Allahabad High Court
C/M, Ramkali Balika Inter College, ... vs State Of U.P. Thru. Secy., Deptt. Of ... on 15 September, 2023
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Neutral Citation No. - 2023:AHC-LKO:59205 Court No. - 8 Case :- WRIT - C No. - 7663 of 2023 Petitioner :- C/M, Ramkali Balika Inter College, Sultanpur Thru. Manager, Rakhi Jaiswal And Another Respondent :- State Of U.P. Thru. Secy., Deptt. Of Secondry Education, Lucknow And 3 Others Counsel for Petitioner :- Ashish Verma,Ashish Kumar Pandey Counsel for Respondent :- C.S.C.,D.K. Singh Chauhan Hon'ble Pankaj Bhatia,J.
1. Heard learned Counsel for the petitioners and learned Standing Counsel.
2. The present petition has been filed challenging the order dated 13.02.2023, whereby the Authorized Controller was appointed in purported exercise of power under Section 5 of the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (in short 'the 1971 Act') as well as the order dated 09.08.2023, whereby the appeal preferred by the petitioner was rejected.
3. The contention of the Counsel for the petitioners in brief is that an order came to be passed appointing the Authorized Controller over the instructions vide order dated 13.02.2023 as contained in Annexure-2 to the writ petition. On perusal of the said order, it is revealed that the said order has been passed observing that in a report dated 17.01.2023, grave financial irregularity were observed and in exercise of powers under Section 4(1) and Section 6(1) of the 1971 Act, recommendation was made for appointment of Authorized Controller and based upon the said report and the recommendation, the Authorized Controller was appointed.
4. The petitioners had initially preferred an appeal against the order dated 13.02.2023 which was rejected. Aggrieved against the said order, the petitioner had approached this Court by filing Writ-C No.3977 of 2023, which was decided on 17.05.2023. In terms of the said order, the appellate order dated 19.04.2023 dismissing the appeal was set aside and the matter was remanded for decision afresh. In the light of the said remedy, the impugned order came to be passed dismissing the appeal on 24.07.2023.
5. The net contention of the Counsel for the petitioners is that assuming the report dated 17.01.2023, to be a gospel truth, no power vests, either under Section 4(1) or under Section 6(1) of the 1971 Act, to recommend the appointment of an Authorized Controller as there is no allegation with regard to any irregularity or non-payment of salary. He argues that the 1971 Act was enacted to regulate the payment of salary to teachers and other employees of the High Schools and Intermediate Colleges receiving aid out of the State fund and to provide for matters connected therewith. He draws my attention to Section 4(1) of the 1971 Act, which is as under:
"4. Power to inspect etc. - (1) The Inspector may at any time, for the purposes of this Act, inspect or cause to be inspected any institution or call for such information and records (including registers, book of account and vouchers) from its management with regard to the payment of salaries to its teachers or employees or give to its management any direction for the observance of such cannons of financial propriety (including any direction for retrenchment of any teacher or employee or for prohibition of any wasteful expenditure) as he thinks fit."
6. The object of the Act, Sections 5 and 6 which are relevant are as under:
"Purpose/ Object of the Act An Act to regulate the payment of salaries to teachers and other employees of High Schools and Intermediate Colleges receiving aid out of the State funds and to provide for matters connected therewith.
"5. Procedure for payment of salary in the case of certain institutions. - (1) The management of every institution shall, for the purpose of disbursement of salaries to its teachers and employees, open [in a Scheduled Bank or a Cooperative Bank] a separate account to be opened jointly by a representative of the management and by the Inspector or such other officer as may be authorised by the Inspector in that behalf:
Provided that after the account is opened, the Inspector may, if he is, subject to any rules made under this Act, satisfied that it is expedient in the public interest so to do, instruct the bank that the account shall be operated by the representative as the management alone, and may at any time revoke such instruction:
Provided further that in the case referred to in the provision to subsection (2), or where a difficulty arises in the disbursement of salaries due to any default of the management, the Inspector may instruct the Bank that the account shall be operated only by himself or by such other officer as may be authorised by him in that behalf and may at any time revoke such instruction.
(2) The management shall deposit in the said amount by such date as may be specified by general or special orders by the Inspector, eighty per cent or where the State Government or an officer authorised by the State Government having regard to the money required to be disbursed directs a higher percentage, then such higher percentage as it or he may direct, of the amount received from students as fees which in accordance with the general or special orders of the State Government in that behalf [and for so along as such orders are not made in accordance with the direction of the Inspector] form part of the maintenance fund:
Provided that where the said percentage of fees is not deposited as aforesaid the Inspector may by order prohibit the management from making any realization of fees from the students, and thereupon the Inspector may recover the fees (either through the teachers of the institution or in such other manner as the thinks fit) directly from the students and shall deposit the fees so recovered in the said account.
(3) The entire amount of the maintenance grant and the amount of eighty per cent or such higher percentage as the State Government or an officer authorised by the State Government, may be general or special order in that behalf determine, of the grants for reimbursement of freeships and other similar concessions shall also be paid by the State Government into the said account.
(4) No money credited to the said account shall be applied for any purpose except the following, namely:
(a) payment of the said salaries falling due for any period after March 31, 1971;
(b) credit of the institution's contribution, if any, to the provident fund accounts of the teachers and employees;
(c) such other expenditure for the purposes of the institution as may be directed by the State Government in that behalf;
and such portion of the balance in the accounts at the end of the month of July each year as exceeds the aggregate of one month's salary of the teachers and employees of the institution after meeting the liability for payment of their salaries for the period for which fees have been realised from the students shall be made over to the management for expenditure on the institution;
(5) The salary of a teacher or employee shall be paid by transfer of the amount from the said account to his account, if any, in the same bank, or if he has no account in that bank, then by cheque.
(6) In respect of a place where there is no Scheduled Bank or a Cooperative Bank, the provisions of this section shall apply with such modifications as the State Government may, by notification in the Gazette specify, and the reference in this section to bank shall in that case be construed as references to a post office savings bank.
6. Enforcement of provisions and directions. - (1) Where the Inspector, on the basis of an inspection of an institution or its records or otherwise, is satisfied that its management has committed default in complying with any direction given under Section 4 or with any provisions of Section 3 or Section 5, he may recommend to the Regional Deputy Director of Education, that action be taken against the institution under sub-section (2).
(2) On receipt of a recommendation under sub-section (1) the Regional Deputy Director of Education, may call upon the management to comply with the said direction or provisions or to show cause with a weeks why the management should not be suspended.
(3) Where the management fails to comply as aforesaid or to show cause, or the Regional Deputy Director of Education considers the cause shown to be insufficient, he may by order supersede the management for such period not exceeding one year as may be specified in the Order, and authorise any person (hereinafter referred to as Authorised Controller) to take over the management of the institution for the said period:
Provided that the Regional Deputy Director of Education, may where he considers it necessary or expedient so to do, -
(i) extend the said period, from time to time, so however, that the period so extended does not exceed five years in the aggregate; or
(ii) revoke the order at any time :
Provided further that nothing in clause (ii) of the preceding proviso shall bar the passing of a fresh order under this section.
(4) On an order being made under sub-section (3) the Authorised Controller shall, to the exclusion of the management and subject only to the Directions, if any, of the Regional Deputy Director of Education, the Director or the State Government, exercise all the powers and perform all the functions of the management, including management of the property belonging to or vested in the institution and in particular, operate singly the bank account referred to in Section 5:
Provided that nothing in this section shall be construed to confer on the Authorised Controller the power to transfer any such property (except by way of letting from month to month in the ordinary course of management) or to create any charge thereon (except as a condition of receipt of any grant-in-aid of the institution from the State Government).
(5) Any order made or direction given under this Section shall have effect notwithstanding anything inconsistent therewith contained in any other enactment or instrument relating to the management and control of the institution (including any scheme of administration) or relating to the property belonging to or vested in the institution."
7. In the light of the said, it is argued that the Section 4(1), vests a power of inspection and for summoning of information and records from the management with regard to the payment of salaries or to give its Management any direction for the observance of such cannons of financial propriety including any direction for retrenchment of any teacher or employee or for prohibition of any wasteful expenditure, as he thinks fit.
8. The Counsel for the petitioners argues that on a plain reading of the said provisions, the power of inspection or calling for record, can be only for the purpose, for which, the Act was enacted and not for any other purpose. He argues that in the entire report, which is the foundation for passing the order under Section 5, there is no allegation whatsoever with regard to any irregular payment or non-payment of salary to either the teachers or the employees, as such, the Inspector, at the first instance, did not even have any jurisdiction to record any finding over and above the issues, which do not fall within the scope and purpose of this Act.
9. The Counsel for the petitioners further argues that the second limb of the power under Section 4(1) with regard to the summoning of information and records, empowers the Inspector to give directions for maintaining the financial propriety and to avoid any wasteful expenditure and the said power also can be exercised only for the purpose of the Act. He argues that in the garb of power under Section 4(1), the Inspector, as acted, as if he is in the control of the entire affairs of the Institution, which is neither authorized under the Act nor otherwise.
10. Learned Standing Counsel, on the other hand, argues that the power was rightly exercised as no reply was given to the show cause notice and the appeal has also been rightly rejected. It is further argued that a revision lies against the appellate order before the State Government under Section 8 of the 1971 Act, as such, the petitioner should be relegated to avail the remedy of revision.
11. In rejoinder, the Counsel for the petitioners argues that as the order passed is beyond the scope of powers conferred upon the Inspector and thus without jurisdiction, the argument of relegating to avail alternative remedy is futile exercise. He relies upon the judgment of the Hon'ble Supreme Court in the case of Whirlpool Corporation vs Registrar of Trade Marks, Mumbai and others; (1998) 8 SCC 1.
12. Considering the submissions made at the bar and recorded above, prima facie, on a plain reading of the purpose of the Act and Section 4(1), as quoted above, it is clear that Inspector is empowered to inspect or cause to be inspected any institution for the 'purpose of this Act' and similarly can call for information and record only for 'the purpose of this Act'. The purpose of the Act, as extracted is only to ensure the payment of salary. The said interpretation is fortified by the mandate of Section 5, which empowers the Inspector to carry out the single operation of the account, which is opened strictly for disbursement of the salaries to the teachers and the employees. Sections 4 and 5, are the powers, which are prima facie, ex-propriatory in nature and have the effect of impinging upon the rights of the Management to carry out the functioning of the Institution, when exercised for purposes other than for 'the purpose of the Act'. It is well settled that an ex-propriatory power has to be exercised strictly in accordance with law and if the same is exercised for consideration and purpose other than for which, the power is vested, the same would follow short of test of Article 14 of the Constitution of India.
13. In the present case, on a plain reading of the report, assuming the same to be correct, for the sake of argument, does not record any shortcoming falling within the 'purpose of this Act'. The report, on the face of it, is arbitrary as for example, a conclusion has been draw that as the loss of Rs.14/- lakhs was shown in the year 2012-13, a similar loss is to be presumed in the subsequent years upto 2022-23 without there being any finding or material to form that view. The said view expressed in the report is only a fiction of the mind of the author of the report.
14. I have no hesitation in holding that the Inspector has clearly misused his power in making a recommendation for appointment of Authorized Controller, based upon the materials and purposes, which are other than 'the payment of salary to the teachers and the other employees'. I am constrained to observe that the Inspector has clearly erred in making the recommendation de hors the provisions of the 1971 Act and for the reasons, which are not prescribed under Section 4(1). As the very foundation is found to be arbitrary, the orders passed on the said foundation also do not have any legs to stand, as such, the impugned order dated 13.02.2023 as well as the subsequent appellate order dated 24.07.2023 are wholly arbitrary and illegal and are quashed merely on the ground of lack of jurisdiction and arbitrary exercise of power. The consequential order dated 09.08.2023 is also quashed.
15. The writ petition stands allowed on the aforesaid observations.
Order Date :-15.9.2023 akverma (Pankaj Bhatia,J.)