Allahabad High Court
Committee Of Management Janta ... vs Zila Basic Shiksha Adhikari, Ram Sagar ... on 8 February, 2006
Author: A.P. Sahi
Bench: A.P. Sahi
JUDGMENT A.P. Sahi, J.
1. Heard Sri W.H. Khan, learned Counsel for the petitioner and Sri Ashok Khare, Senior Advocate, who has put in appearance on behalf of the contesting respondent.
2. The petitioner - Committee of Management has challenged the order of disapproval passed by the Basic Education, Officer, whereby the proposal of the Committee of Management imposing punishment on the contesting respondent has been disapproved. Learned Counsel for the Committee contends that the Impugned order proceeds on an erroneous interpretation of the provisions of Rule 12 of the U.P. Recognized Basic Schools (Junior High School) Recruitment and Conditions of Service of Teachers. Rules 1978 and is even otherwise founded on erroneous assumption on fact and Jaw hence the same deserves to be set aside.
3. Sri Ashok Khare, learned Senior Counsel for the contesting respondent, has raised a preliminary objection on the ground that the petitioner - Committee of Management has an alternative remedy of filing an appeal before the Secretary, Basic Education, Board against the impugned order and, as such the petition deserves to be dismissed on the short ground alone.
4. The preliminary objection has to be dealt with first before proceeding to the writ petition. Sri Khare, relying on the provisions of Rule 16 of 1978 Rules referred to benefit above, has substantiated his Submissions by placing reliance on the decision of Mohan Lal Maurya v. Committee of Management and Ors. reported in (1987) UPLBEC 176, He contends that according to the aforesaid decision, an appeal shall lie against an order passed by the Basic Education Officer pursuant to disciplinary proceedings initiated by a Management as referred to in Rule 16. A perusal of the decision relied upon by Sri Khare leaves no room for doubt that an appeal has been found to be maintainable on behalf of an employee when action is taken under Rule 16. The Division Bench went on to hold that the words "in respect of as contained in Rule 16 has to be given the widest meaning so as to take in their sweep the provisions of appeal as contained in Rule 5 of the Basic Education Staff Rules 1973. In view of the aforesaid Division Bench pronouncement, there is absolutely no doubt that an employee is entitled to file an appeal in the event the Basic Education Officer approves as the disciplinary proceedings undertaken by a Management.
5. The instant writ petition is u converse case where the Basic Education Officer has disapproved as the action taken by the Management imposing punishment on an employee. The provisions of appeal which has been referred in the Division Bench judgment relied on by Sri Khare is a provision which has been found to be applicable by way of reference. The reference is to a different set of Rules namely Basic Education Staff Rules 1973. The 1973 Rules were framed for teachers and employees occupying the post referred to in the schedule appended to the said Rules. The employees referred t6 in the said schedule are employees of the institutions which are managed and administered by the Uttar Pradesh Basic Education Board directly. They are not institutions which are managed privately through Committees constituted under their own by-laws. The 1973 Rules do not contemplate any private Management at all and, as such, there is no right conferred on the Management of a privately aided institution which may be referable to the U.K Basic Education Staff Rules 1973. The 1978 Rules also do not contain any provision conferring a right of appeal on the Management in the event any action is taken by the Basic Education Officer disapproving the proposal of the Management, as has happened in the present case. The provisions of appeal, according to the Division Bench, is a legislation by reference. The Rule which has been borrowed by way of reference does not indicate any right of appeal being conferred on the appointing authority which can possibly be said to include a right being conferred on the management of a privately managed Junior High School.
6. To put it differently neither the 1978 Rules nor the 1973 Rules in any way make a provision of a right of appeal is not a inherent right. Reference may be had to 2 Division Bench judgments of this Court in the case of V.K. Mahendra v. Registrar 1998 (1) ESC 357A the Court ruled as under:-
It is well settled that the right of appeal is not a natural or inherent right attached to any litigant and, thus, it does not exist or subsist and cannot be assumed unless the same is expressly provided by the Statute or Rule having force of law.
7. The next decision is in the case of Ram Kripal Singh v. U.P.S.R.T.C., Lucknow, and Ors. reported in 1999 (2.) ESC 1088
10. A right of appeal is a creature of statute. A litigant does not have any inherent right to j prefer an appeal against an order unless such a right is conferred on the litigant by law. This proposition is well settled in law and since been reiterated by the Apex Court in Shah Babulal Khimji v. Jayaben D. Kania .
11. Whether the right of an. appeal is available to a litigant is a question dependant on the Statute creating the right to appeal....
8. Keeping in view the aforesaid pronouncements it is clear that the Management of an institution which is aided by the State and is privately managed has not been conferred with any right of appeal against an order of the Basic Education Officer in the present context The Division Bench judgment in the case of Mohan Lal Maurya (supra) does not extend the right of appeal in favour of the Management. In view of the aforesaid position, it is difficult for this Court to hold that the Management has a right of appeal as contended by Sri Khare and, therefore, the preliminary objection raised by him is over ruled.
9. The next contention raised by the learned Counsel for the petitioner is that the impugned order proceeds on a total misreading of the provisions of Rule 12 of 1978 Rules. The said Rules provide for confirmation of a Headmaster/Assistant Teacher after his appointment on substantive basis not being a temporary appointment under Rule 20, after the period of probation is over. The period of probation provided is one year which is extendable for a period not extending year. On the expiry of the period in either of the contingencies an employee shall be deemed to have been automatically confirmed under sub Rule 2 of Rule 12. The case of the Management is that the contesting respondent was terminated from his service during the period of probation which had been extended by the Management. In these circumstances, it was not a case of disciplinary proceeding as contemplated under Rule 16 of the said Rules and according to the learned Counsel for the petitioner even on this count the appeal would not be maintainable as the contesting respondent has not been removed on account of any disciplinary proceedings and his services have been dispensed with within the probationary, period. Sri Khan contends that the Management assessed the performance of the contesting respondent and has thereafter proceeded to dispense his services which the management had the right to do in the circumstances of the case. Sri Khan contends that the finding in the impugned order that the period spent by the contesting respondent as a temporary employee has also to be taken into account for assessing the performance in the present case treating it to be his period of probation is a manifest erroneous approach. The contention of Sri Kahn, prima facie, has force inasmuch as Rule 12 clearly contemplate probation on substantive appointment, and not on a temporary appointment under Rule 20. The contesting respondent was admittedly appointed on temporary basis for 6 months prior to his substantive appointment under Rule 20. When the Rule expressly excludes the period of temporary appointment under Rule 20 to be not a period of probation, then the Basic Education Officer travelled beyond his jurisdiction in trying to calculate and assessee the performance period of contesting respondent by including the period of temporary appointment for the purposes of probation. It is a well settled Rule of interpretation that while construing a provision the Courts can neither add or substract to what has been said in the Statute but while interpreting a provision attention should be paid not only to what has been said but also to what has not been said. The provision has not to be read like EUCLID 's theorem with some imagination of the purpose which lies behind the Rules. Reference may be had to the case . Keeping the aforesaid principles in view the submission raised by Sri Khare in support of the impugned order to the said effect cannot be countenanced prima facie.
10. In view of what has been stated above, the petitioner has made out a prima facie case for interference under Article 226 of the Constitution with the impugned order and, as such, it is provided that the operation of the impugned order dated 23.12.2005 shall remain stayed. Learned Counsel for the contesting respondent Sri Khare has prayed for a short time to file a counter-affidavit. The time prayed for is granted. Let the counter-affidavit be filed by him within 10 days. Petitioner will have 3 days thereafter for filing a rejoinder-affidavit.
11. The matter shall be listed immediately upon the expiry of 2 weeks on 22.2.2006.