- (1.) D. K. Seth, J. The petitioners, confirmed as Assistant Teachers in Primary Section of Navli later College, Navli, district Ghazipur, by means of this writ petition, seek quashing of the notice dated 4th May, 1995 (Anne xure 4 to the writ petition) by which their services were sought to be termi nated with consequential relief regarding continuance of their service arid payment of salary.
(2.) THE said Navli Inter College governed under the provisions of U. P. Intermediate Education Act, 1921, U. P. Secondary Education Services Com mission and Selection Boards Act (U. P. Act No. 5 of 1982) and U. P. High School and Intermediate College (Payment of Salaries of Teachers and other Employees) Act, 1971 (U. P. Act No. 24 of 1971) imparted education from Class I to Class XII, of which Class I to Class V conducted in Primary Section, and integral part of the said College, was receiving grant-in-aid of the Intermediate, Section being Class VI to Class XII and was within the purview of U. P. Act No. 24 of 1971. By or under a Government Order dated 6th September 1989, all Primary Sections of 393 Higher Secondary Schools including the said College in the State of Uttar Pradesh were brought in the list of Institutions receiving grant-in-aid from the State government within the purview of U. P, Act No. 24 of 1971. Each of the petitioners who were appointed on diverse dated in the Primary Section of the said College were duly confirmed respectively. Originally the petitioners were being paid by the Management but subsequently with effect from 1st October, 1982, the petitioners were being paid regularly from Government Funds by the District Inspector of Schools, Ghazipur hereinafter referred to as 'dios', in terms of U. P. Act No. 24 of 1971. On 4th of May, 1995, notice of even date being Annexure '4' collectively were served upon the petitioners purporting to ter minate the service of each of the petitioners by the management, against which a representation was made before the DIOS being Annexure '5' to the writ petition upon which the DIOS, by order dated 20th May, 1995 (Anne xure 6) directed the Management that the decision dated 4th May, 1995 should be kept in abeyance till further orders. Despite such order, on 1st July, 1995 on the re-opening of the School after vacation, the Attendance Registrar was not made available to the petitioners when they attended the School, due to which a representation (Annexure 7) was presented on 1st July, 1995 before the DIOS. Despite the order dated 5th July, 1995 issued by the DTOS even after the re-opening the Schools on 10th July, 1995 under the orders of the Education Department, the petitioners were not permitted to function and enter the institution and sign the register by the Manage ment who also did not permit the students of the Primary Section to enter the Institution. Due to such reason, the petitioners held classes of the Primary Section outside the School premises and made further representa tion on 13th July, 1995 (Annexure 10 ). Despite order dated 20th May, 1995 passed by the DIOS the situation has not been altered. On this background, the petitioners contend that their services being that of permanent Assistant Teachers could not be dispensed with except in accordinance with the procedure prescribed under Rules 35, 36 and 37 of Chapter III of the Regulations framed under the 1921 Act without prior approval of the Secondary Education Service Commission, as envisaged under Section 21 ot U. P. Act No. 5 of 1982 and no such procedure having been followed, the order of termination sought to be effected by the impugned notice contained in Annexure '4' are non-est and hence the aforesaid prayers made in the writ petition by the petitioners. Mr. Asbok Khare, learned counsel appearing on behalf of the peti tioners, contended that the said order contained in Annexure 4 purports to close down the Primary Section of the said Institution which is not permissible under Regulation 10, Chapter VII of the Regulations framed under the U. P. Intermediate Education Act. The said Act applies even to Primary Section of the Intermediate College where Primary Section forms an integral part of the same Institution which is being managed by the same Management Committee and it is more so by reason of amendment made in the definition of 'institution' in Section 2 (b) of the 1921 Act where the phrase "part of an Institution" was also included. By reason thereof, according to him, the provisions of 1971 Act and 1921 Act are also attracted. By reason of Regulations 35, 36 and 37 of Chapter III of the Regulations framed under the 1921 Act read with Section 21 of 1982 Act, the services of the petitioners could not be terminated without the prior approval of DIOS as contemplated in the respective provisions. Despite the order dated 20th May, 1995 (Annexure 6) directing the order dated 4th May, 1995 (Annexure 4) to be kept in abeyance, no purposeful result has been obtained despite successive representations and successive orders including the order dated 5th July, 1995 (Annexure B ). Therefore, Writ Court should come in aid for enforcing the law and the legal provisions. Therefore, he prays that the order and the notice contained in Annexure 4 should be quashed and all consequential reliefs should be made available to the petitioners not only in the interest of the Institution but also in the interest of the students who are also the worst sufferers.
(3.) LEARNED counsel appearing for respondents 1 and 2 had supported the orders passed by the DIOS. Dr. Padia appearing for the respondents 3 and 4 vehemently opposed the contention of Mr. Khare. He took a Preliminary objection that the petitioners having availed of the alternative remedy by way of making a representation whereupon the respondents haying acted upon, they can not maintain the writ petition. In support he relied on the decisions in the case of K. S, Rashid and Sons v. I. T. I. Commission, AIR 1954 SC 207 ; Mulak Shah v. The Sales Tax Officer, AIR 1958 All 676 and Sheo Nath Singh v. Appellate Assistant Commissioner, AIR 1967 Gal 382. Relying on the decision in the case of Commissioner, Lucknow Division v. Kumari Frsmlaia Mishra, AIR 1977 SC 334, his second contention was that on writ petition lies against a Manager or Committee of Management since none of them are statutory authorities and, therefore, the private management is not amenable to writ jurisdiction. On the question of merits relying on the decision in the case of Km. Premlata Mishra (supra) he submitted that the primary section was pot an integral part of the said Institution and that the amendment made in the definition of 'institution' can not be said to be attracted because though the amendment in the definition was not there when the appeal in the case of Km, Premlata Mishra (supra) was filled, but during the pendency of the appeal, the change was brought in. Therefore, on the present facts where the cause of action arose long after the amendment of the said definition of the Institution, the ratio decided in Km. Premlata (supra) is attracted. In support he also relied on paragraph 12 of the decision in the case of Smt. Samantika Chatterjee v. Regional Inspectors of Girla School, Allahabad, 1990 (1) UPLBEC 239, and submitted that a Primary Section can not be an integral part of an Inter College, According to him, Regulation 18, Chapter VII of the Regulations framed under the 1921 Act deals with the question of recognition only for the purpose of holding examinations and that the said Chapter relates to Class VIII to Class XII.;