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PETITIONER:

SMT. RAJ KUMARI CECIL

Vs.

RESPONDENT:

THE MANAGING COMMITTEE OF LAXMI NARAIN BHAGWATI DEVIVIDYA MA

DATE OF JUDGMENT: 27/11/1997

BENCH:

SUJATA V. MANOHAR, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:

THE 24TH DAY OF NOVEMBER, 1997

Present:

Hon'ble Mrs.Justice Sujata V.Manohar

Hon'ble Mr.Justice D.P.Wadhwa

Manoj Swarup. Ms.Lalita Kohil, Advs. for M/s. Manoj Swarup &

Co., Advs. for the Appellant

S.V. Deshpande, Adv. for the Respondent

K.S. Chauhan, (K.P.S. Dalal) Adv. for R.B. Misra, adv. for

the State.,

J U D G M E N T

The following Judgment of the Court was delivered:

D.P. Wadhwa, J.

The appellant who was working as Headmistress in the

School of the respondent filed the present appeal against

the judgment dated December 19, 1986 of the High Court of

Judicature at Allahabad (Lucknow Bench). The judgment of

the High Court decides two matters: (1) second appeal filed

by the respondent, the Managing Committee of the school

arising out of a civil suit filed by the appellant and (2) a

writ petition also filed by the appellant in the High court.

While the appeal filed by the Managing Committee was

allowed, the writ petition of the appellant was dismissed.

The appellant was working as Headmistress of the junior

school of the respondent. The school was upgraded and

recognised as Higher Secondary School. The Managing

Committee published an advertisement inviting applications

for the post of Principal. The appellant who was working at

that time as Headmistress also applied for the post of

Principal. She was called for interview and was selected by

the Managing Committee. Her appointment was, however,

subject to the approval under the provisions of the

Intermediate Education Act, 1921. Appellant was placed on

probation for one year from the date of joining of her duty.

She joined her post on May 1, 1969. Instead, however,

confirming the appellant to the post of Principal the

Managing Committee by letter dated May 1, 1970 terminated

her services. This was on the ground that the competent

authority under the Intermediate Education Act did not

approve her appointment to the post of Principal inasmuch as

the appellant did not possess the requisite qualifications

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as prescribed for the post of Principal in a higher

secondary school. This led the appellant to file a civil

suit in the court of Munsif North, Lucknow claiming relief

for declaration that she was a confirmed Headmistress in the

school of the respondent and for mandatory injunction that

respondent be ordered to confirm her on the post of

Headmistress in the said school and she also prayed for

decree of perpetual injunction for restraining the

respondent from removing her from the post of Headmistress

as also from making new appointment and holding any

selection. After the services of the appellant were

terminated the respondent also re-advertised for the post of

Principal and the appellant again applied for her

appointment to that post in pursuance to that advertisement.

The trial court granted the appellant decree of declaration

as prayed but refused to grant the relief of injunction.

The Managing Committee filed an appeal against the judgment

and decree of the trial court. The appellate court upheld

the judgment and decree of the trial court and dismissed the

appeal. Against that the Managing Committee filed second

appeal in the High Court which, as noted above, was allowed

and the suit filed by the appellant dismissed.

The appellant also filed writ petition in the High

Court praying for a writ of mandamus directing the

respondents to implement the decision of the court in civil

suit filed by her and for payment of arrears of salary and

allowances to hr. This writ petition was also dismissed.

Aggrieved the appellant has filed this appeal.

There is no dispute that the appellant did not possess

the qualifications for being appointed as a Principal of the

Higher Secondary School. It is also approval of the

competent authority under the Intermediate Education act,

It is correct that the competent authority has power to

relax the qualification but then again it is not disputed

that the competent authority did not relax the qualification

for the appointment of the appellant as Principal of the

Higher Secondary School of the respondent. We may also note

that when the respondent filed her civil suit in the court

of Munsif and also writ petition in the High Court, she did

not implead the competent authority under Intermediate

Education Act or the State of U.P. as party defendant or

respondent. Recognition and upgradation of the school is

done by the Board constituted under the aforesaid Act and

aid is provided by the State Government. it was admitted

before us that the school of the respondent is an aided

school. That would mean that for payment of whole of the

salary or part of the salary, the funds are to be given by

the State Government. An issue was framed in the trial

court if the suit was bad for non-joinder of educational

authorities which issue unfortunately was decided against

the respondent. Perhaps not much serious thought was given

to the issue so raised by the courts below.

To understand the plea raised by the appellant in the

civil suit, we may refer to the issues framed therein.

These are as under:

"1, Whether the termination notice

to the plaintiff is illegal and

without reasonable cause?

2. Whether the plaintiff's

appointment was temporary and

conditional as alleged in para 12

of the W.S.?

3. Whether the suit is bad for non-

joinder of necessary party as

alleged in para 20 and 22 of the

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W.S.?

4. whether the suit is not

maintainable as alleged in para 21

of the W.S.?

5. To what relief, if any, is the

plaintiff entitled.?

6. Whether the suit is barred by

estoppel as alleged in the W.S.?

From the judgment of the first appellate court, it

appears that the trial court decreed the suit for

declaration that the appellant continued to be on the post

of Principal though her suit for relief of injunction was

dismissed.

When the matter came before the first appellate court,

it said that the following points were to be considered for

the purposes of the decision of the appeal:

"Whether the termination of the

plaintiff from the post of

Principal is illegal because, no

prior approval of the educational

authorities was obtained before

terminating the services of the

plaintiff?

2. Whether the plaintiff is

estopped from challenging her

termination?

3. Whether the suit is bad for non-

joinder of the educational

authorities?

4. Whether the learned Munsif acted

illegally in decreeing the suit for

declaration for which no relief is

prayed by the plaintiff."

In the second appeal before the High Court the

substantial questions of law which were considered could be

gathered from the impugned judgment and these are as under:

"Aggrieved against the decree of

the two courts below, the

defendant-appellant has come to

this court and the two substantial

questions of law on which this

appeal was admitted by this court

were (1) as to whether the

appointment of the plaintiff-

respondent would be deemed to have

been approved under Section 16-F(2)

of the U.P. Intermediate Education

Act as is stood in 1969 and (2) as

to whether the respondent was

stopped from challenging the latter

dated 1.5.1970 terminating her

services on the ground that her

appointment had not been approved

by the educational authorities

whether after the post had been re-

advertised and the plaintiff-

respondent had applied against the

freshly advertised post. Another

substantial question of law pressed

was as to whether under the

provisions of Section 16-G(2) of

the Act the approval from competent

authority was required in

terminating the services of the

plaintiff-respondent."

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We do not think there can be any dispute that when

appointment of the appellant was subject to approval by the

competent authority on relaxation of her qualifications for

the post of Principal, it is nevertheless necessary for the

respondent to seek approval for termination of the

employment of the appellant.

Under Section 16-E of the act, qualifications for

appointment as Principals, Headmasters and teachers of

different subject at different stages of the course shall be

prescribed by regulation provided that the Board may after

considering the report of the Director exempt any person

from the requirements of minimum qualification having regard

to his experience, education and other attainments.

'Director' means Director of Education, Uttar Pradesh, as

defined under Section 2(aaa). Section 16-F bard the

appointment as a Principal, Headmaster or teacher in a

recognized institution unless he possess the prescribed

qualification or has been exempted under Section 16-E.

However, if no candidate possessing the prescribed

qualifications is available for appointment, the Inspector

of schools may permit the institution to employ as a

temporary measure any suitable person for a period not

exceeding one year. Such period may be extended with the

prior approval of the Inspector. Section 2(bb) of the Act

defines 'Inspector' to mean the District Inspector of

Schools and includes an officer authorised by the

state Government to perform all or any of the duties of the

Inspector. Sub section (2) (3) and (4) of Section 16-F

provide as to how a person is to be appointed as a Principal

etc. There are as under:

"16-

F.9(1)..........................

(2) The name of the selected

candidate shall be forwarded for

approval, in the case of a teacher,

by the Principal or Headmaster the

Inspector, and, in the case of

Principal or Headmaster, by the

Chairman of the selection committee

to the Regional Deputy Director,

Education. A statement showing the

names, qualifications and other

particulars as may be prescribed of

all candidates who may have applied

for selection shall also be sent

along with the name of the selected

candidate. The Inspector or

Regional Deputy Director,

Education, as the case may be,

shall give his decision within two

weeks of the receipt of the

relevant papers, failing which

approval shall be deemed to have

been accorded.

(3) Where the Regional Deputy

Director, Education, or the

Inspector, as the case may be,

disapproves for reasons to be

recorded in writing of any name

proposed under sub-section (1), the

management may, within three weeks

of the receipt of the disapproval,

make a representation against it to

Deputy Director in the Director,

Education, in the case of a

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teacher, and the decision of the

Director or Regional Deputy

Director, Education, as the case

may be, in the matter shall be

final.

(4) Where the recommendation made

under sub-section (2) has been

disapproved and the representation

of the management, if any, under

sub-section (4) has been rejected,

the selection committee shall

proceed to select and recommend

another name for approval as

provided under Section 16-E and 16-

F. If the selection so made is

again disapproved and the

representation, if any, against the

disapproval has not been accepted,

the Regional Deputy Director,

Education, in case of a teacher and

the Director in case of principal

or Headmaster may appoint any

qualified person out of the list of

the candidates applying for the

vacancies and such appointment

shall be final".

In this case, when approval of the appointment of the

appellant was not forthcoming or appointment had been

disapproved, the process for selection of Principal was

restarted and advertisement put in pursuance of which the

appellant also applied. Reliance had been placed on the

provision of Section 16-G relating to conditions of service

of teachers which provides that the Principal or Headmaster

as the case may be, could not be served with notice of

termination of service except with the prior approval in

writing of the Inspector. Section 16-G, in relevant part,

is as under:

"16-G-

(1)................................

..

(2)................................

........

(3)(a) No Principal, Headmaster or

teacher may be discharged or

removed or dismissed from service

or reduced in rank or subjected to

any diminution in emoluments, or

served with notice of termination

of service except with the prior

approval in writing of the

Inspector. The decision of the

Inspector shall be communicated

within the period to be prescribed

by regulations.

(b) The Inspector may approve or

disapprove or reduce or enhance the

punishment or approve or disapprove

of the notice for termination of

service proposed by the management:

Provided that in the cases of

punishment, before passing orders,

the Inspector shall give an

opportunity to the Principal, the

Headmaster or the teacher to show

cause within a fortnight of the

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receipt of the notice why the

proposed punishment should not be

inflicted."

Under clause (e) of Section 16-G, an appeal could be

filed before the appellate committee against the order of

the Inspector. Under sub-section (4) of Section 16-G an

order made or decision given by the competent authority

under sub-section (3) shall not be questioned in any court

and the parties concerned shall be bound to execute the

directions contained in the order or decision within the

period that may be prescribed therein.

Considering the pleadings of the parties and the

provisions of law set out above the answer becomes quite

obvious that the appellant had no case either in the suit or

in the writ petition. The appellant ceased to be

Headmistress on upgradation of school of the respondent to

the Higher Secondary School as the post was upgraded. She

did not possess qualifications to be appointed as Principal

of the Higher Secondary School. Her qualifications were not

relaxed. The Competent Authority under the Intermediate

Education Act did not grant approval for her appointment as

a Principal which is a pre-condition under the law. Since

the appointment itself was not approved it was not necessary

for the Managing Committee of the school to get consent of

the authority concerned for the termination of her services

as a Principal. Her civil suit and the writ petition had no

basis and were rightly dismissed by the High Court.

However, our attention was drawn during the course of

arguments towards the provisions of Regulation 16 of Chapter

III of the Regulations under the Intermediate Education Act,

which is as under:

"16. The vacancy of a head of an

institution shall be filled by

direct recruitment for which

teachers serving in the institution

may apply without upper age-limit,

if any:

Provided that when an institution

is raised from a High School to an

Intermediate College, the post of

Principal shall be filled by the

promotion of the Headmaster, if he

is qualified, possesses a food

record of service and is approved

in the manner described in the Act.

A Headmaster not approved shall be

retained as an assistant teacher on

the highest post for which he is

qualified, provided that his pay

shall not be reduced."

It was submitted that the appellant was a confirmed

Headmistress of the school of the respondent and on

upgradation of the school when she did not satisfy the

qualifications of the Principal, she could not be thrown out

an she continued as a Headmistress being confirmed employee

of the respondent. Perhaps the indication was towards the

proviso of the above regulation which says that in such

circumstances Headmistress could have continued as an

assistant teacher, if she satisfied other qualifications as

laid down for a teacher for a Higher Secondary School. We

are afraid no such plea was ever raised and record also does

not show if at any time the appellant ever based her case on

such a plea. We, therefore, find no merit in this appeal.

The appeals are, therefore, dismissed. There will be

no order as to costs.

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