Court No. - 58
Case :- WRIT - A No. - 2862 of 2019 Petitioner :- Neeraj Kumar Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Ratnakar Upadhyay,Sr. Advocate Counsel for Respondent :- C.S.C.,Adarsh Singh,Bheem Singh,Indra Raj Singh
Hon'ble Ashwani Kumar Mishra,J.
1. An order passed by the District Inspector of Schools dated 15.1.2019, directing the Committee of Management of the institution concerned to allow respondent no.3 to function as the Officiating Principal and to release her salary is assailed in this petition.
2. There exists an institution known as 'B.R. Inter College, Samana, District Hapur'. The office of Principal in the institution has fallen vacant. A seniority list of teachers is on record. The senior most person is undisputedly not eligible for appointment to the post of Principal. The senior most eligible person is one Narendra Nath Verma and the name of respondent no.5 appears next in the order of seniority. The petitioner Neeraj Kumar is placed thereafter at serial no.5. It is not in issue that certain allegations were levelled against Narendra Nath Verma with regard to his conduct, on account of which his claim was overlooked. Thus aggrieved, he has filed Writ Petition No.46737 of 2017 which is stated to be pending. It is thereafter that respondent no.5 was allowed to officiate as the Principal. Records reveal that during the conduct of Board examination of the year 2017, certain acts of misconduct were attributed to the Principal, and consequently, an order was passed by the District Inspector of Schools, Hapur for placing respondent no.5 under suspension and to complete the disciplinary proceedings. A consequential order of suspension was passed on 18th March, 2017. This resolution of suspension, however, has not been approved by the Inspector under Section 16-G(7) of the U.P. Intermediate Education Act, 1921. In respect of the Board examination of the next year also, it was found that respondent no.5 was not cooperating in the holding of Board examination, and therefore the Inspector vide order dated 19.2.2018 again directed initiation of disciplinary action against respondent no.5 and also issued a direction for placing him under suspension. An order of suspension, consequently, has been passed once again on 5th March, 2018. However, this resolution of suspension has again not been approved by the Inspector under Section 16-G(7) of the Act of 1921. The Court is apprised that on 4th May, 2018 the Inspector has passed an order stating that since approval to the resolution of suspension has not been granted within a period of 60 days, therefore, suspension has seized to exist. It is in that context that respondent no.5 appears to have approached the Lucknow Bench of this Court by filing Writ Petition (S/S) No. 37199 of 2018, wherein following orders were passed on 21st December, 2018:-
“Heard Sri H.G.S. Parihar, learned Senior Advocate assisted by Sri Prashant Kumar Singh, learned counsel for the petitioner and to the learned Standing counsel on behalf of the respondent Nos.1 to 4.
Issue notice to the respondent Nos.5 and 6 through RPAD, returnable at an early date.
Learned counsel for the petitioner is permitted to take steps within a week.
In case steps are taken, the office shall proceed further.
The petitioner claims that she was granted appointment on the post of Assistant Teacher on 16.8.2010 and against the vacancy advertised of the post of Lecturer vide advertisement No.2 of 2010, she applied for but could not be selected on the post of Lecturer. Subsequently, she was granted appointment on the post of Officiating Principal on 3.8.2016, which was duly approved by the District Inspector of Schools on 3.8.2016. Thereafter, she assumed the dulty on the post of Officiating Principal and started to discharge her duties on the said post.
Vide order dated 5.3.2018, the petitioner was placed under suspension and papers for the grant of approval were submitted before the District Inspector of Schools on 20.3.2018, whereby the District Inspector of Schools declined to grant approval and directed for reinstatement of the petitioner in service. In spite of the order of the District Inspector of Schools, she was not allowed to join, then she approached to the Regional Joint Director of Education to issue direction to the District Inspector of Schools on 3.4.2018 to examine the matter. Upon enquiry, the District Inspector of Schools directed the Committee of Management to permit the joining of the petitioner.
Thereafter, the petitioner approached to the Regional Joint Director of Education informing him that the order of the District Inspector of Schools has not been complied with, then the Regional Joint Director of Education passed an order on 11.7.2018, whereby explanation was called from the District Inspector of Schools that why the petitioner's joining has not been ensured, then again an order was passed on 17.7.2018 by the Regional Joint Director of Education, which was also not complied with.
Thereafter, the petitioner approached to the Director of Secondary Education, who passed an order on 13.9.2018 directing the respondents to ensure payment of salary of the petitioner of the post of Officiating Principal. The petitioner has filed the present writ petition for issuance of direction to ensure the compliance of the order passed by the Regional Joint Director of Education on 17.7.2018 and Director of Secondary Education dated 13.9.2018.
Upon perusal of the orders placed on record, the Court is surprised that the educational authorities have been empowered under the Act to initiate proceeding against the Committee of Management in case of noncompliance on their part. In spite of initiating proceeding under the relevant rules like Section 6(3) of the Payment of Salaries Act, 1971, they are waiting to ensure the compliance of their order.
In view of the above, this Court is giving one opportunity to exercise power given under the Act of 1971 and U.P. Intermediate Education Act, 1921, therefore, interim mandamus is issued to the respondent Nos.2 and 3 to ensure compliance of their order dated 17.7.2018 and 13.9.2018 within three weeks from today or to show cause by filing the counter affidavit within the aforesaid period.
List this petition on 21.1.2019.”
It is pursuant to this order that the order impugned dated 15.1.2019 has been passed by the Inspector attesting the signatures of respondent no.5 as Officiating Principal and also directing for release of salary to her.
3. Learned Senior Counsel for the petitioner submits that under Regulations 108 and 109 of Chapter-III framed under the U.P. Intermediate Education Act, 1921, powers have been vested in the Inspector to direct initiation of disciplinary action against a member of teaching or non-teaching staff, if it is found that he/she has not performed duties assigned in connection with the Board examination. It is contended that once the order of suspension was passed on the direction of the Inspector itself, the question of grant of approval to it under Section 16- G(7) loses its significance. It is also submitted that even otherwise the merits of the resolution for placing respondent no.5 under suspension has not been examined by the Inspector so far, and that it was incumbent upon the Inspector to exercise his jurisdiction under Section 16-G(7) regarding grant of approval to the resolution for suspension. Contention is that so long as this was not done, the Inspector would be wholly unjustified in directing respondent no.5 to be allowed to continue as Officiating Principal and for her to be allowed salary.
4. The petition is opposed by Sri I.R. Singh, Advocate, appearing for the respondents.
5. A perusal of Regulations 108 and 109 would go to show that it only enables the Inspector to bring relevant facts to the notice of the disciplinary authority for initiation of action, as may be warranted in accordance with law, if a member of teaching or non-teaching staff of recognized institution fails to perform work entrusted to him in connection with the Board examinations. It, however, does not vest jurisdiction in the Inspector to direct the Committee of Management to place an employee under suspension. Whether or not, on the basis of charges levelled the employee has to be placed under suspension would be an aspect to be examined by the disciplinary authority and such exercise of jurisdiction would be subject to grant of approval by the Inspector. Regulations 108 and 109 of Chapter-III framed under the U.P. Intermediate Education Act, 1921 are extracted hereinafter:-
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6. Sri Bheem Singh, Advocate, has appeared for the Committee of Management and has supported the stand of the petitioner. It is urged on behalf of the Committee of Management that the decision of the Inspector dated 4.5.2018, in holding the suspension to have seized to exist on account of lack of approval has not been assailed by the Committee, only because of the fact that the Inspector has already passed an order on 22nd December, 2018 directing the signatures of senior most teacher Narendra Nath Verma to be attested as the Officiating Principal. It is contended that this order dated 22nd December, 2018 was not assailed by anyone including respondent no.5. It is submitted that so long as this order remains on record, there would be no occasion for the Inspector to pass the order attesting the signatures of respondent no.5.
7. The regulations aforesaid would go to show that performance of duties connected with holding of Board examinations has been included to be a part of the service conditions of a teacher concerned. The regulations further provide that any work assigned to a member of teaching and non- teaching staff of the educational institution, if is avoided or violated, then disciplinary proceedings can be directed to be initiated against the employee concerned. The regulations, however, are silent on the aspect relating to passing of an order of suspension. Law is settled that initiation of disciplinary action would not carry, as a natural corollary, passing of an order of suspension itself. Whether an order of suspension would be warranted while conducting disciplinary proceedings would be a matter to be examined by the disciplinary authority only. In the absence of any conferment of jurisdiction upon the Inspector in that regard, the Inspector cannot be conceded the jurisdiction to direct an employee to be placed under suspension. Even if an order of suspension is passed by the Committee of Management, in purported compliance of the orders of the Inspector, the exercise of power would remain, in law, an independent exercise of jurisdiction by the disciplinary authority and the conditions attached to such exercise of jurisdiction would continue to exist. Even if such an order is passed by the disciplinary authority, the Inspector will have to examine whether such exercise of power is justified as per the parameters laid and would necessitate an appropriate order. The law is otherwise settled that merely for the reason that no decision has been taken within a period of sixty days, the resolution itself would not become bad, and the Inspector would be required to take an appropriate decision on the merits of resolution itself. Law in that regard has already been clarified by a Full Bench of this Court in Chandra Bhushan Misra Vs. District Inspector of Schools, Deoria and others, (1995) 1 UPLBEC 460.
8. On facts of the present case, this Court finds that charge relating to dereliction of duty assigned to respondent no.5 in connection with holding of Board examinations are alleged and disciplinary action has been initiated. A chargesheet is also reported to have been served upon respondent no.5. A First Information Report has also been lodged against her in the matter. The Committee of Management, in terms of the direction issued by the Inspector, has already passed resolution for placing respondent no.5 under suspension. Although no order of approval has been granted by the Inspector so far, but the undisputed fact which remains on record is that a decision on merits, in that regard, has not been taken by the Inspector, so far. In the opinion of the Court, an order in terms of Section 16(G)7 of the 1921 Act, by the Inspector, on merits of the decision taken by the Committee of Management would be warranted in view of the Full Bench judgment of this Court in Chandra Bhushan Misra (supra). The order dated 4th May, 2018, which is stated to have been passed by the Inspector, would not be sufficient or dispense such a requirement in law. An adjudication on merits would, therefore, be warranted at the hands of the Inspector on that count.
9. The records further goes to show that District Inspector of Schools has also passed an order on 22nd December, 2018 for attesting signatures of the senior most teacher Sri Narendra Nath Verma. This order although has been challenged by the petitioner, but so far as respondent no.5 is concerned, the same has not been assailed so far. Lucknow Bench of this Court in Writ Petition (S/S) No. 37199 of 2018 had confronted the authorities with the statutory provisions and had issued an interim mandamus to the respondents to ensure compliance of their own orders dated 17.7.2018 and 13.9.2018, or to show cause by filing a counter affidavit. The import of this order would not be that the requirement of passing order under Section 16(G)7 is dispensed with or that the order dated 22.12.2018 stands set-aside. So far as continuance of disciplinary proceedings or legality of the suspension is concerned, the same would have to be dealt with as per law. Her entitlement to receive salary, however, cannot be questioned, at this stage. The charges relating to dereliction of duty in holding of Board examinations was required to be adverted to, inasmuch as sanctity of Board examinations is a matter of importance and allegations that an employee or a teacher has failed to act, as was warranted in law, would be an aspect that requires examination at the hands of the Inspector.
10. In that view of the matter, this writ petition stands disposed of with a direction upon the District Inspector of Schools, Hapur, to examine the merits of the resolution of Committee of Management in placing respondent no.5 under suspension, keeping in view the law laid down by the Full Bench of this Court in Chandra Bhushan Misra (supra). The question as to whether the order dated 22nd December, 2018 permitting the senior most teacher to continue as Officiating Principal is liable to be modified/withdrawn, would also be examined. An opportunity of hearing would be given to the parties including the petitioner and the respondent nos.4, 5 and 6. In order to ensure that all concerned persons are given an opportunity of hearing, it is provided that all the parties would appear before the Inspector on 5th March, 2019, and a fresh order would be passed by the Inspector after hearing the parties concerned, within a further period of three weeks, thereafter. Status quo, as it exists today, with regard to functioning on the post of Officiating Principal would continue but the order impugned dated 15.1.2019 shall remain subject to outcome of the fresh orders to be passed, as indicated above.
Order Date :- 26.2.2019 Anil (Ashwani Kumar Mishra, J.)