IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Chapter VIII, Rule 32 (2) (b) Description of case Date of decision: 14.08.2008 Writ Petition No. 819 of 2007 (S/S) A.F.R. (Approved for Reporting) Not Approved for Reporting (Initial of Judge) Date: 14.08.2008 Note: Bench Reader will attach this at the top of first page of the judgment when it is put up before the Judge for signature. Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 819 of 2007 (S/S) Committee of Management L.W.S. Girls Inter Collge Bhatkot, Pithoragarh through its Manager. ………Petitioner. Versus District Education Officer, Pithoragarh & 3 others. ………….Respondents. Shri Manoj Tiwari, learned counsel for the petitioner. Shri N.P. Sah, learned Standing Counsel for the respondents. Hon’ble Prafulla C. Pant, J. By means of this writ petition, moved under Article 226 of Constitution of India, the petitioner has sought writ in the nature of certiorari quashing the order dated 12.01.2007, passed by respondent No. 1 and order dated 18.06.2007, passed by respondent No. 2. A further direction is sought in the nature of mandamus commanding respondent No. 1 for approval of appointment of candidates, recommended by the duly constituted Selection Committee, pursuant to the request made by the petitioner vide its letter dated 27.12.2006. 2. Heard learned counsel for the parties and perused the affidavit, counter affidavit and rejoinder affidavit. 4. Brief facts of the case are that L.W.S. Girls Inter College, Bhatkot, Pithoragarh (herein after referred as Institution), is a minority Institution, which is imparting education up to the Intermediate standard. It is a recognized and aided institution, whose affairs are governed according to a Scheme of Administration under the provisions of U.P. Intermediate Education Act, 1921 (now under Uttaranchal School Education Act, 2006). Initially the institution was established in the year 1934 by an American Missionary as an Anglo Vernacular Middle School, Pithoragarh. Secretary, Secondary Education Board, U.P., vide its order dated 21.09.1965, granted recognition to the institution in 8 subjects – Hindi, English, Home Science, Civics, Economic, History, Geography and Sanskrit, for running the classes up to 10th standard. At that point of time, six posts of L.T. Grade teachers in the institution were created and sanctioned. Late two more posts of L.T. Grade teachers were sanctioned for the subjects-Science/mathematics and Biology, vide order dated 27.03.1991. Meanwhile, recognition was granted to the Institution for running Intermediate classes in the subjects-Hindi, English, Economics, Political Science, History and Geography, vide order dated 24.08.1985. Consequently, four more posts of teachers were sanctioned/created in the Institution, which were of the Lecturer’s grade, apart from one post of Principal of the college. Management of the Institution, in the year 1991, made a request to the education authorities to convert the post of Lecturer in Sanskrit to the post of Lecturer in Political Science, as there were no students, who opted for Sanskrit in the institution. Said request was accepted by the authority concerned w.e.f. 01.07.1992. Meanwhile, three more posts of Lectures were created and sanctioned vide order dated 27.03.1991. As such, the total strength in the Institution is six sanctioned posts of C.T. grade teachers, five sanctioned posts of L.T. grade teachers and seven sanctioned posts of Lecturers apart from one sanctioned post for the Principal. Initially appointed J.T.C. grade teachers were promoted in C.T. grade under Regulation 7(2) of Chapter II of Regulations framed under U.P. Intermediate Education Act, 1921. Four out of them (C.T. grade) were merged in the cadre of L.T. grade, as per the government orders issued in this regard. It is further stated in the writ petition that management of the institution applied for three more subjects for High School classes, namely Music, Sewing and Drawing but Secretary, Education Board, U.P. turned down the request of the petitioner, vide its order dated 18.04.1999. As such, no posts of L.T. grade teachers were created for these subjects. On 30.06.2002, one post of L.T. grade teacher fell vacant on superannuation of Mrs. S.P. Singh. Again on 15.09.2004, the management of the Institution sought permission to fill the vacancy, caused due to superannuation of Mrs. S.C. Singh in the L.T. grade. Meanwhile, further two vacancies arose and vide letter dated 16.06.2006, petitioner sought permission to fill three vacancies in the L.T. grade. Said request was allowed by District Education Officer (Respondent No. 1) vide his order dated 11.07.2006. Consequently, Management of the Institution issued advertisement and got it published on 19.07.2006 in two daily newspapers namely Amar Ujala and Danik Jagran. The applications received were processed, as per the rules and interview was conducted by the Selection Committee, constituted for the purpose. Finally, recommendations were sent by the management for approval of District Education Officer (respondent No. 1), vide its letter dated 27.12.2006. But respondent No. 1 vide impugned order dated 12.01.2007, unilaterally cancelled the permission granted for advertising the vacancy on 11.07.2006, without affording any opportunity of hearing to the management in the matter. On the same day. i.e. 12.01.2007, respondent No. 1 also communicated that post of Lecturer in Political Science was wrongly filled by the petitioner as the same was not created. Petitioner’s case is that respondent No. 1 lost sight of the fact that earlier post of Lecturer in Sanskrit was converted to Lecturer in Political Science. According to the petitioner, it is erroneous view of the respondent No. 1 (District Education Officer, Pithoragarh), that since Mrs. Prema Tiwari Principal of the Institution was qualified to teach History, as such, there was no need to fill the post of Lecturer in History. The reasons given by respondent No. 1 in his impugned order dated 12.01.2007, are against the norms provided in the Government Order dated 09.08.1999, which requires for increase in the number of section in a class proportionate to the number of students studying in the Institution. In para-22 of the writ petition, it is stated that petitioner is feeling difficulty in imparting education to the students in absence of teachers in L.T. grade. It is further stated that there were as many as 711 students studying from class VI to class X in academic session 2006-07. Earlier in the year 1991, there were only 504 students studying in the institution from class VI to class XII, which has now gone up to 936. Ignoring the ground realities of running institution, District Education Officer, has allegedly passed the impugned order against the law. Feeling aggrieved by order dated 12.01.2007, passed by District Education Officer, a representation/appeal was preferred on 05.02.2007, by the petitioner before Regional Additional Director, Education, Nainital. However, the same is rejected vide order dated 18.06.2007, by said authority allegedly without application of mind. Hence this writ petition on the ground that District Education Officer had no power of reviewing its own decision relating to the approval granted for filling the vacancy in the institution. It is further alleged in the writ petition that the impugned order is arbitrary and against the principles of natural justice. It is further pleaded that the District Education Officer, has assumed power, which did not vest on him. 5. The writ petition is contested by the respondents and counter affidavit is filed on their behalf. As far as the establishment of the Institution and its upgradation and recognition are concerned, the same are not denied. It is also not disputed that the institution (though minority institution) is grant in aid of Government and certain posts of teachers are sanctioned. It is stated in para-6 of the counter affidavit that vide Government Order No. 6039/15.07.2001 (136)/1989, Shiksha Anubhag-02 , dated 07.09.1990, C.T. Grade cadre was declared dying cadre and it merged into L.T. cadre on certain terms. Vide letter No. Arth (ek0)/9856-72/Act 2005/2005-06, dated 16.06.2005, 10 year C.B.S.E. syllabus was introduced and on merger of class VI to class X, the posts were required to be filled for Hindi, English, Sanskrit, Home Science, Maths, Sciences, Social Studies, Art and Music. It is further stated in the counter affidavit that though the petitioner has stated that no recognition was given to the institution for the subjects-Music, Sewing and Art, but they are imparting education on Art and Music also. It is admitted in the counter affidavit that on retirement of Smt. S.P. Singh in the year 2002, Management Committee of the institution sought approval for advertisement for the post of Assistant Teacher in Science and Maths. It is further stated on behalf of the respondents in their counter affidavit that determination of teachers in the institution is done according to Sections and periods and not on the basis of number of students. In para- 16 of the counter affidavit it is stated that the petitioner failed to reply the respondents’ letter dated 05.09.2006 (copy annexure-C.A. 10 to the counter affidavit), which was sent to them in reply to their letter dated 14.08.2006, seeking approval for advertisement for the appointment of vacant posts of Assistant teachers in L.T. grade. It is stated that only 13 sections are functioning form Class VI to Class X in the institution run by the petitioner, as such, the impugned orders challenged by the petitioner do not suffer from any illegality. 6. In the rejoinder affidavit filed on behalf of the petitioner, it is stated that the Director’s letter relied by the respondents cannot override the provision of the enactment, passed by the legislature and Regulations framed thereunder, applicable to the institution. Giving the details of number of students and sections in the institution, the averment made in the counter affidavit, are denied. It is stated that there are 8 sections, as per the G.O. dated 09.08.1999 in the Institution for classes VI, VII, and VIII, apart from 7 sections for classes IX and X and 4 sections of class 11th and 12th. The G.O. dated 20.11.1976 ( copy annexure C.A. 7 to the counter affidavit), filed with the counter affidavit itself shows that sanctioned strength is already less than the required strength in the Institution. The contents of the para-16 of the counter affidavit are specifically denied in the rejoinder affidavit and averments made in para-24 and 25 in the writ petition are reiterated. 7. Learned counsel for the petitioner drew attention of this Court to Section 36 of Uttaranchal School Education Act, 2006, which reads as under:- “36- Procedure for selection of teachers and heads of institutions- Subject to the provisions of this Act, the Head of Institution and teachers of an institution be appointed by the Committee of Management in the manner hereinafter provided. (2) Every post of Head of institution or teacher of an institution shall except to the extent prescribed for being filled by promotion, be filled by direct recruitments after intimation of the vacancy to the District Education Officer and obtaining approval of the District Education Officer for advertising and advertisement of the vacancy containing such particulars as may be prescribed, in at least two daily newspapers having wide circulation in the State. (3) No person shall be appointed as Head of Institution or teacher in an institution unless he possesses qualification prescribed by the Regulation. (4) Every application for appointment as Head of Institution or teacher of an institution in pursuance of an advertisement published under sub-section (2)shall be made to the District Education Officer and shall be accompanied by such fee which shall be accompanied by such fee which shall be paid in such manner as may be prescribed. (5) (i) After the receipt of application under sub-section (4), the District Education Officer shall cause to be awarded, in respect of each such application, quality-point marks in accordance with the procedure and principles prescribed, and shall, forward the applications to the Committee of Management. (ii) The applications shall be dealt with, candidates shall be called for interview, and the meeting of the Selection Committee shall be held, in accordance with the Regulations. (6) The Selection Committee shall prepare a list containing in order of preference the names as far as possible of three candidates for a post found by it to be suitable for appointment and shall communicate its recommendations together with such list to the Committee of Management. (7) Subject to the provisions of sub-section (8) the Committee of the Management shall, on receipt of the recommendations of the Selection Committee under sub-section (6), first offer appointment to the candidate given the first preference by the Selection Committee, and on his failure to join the post, the candidates next to him in the list prepared by the Selection Committee under this section, and on the failure of such candidates also, to the last candidate specified in such list. (8) The Committee of Management shall, where it does not agree with the recommendations of the Selection Committee, refer the matter together with the reasons of such disagreement to the Regional Additional Director of Education in the case of appointment to the post of Head of Institution and to the District Education Officer in the case of appointment to the post of teacher of an institution, and his decision shall be final. (9) Where no candidate approved by the Selection Committee for appointment is available, a fresh selection shall be held in the manner laid down in the section. (10) Where the State Government, in case of the appointment of Head of institution, and the Director in the case of appointment of teacher of an institution, is satisfied that any person has been appointed as Head of institution or teacher, as the case may be in contravention of the provisions of this Act, the State Government or, as the case may be, the Director shall, after affording an opportunity of being heard to such person, cancel such appointment and pass such consequential order as may be necessary. (11) No male candidate shall be eligible for appointment to the post of Head of institution or teacher in a girls institution, but the provision of this sub-section shall not apply in the context of the following- (a) appointment by promotion on a higher post other than the post of Head of institution in that institution in case of a candidate already working in a girls institution as a permanent teacher, or (b) appointment of a blind teacher as a teacher of music. (2)The selection process for the appointment of clerical (ministerial) or group-D employee shall be as prescribed. The aforesaid quoted provisions contained in selection 36 of Uttaranchal School Education Act 2006, does not empower District Education Officer to cancel the approval already granted earlier, that too without affording opportunity of hearing to the Committee of Management of the College. 8. From the record it is clear that the petitioner sought approval of District Education Officer, Pithoragarh (respondent No. 1) to advertise the vacant post of L.T. grade on superannuation of Mrs. S.P. Singh, vide letter dated 15.09.2004 (copy annexure-14 to the writ petition) and thereafter by another letter dated 24.01.2006 for one more vacant post was sought to be advertised (after giving explanation to the objection raised by respondent No.1, vide his letter dated 25.01.2005). It appears that thereafter third vacancy in L.T. grade fell vacant and vide letter dated 06.06.2006, the petitioner again sought approval for advertising the vacant posts vide its letter dated 16.06.2006 (copy annexure-16 to the writ petition). On this, the then District Education Officer, vide his letter dated 11.07.2006, granted approval to advertise that post as per the rules. Said letter, a copy of which is annexre-17 to the writ petition is not denied to the respondents. In pursuance to said letter, an advertisement was issued on 19.07.2006 (copy of which annexure 18 and 19 to the writ petition), and after constituting the Selection Committee and selection of the candidates, the petitioner sent approval for appointment of appointed teachers vide its letter dated 27.12.2006 (copy annexure-20 to the writ petition). 9. Learned counsel for the petitioner submitted that all the above proceedings are done in accordance with provisions of law applicable to the Institution but the impugned order dated 12.01.2007 (copy annexure-21 to the writ petition), whereby approval and selection process is cancelled by the successor District Education Officer without authority of law. I have gone though the contents of the impugned order dated 12.01.2007, passed by respondent No. 1 and the order dated 18.06.2007 (copy annexure-27 to the writ petition), passed by Additional Director Education, affirming said order. The impugned order dated 12.01.2007, passed by respondent No. 1 shows that he has turned down the recommendation of the Selection Committee and cancelled the selection process, and also withdrawn the permission granted for issuing advertisement for filling the post in the L.T. grade on the ground that the existing teachers can take 30 lecturers. It is further mentioned in the impugned order that there should have been 8 L.T. grade teachers on the subjects of Science (2), Mathematics (1), English (2), Home Science (1), Art (1), Music (1) and Physical Training (1). It is further mentioned in the impugned order that Lecturers of History are being taken by Principal himself in a clandestine manner. The District Education has completely ignored the important fact that since the posts of teachers sanctioned, number of students, and sections have increased much more in the institution. 10. The ground mentioned by the District Education Officer, Pithoragarh (respondent No. 1), cancelling earlier granted approval is unacceptable and untenable in law, for the reasons that annexure 10 to the writ petition, which is copy of letter dated 18.04.1999, issued by Regional Secretary, Intermediate Board Education, Regional Office Ramnagar, shows that the Institution is not recognised for teaching Music, Sanskrit and Art in the High School standard. It is strange that when the institution it not recognised since 1999, for the above three subjects, it is erroneous on the part of District Education Officer to say that the Institution is required to fill the teachers in L.T. grade on the subjects of Art and Music. Apart from this, the allegation made by said authority against the Institution that it is imparting education in History in the intermediate classes un-authorisedly is also factually incorrect and erroneous in law. In para-19 of the writ petition, it is stated by the petitioner that “….The District Education Office lost sight of the fact that the post of Lecturer (Sanskrit) was converted to Lecturer (Political Science) vide order dated 02.08.1991. It was further alleged in the said letter that Mrs. Prema Tiwari, Principal, is teaching History to Intermediate Classes, as such, the post of Lecturer which was earlier held Mrs. Tiwari should have been converted to Lecturer (Sanskrit)….”. In reply to this para, in para-13 of the counter affidavit, simply this much is stated that as per the Government Order dated 20.11.1976, the Principal has to take 12 classes in a week. Annexure-7 to the writ petition, which is copy of letter dated 02.08.1991, issued by Deputy Director of Education (Intermediate) Second, form the Directorate of Education, U.P., Allahabad, shows that the petitioner Institution is allowed to convert the post of Lecturer in Sanskrit to the post of Lecturer in Political Science on the ground that in the intermediate classes, number of students opting Sanskrit, in the Institution was Zero. Neither the respondent No. 1 nor respondent No. 2 had taken note of this letter nor of the fact that the Music and Art subjects in High School were not recognised in the institution. 11. Therefore, for the reasons, as discussed above, both the impugned orders dated 12.01.2007, passed by respondent No. 1 (District Education Officer, Pithoragarh) and order dated 18.06.2007, passed by Additional Director, Education, Kumaon region, Nainital (copy of which is annexure-27 to the writ petition), are liable to the quashed. Accordingly, the writ petition is allowed. Both the aforesaid orders, passed by respondent No. 1 and 2, are quashed. Respondent No. 1 is directed to take decision on the recommendation of the Institution in accordance of provisions of Section 36 (7) Uttaranchal School Education Act, 2006, within a period of one month from the date of certified copy of this order is produced before such authority. (Prafulla C. Pant, J.) Dt. 14.08.2008 Sweta