# Kaushal Kumar Singh v. State of U.P. and others

- **Citation:** (2009) 3 ILRA 962
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-01-25
- **Case number:** Civil Misc. Writ Petition No.10725 of 2009
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kaushal-kumar-singh-v-state-of-u-p-and-others-41588
- **Pages:** 11

## Headnote

Sri R.K.Ojha
Sri Ripu Daman Singh
Sri Ashok Khare

Counsel for the Respondents.
Sri V.K.Upadhyaya
Sri Ritvik Upadhyaya
Sri Samir Sharma
Sri S.R.Singh,C.S.C.

U.P. Intermediate Education Act-1921Section 7-A (a)-selection of Head of
Institution up gradation from high
school to Intermediate-recognisation by
Govt confined in respect of preparing
student for admission to examinationand not regarding creation of postselection
of
petitioner
as
head
of
Institution
by
the
U.P.
Secondary
Education Commission-entitled to join
and to look after the affairs of Inter
classes also-direction issued accordingly.

Held-Para 22-

So far as the present petitioner is
concerned, there is nothing to indicate
that the petitioner is not qualified to
hold the post of the Principal of the
Institution.
In
my
opinion,
the
advertisement issued in the category of
High School and not as an Intermediate
College does vitiate the selection of the
petitioner which has been made on the
post of the Headmaster of the High
School level. The selections having been
3 All] Kaushal Kumar Singh V. State of U.P. and others
963
made for the post that was requisitioned
is therefore in order. The said requisition
or the advertisement is not invalidated
on account of the recognition order
dated 30th March, 1998 inasmuch as, as
explained
above,
the
alleged
transformation in the status of the post
is not such so as to invalidate the
selection of the petitioner on the post in
question.
Case law discussed:
2008 (3) ESC 409, 1981 UPLBEC 336, 2006(2)
AWC 1561, 2007(4) ADJ 357 (DB), 2007 (10)
ADJ 248, 1999 (1) Education and Service
Cases 168.

## Text

962 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
SC 2196 and All India SC & ST
Employees' Association and another Vs.
A Arthur Jeen and others (2001) 6 SCC
380 have no application, as such can be of
no assistance to the case of respondents.

40. In view of aforesaid discussion I
am of the considered opinion that the
selection in question is fair and proper
and cannot be held to be tainted by any
malpractice in the process of said
selection so as to enable the respondents
to record his satisfaction to cancel the said
selection. Accordingly, the respondents
have no justification to cancel the
selection in question and withhold the
appointment
of
selected
candidates
included
in
the
select
list
dated
25.01.2008. Since it is not in dispute that
the names of the petitioners are found in
the select list dated 25.01.2008 as
approved by Superintending Engineer,
Tube Well, Circle Basti contained in
Annexure-3 to the writ petition, and I
have already quashed the impugned order
dated 8.2.2008 passed by respondent no.4
(Annexure-3
of
the
writ
petition),
therefore, the concerned respondent is
directed to offer appointments to the
petitioners on the post of Tube Well
Mistry within a period of one month from
the date of production of certified copy of
the order passed by this Court before
Superintending Engineer, Tube Well,
Circle Basti.

41. With the aforesaid observation
and direction, writ petition succeeds and
stands allowed.
---------
ORIGINAL JURIDICTION
CIVIL SIDE
DATED ALLAHABAD: 24.10.2009

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No.10725 of 2009

Kaushal Kumar Singh

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.K.Ojha
Sri Ripu Daman Singh
Sri Ashok Khare

Counsel for the Respondents.
Sri V.K.Upadhyaya
Sri Ritvik Upadhyaya
Sri Samir Sharma
Sri S.R.Singh,C.S.C.

U.P. Intermediate Education Act-1921Section 7-A (a)-selection of Head of
Institution up gradation from high
school to Intermediate-recognisation by
Govt confined in respect of preparing
student for admission to examinationand not regarding creation of postselection
of
petitioner
as
head
of
Institution
by
the
U.P.
Secondary
Education Commission-entitled to join
and to look after the affairs of Inter
classes also-direction issued accordingly.

Held-Para 22-

So far as the present petitioner is
concerned, there is nothing to indicate
that the petitioner is not qualified to
hold the post of the Principal of the
Institution.
In
my
opinion,
the
advertisement issued in the category of
High School and not as an Intermediate
College does vitiate the selection of the
petitioner which has been made on the
post of the Headmaster of the High
School level. The selections having been
3 All] Kaushal Kumar Singh V. State of U.P. and others
963
made for the post that was requisitioned
is therefore in order. The said requisition
or the advertisement is not invalidated
on account of the recognition order
dated 30th March, 1998 inasmuch as, as
explained
above,
the
alleged
transformation in the status of the post
is not such so as to invalidate the
selection of the petitioner on the post in
question.
Case law discussed:
2008 (3) ESC 409, 1981 UPLBEC 336, 2006(2)
AWC 1561, 2007(4) ADJ 357 (DB), 2007 (10)
ADJ 248, 1999 (1) Education and Service
Cases 168.

(Delivered by Hon'ble A.P. Sahi, J.)

1. Heard Sri R.K. Ojha, learned
counsel for the petitioner assisted by Sri
Ripu
Daman
Singh
and
Sri
V.K.
Upadhyaya,
learned
Senior
Counsel
assisted by Sri Ritvik Upadhyaya for the
respondent
No.4-Committee
of
Management. Sri Ashok Khare, learned
Senior Counsel has filed an impleadment
application on behalf of the person, who
is stated to be functioning as an
Officiating Principal of the Institution.
The said application has been entertained
under Chapter 22 Rule 5-A of the
Allahabad High Court Rules. Sri A.K.
Yadav, learned counsel has been heard for
respondent No.5 and learned Standing
Counsel for the respondents No.1 to 3.

2. This petition questions the
selections on the post of Principal in
Aditya Birla Inter College, Renukoot,
Sonebhadra, which is an institution
recognized
and
governed
by
the
provisions of the U.P. Intermediate
Education Act, 1921 and the Regulations
framed thereunder. The institution is
under the grant-in-aid list of the State
Government for running twenty-four
Sections upto the level of High School for
which recognition already stood granted
by the State Government. The selection of
teachers and the Head of the Institution is
governed by the provisions of the U.P.
Secondary Education Services Selection
Board Act, 1982.

3. The facts shorn of details are that
the Institution was initially recognized as
a Junior High School under the relevant
provisions then existing on 19th June,
1964. The institution was accorded
permission and recognition whereupon it
stood upgraded as High School w.e.f.
25th January, 1965. A copy of the said
recognition order has been filed as
Annexure- 2 to the counter affidavit filed
on behalf of the Management. The High
School level of the institution was from
time to time given the benefit of running
additional sections which according to Sri
Upadhayaya has swelled to 24, and grantin-aid to the High School level of the
Institution was extended on 31st March
1984. Subsequently, upon expansion of
the Institution, the Management applied
for recognition upto the Intermediate level
upon which the competent authority vide
order dated 30th March, 1998 extended
the benefit of running Intermediate
classes under the provisions of Section 7A(a) of the 1921 Act. The said
recognition was modified later on with
additional sanction of subjects vide order
dated 23.8.2000, Annexure-8 to the
counter affidavit, 21.8.2004, Annexure 9
to the counter affidavit and 03.5.2005,
Annexure 10 to the counter affidavit.
There is a significant indication with
regard
to
condition
No.5
in
the
recognition
order
dated
30.3.1998
wherein Clause 5 of the said recognition
indicates that the institution shall appoint
a qualified Head of the Institution.
However, this condition has been scored
964 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
out in the subsequent orders of the year
2000, 2004 and 2005.

4. The present dispute relates to the
selection and appointment on the post of
Principal of the Institution by the U.P.
Secondary Education Service Selection
Board which has proceeded to select the
petitioner Kaushal Kumar Singh treating
the Institution of having a post of a Head
Master of the High School level for which
selections have been held and against
which the placement of the petitioner has
been made. The requisition for such
selection on an earlier occasion had been
sent in the year 1991. However, selections
were not held on the said post and as
noticed above, in between, the institution
came to be recognized as an Intermediate
college for the subjects, as referred to in
the recognition orders and filed along
with counter affidavit from 30.3.1998
onwards. It appears that there was an
internal communication about the holding
of selection on the said post and it is
alleged that the requisition was again sent
on 27th of September, 2000 by the
District Inspector of Schools, Sonebhadra
requesting the Commission to hold a
selection on the post in question. It has
also been stated that a further verification
was made in this regard whereafter the
Board has proceeded to hold selections
and has selected the petitioner against the
said post.

5. The petitioner after having been
selected could not join the Institution.
According to the allegations made, the
petitioner in spite of having been selected
against advertisement No.1 of 2002 was
unable to join on account of the litigation
which was pending in the matter which
went upto the Supreme Court in relation
to the said advertisement that consumed a
considerable time and was ultimately
answered in the case of Balbir Kaur Vs.
Service Selection Board and Others
reported in 2008 (3) ESC 409.

6. It is on account of having failed to
join in the institution that the petitioner
has filed the present writ petition seeking
a writ of mandamus commanding the
respondents to ensure that the petitioner is
made to join as Principal in the Institution
and function as such. This writ petition
was initially entertained and an order was
passed on 3rd March, 2009 whereby the
District Inspector of Schools was called
upon to explain as to why action has not
been taken by the Management for
ensuring the joining of the petitioner. A
counter affidavit was filed by the
Committee of Management refuting the
stand taken on behalf of the petitioner.
The District Inspector of Schools filed a
counter affidavit asserting therein that in
spite
of
repeated
reminders,
the
Committee of Management has failed to
respond to the request of the District
Inspector of Schools. The Officiating
Head of the Institution has also filed an
impleadment
application
and
has
contended that so far as the petitioner is
concerned,
he
does
not
hold
the
qualification to be appointed as Head of
the Institution of an Intermediate College
and even otherwise the selections are
contrary to the provisions of the Act and
the Rules applicable.

7. The attention of the Court has
been invited to the advertisement against
which the selection has been made and
according to the said advertisement, the
institution has been indicated under
Category-03 which undisputedly is relates
to a boys institution upto the High School
level.
3 All] Kaushal Kumar Singh V. State of U.P. and others
965

8. Sri R.K. Ojha, learned counsel
for the petitioner contends that the
resistance put forth by the Committee of
Management is absolutely unfounded,
inasmuch as, the post was requisitioned
under the relevant rules framed under
the U.P. Secondary Education Services
Selection Board Act, 1982 and the said
requisition is valid, inasmuch as, the
post in question is that of a Head Master
as the Institution in question is aided
upto the High School level and once the
requisition had been made for the same,
there is no error committed by the
Board in proceeding to make the
selections. He further submits that the
petitioner is fully qualified to hold the
post and further the placement made by
the Board is in accordance with the
category of the institution that was
advertised. He further submits that in
the absence of any infirmity much less a
legal infirmity, there is no occasion for
the Committee of Management to resist
the selection and placement of the
petitioner.

9. Sri V.K. Upadhyaya, learned
Senior Counsel for the Management
advanced his submissions with the aid
of the decisions which have been placed
before the Court. The decisions cited at
the bar are that of State of U.P. & Ors.
Vs. District Judge, Varanasi & Ors.
reported in 1981 UPLBEC 336, [Dr.
(Smt.) Sushila Gupta Vs. Joint Director
of Education, Kanpur Region, Kanpur
& Ors.] reported in 2006(2) AWC 1561,
Ajay Pratap Rai Vs. District Basic
Education Officer, Jaunpur & Ors.,
reported in 2007(4) ADJ 357 (DB) and
the decision in the case of Smt. Shail
Kumari Singh Vs. State of U.P. & Ors.
reported in 2007 (10) ADJ 248. Sri
Upadhyaya contends that a perusal of
the ratio of the decisions referred to
herein above leave no room for doubt
that once the institution in question was
given recognition as an Intermediate
College
then
the
identity
of
the
Institution as a High School stood
finally merged in the Intermediate
College and that the post of Head
Master
automatically
vanishes
and
substituted by the post of Principal of
the Institution. His contention is that it
is for this reason no payment of salary
has been made to the Head Master since
1990 and the upgradation brings about a
complete change in the status of the
Institution
as
also
the
automatic
evaporation of the post of the Head
Master in the institution. On such facts
he contends that the Board had no
authority to proceed to make selections
once the Institution had been upgraded
and its status stood altered. He contends
that the requestion, which has been sent
in 1990 and stated to have been
reasserted in the year 2000 are both
erroneous,
inasmuch
as,
once
the
institution was upgraded, there was no
occasion
for
the
Board
to
have
proceeded to make any selection for a
Headmaster and consequently the entire
exercise of sending the requisition or
verifying the same behind the back of
the Committee of Management was a
futile exercise. He further submits that
there was no requirement of any further
creation of the post, inasmuch as, once
the recognition was granted on 30th
March, 1998 at the Intermediate level,
the said recognition itself postulates the
existence of the post of the Principal of
the institution. He further submits that
there is no requirement with regard to
the creation of a fresh post of Principal,
inasmuch as, the Institution is not under
the
grant-in-aid
list
upto
the
966 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Intermediate level and therefore, there is
no occasion for seeking any sanction
under Section 9 of the U.P. Act No.24
of 1971. He further submits that this
automatic disappearance of the post of
Headmaster disentitles the Board to
proceed to make any selections and the
requisition if sent by the District
Inspector of Schools was a stillborn
requisition. He submits that the lower
section of High School looses its
identity as held by this Court in State of
U.P. (supra) and as noticed and
interpreted by the subsequent decisions
cited at the bar. He submits that merely
because there is a recognition upto the
High School level and grant-in-aid, the
same would not eclipse the recognition
granted upto the Intermediate level. The
submission in essence is that the
Committee of Management cannot be
saddled with the selectee of the Board
who could not have been selected
against a post which according to the
management
does
not
exist
and
secondly, even otherwise which post
could not have been filled up without
being advertised in the appropriate
category
of
a
Boys
Intermediate
College. Sri Khare has invited the
attention of the Court to the provisions
of Chapter II, regulation 2 which
according to him would be available in
the event the Institution would have
promoted the Headmaster as a Principal
of the Institution and which has actually
been done in the instant case by the
resolution
of
the
Committee
of
Management of the year 1998.

10. Sri A.K. Yadav, learned
counsel for the Board, contends that the
petitioner cannot be prevented from
joining in the institution, inasmuch as,
the proposed respondent Daya Shankar
Pandey, who is continuing as an ad hoc
Principal, is entitled to continue only till
regular selections are made. Any order,
which is obviously interim in nature,
cannot prevent the joining of the
petitioner,
as
contended
by
the
Management on the strength of the
order passed in Writ Petition No.10237
of 2008. He further submits that an
interim order was passed in this very
petition on 3rd of March, 2009 calling
upon the authorities to show cause as to
why action be not taken for preventing
or obstructing the joining of the
petitioner.
He
submits
that
the
Management did not challenge the
requisition, which had been sent to the
Board nor did the Management intimate
the Board at the time of the selections in
the year 2002 that there was any legal
impediment in holding of the selections.
Even otherwise, there is no impediment
in law to withhold the selections,
inasmuch
as,
the
post
of
the
Headmaster, which is duly sanctioned
and aided up to the High School level
has not been abolished and on the other
hand there is no sanction of the post of
Principal of the Intermediate College.
He contends that the recognition order
dated 30th March, 1998 simply requires
that as a result of the recognition, so
granted, there has to be a qualified
person
to
hold
the
office
of
Principal/Head
of
the
Institution.
Learned Standing Counsel has also
adopted the same arguments as Sri
Yadav and has supported the cause of
the petitioner.

11. Having heard learned counsel
for the parties, what emerges from the
record is that the vacancy on the post of
Headmaster of the Institution, which
was a High School, came into existence
3 All] Kaushal Kumar Singh V. State of U.P. and others
967
on 16th October, 1989 upon the death of
the permanent incumbent of the post.
The Institution was only recognized and
aided upto the High School level then.
The U.P. Secondary Education Service
Selection Board Act, 1982 had already
been enforced and was very much
applicable for the purpose of holding
selections on the post of the Head of the
Institution in question. Accordingly, a
requisition was sent as per the then
existing Rules through the District
Inspector of Schools for selection on the
post of the Head of the Institution. For
reasons best known to the Board, the
selections could not be held within time
and the advertisement was also delayed.
In between the order dated 30th March,
1998
granting
recognition
to
the
Institution to impart education in certain
subjects at the Intermediate level was
granted. This recognition is under
Section 7-A(a) of the U.P. Intermediate
Education Act, 1921 which reads as
follows:

Recognition of an Institution in any
new subject or for a higher class:-
Notwithstanding anything contained in
clause (4) of Section 7 -

(a) The Board may, with the prior
approval of the State Government,
recognize an institution in any new
subject or group of subjects or for a
higher class;

12. The consequence of such a
recognition is that the Institution does
not get any automatic aid nor there are
any automatic creation of posts. The
said recognition is on a voluntary
request of the Institution, and is for the
purpose of permitting the institution to
prepare
students
to
appear
in
examinations at the Intermediate level
in certain subjects. The recognition does
not bring about any automatic creation
of
posts.
However,
realizing
the
difficulties that were likely to arise for
imparting such education in a higher
class, the provisions of Section 7-AA
were introduced to permit employment
of part time teachers and instructors as
an interim measure for the benefit of
students on the condition that the
honorarium payable to such teachers
would be borne by the Management
from its own resources. The status of
such teachers is, therefore, of part time
teachers who do not form part of the
regular cadre. The aforesaid Section
does not contemplate the creation of the
post of the Head of Institution. Even
otherwise, there cannot be a part time
Head of the Institution as neither the
Act contemplates so nor the Regulations
indicate the engagement of a part time
Head of the Institution. It is under such
conditions that the Institution was
granted recognition.

13. The Management did not
challenge the requisition relating to the
post of Headmaster and according to the
Management, after the Institution was
granted recognition at the Intermediate
level, a resolution was passed to
continue Sri Daya Shankar Pandey as
the Head of the Institution upon its
upgradation.
The
Selection
Board
during these intervening events had
sought verification from the District
Inspector
of
Schools
about
the
requisition sent earlier in the year 1991
and the District Inspector of Schools
reaffirmed the existence of the vacancy
on the post of Headmaster.
968 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

14. The main question, which is
the foundation of the argument on
behalf of the Committee of Management
is, as to the impact of the recognition
order dated 30th March, 1998. Sri
Upadhyay, on the strength of the
decisions referred to herein above
contends that once the status of the
Institution was raised to the level of an
Intermediate
College
under
the
recognition order dated 30th March,
1998, there is an automatic transition in
the status of the Institution and as
submitted by him earlier, the High
School level Institution stood merged
loosing its identity as such and resulting
in a transformed Intermediate level
institution. In order to appreciate this
argument a reference to the order of
recognition and the relevant provision
namely Section 7-A(a) of the 1921 Act
would
be
appropriate.
A
reading
between the lines of the aforesaid
Section would leave no room for doubt
that the same is in the nature of a
permission to run classes of higher level
for imparting education to students to
enable them to prepare and appear as
students in the Intermediate level
examination to be conducted by the
Board. The purpose of such recognition
is not creation of posts or abolition of
any post. The purpose is to provide
education to the students who offer
themselves as candidates to appear in
the examination of the Intermediate
level conducted by the U.P. Board. For
this, the word 'recognition' has to be
understood in the context as defined
under
Section
2(d)
of
the
U.P.
Intermediate
Education
Act
quoted
below:

"Recognition means recognition for
the purpose of preparing candidates for
admission to the Board's examinations."

15. A perusal of the said Section
would indicate that it is a privilege or a
facility which is extended by the Board
for preparing students to appear in the
examination conducted by the Board. It
is
a
competence
created
in
the
Institution
to
impart
education
as
recognized by the State through the
Board. While doing so, the State
Government has the power to extend the
benefit of grant-in-aid by providing for
posts in such institution and extended
amenities which may be required for
running
of
the
such
institution.
However, the State itself has evolved a
statutory provision to grant recognition
without the benefit of grant in aid or any
financial benefit and it is therefore,
open to an institution to either accept
such condition or not. The Institution
cannot compel the State Government to
automatically extend the benefit of
creation of posts or financial aid. The
recognition of an institution and benefits
of financial aid are entirely two
different concepts. To explain this
position it would be apt to refer to the
case of Gopal Dubey Vs. District
Inspector of Schools reported in 1999
(1) Education and Service Cases 168. It
would, however, be relevant to clarify
that the said Full Bench came to the
conclusion that upon a recognition
being granted under Section 7-A, there
cannot be any deemed creation of the
posts without there being any sanction
under Section 9 of the U.P. Act No.24
of 1971.

16. In the instant case, the
contention goes ahead to the extent that
3 All] Kaushal Kumar Singh V. State of U.P. and others
969
by virtue of the recognition under
Section 7-A(a), the institution may not
be entitled to claim grant in aid as that
would require a formal creation and
sanction order under Section 9 of U.P.
Act No.24 of 1971 but at the same time
mere non-availability of a creation or
sanction order for grant in aid would not
dilute the status of the Institution which
has
been
recognized
up
to
the
Intermediate level and for which the
post of Principal of that level comes into
existence by virtue of such recognition.
The aforesaid argument does appeal at
first flush and it raises a vital issue in
relation to the status of an institution as
also the consequence thereof relating to
the post of the Head of the Institution.
The reason is that there cannot be two
Heads of Institutions for the same
school. In such a situation the question
arises, can there be a selection by the
Board on the post of Headmaster when
the requirement is of a Principal of an
Intermediate level. The answer to this
question would rest on as to whether
there is an automatic disappearance of
the
post
of
Headmaster
on
transformation of a High School level
institution into an Intermediate College.

17. In the instant case the
recognition order, which has been
granted to the Institution under Section
7-A (a) does not rescind or withdraw the
recognition granted to the Institution at
the High School level. It also does not
abolish the post of Headmaster nor is
there anything on record to indicate that
the grant in aid to the institution up to
the
High
School
level
has
been
withdrawn. To my mind, it appears that
realizing this position, the Management
has come up with a case that it has
already requested the State Government
to withdraw the institution from the
grant in aid list. The management went
to the extent of filing a writ petition
before this Court for a direction to the
State
Government
to
decide
said
representations about which facts have
been indicated in paragraph 30 to 32 of
the
counter
affidavit
of
the
Management.
The
fact
that
the
Institution
still
continues
to
be
recognized as a High School and
receives grant in aid, therefore, till
today continues to exist and there is
nothing on record to the contrary.
Accordingly, the status of the Institution
upto the High School level remains
undisputed and the same has not been
dislodged so far.

18. So much on the facts of this
case that emerge from the pleadings.
The legal submission on behalf of the
Committee of Management is that in
view of the law laid down by this Court
in the Full Bench case of State of U.P.
(supra) which has been followed in the
case of Dr. (Smt.) Sushila Gupta
(supra) and upheld by a Division Bench
in the case of Ajay Pratap Rai (supra),
the institution which was a High School
till
1998
became
an
Intermediate
College and has therefore, lost its
identity as such. It is on the strength of
these decisions Sri Upadhyay contends
that the post of Headmaster evaporates,
inasmuch as, there can be only one
Head
of
the
Institution
at
the
Intermediate level and as such the Board
could not have proceeded to advertise
and hold the selection in the year 2002.
In order to analyse the aforesaid
submission it would be appropriate to
point out that the said decisions are in
relation to consequences of upgradation
in order to apply the relevant rules it
970 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
was concluded that in view of the
provisions of Regulation 4 of Chapter
II, no appointment could be made
except upon the recommendation of the
Selection Board. The dispute in the Full
Bench decision of State of U.P (supra)
was
nowhere
concerned
with
the
interpretation of the provisions relating
to Section 7-A(a) and Section 7-AA. In
that case, the observation was that once
a Junior High School was recognized as
a High School then for the purpose of
applicability of the Rules it would be
governed as a High School and the
Junior High School would loose its
identity. The said case was in relation to
extension of the benefit of grant in aid
and the Full Bench ruled that the grant
in aid which has been made available at
the Junior High School level would
continue to be made available even after
upgradation.
Accordingly,
the
said
decision does not directly or even
indirectly answer the issue involved
herein.

19. So far as the decision in the
case of Sushila Gupta (supra) is
concerned, the same was a dispute
where the Management was proceeding
to appoint the Head of the Institution
treating the same as a Junior High
School in spite of the fact that
recognition had been granted under
Section 7-A of the Act. The Court came
to the conclusion that the Institution
looses its identity of that as a Junior
High
School
and
therefore
the
provisions of the U.P. Intermediate
Education Act would apply. The nature
of the conflict resolved therein was of a
situation where the employee of an
upgraded
institution
was
claiming
benefits arising out of upgradation. The
said case was nowhere concerned with
the appointment of a Head of an
Institution as is presently involved
where the Institution already stands
recognized and aided as a High School
with permission to run Intermediate
Classes. The dispute in this case as
noticed above is with regard to the
competence of the Board to proceed to
hold a selection where the recognition
order under Section 7-A(a) has been
granted to the Institution during the
intervening period. Accordingly, the
decision in the case of Sushila Gupta
(supra) does not in any way bring about
any improvement in the submissions
advanced on behalf of the Committee of
Management.

20. The reason for the same is not
far to see. The Institution can always
appoint part time teachers upon the
recognition granted to it under Section
7-A(a). The Institution can have a
person who is duly qualified to be
appointed against the sanctioned post of
Head Master and such appointee can
also handle the Intermediate Section
provided he is otherwise qualified for
the same. Thus, there is no necessity of
raising an argument of there being a
conflict in the mind of the Management
for appointment on the post of the Head
of the Institution. The petitioner if
selected as Headmaster and appointed
can also look after the Intermediate
section if he is qualified but the
selection cannot be resisted, inasmuch
as, the post of headmaster or Head of
the Institution as sanctioned earlier does
not evaporate under any automatic
transition,
as
suggested
by
the
Management. Neither the order of
recognition dated 30th March, 1998
contemplates so nor do the provisions of
the relevant statute as noticed above in
3 All] Kaushal Kumar Singh V. State of U.P. and others
971
any way contradict each other so as to
warrant such an argument. The teachers,
who are to be appointed under Section
7(AA) are part time teachers. There is
no vacuum on the post of Head of the
Institution, inasmuch as, there is only a
transition in the level of education
imparted and not of any posts that were
already existing in the Institution. The
requisition for the post of Headmaster,
which was sent to the Board appears to
have remained unchallenged on the
presumption of the Management that it
was
an
exercise
in
futility.
The
management
appears
to
have
not
challenged the advertisement and was
making efforts to wriggle out of the
control of the State Government and the
statutory
provisions
by
seeking
withdrawal. The management therefore
can be presumed to be aware of the
proceedings of selections as it was
making preparations for its defences.
The Management in effect wants the
Board not to select the Principal for the
Institution and in order to avoid the
same has also gone to the extent of
requesting the State Government to
withdraw the grant-in-aid.

21. There is a third dimension to
the matter also. The State Government
in its wisdom brought about Section 7AA making provisions for part time
teachers when recognition is granted
under Section 7-A (a). While doing so,
the
State
Government could have
clarified the position also in respect of
the position as to who would be entitled
to head the Institution. This situation
has to be taken care of for the simple
reason that the qualification for the post
of a Headmaster of a High School is
slightly different from the post of a
Principal of an Intermediate College. In
view of this variation of qualification
such difficulties can arise and therefore,
it is the obligation of the State
Government to issue an appropriate
clarification. Taking an instance where
there is already a permanent selected
Headmaster of the institution, what
would happen if such an institution is
granted recognition to the Intermediate
level under Section 7-A(a) if the
existing Headmaster of the Institution
does not hold the qualification of a
Principal of an Intermediate level
college. To that extent, an argument can
be entertained and in such an event if a
fresh post of Principal is presumed to be
sanctioned then in a converse situation
upon the selection of a Principal of an
Intermediate College what would be
status of the Headmaster who has been
already selected by the Board to
function as the Head of the Institution.
Thus, the situation does require an
appropriate legislation to clarify the
situation lest any further confusion is
perpetuated. In such a situation the
Court may not be called upon to
legislate,
as
through
a
judicial
intervention, the Court can "iron out the
creases and not weave a new texture".
On facts also this case does not warrant
such an attempt and the issue is left
open to be adjudicated in an appropriate
case.

22. So far as the present petitioner
is concerned, there is nothing to indicate
that the petitioner is not qualified to
hold the post of the Principal of the
Institution.
In
my
opinion,
the
advertisement issued in the category of
High School and not as an Intermediate
College does vitiate the selection of the
petitioner which has been made on the
post of the Headmaster of the High
972 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
School level. The selections having
been made for the post that was
requisitioned is therefore in order. The
said requisition or the advertisement is
not invalidated on account of the
recognition order dated 30th March,
1998 inasmuch as, as explained above,
the alleged transformation in the status
of the post is not such so as to invalidate
the selection of the petitioner on the
post in question.

23. Accordingly, the writ petition
is allowed. A mandamus is issued to the
respondents, the respondent No.4 in
particular to allow the petitioner to join
and function in the Institution within
three weeks from the date of production
of a certified copy of the order before
the said respondent. The interim order
passed herein stand discharged.
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