JUDGMENT A. K. Yog, J.
1. This case as fresh has come up by nomination by the Hon'ble the Chief Justice.
2. Respondent No. 2, appeared as 'Caveator' and has filed counter-affidavit in the writ petition. Petitioner has filed rejoinder-affidavit to it.
3. All the respondents are represented. Standing counsel does not propose to file counter-affidavit as the question raised by the petitioner is based on interpretation of statutory provisions.
4. Writ petition is, therefore, decided finally at admission stage.
5. The petitioner. Committee of Management. Abdus Salam Muslim Girls Inter College Bhatee Street. Moradabad. is aggrieved against an order dated July 31. 1999 (Annexure-7 to the writ petition) whereby the District Inspector of Schools refused to accord approval to the resolution of suspension passed against respondent No. 2 (Md. Ayas)--Head Clerk in the college, on the ground that requisite papers were not submitted within seven days under Section 16G and Regulation 39 (1) and (2) of Chapter III of the Regulation framed under the U.P. intermediate Education Act, 1921, 'the Act' and Government Order dated 8th July, 1986.
6. The management has prayed for issuing a writ, order or direction in the nature of certiorari, quashing the impugned order dated 31.7.1999 (Annexure-7 to the writ petition) on the ground that no prior approval was required from the District Inspector of Schools under law.
7. Petitioner claims to be Committee of Management of a duly recognised Girls Inter College under the Act. It is not disputed that provisions of the Act are applicable to the college and that Mohd. Ayas (respondent No. 2) is the Head Clerk in the institution.
8. All the parties agreed and confined their submissions to the following legal points ; namely (i) whether petitioner (Management of the institution recognised under the Act), in the case of a Head Clerk, is under an obligation to submit papers for approval within seven days of the date of order of suspension under relevant Regulation 39 (2) and (3) ; (ii) whether management in case of non-leaching staff also required to submit papers or report as required in the case of a teacher under Section 16G (6) read with Regulation 39 (1). In other words, whether provisions of Section 16G (6) and Regulation 39 (1) apply mutatis-mutandis in the matter of suspension of a non-teaching employee. Second question arises incidentally but it is answered to avoid confusion in any way with regard to the correct interpretation and scope of Regulation 39 in the case of non-teaching employee.
9. For convenience, relevant provisions under consideration are quoted :
Section 16G (1)--(i) Every person employed in a recognised institution shall be governed by such conditions of service as may be prescribed by Regulations and any agreement between the management and such employee in so far as it is consistent with the provisions of this Act or with the Regulations shall be void.
(ii) .......
(iii) .....
(iv) ........
(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 of the 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 teacher are being delayed, for no fault of the Head of Institution or the teacher, the Inspector may. after affording opportunity to the management or make representation revoke an order of suspension passed under this section.
Chapter III
10. Regulation 39 (1)--The report regarding the suspension of the head of institution or of the teacher to be submitted to the Inspector under subsection (6) of Section 16G shall contain the following particulars and be accompanied by the following documents.
(a) the name of the person suspended along with particulars o the (posts including grades) held by him since the date of his original appointment till the time of suspension including particulars as to the nature held at the time of suspension, e.g., temporary, permanent or officiating ;
(b) certified copy of the report on the basis of which person was last confirmed or allowed to cross efficiency bar whichever later ;
(c) details of all charges on the basis of which such person was suspended ;
(d) certified copies of the complaints, reports and enquiry report, if any, of the inquiry officer on the basis of which such person was suspended ;
(e) certified copy of the resolution of the Committee of Management suspending such person ;
(f) certified copy of the order of suspension issued to such person ;
(g) in case such person was suspended previously also, details of the charges on which and the period for which he was suspended on previous occasions accompanied by certified copies of the orders on the basis of which he was reinstated.
(2) An employee other than a head of institution or a teacher may be suspended by the appointing authority on any of the grounds specified in clauses (a) to (c) of subsection (5) of Section 16G.
Substituted by Government Order dated 7.7.1976.
(3) No such order of suspension under sub-regulation (2) shall, unless approved in writing by the Inspector remain in force for more than sixty days from the date of such order.
(Substituted vide Government order dated 8.7,1996) Regulation 100 (added in March. 1975) :
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11. Regulation 39 of Chapter 111 of the Regulations framed under the Act before its amendment in 1976. was not applicable to a non-teaching employee of a recognised institution under the Act.
12. Regulation 100 also did not make Regulation 39 applicable to a non-teaching employee.
13. Hence the necessity to incorporate clauses (2) and (3) to Regulation 39 arose to provide same protection to non-teaching employee also against arbitrary exercise of power in the matter by Committee of Management.
14. State Government, in exercise of its power under Section 9 (4) of the Act, issued Government Orders dated July 7, 1976 and dated July 8. 1996 and clauses (2) and (3) respectively were added. These are the only relevant provisions dealing with suspension of a non-teaching employee of a recognised institution under the Act.
15. Regulation 39 (2) proclaims by giving a mandate to a 'management' of a recognised institution not to suspend a non-
teaching employee (Class III+IV) on any-one or more grounds other than the grounds specified in Section 16G (5) clauses (a) to (c). A management cannot suspend a non-teaching employee (after 7th July, 1976 when clause 12) was added to Regulation 39). If the grounds under clauses (a) to (c) of Section 16G (5) did not exist. In the case of an employee (other than teacher) Section 16G (5) of the Act is relevant for limited purposes, namely, to find out the permissible grounds on which such an employee can be suspended. Section 16G (5) does not, of its own and as such apply to a non-teaching employee. Clause (2) of the Regulation, therefore, placed restriction on the power of Committee of Management to suspend a 'non-teaching' employee only on grounds specified for Teacher' under Section 16G (5) of the Act.
16. Further, Regulation 39 (2) does not require a report to be submitted and it is in contradiction to Regulation 39 (1) (dealing with the case of only teacher in this respect).
17. There is no obligation upon a management under clause (2) of Regulation 39 to submit papers regarding suspension within seven days in case of an employee (other than teacher). Such papers/information may be given to District inspector of Schools any time.
18. Regulation 39 (3), however, provides for contingency of suspension order becoming inoperative if it is not approved by District inspector of Schools within 60 days of its inception.
19. Clause (3) to Regulation 39 (with effect from 8th July, 1996) merely imposed an obligation upon Management to obtain approval from concerned District inspector of Schools within 60 days of its date with solemn object to (a) obviate harassment and illegal victimisation of a non-teaching employee (b) to require management to initiate bona fide disciplinary action and complete disciplinary proceedings with all seriousness and expeditiously.
20. If 'management' fails to seek approval or the District inspector of Schools refuses to accord approval under Clause (3) of Regulation 39, an order of suspension shall, be inoperative on expiry of sixty days of its inception. In other words, order of suspension of a 'non-teaching employee' in a recognised institution passed by Committee of Management shall lapse and cannot remain in force unless it is approved within 60 days of its inception by District inspector of Schools.
21. The District inspector of Schools, in the present case, evidentally laboured under misconception of law. when he held contrary to the above.
22. Section 16G (6) of the Act, as stated above is relevant for the cases of Head of the institution or teachers only. The said provision does not apply to an employee (other than teachers).
23. In Managing Committee, Dayanand inter College, Gorakhpur v. District inspector of School and Others. 1980 UPLBEC. 168 (DB) and Bat! Rani Singh and another u. Committee of Management. Amarbir inter College, Dhanapur Varanasi and others, 1993 (3) VPLBEC 1826 (DB). similar view has been taken and it is held that omission of the words 'other employee' in this section shows that omission of non-teaching staff in clause (6) of Section 16G is deliberate and it is not an inadvertent omission. It is further observed that where the Legislature has specifically excluded a class of persons from the applicability of a provision, there will be no occasion for the courts to apply the provision to such omitted class of persons. This Court in the later case made an observation that "as regards the submission that clauses (6) and (7) of Section 16G of the Act have been made applicable to non-teaching staff by virtue of Government order dated 4th June. 1966 and paragraph 143 (1) of the Education Code it needs to be mentioned and is also not disputed that the Education Code is not a statutory provision, hut contains only administrative instruction issued by the Government, from time to time. A statutory provision cannot be amended or extended by administrative instruction."
24. The District inspector of Schools is not Justified in law in refusing to accord approval to the suspension order in question passed by the management on the ground (e.g., failure of management to submit suspension papers within seven days of its date), when there is no such requirement in law. On the incidental question, this Court is of opinion that District inspector of Schools has to consider the matter administratively but nonetheless it has to act objectively, fairly, avoid arbitrariness and apply his mind to relevant material before it. Therefore. It must insist for appears as required in the case of a teacher, apply its mind and take same decision on relevant considerations. It must give ground/reasons, though in brief and summarily, for not according approval. In this context. It should insist to have relevant papers from Committee of Management. Provision of Regulation 39 (1) relevant for Teacher' should be treated, on analogy, to be applicable mutatis mutandis in case of non-teaching employee of a recognised institution also.
25. Alternatively, even if it is presumed that management ought to have submitted papers within seven days, I am of the view that non-compliance of such a condition did not render management's action a 'nullity' or 'void-ab-initio'. The object of imposing obligation upon management to submit papers before District inspector of Schools, in case of suspension, is to avoid mala fide action and unnecessary harassment of an employee on the pretext of initiation of disciplinary proceedings. It places a check by supervisory authority.
26. Consequently, the District inspector of Schools, even if papers are submitted beyond seven days of suspension order should exercise its power to approve or not to approve suspension on relevant consideration having bearing upon on the merits of the case.
27. Submission of papers within seven days is not, in any case part of substantive law nor it will affect substantive right of a party and hence its breach cannot vitiate entire action of suspension. No provision says that suspension shall cease with immediate effect. If it is disapproved before expiry of 60 days. Suspension can remain operative for 60 days without approval of District inspector of Schools. Therefore, law does not put rider on the time factor as far as submission of papers is concerned. The relevant and substantive requirement of law is that District inspector of Schools must be granting approval before expiry of 60 days.
28. Under relevant Regulations, as they stand today, respondent No. 2 cannot be treated under suspension beyond 60 days (from the date of suspension order) in absence of approval from District inspector of Schools (respondent No. 1). Respondent No. 2, therefore, has to be treated in service with full pay.
29. On the other hand, interest of the Committee of Management (Petitioner) will be fully protected in case the management is left free to take or not to take work from respondent No. 2.
30. The petitioner, however, on the other hand, apprehends that Committee of Management may not deliberately linger the enquiry so as to victimise him.
31. Ordinarily this Court should have quashed the impugned order passed by the District inspector of Schools and required it to decide the question of according approval to the suspension of the petitioners on relevant grounds.
32. But in view of the fact that there are serious averments against each other, including that of mala fide and victimisation, I propose to direct the management to conclude the inquiry within specified time subject to the following.
33. In the above circumstance, I direct : (1) the concerned authority to pay arrears of salary (dues with effect from date of suspension up-to-date) and further to pay his salary in future month by month along with other staff ignoring order of suspension vide management's resolution dated 31.5.1999 (Annexure 6 to this writ petition) (2) Respondent No. 2 shall not, in any way, interfere with the functioning of the institution until inquiry is completed and final decision taken by the management ; it is the option of Committee of Management to take or not to take work during inquiry ; (3) The Committee of Management Abdus Salam Muslim Girls inter College Bhattee Street Moradabad shall submit charge-sheet within six weeks from today ; (4) inquiry officer shall also be appointed within six weeks from today ; (5) inquiry against respondent No. 2 shall be held on day-to-day basis and there shall be no adjournment for more than one week at a stretch and next date shall always be fixed on the proceedings date and its acknowledgement shall be obtained from the respondent No. 2 : (6) Day-to-day proceedings shall be communicated by way of monthly report by registered post to the District inspector of Schools within following weeks (immediately on expiry of one month) ; (7) District inspector of Schools shall be at liberty to approve suspension and direct respondent No. 2 to be paid subsistence allowance if it comes to the conclusion that respondent No. 2 in deliberately obstructing or delaying inquiry. And in case Committee of Management delays the inquiry, respondent No. 2 can approach this Court for further necessary directions and/or modification of this order. District inspector of Schools shall constantly watch the inquiry proceedings and sort out grievances. If any. of either party during these proceedings ; (8) Copy of the inquiry report shall also be sent to the District inspector of Schools ; (9) The Committee of Management shall pass final order on the basis of inquiry report within six months from today : (10) Copy of the final decision along with resolution, if any, shall be sent to the petitioners by Registered Post/A.D. on his address which may be indicated by him before the inquiry Officer.
34. It is made clear that Management of the institution is at liberty to take work or not to take work from respondent No. 2 until inquiry is completed after disciplinary proceedings, respondent No. 2 shall be dealt with in accordance with the decision taken in the disciplinary proceedings. The writ petition stands allowed subject to the directions given above.