Court No. - 36
Case :- WRIT - A No. - 14911 of 2020 Petitioner :- C/M Pnv Inter College And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Daya Shankar Singh,Adarsh Singh,Indra Raj Singh,Shailendra(Senior Adv.),Virendra Singh Parmar Counsel for Respondent :- C.S.C.
Case :- WRIT - A No. - 4669 of 2021 Petitioner :- C/M P.N.V. Inter College Chilli And Another Respondent :- District Inspector Of Schools And 2 Others Counsel for Petitioner :- Indra Raj Singh,Adarsh Singh,Virendra Singh Parmar Counsel for Respondent :- C.S.C.,Gaurav Sarkar,Indresh Dubey,Radha Kant Ojha (Senior Adv),Shivendu Ojha Case :- WRIT - A No. - 14926 of 2020 Petitioner :- C/M P.N.V. Inter College And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Daya Shankar Singh,Adarsh Singh,Indra Raj Singh,Shailendra(Senior Adv.),Virendra Singh Parmar Counsel for Respondent :- C.S.C.
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Indra Raj Singh, learned counsel for the petitioners; Shri Devesh Vikram, learned Standing Counsel for the State respondents and Shri R.K. Ojha, learned Senior Counsel assisted by Shri Shivendu Ojha, learned counsel for the respondent no.5 i.e. Shri Rakesh Kumar presently working as Lecturer (English).
With the consent of learned counsel for the parties, all the writ petitions are being decided by this common judgment.
Writ Petition No.14911 of 2020
This writ petition has been preferred assailing the validity of order dated 3.12.2020 passed by District Inspector of Schools, Hamipur by which he has recorded finding that provisions of Section 16G (7) of the Uttar Pradesh Intermediate Act, 1021 are not applicable in the case of Shri Rakesh Kumar-respondent no.5 and for a further direction to respondent authorities not to interfere in the peaceful functioning of the petitioner- Committee of Management as well as the work of respondent no.4 i.e. Vinod Kumar as Officiating Principal of P.N.V. Inter College, Chilli (Maskara), Distt. Hamirpur as per the letter of appointment dated 4.8.2020 and its approval and also in the functioning of the Inquiry Committee.
The record in question reflects that the petitioner institution namely "P.N.V. Inter College, Chilli (Muskara) Hamirpur" is duly recognized and aided institution under the provisions of Uttar Pradesh Intermediate Eduction Act, 1921 (in short "the Act, 1921") and is also governed under the U.P. Act No.24 of 1971 and U.P. Act No.5 of 1982 and the Rules framed thereunder. The institution is managed by petitioner no.2/1, who is duly elected and recognised as Manager of the Committee of Management of the institution in question. The respondent no.5-Rakesh Kumar on the recommendation of U.P. Secondary Education Services Selection Board has been appointed on the post of English Lecturer in the institution on 18.3.2017. It appears that the petitioner-Committee of Management on account of serious misconduct has placed the fifth respondent under suspension on 4.10.2020 and the same was sent for approval to the District Inspector of Schools (DIOS). However, the DIOS passed an order dated 3.12.2020 and opined that Section 16 G (7) of Act, 1921 would not be applicable upon respondent no.5. Aggrieved with the said order, present writ petition has been instituted.
Shri Indra Raj Singh, learned counsel for the petitioner has challenged the order dated 3.12.2020 on two fold. Firstly he has submitted that the order impugned has been passed exparte and no reasons were recorded by the DIOS while passing the order impugned. Secondly it is contended that the order impugned has neither approved the suspension order passed by the Committee of Management against respondent no.5 nor disapproved the same. He submits that as per the provisions contained under Section 16 G of the Act, 1921 it is well settled principle of law that opportunity of being heard ought to be granted to the teacher and the Committee of Management. Moreover it is also well settled principle of law that DIOS must pass reasoned order indicating atleast brief reasons for granting his approval or, as the case may be, disapproval to the suspension of teacher vide Chandra Bhushan Mishra v. District Inspector of Schools, Deoria & Ors., (1995) 1 UPLBEC 460 (FB). He submits that order impugned is unsustainable being violative to the aforesaid provisions as well as settled principle of law and liable to be set aside. Learned counsel for the petitioner has also placed reliance on the judgment of Division Bench in Hari Singh Rajput v. State of U.P. & Ors., Laws (All) 2015 3 174.
Shri R.K. Ojha, learned Senior Counsel appearing on behalf of respondent no.5 has submitted that the management for either one reason or the other is victimising the teachers, who are duly selected by the Board and just to victimise and harass the respondent no.5 the suspension order has been passed. The order impugned may be taken as disapproval of the suspension order, therefore, the DIOS has rightly proceeded to observe that the provisions contained under Section 16 G (7) of the Act, 1921 would not be attracted.
Learned Standing Counsel has also contended that the order impugned is liable to be treated as non-approval of the suspension order passed by the Committee of Management, therefore, there is no illegality in the order impugned and the writ petition is liable to be dismissed.
Heard rival submissions, perused the record and respectfully considered the judgments cited at Bar.
Section 16 G of the Act of 1921 deals with the conditions of service of head of institutions, teachers and other employees of the Intermediate Colleges. Its sub-section (5), (6), (7) and (8) provide for suspension of head of institution or a teacher of such institution, which are quoted as under:-
"16-G. (5) No Head of Institution or teacher shall be suspended by the Management, unless in the opinion of the Management, -
(a) the charges against him are serious enough to merit his dismissal, removal or reduction in rank; or
(b) his continuance in office is likely to hamper or prejudice the conduct of disciplinary proceedings against him; or
(c) any criminal case for an offence involving moral turpitude against him is under investigation, inquiry or trial.
(6) Where any Head of Institution or teacher is suspended by the Committee of Management, it shall be reported to the Inspector within thirty days from the date of the commencement of the Uttar Pradesh Secondary Education Laws (Amendment) Act, 1975, in case the order of suspension was passed before such commencement, and within seven days from the date of the order of suspension in any other case, and the report shall contain such particulars as may be prescribed and be accompanied by all relevant documents.
(7) No such order of suspension shall, unless approved in writing by the Inspector, remain in force more than sixty days form the date of commencement of the Uttar Pradesh Secondary Education Laws (Amendment) Act, 1975, or as the case may be, from the date of such order, and the order of the Inspector shall be final and shall not be questioned in any Court.
(8) If, at any time, the Inspector is satisfied that disciplinary proceedings against the Head of Institution or teacher are being delayed, for no fault of the Head of Institution or the teacher, the Inspector may, after affording opportunity to the Management to make representation revoke an order of suspension passed under this section."
Under sub-section (5) the Management of an institution can suspend Head of the Institution or a teacher if it is of the opinion that one of the grounds specified in Clause (a) to (c) of the said sub-section exists. Sub-section (6) requires the management to submit the report regarding the suspension to the Inspector within time specified therein. Sub-section (7) has laid down that no order of suspension shall remain in force for more than sixty days from the date of such order, unless approved in writing by the Inspector. Sub-section (8) empowers the Inspector to revoke the order of suspension, if he is satisfied that the disciplinary proceedings against the Head or the teacher of the Institution are being delayed without any fault on their part. According to sub-section (7) no order of suspension shall "remain in force for more than sixty days" unless approved in writing by the Inspector. 'In force' means 'in operation'.
The Court has also proceeded to consider the judgment in Chandra Bhushan Misra (Supra), which for ready reference is quoted as under:-
"1. A Division Bench of this Court has referred the following two questions for decision by the Full Bench:
1. Whether the order of suspension of Principal or a teacher of an Intermediate College, if not approved by the District Inspector of Schools within sixty days from the date of such order, lapses or it merely ceases to operate and become effective after it is approved by the Inspector?
2. Whether writ petition challenging an order of the D.I.O.S. passed under Section 16- G(7) of the Act becomes infructuous and no relief can be granted even if the order of the D.I.O.S. is found to be bad?
Section16-G of U.P. Intermediate Education Act, 1921 (hereinafter referred to as the Act) deals with the conditions of service of head of institutions, teachers and other employees of the Intermediate Colleges. Its sub-sections (5), (6), (7) and (8), which provide for suspension of head of institution or a teacher of such institution are as under:
16-G: (5) No Head of Institution or teacher shall be suspended by the management, unless in the opinion of the management--
(a) the charges against him are serious enough to merit his dismissal, removal or reduction in rank; or
(b) his continuance in office is likely to hamper or prejudice the conduct of disciplinary proceedings against him; or
(c) any criminal case for an offence involving moral turpitude amongst him is under investigation, inquiry or trial.
(6) Where any Head of Institution or teacher is suspended by the Committee of Management, it shall be reported to the Inspector within thirty days from the date of the commencement of the Uttar Pradesh Secondary Education Laws (Amendment) Act, 1975, in case the order of suspension was passed before such commencement, and within seven days from the date of the order of suspension in any other case, and the report shall contain such particulars as may be prescribed and accompanied by all relevant documents.
(7) No such order of suspension shall, unless approved in writing by the Inspector, remain in force for more than sixty days from the date of commencement of Uttar Pradesh Secondary Education Laws (Amendment) Act, 1975, or as the case may be, from the date of such order, and the order of the Inspector shall be final and shall not be questioned in any Court.
(8) If, at any time, the Inspector is satisfied that disciplinary proceedings against the Head of Institution or the teacher are being delayed, for no fault of Head of Institution or the teacher, the Inspector may, after affording opportunity to the Management to make representation revoke an order of suspension passed under this Section.
Under sub-section (5) the Management of an Institution can suspend Head of the Institution or a teacher if it is of the opinion that one of the grounds specified in clause (a) to (c) of the said sub-section exists. Sub-section (6) requires the Management to submit the report regarding the suspension to the Inspector within time specified therein. Sub-section (7) has laid down that no order of suspension shall remain in force for more than sixty days from the date of such order unless approved in writing by the Inspector. Sub-section (8) empowers the Inspector to revoke the order of suspension, if he is satisfied that disciplinary proceedings against the Head or the teacher of the Institution are being delayed without any fault on their part.
2. According to sub-section (7) no order of suspension shall "remain in force for more than sixty days" unless approved in writing by the Inspector. 'In force' means 'in operation'. A statutory enactment or an order does not lapse merely because it has not come or brought into force. The only effect of an order, which is not in force is that it is ineffective and inoperative. But such an order is not obliterated and continues to exist though ineffective. Similarly when the order, which was in force, has ceased to be operative due to supervening event, will come into force again and will become effective after the infirmity caused by supervening event is removed. In view of the provisions of sub-section (7), an order of suspension of Head or a teacher of an Institution shall remain in force for a period of sixty days from the date of such order even if it is not approved in writing by the Inspector; but in the absence of the approval by the Inspector such an order will cease to operate on expiry of sixty days from the date of the order, although it will continue to exist though inoperative. But if the order of suspension is approved even after the expiry of sixty days, it will come into force again and will become effective immediately on such approval. Any other interpretation will lead to serious consequences. Inaction on the part of the Inspector either deliberate or otherwise may frustrate the object of the provision itself.
3. If the Inspector has not passed any order under sub-section (7) or has passed unsustainable order, this Court at the instance of the person aggrieved can under Article 226 of the Constitution pass appropriate order and issue direction to the Inspector for passing the order afresh in accordance with law. Such a writ petition does not become infructuous after the expiry of sixty days from the date of the order of suspension. This Court has the jurisdiction under Article 226 of the Constitution to pass effective order in view of the facts and circumstances of the case.
4. Decision of this Court in Committee of Management v. D.I.O.S. 1985 (2) UPLBEC 1365, Committee of Management v. D.I.O.S. 1986 UPLBEC 144 and Manila Viaya Prachar Samiti v. Regional Inspectress of Girls Schools Writ Petition No. 61 of 1977 decided on 11.4.1978 do not lay down correct law and are, therefore, over-ruled. Our answers to the questions referred are as under:
1. An order of suspension of the Head or a teacher of an Institution does not lapse even if not approved by the Inspector within sixty days from the date of such order and it merely ceases to operate and becomes effective again after it is approved by the Inspector.
2. The writ petition filed before this Court under Article 226 of the Constitution of India against an order of D.I.O.S. passed under Section 16-G(7) of the Act does not become infructuous after the expiry of sixty days from the date of the order of suspension and this Court has full power to pass appropriate order and issue appropriate direction in such matter."
In order to appreciate the controversy in hand, it would be appropriate to have a glance on the order impugned dated 3.12.2020, which is as under:-
"पप्रेषक जजिलला वविदलालय वनिररीक्षक हमरीरपपुर | सप्रेविला मम, पबबंधक, परी0 एनि 0 विरी0 इट हमरीरपपुर | र ककॉलप्रेजि-वचिलरी, पतलाबंक/ 2678-82 /2020-2021 वदिनिलाबंक 03.12.2020 वविषय- शरी रलाकप्रे श कपु मलार, पविकला अबंगप्रेजिरी कला वनिलबंबनि आदिप्रेश ललागपु नि रहनिप्रे कप्रे सम्बन्ध मम | महहोदिय, उपयरक वविषयक वविदलालय पबबंध सवमवति कप्रे पस्तिलावि सबं० -02 वदिनिलाबंक 04.10.2020 एविबं आदिप्रेश पत सबं०-
231-35/2020-2021 वदिनिलाबंक 04.10.2020 दलारला शरी रलाकप्रे श कपु मलार पविकला अबंगप्रेजिरी कहो वनिलबंवबति वकयला गयला थला | मलाध्यवमक वशक्षला अजधवनियम 1921 ककी धलारला - 16 जिरी ककी उपधलारला 7 कप्रे अबंतिगरति उक आदिप्रेश वितिरमलानि मम शरी रलाकप्रे श कपु मलार पविकला अबंगप्रेजिरी पर ललागगू निहहीं हहै | कक पयला तिदिनिपुसलार कलायरविलाहरी कर अदहोहस्तिलाक्षररी कहो अविगति करलाएबं . भविदिरीय (श्यलाम सरहोजि विमलार) जजिलला वविदलालय वनिररीक्षक हमरीरपपुर |"
The recital of the aforesaid order clearly fortify the claim of the management. The said order had been passed in most arbitrary manner without any notice or opportunity to the petitioner- Committee or respondent nos.4 and 5. The provisions of Section 16 G (7) of the Act, 1921 are fully applicable in the present case as the DIOS has failed to record any finding whether he is approving or disapproving the suspension. He only made observations that provisions of Section 16 G (7) of the Act, 1921 would not be attracted in the matter. When the DIOS considers whether to approve an order of suspension under Section 16-G of the Act, 1921, it is well settled principle of law that an opportunity of being heard ought to be granted to the teacher, the Principal and the Management. Moreover, it is also a well settled principle of law that the District Inspector of Schools must pass a reasoned order indicating at least brief reasons for granting his approval or, as the case may be, disapproval to the suspension of a teacher. In the present case, ex facie the order of the DIOS did not indicate any reasons.
In the aforesaid facts and circumstances, the order impugned cannot sustain and the same is accordingly set aside. The writ petition stands allowed. The matter is relegated to the District Inspector of Schools to pass a fresh order in accordance with law and in view of the observations made hereinabove after furnishing opportunity to all the stake holders in the matter.
Writ Petition No.4669 of 2021
This writ petition has been preferred assailing the validity of the order impugned dated 9.2.2021 passed by respondent no.1 i.e. District Inspector of Schools, Hamirpur directing single operation of salary account of the petitioner-institution and for a direction to respondent no.1 not to interfere in the function of the petitioners under the order impugned.
In the aforesaid facts and circumstances, once the Court has allowed Writ Petition No.14911 of 2020, Shri R.K. Ojha, learned counsel for Shri Rakesh Kumar, Lecturer (English) very fairly submits that it is not the endeavour of an employee of the management to press for single operation and to hamper the smooth functioning of the institution. For substantial justice, as the matter is relegated to the DIOS to take a final call in the matter under Section 16 G (7) of the Act, 1921, he has no objection, in case order impugned directing single operation is set aside. The same view is also reiterated by learned Standing Counsel.
Taking into consideration the order passed in Writ Petition No.14911 of 2020, this Court is of the considered opinion that the order impugned dated 9.2.2021 is liable to be set aside and the same is accordingly set aside. The writ petition stands allowed accordingly.
Writ-A No.14926 of 2020
This writ petition has been preferred assailing the validity of the order dated 4.12.2020 passed by DIOS, Hamirpur by which he has reviewed his earlier decision dated 4.8.2020, whereby respondent no.4-Vinod Kumar was allowed to work on the post of Officiating Principal and his appointment was approved and for a direction to respondent authorities not to interfere in the functioning of the petitioner-Committee as well as the work of respondent no.4-Vinod Kumar as Officiating Principal of the institution in question.
In the aforesaid facts and circumstances, Shri Indra Raj Singh, learned counsel for the petitioner very fairly states that once the Court has allowed the aforesaid two writ petitions while setting aside the orders impugned, as such he is not pressing the present writ petition.
In view of this, the writ petition is dismissed as not pressed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the petitioner alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 30.7.2021 SP/