JUDGMENT A.K. Yog, J.
1. Committee of Management, Ganga Buksh Kanorla Gandhi Inter College, KaptanganJ. Deorla through its Manager has filed this petition under Article 226, Constitution of India, and has impugned order dated 9.11.1979 (Annexure-37) passed by District Inspector of Schools, Deorta and order dated March 20. 1982 (Annexure-41) passed by Deputy Director of Education, VII Region, Gorakhpur-respondent No. 1 dismissing appeal, whereby said educational authorities refused to accord approval to the Management's decision and action to terminate the services of Ram Pyare Pandey, (respondent No. 3), who was working as teacher in the petitioner's institution. Petitioner claims a writ In the nature certiorari to quash the said impugned orders.
2. It has come on record that certain disciplinary action was taken against petitioner in the year 1976 and he made complaint against the same. Petitioner was suspended but said suspension order was revoked by the then District Inspector of Schools. Management ought to terminate the services of the petitioner but It was disapproved by the District Inspector of Schools. Appeal against the said order was rejected. Petitioner was reinstated, but curiously enough, present disciplinary action was again taken against the petitioner. Petitioner was again suspended. District Inspector of Schools again revoked the suspension order. The Management purports to have served a charge sheet and proceed with the disciplinary proceedings as contemplated under Section 16G of U. P, Intermediate Education Act. 1921 (called 'the Act') read with Chapter III of the Regulations, framed under the Act. In present petition. Management has laboured to indicate that respondent No. 3 avoided to accept notice and, thus, created obstacle in the smooth conduct of the proceedings. Management accuses respondent No. 3 for not cooperating.
3. Respondent No. 3, on the other hand, has pleaded that he was harassed by the Management. Petitioner in his defence before the educational authority submitted that he was constrained to file a civil suit in order to protect himself from exploitation and harassment at the hands of the Management. Petitioner and respondent No. 3 both have filed documents in support of their respective cases.
4. Admittedly, an Enquiry Officer was appointed, who submitted his report along with letter dated 29th December, 1978 to the Management (Annexure-31). Management, thereafter, gave notice to the petitioner and passed resolution dated 8.2.1979 (Annexure-34). Said resolution, transcribed in English, reads ; "Committee of Management, therefore, being constrained, decided to dismiss him (respondent No. 3) from service of the institution on 8.2.1979 under Section 16G (3) of the Act. Formal approval may be taken by sending relevant letter to the District Inspectors of Schools.
Deoria.....". The said resolution was communicated following day by the Manager to the District Inspectors of Schools vide letter dated 9.2.1979 (Annexure-35). The Manager in this letter stated "In this connection an open enquiry was held and Committee of Management vide its resolution No. 2 dated 8.2.1979, dismissed Sri Ram Pyare Pandey from the service of the Schools. Therefore, your goodsclf is requested to accord approval to the dismissal of Shri Ram Pyare Pandey....."
5. The District Inspector of Schools vide order dated 9.11.1979 (Annexure-37) refused to accord approval to the decision of the Management to dismiss the services of the petitioner on the ground that disciplinary proceedings was onesided.
6. Feeling aggrieved Management filed an appeal under Section 16G (3) (c) of the Act, before concerned Deputy Director of Education, [respondent No. 1], who vide order dated March 20/23 of 1982 (Annexure-41) dismissed the appeal. Feeling aggrieved, the Committee of Management filed present petition.
7. Heard learned counsels for the parties and perused the record.
8. Orders passed by the District Inspector of Schools and Deputy Director of Education cannot be said to be satisfactory and yet. In the facts and circumstances of the present case, it appears, it will be an exercise in futile to interfere with them.
9. I am not required to go into the veracity of the versions pleaded by petitioner and respondent No. 3 since present petition can be decided on legal points, which are indicated hereinafter.
10. It is apparent that District Inspector of Schools passed Impugned order dated 9th November. 1979 referred to as dated 22nd November, 1979, (Annexure-37) without referring to any material or document before him. Deputy Director of Education in appeal did observe that District Inspector of Schools ought to have given full details and particulars before giving its decision. Deputy Director of Education referred to the earlier action of the Management seeking to terminate the service of the petitioner in 1976. Deputy Director of Education, further, without recording categorical finding expressed his half hearted Impression regarding non co-operation on the part of the teacher (respondent No. 3) and indecent behaviour towards the Principal of the Institution. The Deputy Director of Education, however, dismissed the appeal and affirmed the order passed by District Inspector of Schools.
11. Learned counsel for the petitioner submitted that resolution dated 8.2.1979 (Annexure-34) was only proposal and not a decision and Management through its resolution did not terminate the service of respondent No. 3. Submission of the learned counsel for the petitioner is bereft of substance being against clear language of the resolution on record.
12. Deputy Director of Education in its order dated March 20, 1982, (Annexure-41) did notice that Management took decision to dismiss the petitioner from service vide its resolution dated 8.2.1979 and also made it effective w.e.f. 8.2.1979 itself, though it ought to have taken prior approval from the same from District Inspector of Schools.
13. The Deputy Director of Education, after taking notice of the said fact, was not required to go into merits of the case. It ought to have adjudicated the consequence of passing resolution whereby services of teacher were determined In preseni. By means of the resolution in question. Management dismissed respondent No. 3 from service on the date of resolution itself. By no stretch, resolution can be said to be a proposal. Inference to this effect Is fortified by Manager's letter dated 9.2.1979 (Annexure-37). In the memo of appeal filed before Deputy Director of Education, (Annexure-38), it was mentioned that resolution dated 8.2.1979 to dismiss the teacher in question was passed on 8.2.1979).
14. Further. In addition to the above. In para 32 of the writ petition, which clinches the Issue, may be perused :
".....so through resolution No. 2 dated 8.2.1979 the respondent No. 2 was dismissed from service as would be clear from resolution dated 8.2.1979 which is being filed herewith as Annexure-34 to this petition."
15. Perusal of the resolution dated 8.2.1979. Managers letter and averments contained in para 32 of the writ petition aforequoted, it is clear that the Management had in fact dismissed the petitioner from service on the date of passing of the resolution. Action of dismissing respondent No. 3 from service was, thus, already taken and it was only 'formally' reported to the District Inspector of Schools.
16. Section 16G (3) of the Act reads :
"(a) No Principal, Headmaster or teacher may be discharged or removed or dismissed from service or reduced in rank or subjected to any diminution in emoluments, or served with notice of termination of service except with the prior approval in writing of the Inspector. The decision of the Inspector shall be communicated within the period to the prescribed regulations.
(b) The Inspector may approve or disapprove or reduce or enhance the punishment or approve or disapprove of the notice for termination of service proposed by the management :
Provided that in the case of punishment, before passing orders, Inspector shall give an opportunity to the Principal, the Headmaster or the teacher to show cause within a fortnight of the receipt of the notice why the proposed punishment should not be inflicted.
(c) Any party may prefer an appeal to the Regional Deputy Director, Education, against an order of the Inspector under clause (b), whether passed before or after the commencement of the Uttar Pradesh Intermediate Education (Sanshodhan) Adhiniyam, 1966, within one month from the date of communication of the order to that party, and the Regional Deputy Director may, after such further enquiry, if any. as he considers necessary, confirm, set aside or modify the order, and the order passed by the Regional Deputy Director shall be final. In the case the order under appeal was passed by the very person holding the office of Regional Deputy Director while acting as Inspector, the appeal shall be transferred by the order of the Director to some other Regional Deputy Director for decision, and the provisions of this clause shall apply in relation to decision by that other Regional Deputy Director as If the appeal has been preferred to himself....."
17. A reading of the aforesaid provisions clearly shows that prior approval Is a condition precedent before Management could terminate or dismiss a teacher.
18. In the present case, it is apparent that respondent No. 3 was dismissed vide resolution dated 8.2.1979 whereas approval was sought subsequently.
19. The resolution in substance, therefore, was one for removal of petitioner and for reporting the fact to the District Inspector of Schools. Committee had resolved to remove the petitioner from service prior to the approval of the District Inspector of Schools.
20. Dismissal of respondent No. 3 from service, was In effect a fact accomplished. Resolution dated 8.2.1979 passed by the Management is, thus, illegal and void ab initio. Management could not, in law dismiss without seeking "prior approval".
21. In support of the above. reliance is placed on various Judgments of this Court.
22. For this purpose, relevant extract of the judgment dated 19th May. 1967 In Special Appeal No. 419 of 1963, Hindu Inter College and others v. Sri Jagdish Prasad Srivastava and others, reported in A Hand Book of Teacher's Defence Cases Vol. I to V is reproduced :
"The services of a teacher cannot be terminated without prior approval in writing of the D.I.O.S. .....Admittedly, the service of the respondent No. 1 was terminated without obtaining the prior approval of the D.I.O.S. So the termination was made in contravention of clause (A) of Section 16G and was void."
23. Reference may also be made to Judgment dated 20th July, 1973 in Writ Petition No. 635 of 1970 (LB). Banshidhar Sharma v. Deputy Director of Education and 'others, passed by Hon'ble Om Prakash Trivedi, J. Relevant extract of which reads :
"The resolution in substance, therefore, was one for removal of the petitioner and for reporting the fact to the District Inspector of Schools. In other words, the Managing Committee had resolved that removal of B.D. Sharma should be effected before a report of this fact is sent to the Inspector of Schools and therefore, the clear implication was that removal of the petitioner should be effected prior to moving the District Inspector of Schools for approval......................... Section 16G (3) (a) contains prohibition against the discharge, removal or dismissal from service of Principal, Head Master or a teacher except with prior approval in writing of the Inspector. The above facts clearly disclose removal of the petitioner from service by the Managing Committee without prior approval of the Inspector, which was clearly in breach of the provision and, therefore, Illegal. Section 16G (3) of the Act has been enacted to protect a Principal. Head Master or a teacher against high handedness by the Committee of Management and. therefore, they have been prohibited from discharging, removing or dismissing from service the Principal, Head Master or teacher without obtaining prior approval of the Inspector. When this prohibition has been disregarded and contravened, the question arises whether the management of educational institutions can ask for approval after the removal or dismissal of the teacher has been actually effected. The answer must clearly be in the negative. The Inspector has no jurisdiction to approve the removal, discharge or dismissal of a Principal. Head Master or teacher if it has already been made without obtaining prior approval. This is so because Section 16G (3) (a) uses the phrase 'prior approval' of the Inspector and not just approval. If the word 'prior' was not there then approval to the action of the Managing Committee could be accorded by the Inspector or the Deputy Director of Education even subsequent of the Act of the Managing Committee, but because Section 16G provides for prior approval, approval cannot be granted subsequently."
24. A Division Bench in its judgment in 1994 (IV) HVD (All) 155 held :
"Admittedly, the date on which the appellant's services were terminated, the institution was a recognised institution and as such. it was incumbent upon the management to have obtained the prior approval of the District Basic Education Officer. We may point out that expression prior approval and approval connotes different situation, where a statute uses the term prior approval anything done without the prior approval, is nullity. However, where a Statute employs expression 'approval', in such cases subsequent rectification can make the act valid. But such Is not the position in the present case, since no prior approval was obtained before terminating the services of the appellant and as such termination of the services of the appellant was illegal and void and the appellant was entitled to the relief as claimed for.'
25. Reference may also be made to the following decisions, wherein similar view has been taken by this Court :
26. There is yet another aspect. In the facts of the present case. Neither the society nor the Managing Committee filed appeal before Deputy Director of Education. There is no material before the Court to show that the Committee of Management or the Society authorised the Manager to file appeal under Section 16G (c) of the Act. Relevant pleadings are contained in writ para 42, counter-affidavit para 35 and para 37 of rejoinder-affidavit which show that admittedly no resolution was passed to file appeal before Deputy Director of Education. In these circumstances, order of District Inspector of Schools had become final. The petition deserves to be dismissed.
27. Respondent No. 3 had taken an objection that 'appeal' filed before Deputy Director of Education was no appeal in the eyes of law. Memorandum of appeal has been filed as (Annexure-38). Perusal of It shows that appeal was preferred by "Ganga Buksh Kanoria Gandhi Inter College, Kaptanganj, Deorla, through its Manager". The appeal was thus. preferred in the name of College, which is not a legal entity. Appeal ought to have been preferred by Committee of Management of the College. In support of above, reference may be made to the following decisions.
28. Judgment in V. V. Inter College, Shamll v. U. P. Shiksha Nideshak, Pratham Manda, Meerut and others, Writ Petitions No. 6879 of 1974 and 2582 of 1975. decided on 7.4.1976 by Hon'ble K. N. Singh, J.. squarely apply to the facts of the present case :
"These two petitions have been filed by V. V. Inter College, Shamli, Muzaffarnagar, through its Manager Shaim Lal Jain.................. The Committee of Management placed the Principal under suspension and framed certain charges against him and thereafter it adopted a resolution removing him from service..... At the very outset of the hearing learned counsel for the respondent-principal raised preliminary objection about the maintainability of these two petitions. He urged that the petitions have not been filed by the aggrieved party, instead these have been filed by V. V. Inter College, Shamli which is neither aggrieved party nor ad juristice person to maintain the petitions. I find considerable force in the contention .........................The College is recognized under the U. P. Intermediate Education Act, 1921. The College is run and managed by a Committee of Management constituted in accordance with the Scheme of Administration.................... Under the provisions of the Act and the Regulations framed thereunder. It is the Committee of Management which is empowered to make appointments, to take disciplinary action and to pass orders of removal or suspension against the Principal or a teacher........................The Committee of Management is empowered to file appeal against the order of the District Inspector of Schools. The Committee of Management is a statutory authority under the Act the Regulations and it is legally entitled to take action in matters relating to the affairs to take action In matter of the administration of the College. The Committee of Management has not filed these petitions. There Is no material on record to show that the Committee of Management adopted any resolution authorising the Manager to file these petitions. The petitions as framed are not maintainable because the V. V. Inter College, Shamli cannot be an aggrieved person to challenge the impugned orders. The aggrieved party if any, could be the Committee of Management or the Society itself............................. During the course of hearing amendment applications were filed seeking relief for the amendment of the writ petition for adding Committee of Management as petitioner. The applications have been rejected by me by a separate order."
29. Similar view has been taken by Division Bench of Hon'ble K. N. Singh and Hon'ble B. D. Agarwal. JJ., in Kisan Inter College v. D.I.O.S. and others. Writ Petition No. 5730 of 1978, decided on 6.7.1979, relevant extract is quoted :
"Having heard learned counsel for the petitioner and having given our anxious consideration to the facts and circumstances of the case, we are of the opinion that this petition is not maintainable at the instance of Kisan Inter College. Kisan Inter College has no locus standi to maintain the writ petition against the impugned order of the District Inspector of Schools. Neither the society which runs the Institution, nor the Committee of Management which manages the affairs of the Institution has filed this petition. The institution itself cannot be an aggrieved person in the eyes of law. In the circumstances this petition is liable to be dismissed on this ground alone."
30. Hon'ble K. N. Singh (as then was) in judgment dated 1.3.1976 in Writ Petition No, 10663 of 1976. Sardar Patel Higher Secondary School through Manager v. Deputy Director of Education, 1976 AWC (Journal) 18. held-
"The present petition has been filed by Sardar Patel Higher Secondary School through its Manager Sri Kadar Nath. The petition has not been filed on behalf of the Committee of Management or on behalf of the society if any registered under the Societies Registration Act obviously the school or the Manager cannot be aggrieved on behalf of the Committee of Management. It is the Society and the Committee of Management, which is legally entitled to challenge the order of the Deputy Director of Education. The Manager cannot assume the functions of the Committee of Management unless he is authorised to do so. Sardar Patel Higher Secondary School is not a legal entity to maintain any legal action on behalf of the society or the Committee of Management.
In Mahtab Rai Manager Har Narain Intermediate College v.
Deputy Director of Education. Civil Misc. Writ Petition No. 5808 of 1970, decided on 7th January, 1974 a learned single Judge of this Court almost in similar circumstances held that the Manager or the School had no locus standi to maintain petition against the order of the District Inspector of Schools or the Deputy Director of Education refusing to grant approval. The learned single Judge observed that the appointment of principal of College and termination of his service were within the power of the Managing Committee or the Society and it was the Managing Committee alone which exercise control. That being so the Manager is not the Managing Committee or the society and he cannot maintain a writ petition in this Court unless he is authorised to do so. Relying on a Pull Bench decision of this Court in Hari Raj Swaroop v. Secretary to Government of U. P., AIR 1951 All, the learned Judge dismissed the petition on the ground that it was not filed on behalf of the Managing Committee or the Society, I am In respectful agreement with the view taken by the learned single Judge tn Mahtab Rai case."
31. Regulation (1) of Chapter III of Regulations framed under Act contemplates that Committee of Management is the appointing authority of a teacher. The Committee of Management is constituted under scheme of administration with the approval of educational authorities under the Act. The institution, as such by its name, is not a legal entity. Appeal before Deputy Director of Education ought to have been filed by an aggrieved party, i.e., Committee of Management as mentioned under Section 16 t3) (c). It is not the case here.
32. In view of above, this Court refuses to exercise its jurisdiction under Article 226 of the Constitution of India. The writ petition falls and is dismissed. There will be no order as to costs.