fall foul of t he Parent Act , t he fact rem ains t hat t he Parent Act it self provides t hat t he post of t he Head of t he I nst it ut ion shall be filled up by direct recruit m ent , except t he Regulat ions; and, in t erm s of t he 2018 am endm ent t he ext ent prescribed under t o t o t he 2009 Regulat ions, t he post of Principal is filled up by prom ot ion, and on required fulfilm ent of t he condit ions st ipulat ed t herein.” t o be Learned St at e Counsel has furt her ( 5) drawn at t ent ion j udgm ent dat ed t o a 9.6.2025, rendered by t his Court in Writ Pet it ion ( S/ B) No. 371 of 2020. Para 4 and 5 of t he said j udgm ent are ext ract ed below: “ 4. Chapt er 2 of t he Regulat ions fram ed under Ut t arakhand School Educat ion Act , 2006 deals wit h appoint m ent of Head of inst it ut ions and also t eachers. Regulat ion 2 of Chapt er 2 reit erat es t hat vacancy on t he post of Head Mast er/ Principal has t o be filled by direct recruit m ent , except cases which are covered by Sect ion 37( 1) or Sect ion 38( 1) of Ut t arak hand School Educat ion Act . Sect ion 37( 1) and Sect ion 38( 1) of t he Act provides t hat select ion for appoint m ent as Head of inst it ut ion shall be m ade by a Select ion Com m it t ee. Thus, from t he schem e of t he Act and t he regulat ions fram ed t hereunder, it is clear t hat post of Head of inst it ut ion has t o be ordinarily appoint ed by direct recruit m ent and a vacancy on t he post can be filled by prom ot ion if a t eacher, who fulfills all condit ions of eligibilit y for prom ot ion as Head of inst it ut ion as prescribed in proviso t o Regulat ion 2 is available in t he inst it ut ion. I n v iew of st at ut ory schem e as discussed above, we do not find any infirm it y or illegalit y, w hat soever in t he com m unicat ion issued by Secret ary, Secondary Educat ion on 28.10.2020. Para 4 of consonance wit h t he st at ut ory schem e, t herefore we do not find any reason t o int erfere wit h t he sam e.” t he said Governm ent Order

5. ( 6) Since in Writ Pet it ion ( S/ B) No. 371 of 2020 also, t his Court considered challenge t o t he Governm ent Order dat ed 28.10.2020, which is challenged in t his writ pet it ion, t herefore, t his writ pet it ion is also decided in t erm s of t he j udgm ent rendered in Writ Pet it ion ( S/ B) No. 371 of 2020. ( Su b h ash Up a d h y ay , J.) ( M a n o j K u m ar Ti w a r i , J.) 2 4 .0 6 .2 0 2 5 Pr PRABODH KUMAR DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3a082a00a95aff911a9559743af8f21c50602ff6eae4e61af3aeab198d462503, postalCode=263001, st=UTTARAKHAND, serialNumber=0DC111E8D8CA66E16B940EFDF806ACCC1AB588052DF6FCA58C67F3C91957BE53, cn=PRABODH KUMAR