Seva Singh and Others Vs. State of U.P. and Others - Court Judgment

Excerpt:
service - training on promotion - article 226 of constitution of india - petitioner was promoted and was required to under go training for six month - petitioner challenges such requirement - some averment forming statement of facts argued did not form part of pleadings but were there in annexure - court held that statement of fact not forming presence in pleading cannot be said to be part of pleading even though they are present in annexure - petitioner has no right to challenge compulsory training required for position in which promoted. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. d. k. seth, j.1. the petitioners have challenged the order dated 6th may, 1998 by which it was decided that those forest guards who have been promoted to the post of untrained foresters and below 50 years of age would be sent for training according to their seniority for a period of six months. mr. p. c. jhingan, learned counsel for thepetitioners submits that at the time of initial appointment 20 to 21 years ago, the petitioners were given training on the posts of forest guard in which they were appointed, but he has admitted that the petitioners have never undergone training for the post of forester. now it has been decide that the petitioners who have been so promoted should undergo training for the post of forester. this is being objected by the petitioners by means of this writ petition. mr. p. c, jhingan, learned counsel for the petitioners contends that by reason of some training, the petitioners have to spend some amount of money which is 60% of their salary. though such statement has been made in the representation, but in the writ petition no such statement has been made. unless any such statement is made in the writ petition, such statement cannot be treated to be part of the pleading. simply because of the statement made in the annexure without being supported by any pleading, this court cannot rely on any such statement. the petitioners may have difficulty in under-going training, but when training is necessary part of working on the post of forester, they have no alternative. therefore. i do not find any reason to interfere with the order dated 6th may, 1998 particularly when admittedly the petitioners have never undergone training for the post of forester. the training on the post of forest guard cannot be equated with that of the forester, therefore, the petitioners have no legal right to claim for exemption from such training. the petitioners are governed by the relevant conditions of service. if it is felt necessary by the administration that training will be imparted to these persons so as to make them fit for the purposes of carrying out their duties and responsibilities, in that event, the employees cannot refuse the same.2. employment of a person is for the purpose of obtaining certainservice from such person. that is one of the reason why an employment is called service. the moment a person is engaged or employed is supposed to discharge certain function. in lieuof such service the employee is entitled to receive salary or emoluments which is a compensation against such service. the salary or emolument is not paid only because a person has been employed. it is paid in lieu of his service rendered by such employee. when a person is engaged or employed in a particular post, a particular kind of service is expected of him. if such service requires a particular kind of expertise, in that event, the employee must possess such expertise to render such service. in case a person is promoted from one category to other and such person though capable of discharging duties in the feeder category and if the higher category requires a particular expertise, in that event, it is open to the employer to decide that such person may undergo training to acquire such expertise. the employee has no choice to refuse to undergo such training. it is the employer who is the sole authority to decide as to whether a training is necessary or not. the purpose of promotion to a particular post is to discharge a particular duty or service. if such service requires a kind of expertise which necessiates a particular kind of training, in that event. it is incumbent on the employee to undergo such training. no, option is left to an employee to refuse to undergo such training. neither an employee can challenge the decision of the employer. it is open to the employer to formulate a policy to that end. in the present case, all such persons who have been promoted in the post of forester which is admittedly a service which requires certain kind of expertise being in the nature of technical service, the employer decided to impart training to such persons who have been promoted to the post of forester. the employee has no right to challenge such decision on any of the ground of his personal difficulty or otherwise or in the absence of any rule particularly when it is being implemented universally in respect of all such employees. therefore, the petitioner has not been able to establish any legal right to assail the decision to require him to undergo such training.3. thus, there is no merit in the writ petition. the writ petition falls and is accordingly dismissed. however, there will be no order as tocost.