SYED SHAKEB ASHRAF AND 3 OTHERS Vs. STATE OF U.P. THRU PRIN. SECY. DEPTT. OF BASIC EDU. LUCKNOW AND OTHERS

JUDGEMENT

(1.) Heard learned for the parties.The petitioners herein have challenged an order passed by the Basic Education Officer, Faizabad dated 15.11.2016 declining to approve payment of salary to them under Sec. 13-A of the Junior High School Payment of Salary of Teachers and others Employees Act, 1978 on the ground that the prescribed procedure for selection and appointment was not followed by the Management and without the petitioners' fulfilling the requisite educational and training qualifications as also Teacher Eligibility Test (For short 'TET') they were illegally appointed, therefore, the claim for salary is unjustified. In this regard he has also referred to the provisions of the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as 'Right to Education Act, 2009').

(2.) As regards the applicability of the Right to Education Act, 2009 is concerned, the opposite parties have not disputed in the impugned order that the Institution, namely, AIT College, Jaganpur, Faizabad is a Minority Educational Institution, therefore, in view of the pronouncement of the Supreme Court in the case of Pramati Educational and Cultural Trust and others Vs. Union of India and others reported in AIR 2014 SC 2114, the said Act is not applicable to such institutions and to this extent the order impugned is erroneous. It can also not be disputed that after up gradation of the school in question from a Junior High School to High School, the salary of teachers and staff upto the Junior High School level i.e. the level upto which it is aided, is payable under Sec. 13-A of the Junior High School Payment of Salary of Teachers and Other Employees Act, 1978 (hereinafter referred to as 'the Act, 1978'). It can also not be disputed that after such up gradation a Junior High School looses its identity and is to be treated as a recognised High School. However, the fact that the teachers of the institution are now teachers of the High School, does not mean that the prerequisites for selection and appointment of teachers for teaching Classes-VI to VIII prescribed by a Central enactment and Regulations made thereunder, as in this case, is to be done away with, the contention of the learned counsel for the petitioner as also the learned counsel for the Management as aforesaid and the reliance placed by them upon various decisions in this regard, namely, Smt. Manju Awasthi and others Vs. State of U.P. and others reported in 2013 (3) ADJ 64 (DB); State of U.P. and Others Vs. District Judge, Varanasi and Others reported in 1981 UPLBEC 336 (FB); Dr. (Smt.) Sushila Gupta Vs. The Joint Director of Education, Kanpur and others reported in 2006 (1) ALJ 523; Sri Krishna Dixit Vs. District Basic Education Officer, Jaunpur and others; Civil Misc. Writ Petition No. 14612 of 2003 decided on 09.01.2007, wherein, it has been held that consequent to up gradation such Schools are to be governed by the provisions of the U.P. Intermediate Education Act, 1921 etc. and selection and appointment of Teachers and Head Masters is also to be made as per the said provisions and not the provisions contained in the Basic Education Act, 1972 or Rules made thereunder, is not much of help to the petitioners for reasons discussed hereinafter.

(3.) In Manju Awasthi's case (supra) the question was payment of salary to teachers and staff of upgraded High School and not qualifications applicable, therefore, the National Council For Teacher Education Act, 1993 (hereinafter referred to as 'the Act, 1993') as amended in 2011 was neither cited nor considered by the Division Bench. Likewise the said Act was not considered in the other judgments referred above.