R.A.Sharma - (1.) PETITIONER, who is an Assistant Teacher in Kisan Junior High school Bhurni, Khatipur P. O. Laksar, district Saharanpur (herein-after referred to as the school), claim to have been appointed on this post on 1-4-1968 by the committee of management of the school. In 1972 the U. P. Basic Education Act (hereinafter referred to as the Act) was enacted by the State of U. P. so as to provide for establishment of U. P. Board of Basic Education and the matter connected therewith. In pursuance of the Act the Government of U. P. framed Rules known as U. P. Recognised Basic School (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (herein-after referred to as the Rules) for governing conditions of service of teachers working in Junior High Schools in the State.
(2.) BEFORE the Rules were framed, there was no statutory rules regulating the conditions of service of teachers in Junior High Schools. After the framing of the Rules the management of the school submitted the names of the teachers working in the school for approval by the District Basic Education Officer (herein-after referred to as the Education Officer), Saharanpur. The petitioner's appointment was confirmed by the Education Officer vide order dated 7-9-1979 with effect from 1-7-1972. The Education Officer vide letter dated 17-9-1984 asked the petitioner to show cause as to why his appointment be not cancelled. The petitioner submitted his reply and thereafter the Education Officer vide his order dated 15-11-1984 approved the proposal of the management of the school for terminating the service of the petitioner. Consequently the management of the school issued orders of termination dated 16-11-1984 to the petitioner. The petitioner has filed this writ petition against the aforesaid orders of termination of his service. The ground on which the petitioner's service has been terminated is that the petitioner does not have the certificate of teachers training course. At the time the petitioner was appointed in 1968 a training certificate was not one of the conditions for appointment to the post of Assistant Teacher in Junior High Schools. In fact there was no rule laying down the conditions of service for teachers of Junior High Schools. These Rules were framed for the first time in 1978. Rule 5 of the Rules lays down that no person shall be appointed as Assistant Teacher in the school unless he possesses the minimum qualification prescribed for the post. Rule 4 prescribed the qualification for the post of Assistant Teacher and one of the qualification is certificate of teachers training course.
(3.) THE Act neither provides for transfer of management of Junior High Schools to the Government or the Education Board nor does curtail the managerial power of the management of these schools. Section 9 of the Act provides for transfer of the employees serving under a local body exclusively in connection with the basic schools and after transfer these employees to hold office by the same tenure, at the same remuneration and upon the same other terms and conditions of service as they would have held the same if the Board had not been constituted. This section further provides for option to these employees to opt out of the service of the Board within two months from the appointed date. So far as the private schools are concernad, there is no such provision in the Act or Rules framed thereunder for transfer of the employees of these schools to the Government or to the Board. THE management of these private schools has been left untouched by the Act and the Rules. Only in 1978 for the first time Rules were framed regulating the conditions of service of the teachers working in Junior High Schools but the power to appoint these teachers remains with the management of these schools. THE Act and the Rules framed thereunder do not deal with services of the employees including the teachers of these schools, who were appointed before framing of the Rules in 1978. THE Rules are prospective in nature and do not affect the appointments, which have already been made before the commencement of the Rules. THE services of the teachers, who were appointed before the enforcement of 1978 Rules cannot be terminated on the ground that they do not possess some requisite minimum qualifications which have been provided for the first time by 1978 Rules. Learned counsel for the respondents has relied upon certain cases in which it has been laid down that on take-over of an institution by the Government, Government can impose qualification for absorption and further promotion and if the employees do not have the qualification so prescribed, they can be screened out. In the instant case neither the school nor its management has been taken over by the Government. The Government has also not provided any qualification and provision for screening out the old employees In the absence of any such provision in the Act or the Rules framed thereunder for screening out the teachers on the ground of lack of some qualification, it is not open to the State to terminate the services of teachers. Appointments validly made cannot be declared to be invalid except when there being no such provision, the termination of services of the petitioner is absolutely without jurisdiction.;