Bhahmawati Devi vs State of U.P.and others

C.S.P. Singh, J.

The petitioner was initially appointed as an Assistant Teacher in a primary school run by the Municipal Board, Etawah. She was thereafter promoted to the post of an Assistant Teacher in a Junior High School, on Aug. 24, 1974 and subsequently, confirmed. On July 25, 1970 she was promoted to officiate as a Headmistress in a Junior High School and has been acting as such. Under Section 73(2) of the Municipalities Act 1916, the State Government has framed rules known as the U.P. Municipal Board (Educational Establishments) Service Rules, 1954. These rules lay down the method of selecting persons to the post of Head Mistresses and Head Masters: of Junior High Schools. Rule 4 of these rules requires the recruitment to be made on merit by selection from amongst permanent assistant teachers of Junior High Schools, who have served not less than five years as Assistant teachers, and also possess Hindustani Teacher''s Certificate. The petitioner has averred that she has these requisite qualifications and there is no serious dispute about it. In January, 1972 a selection was held in pursuance of these rules, for selecting a person for a permanent appointment as Head Mistress in a Junior High School. It appears that respondent No. 3 appeared at that selection, but later on the selection was not approved by the Duty Director of Education. In the year 1972 an Act, known as the U.P. Basic Education Act, 1972 (Act No. 74 of 1972) came to be passed. Under Section 9 of the Act teachers and other employees serving under the Local Bodies in connection with Basic Schools stood transferred and became teachers and employees of the Board. The petitioner was serving as an officiating Head Mistress, and after the constitution of the Board continued to serve as such. It appears that respondent No. 3 made a representation to the U.P. Board of Basic Education for being appointed as Head Mistress in a Junior High School, but that representation was turned down by an order dated May 20, 1975. Subsequently, a representation was made by respondent No. 3 under Section 9(4) of the Act to the State Government. By the impugned order, the State Government has in purported exercise of powers under Section 9 (4) of the Act promoted respondent No. 3 to the post of the Head Mistress. Subsequent to this, the additional District Basic Siksha Adhikari passed an order appointing respondent No. 3 as Head Mistress in the Girls Junior High School, Pansari Tola, Etawah, and directed the petitioner to hand over charge to respondent No. 3. Counsel for the petitioner contended that the impugned order could not be passed under Section 9(4) of the U.P. Basic Education Act. It was also urged that respondent No. 3 did not have the requisite qualification for being appointed as a Head Mistress in a Junior High School of the Municipality and as such. after the passing of the Basic Education Act. she could not be posted as Head Mistress in exercise of powers under Section 9 (4) of the Basic Education Act. We have already referred to the qualications required under rule 4 of the rules for appointment as a Head Master of a Junior High School. That rule requires that a person should be a permanent Assistant Teacher of five year standing and also have a Hindustani Teacher''s certificate. Counsel for the respondent frankly conceded that respondent No. 3 does not have a Hindustani Teacher''s Certificate. He urged that she has a certificate of an equivalent nature. That, however, would not meet the requirements of the rule which insists on a Hindustani Teacher''s Certificate and none "the'''' It also appears that at the time when the employees of the Municipal Board came to be transferred under Section 9 of the Basic Education Act. Respondent No. 3 did not have the other qualification requisite for being appointed as a Head Mistress for. at that time she had not been holding the post of a permanent Assistant Teacher for five years. Thus, respondert No. 3 was not qualified to be appointed as a Head Mistress of a Junior High School. These considerations apart, Section 9(4) of the Basic Education Act does not confer any jurisdiction on the State Government to promote an employee of a Municipal Board who has come on transfer under Section 9 of the Act, to a Higher post than he already held. Section 9 (4) of the Act runs as under:

"If any question arises whether the services of any person stand transferred to the Board under subsection (1), or as to the remuneration and other terms and conditions of service to such employee immediately before the appointed day, it shall be decided by the State Government whose decision shall be final."

It will be seen that this provision only empowers the State Government to decide questions regarding the remuneration and other terms and conditions of service of transferred employees immediately before the appointed day, i.e. date of transfer. This provision does not confer power on the State Government to promote a transferee employee to a higher post. The impugned order purports to do so. The order was clearly without jurisdiction.

The petition is accordingly allowed. The impugned order of respondent No. 1 dated September 1, 1975, (Annexure II) and .the order of the Additional District Basic Shiksha Adhikari (Annexure III) are quashed. The parties shall bear their own costs.