S. Saghir Ahmad, J - (1.) THE Petitioner is a registered society which established Janta Junior High School in 1969. The school was granted temporary recognition but in 1974 it was granted permanent recognition and then with effect from 1 -7 -74 one Sri Ram Prakash Misra, M.A. B.Ed. was appointed as its Head Master. In 1980 the school was raised to High School and was recognized as such by the Board of High School and Intermediate Education (for short, Board) established under the U.P. Intermediate Education Act and is now being run under a duly approved scheme of Administration. Sri Ram Prakash Misra continued as Head Master of the upgraded Janta High School and he was also approved by the Managing Committee, as he possessed the necessary qualifications in that regard. The school, it is claimed, is not an aided institution and is not on the list of grants -in -aid institutions so the salaries to the teaching and non -teaching staff are paid by the Managing Committee and it is not the responsibility of the Government to pay salary to the said stati, as the provisions of the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 is not applicable.
(2.) IN 1981 U.P. Secondary Education Service Commission and Selection Board Ordinance (Ordinance No. VIII of 1981) was promulgated which was later replaced by U.P. Ordinance No XXIII of 1981 and then by U.P. Act V of 1982 with retrospective effect from 14 -7 -81, the date on which the Ordinance was first promulgated. Under this Act the appointment to the post of head of the Institution and teachers are to be made through Commission or Board constituted thereunder. The post of Head Master of the upgraded Janta Higher Secondary School (hereinafter to be referred to as the Schools) was advertised by the U.P. Secondary Education Service Commission (for short, Commission) on 9th April, 1983 through the advertisement contained in Annexure 1 to the writ petition. Subsequently the Commission by its letter dated December 9, 1983 (annexure 2) directed the Petitioner to appoint Sri Ras Behari Misra (opposite party No. 5) as the Principal of the Janta Higier Secondary school. It is this selection and appointment which has been impugned in the present writ petition on the grounds, inter alia that U.P. Act V of 1982 was not applicable to the institution in question which was not on the list of grants -in -aid institutions and that, in any case, the post of head of the institution was not vacant which could be advertised or on which an appointment could be directed to be made by the commission as Sri Ram Prakash Misra, Head Master, appointed by the Managing Committee, was already working on that post after the institution was raised to High School and recognised as such by the Board. It has also been contended that the provisions of the Act are ultra vires the Constitution, as it restricts the functioning of the members of a registered society, who under Article 19 have fundamental right to form association and to act through the society or the association. Since under U.P. Act V of 1982 the members could not make appointment of the teachers including the head of the institution, their functioning it is claimed, has been curtailed and, therefore, the Act is hit by Article 14 and 19 of the Constitution. The Petitioner Society has also contended that the regulations made under the U.P. intermediate Education Act were still available and consequently under Regulation 4 of Chapter II of the Regulations, the permanent and temporary teachers of the janta Junior High School became the permanent and temporary teachers of the Janta Higher Secondary School. The provisions of Regulation 4 though they speak of teachers only, would be treated to cover the case of the head of the institution also so that Sri Ram Prakash Misra, who was also otherwise qualihed, as lie possessed the degrees of M.A. and B.Ed., became the Principal of the Janta Higher Secondary School, particularly when he was also approved by the Managing Committee for the said post. The Commission in this situation had no jurisdiction to advertise the post or to make any appointment on the said post.
(3.) LET us first take up the question of vires of the Act. We may in this connection point out at the very out set that the Petitioner has not laid a strong foundation in this writ petition for challenging the vires of the Act. The pleadings set out in the writ petition do not make out a case that the Act is ultra vires the Constitution. The necessary averments, of facts m this regard are contained in paras 13 and 19 of the petition which are reproduced below: 13. That the application of the said Act No. V of 1982 upon the institution of the Petitioner is wholly arbitrary, either it is not applicable or it it is applicable then it is ultra vires to Articles 14 and 19(1) of the Constitution of India 19. That the Petitioner being a registered society had a right to carry out its lawful activities in pursuance ol its objects manage its affairs, including the appointment of the teachers and the Secondary Education Service t omissions Act cannot totally curtail or take away the functions of the society, this restriction is beyond the scope of Article 19(ii) of the Constitution of India and is not a reasonable restriction.;