Section 21 of U.P. Secondary Education Service Selection Board Act, 1982 provides that the management shall not, except with the prior approval of the Board, dismiss any teacher or remove him from service, or serve on him any notice of removal from service, or reduce him in rank or reduce his emoluments or withhold his increment for any period whether temporarily or permanently and any such thing done without such prior approval shall be void.
Section 21 of the U.P. Secondary Education Service Selection Board Act, 1982, has also been similarly interpreted by the Court in Hem Lata Agrawal v. District Inspector of Schools, 2003 (2) AWC 939. It was held as under: “The question whether the reversion of a teacher, who was appointed on temporary adhoc basis as Principal under Section 18 of the Act would amount to reduction in rank so as to require approval of the Board need not be considered here as whether or not it is a reduction in rank, it is clear that it amounts to reduction of emoluments. The petitioner is entitled to the salary for the post of Principal and reverting her, as a Lecturer would undoubtedly affect the emoluments to which she is entitled. The language of Section 21 of the Act is wide enough to cover within its scope the order impugned in this writ petition.”…. Kapil Deo Prasad V. Joint Director of Education 7th Region Gorakhpur, Writ – A No. – 442 of 2020, decided on 05.03.2020
Since salary to teaching and non-teaching staff has to be disbursed pursuant to bills presented under the signatures of the manager and he also signs on the cheque, it is imperative that the Inspector authorises only such representative of the management which is constituted in accordance with the scheme of management. In addition to the functions assigned to a management in the U.P. High Schools And Intermediate Colleges (Payment of Salaries of Teachers And Other Employees) Act, of 1971, there are other responsibilities entrusted upon the management by virtue of provisions contained in the U.P. Intermediate Education Act, 1921. The U.P. Intermediate Education Act of 1921, therefore, contemplates that a scheme of administration shall exist for every institution recognized under the Act of 1921. The scheme of administration shall, amongst other matters provide for the constitution of a committee of management which is vested with the authority to manage and conduct the affairs of the Institution. The requirement of having such scheme of administration and also the particulars which it must contain are specified in Section 16-A of the Act of 1921. Sub-section (6) of Section 16-A mandates that every recognized institution shall be managed in accordance with the scheme of administration provided for in Sub-sections (1) to (6) thereof. Amendment has been made in the Act of 1921 to incorporate Section 16-CC and Section 16-CCC vide U.P. Act No. 1 of 1981. Third Schedule has also been added vide the same amending Act laying down principles on which approval to a scheme of administration shall be accorded. One of the factors specified in the Schedule is to provide for periodical elections. The scheme of administration is also required to be approved by the Deputy Director of Education.
The object of enumerating need to have a scheme of administration and for a committee of management to be constituted as per it is to ensure that the body entrusted with the task of management functions in a democratic manner and the officials of the State interact only with a body duly elected in accordance with the approved scheme of administration. It is in this context that the term recognition needs to be understood for the committee of management of the Institution concerned. There is otherwise no specific provision in the Act of 1921 for grant of recognition. Committee of Management Thakur Biri Singh Inter College v. State of U.P. , Writ – C No. – 28560 of 2019, decided on 25.02. 2020
On perusal of Section 16-FF of the U.P. Intermediate Education Act, 1921, it is evident on the face of it that without approval of the District Inspector of Schools, no appointment on the post of Lecturer or Assistant Teacher in L.T. Grade can be made in the institution recognized under the Act of 1921. It is further clarified that on submission of papers in case the District Inspector of Schools do not pass any order within a period of 1 month, then the selection is deemed to have been approved. Dr.Hemant Chaudhary V. State of U.P., Writ – A No. – 1821 of 2020, Decided on March 3, 2020
The statutory regulations framed under the Uttar Pradesh Intermediate Education Act, 1921, control both the management as well as the teacher’s right to terminate or resign from service. Regulation 26 under the Uttar Pradesh Intermediate Education Act, 1921 is in positive terms. Under it, the management can terminate the service of a permanent employee by giving him three month’s pay in lieu thereof. Giving of the three months’ notice or pay in lieu thereof is a condition precedent for the management to exercise its right to terminate the services of an employee. Regulation 29 under the Uttar Pradesh Intermediate Education Act, 1921 enables an employee to resign either by giving notice or pay in lieu thereof. The notice or pay to refer to the notice or pay to which he would have been entitled in case of termination by the management. Accordingly, an employee can resign only by giving a notice of three months’ or pay in lieu thereof. This shows that an employee has no unfettered right to resign.
Regulation 29 under the Uttar Pradesh Intermediate Education Act, 1921 enables an employee to resign with certain conditions with intention to protect the interest of the institution/management. If we carefully read Regulations 29 and 30 under the Uttar Pradesh Intermediate Education Act, 1921, it is crystal clear that an employee has no unfettered right to resign. He can exercise the right of resignation only in accordance with the provisions of Regulations 29 and 30. The requirement of furnishing three months’ notice under the aforesaid regulations is to ensure for the benefit of the management and is therefore, a requirement which can be waived by the management. A period of three months’ notice is provided for the benefit of the management so that the management would not find any difficulty in appointing a substantive teacher. Therefore, it is open for the management to give up the advantage conferred by the regulation and accept the resignation forthwith. Ramendra Kumar v. State of U.P., 2018 (6) AWC 5976.
In Shyamdeo Prasad Singh v. Naval Kishore Yadav, (2000) 8 SCC 46 as well as various other Judgments of the Hon’ble Apex Court the principle of law restraining the courts from interfering in the process of election after the elections are notified is equally applicable to the elections of the office bearers of the committee of management of the societies as well as the Committee of Management to be elected in accordance with the provisions of the scheme of administration of the educational institutions. The principles of law that the courts should keep their hand off in electoral matters and that all election disputes must be tries by the Election Tribunal, is also incorporated in the Constitution of India under Article 329 (b) of the elections of the Parliament or to the house or either house of the legislature, under Article 243 O for the elections of Panchayats and Article 243 ZG in the matter of elections of the municipalities. There is no reason as to why these time tested and settled principles should not be made applicable to the elections of the office bearers of the societies and for the Committee of Management under the scheme of administration of the educational institutions.
In West Bengal State Election Commission v. Communist Party of India (Marxist), AIR 2018 SC 3964, it was held as under:
“Thirdly, once the election process has commenced, it is trite law that it should not be interdicted mid stage. The electoral process is afforded sanctity in a democracy. That is the reason why in a consistent line of precedent, this court has insisted upon the discipline of the law being followed so that any challenge to the validity of an election has to be addressed by adopting the remedy of an election petition under the governing statute.” Kamlapati Singh v. State of U.P., (2019) 3 UPLBEC 1759.
It is, thus, evident that the Board of Basic Education is an establishment within the meaning of Payment of Gratuity Act, 1972, which is law for the time being in force in the State of Uttar Pradesh. The Board being an establishment under a law for the time being in force, it clearly falls within the mischief of Section 1(3)(b) of the Payment of Gratuity Act. The provisions of the Act, would, clearly be applicable to the Board and to its officers, District Basic Education Officer, an officer of the Board. In Habibaa Girls Primary School v. Smt. Noorinisha, 2004 (1) LLN 592, it was held that an educational institution like a private unaided school, would be covered under the definition of establishment, envisaged under Section 1 (3) of the Payment of Gratuity Act. District Basic Education Officer v. Niyantrak Pradhikari Anutoshik Bhugtan Adhiniyam, 2020 (1) ESC 38
To be classified as a minority, the unit to be taken into consideration is the State concerned. Once it is established that within a particular State a community is a religious/linguistic minority, it has the right to establish and administer an educational institution of its choice. Imparting of secular education and admission of students belonging to other communities, does not denude it of its minority character. Further, an institution established by a minority can possess a secular character to start with and it can opt for a minority status subsequently. Director School Education v. Commission for Minority Education Institution, 2020 SCC Online P & H 430.
The term “Institution” had been considered by House of Lords in Mayor and C. of Manchester v. Mc-Adam (Surveyor of Taxes), 1896 AC 500. A distinction was sought to be drawn up between the “Institution” and the “Property of the Institution”. It was observed as under:
“It is a word employed to express several different ideas. It is sometimes used in a sense in which the “institution” cannot be said to consist of any persons, or body of persons, who could, strictly speaking, own property. The essential idea conveyed by it in connection with such adjectives as “literary” and “scientific” is often no more than a system, scheme or arrangement, by which literature or science is promoted without reference to the persons with whom the management may rest, or in whom the property appropriated for these purposes may be vested, save in so far as these may be regarded as a part of such system, scheme or arrangement. That is certainly a well recognized meaning of the word.
In Imperial Dictionary it is defined as follows:
“A system, plan or society, established either by law, or by the authority of individuals, for promoting any object, public or social. An illustration of this use is to be found in the Libraries Act itself. When the libraries which the authorities referred to in that Act may provide are termed “Institution” the term conveys the idea of buildings stored with books, with access to them by the public for the purpose of reading, together with the arrangements made for their use.
In Kamaraju Venkta Krishna Rao v. Sub-Collector, Ongole, AIR 1969 SC 563, it was observed:
“According to the dictionary meaning, the term “Institution” means “a body or organization of an association brought into being for the purpose of achieving some object.” Oxford dictionary defines an “Institution” as “an establishment, organization or association, instituted for the promotion of some object especially one of public or general utility, religious, charitable, educational etc.” Church of North India Trust Association v. Union of India, 2017 (135) RD 36.