JUDGMENT A.P. Sahi, J.
1. The challenge is to the order dated 18.8.2005 passed by the District Inspector of Schools, Gorakhpur, by Sri Lal Chandra Yadav claiming himself to be the Manager of the two institutions arrayed as petitioner nos. 2 and 3 and who has also described himself as a Secretary of the petitioner No. 1, whereby the District Inspector of Schools has held that the order of suspension of the respondent nos. 4 and 5 passed by the petitioner is without authority of law and has further approved the continuance of the respondent nos. 4 and 5 as the head of their respective institutions in the interest of students.
2. The institutions namely Dr. Bhim Rao Ambedkar Inter College of which the respondent No. 4 claims himself to be the Principal is a boys institution and Mahanagar Girls Intermediate College of which the respondent No. 5 claims herself to be the Principal is a girls institution. Both these institutions are recognized, as such, under the provisions of the U.P. Intermediate Education Act 1921. Admittedly, these two institutions do not receive any grant from the State funds. The institutions are to be managed by a Committee duly constituted under a scheme of administration approved under Section 16 (A) (5) of U.P. Intermediate Education Act, 1921. The petitioner nos. 2 and 3 claim themselves to be a duly constituted committee of which Sri Lal Chandra Yadav claims himself to be the Manager. The dispute arose when the petitioner and the respondent Nos. 4 and 5 fell out and differences arose between them resulting in initiation of disciplinary proceedings by the petitioners against the respondent Nos. 4 and 5. Simultaneously, a dispute with regard to the valid constitution of the Committee also appears to have been raised. The petitioner has filed copies of the letter dated 19.7.2005 appended as Annexures-3 and 4 to the writ petition, whereby the District Inspector of Schools has intimated the respondent nos. 4 and 5 respectively that the petitioner Lal Chandra Yadav continues to be recognized as the Manager of the ' respective institutions and, as such, the institution shall be managed accordingly. It has been stated at the Bar that the question of the validity of the Committee of Management and its recognition is already engaging the attention of this Court in some other petitions. To further substantiate his claim, the petitioner Lal Chandra Yadav has also placed reliance on the communication dated 6.8.2005 appended as Annexures-5 & 6 to the writ petition, whereby it has been communicated to the petitioner that the Teachers referred to in the said order have been authorized to receive the examination forms of the students. The learned counsel for the respondents, on the other hand, pointed out that the communication of the District Inspector of Schools dated 9.8.2005 indicates that there is a dispute in respect of the institutions. The dispute between the petitioner and the respondent nos. 4 and 5 culminated in passing of the impugned order dated 18.8.2005 whereby the District Inspector of Schools has recognized the respondent nos. 4 and 5 as the Head of the respective institutions in the interest of students.
3. I have heard Sri Ashok Khare, learned Senior Counsel for the petitioner assisted by Sri S.D. Shukla, Advocate and Sri R.K. Ojha and Sri Saroj kumar yadav for the respondent nos. 4 and 5 respectively. Learned Stnading Counsel has assisted the Court on behalf of the respondent nos. 1, 2 and 3. Upon having advanced their respective submissions, learned counsels for the parties agreed for the matter to be disposed of finally at this stage.
4. Sri Khare, on behalf of the petitioners, urged that the impunged order is without jurisdiction and has been passed in complete violation of principles of natural justice as no notice or opportunity was given to the petitioner prior to the passing of the impugned order. He has further urged that the District Inspector of Schools has proceeded on an erroneous assumption of law inasmuch as the Government order dated 10.8.2001 referred to in the impugned order is not at all applicable to the facts of this case. To support his submissions, he has invited the attention of the Court to the provisions of Section 7AA of the U.P. Intermediate Education Act, the Government Order dated 10.8.2001, the decision of this Court reported in 2003 (3) ESC 1388 and an unreported judgment in Civil Misc. Writ Petition No. 48424 of 2005 decided on 13.7.2005 copy whereof has been appended as Annexure-13 to the writ petition. He has further pointed out that even assuming that there is no statutory power for suspending a Teacher appointed on part time basis, yet in view of the provisions of Section 16 of The Uttar Pradesh General Clauses Act, 1904, the Committee of Management will be entitled to exercise the power of suspension in order to effectively discharge its duties as an employer.
5. Sri R.K. Ojha, learned counsel for the respondent nos. 4 and 5 raised an objection to the maintainability of the writ petition by the petitioner Sri Lal Chandra Yadav on the ground that the petitioner has failed to plead any material in the writ petition which would demonstrate that he is the validly elected Manager and, as such, any action taken by the petitioner against the respondent nos. 4 and 5 are of no consequence. He has further urged that the District Inspector of Schools in order to meet the exigency of the institution and in the larger interest of the students has rightly passed the orders in favour of the respondent Nos. 4 and 5 and that the impugned order does not deserves any interference as the same would amount to restoring the position in favour of the petitioners who have no authority in law to claim any right of Management over the institution. He has further tried to support the order by submitting that the Committee of Management has proceeded to take action without following any procedure prescribed under the law and, therefore, the order impugned deserves to be upheld.
6. Learned Standing Counsel has also attempted to justify the order and has urged that the writ petition deserves be dismissed.
7. The aforesaid contentions advanced by the parties raised interesting questions to be answered in this writ petition. Before dealing with the submissions it would be necessary to refer to the recitals made in the impugned order dated 18.8.2005, It states that the institutions are recognized under the provisions of the U.P. Intermediate Education Act but are unaided. Interestingly the order records that at present there are no Teachers either validly selected or appointed in both the institutions. The names of such Teachers which finds reference in the attendance register are unsubstantiated inasmuch as there are no records pertaining either in respect of their appointment or approval available in the institution. The question, therefore, which was further required to be answered by the District Inspector of Schools before passing the order was as to whether the Respondent Nos. 4 and 5 who claim themselves to be the Head of the institutions were validly appointed or not. The impugned order recites that even though the Respondent Nos. 4 and 5 were functioning as the Head of the institution in the past, yet neither their selection nor their approval has been processed at the level of the District Inspector of Schools. In view of the aforesaid facts stated in the impugned order, it is clear that the District Inspector of Schools has proceeded to approve the Respondent Nos. 4 and 5 as the Head of the institutions without recording a finding as to whether they were in law validly appointed and entitled to continue, as such, or not.
8. The District Inspector of Schools without finally concluding on the status of Respondent Nos. 4 and 5 has proceeded to refer to the Government Order dated 10.8.2001. The said Government Order is applicable in respect of part time Teachers as contemplated under Section 7AA of the U.P. Intermediate Education Act. A perusal of Section 7AA would demonstrate that it applies only in respect of such Teachers who are appointed by the Management of the institution to be maintained on its own sources as an interim measure for imparting education in any subject or group of subjects or for any section for which permission has been granted under Section 7A. The aforesaid section nowhere indicates the appointment of a Head of the institution on part time basis. The District Inspector of Schools, therefore, ought ! to have examined this aspect of the matter as well before proceeding to consider the applicability of the Government Order dated 10.8.2001. Having failed to do so, the impugned order cannot be sustained.
9. The District Inspector of Schools records that since there is no provision for suspending a Teacher under the Government Order dated 10.8.2001, therefore, the Committee of Management could have only proceeded to seek approval with regard to termination of the services of Respondent Nos. 4 and 5. In essence, the action of the Committee of Management in suspending the Respondent Nos. 4 and 5 was presumed to be without authority in law on the aforesaid basis by the District Inspector of Schools. Even assuming for the sake of argument that the Respondent Nos. 4 and 5 enjoyed the status of a part time Teacher, the aforesaid presumption of the District Inspector of Schools that the Committee did not have any power to suspend them from their services is unsustainable in law for the following reasons:-
10. The Apex Court on the aforesaid issue had the occasion to pronounce upon such a situation by referring to Section 16 of The Uttar Pradesh General Clauses Act, 1897 quoted herein below:
"16. Power to appoint to include power to suspend, dismiss or otherwise terminate the tenure of office.- Where, by any Uttar Pradesh Act, a power to make any appointment is conferred then, unless a different intention appears, the authority having for the time being power to make the appointment shall also have the power to suspend, dismiss, remove or otherwise terminate the tenure of office of any person appointed, whether by itself or any other authority, in exercise of that power."
11. In the case of R.P. Kapoor v. Union of India and Ors. , (para 11) had to state as under:-
"11. The general principle therefore is that an employer can suspend an employee pending an enquiry into his conduct and the only question that can arise on such suspension will relate to the payment during the period of such suspension. If there is no express term in the contract relating to suspension and payment during such suspension or if there is no statutory provision in any law or rule, the employee is entitled to his full remuneration for the period of his interim suspension; on the other hand if there is a term in this respect in the contract or there is a provision in the statute or the rules framed thereunder providing for the scale of payment during suspension, the payment would be in accordance therewith. These general principles in our opinion apply with equal force in a case where the government is the employer and a public servant is the employee with this modification that in view of the peculiar structural hierarchy of Government, the employer in the case of government, must be held to be the authority which has the power to appoint a public servant. On general principles therefore the authority entitled to appoint a public servant would be entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceeding, which may eventually result in a departmental enquiry against him. This general principle is illustrated by the provision in Section 16 of the General Clauses Act, No. X of 1897, which lays down that where any Central Act or Regulation gives power of appointment that includes the power to suspend or dismiss unless a different intention appears. Though this provision does not directly apply in the present case, it is in consonance with the general law of master and servant. But what amount should be paid to the public servant during such suspension will depend upon the provisions of the statute or rule in that connection. If there is such a provision the payment during suspension will be in accordance therewith. But if there is no such provision, the public servant will be entitled to his full emoluments during the period of suspension. This suspension must be distinguished from suspension as a punishment which is a different matter altogether depending upon the rules in that behalf. On general principles therefore the government, like any other employer, would have a right to suspend a public servant in one of two ways. It may suspend any public servant pending departmental enquiry or pending criminal proceedings; this may be called interim suspension. Or the Government may proceed to hold a departmental enquiry and after his being found guilty order suspension as a punishment if the rules so permit. This will be suspension as a penalty. These general principles will apply to all public servants but they will naturally be subject to the provisions of Article 314 and this brings us to an investigation of what was the right of a member of the former Secretary of State's Services in the matter of suspension, whether as a penalty or otherwise."
12. The same view was reiterated by the Apex Court in the case of B.R. Patel v. State of Maharastra, .
13. The view that the power to terminate the services is a necessary adjunct of the power of appointment and also includes the power of suspension was re-affirmed by the Apex Court in the case of Heckett Engineering Company v. Workmen, (para 14). This view was again quoted with the approval by the Apex Court in the case of Scientific Advisory to the Ministry of Defence and Ors. v. S. Daniel and Ors. , 1990 (suppl.) SCC 374 par 9 (c).
14. A perusal of the Government Order dated 10.8.2001 indicates that the Management has been given the power to terminate the services of a part time Teacher in accordance with the aforesaid Rules. Applying the principles stated herein above, the power to suspend a part time Teacher can safely be read to be available to the management for proper and efficient administration of disciplinary proceedings. The Rules clearly contemplate the holding of an inquiry and, as such, the power to suspend could be exercised in contemplation of an inquiry. The District Inspector of Schools has been unable to appreciate the existence of such a power for the effective discharge of the duties of the Committee of Management and, as such, the conclusion drawn by the District Inspector of Schools is untenable. The power to suspend is clearly implied and is available to the Committee of Management in respect of part time Teacher as well.
15. This Court has had the occasion to consider the status of a part-time Teacher. A reference to Section 7AB would indicate that the Teachers appointed under Section 7AA are exempted from the applicability of the Payment of Salary Act and the Selection Board Act, 1982. No other provision of the U.P. Intermediate Education Act has been made inapplicable by the aforesaid provision. However, this Court in the case of Shashi Kala Singh v. District Inspector of Schools, 2000 (3) UPLBEC 2327, held that the regulations framed under Section 16-G of the U.P. Intermediate Education Act to the extent that they are regulatory in nature can be made applicable in the case of part time Teachers. However, the aforesaid view taken by this Court met with disapproval in the case of Rajendra Singh v. District Inspector of Schools, reported in 2001 (1) UPLBEC 701. Later on this Court in the Division Bench judgment relied by the learned counsel for the petitioner in Committee of Management v. District Inspector of Schools, Shahjahanpur, 2003 (3) ESC 1388, has held that the conditions of service of part time Teachers are to be governed by the Rules made in this regard. The Rules have now been framed by the State Government vide Government Order dated 10.8.2001 referred to herein above. In these circumstances, the services of part time teachers are being regulated under the aforesaid Government Order and, as such, compliance thereof has to be ensured.
16. Sri Khare has urged that there is absolutely no requirement of any approval from the District Inspector of Schools in respect of suspension as the Government Order does not make any such provision and to substantiate his plea he has relied on the Full Bench decision of this Court in the case of Smt. Shyama Verma v. Basic Education Board, U.P. Allahabad and Ors., (1995) 2 UPLBEC 779. In the aforesaid decision, the power for granting approval to the suspension of a Teacher in an institution governed by the Basic Education Act was under consideration. It was held that the order of suspension pending or in contemplation of inquiry is not a punishment and referring to Rule 4 of the Basic Education (Staff) Rules, the Full Bench concluded that no prior approval of the Basic Education Officer is required before suspending a Teacher. In the instant case, the Government order dated 10.8.2001 does not require any prior approval for suspending a part time Teacher. However, the question as to what would be the renumeration payable to such a suspended part time Teacher has yet to be decided. Clause 6 of the said Government Order makes provisions for the payment of part time Teachers. The question as to what emolument would be payable to such a Teacher during the period of suspension has also to be taken into consideration and, as such, to that extent in the event there is a violation of the government Order dated 10.8.2001, the District Inspector of Schools can be stated to have powers to examine such an issue. However, since the aforesaid controversy is yet to be decided in an appropriate case, the said question is left open for being adjudicated at the appropriate time.
17. Sri R.K. Ojha, learned counsel for the respondent Nos. 4 and 5, urged that since the petitioner's Committee is not a valid committee, therefore, in view of the law laid down by the Apex Court in the case of Nand Deo Pandey v. Committee of Management, Pt. Jawahar Lal Nehru Uchchatar Madhyamik Vidyalaya and Ors. , (1991) 1 UPLBEC 549, it was not open for the petitioner to "take any action against the answering respondent. Prima facie, the District Inspector of Schools himself vide communication dated 19.7.2005 found the petitioner entitled to function as the manager of the institution. The impugned order also proceeds on the presumption that the petitioner is the defacto Manager of the institution. In these circumstances, it cannot be said at this stage that the petitioner has no locus to either maintain any disciplinary action or the present writ petition against the respondents. Admittedly, Shri Ojha states that the Respondent Nos. 4 and 5 were inducted into employment when the petitioner was the Manager. In these circumstances, unless and until the educational authorities declare the petitioner to be not a validly elected Committee, the aforesaid contention of Sri Ojha cannot be accepted. In these circumstances, it shall be open to the District Inspector of Schools to consider the aforesaid submission raised on behalf of the respondent nos. 4 and 5 and record its finding in this respect.
18. Thus, upon a consideration on the entire facts and circumstances of the case and the law referred to herein above, it is evident that the findings recorded by the District Inspector of Schools in support of the impugned order are unsustainable in the eyes of law. The contention of the petitioner that the impugned order has been passed in violation of principles of natural justice has also remained un-rebutted. Accordingly, the impugned order is liable to be set aside. The writ petition therefore, succeeds and is allowed and the order dated 18.8.2005 is quashed with a direction to the District Inspector of Schools to consider the matter afresh in the light of the observations . made herein above within a period of 3 weeks from the date of presentation of a certified copy of this order is produced before him and after providing an opportunity to the petitioner's Committee as well to represent its Objection to the claim made by the Respondent Nos. 4 and 5. The District Inspector of Schools shall pass a reasoned and speaking order and it shall be open to the parties to raise the submissions that have been advanced by them before this Court and which shall be decided by the District Inspector of Schools in accordance with law.