RAJENDRA KUMAR SHARMA Vs. STATE OF U P

JUDGEMENT

(1.) List revised. Heard learned counsel for the petitioner Mr. Ashok Mehta, learned standing counsel and perused the record. The present writ petition has been filed to issue writ of certiorari quashing the order dated 15.4.2006 (Annexure-6 to the writ petition) passed by District Basic Education Officer, Gautam Buddh Nagar by which the petitioner was terminated by the Committee of Management after approval of the order by the District Basic Education Officer, Gautam Buddh Nagar vide order dated 12.4.2006.

(2.) The brief facts of the present case is that Gandhi Smarak Vidhayalaya was established in the year 1969, which was managed by the Society Gandhi Smarak, Vidhayalaya Sanstha. The society was registered under the Societies Registration Act, 1860. The institution was running Junior High School, which was recognized by the education department w.e.f. 1.7.1972 and after the U.P. Basic Education Act, 1972 was enforced in State of U.P. The said institution was governed by the provision of said Act. In the year 1975 the institution received 'grant-in-aid' from the State Government. From the year 1979 the Uttar Pradesh Junior High School (Payment of Salaries of Teachers and Other Employees) Act, 1979 was enacted and enforced and the provision of the aforesaid Acts were applicable to the institution Gandhi Smarak Junior High School (hereinafter referred as 'institution'). Thereafter in the year 1986, the name of the sansthan was reviewed and changed under direction of the State Government and the name of Gandhi word was deleted from the society and it was changed as Hindu Vidhayalaya Sanstha. The institution was upgraded to High School in the year 1998 and after upgradation of the institution the same was to be governed by the provisions of U.P. Intermediate Education Act, 1921. The committee of management of the institution applied for approval of the scheme of administration in accordance with the provisions of Section 16A, U.P. Intermediate Education Act and the same was approved by the Directorate by order dated 27.3.2000. The institution was upgraded and Board of High School and Intermediate Education, recognized the institution for the classes of 9th - 10th in accordance with the provisions of Section 7A of the U.P. Intermediate Act, 1921. There was some dispute in between committee' of management and principal. The writ petition was filed by the committee of management as well as principal Shri Krishna Pal Singh Yadav. Sri Krishna Pal Singh Yadav was not authorised to take action, as Manager against the petitioner. The petitioner was a senior most assistant teacher in the aforesaid institution imparting education from class 6th to High School. The petitioner was senior most teacher hence whenever the principal was suspended, even the charges as officiating principal' was given to the petitioner. Subsequently, the allegation was made against the petitioner of a criminal case and he was suspended and charge-sheet was submitted. After inquiry the management passed the impugned termination order with approval of the District Basic Education Officer, Gautam Buddh Nagar in view of the Government Order dated 24.11.2001.

(3.) Learned counsel for the petitioner submitted that the question involved in the present case is that after institution was upgraded to High School whether it will be governed under the U.P. Intermediate Education Act, 1921 and under the provision of U.P. Secondary Education Services and Selection Board Act, 1982 or under the provisions of U.P. Basic Education Act, 1972. He further submitted that this point has already been considered by the Full Bench of this Court in State of U.P. and others v. District Judge, Varanasi and others,1981 UPLBEC 336, which was further considered and followed in case of Dr. (Smt.) Sushila Gupta v. Joint Director of Education, Kanpur Region, Kanpur and others, 2006 2 AWC 1561. He also relied the judgment of this Court in case of Krishna Dixit. ETC. ETC. v. District Basic Education Officer, Jaunpur and others,2007 2 ESC 849 (All) and Ajay Pratap Rai v. District Basic Education Officer, Jaunpur and others, 2007 3 ESC 1786. He further submitted that it was categorically held by the Full Bench of this Court that once a basic school or a junior high school being upgraded as high school or a intermediate college the identity of the institution known as basic school or junior high school is lost, it ceased to exist as a legal entity and in its place another institution with the legal entity comes into being. He further submitted that in the present case, the committee of management passed the order of termination after obtaining prior approval from the District Basic Education Officer in view of the G.O. dated 24.11.2001. The said G.O. dated 24.11.2001 was held to be ultra-virus by the High Court in Writ Petition No. 17422 of 2003. Ramesh Singh v. State of U.P. and others, decided on 23.5.2003. After considering the aforesaid judgment and G.O. dated 24.11.2001 it was held by this Court in case of Dr. Smt. Sushila Gupta that when the institution is upgraded to the high school then it would be governed by the provisions of the U.P. Intermediate Education Act, in stead of other provisions which might have been applicable earlier to the teachers of the junior high school. Learned counsel for the petitioner further submitted that the detail reply to the charge was submitted denying the charges. The enquiry report was without complying the provisions of Chapter III, Regulation 37. Oral evidence and documentary evidence were not disclosed with the charge-sheet and enquiry report was not supplied. In earlier inquiry, on the basis of same charges in which the inquiry committee submitted its report dated 22.7.2003, the petitioner was exonerated from all the charges. However, again on the basis of similar charges the charge-sheet was submitted, however, neither inquiry report nor any opportunity of hearing was given to the petitioner in accordance with Chapter III, Regulation 37. When the termination letter was served and the necessary information was sought then the Basic District Education Officer, Gautam Buddh Nagar supplied documents including the inquiry report dated 7.10.2005.