HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting) (Chapter VIII Rule 32 (2) (b) Description of the case. W.P.S/S. No. 1392/2003 Smt. Poonam Verma Vs Cantonment Board Dehradun Approved for reporting. ______________________________ Not approved for reporting. Date of decision 28.6.06 Initial of Judge Reserved HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 1392 of 2003 (SS) Smt. Poonam Verma w/o Sri Neel Kamal Verma Junior Lecturer, Saheed Mekh Bahadur Gurung Girls Intermediate College, Dehradun ………… Petitioner Versus 1. Cantonment Board, Dehradun 2. Chief Executive Officer, Cantt Board, Dehradun 3. School Committee, Saheed Makh Bahadur Gurung, Inter College Garhi Cantt. Dehradun 4. Smt. Nidhi Khanduri wife of R.P. Khanduri, Principal Saheed Mekh Bahadur Gurung Girls Inter College, Dehradun …….. Respondents Dated: June 28, 2006 Hon’ble Rajesh Tandon, J. Heard the learned counsel for the parties. By the present writ petition, the petitioner has prayed for a writ of certiorari quashing the order dated 14.7.2003 passed by the respondents. Briefly stated according to the petitioner she was initially appointed as Junior Lecturer (Civics) in respondent institution on 13.10.1997 and she joined on the said post on 20.10.1997. The post of the Principal has fallen vacant in the institution due to retirement of Smt. Karuna Rana on 30.12.2000. The post of the principal is a promotional post and promotion has to be made from the lecturers in the institution according to the seniority. The petitioner has submitted that she is the senior most amongst all the teachers posted in the institution, therefore, she was entitled to be promoted to the post of Principal. The Cantonment Board promoted respondent no. 4 on the post of principal firstly temporarily vide Resolution No. 5-3 dated 8.1.2001 and subsequently vide resolution of the Board dated 24.1.2002. Feeling aggrieved the petitioner filed a writ petition No. 286 (SB) of 2002 before this Court, which was decided vide order dated 30.10.2002. Further a Review petition has been filed by the petitioner and the Court has passed the following order on 19.4.2003: “The learned counsel for the petitioner submits that in the writ petition prayer was made by the petitioner to direct the respondents to make the regular promotion according to Rule 5-B of C.F.S. Rules, 1937. It was incumbent on the management respondent to have made regular promotion from amongst the eligible candidates to fill up the post of Principal of the institution according to Rule 5-B, but they chose to make a promotion ignoring the provisions of Rule5-B. Therefore, respondents are directed to proceed to make regular promotion from amongst the eligible candidates and the exercise shall be completed within a period of one month from the date of production of certified copy of this order. With this observation, the review petition is disposed of accordingly.” The petitioner has submitted that the Cantonment Board has not properly considered the claim of the petitioner and wrongly promoted respondent no. 4 on the post of Principal vide order dated 14.7.2003. Hence, the writ petition. The respondents have filed a counter affidavit and denied the averments made in writ petition. Accordingly to respondents Smt. Roshni Devi and Smt. Ranjana Chhetri filed a writ petition in Allahabad High Court which was disposed of on 12.5.1998 and D.I.O.S. Dehradun was directed to decide the representation of the petitioners within two months from the date of receipt of certified copy of the order. Smt. Poonam Verma was arrayed as Respondent no. 5 to the said writ petition. Pursuant to the High Court’s order D.I.O.S. passed order on 3.9.1998 and recorded findings that the post of Junior Lecturer (Civics) and (Sociology) was wrongly filled by promotion and by filling the posts through direct recruitment. The D.I.O.S. directed the Management of the School to fill up these two posts by promotion. Sri Randhir Singh has challenged the order dated 3.9.1998 in Writ Petition no. 34634 of 1998 before Allahabad High Court. The High Court has stayed the operation of the order of D.I.O.S. vide order dated 3.11.1998. Thus Smt. Poonam Verma and Sri Randhir Singh were allowed to continue on their respective posts. The counsel for the petitioner has relied upon Rule 5-B (8) of C.F.S. Rules 1937, which reads as under: “Appointments to promotion post shall be made by the appointing authority on the basis of seniority lists maintained for this purpose by the Board, subject to rejection of those considered unfit.” The counsel for the petitioner placed reliance in the case Brahmo Samaj Education Society vs. State of West Bengal and others, 2004 AIR SCW 3189. In that case the Apex Court has observed as under: “The question now before us is to decide whether the appointment of teachers in an aided institution by the College Service Commission by restricting the petitioners’ right to appointment is a reasonable restriction in the interest of general public or not. The petitioners have a right to establish and administer educational institution. Merely because the petitioners are receiving aid, their autonomy of administration cannot be totally restricted and institutions cannot be treated as a government-owned one. Of course the State can impose such conditions as are necessary for the proper maintenance of standards of education and to check maladministration. It is stated in T.M.A. Pai1 that: “71. While giving aid to professional institutions, it would be permissible for the authority giving aid to prescribe by rules or regulations, the conditions on the basis of which admission will be granted to different aided colleges by virtue of merit, coupled with the reservation policy of the State. The merit may be determined either through a common entrance test conducted by the university or the Government followed by counselling, or on the basis of an entrance test conducted by individual institutions – the method to be followed is for the university or the Government to decide. The authority may also devise other means to ensure that admission is granted to an aided professional institution on the basis of merit. In the case of such institutions, it well be permissible for the Government or the university to provide that consideration should be shown to the weaker sections of the society. (SCC at p. 550, para 71) 72. Once aid is granted to a private professional educational institution, the Government or the State agency, as a condition of the grant of aid, can put fetters on the freedom in the matter of administration and management of the institution. The State, which gives aid to an educational institution, can impose such conditions as are necessary for the proper maintenance of the high standards of education as the financial burden is shared by the State. The State would also be under an obligation to protect the interest of the teaching and non-teaching staff. In many States, there are various statutory provisions to regulate the functioning of such educational institutions where the States give, as a grant or aid, a substantial proportion of the revenue expenditure including salary, pay and allowances of teaching and non-teaching staff. It would be its responsibility to ensure that the teachers working in those institutions are governed by proper service conditions. The State, in the case of such aided institutions, has ample power to regulate the method of selection and appointment of teachers after prescribing requisite qualifications for the same. Ever since in Kerala Education Bill, 1957, Re2 this Court has upheld, in the case of aided institutions, those regulations that served the interests of students and teachers. Checks on the administration may be necessary in order to ensure that the administration is efficient and sound and will serve the academic needs of the institutions. In other words, rules and regulations that promote good administration and prevent mal- administration can be formulated so as to promote the efficiency of teachers, discipline and fairness in administration and to preserve harmony among affiliated institutions. At the same time it has to be ensured that even an aided institution does not become a government-owned and controlled institution. Normally, the aid that is granted is relatable to the pay and allowances of the teaching staff. In addition, the management of the private aided institutions has to incur revenue and capital expenses. Such aided institutions cannot obtain that extent of autonomy in relation to management and administration as would be available to a private unaided institution, but at the same time, if cannot also be treated as an educational institution departmentally run by Government or as a wholly owned and controlled government institution and interfere with constitution of the governing bodies or thrusting the staff without reference to management. 73. There are a large number of educational institutions, like schools and non-professional colleges, which cannot operate without the support of aid from the State. Although these institutions may have been established by philanthropists or other public-spirited persons, it becomes necessary, in order to provide inexpensive education to the students, to seek aid from the State. In such cases, as those of the professional aided institutions referred to hereinabove, the Government would be entitled to make regulations relating to the terms and conditions of employment of the teaching and non-teaching staff whenever the aid for the posts is given by the State as well as admission procedures. Such rules and regulations can also provide for the reasons and the manner in which a teacher or any other member of the staff can be removed. In other words, the autonomy of a private aided institution would be less than that of an unaided institution. The counsel for the petitioner further placed reliance in the case Manna Prasad Jaiswal vs. District Inspector of Schools, Deoria and others (1999) 2 UPLBEC 1197, in which a Division Bench of Allahabad High Court has held as under: “As pointed out herein above the criterion in the instant case is seniority subject to rejection of unfit. The word “unfit” unlike the word “merit” has a negative formulation. The principle of “seniority-cum- merit” or “seniority-cum- efficiency” does envisage a comparative assessment of merit whereas the principle “seniority subject to rejection of unfit”. In the context of clause (b) of the Explanation to Rule 16, does not visualise comparative assessment of the merits and performance of qualified and eligible teachers in the rejection of a senior teacher is to be based on his conduct related disqualification visualised by clause (b) of the Explanation appended to Rule 16 of the Rules.” The counsel for the petitioner has submitted that the Cantonment Board has not taken the seniority of the petitioner in consideration while passing the impugned resolution. In view of above, the petitioner is directed to file a fresh representation to the respondent no. 1, within 15 days after obtaining the certified copy of this order, who shall decide the same by a reasoned order within two months thereafter. Accordingly, the writ petition is disposed of. No order as to costs. Dated: June 28, 2006 Rajesh Tandon, J. *Dhyani