Bhuvenshwar Nath Tripathi vs State of U.P.& Ors.

D.K. Seth, J.—By means of this writ petition, vires of Section 7AA of the U.P. Intermediate Education Act as Introduced through U.P. Act No. 18 of 1987 is being challenged. The learned Counsel assails the validity of the said Section on the ground that it is ultra vires to Article 39 of the Constitution of India inasmuch as it is violative of the principle of equal pay for equal work. He next contends that by reason of introduction of this Section, an unreasonable classification has been sought to be made depriving a group of appointed teachers under Section 7AA who could not be included within the ambit of U.P. High Schools and Intermediate Colleges (Payment of Salary of Teachers and other Employees) Act, 1971 (U.P. Act No. 24 of 1971). The classification has made discrimination between the same kind of people in the matter of payment of emoluments and other service benefit and had undertaken an exploitation of educated employed youths.

The contention of the learned Counsel for the petitioner, as mentioned above, does not appear to be sound. Inasmuch as by reason of Section 7AA, neither any classification has been made nor any discrimination has been attempted to.

Section 7 of the 1921 Act has empowered the Board constituted there under to recognise Institutions for purpose of its examinations. Section 7A was introduced in the 1921 Act by UP. Act No. 18 of 1987 providing that notwithstanding the Board''s power of recognition envisaged in Section 7 (4), the Board with the prior approval of the State Government may recognise an Institution in any new subject or group of subjects or for a higher class and the Inspector may permit an Institution to open a new Section in an existing class.

Section 7AA has been introduced by the same U.P. Act 18 of 1987 for the purpose of carrying out the provisions of Section 7A. Without Section 7AA, it might work out difficulty in the power conferred under Section 7A. Without Section 7AA, the recognition granted under Section 7A shall be a time consuming affair for implementation by an Institution. Section 7AA has not created any right in favour of teachers or otherwise. It is only by means of an interim arrangement for implementation of powers that may be exercised under Section 7A. The management has been authorised to make part time appointment.

In order to appreciate the situation, it is necessary to refer to Section 7 (4) which provides:

"7. Power of the Board Subject to the provisions of this Act, the Board shall have the following powers, namely:

(1)..............

(1A).............

(2). (3).

(4) To recognize institutions for the purpoes of its examinations."

It is also necessary to refer to Section 7A which provides as follows:

"7A. Recognition of an institution in any new subject or for a higher class. Notwithstanding anything contained in clause (4) of Section?

(a) the Board may, with the prior approval of the State Government, recognise an institution in any new subject or group of subjects or for a higher class;

(b) the Inspector may permit an institution to open a new section in an existing class."

Section 7AA, vires of which has since been assailed provided as follows:

"7AA. Employment of parttime teachers or parttime instructors. (1) Notwithstanding anything contained in this Act, the management of an institution may, from its own resources, employ

(1) as an interim measure parttime teachers for imparting instructions in any subject or group of subject or for a higher class for which recognition is given or in any section of an existing class for which permission is granted under Section 7A;

(ii) parttime instructors to impart instructions in moral education or any trade or craft under socially useful productive work or vocational course.

(2) No recognition shall be given and no permission shall be granted under Section 7A, unless the Committee of Management furnishes such security in cash or by way of Bank guarantee to the Inspector as may be specified by the State Government, from time to time.

(3) No parttime teacher shall be employed in an institution unless such conditions as may be specified by the State Government by order in this behalf are complied with.

(4) No parttime teacher or parttime instructor shall be employed unless he possess such minimum qualifications as may be prescribed.

(5) A parttime teacher or a parttime instructor shall be paid such honorarium as may be fixed by the State Government by general or special order in this behalf.

(6) Nothing in this Act shall preclude a person already serving as a teacher in an institution from being employed as a parttime teacher or a parttime instructor under Section 7AA."

Thus, it appears that a power which was already vested in the Board was extended for the purpose of carrying out the object of the Act itself in the matter of grant to an institution already recognsied for opening new subject or group of subjects or for a higher class and in order to obviate difficulties in the opening of the new section in an existing class, power has been conferred in the Inspector to permit opening new section in an existing class in a recognised Institution. Such recognition for the purpose of implementation requires appointment of teachers. By reason of Section 16Eof the 1921 Act, it has since been subjected to restrictions provided by Section 15 of the U.P. Secondary Education Service Commission and Selection Board Act, 1982 and the restrictions imposed there under in the matter of appointment which has now become a time consuming affair for which Section 18 has been provided in the said 1982 Act for the purpose of relaxation which also provides for certain conditions and the difficulties created by reason thereof having been sought to be removed by various Removal of Difficulties Order, yet may create some situation where immediate action may be taken for the purpose of implementation of such recognition so that the education of the students may not suffer. Section 7AA has been provided as an interim measure and not as a regular affair or system. It is only for a particular period carrying out an exception from the scope of the 1982 Act which restricts appointment by reason of Section 16 of the 1982 Act and the relaxation provided under Section 18 thereof read with Removal of Difficulties Order. This is an empowering Section which creates a power in the Management to employ parttime teachers out of its own resources only as an interim measure for imparting instructions in any subject or group of subjects or for a higher class in respect whereof recognition has been given or any new section permitted to be opened in an existing class. The said section also provides safety valves by reason of incorporation of subsections (3) and (5) which provides employment of part time teachers only on compliance of the conditions specified therein by the State Government and shall be paid such honorarium as may be fixed by the State Government by general or special order in this behalf. By reason of subsection (5), a person already employed in an Institution may also be employed as parttime teacher or instructor under Section 7AA. A stop gap arrangement by way of interim measure when required in the exigencies of the situation cannot be placed at par with the regular appointment. Teachers so appointed cannot be said to belong to the same class. No classification is being made in respect of any teachers but a new classification is being sought to be introduced by way of interim measure which is altogether rationale and reasonable and is required for the purpose of carrying out the object and purpose of the introduction of Section 7Ain the interrengdum period. It is not a class of teachers to continue in a regular manner. It is provided only as an interim measure so as to fill up the gap without affecting the other provision relation to employment of teachers as provided under the 1982 Act read with 1921 Act and various other provisions with which we are not required to deal elaborately.

It does not create any discrimination in between two groups of teachers nor does it create any distinction. A parttime teacher cannot be treated to be at par with a whole time teacher. A parttime teacher is not required to perform the same duties as that of a whole time teacher and that too by way of interim measure and, therefore, it cannot be said that the principles of equality, namely, equal pay for equal work is not hit by Section 7AA and it thus violates Article 39 of the Constitution of India.

Since the safety valve has been introduced fey means of subsection (4) with regard to fixation of pay by the State Government, it cannot be said that there would be any exploitation in the matter of fixation of pay of partlime teachers which has since been taken care of adequately in the said section. Since this is an interim arrangement to be made by the Institution itself at its own costs, by no stretch of imagination, the teacher appointed by way of interim measure for parttime may be brought within the purview of the 1971 Act.

Thus, it appears that there is no substance in the contentions of the learned Counsel for the petitioner inasmuch as Section 7 AA, as discussed above, in no way affect Article 39 or is hit by any of the principles of equality as enshrined therein.

In the result, the writ petition fails and is accordingly dismissed. There will, however, be no order as to costs.