Committee of Management Janta Higher Secondary School Vs State of Uttarakhand

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2025:UHC:7847

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HIGH COURT OF UTTARAKHAND AT NAINITAL

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HON’BLE SRI JUSTICE MANOJ KUMAR TIWARI

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Writ Petition (M/S) 2839 of 2023

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3^RD September, 2025

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Committee of Management --Petitioner Versus State of Uttarakhand & others --Respondents with Writ Petition (M/S) No. 2471 of 2025 Writ Petition (S/S) No. 968 of 2024 Writ Petition (M/S) No. 2986 of 2024 Writ Petition (M/S) No. 11 of 2025 Writ Petition (M/S) No. 20 of 2025 Writ Petition (M/S) No. 1396 of 2025 Writ Petition (M/S) No. 1501 of 2025 Writ Petition (M/S) No. 1605 of 2025 Writ Petition (M/S) No. 1888 of 2025 Writ Petition (M/S) No. 1890 of 2025 Writ Petition (M/S) No. 2414 of 2025 Writ Petition (M/S) No. 2415 of 2025 Writ Petition (M/S) No. 2416 of 2025 Writ Petition (M/S) No. 2424 of 2025 Writ Petition (M/S) No. 2425 of 2025 Writ Petition (M/S) No. 2426 of 2025 Writ Petition (M/S) No. 2427 of 2025 Writ Petition (M/S) No. 2523 of 2025

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Presence:-

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Mr. Yogesh Kumar Pacholia, Mr. Anil Kumar Joshi, Mr. Parikshit Saini, Mr. Dharmendra Barthwal, Mr. Navnish Negi, Mr. Himanshu Aswal and Mr. Sagar Kothari, Advocates for the petitioners.

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Mr. N.S. Pundir, Deputy Advocate General assisted by Mr. N.K. Papnoi & Mr. Narain Dutt, Standing Counsel for the State of Uttarakhand.

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JUDGMENT

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Committee of Management of different Government Aided Educational Institutions have approached this Court challenging the instructions

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issued by the State Government regarding appointment against teaching as well as non-teaching posts in Government Aided Secondary and Senior Secondary Schools.

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Since common questions of law and fact are involved in these writ petitions, therefore they are heard together and are being decided by a common judgment. However, for the sake of brevity, facts of Writ Petition (M/S) No. 2839 of 2023 alone are being considered and discussed. The relief sought in Writ Petition (M/S) No. 2839 of 2023 are as follows:-

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“i) Issue a writ, order or direction in the nature of certiorari quashing the order dated 19.09.2023 passed by respondent no. 1 (contained as Annexure No. 19 to this writ petition).

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ii) Issue a writ, order or direction in the nature of mandamus directing the respondent no. 4 to intimate the dates for interview and panel of subject experts so that the ongoing recruitment process be completed for the benefit of the students.”

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Petitioner has challenged order issued by Secretary, Secondary Education, Government of Uttarakhand, on 19.09.2023, by which ban on appointment against teaching and non-teaching positions in Government Aided Educational Institutions was imposed, till further orders. The reason for imposing ban, as culled out from the order is that in the past, complaints were received that selection and appointments in Aided Schools are not fair and are made for considerations other than merit.

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Petitioner has challenged the ban imposed vide Government Order dated 19.09.2023 mainly on

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the ground that similar ban, earlier imposed by Director General, School Education on 10.11.2022, was set aside by Coordinate Bench vide judgment dated 16.08.2023 passed in Writ Petition (M/S) No. 3231 of 2022. Paragraph nos. 9 & 10 of the judgment dated 16.08.2023, are extracted below:-

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“9. A bare reading of Section 36 of the Act, make it abundantly clear that at various stages, District Education Officer is involved. In fact, prior to issuing the advertisement and even after applications are received in response to the advertisement the District Education Officer is involved. The quality marks are to be allotted by the District Education Officer.

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10. This Court is not required to adjudicate on any complaint that were received, with regard to any particular appointment in any aided school. If there were complaints, the competent authority could have examined them and take required action in a particular matter. But, putting a complete ban, without any statutory authority may perhaps not been upheld. There is a procedure prescribed under the Act. The provisions of the Act may not be defeated by any such communications. It may definitely adversely effect the education in such aided schools. Therefore, the impugned communication is without any statutory force and deserves to be set aside.”

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Learned counsel for the petitioners submit that once similar ban imposed by Director General, School Education, for identical reasons was set aside by Coordinate Bench of this Court, then State Government cannot impose fresh ban on appointments in Aided Schools, on those very grounds. It is contended that the impugned order dated 19.09.2023 is issued for extraneous reasons in colourable exercise of power and State Government does not have the power to impose such ban on recruitments.

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Section 36 of Uttarakhand School Education Act, 2006 lays down the procedure for selection of teachers and heads of the institutions; while, Section 37 of the Act provides for constitution of selection committee for appointment. Sub-section (3) of Section 37 provides the composition of Selection Committee for appointment as clerical/ministerial staff in an educational institution; while, sub-section (4) lays down the composition of Selection Committee in respect of Group-D employees. Regulation 10 of Chapter-II of the Regulations framed under Uttarakhand School Education Act, 2006 lays down the procedure, which has to be followed, while making selection for appointment to various teaching posts; while, Regulation 18 lays down the procedure of selection for appointment to non-teaching posts. Regulation 10 ( ka ) provides that after determining the vacancies, which are to be filled by direct recruitment, Committee of Management shall approach the District Education Officer, and after getting permission to advertise vacancies, shall initiate the selection process.

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Learned counsel for the petitioners submit that State Government and also the authorities of Education Department have been imposing ban on selection for appointment to teaching and non-teaching posts in Government Aided Institutions during recent past, due to which, majority of the sanctioned posts of teacher and other employees, are lying vacant, which is adversely affecting academic atmosphere in the schools. Counsel for the petitioners point out that due to ban imposed earlier by Director General and now by

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the State Government, no appointment could be made in any institution for last more than five years and due to death/retirement, the situation has become grim and students are left with very few teachers. Learned counsels submit that Government Aided Institutions are the only hope for students belonging to financially week students, especially in remote villages where there is no other school available, however, due to shortage of teachers, it has now become very difficult to run these schools.

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Learned counsels for petitioners have drawn attention of this Court to the provisions contained in the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as ‘RTE Act’), which confers statutory right to every child of the age of six to fourteen years to get free and compulsory education in a neighbourhood school. Section 3 (2) of the said Act provides that no child shall be liable to pay any fee or charges or expenses which may prevent him from pursuing and completing the elementary education.

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Learned counsel for the petitioners submit that Section 6 of the RTE Act casts a duty upon the appropriate Government and the local authority to establish, within such area or limits of neighbourhood as may be prescribed, a school within three years from the commencement of the Act. Attention of this Court is also drawn to Sections 8 & 9 of the aforesaid Act, which lay down the duties of appropriate Government and local authority.

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Learned counsel for the petitioners placed heavy reliance on Section 25 of the RTE Act, which provides that within three years from the date of commencement of the RTE Act, it shall be duty of the appropriate Government/local authority that pupilteacher ratio, as specified in the Schedule is maintained in each school. It is contended that instead of making efforts to achieve the teacher-pupil ratio, as indicated in the Schedule to RTE Act, State Government is creating hurdles in making appointments on the available vacancies on the post of teacher, which is contrary to the spirit of the RTE Act. It is contended that the availability of teachers in aided schools is woefully short of the prescribed norms, but instead of helping the Management to fill up the vacancies; State authorities are preventing the Management from making appointments, which are contrary to the provisions of RTE Act. Section 25 of the RTE Act is extracted below:-

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“ 25. Pupil-Teacher Ratio .- (1) Within three years from the date of commencement of this Act, the appropriate Government and the local authority shall ensure that the Pupil-Teacher Ratio, as specified in the Schedule, is maintained in each school.

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(2) For the purpose of maintaining the Pupil-Teacher Ratio under sub-section (1), no teacher posted in a school shall be made to serve in any other school or office or deployed for any non-educational purpose, other than those specified in section 27.”

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Learned State Counsel, per contra, submits that there is a general complaint that appointment against teaching and non-teaching posts in privately managed Government Aided Educational Institutions are tainted by favouratism and nepotism; selections are

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made for considerations other than merit and near and dear ones of the office bearers of the Management succeed in getting appointment to the disadvantage of meritorious candidates. He submits that the teachers and other employees, serving in privately managed Government Aided Institutions are paid salary and other benefits from public exchequer, as are payable to Government teachers, therefore, according to him, public interest demands that appointments in Government Aided Institutions should be fair and transparent and extraneous considerations should not have any role to play in the matter of appointment against available vacancies in Government Aided Institutions. He submits that due to favoritism adopted by Management while making selection, the quality of teaching in such schools has gone down substantially, which has led to deterioration in the standard of education. He further submits that since the State Government is bearing the burden of providing salary and retiral benefits to the teaching and non-teaching employees serving in Government Aided Institutions, therefore, public interest demands that appointments are made in these institutions purely on merit. Learned State Counsel thus submits that the decision to impose ban on appointments was taken at the highest level to check the malpractices adopted by Management while making appointment to teaching and non-teaching positions in Government Aided Institutions.

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Learned counsel for the petitioners, however, submit that the allegation that Management misuses its power of appointment is incorrect. They contend that

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the selection process is controlled by officers of Education Department, inasmuch as, the advertisement inviting applications has to be issued after seeking permission from the competent authority in the Education Department; the forms in which applications are to be submitted by candidates are sold from the office of District Education Officer and the application has to be submitted with requisite fee in the office of District Education Officer and Management has no role to play in these matters. They further submit that as per law, Selection Committee has to be constituted for assessing suitability of a candidate for a particular post and out of five members in the said Committee, three are nominated by the authorities of Education Department. It is further pointed out that the process of short-listing is also done by the office of District Education Officer and list of top seven shortlisted candidates, based on their scholastic performance, is also prepared by the office of District Education Officer. It is further pointed out that the Management has to appoint a candidate recommended by the Selection Committee, that too after obtaining prior approval of the Competent Authority in Education Department.

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Article 21A of the Constitution of India reads as under:-

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“The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.”

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Thus, every child between the age of six to fourteen years has a fundamental right to receive free

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and compulsory education. Thus, it is imperative that every school must have qualified teachers and the basic infrastructure. The RTE Act in the Schedule has laid down the norms and standards, which every school has to follow. The teacher-pupil ratio is also prescribed by RTE Act.

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This Court finds substance in the submission made by learned counsel for the petitioners that due to the ban imposed by the State Government, it will be difficult for the Management of the schools to maintain the teacher-pupil ratio, as envisaged in RTE Act.

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As per Section 36 of the Uttarakhand School Education Act, 2006, Committee of Management is conferred the power to appoint teacher/principal in an educational institution. Though such power is subject to regulatory control of the Director, School Education and other authorities of the Education Department, however, State Government does not come into picture at all. Thus, this Court finds substance in the submission made on behalf of petitioners that State Government cannot restrain a statutory authority from discharging its statutory functions. In other words, the State Government has acted beyond its authority by instructing the Director, School Education and Director General, School Education not to permit any recruitment process for appointment in Government Aided Institutions.

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Having heard learned counsel for the parties and upon perusal of the record, this Court finds substance in the submission made by learned counsels

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for the petitioners that the interference made by the Secretary, School Education with the process of selection is wholly unjust. The provisions of Uttarakhand School Education Act are applicable to every recognized institution, including Government Aided Institutions. No educational institution can run without adequate number of teachers. Right to Education has now been declared to be a fundamental right and Parliament has enacted the Right of Children to Free and Compulsory Education Act, 2009. The ban imposed by the State Government is not only in the teeth of provisions of RTE Act, 2009, but it amounts to interference in the right of the children to get quality education.

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Even otherwise also, the earlier ban imposed by Director General, School Education was set aside by Coordinate Bench, therefore, this Court finds substance in the submission made on behalf of the petitioners that the subsequent ban imposed by Secretary, School Education is in colourable exercise of power. What cannot be done directly cannot be done indirectly. The earlier ban was imposed by the Director General and this time ban has been imposed by the Secretary (Education). Effect of the ban imposed by both the authorities is the same. Therefore, the reasons given by Coordinate Bench for setting aside the ban imposed by Director General are still valid.

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In such view of the matter, the ban imposed by Secretary, Secondary Education, Government of Uttarakhand vide order dated 19.09.2023 is liable to be

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set aside and is hereby set aside. However, it shall be open to the competent authority to device ways and means and to implement them, by issuing necessary instructions to subordinate officers of the Education Department, for plugging the loopholes in the system for ensuring that selection for appointment in aided schools is made purely on merit and other considerations are completely eliminated in the process of selection. The applications, if made, by the petitioners seeking permission to advertise the vacancies, shall be dealt with by the authorities as per law, and necessary order shall be passed within four weeks from the date of presentation of certified copy of this order before them.

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With the aforesaid observations, the writ petitions stand disposed of.

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(Manoj Kumar Tiwari, J.)

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Dt: 03.09.2025 Navin NAVEEN CHANDRA Digitally signed by NAVEEN CHANDRA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3be23325146e76a0642bdf4943fb9046f487df006da82a131bb4e4403d3c0a15, postalCode=263001, st=UTTARAKHAND, serialNumber=18167EEFB5CA8CFFD421A103819DA875643AF56D653D095C6ED9A86DAAB21CE5, cn=NAVEEN CHANDRA Date: 2025.09.10 14:36:51 +05'30'

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Committee of Management Janta Higher Secondary School v. State of Uttarakhand

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Committee of Management Janta Higher Secondary School v. State of Uttarakhand

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