The petitioner, Committee of Management, Public Intermediate College, Motihan, Allahabad has made this writ petition for a direction upon District Inspector of Schools, Allahabad to approve the suspension of respondent no. 4, in accordance with law, who is the Principal of the said College.
A brief reference to the factual aspect would suffice.
Petitioner is a Committee of Management of an educational institution namely Public Intermediate College, Motihan, Allahabad (for short College). It is a recognised Institution. It is governed by the provisions of U.P. Intermediate Education Act, 1921, the Regulations framed thereunder and U.P. Secondary Education (Service Selection Board) Act, 1982.
The respondent no. 4 is an Assistant Teacher in the institution. He was initially appointed on compassionate ground. He was placed under suspension by the Committee of Management on 23.9.2010 on the serious allegations of indiscipline and misconduct. The resolution of the Committee of Management placing him under suspension, was sent to the District Inspector of Schools on the same day. However, the District Inspector of Schools has failed to take any action in terms of Section 16(G)(7) of U.P. Intermediate Education Act, 1921 (for short Act 1921). In view of his failure to exercise his statutory power, the respondent no. 4 has joined the institution, as suspension order lapses after 60 days as envisaged by Section 16-G(7).
I have heard Mr. Yogish Kumar Saxena, learned counsel for the petitioner and the learned Standing Counsel for the respondents.
Learned counsel for the petitioner urged that there are very serious allegations against respondent no. 4 under the Gambling Act. Several criminal cases are pending against him and he was also sent to jail for about 14 days and concealing the said facts he had drawn the salary of the period when he was in jail. However, the District Inspector of Schools has failed to pass any order.
He has further submitted that the action of District Inspector of Schools is wholly arbitrary and there is no justifiable reason for not passing the order within the reasonable period.
Mr. Saxena has placed reliance upon a Full Bench judgement of this Court in the case of Chandra Bhushan Misra vs. District Inspector of Schools Deoria reported in 1995-LAWS (All)-2-4. Para 4 of this judgement are as follows:
"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."
Following the said Full Bench decision, this Court time and again has highlighted the same view that the District Inspector of Schools should take a decision within reasonable time, provided that the Committee of Management has complied the Regulations 39 and has sent all the required papers within a stipulated period in terms of said Regulation.
Mr. Saxena has further urged that on 11.2.2011 when this writ petition was entertained, this Court requested the Standing Counsel to seek the instruction and the mater was directed to put up on 15.2.2011. Thereafter the District Inspector of Schools issued a notice dated 24.2.2011 wherein he asked the Committee of Management to be present on 28.2.2011. The said notice has been brought on record by the learned counsel for the petitioner by way of a supplementary affidavit.
Sri Saxena lastly submitted that in response to the notice dated 24.2.2011, the Committee of Management has again submitted all the papers at the earlier occasion. However, till date no decision has been taken by the District Inspector of Schools.
The learned Standing Counsel has submitted that after 60 days lapsed, the respondent no. 4 was entitled to join as there is no suspension order in operation. The learned Standing Counsel has further submitted that there is no statutory requirement that District Inspector of Schools must pass the order within 60 days.
I have considered the rival submissions of the respective parties.
Section 16 G(7) is designed with a laudable objective that Management may not harass the teacher by placing him under suspension and prolonging the disciplinary proceedings for an indefinite period. The intention of the legislature is obvious from the plain reading of Section 16-G(5) (7) and (8) that a Head/teacher of Institution may be placed under suspension when charges against him are serious enough and/or any criminal case for an offence involving moral turpitude against him is under investigation, inquiry or trial. But facts of this case eloquently speak how the office of the District Inspector of Schools is abusing the power in favour of teacher to frustrate the disciplinary proceedings itself. If during disciplinary proceedings a teacher is allowed to remain in the institution, he can temper relevant documentary evidences and consequently change the course of disciplinary proceedings. The office of District Inspector of Schools becomes easy tools in the hands of erring teacher/Principal.
In Chandra Bhushan Misra's case (supra), it has been observed that although the order of suspension will lapse after the expiry of 60 days. However, it will come into force and will become effective immediately on such approval. The Court has further observed that any other constructions may frustrate the object of the provision.
This Court in the case of Committee of Management, Intermediate College, Gorai vs. District Inspector of Schools, Varanasi & another, 2001 (1) UPLBEC 468 has taken note of the inaction of the office of the District Inspector of Schools in such matters. The relevant part of the judgement is as follows:
4. Section 16- G (8) of the Act empowers the District Inspector of Schools to revoke suspension if the management is found to be delaying inquiry. Section 16-G (7) provides for automatic cessation of suspension order if no approval or disapproval is granted within sixty days. The two provisions read together manifest the legislative anxiety of protecting a teacher against arbitrary action of the management. But it does not empower the District Inspector of Schools to abuse it so as to frustrate the action of the management where it proposes to proceed in accordance with law. Facts of this case demonstrate that the District Inspector of Schools has failed to discharge his duty with responsibility. It calls for an inquiry by the higher authorities. When the management sent the suspension order under Section 16-G (6) of the Act to the District Inspector of Schools for grant of approval, he could not sit tight over the matter till the expiry of sixty days statutory period.
This Court, in the aforesaid case, has laid down the law that such action calls an enquiry by the higher authority. On similar facts, there are series of decisions deprecating the delay on the part of District Inspector of Schools in taking decision.
If a teacher or Principal is placed under suspension and no action is taken by District Inspector of Schools by virtue of the statutory provision, the Principal/teacher is entitled to resume his duties after lapse of 60 days when the suspension order becomes inoperative. Consequent upon such inaction the suspended Principal/teacher resumes his duty as a Principal likewise teacher is also allowed to discharge his duties as a teacher. If there are serious charges of misconduct or criminal cases against Principal/teacher, it affects general administration, discipline, control over subordinate staff and employees as well as standard of the education of the institution.
The Supreme Court in the case of Mahak Singh (Dr) v. Chancellor, Ch. Charan Singh University, Meerut, (1996) 11 SCC 760, at page 768 has observed in the following terms:
"We would be loath to give any relief to the appellant so as to entitle him to work as Acting Principal of the Degree College when he is facing the charge of double murder. We obviously cannot and do not express any opinion on his culpability but at least this involvement and cloud affect his credentials for being considered as a suitable candidate for the post of Acting Principal of the college wherein students have to be taught discipline and are to be equipped with knowledge, expertise and higher values of life so as to make them better citizens."
Similar view has been take by the Supreme Court in Nirmala Secondary School, Port Blair vs. M.T. Khan, AIR 2004 SC 49.
In the present case, the respondent no. 4 was placed under suspension on 22.9.2010 on the grounds that he was facing criminal case under sections 308, 323, 504 and 506 I.P.C. and he was in jail for 14 days. It is stated that he is also facing the charges under Gambling Act and a charge sheet in Criminal Case No. 472 of 2007 under sections 308, 323, 504 and 506 I.P.C. has also been submitted against him.
The Committee of Management has sent all the papers relating to the suspension of respondent no. 4 in the office of District Inspector of Schools on 23.9.2010. The said document bears the receipt of the office of District Inspector of Schools The Committee of Management has also served the charge sheet in the disciplinary proceedings on 14.10.2010 which the respondent no. 4 had refused and, therefore, it was published in the newspaper. The Committee of Management after the lapse of 60 days had permitted the respondent no. 4 to join the institution. It is also stated that this Court in the instant writ petition on 11.2.2011 directed the Standing Counsel to seek instruction and the matter was to be heard on 18.2.2011. On the said date, time was again sought to seek instruction. In the mean time, during the pendency of the writ petition, the District Inspector of Schools had issued a notice on 24.2.2011 and fixed 28.2.2011. According to the petitioner on 28.2.2011, the representative of the Committee of Management appeared on the said date and he has again submitted all the documents and the records. The District Inspector of Schools did not take any decision. The petitioner had made two representations dated 30.5.2011 and thereafter 15.7.2011 but those representations failed to find any favourable response from the office of District Inspector of Schools. From the facts of the case, it is established that the office of District Inspector of Schools is abusing its power under section 16-G (7) of the Intermediate Education Act, 1921.
The Intermediate Education Act and the Regulations framed therein are silent that in such a situation what course of action may be adopted against erring Principal/teacher.
After coming into force of U.P. Secondary Education Service Selection Board Act, 1982, Section 21 of the said Act put a restriction on dismissal, removal or reduction in rank of a Principal/Head of Institution/teacher except with prior approval of the Board. Section 21 further enjoins that any action without prior approval shall be void.
In exercise of powers under sections 7 and 34 of the U.P. Secondary Education Service Commission and Selection Board Act, 1982, the U.P. Secondary Education Services Commission (Procedure for Approval of Punishment) Regulations, 1985 have been framed. The Regulation provides elaborate procedure to be followed before taking any decision on the proposal of Committee of Management for dismissal/removal/reduction in rank or any other punishment of Principal/teacher.
It is a common ground that the Board usually takes sometimes upto three/four years to complete the entire process of the hearing provided under the above regulation and in the mean time the Principal/teacher is allowed to continue in the institution. Keeping in view of ground realities, it is more important to exercise the power under Section 16-G (7) objectively and timely by the District Inspector of Schools.
In absence of any statutory remedy provided under the Intermediate Education Act or U.P. Secondary Education Service Selection Board, the Committee of Management or the teacher does not have any statutory remedy except to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution. The docket of this Court is already choked by huge pending cases.
At the cost of repetition, the Principal/teacher is facing disciplinary proceeding, the administration of the institution and the studying of the students are adversely affected. Such a situation is not in the interest of institution and the students. In absence of any statutory remedy, in my view, if the District Inspector of Schools fails to exercise his statutory power within 60 days, aggrieved party may file a representation to the higher authority, the Joint Director of Education, inviting his attention to inaction on the part of the office of District Inspector of Schools. If such a representation is filed before the Joint Director he may seek the comments of District Inspector of Schools for the reason of inaction on his part.
The Court is not oblivious of the fact that in absence of any statutory provision whether such a jurisdiction can be exercised by the Joint Director and whether this Court can issue such a direction. The Supreme Court has answered the question in Ratan Chand, Hira Chand vs. Askar Nawazung reported in 1991 (3) SCC 67 in following terms:
"the legislature often fails to keep pace with the changing needs and values nor is it realistic to expect that it will have provided for all contingencies and eventualities. It is, therefore, not only necessary but obligatory on the Courts to step in to fill the lacuna. When Courts perform this function undoubtedly they legislate judicially. But that is a kind of legislation which stands implicitly delegated to them to further the object of the legislation and to promote the goals of the society."
In another case, the Supreme Court in Sarojini Ramaswami vs. Union of India, AIR 1992 SC 2219 has ruled as under:
"In this context it is also useful to recall the observation of R.S. Pathak, CJ. speaking for the Constitution Bench in Union of India v. Raghubir Singh (dead) by LRs, (1989) 2 SCC 754 (AIR 1989 SC 1933) about the nature and scope of judicial review in India. The learned Chief Justice stated thus:
"........It used to be disputed that Judges make law. Today, it is no longer a matter of doubt that a substantial volume of law governing the lives of the citizen and regulating the function of the State flows from the decisions of the Superior Courts. "There was a time", observed Lord Reid, "When it was thought almost indecent to suggest that judges make law-they only declare it... But we do not believe in fairy tales any more."
Bearing in the mind the principle aforesaid, I am of the view that if the Joint Director is conferred only this much power to ask the District Inspector of Schools, reason for delay and to issue a direction to him to take decision within reasonable time, will not be tantamount to exceed the jurisdiction under Article 226 of the Constitution.
Regard being had to the fact that section 16-A (7) provided forum to decide the election dispute of Committee of Management. The Joint Director had jurisdiction to decide the claim of rival Committee of Management but in view of large number of complaints received by the State Government that Authority entrusted the statutory obligations are misusing their power under Act 1921, the State Government issued Government Order 19.12.2000 for redistributing the jurisdiction to various authorities at regional level. The validity of the Government Order was challenged in this Court. However, this Court upheld its validity. The Regional Committees so constituted are functioning smoothly for more than a decade In the totality of the circumstances, a direction is issued upon the District Inspector of Schools to take decision in accordance with law in the matter of suspension of respondent no. 4 within two weeks from the date of communication of this order. If the District Inspector of Schools for any reason fails to take the decision within the said period, the Committee of Management may file a representation before the Joint Director.
The writ petition is allowed in the aforesaid terms. No order as to costs.
Order Date :- 11.5.2012 Puspendra