# C/M Manorama Kanya Junior High School, Moradabad & Anr v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 658
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-24
- **Case number:** Writ A No. 5418 of 2019
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-manorama-kanya-junior-high-school-moradabad-anr-v-state-of-u-p-ors-46608
- **Pages:** 10

## Headnote

A. Service Law - Education - Abolition of posts
of Clerk and Class IV employees - Uttar
Pradesh Junior High Schools (Payment of
Salaries of Teachers and other Employees) Act,
1978 - Section 9 - Uttar Pradesh Recognized
Basic
Schools
(Junior
High
Schools)
(Recruitment and Condition of Service of
Ministerial Staff and Group 'D' Employees)
Rules, 1984 - Right of Children to Free and
Compulsory Education (RTE) Act, 2009 -
Sections 19, 25 & 27 - Constitution of India -
Article 21-A.

The GO dated 15.01.2019 completely omits to
consider the requirement of services of Class III and
Class IV employees in junior high schools and makes
no provision for such services. It is also silent about
the manner in which such services would be provided
in the school in the absence of these employees.

Constitution of India - Article 21-A - Quality
Education cannot be provided without caring to
provide for necessary supporting services and
staff in keeping with the requirements of
Schedule. Basic ingredients and requirements of
Schedule to the Act of 2009 have been completely
overlooked by the State. This shows complete lack of
application of mind on the part of the State
Government.
The
failure
has
direct
adverse
consequence for the existence of schools. The
functioning of these institutions would get paralyzed
11 All. C/M Manorama Kanya Junior High School, Moradabad & Anr. Vs. State of U.P. & Ors.
659
in absence of supporting staff. This non-consideration
renders the impugned policy of the State wholly
irrational, arbitrary and frustrate the very object
sought to be achieved by 86th Constitutional
Amendment, the Act of 2009 and the policy of State
for strengthening the school network. A rational
policy cannot exist without caring for concerns
essential for smooth functioning. All vacancies
accruing on the posts of Clerk and Class IV employee
in schools are lying vacant since 15.01.2019 without
any alternative mechanism provided for by the State
for catering to service hitherto provided by them. The
fundamental right of children in schools are,
therefore,
compromised
rendering
the
impugned
action
wholly
arbitrary
and
unconstitutional. (Para 29, 31, 33)

B. Schedule appended to Sections 19 & 25 of
the Act of 2009 - The emphasis in the Act of
2009
is
w.r.t.
teaching
activities
and
therefore strength of teachers has been
specified.
It
does
not
mean
that
the
requirement of supporting clerical and classIV staff either vanishes or schools can
provide quality education in its absence.

It appears that while issuing the GO dated
15.1.2019 the State has not cared to examine
the Schedule in its entirety which includes
various other essentials for a school. It has merely
noticed the part of Schedule which specifies the
teacher strength and has jumped to the conclusion
that all other posts in the school has been rendered
redundant. No alternative mechanism has been
suggested in GO dated 15.1.2019 to cater to needs
of services and suppor

## Text

658 INDIAN LAW REPORTS ALLAHABAD SERIES
must have direct nexus with the discharge of
public duty. It is undisputedly a public law
action which confers a right upon the aggrieved
to invoke extraordinary writ jurisdiction under
Article 226 for a prerogative writ. Individual
wrongs or breach of mutual contracts without
having any public element as its integral part
cannot be rectified through petition under
Article 226. Wherever Courts have intervened in
exercise of jurisdiction under Article 226, either
the service conditions were regulated by
statutory provisions or the employer had the
status of 'State' within the expansive definition
under Article 12 or it was found that the action
complained of has public law element.

15. On specific query, learned counsel for
the petitioner does not dispute that the
conditions of service governing the petitioner
are not statutory. The terms and conditions of
employment are purely contractual governed
under rules framed by the Bank.

16. In view thereof, the preliminary
objection raised by learned Counsel for the
respondent that the writ petition against the
impugned termination order would not lie within
the domain of writ jurisdiction under Article 226
of the Constitution of India is sustained and
upheld.

17. The writ petition is, accordingly,
dismissed, being not maintainable.

18. Dismissal of the writ petition, however,
shall not preclude the petitioner to take remedy
against
the
impugned
order
before
the
appropriate authority/forum, if so advised, in
accordance with law.

19. No Cost.
----------
(2021)11ILR A658
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.09.2021

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No. 5418 of 2019
connected with
Writ A Nos. 15523 of 2019 and 2593 of 2021

C/M Manorama Kanya Junior High School,
Moradabad & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Prabhakar Awasthi

Counsel for the Respondents:
C.S.C., Sri Shyam Krishna Gupta

A. Service Law - Education - Abolition of posts
of Clerk and Class IV employees - Uttar
Pradesh Junior High Schools (Payment of
Salaries of Teachers and other Employees) Act,
1978 - Section 9 - Uttar Pradesh Recognized
Basic
Schools
(Junior
High
Schools)
(Recruitment and Condition of Service of
Ministerial Staff and Group 'D' Employees)
Rules, 1984 - Right of Children to Free and
Compulsory Education (RTE) Act, 2009 -
Sections 19, 25 & 27 - Constitution of India -
Article 21-A.

The GO dated 15.01.2019 completely omits to
consider the requirement of services of Class III and
Class IV employees in junior high schools and makes
no provision for such services. It is also silent about
the manner in which such services would be provided
in the school in the absence of these employees.

Constitution of India - Article 21-A - Quality
Education cannot be provided without caring to
provide for necessary supporting services and
staff in keeping with the requirements of
Schedule. Basic ingredients and requirements of
Schedule to the Act of 2009 have been completely
overlooked by the State. This shows complete lack of
application of mind on the part of the State
Government.
The
failure
has
direct
adverse
consequence for the existence of schools. The
functioning of these institutions would get paralyzed
11 All. C/M Manorama Kanya Junior High School, Moradabad & Anr. Vs. State of U.P. & Ors.
659
in absence of supporting staff. This non-consideration
renders the impugned policy of the State wholly
irrational, arbitrary and frustrate the very object
sought to be achieved by 86th Constitutional
Amendment, the Act of 2009 and the policy of State
for strengthening the school network. A rational
policy cannot exist without caring for concerns
essential for smooth functioning. All vacancies
accruing on the posts of Clerk and Class IV employee
in schools are lying vacant since 15.01.2019 without
any alternative mechanism provided for by the State
for catering to service hitherto provided by them. The
fundamental right of children in schools are,
therefore,
compromised
rendering
the
impugned
action
wholly
arbitrary
and
unconstitutional. (Para 29, 31, 33)

B. Schedule appended to Sections 19 & 25 of
the Act of 2009 - The emphasis in the Act of
2009
is
w.r.t.
teaching
activities
and
therefore strength of teachers has been
specified.
It
does
not
mean
that
the
requirement of supporting clerical and classIV staff either vanishes or schools can
provide quality education in its absence.

It appears that while issuing the GO dated
15.1.2019 the State has not cared to examine
the Schedule in its entirety which includes
various other essentials for a school. It has merely
noticed the part of Schedule which specifies the
teacher strength and has jumped to the conclusion
that all other posts in the school has been rendered
redundant. No alternative mechanism has been
suggested in GO dated 15.1.2019 to cater to needs
of services and supporting staff to the schools.
Need of clerical and Class-IV employees is inbuilt in
the present concept of school itself. (Para 30, 31,
32)

C. Right of Children to Free and Compulsory
Education (RTE) Act, 2009: Section 27 - No
teacher engaged in the school shall be
deployed for non-educational purposes. The
students coming to school are also not expected to
perform the work of sweeping the floors and
cleaning the toilets etc. in the school. (Para 20 to
22)

D.
Uttar
Pradesh
Junior
High
Schools
(Payment of Salaries of Teachers and other
Employees)
Act,
1978
-
Uttar
Pradesh
Recognized
Basic
Schools
(Junior
High
Schools)
(Recruitment
and
Condition
of
Service of Ministerial Staff and Group 'D'
Employees) Rules, 1984 - Even prior to
introduction of Article 21-A, the State was
conscious of its obligation to support the cause of
education and, therefore, with an intent to regulate
appointment of teachers as well as Clerks and
other supporting staff in privately managed aided
junior high schools it enacted the Rules of 1978
and also the Rules of 1984. These rules have
withstood the test of times over the last several
decades. With the introduction of Article 21-A
as also the Act of 2009 the State is expected
to improve the setup already available with
the school and not to curtail it. (Para 23)

The GO dated 15.1.2019, insofar as it declares
Class-III and Class-IV posts in junior high schools
to be a dead cadre, is found to be wholly arbitrary,
irrational, suffering from non application of mind
and violative of Articles 14 & 21-A of the
Constitution of India as also in teeth of the Act of
2009. The GO to that extent, accordingly, stands
quashed. (Para 34)

Writ petitions allowed. (E-4)

Present
petitions
challenge
Government
Order dated 15.01.2019.

(Delivered by Hon'ble Ashwani Kumar Mishra, J.)

1. This bunch of writ petitions involves
common questions of law and have been heard
together. With the consent of learned counsel for the
parties they are being disposed of by this common
judgment at the admission stage itself. Writ Petition
No.5418 of 2019, in which the Government Order
dated 15.01.2019 is challenged, is taken as the lead
case.

2. I have heard Sri Prabhakar Awasthi, learned
counsel for the petitioner in the leading case and Sri
Neeraj Tripathi, learned Additional Advocate
General assisted by Sri Vineet Pandey, learned Chief
Standing Counsel for the State and its authorities.

3.

The
question
that
arises
for
consideration in this bunch of cases is whether
660 INDIAN LAW REPORTS ALLAHABAD SERIES
the posts of Clerk and Class IV employee,
already created in privately managed recognized
junior high schools (hereinafter referred to as
''schools'), are no longer required and, therefore,
are liable to be abolished by declaring such posts
as dead-cadre? Consequential refusal by the
State authorities to fill up such posts is also
assailed.

4. The petitioner in the leading writ
petition is the Committee of Management of
Manorama Kanya Junior High School, Linepar,
Moradabad. It has established a junior high
school which is duly recognized by the District
Basic Education Officer, Moradabad. The
institution is receiving aid from State for
payment of salary to its teaching and nonteaching staff in accordance with provisions of
Uttar Pradesh Junior High Schools (Payment of
Salaries of Teachers and other Employees) Act,
1978 (hereinafter referred to as ''Act of 1978').
The recruitment of teachers in the institutions is
regulated by the Uttar Pradesh Recognized Basic
Schools (Junior High Schools) (Recruitment and
Conditions of Service of Teachers) Rules, 1978
(hereinafter referred to as ''Rules of 1978').
Recruitment of Clerical and Class IV Staff in the
Junior High School is regulated by the Uttar
Pradesh Recognized Basic Schools (Junior High
Schools) (Recruitment and Conditions of
Service of Ministerial Staff and Group ''D'
Employees) Rules, 1984 (hereinafter referred to
as ''Rules of 1984').

5. In the leading petition there existed a
sanctioned post of Clerk which was occupied by
one Suresh Gupta. He retired on 31.12.2016. As
per the requirement in law the petitioner
institution intimated vacancy to the District
Basic
Education
Officer,
Moradabad
for
proceeding with recruitment. The request in that
regard was not considered and the petitioner had
to approach this Court by filing Writ Petition
No.11182 of 2018. A direction was issued to the
District Basic Education Officer concerned to
consider grant of permission to fill up the post.
The permission, however, came to be declined
by the District Basic Education Officer vide his
order dated 18.03.2019, on the ground that new
appointments on Clerical and Class-IV posts in
junior high schools are no longer possible in
view
of
the
Government
Order
dated
15.01.2019.

6.

The
Government
Order
dated
15.01.2019 has determined the strength of
teaching and non-teaching staff in schools
supposedly in consonance with the provisions
contained in the Right of Children to Free and
Compulsory
Education
(RTE)
Act,
2009
(hereinafter referred to as ''Act of 2009'). It
records that post of teaching and non-teaching
staff in non-governmental primary and junior
high schools (Hindi and English medium) were
sanctioned earlier vide Government Orders
dated 02nd July, 1990 and 08th May, 2013 but
necessity
has
now
arisen
for
a
fresh
determination of strength of teaching and nonteaching staff on account of promulgation of the
Act of 2009.

7. Following posts were created in schools
vide Government Order dated 02nd July, 1990:

(a) Headmaster- one post;

(b) Assistant Teacher- four posts
(including one post of teacher in Science and
one in Language);

(c) Clerk- one post; and

(d) Class-IV - one post.

8. With reference to Sections 19 and 25 of
the Act of 2009, as also the Schedule appended
thereto, it is recorded in the Government Order
dated 15.01.2019 that as the posts of Clerk and
Class IV employee are not included in the
Schedule, therefore, there exists no justification
to retain these posts in the schools. Sections 19
and 25 of the Act of 2009 alongwith Schedule
since are relied upon by the State respondents as
11 All. C/M Manorama Kanya Junior High School, Moradabad & Anr. Vs. State of U.P. & Ors.
661
the reason for issuing Government Order dated
15.01.2019, therefore, such provisions are
reproduced hereinafter:

"19. Norms and standards for school.--
(1) No school shall be established, or
recognised, under section 18, unless it fulfils the
norms and standards specified in the Schedule.

Where a school established before the
commencement of this Act does not fulfil the
norms and standards specified in the Schedule, it
shall take steps to fulfil such norms and
standards at its own expenses, within a period of
three
years
from
the
date
of
such
commencement.

(3) Where a school fails to fulfil the
norms and standards within the period specified
under sub-section (2), the authority prescribed
under sub-section (1) of section 18 shall
withdraw recognition granted to such school in
the manner specified under sub-section (3)
thereof.

(4) With effect from the date of
withdrawal of recognition under sub-section (3),
no school shall continue to function.

(5) Any person who continues to run a
school after the recognition is withdrawn, shall
be liable to fine which may extend to one lakh
rupees and in case of continuing contraventions,
to a fine of ten thousand rupees for each day
during which such contravention continues.

25. Pupil-Teacher Ratio.--(1) 1[Within
three years] from the date of commencement of
this Act, the appropriate Government and the
local authority shall ensure that the PupilTeacher Ratio, as specified in the Schedule, is
maintained in each school.
(2) For the purpose of maintaining the PupilTeacher Ratio under sub-section (1), no teacher
posted in a school shall be made to serve in any
other school or office or deployed for any noneducational purpose, other than those specified
in section 27.
662 INDIAN LAW REPORTS ALLAHABAD SERIES
9. Referring to the above provisions, the
Government Order further records that since
large number of institutions have already been
established in the State including institutions
recognized by the C.B.S.E. and I.C.S.E. Boards
it has resulted in decline of strength of students
in the schools. It is for the above reasons that
strength of teaching and non-teaching staff has
been redetermined in keeping with the Schedule
appended to Sections 19 and 25 of the Act of
2009. Only three posts of Assistant Teachers are
retained in each institution and where the
students' strength is more than 100 a full time
post of Headmaster has been retained. The
student teacher ratio is fixed as 35:1 and the
teaching post(s) sanctioned earlier, in excess of
such ratio, is required to be discontinued. Para 7
of the Government Order dated 15.01.2019 is
relevant for the present purposes and is
reproduced hereinafter:

"7- उपयुदक्त सोंर्भद में मुझे यह भी कहने
का वनर्ेि हुआ है वक चूूँवक वनःिुल्क एिों अवनिायद
बाल विक्षा अवर्कार अवर्वनयम-2009 के मान एिों
मानक ों के अोंतगदत विक्षणेत्तर कमदचाररय ों के पर्
अनुमन्य नहीों वकये गये है और प्रर्ेि में सोंचावलत
45625 पररषर्ीय उच्च प्राथवमक विद्यालय ों (कक्षा-6 से
कक्षा-8) में समूह 'ग' एिों 'घ' के पर् सृवजत नहीों वकये
गये है। अतः वनःिुल्क एिों अवनिायद बाल विक्षा
अवर्कार अवर्वनयम- 2009 के मान एिों मानक ों के
अनुरूप ही मान्यता प्राप्त अिासकीय विद्यालय ों के
अोंतगदत स्वीकृत समूह 'ग' एिों 'घ' के विक्षणेत्तर पर् ों
क एतद्द्िारा इस प्रवतबोंर् के साथ मृत सोंिगद घ वषत
वकया जाता है वक इन पर् पर ितदमान समय में
कायदरत कावमदक अपनी सेिावनिृवत्त तक यथाित
कायदरत रहेगें, तथा उनकी सेिावनबृवत्त मृत्यु अथिा
वकसी अन्य कारण से पर् ररक्त ह ने पर उनके द्वारा
र्ाररत पर् स्वयोंमेि समाप्त समझे जायेंगे। मृतक
आवश्रत ों के वनयमानुसार समाय जन के प्रकरण ों में
विक्षणेत्तर पर् ों पर उक्तानुसार समाप्त ह ने विषयक
प्रवतबोंर् मण्डलीय सवमवत द्वारा विवथलनीय ह गें।

कृपया उपयुदक्त आर्ेि ों का कडाई से
अनुपालन वकया जाना सुवनवश्चत करें, तथा कृत
कायदिाही से अिगत कराये।"

10. According to the respondent State since
no post of Clerk and Class-IV employee is
included in the Schedule to Section 19 and 25 of
the Act of 2009, as such it would be presumed
that such posts are not to be created/retained in
the schools imparting education to students in
the age group of 11 to 14.

11. Sri Prabhakar Awasthi, appearing for
the petitioner contends that the policy contained
in Government Order dated 15.01.2019 is
wholly irrational and is based on complete
misconstruction of the provisions of Act of
2009. He places reliance upon the 86th
Amendment to the Constitution of India
whereby Article 21-A has been inserted to
provide for fundamental right to education for
children between 6 to 14 years. It is urged that
the State is under constitutional obligation to
provide free and compulsory education to all
children in the age group of 6 to 14 years in such
manner as the State may, by law, determine. It is
in furtherance of Article 21-A that the Act of
2009 has been promulgated.

12. It is contended that Schedule to
Sections 19 and 25 only lays down the minimum
norms and standard for a school for different
classes of institutions and refers only to the
teaching staff. It is also submitted that the Act of
2009 nowhere provides that there would be no
necessity of Clerical and Class-IV employee in
the schools or that the posts already created in
the schools for them be abolished. It is then
argued that a Class-IV employee performs
various essential works like gardener, sweeper,
watchman etc. without whom any school cannot
function. Similarly, a clerical employee would
equally be necessary for proper maintenance of
records of school and process salary and other
11 All. C/M Manorama Kanya Junior High School, Moradabad & Anr. Vs. State of U.P. & Ors.
663
bills etc. It is further urged that the Government
Order dated 15.01.2019 absolutely omits to
address these important requirements of school
and shows complete insensitivity on part of the
State to the cause of education in school. Sri
Awasthi further argues that the State may have
the right to determine strength of teaching and
non-teaching
staff
depending
upon
the
requirement in each school, but without
undertaking a comprehensive exercise to assess
the actual requirement of a school, on the basis
of objective criteria, the abolition of posts only
on the ground that the Schedule to Section 19
and 25 of the Act of 2009 do not include posts of
Clerk, would be arbitrary.

13. On behalf of the respondent State Sri
Neeraj Tripathi, learned Additional Advocate
General states that the object behind issuance of
the Government Order dated 15.01.2019 is
merely to regulate the schools in conformity
with the provisions of the Act of 2009, and since
the Schedule omits to provide for engagement of
Clerical and Class-IV employee, therefore, the
State has rightly treated such posts to be deadcadre. It is also submitted that creation or
abolition of posts being a matter of policy needs
no interference under Article 226 of the
Constitution of India.

14. It is in the context of the above
arguments that the issue formulated above falls
for determination by this Court.

15. By adding Article 21-A in the
Constitution the Parliament recognized the
fundamental right to education for children in
the age group of 6-14 years by providing
compulsory free education as a building block to
quality elementary education with focus on
making the child free of fear, trauma and anxiety
through child friendly centric learning. The fact
that such a fundamental right has been
incorporated almost after 50 years of advent of
Indian Republic highlights the importance of
education as a tool for securing justice, liberty
and equality guaranteed to its citizens. The State
is, therefore, under constitutional obligation to
provide for free and compulsory education to
children between the age of 6 to 14 years.

16. The schools consist of classes 6 to 8.
The students in these classes are usually in the
age group of 11 to 14 years and are expected to
be provided quality education necessary for
fulfilling the obligation created under Article 21A. The Schedule lays down the norms and
standards for such a school. In addition to the
teaching staff it provides for all weather building
consisting of atleast one classroom for every
teacher
and
an
office-cum-store-cum-head
teacher's room; barrier free access; separate
toilets for boys and girls; safe and adequate
drinking water facility to all children; a kitchen
where mid-day-meal is cooked in the school;
playground; arrangement for securing the school
building by boundary wall or fencing. It also
provides for teaching learning equipment and a
library providing newspaper, magazines and
books on all subjects, including story books. The
schedule also provides for play material, games
and sports equipment etc.

17. The State being enjoined with the
responsibility of providing schools to all its
children in the age group of 11-14 years will
have to necessarily take into account the norms
and standards fixed for it in the Schedule and
determine its requirements accordingly. A
school is not just the teacher and students. It
means a school building secured by a boundary,
toilets, provision of drinking water, kitchen,
playground,
teaching
learning
equipments,
library with newspapers, magazines and books
on all subjects including story books.

18. The need to have a school building
secured by a boundary by wall or fence would
also include services of a person to act as
Watchman/Chowkidar. Someone will have to
664 INDIAN LAW REPORTS ALLAHABAD SERIES
open the gates of school in the morning and
close it after school hours, clean the toilets,
arrange for clean drinking water, ensure upkeep
of playground and sweep the floors etc. etc.
These services are an integral part of the school
and in the absence of any class IV employee it
would be difficult to imagine as to how these
services would be provided in a school.

19. Similarly, the school has also to
maintain various records including details of
students in various registers, documents relating
to date of birth of students enrolled in the
school, maintaining records of attendance of
students as also the teachers and staff,
maintaining service books of teachers and staff,
maintaining and operating accounts of school,
processing admission and also preparing transfer
certificate, undertaking various purchases of
equipments, sport goods, books, stationery and
maintaining its records etc. etc. In the absence of
a separate Librarian the work of library can also
be looked after by the clerical staff.

20. It is also to be kept in mind that the Act
of 2009 specifically provides vide section 27 of the
Act of 2009 that no teacher engaged in the school
shall be deployed for non-educational purposes.
The students coming to school are also not
expected to perform the work of sweeping the
floors and cleaning the toilets etc. in the school.
The
Government
Order
dated
15.01.2019
completely omits to consider the requirement of
services in the school as per the Schedule. The
Government Order makes no provision for such
services. It is also silent about the manner in which
such services would be provided in the school in
the absence of a Class IV employee. A period of
more than two years have expired since the
issuance of Government Order, dated 15.1.2019
but no alternative mechanism appears to have been
worked out to cater to such services.

21. The State Government considering
the above requirements had therefore created
one post of Clerk and a Class IV employee in
each of the schools. This skeleton staff was
provided for in each institution for the last
several decades. Provision also existed in
applicable laws for creating additional posts
of Clerks and Class IV employees, depending
upon requirement of extra hands in the
school. Government Orders also exist for
such purposes.

22. A school to be established as per
Schedule
must
provide
for
necessary
infrastructure and services so that quality
education be provided to its students. The
concern of the State does not end with
creation of posts for the teachers alone. Its
concern also is to provide for
other
supporting staff in the form of Clerks and
Peons.

23. Even prior to introduction of Article
21-A, the State was conscious of its
obligation to support the cause of education
and, therefore, with an intent to regulate
appointment of teachers as well as Clerks and
other supporting staff in privately managed
aided junior high schools it enacted the Rules
of 1978 and also the Rules of 1984. These
enactments provided the statutory regimen
for establishment of junior high schools and
also appointments of teachers and other staff,
including clerical and Class-IV staff. These
rules have withstood the test of times over
the
last
several
decades.
With
the
introduction of Article 21-A as also the Act
of 2009 the State is expected to improve the
setup already available with the school and
not to curtail it.

24. Since the State was taking upon itself
the obligation of making payment of salary to
such staff, it also imposed restrictions on
creation of new post(s) of teachers and other
employees and by virtue of section 9 of the Act
of 1978, no institution could create a new post of
11 All. C/M Manorama Kanya Junior High School, Moradabad & Anr. Vs. State of U.P. & Ors.
665
teacher or other employee, except with the
previous approval of the Director or such other
officer, as may be empowered by a general or
special order in that behalf by the Director.

25. It was in the above context that the
various Government Orders came to be issued
from time to time creating post of teachers and
clerical and Class-IV staff in these schools.
Vide Government Order issued on 02.07.1990
the power of granting recognition to such
institutions
was
vested
with
different
authorities, depending upon the nature of the
institutions.
Necessary
conditions
to
be
fulfilled by these institutions were also
specified.

26. Some of the conditions of recognition
required that the school must provide for
necessary facilities before recognition is
granted to it and are reproduced:-

"जूवनयर हाई स्कूल के मान्यता की ितें

सामान्य ितें- (1) मान्यता तभी प्रर्ान की
जायेगी जब प्रस्तावित उस क्षेत्र में सोंस्था की
िास्तविक आिश्यकता ह और उस क्षेत्र की ितदमान
सोंस्थाओों के स्तर तथा र्क्षता पर प्रस्तावित सोंस्था के
कारण प्रवतकूल प्रभाि पडने की सोंभािना न ह ।
उर्ाहरणाथद एक जूवनयर हाई स्कूल की आिश्यकता
पर विचार करते समय यह र्ेिना आिश्यक ह गा
वक-

(ि) प्रत्येक मान्यता प्राप्त विद्यालय के
वलए ऐसे भिन, िौचालय, िेलकूर् के मैर्ान एिों
साज-सज्जा की, ज पररषर्् द्वारा विवनर्दष्ट विविवष्टय ों
के अनुसार ही व्यिस्था करनी ह गी तथा साफ और
हिार्ार भिन का वनमादण स्वास्थप्रर् स्थान पर एिों
िातािरण में वकए जाने की व्यिस्था की जायेगी।"

27. The Government Order dated
02.07.1990 was followed by subsequent order,
wherein also requirement of teaching and nonteaching
staff
was
acknowledged
and
necessary provisions in that regard were
incorporated in the policies. In almost all the
aided recognized junior high schools post in
the clerical cadre and class-IV cadre have
been created and the necessary staff has also
been provided.

28. The schools, which have been
functioning in the above background, ought to
have been provided better infrastructure in terms
of building, teachers and necessary staff once
the right to education was added as a
fundamental right in the constitution. There was
a greater emphasis laid on the schools in the
State to provide necessary amenities to such
students in the age group of 6 to 14 years. It is in
furtherance of the above objective that the Act
of 2009 was enacted by the Parliament.

29. The Act of 2009 takes care of children
and special attention is given to the children
belonging to weaker section and disabled
children falling in the tender age of 6 to 14
years. When the children come to school they
have to be provided basic amenities with
reference to their special needs in the schools.
The State has also introduced a scheme for
providing Mid-Day-Meal etc. A school cannot
run without essential support system which
cannot be provided without having any clerical
and class IV staff, particularly when no
alternative arrangement is provided for. All
schools in the State of U.P. have been denied
permission to fill up the posts of Clerk and Class
IV employee upon acrual of vacancy since
15.1.2019. Nothing is brought on record to show
that an alternative mechanism has been worked
out while abolishing such posts. Hearing in this
bunch of petitions was deferred on previous
occasion to enable the State to examine these
aspects, and to revisit the decision, if required,
but the authorities of State have not been able to
show that any comprehensive assessment of
schools requirement was made or any alternative
plan was conceived or formulated.
666 INDIAN LAW REPORTS ALLAHABAD SERIES

30. The only justification for issuing the
Government Order dated 15.01.2019 is the
Schedule appended to Sections 19 and 25 of the
Act of 2009. It appears that while issuing the
Government Order dated 15.01.2019 the State
has not cared to examine the Schedule in its
entirety. It has merely noticed the part of
Schedule which specifies the teacher strength
and has jumped to the conclusion that all other
posts in the school has been rendered redundant.
In the opinion of the Court this is not a correct
construction of the Schedule.

31. The Schedule will have to be read in its
entirety. As is already observed it includes
various other essentials for a school. It is not just
providing of school building but the concern of
State extends to its smooth functioning also. No
thought is given as to how the toilets would be
cleaned when separate toilets are to be provided
for boys and girls. It has also not been
considered as to how the floors would be
cleaned, records would be maintained, library
would be run, basic amenities in the form of
drinking water etc. would be provided. These are
essential elementary concerns to be thought of,
cared about and appropriately addressed by the
State. A rational policy cannot exist without
caring for these concerns. Such concerns are
otherwise implicit in the Schedule and its nonconsideration would render the policy wholly
unworkable and frustrate the very object sought
to
be
achieved
by
86th
Constitutional
Amendment, the Act of 2009 and the policy of
State for strengthening the school network.

32. The emphasis in the Act of 2009 is with
regard to teaching activities and therefore strength
of teachers has been specified. It does not mean
that the requirement of supporting clerical and
class-IV staff either vanishes or schools can
provide quality education in its absence. No
alternative mechanism has been suggested in the
Government Order dated 15.01.2019 to cater to
needs of services and supporting staff to the
schools. Need of clerical and Class-IV employees
is inbuilt in the present concept of school itself.
The argument of Sri Awasthi that a comprehensive
exercise to assess the actual requirement of school,
on the basis of objective criteria has not been
undertaken is found to have substance in the face
of any contra material produced by the State. The
further argument that abolition of posts based upon
unilateral reading of schedule is wholly flawed and
arbitrary is also worth acceptance.

33. This Court is at a loss to understand as to
how the State proposes to come up with a policy of
providing quality education to its children in
schools without caring to provide for necessary
supporting services and staff in keeping with the
requirements of Schedule. The Government Order
is otherwise silent on the aspect as to how the
requirement of supporting staff would be met in
the schools. While referring to the Schedule to the
Act of 2009 the basic ingredients and requirements
of it, noticed earlier, have been completely
overlooked by the State. This shows complete lack
of application of mind on the part of the State
Government to the requirements of school for
providing quality education. The failure on the part
of the State to advert to this crucial aspect of the
matter has direct adverse consequence for the
existence of schools. In absence of supporting staff
in these institutions, there functioning itself would
get paralyzed. This non-consideration renders the
impugned policy of the State wholly irrational and
arbitrary. It, therefore, cannot withstand the test of
judicial scrutiny. All vacancies accruing on the
posts of Clerk and Class IV employee in schools
are lying vacant since 15.1.2019 without any
alternative mechanism provided for by the State
for catering to service hitherto provided by them.
The fundamental right of children in schools are,
therefore, compromised rendering the impugned
action wholly arbitrary and unconstitutional.

34. Consequently, the Government Order
dated 15.01.2019, insofar as it declares Class-III and
Class-IV posts in junior high schools to be a dead
11 All. Murari Lal Rathore @ Murari Lal Vs. State of U.P. & Ors.
667
cadre, is found to be wholly arbitrary, irrational,
suffering from non application of mind and
violative of Articles 14 & 21-A of the Constitution
of India as also in teeth of the Act of 2009. The
Government Order to that extent, accordingly,
stands quashed. All consequential orders passed in
the present bunch of writ petitions passed on
different dates, declining permission to fill up the
posts of Clerks and Class IV employees following
the said Government Order, under challenge in the
present bunch of petitions, are also quashed.

35. As a consequence, the post in Class III and
Class
IV
cadre,
already
sanctioned
vide
Government Order dated 2nd July, 1990, shall
continue to exist and it shall be open to the private
management to make appointments against it by
following the procedure laid down in the Rules of
1984.

36. Writ petitions, accordingly, are allowed.
No order is passed as to costs.
----------
(2021)11ILR A667
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.10.2021

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No. 5389 of 2017

Murari Lal Rathore @ Murari Lal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vishnu Gupta, Sri Shiv Om Vikram Singh, Sri
Siddhartha Srivastava, Sri Virendra Kumar Gupta

Counsel for the Respondents:
C.S.C., Sri Ramesh Chandra Singh

A. Service Law - Dismissal - U.P. Government
Servant (Discipline & appeal) Rules, 1991: First
Proviso to Rule-7 (xii); Constitution of India:
Clause (a) to the second proviso to Article
311(2) - Mere conviction in a criminal case
would not lead to automatic dismissal from
service of the government servant. Since clause
(a) to the second proviso to Article 311(2) of the
Constitution of India as also first proviso to rule-7(xii)
of the Rules of 1991 are exception to the normal rule
of holding inquiry against the government servant
and even opportunity of hearing is not required to be
given to him, therefore, the disciplinary authority
has to scrupulously examine the conduct of the
government servant which led to his conviction
before exercising such jurisdiction. The nature
of guilt established as also the possible defence
available to the government servant are
aspects which requires consideration at the
level of the disciplinary authority. In the event
these aspects are omitted from consideration,
the order of dismissal itself would be rendered
without jurisdiction. (Para 9, 11, 14)

Since the conduct of the petitioner leading to his
conviction has not been examined by the disciplinary
authority within the laid down parameter as such the
order of dismissal, as affirmed in appeal and revision
cannot
be
sustained.
Orders
impugned
dated
01.12.2016, 21.12.2016 and 18.3.2016 accordingly
are liable to be quashed. (Para 18)

Ordinarily, when such orders are quashed a liberty
ought to be granted to the disciplinary authority to
pass a fresh order while considering relevant factors
i.e. conduct of the employee, gravity of charges and
the materials available against him etc. This course,
however, would not be desirable or even permissible
in the facts of the present case since the petitioner
has
attained
the
age
of
superannuation
on
31.12.2018 and the contract of employment has come
to an end. (Para 19)

B. Unless there exists an enabling provision
either in the applicable service rules or any
other provision of law it would not be open for
the disciplinary authority to pass an order in
respect of contract of service after the
employee
has
attained
the
age
of
superannuation. (Para 24)

It is apparent that since the petitioner has attained
the age of superannuation and no provision in law is
shown which permits the disciplinary authority to
examine the conduct of an employee, now, so as to
pass an order of punishment, there would be no