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Judgment
R.H. Zaidi, J.—This writ petition Under Article 226 of the Constitution of India has been filed by the Petitioner praying for a writ, order or direction including the writ of certiorari quashing the orders dated 3.1.1973, 9.7.1976, 16.9.1976 and 4.2.1980 and a writ of mandamus directing the Respondents to make payment of the salary In the pay scale available to the Head Mistress of a Junior High School.
From the facts stated In writ petition and other material on record, it appears that on 2.8.63, the Petitioner was appointed as Assistant Teacher in the primary school, which was established and managed by Municipal Board, Ballia. Thereafter on 1.8.64, she was promoted as Head Mistress of the said primary school. She worked In the said capacity till 11.2.71 when primary school was upgraded as the Junior High School and was named as India Kanya Junior High School. Vide letter dated 12.2.72 the Petitioner was authorised to work as Head Mistress of the said Junior High School by the Education Superintendent. The said appointment was subject to the resolution, if any, passed by the committee of management of the school. It was on 13.3.72, the meeting of selection committee was held and the Petitioner was selected for appointment as Head Mistress of the aforesaid Junior High School temporarily. Copies of the proceedings are contained In Annexure C.A. - I to the counter affidavit. After the Petitioner was selected for appointment as Head Mistress of the said Junior High School, the President of Municipal Board issued the letter of appointment which is contained as Annexure-2 in the writ petition. In the letter of appointment, it was stated that till the appointment of Petitioner is approved by the Deputy Director of Education, the Petitioner is entitled to the salary in the pay scale prescribed for an assistant teacher of a Junior High School. Since the date of her appointment as Head Mistress, the Petitioner has been performing her duties and since then the Petitioner has been insisting upon the payment of salary in the pay scale prescribed for the Junior High School Teachers. Fact remains that till today, neither the approval has been granted by the Deputy Director of Education to her appointment as Head Mistress nor her services were terminated nor she was reverted from the post of Head Mistress to the post of Assistant Teacher and she has been performing duties as such. It was Under the said circumstances that the Petitioner filed claim petition No. 1309/1/76 before the Respondent No. 1 and prayed for injunction against the opposite parties restraining them from harassing or causing harm to the Petitioner and for declaration of the letter No. 20/76/77 dated 16.9.76 as illegal and void and for order or direction for payment of her salary of the post of Head Mistress.
Before the Tribunal, the Respondents have filed their written statement asserting that at that time proper and qualified candidates were not available to be appointed on the post of Head Mistress, she was selected to work as Head Mistress temporarily. The Respondent No. 1 after going through the record and after hearing the parties, did not find favour with the Petitioner and dismissed the claim-petition vide judgment and order dated 4.2.80.
The Petitioner as stated above has challenged the validity of the order dated 4.2.80.
Heard the learned Counsel for the parties.
On behalf of the Petitioner, it has been contended that the Respondent No. 1 has not mentioned correct facts in its order as the Petitioner on the date when she was appointed as Head Mistress, was fully qualified to hold the said post of Head Mistress of the Junior High School. It was also incorrectly stated that the Petitioner was not selected by the committee of management.
Learned standing counsel, on the other hand, contended that the view taken by the Respondent No. 1 is quite correct in view of the fact that the Petitioner was not qualified to hold the post of Head Mistress but she was permitted to work as the Head Mistress as no other qualified candidate was available to hold the said post.
Uttar Pradesh Municipal Boards Educational Establishment Services Rules, 1954 (hereinafter to be referred as the Rules'') are applicable to the present case. Rules 4 to 10 of the said Rules are, relating to qualification for the post of Head Mistress of Junior High School, constitution of the selection committee and the procedure for selection of teachers and Head Mistress are relevant. The said rules are extracted and quoted below:
(a) Recruitment to the post of Headmasters shall be made strictly on merit by selection from amongst the permanent Assistant Teachers of Junior High Schools, who have served for not less than five years as Assistant Teachers, and possess the Hindustani Teachers'' Certificate.
The Superintendent shall maintain a list of all Assistant Teachers eligible for appointment as Headmasters of Junior High Schools.
Selection on merit does not mean that a senior man, who is otherwise competent in all respects, should be superseded in spite of his seniority but would only emphasise that in judging a person''s competence and fitness for promotion, his merit, and not seniority shall be the first criterion.
in selecting candidates, for appointment to the post of Headmaster, regard shall be had to their.
(i) Personality and character.
(ii) Integrity.
(iii) Previous record of service.
(iv) Educational qualifications.
Selection from among the candidates eligible for the post of Headmaster shall be made by a Selection Committee consisting of the (i) Chairman of the Education Committee - President.
(ii) Deputy Inspector of Schools (Assistant Inspector of Schools in the new set-up).
(iii) Superintendent.
(1) The Selection Committee shall consider the case of all the persons eligible for appointment, and may call them for interview and examine their character rolls and personal files, if any.
The Selection Committee shall prepare a list with as many names as there are vacancies, or are likely to occur, within the next twelve months, and also a supplementary list of 50 per cent of the names on the main list.
Proceedings of these selections shall be forwarded to the Deputy Director of Education of the Region through the District Inspector of Schools with all the relevant documents for final approval.
The Regional Deputy Director of Education will consult the Regional In spec tress in the case of women teachers.
Selected candidates shall retain inter se their relative seniority and appointments will be made strictly in that order.
PART III
Assistant Teachers of Junior High Schools.
Fifty per cent of the posts in the cadre of the Assistant Teachers shall be filled" by direct recruitment in the manner hereinafter provided. The remaining 50 per cent of the posts shall be filled by promotion from amongst the eligible Headmasters and Assistant Teachers of Primary Schools.
No person shall be eligible for recruitment to the service Under Rule 9 unless he.
has passed the Junior Teacher''s Certificate Examination, or has passed the Hindustani Teacher''s Certificate or Vernacular Teacher''s Certificate Examination, and has at least 5 years'' teaching experience; or Is less than 45 years of age on the first day of the year in which the recruitment is made."
Admittedly, the Petitioner was appointed as Assistant Teacher on 2.8.63. She also possessed the certificates of Intermediate and H.T.C. and 7 years experience. Reference in this connection may be made to the Annexure C.A.I filed with the counter affidavit. The Petitioner was thus fully qualified to hold the post of Head Mistress and the facts stated to the contrary in the impugned order are apparently incorrect. The selection committee admittedly selected the Petitioner to hold the post of Head Mistress without attaching any condition regarding scale of pay. Etc. Therefore, there was no justification for the President of the Municipal Board to attach a condition to the appointment of the Petitioner to the effect that she will be entitled to receive salary in the pay scale of Assistant Teacher of Junior High School.
As stated above, the Petitioner has been discharging the duty of Head Mistress of a Junior High School named above. Therefore, in my opinion, she is entitled to receive the pay scale of Head Mistress of Junior High School. The writ petition, therefore, deserves to be allowed.
In view of the facts stated above, the writ petition succeeds and is allowed with costs. The impugned orders dated 3.1.1973. 9.7.1976, 16.9.1976 and 4.2.1980 are quashed. The Respondents are directed to treat the Petitioner as Head Mistress and to pay arrears of Petitioner''s salary in the pay scale prescribed for Head Mistress of a Junior High School from the date she was selected and appointed as Head Mistress of Junior High School in question within two months from this date.
A certified copy of this order may be communicated to the Respondent No. 7.