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Judgment
D.K. Seth, J.—The Petitioners who are twelve in number, claims to be teacher of Primary section of U.P. State Cement Corporation Intermediate College, Dalla District Sonebhadra. According to them the college was initially established as Junior section from Class 1st to Class VIIIth in the year, 1970 and was upgraded as High School on 16.8.1973 and thereafter upto Intermediate level on 25.8.1979. The institution is governed by the provisions of U.P. Intermediate Education Act and the Regulations framed thereunder Admittedly, it received grant-in-aid and is not covered under U.P. Secondary Education and U.P. High School and Intermediate Colleges (Payment of Salary of Teachers and other Employees) Act, 1971, In the above background all these Petitioners claimed that each of them individually are qualified and eligible for promotion to the next higher grade in the institution in terms of Regulation 7 (2) of Chapter II of the Regulations framed under U.P. Intermediate Education Act and that such eligibility accrued before 19th August, 1992, namely, the date since when the said Regulation 7 (2) Chapter II stood deleted. Despite such eligibility and entitlement the Respondents are not granting promotion to the Petitioners, hence the present writ petition.
Sri Prakash Padia, learned Counsel for the Petitioners contends that the Primary section being integral part of High School and Intermediate College, the whole institution is governed by U.P. Intermediate Education Act and, therefore, the Petitioners though having been employed in the Primary section are eligible and entitled to promotion under Regulation 7 (2) Chapter II of the Regulations framed under the said Act, because of the reason that right had accrued prior to deletion of the said Regulation 7 (2), In support of his contention, he relies on the decision in the case of Smt. Samantika Chatterjee Vs. Regional Inspectress of Girls School, Allahabad and others, (1990) 1 UPLBEC 239) . He also relied on the two unreported judgments viz. Writ Petition No. 25782 of 1995 Vijay Krishna Tripathi v. District Inspector of Schools, Sonebhadra and Ors. in support of his contention that U.P. Intermediate Education Act applies to the present institution. He also relies on the decision in the Writ Petition No. 4 1445 of 1992 Ram Das and Anr. v. U.P. State Cement. Corporation Limited and Ors. for similar purpose. He also relies on the decision in the case of Brahma Dayal Mehta v. Senior Personnel Executive India Drug and Pharmaceuticals Limited 1990 (3) UPLBEC 1570, wherein in similar circumstances U.P. Intermediate Education Act was held applicable in the institution run by Indian Drugs and Pharmaceuticals Ltd. He also relied on the decision in the case of Smt. Aruna Gosh v. Stae of U.P. and Ors. 1995 (1) AWC 576 : 1995 (2) UPLBEC 763, to support his contention that since the eligibility had accrued prior to 19.8.1992, the deletion of Regulation 7 (2) with effect from 19.8.1992 does not take away such right accrued before the deletion of the said regulation. In support of his contention that the persons promoted from B.T.C. grade to C.T. grade would become eligible for promotion from C.T. to L.T. grade after five years, he relied on the decision in the case of Madan Gopal Agarwal and Ors. v. District Inspector of Schools Bijnor and Anr. 1996 (3) AWC 1645.
Sri Dilip Gupta, learned Counsel appearing on behalf of the Cement Corporation, on the other hand contends that there are three colonies of employees in the factory situated in Sector A, Sector B and Sector C. In each of such Sectors there are three Primary Schools, known as Primary school Sector A, Primary school Sector B, and Primary school Sector C. These three Primary schools (para 28 of the counter-affidavit) are being headed by three different Head Masters (Para 29) of the counter-affidavit). The District Inspector of Schools, in its own letter dated 14.2.1991. which is Annexure CA2 to the counter-affidavit, has pointed out that recognition of the Primary school having not been given by the Madhyamik Shiksha Parishad, therefore, there cannot be any question of promotion of the teachers in the Primary school to Intermediate College and that U.P. Intermediate Education Act would be applicable to the High School and Intermediate Colleges run by the U.P. State Cement Corporation. Therefore, according to him, the Primary school is not integral part of High School and Intermediate College. By supplementary counter-affidavit, Sri Dilip Gupta has brought on record that the Cement Corporation is now a sick industry within the meaning of Clause (o) of Sub-section (1) of Section 3 of the Sick Industrial Companies (Special Provisions) Act, 1985, and, therefore, no order can be passed with regard to the present writ petition. However, at the time of argument very fairly Sri Gupta conceded that the said question would not be germane for the present controversy.
Opposing the said contention, Sri Padia, contends that from Annexures 9, 10, 12, 13 and 14 of the petition, it is apparent that the Primary section is an integral part of High School and Intermediate College.
After having heard Sri Prakash Padia, learned Counsel for the Petitioners and Sri Dilip Gupta, learned Counsel for the Respondents, it appears that the question which calls for determination in the present controversy is that whether the Primary schools run by the Cement Corporation are integral part of High School and Intermediate College run by the same Respondents, Cement Corporation, If it is held that it is an integral part of High School and Intermediate College and is one and the same institution, in that event in view of decision in the case of Smt. Samantika Chatterjee (supra) U.P. Intermediate Education Act would be applicable and the Petitioner would be eligible for promotion to the higher grade of High School and Intermediate College, by reason of the decision in the case of Smt. Aruna Ghosh (supra) on account of eligibility acquired prior to 19.8.1992, the Petitioners would be entitled to promotion by reason of eligibility criterion laid down in the case of Madan Gopal Agarwal and Ors. (supra). This situation is not disputed by either of the counsel.
In the above context, both the learned Counsel for the parties had advanced their respective contentions by placing reliance on different documents. Sri Padia, drew my attention to Annexures 9, 10, 12, 13 and 14 of the petition and Annexure RA1 and 2 of his rejoinder-affidavit. Whereas Sri Gupta has relied on Annexures CA1 and 2 to the counter-affidavit respectively. Sri Padia contends, relying on those documents, that Primary sections are integral part of the same institution and the institution is one and the same and, therefore, it would be governed, by the Act with which highest portion of the institution is governed. According to him, all the schools are managed by one body. Annexure 9 is the letter by the Manager of the institution to the District Social Welfare Officer, requesting him to release students stipend. Annexure 10 to the petition is also a letter addressed by the Manager of the institution to the Director of Education seeking grant-in-aid in the primary school. Annexure 12 to the petition is a letter by the Additional Director of Education addressed to the Director of Education, whereby it was pointed out that for application of regulation for administration of higher secondary school run by the Cement Corporation and Annexure 13 to the writ petition is letter by the Principal of Intermediate College addressed to the District Inspector of Schools intimating that the Primary schools are primary sections of the college. Annexures RA1 and 2 are salary bill of all the teachers combined together.
The scanning of the above documents does not help Mr. Padia to establish that the Primary sections are integral part of High School and are one institution. Inasmuch as Annexures 9 and 10 to the writ petition does not indicate that the Primary schools are integral part of High School. The same can only show that it is managed by the Manager (Institution) Annexure 12 also does not indicate that it is one of the same institution. On the contrary, it only indicates that the High and Secondary Schools run by the institution would be governed by the Services Commission Act. The only letter contained in Annexure 13 which is dated 15.3.1988 indicates that the Principal of Intermediate College informs the District Inspector of Schools that the primary schools are the primary section of the Intermediate college.
Admittedly, for the welfare of the employees the Corporation had established schools for the education of the children of its employees and thus the schools are run by the Corporation. It is not like an ordinary school or society through which the school is run. It is run directly by the Corporation through its own officers. The Corporation is one and the same which runs the factory and carries on various other activities part of its welfare activities it may run different schools or even colleges. The management is not the only criterion by which it is to be identified. It is the manner in which it is run and controlled, is the criterion by which identity of the institution is to be governed. In the course of argument Sri Gupta, submitted that Intermediate and High School Colleges are housed in a different building. Three primary schools are housed in their own respective buildings unconnected with that of High School and Intermediate College. Sri Padia, has not disputed that High School and Intermediate College is run by one Principal and the three Primary schools are headed by three different Head Masters and situated at three different Sectors. He also does not dispute that in order to get admission in the Intermediate College, a student having passed from the primary school is required to produce Transfer Certificate. The necessity of production of Transfer Certificate implies with the passing out of Primary school, has to seek admission in the High School. It is not a promotion from Primary school to the High School. If it is a case of admission, in that event it cannot be said that it is the same institution, particularly when in the case of admission Transfer Certificate is required. Then again High school has no control over the Primary school inasmuch as control of the Principal is confined to the High School, while each of the Head Master''s control is confined to the concerned Primary school headed by respective Head Masters.
One management can run several institutions, Since the management is common, therefore, it cannot definitely be said that the institution is one and the same. In order to determine whether the institution is one and the same, running of the institution by common management may be: one of the factors but cannot be the only factors. It is cumulative and combined effect of all the factors which leads to the conclusion that the institution is one and the same. If the institution is run by one management, one Principal and that the students are allowed admission, as a matter of course without transfer certificate, then it might be said that the institution is one and the same institution.
The question of treating primary sections of different intermediate colleges were considered and many of such primary sections were treated to be integral part of intermediate colleges and were so recognised and were brought within purview of Payment of Salaries Act. By an order dated 6.9.1989 the criterion for treating such Primary sections as integral part of Intermediate colleges have been laid down by Government Order No. 3048/15-8-89/3450/87. The conditions laid down therein are as follows:
(a) The Primary section is running with Intermediate College since before 1973.
(b) The Primary sections are receiving aid granted by the Education Department as part of the Intermediate College.
(c) The name of Primary section has been included in the schedule of Ceiling prepared in 1974-1975.
(d) There is no separate Head Masters or Principal in the Primary section and that only one Principal are appointed for both the sections.
(e) The Primary Schools and Intermediate Colleges are run at the same premises.
(f) The Primary section is governed by the same scheme of administration.
(g) The students passing Class Vth are admitted in Intermediate College in Class VIth without any Transfer Certificate.
The said conditions are accepted conditions for the purposes of determining as to whether Primary section is integral part of the Intermediate College or not. In order to determine the question it is to be seen whether the conditions as laid down are satisfied in substance.
In the present case, the Transfer Certificate is required for admission in the Intermediate College for the students seeking admission after passing Class Vth from the Primary school, admittedly the school is not run in the same premises, and is located and different localities. There is one Principal for the Intermediate College and three Head Masters for three Primary sections. Therefore, it is very difficult, in the facts and circumstances of the case, to treat the institution as one and the same.
The contention of Sri Gupta finds support by the contents of Annexure CA2 to the counter-affidavit which is a letter addressed by the District Inspector of Schools to the Managing Director of U.P. Cement Corporation. The said letter was issued in clarification of the queries raised by the Managing Director through his letter contained in Annexure CA1. In the said letter, the District Inspector of Schools has specifically pointed out that there is no scope for promotion of the teachers from the Primary school to the Intermediate College since the recognition of the Primary schools were not given by the Basic Shiksha Parishad. So long as the said finding stares on the face of the Petitioner, the contention of Sri Padia cannot be accepted. Sri Padia, learned Counsel for the Petitioner has not challenged the validity of the said finding in the present writ petition despite having been brought on record through counter-affidavit filed by Sri Gupta. The claim sought to be raised in the writ petition cannot be granted because of the said finding recorded by the District Inspector of Schools, which in my view, is correct, in the facts and circumstances of the case. Therefore, no relief can be granted to the Petitioner in the present writ petition.
In view of the above finding, it is not necessary to deal with the other points raised by Mr. Padia and the decision cited by him.
The writ petition, therefore fails and is accordingly dismissed. There will, however, be no order as to costs.