Heard Sri Alok Kumar Misra, learned counsel for the petitioner, learned Standing Counsel for opposite parties no.1, 2 & 3 and Sri G.C. Verma, learned counsel for private opposite party i.e. opposite party no.4.
By means of this petition, the petitioners have prayed following reliefs:-
"i) Issue writ order or direction in nature of certiorari for quashing the impugned order dated 20.11.2020 passed by opposite party no.2 and order dated 11.01.2021 of opposite party no.3, contained as Annexure No.1 & 2, in the interest of justice.
ii) Issue writ order or direction in nature of mandamus commanding to concerned opposite party No.2 & 3 that they not pressurized upon petitioners for giving the charge to opposite party No.4 of the post of officiating principal during the pendency of disciplinary proceedings against the opposite party no.4, in the interest of justice."
While assailing the order dated 20.11.2020 (Annexure No.1), learned counsel for the petitioners has contended that before passing such order, the Joint Director of Education has not afforded opportunity of hearing to the petitioners. As per Sri Misra, by means of impugned order, the Joint Director of Education has however directed the District Inspector of Schools, Bahraich to look into the matter strictly in accordance with law and pass appropriate order but as a matter of fact, has directed to pass the order as per dictate of the Joint Director. He has drawn attention of this Court towards Annexure No.7 to the writ petition, which is a letter dated 2.12.2020 preferred by the District Inspector of Schools, Bahraich to the Joint Director of Education concerned apprising relevant facts and circumstances of the issue in question, particularly the fact that enquiry is pending against opposite party no.4. He has further submitted that when no decision has been taken by the Joint Director of Education concerned, the impugned order dated 11.1.2021 (Annexure No.2) has been passed by the District Inspector of Schools, Bahraich addressing the Committee of Management to hand over the charge of Principal to opposite party no.4, who is senior most Assistant Teacher of the Institution in question. Sri Misra has also submitted that departmental enquiry against opposite party no.4 was initiated on 25.10.2020 pursuant to the direction being issued by the District Inspector of Schools, Bahraich vide letter dated 23.10.2020 (Annexure No.5). He has also submitted that the order dated 26.10.2020 (Annexure No.6) has been passed by the Committee of Management addressing the opposite party no.4 that he is being relieved from the post of In-charge Principal and charge of Principal has been directed to be handed over to one Sri Rajmani Tripathi. As per Sri Misra, the aforesaid exercise has been carried out ensuring to conduct the enquiry against opposite party no.4 independently and without having been influenced by opposite party no.4. Sri Misra has defended the order dated 26.10.2020 (Annexure No.6) on the point of non-following the provisions of Section 21 of U.P. Secondary Education [Services Selection Board] Act, 1982 (hereinafter referred to as "the Act, 1982"), which has been taken into note by the Joint Director of Education concerned, since the enquiry against opposite party no.4 is being conducted pursuant to the specific direction being issued by the District Inspector of Schools, Bahraich itself, therefore, there is no need to take prior approval from the District Inspector of Schools while passing any order in the light of the mandatory condition of Section 21 of the Act, 1982. Therefore, he has submitted that the recital of the fact in the impugned order dated 20.11.2020 passed by the Joint Director of Education that the order dated 26.10.2020 passed by the Committee of Management is violative of Section 21 of the Act, 1982 is patently unwarranted and as a matter of fact, opportunity of hearing was also not provided to the petitioners before passing the order dated 20.11.2020.
So as to adjudicate the issue in question Section 21 of the Act, 1982 is being reproduced herein below:-
"[21. Restriction on dismissal etc. of teachers. - 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.]"
In Section 21 of the Act, 1982, the term used for Committee of Management is "shall", which means the modalities and requirement of Section 21 of the Act, 1982 would be adhered to strictly. This is an admitted position that the Committee of Management has not taken prior approval from the Board before passing the order dated 26.10.2020, however, the explanation has been given by Sri Misra that since the enquiry against opposite party no.4 was initiated pursuant to the direction of District Inspector of Schools, therefore, there was no such requirement to take prior approval if the charge of the Principal of the Institution in question has been taken back from opposite party no.4 as it shall be deemed that the District Inspector of Schools has given prior approval.
Having hearing learned counsel for the parties and having perused the material available on record, I am of the considered opinion that if there is any statutory prescription to do any act in a manner prescribed, the authority concerned shall pass order strictly following such condition of the prescription. Section 21 of the Act, 1982 is covering the issue inasmuch as opposite party no.4 has not only been asked to give up the post of Principal In-charge but also his rank has been reduced from In-charge Principal to Assistant Teacher, therefore, prior approval from the Board as mandated under Section 21 of the Act, 1982 may not be ignored. The law is trite that any authority, more particularly statutory authority, must act within four corners of the statute.
So far as the submission of Sri Misra that the Joint Director of Education concerned has not asked for appropriate orders be passed strictly in accordance with law but has dictated the terms vide order dated 20.11.2020 is concerned, the order of the District Inspector of Schools dated 23.10.2020 (Annexure No.5) is also prescribing to initiate enquiry against opposite party no.4 and he has categorically indicated his prima facie satisfaction to the effect that opposite party no.4 has committed misconduct and his integrity appears to be doubtful.
The law is trite on the aforesaid point that if any authority competent directs for initiation or conducting the departmental enquiry against any person, the misconduct of such employee shall be established during the course of enquiry/ departmental enquiry and if the superior authority, who directs for initiation of enquiry, gives his prima facie satisfaction regarding misconduct, the purpose of conducting departmental equiry would be frustrated, therefore, if the departmental enquiry or any enquiry is required in any issue, it should be left open for the enquiry officer to conduct the departmental enquiry independently inasmuch as while conducting the departmental enquiry, the enquiry officer is supposed to be quasi judicial authority and no direction regarding manner etc. to conduct the enquiry should be issued.
As per my opinion, the Joint Director of Education has only observed that the District Inspector of Schools should pass appropriate orders strictly in terms of Section 21 of the Act, 1982, therefore, there is no infirmity to that extent if such direction to follow the statutory prescription is issued. Besides, the District Inspector of Schools vide letter dated 2.12.2020 (Annexure No.7) preferred to Joint Director of Education concerned has not explained the reason under what circumstances or reason the mandatory conditions of Section 21 of the Act, 1982 have not been followed. As a matter of fact, the District Inspector of Schools has reiterated the contents of his letter dated 23.10.2020 (Annexure No.5) whereby he had directed for conducting the enquiry against opposite party no.4, therefore, I do not find any infirmity or illegality in the order dated 20.11.2020 (Annexure No.1) passed by the Joint Director of Education concerned.
So far as Annexure No.2 to the writ petition is concerned, which is a consequential order to the order dated 20.11.2020 thereby the Committee of Management has been directed to hand over the charge of Principal In-charge to opposite party no.4 is concerned, I am of the view that since the enquiry is pending against opposite party no.4 and opposite party no.4 has not approached any competent authority for redressal of his grievance nor filed any writ petition challenging inaction on the part of the opposite parties, if any, therefore, appropriate orders in the interest of Institution may be passed by the Committee of Management seeking prior approval to this effect from the competent authority strictly in accordance with law. However, this observation may not affect opposite party no.4, if he assails inactions of the opposite parties, if any, before the authority concerned or before appropriate court of law. The educational institution is discharging pois duty, therefore, as to who is suitable to discharge the functions of Head of the Institution should be decided by the authority competent considering all facts and circumstances and legal prescriptions in the interest of such institution and students thereof. Therefore, the authority competent shall pass appropriate order strictly in accordance with law, with promptness, in the interest of the Institution.
In view of the aforesaid, no relief can be granted to the petitioners by this writ petition.
Consigned to records.
Order Date :- 4.2.2021 /RBS/-
[Rajesh Singh Chauhan,J.]