# SCC ( L & S) 154, Mahendra L. Jain v. Indore Development Authority, the Apex

- **Citation:** (2006) 1 ILRA 125
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-09-07
- **Case number:** Civil Misc. Writ Petition No. 41591 of 2002
- **Bench:** Sunil Ambwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/scc-l-s-154-mahendra-l-jain-v-indore-development-authority-the-apex-40795
- **Pages:** 7

## Headnote

Sri O.P. Sharma
Sri G.K. Singh
Sri V.K. Singh
S.C.

U.P. Recognised Basic Schools (Junior
High Schools) Recruitment and condition
of service of teachers, 1978-Rule IVread with National council of Teachers
Education Act 1993-S 14-G.O. Dated
31.1.1998
providing
compassionate
appointment on the post of Asstt.
Teacher in junior high school-to such
dependent who does not possess even
minimum qualification held ultra vireseven rules of dying in harness rules 1974
refers the relation in age and procedure
for appointment but no relaxation given
with minimum qualification.

Held: Para 17

Learned counsel for respondent no. 6 has
relied
upon
Rule
8
of
the
U.P.
Appointments
of
Dependants
of
Government Servant Dying in Harness
Rules 1974. A perusal of the Rule 8
Shows, it refers to age and the procedure
126 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
for appointment to be relaxed, but no
relaxation is provided for minimum
qualification for the post. There is no
provision under these rules to relaxing
essential educational qualification and
training qualification. The respondent
no. 6 as such could not be appointed as
Assistant Teacher in the institution and
to that extent I hold that the Para 3 of
the Government Order dated 31.1.1998
is ultra, vires Rule 14 of U.P. Recognised
Basic Schools (Junior High Schools)
(Recruitment and conditions of Service
of Teachers) Rules 1978 as well as the
provisions of Section 14 of the National
Council of Teachers Education Act 1993.
Case law discussed:
1981 UPLBEC 336 (F.B.)
W.P.No. 17422 of 2003 decided on 23.5.2003
1981 UPLBEC 6521

## Text

1 All] Chemical Workers Union V. Labour Court at Ghaziabad and another
125
SCC ( L & S) 154, Mahendra L. Jain Vs.
Indore Development Authority, the Apex
Court has clearly held that the Labour
Court can only decide the dispute referred
to it. The Labour Court has got no
jurisdiction to go beyond it.

8. In 2005 S.C.C. (L & S) Page 372,
Management
of
Madurantakam
Corporation Sugar Mills Ltd. Vs. S.
Vishwanathan the Apex Court has held
regarding the scope of interference under
Article 226 of the Constitution of India
and has held that the Labour Court or
Industrial Court is final Court of fact
unless and until it is proved that it is
illegal apparent on the face of record, the
Court should not interfere in the finding
of fact recorded by the Labour Court.

9. Admittedly from the reference it
is clear that there was no dispute between
the petitioners and the respondents, which
was referred by the State Government and
in view of the Apex Court judgment. It is
well settled that the Labour Court has to
act according to the reference and cannot
go beyond it. In such a way I am of
opinion that the finding recorded by the
Labour Court is correct and it needs no
interference by this Court under Article
226 of the Constitution of India.

10. The writ petition is devoid of
merit and is hereby dismissed. No order
as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.09.2005

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 41591 of 2002

Committee of Management, Beni Singh
Vaidic Vidyawati Inter College Baluganj,
Agra and others

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

Counsel for the Petitioners:
Sri Ashok Khare
Sri Vishnu Shankar Gupta
Sri Vinod Kumar Singh

Counsel for the Respondents:
Sri O.P. Sharma
Sri G.K. Singh
Sri V.K. Singh
S.C.

U.P. Recognised Basic Schools (Junior
High Schools) Recruitment and condition
of service of teachers, 1978-Rule IVread with National council of Teachers
Education Act 1993-S 14-G.O. Dated
31.1.1998
providing
compassionate
appointment on the post of Asstt.
Teacher in junior high school-to such
dependent who does not possess even
minimum qualification held ultra vireseven rules of dying in harness rules 1974
refers the relation in age and procedure
for appointment but no relaxation given
with minimum qualification.

Held: Para 17

Learned counsel for respondent no. 6 has
relied
upon
Rule
8
of
the
U.P.
Appointments
of
Dependants
of
Government Servant Dying in Harness
Rules 1974. A perusal of the Rule 8
Shows, it refers to age and the procedure
126 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
for appointment to be relaxed, but no
relaxation is provided for minimum
qualification for the post. There is no
provision under these rules to relaxing
essential educational qualification and
training qualification. The respondent
no. 6 as such could not be appointed as
Assistant Teacher in the institution and
to that extent I hold that the Para 3 of
the Government Order dated 31.1.1998
is ultra, vires Rule 14 of U.P. Recognised
Basic Schools (Junior High Schools)
(Recruitment and conditions of Service
of Teachers) Rules 1978 as well as the
provisions of Section 14 of the National
Council of Teachers Education Act 1993.
Case law discussed:
1981 UPLBEC 336 (F.B.)
W.P.No. 17422 of 2003 decided on 23.5.2003
1981 UPLBEC 6521

(Delivered by Hon'ble Sunil Ambwani, J.)

1. Heard Sri Vinod Kumar Singh,
learned counsel for the petitioner and Sri
O.P. Sharma for Sri Agam Prakash
Deepak-respondent
no.
6.
Learned
standing counsel appears for the State
respondents, and the Basic Shiksha
Adhikari.

2. The back ground facts in brief are
as follows;

3. The Beni Singh Vaidic Vidyawati
Inter College Baluganj, Agra is an
education institution running classes up to
International
level.
It
was
initially
recognised only up to High School and
was receiving grant-in-aid from the state
government. The U.P. Junior High
Schools (Payment of Salary to Teachers
and Other Employees) Act 1978 (in short
the Act of 1978) was applicable to the
institution. On 21.12.198 the Regional
Secretary, Board of High School and
Intermediate Education gave recognition
to the school as unaided (Vitta Viheen)
High School with permission for the
students of the institution to appear in the
High School examination of the year
1990. A Consequential order was issued
by the District Inspector of Schools, Agra
on 13.10.1989. The Accounts Officer in
the office of Basic Shiksha Adhikari,
Agra informed the Management on
17.5.1990, that after the school has
received the recognition for conducting
the classes up to High School. It is not
possible to pay the salaries under the Act
of 1978.

4. The Committee of Management
filed a writ petition No. Nil of 1990
(Badam Singh and 13 others vs. State of
U.P. and others) for payment of salaries to
its teachers. On 25.5.1990 the court
passed
an
interim
order
directing
respondent no. 2 and 3 to pay the
petitioner's salary as they were entitled to
prior to the up gradation of the institution
as High School. The writ petition is still
pending and the salary is being paid upto
Junior High School level from the office
of Basic Shiksha Adhikari, Agra in
accordance with the Act of 1978.

5. The Act of 1978, was amended by
U.P. Junior High School (Payment of
Salaries
to
Teachers
and
Others
Employees) Amendment Act 2000 (U.P.
Act no. 34/2000) insieting Section 13-A
in U.P. Act no. 7 of 1979. the newly
inserted section is quoted as under : -
"13-A
Transitory
provisions
in
respect of certain upgraded institution (1)
Notwithstanding anything contained in
this Act, the provisions of this Act shall,
mutates mutandis, apply, to an institution
which is upgraded to High School or
Intermediate
standard
and,
to
such
teachers and other employees thereof in
respect
of
whose
employment
1 All] C/M B.S.V.V. Inter College Agra and others V. State of U.P. and another
127
maintenance grant is paid by the State
Government to such institution
(2) For the purpose of this section
the reference to the students wherever
they occur in Section 5, shall be construed
as reference to the students of classes up
to junior High School level only."

6. The school applied and that the
Additional Secretary, Board of High
School and Intermediate Education by his
order dated 16.10.1995 passed an order
giving
un-aided
(Vitta
Viheen)
recognition to the institution at the
Intermediate level. The School is now
imparting classes from Class VI to XII
and that the students are regularly
appearing
in
High
School
and
Intermediate examination. The salary of
the staff upto Junior High School level is
being paid from the Government grants
through Basic Shiksha Adhikari, Agra.
There are five substantive vacancies on
account of retirement and deaths of
Assistant Teachers at Junior High School
level. The Committee of Management
took initiative in 1998 and 1999 for
making selections and appointment but no
selection could be made on account of
objections taken by the Basic Shiksha
Adhikari on the ground that the institution
has been upgraded upto intermediate level
and thus no selection can be undertaken
treating the institution as a Junior High
School.

7. The Basic Shiksha Adhikari,
however, passed an order on 6.6.202
directing the management to appoint Sri
Agam Prakash Deepak- respondent no. 6
as untrained Assistant Teacher in the
institution on compassionate grounds. The
petitioner protested to this appointment
and
in
their
representation
dated
11.6.2002 they stated that no resolution
has been passed to appoint the respondent
no. 6 on compassionate grounds. The
management took objection to the fact
that when the Basic Shiksha Adhikari did
not agree to initiate proceedings to fill up
the post on the ground that the institution
has been upgraded up to Intermediate
level, how could be exercising powers of
making compassionate appointments. The
Basic Shiksha Adhikari by his order dated
4.9.2002
again
issued
orders
for
appointment of respondent no. 6 failing
which the salaries of the Head Master and
other teachers shall be stopped. By
interim order dated 4.10.202 the operation
of these orders dated 6.6.2002, and
4.9.2002
passed
by
Basic
shiksha
adhikari, Agra were stayed.

8. The first question to be decided in
this writ petition is whether in the facts
and circumstances when an aided Junior
High School is upgraded as unaided
Higher
School
and
thereafter
an
Intermediate College, the Basic Shiksha
Adhikari
continues
to
have
the
administrative control for payment of
salaries under the Act of 1978; and
second, whether in such case the Basic
Shiksha
Adhikari
can
direct
a
compassionate appointment to be made in
the
institution,
in
pursuance
of
Government Order dated 31.1.1997.

9. Learned counsel for the petitioner
has relied upon the newly inserted Section
13-A in the Act of 1978 and the
Government Order dated 24.11.2001 by
which
the
Principal
Secretary,
Government of U.P. provided in para-5,
that for administrative purpose the aided
Junior High School and unaided High
School/Intermediate College situate in
same
campus
and
under
same
management, shall be treated as separate
128 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
units and that all administrative functions
in such cases shall be performed by the
concerned
District
Basic
Education
Officer, and District Inspector of Schools
separately, and for all purposes the
Accountant Officers shall continue to
discharge their functions. He submits that
the Basic Shiksha Adhikari having
objected
to
the
initiation
of
the
appointment process to fill up the five
vacancies in Junior High School section
on the ground that the school has been
upgraded as High School and then
Intermediate college cannot turn around
and make compassionate appointment
without there being any resolution of the
Committee of Management. It is further
submitted that once the school has been
upgraded with High School and thereafter
as Intermediate for the purpose of
appointment of teachers the provisions of
U.P. Intermediate Education act 1921 and
the U.P. Secondary Education Service
Selection Board 1982 will be applicable.
The Basic Shiksha Adhikari can have
administrative control only for payment
of salaries upto Junior High School, and
has
not
been
provided
with
the
administrative
control
over
the
appointment.

10. Sri O.P. Sharma, learned counsel
for respondent no. 6 submits that the grant
of un-aided, recognition to High School
and Intermediate Sections, does not take
away the control of the Basic Shiksha
Adhikari over the Junior High School,
and that so long as U.P. Act of 1978 is
applicable the Basic Shiksha Adhikari has
administrative
powers
including
the
powers
to
make
compassionate
appointment. The Selection Committee
constituted under Regulation 105 of the
U.P. Intermediate Education Act 1921, in
its meeting held on 18.9.2000 considered
the petitioner's application and decided in
his favour. However, since the institution
was under administrative control of
District Basic Education Officer, Agra,
the District Inspector of Schools, Agra by
his letter dated 2.10.2000 directed the
District Basic Education Officer to take
appropriate
action.
The
father
of
respondent no. 6 died in harness on
27.05.1998. The respondent no. 6 is fully
qualified for appointment. The committee
of Management has not complied with the
order and thus the Basic Education
officer, Agra was left with no other option
to stop the salary of teachers and
employees
of
the
institution.
The
Government order dated 24.11.2001 has
divided the administrative control of the
aided Junior High School and upgraded
unaided High School/Intermediate under
same management and same campus
between the District Basic Shiksha
Adhikari
and
District
Inspector
of
Schools.

11. Once an aided Junior High
School is up graded as an unaided High
School/Intermediate
and
the
State
Government
has
taken
liability
for
payment of salary of teachers of High
Schools and Intermediate classes, the
salary continues to be paid to the teachers
under the provisions of the Act of 1978,
which is applicable to the institutions as
defined in Section 2 (e) to mean, a
recognised junior high school for payment
being receiving maintenance grants from
the State Government. This Act of 1978
(U.P. Act No. 6/1979) regulates the
payment of salaries to the teachers and
other teachers of Junior High school
receiving aid out of the State funds.
Section 3 of the Act provides for the
payment of salary within time and without
unauthorized deductions. The power of
1 All] C/M B.S.V.V. Inter College Agra and others V. State of U.P. and another
129
inspections is given in Section 4, and
Section 5 provides for procedure for
payment of salary. The enforcement of
provisions and directions age given in
Section 6 and the Appeal is provided in
Section
7.
Section
9
restricts
the
institution to create a new post of teachers
or other employee except with previous
approval of the Director, or such other
officers. The recruitment and conditions
of services of teachers of aided Junior
High
School
not
being
institution
belonging to or wholly maintained by the
U.P. Board of Basic Education, is
provided under the U.P. recognised Basic
School
(Junior
High
Schools)
(Recruitment and Conditions of Services
of Teachers) Rules 1978, made under the
U.P. Basic Education Act 1972. The
minimum qualifications for appointment
on the post of Assistant Teacher of
recognised
school
is
Intermediate
Examination by the Board of High School
and Intermediate Education, U.P., or an
equivalent examination with Hindi, and a
teachers training course recognised by the
State Government or the Board such as
Hindustani Teaching Certificate, Junior
Teaching Certificate, Basic Teachers
Teaching Certificate and Certificate of
Training.

12. The payment of salary is linked
with the sanction of post and validity of
the appointments. The Rules of financial
management require that the salary is paid
to the determined number of validly
appointed teachers. Where the institution
has
been
upgraded
as
High
School/Intermediate without sanction of
maintenance the financial control over the
institution is restricted only upto junior
high school level. The management may
be under supervision for maintaining the
standards of education which include
adherence to the qualifications of teachers
as prescribed under the U.P. Intermediate
Education Act 1921, but unless the
financial liability is taken over the District
Inspector of Schools will not get any
financial control over the institution. The
State Government has clarified such a
dichotomy of administrative and financial
control over the aided junior high schools
upgraded
as
unaided
high
school/intermediate
classes,
vide
Government Order dated 24.11.2001.

13. Learned counsel for the
respondent no. 7, has rightly placed
reliance of Section 9 (iv) of the U.P.
Intermediate Education Act 1921, which
confers
wide
powers
to
the
State
Government to make any regulations
modify and rescind it in respect to any
matter under provisions of the Act. In
Krishna Pal Singh vs. Government of
U.P. 1981 UPLBEC 6521 a Division
Bench of this Court had held that any
order issued by the State Government
under the Section 9 (iv) will acquire
statutory character and the same would be
effective, notwithstanding any regulation
framed by the board. The submission of
the petitioner based upon the judgment of
learned single judge of this court in
Ramesh Singh vs. State of U.P. &
others (Writ Petition No. 17422 of 2003,
decided on 23.5.2003), holding that para
5 of the Government Order dated
16.11.2001, is inconsistent with the
provisions of Section 16-A of the U.P.
Intermediate Education Act 1921, is not a
relevant decision for the present case. In
that case the Court was dealing with the
powers of the District Basic Education
Officer to decide the question of no
confidence
motion
passed
by
the
Committee of Management against its
Manager. After examining the provisions
130 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
of the U.P. Intermediate Education Act
1921 and the act of 1978 it was held
relying upon State of U.P. vs. District
Judge, Varanasi 1981 UPLBEC 336
(Full Bench, para 17) that the Junior High
School and High School or Intermediate
College are distinct legal entities. Once a
Basic School or a Junior High School is
upgraded as a High School its identity as
a Basic School or Junior High School is
lost. It ceases to exist as legal entity and it
place another institution with new legal
entity comes into being. Learned Judge
held
that
once
a
Committee
of
Management
is
recognised and the
Memorandum of Association is approved
under
Section
16-A
of
the
U.P.
Intermediate Education Act 1921, the
District Basic Education Officer ceases to
have any authority or jurisdiction to deal
with the upgraded junior high school.
These observations were made in the
context of a management dispute, where
the Deputy Director had approved the
scheme of administration, having in
exercise of powers under Section 16-A of
the U.P. Intermediate Education Act
1921. In this case we are concerned with
the financial control and consequently the
validity of appointment of the Assistant
Teacher in the Junior High School.

14. The up gradation of an aided
Junior High School as unaided High
School/Intermediate College does not take
away the institution from the financial
control of the Basic Shiksha Adhikari.
The power of the State Government to
issue Government Order dated 24.11.2001
can be traced to Section 9 (iv) of U.P.
Intermediate Education Act 1921. In order
to
remove
difficulties
and
smooth
functioning of the powers, where they are
not
so
clearly
defined
the
State
Government can always, fill in the gap.
The Basic Education officer as such does
not cease to have administrative or
financial control over the institution. He,
however, ceases to have control over the
management in so far as it touches and
deals with the scheme of administration
and the functioning of the High School
and Intermediate classes are concerned.

15. The petitioner does not have any
teaching qualification. He was appointed
without consent and resolution of the
committee
of
management
of
the
institution. The District Basic Education
Officer has defended his action under
Government
Order
dated
31.1.1997,
which
provides
for
compassionate
appointment. Para 3 of this Government
Order provides with such appointment
can be given even to untrained teachers
provided he completes the training after
he is appointed.

16. I find substance in the
submission of learned counsel for the
petitioner that the Government Order
dated 31.1.1997 is in conflict with Rule 4
of the U.P. Recognised Basic Schools
(Junior High Schools) (Recruitment and
Conditions of Services of Teachers) Rules
1978 which provides for educational
qualification for appointment as assistant
teachers in junior high school including
the teaching qualifications. These rules do
not provide for any exception from the
teaching qualifications. Further, I find that
after enforcement of National Council of
Teachers
Education
Act
1993
no
untrained teacher can be appointed even
on compassionate grounds in any school
receiving grant-in-aid from the State
Government.

17. Learned counsel for respondent
no. 6 has relied upon Rule 8 of the U.P.
1 All] The Commissioner of Income Tax, Kanpur V. Dr.(Miss) Chandra Kanta Rohatgi
131
Appointments
of
Dependants
of
Government Servant Dying in Harness
Rules 1974. A perusal of the Rule 8
Shows, it refers to age and the procedure
for appointment to be relaxed, but no
relaxation is provided for minimum
qualification for the post. There is no
provision under these rules to relaxing
essential educational qualification and
training qualification. The respondent no.
6 as such could not be appointed as
Assistant Teacher in the institution and to
that extent I hold that the Para 3 of the
Government Order dated 31.1.1998 is
ultra, vires Rule 14 of U.P. Recognised
Basic Schools (Junior High Schools)
(Recruitment and conditions of Service of
Teachers) Rules 1978 as well as the
provisions of Section 14 of the National
Council of Teachers Education Act 1993.

18. The writ petition is consequently
allowed. The order of the District Basic
Education Officer, Agra dated 6.6.2002
and 4.9.2002 (Annexure 8 and 10 to the
writ petition) are set aside with no order
as to costs.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.10.2005

BEFORE
THE HON'BLE R.K. AGARWAL, J.
THE HON'BLE PRAKASH KRISHNA, J.

I.T.R. No. 103 of 1987

The
Commissioner
of
Income
Tax
(Central) Kanpur

...Applicant
Versus
Dr.(Miss) ChandraKanta Rohatgi,Kanpur

...Respondents

Connected with
I.T.R. NUMBER 125 of 1990

The Commissioner of Income Tax Kanpur

...Applicant
Versus
Dr.(Miss) ChandraKanta Rohatgi, Kanpur

 ...Respondent

Counsel for the Applicant:
Sri Bharat Ji Agrawal
S.C.

Counsel for the Respondent:

Income Tax Act-S-12-A read with Indian
Registration Act-Section 17-Exumption
from Tax-assessee placed the copy of
trust deed-Registration certificate by
which public Trust created-plea not
accepted by I.T.O.-I.T. Commission held
although house property utilized by the
assessee as a founder and managing
Trustee legal ownership still vested with
assessee-so income from such property
has to be assessed u/s 22 of the Actpurpose
of
Trust-rendering
medical
Services to the poor and weaker Section
of Society-1.4.77 the assessee endowed
and
dedicated
the
house
property
declaration
deed
dated
07.04.1977whehter a Hindu can create religions and
charitable Trust Orally? Held- 'Yes' the
cession
of
ownership
of
assessee
complete-when it dedicated to general
publice for religions object-Registration
of deed immaterial can not be treated
the income of assessee.

Held: Para 12

When such dedication is complete a
public
trust
is
created
in
contradistinction to a partial dedication
which would only create a charity. A
dedication for public purposes and for
the benefit of the general public would
involve complete cessation of ownership
on the part of the founder and vesting of
the property for a religious object.
Although the dedication to charity need
not necessarily be by instrument or
grant, there must exist cogent and
satisfactory evidence of conduct of the
parties and user of the properties which