# C/M Inter College Para Hamidpur, Pratapgarh, Thru. Manager v. Km. Poonam Sharma

- **Citation:** (2025) 8 ILRA 590
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-08-14
- **Case number:** Civil Misc. Review Application Defective No. 165 of 2024
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-inter-college-para-hamidpur-pratapgarh-thru-manager-v-km-poonam-sharma-53734
- **Pages:** 18

## Headnote

Sharad Pathak, Priya Singh, Ran Vijay
Singh

Issue for Consideration
The appointment of the petitioner has been
made under U.P. Recognised Basic Schools
(Junior
High
Schools)
(Recruitment
And
Conditions Of Service Of Teachers) Rules, 1978.
A junior high school when granted recognition
under Section 7-A(a) of U.P. Intermediate
Education Act, 1921 and upgraded to high
school, if any vacancy of Teacher arises in such
institution subsequently whether it would be
filled in following procedure laid down under
U.P. Basic Education Act, 1972 read with U.P.
Recognized Basic Schools (Junior High Schools)
(Recruitment and Conditions of Service of
Teachers) Rules, 1978 or for administrative and
other purposes the institution would be deemed
to
be
governed
by
provisions
of
U.P.
Intermediate
Education
Act,
1921
and
recruitment would be governed by provisions of
U.P. Secondary Education Services Selection
Board Act, 1982

Head Notes
The Uttar Pradesh Intermediate Education
Act, 1921- Section 7A (a), The Uttar
Pradesh Secondary Education Services
Selection Board Act, 1982 - A Basic School
or a Junior High School is different from a
High School or an Intermediate College -
Once a basic school or a Junior High
School being upgraded as a High School or
an Intermediate College the identity of
the institution known as basic school or
Junior High School is lost - Appointment of
the petitioner has been made as a
Headmistress in an institution, which has
been upgraded to intermediate college -
Petitioner
is
not
entitled
for
the
appointment made against the provisions
- petitioner is not entitled for issuance of
writ of mandamus, directing for payment
of salary to her. Petition dismissed.

Held-Once
an
institution
is
upgraded
or
recognition upto High School is granted under
Section 7-A(a), provisions of U.P. Intermediate
Education Act, 1921 would be attracted and in
such a case any vacancy of teaching staff
8 All. C/M Inter College Para Hamidpur, Pratapgarh, Thru. Manager Vs. Km. Poonam Sharma
591
caused in such Institution, would have to be
filled in as per the provisions of U.P. Secondary
Education Services Selection Board Act, 1982 -
Appointment of the petitioner made on the post
of Headmistress is totally against the provision
of U.P. Intermediate Education Act, 1921 and
U.P. Secondary Education Services Selection
Board Act, 1982, therefore, the petitioner is not
entitled for the appointment made against the
provisions referred hereinabove, therefore, the
petitioner is not entitled for issuance of writ of
mandamus, directing for payment of salary to
her. (Para 18 & 20) (E-15)

Case Law Cited
Vinod Kumar and others Vs. Union of India and
others

List of Acts
The Uttar Pradesh Intermediate Education
Act, 1921-, The Uttar Pradesh Secondary
Education Services Selection Board Act,
1982

List of Keywords
Junior High School upgraded as a High
School; Cases to exist as a legal entity;
Junior High school vacancy filled up in
accordance with procedure; No appointment
of a Headmaster in a junior high school
under Rules 1978

Case Arising From
Writ-A No.2823 of 2004

Appearances for Parties
Counsel for Applicant :- Anurag Kumar Singh
Counsel for Opposite Party :- Sharad Pathak,
Priya Singh, Ran Vijay Singh

## Text

_Characters 0–39,567 of 60,153. This is a partial read: ask again with offset=39567 for what follows._

590 INDIAN LAW REPORTS ALLAHABAD SERIES

25. In view of the said findings, the
order impugned is clearly beyond the
jurisdiction and cannot be sustained on that
ground.

26. The issue No.2 as framed is
decided by holding that the order passed
by the Appellate Tribunal being without
jurisdiction is null and void. In view of
the finding on issue No.2, I do not see
any reason to decide the other two
issues.

27. Further as it is informed that the
Technical
Member
has
now
been
appointed, the matter is relegated to the
Appellate Tribunal to decide the matter
afresh with all expedition without granting
any unnecessary adjournment to any of the
parties, preferably within a period of 60
days from today. While doing so, the
Appellate Tribunal will consider the matter
afresh particularly the date of allotment,
which has not been done.

28. The appeals are disposed of in
terms of above.
----------
(2025) 8 ILRA 590
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.08.2025

BEFORE

THE HON'BLE IRSHAD ALI J.

Civil Misc. Review Application Defective No. 165
of 2024

C/M
Inter
College
Para
Hamidpur,
Pratapgarh, Thru. Manager ...Applicant
Versus
Km. Poonam Sharma ...Opposite Party

Counsel for the Applicant:
Anurag Kumar Singh
Counsel for the Opposite Party:
Sharad Pathak, Priya Singh, Ran Vijay
Singh

Issue for Consideration
The appointment of the petitioner has been
made under U.P. Recognised Basic Schools
(Junior
High
Schools)
(Recruitment
And
Conditions Of Service Of Teachers) Rules, 1978.
A junior high school when granted recognition
under Section 7-A(a) of U.P. Intermediate
Education Act, 1921 and upgraded to high
school, if any vacancy of Teacher arises in such
institution subsequently whether it would be
filled in following procedure laid down under
U.P. Basic Education Act, 1972 read with U.P.
Recognized Basic Schools (Junior High Schools)
(Recruitment and Conditions of Service of
Teachers) Rules, 1978 or for administrative and
other purposes the institution would be deemed
to
be
governed
by
provisions
of
U.P.
Intermediate
Education
Act,
1921
and
recruitment would be governed by provisions of
U.P. Secondary Education Services Selection
Board Act, 1982

Head Notes
The Uttar Pradesh Intermediate Education
Act, 1921- Section 7A (a), The Uttar
Pradesh Secondary Education Services
Selection Board Act, 1982 - A Basic School
or a Junior High School is different from a
High School or an Intermediate College -
Once a basic school or a Junior High
School being upgraded as a High School or
an Intermediate College the identity of
the institution known as basic school or
Junior High School is lost - Appointment of
the petitioner has been made as a
Headmistress in an institution, which has
been upgraded to intermediate college -
Petitioner
is
not
entitled
for
the
appointment made against the provisions
- petitioner is not entitled for issuance of
writ of mandamus, directing for payment
of salary to her. Petition dismissed.

Held-Once
an
institution
is
upgraded
or
recognition upto High School is granted under
Section 7-A(a), provisions of U.P. Intermediate
Education Act, 1921 would be attracted and in
such a case any vacancy of teaching staff
8 All. C/M Inter College Para Hamidpur, Pratapgarh, Thru. Manager Vs. Km. Poonam Sharma
591
caused in such Institution, would have to be
filled in as per the provisions of U.P. Secondary
Education Services Selection Board Act, 1982 -
Appointment of the petitioner made on the post
of Headmistress is totally against the provision
of U.P. Intermediate Education Act, 1921 and
U.P. Secondary Education Services Selection
Board Act, 1982, therefore, the petitioner is not
entitled for the appointment made against the
provisions referred hereinabove, therefore, the
petitioner is not entitled for issuance of writ of
mandamus, directing for payment of salary to
her. (Para 18 & 20) (E-15)

Case Law Cited
Vinod Kumar and others Vs. Union of India and
others

List of Acts
The Uttar Pradesh Intermediate Education
Act, 1921-, The Uttar Pradesh Secondary
Education Services Selection Board Act,
1982

List of Keywords
Junior High School upgraded as a High
School; Cases to exist as a legal entity;
Junior High school vacancy filled up in
accordance with procedure; No appointment
of a Headmaster in a junior high school
under Rules 1978

Case Arising From
Writ-A No.2823 of 2004

Appearances for Parties
Counsel for Applicant :- Anurag Kumar Singh
Counsel for Opposite Party :- Sharad Pathak,
Priya Singh, Ran Vijay Singh

(Delivered by Hon'ble Irshad Ali, J.)

1. Vide order dated 6.8.2025, the
review application was allowed, which is
being quoted below :-

"
 IA No.1 of 2024- Delay
Application

1.
 Heard.

2. In paragraph-2 of the objection
filed, objection has been raised, which has
no merit. The reasons assigned in the
affidavit filed in support of the application
are sufficient. Accordingly, the application
is allowed. The delay in filing the review
application is condoned.

Review Application

1. Heard Sri Anurag Kumar
Singh, learned counsel for the applicant
and Sri Sharad Pathak, learned counsel for
the respondent.

2. This review application has
been filed for review of judgment and order
dated 14.2.2023, passed in Writ-A No.2823
of 2004.

3. It is submitted by learned
counsel for the applicant that at no point of
time, correct facts were brought into the
notice of the Court, neither the validity of
the appointment was shown by the
respondent/ petitioner, therefore, writ of
mandamus cannot be issued for the
payment of salary to the respondent/
petitioner from the State exchequer. He
next submitted that once the institution has
been
upgraded
to
high
school and
intermediate,
the
provisions
of
U.P.
Intermediate Education Act, 1921 and U.P.
Secondary Education Services Selection
Board Act, 1982 are applicable, therefore,
the appointment made under the U.P.
Recognised Basic Schools (Junior High
Schools) (Recruitment And Conditions Of
Service Of Teachers) Rules, 1978 is not
permissible in the eyes of law.

4. Sri Sharad Pathak, Advocate
opposed the review application filed by the
applicant on the ground that the Committee
of Management was issued notice and did
592 INDIAN LAW REPORTS ALLAHABAD SERIES
not turn up to file counter affidavit before
this Court and in absence of the Committee
of Management, the judgment was passed
by this Court on 14.2.2023, therefore, the
submission advanced by learned counsel
for the applicant is not sustainable in law.

5. In rebuttal, learned counsel for
the applicant submitted that after filing of
Writ-A No.2823 of 2004, several other
disputes came before this Court in the writ
petition and special appeal and it was
nowhere disclosed that in the writ petition
filed by the petitioner, the Committee of
Management
was
not
represented,
therefore, it is pure concealment of fact,
therefore,
the
review
application
is
maintainable.

6. I have heard the submission so
advanced
by
both
the
parties.
The
respondent has concealed material fact in
regard to appointment of the petitioner that
will the Rules of 1978 are applicable and
the institution has been upgraded to
intermediate college, has obtained the
order for payment of salary in the writ
petition, therefore, the review application is
maintainable. I am of the considered
opinion that once the Committee of
Management was not represented by any of
the counsel before this Court in the writ
petition
(Writ-A
No.2823
of
2004),
therefore, by coming alongwith the relevant
facts,
the
review
application
is
maintainable and is hereby allowed.

7. In the present writ petition,
writ of mandamus has been prayed on the
ground that the petitioner was appointed by
the
approval
of
the
District
Basic
Education Officer dated 21.10.2003 on the
post of Headmistress in the institution.
Question
arose
that
whether
after
upgradation
of
the
institution
as
intermediate college, the appointment made
with the approval of the District Basic
Education Officer and selection committee
appointed by him, is in accordance with
law or not and whether a writ of mandamus
can be issued for payment of salary from
the State exchequer.

8. For dealing with the matter,
relevant facts are necessary to be brought
into notice. Initially, the institution was
junior high

school, Para Hamidpur, District
Pratapgarh. There is sanctioned strength of
one
Headmaster
and
Teachers.
On
2.11.1995, recognition was granted to the
society running the junior high school
under Section 7(4) of U.P. Intermediate
Education Act, 1921 for the purpose of
examination up to the intermediate level.

9. The petitioner's service was
terminated from the School and she filed
Writ Petition No.4534 (S/S) of 1993 on
30.5.1993. The petitioner was appointed as
Assistant Teacher in the said junior high
school on 30.8.1991. She took leave and
started working in a Co-operative Bank
and since she was not paid salary, she filed
Writ Petition No.7000 of 1992. Leave was
granted from 1.10.1992 to 19.5.1993. She
joined back as Assistant Teacher in the
School on 1.11.1993. Communications
were made for payment of salary to the
petitioner
as
Assistant
Teacher
on
24.6.1997. Recognition was granted under
Section 7(4) of the U.P. Intermediate
Education Act, 1921 on 5.1.2001.

10. Vacancy on the post of
Headmaster occurred due to retirement of
one Ramsamugh Maurya in intermediate
college. The Committee of Management
sent letter for permission from Basic
8 All. C/M Inter College Para Hamidpur, Pratapgarh, Thru. Manager Vs. Km. Poonam Sharma
593
Education Officer for starting selection
process, which was granted on 8.8.2003.

11. Vide letter dated 22.8.2003,
the Committee of Management request the
District Basic Education Officer to appoint
Observer at the time of holding of
selection. On 20.9.2003, Observer was
appointed by the Basic Education Officer
and selection was held by duly constituted
selection
committee.
Basic
Education
Officer approved the selection of the
petitioner and she joined the post on
1.12.2003 and started getting salary. The
Finance and Accounts Officer stopped the
salary of the petitioner vide order dated
27.3.2004. The petitioner filed the present
writ petition, in which interim order was
passed and notice was issued to the
Committee of Management, which is duly
served and no counter affidavit has been
filed during the pendency of the writ
petition.

12. Election of the Committee of
Management was held and new office
bearers came into the office on 20.9.2008
and dispute arose in the Committee of
Management of the School. Vide order
dated 11.10.2008, the petitioner was
suspended on the ground that she does
not follow the dictates of the new
Manager. In view of the provisions
contained
under
U.P.
Intermediate
Education Act, after expiry of sixty days
period, suspension order stood revoked.
An enquiry report has been submitted in
regard
to
the
appointment
of
the
petitioner
on
25.9.2008,
in
which
selection process of the petitioner has
been found to be appropriate. Thereafter,
various orders were passed for payment
of salary of the petitioner, which was
stopped
by
the
Committee
of
Management.

13.
The
Committee
of
Management filed Writ Petition No.5640
(S/S) of 2012, alleging therein that the
appointment of the petitioner is illegal.
Learned Single Judge directed for enquiry
to be conducted by the Commissioner.

14. The petitioner filed Special
Appeal No.818 of 2012, wherein the
enquiry order was stayed and question was
framed by the Court in regard to validity of
appointment
of
the
petitioner.
An
application
for
modification
of
the
judgment passed in the present writ petition
was
filed,
which
was
dismissed
as
withdrawn. The special appeal was also
filed against judgment and order dated
14.2.2023, which was also dismissed as
withdrawn vide order dated 20.8.2024 and
the review application in the present writ
petition has been filed thereafter.

15. Submission of Sri Sharad
Pathak, learned counsel for the petitioner
is that there is no prohibition in regard to
the appointment of the petitioner on the
post of Headmistress in an intermediate
college, which is receiving grant in aid
from
the
State
Government.
The
appointment
made
by
constituting
a
selection committee at the level of Basic
Education Officer is the criteria to make
appointment on the post of Headmaster/
Headmistress of an intermediate college.
Next submission is that in view of
government order dated 15.10.2009, a ban
was
imposed
on
appointment
in
intermediate colleges.

16. He next submitted that the
appointment of the petitioner is not dehors
the rules, that is in accordance with law
under U.P. Recognised Basic Schools
(Junior High Schools) (Recruitment And
Conditions Of Service Of Teachers) Rules,
594 INDIAN LAW REPORTS ALLAHABAD SERIES
1978, therefore, the salary of the petitioner
cannot be denied in view of the fact
narrated
above.
Relying
on
certain
judgments,
learned
counsel
for
the
petitioner submitted that prior to judgment
of Manju Awasthi and others Vs. State of
U.P. and others, there is no prohibition in
regard to appointment in intermediate
colleges under U.P. Recognised Basic
Schools
(Junior
High
Schools)
(Recruitment And Conditions Of Service Of
Teachers) Rules, 1978, therefore, the
judgment relied upon by the learned
counsel for the respondent is not applicable
to the facts and circumstances of the
present case.

17. The moot question in the
present writ petition is that whether the
appointment of
the
petitioner
is
in
accordance with law or not. The question
arises for consideration is that once the
institution has been upgraded from junior
high
school
to
high
school
and
intermediate, the process of appointment
will be under U.P. Recognised Basic
Schools
(Junior
High
Schools)
(Recruitment And Conditions Of Service Of
Teachers) Rules, 1978 or U.P. Intermediate
Education Act, 1921 and U.P. Secondary
Education Services Selection Board Act,
1982.

18. In support of his submission,
Sri Sharad Pathak, learned counsel for the
petitioner placed reliance upon judgment
rendered in the case of Vinod Kumar and
others Vs. Union of India and others
arising out of SLP (C) Nos.22241-42 of
2016. Relevant paragraph-7 is being
quoted below :-

"7. The judgement in the case
Uma Devi (supra) also distinguished
between
"irregular"
and
"illegal"
appointments underscoring the importance
of considering certain appointments even if
were not made strictly in accordance with
the prescribed Rules and Procedure,
cannot be said to have been made illegally
if they had followed the procedures of
regular appointments such as conduct of
written examinations or interviews as in the
present case. Paragraph 53 of the Uma
Devi (supra) case is reproduced hereunder:

"53. One aspect needs to be
clarified. There may be cases where
irregular
appointments
(not
illegal
appointments)
as
explained
in
S.V.
Narayanappa [(1967) 1 SCR 128 : AIR
1967 SC 1071] , R.N. Nanjundappa [(1972)
1 SCC 409 :

(1972) 2 SCR 799] and B.N.
Nagarajan [(1979) 4 SCC 507 : 1980 SCC
(L&S) 4 : (1979) 3 SCR 937] and referred
to in para 15 above, of duly qualified
persons in duly sanctioned vacant posts
might have been made and the employees
have continued to work for ten years or
more but without the intervention of orders
of the courts or of tribunals. The question
of regularisation of the services of such
employees may have to be considered on
merits in the light of the principles settled
by this Court in the cases above referred to
and in the light of this judgment. In that
context, the Union of India, the State
Governments and their instrumentalities
should take steps to regularise as a onetime measure, the
services of
such
irregularly appointed, who have worked for
ten years or more in duly sanctioned posts
but not under cover of orders of the courts
or of tribunals and should further ensure
that regular recruitments are undertaken to
fill those vacant sanctioned posts that
require to be filled up, in cases where
temporary employees or daily wagers are
8 All. C/M Inter College Para Hamidpur, Pratapgarh, Thru. Manager Vs. Km. Poonam Sharma
595
being now employed. The process must be
set in motion within six months from this
date. We also clarify that regularisation, if
any already made, but not sub judice, need
not be reopened based on this judgment,
but there should be no further bypassing of
the
constitutional
requirement
and
regularising or making permanent, those
not duly appointed as per the constitutional
scheme.""

19. On the other hand, Sri
Anurag Kumar Singh, learned counsel for
the respondent has placed reliance upon
the judgments, which are as under :-

(i) State of Uttar Pradesh and
others Vs. District Judge Varanasi and
others [1981 SCC OnLine All 279].
Relevant paragraph-17 is being quoted
below :-

"17. A basic school or a Junior
High School is thus different from a High
School or an Intermediate College. On the
plain language of these definitions the
same institution cannot be called a basic
school or a Junior High School as well as a
High School or an Intermediate College.
Each one has a distinct legal entity. On a
basic school or a Junior High School being
upgraded as a High School or an
Intermediate College the identity of the
institution known as basic school or Junior
High School is lost. It ceases to exist as a
legal entity and in its place another
institution with a new legal entity comes
into being. One cannot be equated with the
other. In this connection reference may
also be made to the decision of the
Supreme Court in Commissioner, Lucknow
Division and Others Vs. Kumari Prem Lata
Misra, . It would further be seen that
administration including constitution of
Committee of Management of an institution
recognized under U, P. Act II of 1921 is to
be carried out in accordance with a
Scheme of Administration prepared u/s 16A of the said Act and this Section does not
apply to basic school or a Junior High
School. For all these persons and in the
absence of any specific provisions in this
behalf-none having been pointed out to usmaintenance grant payable to the basic
school or Junior High School which has
been upgraded as High School cannot and
does not automatically become payable to
the recogned High School. Suppose after a
Basic School or a Junior High School has
been upgraded as a recognised High
School,
the
State
Government
stops
payment of the amount of maintenance
grant which was being paid to the Basic
School or the Junior High School, can the
recognized High school claim as a matter
of right that the said amount has become
automatically payable to it. The answer, in
the absence of any specific provision
permitting such automatic transformation,
so to speak will, in our opinion, have to be
in the negative. Such a recognized High
School will have to wait till maintenance
grant payable to it as a recognized High
School has been fixed as contemplated by
Section 2(c) of U.P. Act 24 of 1971.
Consequently, even if the maintenance
grant payable to a Basic School or a Junior
High School is continued to be paid to
those who were managing the erstwhile
Basic School or Junior High School it
cannot
be
said
that
the
upgraded
recognized High School is receiving any
maintenance grant as defined in Section
2(c) of U.P. Act 24 of 1971. In view of the
foregoing discussion our answer to both
the questions referred to us is in the
negative."

(ii) Dr.(Smt.) Sushila Gupta Vs.
The Joint Director of Education, Kanpur
596 INDIAN LAW REPORTS ALLAHABAD SERIES
and others [2005 SCC OnLine All 1183].
Relevant paragraph-28 is being quoted
below :-

"28. It is, thus, clear from all the
decisions cited herein above and the
provisions discussed herein above that a
Junior High School upgraded to the High
School/Intermediate level, the institution is
governed by the provisions of U.P.
Intermediate Education Act and Service
Rules as applicable to such institution,
have to be applied. There is no distinction
drawn between an aided or an unaided
school. The recognition of the institution is
by
itself
sufficient
to
exclude
the
applicability of the laws governing Junior
High School once the institution is
upgraded. It is for this reason that a special
transitory amending provision was brought
in by way of Section 13-A in U.P. Act No. 6
of 1979 discussed herein above to enable
such upgraded institution to continue to
receive the grant-in-aid that they were
receiving at the level of Junior High
School."

(iii) Ajay Pratap Rai Vs. District
Basic Education Officer, Jaunpur and
others [2007 SCC OnLine All 1485].
Relevant paragraphs-6, 7 and 8 are being
quoted below :-

"6. Replying to the aforesaid
submissions, Shri Khare has taken us to the
findings recorded by the learned Single
Judge with the aid of the Full Bench
decision in the case of State of U.P. and
Ors. v. District Judge, Varanasi and Ors.
1981 UPLBEC 336 and the decision of the
learned Single Judge in the case of Dr.Smt.
Sushila Gupta v. Regional Joint Director of
Education (2006) 1 AD 523 and has urged
that the entire claim of the appellant has to
be rejected in view of the findings recorded
by the learned Single Judge and, therefore,
the appeal deserves to be dismissed.

7. The learned Standing Counsel
has also made his submissions and has
Invited the attention of the Court to the
various definitions as contained in Act,
1972, the Rules, 1978, the U.P. Junior
High School (Payment of Salaries of
Teachers and other Employees) Act, 1978,
the provisions of the Act, 1921 and the U.P.
Secondary Education Services Selection
Boards Act, 1982 (hereinafter called the
''Act 1982'') and has urged that the
directions given by the learned Single
Judge in respect of the claim on the post of
the Head of the Institution do not deserve
any interference as no ground has been
made out either in law or in fact for any
further judicial intervention.

8. Having considered the rival
submissions, we find that the learned Single
Judge after having noticed the Full Bench
decision in the case of State of U.P. and
Ors. (supra) and the judgment of the
learned Single Judge in Sushila Gupta
(supra) has held that once a Junior High
School stands upgraded as a High School
or an Intermediate College, then in that
event the post of the Head of the Institution
has to be filled up in accordance with the
procedure prescribed under the Act, 1921
read with Act, 1982. It has been held that in
such eventuality the Junior High School
looses its identity as such and upon
upgradation of the Institution, there cannot
be any appointment of a Head Master in a
Junior High school under Rules 1978. For
this, the learned Single Judge has placed
reliance upon the decisions referred to
therein and has also indicated the ratio of
the decision in Sushila Gupta''s case to be
fully applicable to the facts of the present
controversy."
8 All. C/M Inter College Para Hamidpur, Pratapgarh, Thru. Manager Vs. Km. Poonam Sharma
597

(iv) Manju Awasthi and others
Vs. State of U.P. and others [MANU/UP/
3739/ 2012. Relevant paragraph-72 is
being quoted below :-

"72.
After
the
Full
Bench
judgment, the Legislature inserted Section
13-A, the consequence of which is for
limited purpose that is for payment of
salary, the provisions of 1978 Act applies
and the service conditions of teachers of
High School have to be governed by 1921
Act and 1982 Act. Before the Division
Bench in Ajay Pratap Rai Vs. District Basic
Education Officer & others 2007(4) ADJ
357, the issue as to whether after
upgradation of an institution as High
School, U.P. Recognized Basic Schools
(Junior High Schools) (Recruitment and
Conditions of Service of Teachers) Rules,
1978 shall apply or appointment is to be
made in accordance with 1921 Act and
1982
Act
came
for
consideration.
Following was laid down by the Division
Bench in paragraphs 8,10,11 and 16:

"8. The learned Standing Counsel
has also made his submissions and has
Invited the attention of the Court to the
various definitions as contained in Act, 1972,
the Rules, 1978, the U.P. Junior High School
(Payment of Salaries of Teachers and other
Employees) Act, 1978, the provisions of the
Act, 1921 and the U.P. Secondary Education
Services
Selection
Boards
Act,
1982
(hereinafter called the 'Act 1982') and has
urged that the directions given by the learned
Single Judge in respect of the claim on the
post of the Head of the Institution do not
deserve any interference as no ground has
been made out either in law or in fact for any
further judicial intervention.

10. The issue raised by the
appellant, therefore, in respect of the status
of the institution as still to be that of a
Junior High School for the purposes of
appointment on the post of Head of the
Institution, has to be rejected for the
reasons given by the learned Single Judge
with which we find ourselves to be in full
agreement with, The word "upgradation" in
its
normal
connotation
means
improvement; enhancement of status; more
efficient. The word "grade" is derived from
the latin word 'gradus' which means
degree, step. In Hari Nandan Sharan
Bhatnagar
v.
S.N.
Dixit
and
Anr.
MANU/SC/0430/1969 : [1970]1SCR421 ;
and A.K. Subraman v. Union of India and
Ors.
MANU/SC/0360/1974
:
(1975)ILLJ338SC , the Apex Court held
'grade' means rank, position in a scale, a
class or position in a class according to the
value. It means a degree in the scale of
rank, dignity, proficiency etc. (Section 15 of
Code of Civil Procedure, 1908). The word
'upgradation' therefore means improvement
in degree, raising of status, rank, quality or
in value. It is an improvement in
proficiency and reflects a rising gradient.
The institution was admittedly a Junior
High School and was raised to the status of
a High School in 1993 and to that of
Intermediate College in the year 1999. It is
undisputed that upon being upgraded as a
High School, the institution has been
recognized as such under the provisions of
Act,
1921. This
undisputed
position,
therefore, clearly establishes that the
institution ceases to be a Junior High
School and for the purposes of appointment
of Head of the Institution, the appointment
can only be made by resorting to the
provisions as indicated in the judgment
rendered in Sushila Gupta's case (supra).
The observations made by the Full Bench
in the case of State of U.P. v. District Judge
Varanasi (supra), which have been quoted
in detail by the learned Single Judge are
598 INDIAN LAW REPORTS ALLAHABAD SERIES
worth reiterating to the effect that Basic
School or a Junior High School is different
from a High School or an Intermediate
College as the same institution cannot be
called Basic School or a Junior High
School as well as a High School or an
Intermediate College. The Full Bench
above referred to held as under:

On a Basic School or a Junior
High School being upgraded as a High
School or Intermediate College, the identity
of the institution known as Basic School or
a Junior High School is lost and it ceases
to exist as a legal entity and in its place
another institution with a legal entity
comes into being. One cannot be equated
with the other.

11. The aforesaid observations of
the Full Bench as explained in the
judgment Sushila Gupta's case, therefore,
leave no room for doubt that the selection
and appointment on the post of Head of the
Institution which has been cognized as a
High School and Intermediate College
cannot be made under the provisions which
are applicable to a Junior High School. In
Sushila Gupta (supra), the learned Single
Judge considered all the Amendment made
in the Statute and held that in spite of so
many
amendments
to
the
statutory
provisions, the proposition of law laid
down by the above referred to Full Bench
remained the same. Mr. Saxena has not
brought to our notice any provision which
have altered the legal position.

16.The contention with regard to
the direction of the learned Single Judge in
respect of lodging a First Information
Report also does not deserve to be
interfered with as the learned Single Judge
having recorded his finding in respect of
the manipulations in the publication in the
newspaper, has concluded that the same
requires
to
be
investigated
by
an
investigating agency. We do not find any
error in the same as, prima facie, there was
ample material before the learned Single
Judge to have arrived at the aforesaid
conclusion.
We
have
ourselves
also
perused the two copies of the Hindi Daily
"Dainik Manyavar" alleged to have been
published on Monday, the sixth of January,
2003. On page two of the said newspaper
there is a clear difference as the same
space in one copy carries a news item of
arrest of two persons whereas the other
copy contains the advertisement under
scrutiny. The same therefore leaves no
room for a genuine doubt that fraud has
been apparently practiced. Both copies at
page four disclose the name of the Editor
Sri Om Prakash Jaiswal and recite the
name and address of Mamta Printers,
Khwajgi Tola, Jaunpur as Publishers. The
same further discloses the name of the
printing press as Bharatdoot Press, 6
Rampuri, Varanasi. The telephonic and Email address are also indicated therein.
The Investigating agency shall also take
notice of the above while initiating
proceedings and copies of the newspapers
shall be made available and obtained for
the said purpose as the involvement of the
publishing and printing agency in this
matter
cannot
be
ruled
out.
The
investigation shall forthwith be set into
motion as per the directions of the learned
Single Judge.""

(v)
Standard
Intermediate
College Mau-Aima and others Vs. State of
U.P. and others [MANU/UP/ 2018/ 2019].
Relevant paragraphs-1, 15, 16, 17, 18, 19,
20 are being quoted below :-

"1. All these appeals have arisen
from a common judgment dated 16.01.2019
8 All. C/M Inter College Para Hamidpur, Pratapgarh, Thru. Manager Vs. Km. Poonam Sharma
599
passed by learned Single Judge deciding
nine Writ Petitions collectively. Basic issue
raised in all these appeals is that Junior
High School when granted recognition
under Section 7-A(a) of U.P. Intermediate
Education Act, 1921 (hereinafter referred
to as "U.P. Act, 1921") and upgraded to
High School, if any vacancy of Teacher
arises in such Institution subsequently
whether it would be filled in following
procedure laid down under U.P. Basic
Education Act, 1972 (hereinafter referred
to as "U.P. Act, 1972") read with U.P.
Recognized Basic Schools (Junior High
Schools) (Recruitment and Conditions of
Service
of
Teachers)
Rules,
1978
(hereinafter referred to as "Rules, 1978")
or for administrative and other purposes
the Institution would be deemed to be
governed by provisions of U.P. Act, 1921
and recruitment would be governed by
provisions of U.P. Secondary Education
Services
Selection
Board
Act,
1982
(hereinafter referred to as "U.P. Act,
1982"). Learned Single Judge has taken the
view that once Institution is upgraded or
recognition upto High School is granted
under Section 7-A(a), provisions of U.P.
Act, 1921 would be attracted and in such a
case any vacancy of teaching staff caused
in such Institution, would have to be filled
in as per the provisions of U.P. Act, 1982.

15. In all these Appeals, basic
submission is that despite recognition
having been granted by U.P. Board upto
High School and Intermediate under
Section
7-A
of
U.P.
Act,
1921,
appointments of teaching and non-teaching
staff in respect to the classes upto Junior
High School, Institution would continue to
be governed by the provisions of U.P. Act,
1972 read with Rules, 1978 and U.P. Act,
1921 read with U.P. Act, 1982 would not
apply. It is in this regard, judgment of
learned Single Judge, taking an otherwise
view, has been challenged.

16. We find that real issue need
be considered by this Court to find out
whether judgment of learned Single Judge
is correct or not is "whether on recognition
as High School, a Junior High School or
Basic School would loose its identity and
would
be
governed
by
provisions
applicable to Secondary Schools or in
respect to posts upto Junior High School, it
would
continue
to
be
governed
by
provisions applicable to a Junior High
School."

17. We find that this aspect is
covered by a Division Bench Judgment of
this Court in Ajay Pratap Rai Vs. District
Basic Education Officer 2007 (4) ADJ 357
(DB), wherein Court has held that once an
Institution is upgraded to High School
level, it would cease to exist as a legal
entity as a Junior High School and,
therefore, provisions applicable to a Junior
High School would not be applicable to
govern the same and, on the contrary, it
would
be
governed
by
provisions
applicable to a High School. Court in para10 of the judgment said as under:

"10.
From
the
aforesaid
discussions, it is evident that status of an
institution after being upgraded looses its
significance and the lower section of the
school
after
upgradation
completely
merges into the upgraded institution.
Interpreting the provisions otherwise would
lead to complete absurdity and create a
chaotic situation even for governance of
the different parts of the same institution.
An institution cannot have a multiple Code
for its governance. There is no provision
permitting continued applicability of the
laws in relation to a Junior High School
600 INDIAN LAW REPORTS ALLAHABAD SERIES
even
after
its
upgradation."(emphasis
added)

18. This view is fortified from the
fact that legislature had inserted Section
13-A in U.P. Act, 1978 providing for
payment of salary to Teachers and other
employees which has received grant-in-aid
if it is upgraded and recognition is granted
upto High School level. This provision was
inserted to take care of a situation where
without any grant-in-aid, a Junior High
School
which
is
in
grant-in-aid,
is
upgraded and recognition is granted upto
High Schol level and since it becomes a
secondary
educational
institution,
thereupon previsions of Junior High School
will not be applicable, hence to obviate the
difficulty in payment of salary to Teachers
working upto Junior High School, who
were already in grant-in-aid, Section 13-A
was inserted and this also supports the
view that after upgradation/ recognition
granted to a Junior High School upto High
School level, Statutes applicable to an
institution which is upto Junior High
School, become inapplicable.

19. Further this issue that a
Junior High School when upgraded or
recognized upto High School looses its
identity as Junior High School has also has
been considered by a Full Bench in State of
U.P. and others Vs. District Judge,
Varanasi and others 1981 UPLBEC 336,
and it has been held that after a basic
school or a Junior High School is upgraded
as a High School or an Intermediate
College, the identity of Institution as basic
school or Junior High School is lost. It
ceases to exist as a legal entity and in its
place another institution with a new legal
entity comes into being. In fact Section 13-A
was inserted after the aforesaid judgment of
Full Bench so as to continue payment of
salary from State Exchequer under the
provisions of Act, 1978.

20. The view taken by Division
Bench in Ajay Pratap Rai Vs. District Basic
Education Officer (supra) has been reiterated
by another Division Bench in Manju Awasthi
and others Vs. State of U.P. and others 2013
(3) ADJ 64 (DB). Once a Junior High School
ceased to continue with a separate entity,
provisions
relating
to
selection
and
appointment of Teachers applicable to Junior
High School will not apply and entire
Institution as a whole will be a Secondary
Educational Institution and governed by
provisions of Statute applicable to a
Secondary Institution. Therefore, the view
taken by learned Single Judge, we find, is
consistent with the authorities discussed
above. We find no legal infirmity therein so
as to warrant interference in these appeals."

(vi) Sharda Prasad Yadav Vs.
DIOS Deoria and others [2002 (49) ALR
800]. Relevant paragraphs-16 to 19 are
being quoted below :-

"16.
As
regards
the
third
contention of the petitioners, it is apparent
from the records of this case as well as from
the contention of the parties that the
appointments of the petitioners were not as
per Rules. There were only fourteen
sanctioned posts of class-IV employee and
the District Inspector of Schools, Deoria was
not at all applied to grant financial sanction
for four additional posts, which has been
made against the rules. The contention of the
petitioners that their appointments have been
made on the posts in accordance with law by
the Principal of the institution, is not correct.

17. Apart from the above, under
Regulation 101 it is mandate upon the
appointing authority not to pay the non-
8 All. C/M Inter College Para Hamidpur, Pratapgarh, Thru. Manager Vs. Km. Poonam Sharma
601
teaching
staff
except
without
prior
approval of the District Inspector of
Schools. The use of word shall in the
Regulation 101 makes it obligatory upon
the appointing authority to obtain prior
approval from the D.I.O.S. before filling
any vacancy of non-teaching post in the
institution. Further use of word 'except'
with prior approval of the D.I.O.S. do not
give discretionary power to the appointing
authority, Regulation 101 is as under:

"101. The appointing authority
shall not fill any vacancy in the non-
teaching staff of a recognized aided
institution except with the prior approval of
the inspector."

18. In Amit Kumar v. D.I.O.S.,
Jaunpur [ 2001 (42) ALR 153.] , it has
been held by a Single Judge of this Court
that the Regulation 101 cannot be treated
to be directory and this interpretation
would result in giving power to the
appointing
authority
for
making
appointment and thereafter obtain financial
sanction. This Court held:

"If Regulation 101 is treated to be
directory then the appointing authority
could make appointment on non-teaching
post even without prior approval of the
DIOS. It would result in giving power to
the
appointing
authority
to
make
appointment first and thereafter obtain
financial approval. This was not the
intention of legislature or the Rule making
authority. And it clearly intended that
before
makingany
appointment
the
appointing authority must obtain prior
approval of the DIOS. The legislative intent
has to be given effect to while interpreting
regulatory provisions of Regulation 101.
Regulations 103 to 106 further make it
clear that the Regulation 101 cannot be
construed as permissive or directory.
Further
the
procedural
safeguard
contained in Regulation 101, making it
obligatory for the appointing authority in
matter of making appointment on nonteaching post, not to fill the vacancy except
with the prior approval of the DIOS, has an
element of public interest."

19. Since the petitioners have
contended that they are still working since
the date of their appointment by the
Principal of the institution, they may raise
their prayer of salary before the Principal
of the institution. This Court will not
regularize their appointments by directing
the D.I.O.S. to grant financial sanction to
the appointments of the petitioner in the
aforesaid circumstances."

(vii) Shailendra Pratap Singh
Vs. State of U.P. and others [2024 SCC
OnLine All 2138]. Relevant paragraphs-3,
32 and 33 are being quoted below :-

"3. Factual matrix of the case is
that a post of clerk became vacant due to
retirement of regular clerk, namely, Mohan
Lal Sharma in the Uchchatar Madhyamik
Vidyalaya, Para Hamidpur Pratapgarh
(hereinafter referred to as 'the institution'),
on 30.9.2011.