Ashwani Kumar Mishra, J. - (1.) These writ petitions have been connected and heard together, as they involve common questions of law and fact and are therefore being disposed of by this common judgment. An issue of vital significance arises in all these writ petitions. What would be the procedure to be followed for recruitment of teachers in a private managed and aided recognized Junior High School once it is accorded recognition under Section 7-A(a) of the U.P. Intermediate Education Act, 1921 (hereinafter referred to as 'the Act of 1921'), is the issue which calls for determination in these batch of writ petitions. The issue emerges for consideration as a Division Bench of this Court in Smt. Manju Awasthi and others Vs. State of U.P, 2013 3 ADJ 64 conclusively held that after upgradation of such Junior High School under Section 7-A(a) of the Act of 1921, the procedure otherwise contemplated under the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (hereinafter referred to as 'the Rules of 1978') would not apply.
(2.) The procedure contemplated under the Rules of 1978 regarding appointment of teachers in recognized Junior High Schools stood ousted in respect of upgraded Junior High Schools by reason of the Division Bench judgment of this Court in Manju Awasthi's case (supra) yet ambiguity prevailed regarding the procedure to be followed for recruitment of teachers in such upgraded institution.
(3.) The concern having been noticed in the leading case, this Court had heard the counsels at length, so as to steer clear of the stalemate. Various submissions were advanced in that regard by Sri Amit Saxena, Sri R.K. Ojha, learned Senior Advocate, and Sri Prabhakar Awasthi for the parties. Learned State Counsels present in the Court have been a part of the deliberation throughout. However, in order to specifically invite stand of the State in this regard, following order was passed on 3.1.2019:- "During the course of hearing of this writ petition a question of vital significance for the cause of education in the State of Uttar Pradesh crops up before this Court. The issue is that after Sections 7-A & 7-AA were introduced in U.P. Intermediate Education Act, 1921 vide U.P. Act No.18 of 1987 w.e.f. 14.10.1986 and the erstwhile junior high schools were granted recognition to run higher classes or allowed recognition in new subjects at the high school or intermediate level, fresh appointment of Assistant Teachers in such junior high schools throughout the State of Uttar Pradesh stands stalled for the last many years. The question as to what would be the consequence of grant of recognition under Sections 7-A & 7-AA was referred to a Larger Bench in Smt. Manju Awasthi vs. State of U.P. and others reported, 2013 2 ESC 2844. The Larger Bench in paragraph 77 categorically held as under:- "77. We are of the view that the Government Order dated 24.11.2011 can be supported only to the extent of payment of salary of teachers at the Junior High School level and ancillary power thereunder. However, the Basic Shiksha Adhikari cannot exercise any administrative control over the institution except to the extent of payment of salary nor can make any appointment in view of the applicability of 1921 and 1982 Acts. The judgment of Hon'ble Single Judge in Committee of Management Beni Singh Vaidic Vidyawati Inter College, Baluganj, Agra and others (supra) to that extent cannot be approved. It is relevant to note that against the judgment of Hon'ble Single Judge dated 7.9.2005 in Committee of Management Beni Singh Vaidic Vidyawati Inter College, Baluganj, Agra and others (supra) special appeal No. 1419 of 2005, Agam Prakash Deepak Vs. State of U.P. was filed, which appeal was also dismissed on 29.11.2005." The procedure for appointment of teachers under the U.P. Recognised Basic Schools (Junior High Schools) (Recruitment And Conditions Of Service Of Teachers) Rules, 1978 would, therefore, be no longer available for the purposes of making appointment of teachers in such institutions. Ordinarily, when a junior high school is upgraded to high school or intermediate level, it is granted recognition under Section 7(4) of the Act of 1921 and the situation is taken care of by virtue of Regulation 4 of Chapter II of the Act of 1921, inasmuch as fresh appointment of teachers would henceforth be made under the provisions of U.P. Secondary Education Services Selection Board Act, 1982. The State Government, however, restricted recognition under Section 7-A of the Act of 1921 and the provisions of Section 7(4) was not attracted, as a consequence the appointment procedure contemplated under the Act of 1982 was not attracted to such institutions. The consequence is that all vacancies which came into existence in these erstwhile junior high school continue to remain blocked, inasmuch as any attempt to fill it up under the Rules of 1978 have not been approved of by this Court in view of the law laid down in Smt. Manju Awasthi (supra). The provisions of the Act of 1982 are otherwise not attracted. The ultimate casualty in the process is the cause of education itself, inasmuch as junior high schools, which are otherwise catering to the need to provide education to large sections of society in the State of Uttar Pradesh. Irrespective of the controversy raised in the present writ petition, learned counsel for either sides submits that this aspect has to be addressed inasmuch as an appointment procedure would have to be worked out for such institutions, otherwise most of these institutions would have to be close down due to lack of teachers. This Court realizing the seriousness of the issue involved has allowed learned counsel for the parties to make their submissions at length. Learned counsels submit that grant of recognition under section 7-A of the Act of 1921 pre-supposes existence of recognition under section 7(4) of the Act of 1921, inasmuch as the grant of permission under section 7-A is to an institution existing and recognized under the Act of 1921 only. Submission is that in case such recognition is treated to implicitly have recognition under Section 7(4) of the Act, the appointment procedure, which is otherwise available in case of upgraded institution, would be available and appointments would be open to be made under the Act of 1982. Before proceeding further, it would be appropriate to call upon the Principal Secretary of the department concerned to place the stand of the State in the matter, keeping in view the law laid in Smt. Manju Awasthi (supra), as also the statutory scheme. As prayed by learned Additional Chief Standing Counsel appearing for the State, let this matter appear in the additional cause list once again on 7.1.2019, alongwith records of Writ Petition Nos.8064 of 2018, 20335 of 2018 and 20391 of 2018. Sri Sanjay Chaturvedi, learned counsel for the District Basic Education Officer concerned shall produce relevant records relating to claim of present petitioner. Copy of this order shall be furnished to the learned Standing Counsel during course of the day.";