- (1.) BY means of this writ petition, moved under Article 226 of Constitution 2009 (1) Committee of Management Versus District Education Officer 387 of India, the petitioner has sought writ in the nature of certiorari quashing the order dated 12. 01. 2007, passed by re spondent No. 1 and order dated 18-06- 2007, passed by respondent No. 2. A further direction is sought in the nature of mandamus commanding respondent No. 1 for approval of appointment of candidates, recommended by the duly constituted Selection Committee, pursu ant to the request made by the petitioner vide its letter dated 27-12-2006.
(2.) HEARD learned counsel for the par ties and perused the affidavit, counter affidavit and rejoinder affidavit. Brief facts of the case are that L. W. S. Girls Inter College, Bhatkot, Pithoragarh (herein after referred as In stitution), is a minority Institution, which is imparting education up to the Inter mediate standard. It is a recognised and aided institution, whose affairs are gov erned according to a Scheme of Admin istration under the provisions of UP. In termediate Education Act, 1921 (now under Uttaranchal School Education Act, 2006 ). Initially the institution was established in the year 1934 by an American Missionary as an Anglo Ver nacular Middle School, Pithoragarh. Secretary, Secondary Education Board, U. P. , vide its order dated 21-09-1965, granted recognition to the institution in 8 subjects - Hindi, English, Home Sci ence, Civics, Economics, History, Geog raphy and Sanskrit, for running the classes up to 10th standard. At that point of time, six posts of L. T. Grade teach ers in the institution were created and sanctioned. Later two more posts of L. T. Grade teachers were sanctioned for the subjects - Science/mathematics and Bi ology, vide order dated 27-03-1991. Meanwhile, recognition was granted to the Institution for running Intermediate classes in the subjects- Hindi, English, Economics, Political Science, History and Geography, vide order dated 24-08-1985. Consequently, four more posts of teachers were sanctioned/created in the Institution, which were of the Lecturer's grade, apart from one post of Principal of the college. Management of the Insti tution, in the year 1991, made a request to the education authorities to convert the post of Lecturer in Sanskrit to the post of Lecturer in Political Science, as there were no students, who opted for Sanskrit in the institution. Said request was accepted by the authority con cerned w. e. f. 01 -07-1992. Meanwhile, three more posts of Lecturers were cre ated and sanctioned vide order dated 27-03-1991. As such, the total strength in the Institution is six sanctioned posts of C. T. grade teachers, five sanctioned posts of L. T. grade teachers and seven sanctioned posts of Lecturers apart from one sanctioned post for the Principal. Initially appointed J. T. C. grade teachers were promoted in C. T. grade under Regulation 7 (2) of Chapter II of Regu lations framed under U. P. Intermediate Education Act, 1921. Four out of them (C. T. grade) were merged in the cadre of L. T. grade, as per the government or ders issued in this regard. It is further stated in the writ petition that manage ment of the institution applied for three more subjects for High School classes, namely Music, Sewing and Drawing but Secretary, Education Board, U. P. turned down the request of the petitioner, vide its order dated 18-04-1999. As such, no posts of L. T. grade teachers were cre ated for these subjects. On 30-06-2002, one post of L. T. grade teacher fell va cant on superannuation of Mrs. S. P. Singh. Again on 15-09-2004, the Man agement of the Institution sought permis sion to fill the vacancy, caused due to superannuation of Mrs. S. C. Singh in the L. T. grade. Meanwhile, further two va cancies arose and vide letter dated 16-06-2006, petitioner sought permission to fill three vacancies in the L. T. grade. Said request was allowed by District Education Officer (Respondent No. 1) vide his order dated 11- 07-2006. Con sequently, Management of the Institution issued advertisement and got it published on 19-07-2006 in two daily newspapers namely Amar Ujah and Dainik Jagran. The applications received were proc essed, as per the rules and interview was conducted by the Selection Com mittee, constituted for the purpose. Fi nally, recommendations were sent by the management for approval of District Education Officer (respondent No. 1), vide its letter dated 27-12-2006. But re spondent No. 1 vide impugned order dated 12-01 -2007, unilaterally can celled the permission granted for adver tising the vacancy on 11 -07-2006, with out affording any opportunity of hear ing to the management in the matter. On the same day, i. e. 12-01-2007, respond ent No. 1 also communicated that post of Lecturer in Political Science was wrongly filled by the petitioner as the same was not created. Petitioner's case is that respondent No. 1 lost sight of the fact that earlier post of Lecturer in San skrit was converted to Lecturer in Po litical Science. According to the peti tioner, it is erroneous view of the re spondent No. 1 (District Education Of ficer, Pithoragarh), that since Mrs. Prema Tiwari, Principal of the Institu tion was qualified to teach History, as such, there was no need to fill the post of Lecturer in History. The reasons given by respondent No. 1 in his impugned or der dated 12-01-2007, are against the norms provided in the Government Or der dated 09-08-1999, which requires for increase in the number of sections in a class proportionate to the number of students studying in the Institution. In para-22 of the Writ Petition, it is stated that petitioner is feeling difficulty in im parting education to the students in ab sence of teachers in L. T. grade. It is fur ther stated that there were as many as 711 students studying from class VI to class X in academic session 2006-07. Earlier in the year 1991, there were only 504 students studying in the institution from class VI to class XII, which has now gone up to 936. Ignoring the ground realities of running institution, District Education Officer, has allegedly passed the impugned order against the law. Feeling aggrieved by order dated 12-01-2007, passed by District Education Of ficer, a representation/appeal was pre ferred on 05-02-2007, by the petitioner before Regional Additional Director, Edu cation, Nainital, However, the same is rejected vide order dated 18-06-2007, by said authority allegedly without ap plication of mind. Hence this writ peti tion on the ground that District Educa tion Officer had no power of reviewing its own decision relating to the approval granted for filling the vacancy in the in stitution. It is further alleged in the writ petition that the impugned order is arbitrary and against the principles of natural justice. It is further pleaded that the District Education Officer, has as sumed power, which did not vest on him. The writ petition is contested by the respondents and counter affidavit is filed on their behalf. As far as the es tablishment of the Institution and its upgradation and recognition are con cerned, the same are not denied. It is also not disputed that the institution (though minority institution) is grant in aid of Government and certain posts of teachers are sanctioned. It is stated in para-6 of the counter affidavit that vide Government Order No. 6039/15-07-2001 (136)/1989, Shiksha Anubhag-02, dated 07-09-1990, C. T. Grade cadre was declared dying cadre and it merged into L. T. cadre on certain terms. Vide letter No. Arth Maa. /9856-72/act 2005/2005-06, dated 16-06-2005, 10 year C. B. S. E. syllabus was introduced and on merger of class VI to class X, the posts were required to be filled for Hindi, English, Sanskrit, Home Science, Maths, Science, Social Studies, Art and Music. It is further stated in the counter affida vit that though the petitioner has stated that no recognition was given to the in stitution for the subjects- Music, Sewing and Art, but they are imparting educa tion on Art and Music also. It is admit ted in the counter affidavit that on re tirement of Smt. S. P. Singh in the year 2002, Management Committee of the in stitution sought approval for advertise ment for the post of Assistant Teacher in Science and Maths. It is further stated on behalf of the respondents in their counter affidavit that determination of teachers in the institution is done accord ing to Sections and periods and not on the basis of number of students. In para-16 of the counter affidavit it is stated that the petitioner failed to reply the re spondents' letter dated 05. 09. 2006 (copy annexure-C. A. 10 to the counter affida vit), which was sent to them in reply to their letter dated 14. 08. 2006, seeking approval for advertisement for the ap pointment of vacant posts of Assistant teachers in L. T. grade. It is stated that only 13 sections are functioning from Class VI to Class X in the institution run by the petitioner, as such, the impugned orders challenged by the petitioner do not suffer from any illegality.
(3.) IN the rejoinder affidavit filed on behalf of the petitioner, it is stated that the Director's letter relied by the re spondents cannot override the provision of the enactment, passed by the legisla ture and Regulations framed thereunder, applicable to the institution. Giving the details of number of students and sec tions in the institution, the averment made in the counter affidavit, are de nied. It is stated that there are 8 sec tions, as per the G. O. dated 09-08-1999 in the institution for classes VI, VII, and VIII, apart from 7 sections for classes IX and X and 4 sections of class 11th and 12th. The G. O. dated 20-11- 1976 (copy annexure C. A. 7 to the counter affidavit), filed with the counter affida vit itself shows that sanctioned strength is already less than the required strength in the INstitution. The contents of the para-16 of the counter affidavit are spe cifically denied in the rejoinder affidavit and averments made in para-24 and 25 in the writ petition are reiterated. Learned counsel for the petitioner drew attention of this Court to Section 36 of Uttaranchal School Education Act, 2006, which reads as under : "36- Procedure for selection of teachers and heads of institu tions- Subject to the provisions of this Act, the Head of Institution and teachers of an institution be appointed by the Committee of Man agement in the manner hereinafter provided. (2) Every post of Head of institution or teacher of an institution shall ex cept to the extent prescribed for be ing filled by promotion, be filled by direct recruitments after intimation of the vacancy to the District Education Officer and obtaining approval of the District Education Officer for adver tising and advertisement of the va cancy containing such particulars as may be prescribed, in at least two daily newspapers having wide circu lation in the State. (3) No person shall be appointed as Head of Institution or teacher in an institution unless he possesses quali fication prescribed by the Regulation. (4) Every application for appoint ment as Head of Institution or teacher of an institution in pursuance of an advertisement published under sub-section (2) shall be made to the District Education Officer and shall be accompanied by such fee which shall be paid in such manner as may be prescribed. (5) (i) After the receipt of application under sub-section (4), the District Education Officer shall cause to be awarded, in respect of each such ap plication, qualify-point marks in ac cordance with the procedure and principles prescribed, and shall, for ward the applications to the Commit tee of Management. (ii) The applications shall be dealt with, candidates shall be called for interview, and the meeting of the Se lection Committee shall be held, in accordance with the Regulations. (6) The selection Committee shall prepare a list containing in order of preference the names as far as pos sible of three candidates for a post found by it to be suitable for appoint ment and shall communicate its rec ommendations together with such list to the Committee of Management. (7) Subject to the provisions of sub section (8) the Committee of the Management shall, on receipt of the recommendations of the Selection Committee under sub-section (6), first offer appointment to the candi date given the first preference by the Selection Committee, and on his failure to join the post, the candidate next to him in the list prepared by the Selection Committee under this selection, and on the failure of such candidate also, to the last candidate specified in such list. (8) The Committee of Management shall, where it does not agree with the recommendations of the Selec tion Committee, refer the matter together with the reasons of such disagreement to the Regional Ad ditional Director of Education in the case of appointment to the post of Head of Institution and to the Dis trict Education Officer in the case of appointment to the post of teacher of an institution, and his decision shall be final. (9) Where no candidate approved by the Selection Committee for appoint ment is available, a fresh selection shall be held in the manner laid down in the selection. (10) Where the State Government, in case of the appointment of Head of institution, and the Director in the case of appointment of teacher of an institution, is satisfied that any per son has been appointed as Head of Institution or teacher, as the case may be in contravention of the provisions of this Act, the State Government or, as the case may be, the Director shall, after affording an opportunity of be ing heard to such person, cancel such appointment and pass such con sequential order as may be necessary. (11) No male candidate shall be eli gible for appointment to the post of Head of institution or teacher in a girls institution, but the provision of this sub-section shall not apply in the context of the following - (a) appointment by promotion on a higher post other than the post of Head of institution in that institution in case of a candidate already work ing in a girls institution as a perma nent teacher, or (b) appointment of a blind teacher as a teacher of music. (2) The selection process for the ap pointment of clerical (ministerial) or group-D employee shall be as pre scribed. " The aforesaid quoted provisions contained in Section 36 of Uttaranchal School Education Act, 2006, does not empower District Education Officer to cancel the approval already granted ear lier, that too without affording opportu nity of hearing to the Committee of Man agement of the College.;