# Smt. Tejendra Chawla v. State of U.P. and others

- **Citation:** (2006) 3 ILRA 1122
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-07-07
- **Case number:** Civil Misc. Writ Petition No. 33845 of 2004
- **Bench:** Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-tejendra-chawla-v-state-of-u-p-and-others-40751
- **Pages:** 4

## Headnote

Sri P.N. Saxena
Sri Amit Saxena
Sri Uma Shanker Singh
Sri Prakash Singh
S.C.

U.P. Intermediate Education Act-1921Chapter III Regulation 55 to 62 Chapter
II-Appendix
'A'-Determination
of
seniority-teachers working in primary
section-attached
to
Intermediate
College-transferred from one institution
to
another
recognised
institution-by
Joint Director's order 23 years ageservice rendered in earlier institutionalso shall be counted-not from the date
of joining after transfer.

Held: Para 9

Learned
counsel
for
the
contesting
respondent has also very fairly drawn my
attention to Appendix 'A' of Chapter-II,
which
provides
qualifications
for
teachers of junior classes (6 to 8) and
teachers of primary sections (Classes 1
to
5).
The
prescription
of
the
qualification in Appendix 'A' clearly
indicates
that
the
teachers
of
the
primary sections are not out of the
purview
of
the
U.P.
Intermediate
Education Act, 1921. The Division Bench
has already held that provisions of U.P.
Intermediate Act, 1921 are applicable to
the teachers of primary section. Moreso,
in the present case the transfer order
was passed by the Regional Inspectress
of Girls School specifically referring
Regulations 55 to 62, thus, the transfer
order
itself
was
under
the
power
conferred under Regulations 55 to 62. In
this writ petition there cannot be any
challenge to the transfer order which
was passed 23 years ago nor any such
challenge has been made. Regulation
59A is squarely applicable as it was
existing at the relevant time, hence the
petitioner's services prior to transfer has
to be added for the purposes of seniority.
Case law discussed:
1973 (2) ESC-171 relied on.
1978 ALJ 1042

## Text

1122 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Collector of District if the conditions
contained under Section 52-A (1) of the
U.P.C.H. Act are fully satisfied.

9.

Accordingly
writ
petition
succeeds and is allowed. Impugned order
passed
by
the
Additional
District
Magistrate/Deputy
Director
of
Consolidation is quashed. The matter is
remanded back to the Collector, Ghazipur
to be decided afresh in accordance with
law after giving opportunity of hearing to
the parties. Parties are at liberty to raise
all the questions of law and fact before the
Collector, Ghazipur.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.07.2006

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 33845 of 2004

Smt. Tejendra Chawla
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri K.C. Sinha

Counsel for the Respondents:
Sri P.N. Saxena
Sri Amit Saxena
Sri Uma Shanker Singh
Sri Prakash Singh
S.C.

U.P. Intermediate Education Act-1921Chapter III Regulation 55 to 62 Chapter
II-Appendix
'A'-Determination
of
seniority-teachers working in primary
section-attached
to
Intermediate
College-transferred from one institution
to
another
recognised
institution-by
Joint Director's order 23 years ageservice rendered in earlier institutionalso shall be counted-not from the date
of joining after transfer.

Held: Para 9

Learned
counsel
for
the
contesting
respondent has also very fairly drawn my
attention to Appendix 'A' of Chapter-II,
which
provides
qualifications
for
teachers of junior classes (6 to 8) and
teachers of primary sections (Classes 1
to
5).
The
prescription
of
the
qualification in Appendix 'A' clearly
indicates
that
the
teachers
of
the
primary sections are not out of the
purview
of
the
U.P.
Intermediate
Education Act, 1921. The Division Bench
has already held that provisions of U.P.
Intermediate Act, 1921 are applicable to
the teachers of primary section. Moreso,
in the present case the transfer order
was passed by the Regional Inspectress
of Girls School specifically referring
Regulations 55 to 62, thus, the transfer
order
itself
was
under
the
power
conferred under Regulations 55 to 62. In
this writ petition there cannot be any
challenge to the transfer order which
was passed 23 years ago nor any such
challenge has been made. Regulation
59A is squarely applicable as it was
existing at the relevant time, hence the
petitioner's services prior to transfer has
to be added for the purposes of seniority.
Case law discussed:
1973 (2) ESC-171 relied on.
1978 ALJ 1042

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard counsel for the petitioner,
Sri
P.N.
Saxena,
Senior
Advocate
appearing for the respondents and the
learned standing counsel.

2. By this writ petition, the
petitioner has prayed for quashing the
order dated 7th August, 2004 passed by
Joint Director of Education (Annexure-1
to the writ petition).
3 All] Smt. Tejendra Chawla V. State of U.P. and others
1123

3. The dispute in the writ petition
relates to the seniority of the petitioner
and respondent No. 6, the Joint Director
of Education by the impugned order dated
7th August, 2004 has declared the
respondent No. 6 senior to the petitioner
while
exercising
jurisdiction
under
Chapter-II, Regulation 3 of the U.P.
Intermediate Education Act, 1921.

4. Brief facts necessary for deciding
the writ petition are; the petitioner was
appointed in the year 1969 in a recognised
institution, namely Sahay Singh Balika
Vidhyalaya, Narhi, District Lucknow. By
an order dated 28th September, 1983 the
Regional Inspectress of Girls Schools, 4th
Region,
Allahabad
transferred
the
petitioner from Sahay Singh Balika
Vidyalaya, Narhi, District Lucknow to
Arya Kanya Inter College, Govindpur,
Kanpur.
The
said
transfer
order
specifically mentioned Regulations 55 to
62 of Chapter-III of the U.P. Intermediate
Education Act, 1921. The petitioner in
pursuance of the said transfer order joined
at Arya Kanya Inter College, Govindpur,
Kanpur with effect from 7th November,
1975. The Committee of Management has
shown the petitioner senior to respondent
No. 6 in its seniority list. Respondent No.
6 has challenged the said seniority list and
submitted an appeal before the Joint
Director of Education which has been
decided by the impugned order. The Joint
Director of Education in the impugned
order has taken the view that there were
no service rule with regard to teachers of
the primary section. He further held that
inter-se seniority of the petitioner and
respondent No. 6 shall be determined
from the date of their appointment after
the institution was taken in grant in aid.
The Joint Director of Education held that
seniority of the petitioner shall be treated
only from 1st November, 1983 when she
joined after transfer in Arya Kanya Inter
College.

5. Learned counsel for the petitioner,
challenging the order, contended that the
order of Joint Director of Education
holding respondent No. 6 senior is
incorrect. He submits that petitioner's
transfer
being
under
Chapter-III,
Regulations 55 to 62, her services prior to
transfer have to be added for the purposes
of seniority by virtue of Regulation 59 of
Chapter-III.
He
submits
that
Joint
Director of Education committed error in
reckoning the seniority of the petitioner
only from 1.11.1983.

6. Sri P.N. Saxena, learned Senior
Advocate, appearing for the contesting
respondent, has submitted that both
petitioner and respondent no. 6 being
teachers of the primary section running
attach to the Intermediate College their
services
are
not
governed
by
the
provisions of Regulations 55 to 62 of
Chapter-III
of
U.P.
Intermediate
Education Act, 1921 and the petitioner is
not entitled to reckon her services prior to
transfer.

I have considered the submissions
raised by both the parties and perused the
record.

7. The main issue which has arisen
in the writ petition is with regard to
applicability
of
the
provisions
of
Regulations 55 to 62 of Chapter-III of
U.P. Intermediate Education Act, 1921 on
the teachers working in attach primary
section. Both petitioner and respondent
No. 6 are teachers of the primary section
of the girls Intermediate College. The
institution is running from Class-1 to 12.
1124 INDIAN LAW REPORTS ALLAHABAD SERIES [2006

8. The question as to whether on the
teachers of the primary section the
provisions of U.P. Intermediate Education
Act, 1921 and regulations framed there
under are applicable or not, has been
answered by a Division Bench of this
Court in 1993 (2) E.S.C. 177; Committee
of
Management
Vs.
Director
of
Education and others. Following has
been laid down in paragraphs 11 to 14 of
the said judgment:-

"11. In view of the submissions made
by the learned Counsel for the parties, the
first question that requires consideration
is whether the Act applies to the Primary
Section also or not. Section 2 (b) of the
Act, as amended by the Ordinance which
came into force on 7th July, 1975, defines
the term 'Institution' as follows:

"Institution" means a recognised
Intermediate College, Higher Secondary
School or High School, and includes,
where the context so requires, a part of an
institution."
(emphasis supplied).

In view of this definition, the Act
applied not only to Intermediate College,
Higher Secondary School or High School
but also to a part of such college or
School. After the definition of 'institution'
was amended, Appendix 'A' to the Act
was
also
amended
and
minimum
educational
qualifications
were
prescribed
for
assistant
teachers
employed
to
teach
primary
classes
(Classes I to V). In view of these
amendments it is not possible to accept
the submission of the learned Counsel for
the appellant that the Act does not apply
to the Primary Section. In taking this
view, we have the support of the decision
of a Division Bench of this Court in Smt.
Samantika
Chatterjee
v.
Regional
Inspectress of Girls School, (1990) 1
UPLBEC 239. In paragraph 12 of the
Report at page 246, the Division Bench
after noticing the relevant provisions of
the Act, has observed thus:

"In the context and setting of
Regulation 7 (2), there can be no
difficulty in taking the view that a teacher
working in J.T.C/B.T.C. grade and
assigned the task of taking the primary
classes
attached
to
a
recognised
Intermediate
College
or
Higher
Secondary School or High School would
be considered to be working in the part of
the institution."

12. Relying upon the decision of
their Lordships of the Supreme Court in
Km. Prem Lata Mishra's case (supra),
the learned Single Judge held that the Act
was not applicable to the Primary
Section. In the said case, the order of
termination of service had been passed in
the year 1970, that is, before the
definition of "Institution" was amended.
After the amendment of the definition this
authority has become irrelevant.

13. In Mahanand Singh and others
v. State of U.P. and others, 1978 ALJ
1042, a Division Bench of this Court held
that the Act was inapplicable to Junior
High School Section of a High School as
it did not contain any provision regulating
the administration or teaching of students
of Junior High School standard. In
making this observation the Division
Bench solely relied upon the decision of
their Lordships of the Supreme Court in
Prem Lata Misra's case (supra). It
appears that the attention of the Division
Bench was not invited to the amendments
in Section 2 (b) and the Appendix 'A'
thereof referred to hereinabove.

14. In view of the amendments in
the Act and the law laid down in Smt.
Samantika Chatterjee's case (supra), the
3 All] Smt. Tejendra Chawla V. State of U.P. and others
1125
finding of the learned Single Judge that
the Primary Section of the Institution is
not covered by the Act cannot be
sustained."

9.

Learned
counsel
for
the
contesting respondent has also very fairly
drawn my attention to Appendix 'A' of
Chapter-II, which provides qualifications
for teachers of junior classes (6 to 8) and
teachers of primary sections (Classes 1 to
5). The prescription of the qualification in
Appendix 'A' clearly indicates that the
teachers of the primary sections are not
out
of
the
purview
of
the
U.P.
Intermediate Education Act, 1921. The
Division Bench has already held that
provisions of U.P. Intermediate Act, 1921
are applicable to the teachers of primary
section. Moreso, in the present case the
transfer order was passed by the Regional
Inspectress of Girls School specifically
referring Regulations 55 to 62, thus, the
transfer order itself was under the power
conferred under Regulations 55 to 62. In
this writ petition there cannot be any
challenge to the transfer order which was
passed 23 years ago nor any such
challenge has been made. Regulation 59A
is squarely applicable as it was existing at
the relevant time, hence the petitioner's
services prior to transfer has to be added
for the purposes of seniority.

10. In view of the foregoing
discussions, the order of Joint Director of
Education, impugned in the writ petition,
cannot be sustained and is hereby
quashed. It is held that petitioner is senior
to respondent No. 6.

11. The writ petition is allowed
accordingly.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.07.2006

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No.34681 of 2006

Roop Chand Chauhan

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

Counsel for the Petitioner:
Sri Ashok Khare
Sri Sunil Kumar Srivastava

Counsel for the Respondents:
Sri Vinod Kumar Rai
Sri R.P. Dubey
Sri Janardan Prasad Pandey
Sri A.B. Saran
S.C.

U.P.
Secondary
Education
Service
Commission (Procedure for Approval of
Punishment)
Regulation
1985Regulation-21-Power
of
Board-can
approve,
disapprove
or
modify
the
proposal of punishment given by the
management-but can not debar from
exercising the power as principal-Order
ceasing the financial and administrative
power of the Head of Institution-Heldwithout jurisdiction.

Held: Para 14, 20,21

In view of the aforesaid decisions, it is
clear that the Board has a power to
approve or disapprove the punishment
proposed
by
the
Committee
of
Management including the power to
modify the proposed action to be taken
by the Committee of Management. The
Board has the power to modify the order
of proposed punishment.

The petitioner, being the head of the
institution is entitled to perform the