Allahabad High Court
Jagbeer Singh Maan vs Deputy Director Of Education, Meerut ... on 18 October, 2000
Equivalent citations: 2000(4)AWC3250, [2000(87)FLR1030], (2000)3UPLBEC2518
Author: Shitla Pd. Srivastava
Bench: G.P. Mathur, Shitla Pd. Srivastava
JUDGMENT Shitla Pd. Srivastava, J.
1. This special appeal has been filed by the appellant, who was the petitioner before the learned single Judge, against the judgment and order dated 26.2.1996 passed by learned single Judge.
2. The brief farts lor the purposes of this appeal are that the petitioner filed writ petition challenging the order dated 30-3.1991 passed by the District inspector of Schools, Muzaffarnagar and further prayed for a writ of mandamus directing the respondents to pay the arrears of salary from July, 1989. The impugned order has been filed as Annexure-21 to the writ petition. This order shows that on 3.1.1991, the petitioner was adjusted in National Public Inter College Jalalabad, district Muzaffamagar on the post of a teacher, which fell vacant. This adjustment was found irregular and has been cancelled and petitioner was reverted back to his parent school.
3. The contention of the petitioner was that he was appointed as C.T. Grade teacher in Janta Junior High School at Lachera, district Muzaffamagar on 28.7.1981. The school was upgraded to Intermediate College. Petitioner's services were confirmed on 1.8.1982 but in the month of June, 1989, the management stopped his salary and did not permit him to work further. It is stated that the petitioner informed the District Inspector of Schools ventilating his grievance made representation and the District Inspector of Schools told the Committee of Management for the payment of salary to the petitioner but the petitioner was not allowed to work in the institution. Therefore, the District Inspector of Schools vide his letter dated 9.8.1990 transferred and adjusted the petitioner in the same status in another institution, namely, K. K. Jain Inter College, Khatauli, district Muzaffarnagar but the management of that college refused to take work from the petitioner. Then the District Inspector of Schools attached the petitioner with his office but he was not paid any salary. The Committee of Management, Janta Inter College, Lachera, district Muzaffarnagar relieved the petitioner on 24.8.1990. Then the District Inspector of Schools on 3.1.1991 after taking oral approval from the Deputy Director of Education, Region 1, Meerut, directed the Committee of Management, National Public Inter College. Jalalabad, district Muzaffarnagar to adjust the petitioner in C.T. grade. The case of the petitioner is that he was adjusted in that college and he joined the college on 4.1.1991. It is stated that the petitioner has received a letter of the Manager of National Public Inter College, Jalalabad dated 31.1.1991 and also of the Principal dated 18.1.1991 demanding official papers. The petitioner made representation on 14.3.1991 to the Committee of Management. National Public Inter College, Jalalabad, for the payment of salary but no salary was paid. The District Inspector of Schools passed an order for single operation against the Committee of Management, National Public Inter College, Jalalabad on 13.3.1991. The Committee of Management filed Writ Petition No, 8389 of 1991 against this order, A stay order was passed by the High Court. It is stated that though the petitioner was working in National Public Inter College. Jalalabad, but he was not paid his salary and the District Inspector of Schools on 30.3.1991 under the order dated 16.3,1991 passed by the Deputy Director of Education. Region I. Meerut withdrew the order dated 3.1.1991. The petitioner has challenged the order in the writ petition.
4. The first ground of attack of the petitioner was that before passing the order dated 30.3.1991, no opportunity of hearing was given to the petitioner, therefore, the order was bad in law. The second ground taken by the petitioner was that the order dated 3.1.1991 which has now been recalled has already been implemented, therefore, it cannot be withdrawn.
5. A counter-affidavit was filed in this case contesting the plea of the petitioner. In the counter-affidavit filed by one Ishwar Chandra Tyagi, Senior Assistant in the office of the District Inspector of Schools, it is stated that the services of the petitioner in Janta Inter College. Lachera, which is a recognised institution and that of National Public Inter College. Jalalabad, which is also a recognised Institution are governed by the provisions of Payment of Salaries Act, 1971. It is staled that the petitioner was adjusted in other institution, as there was difference between management of Janta Inter College and the petitioner. But subsequently, this order was recalled.
6. A counter-affidavit has also been filed by one Chandra Vir Singh, President, Committee of Management. Janta Inter College, Lachera, district Muzaffarnagar.
7. On behalf of the petitioner, it was contended before the learned single Judge that the District Inspector of Schools had no power to recall his earlier order dated 3.1.1991 and further that no opportunity of hearing was given to the petitioner. From the side of the respondent, it was contended that the service of a teacher is governed by the provisions of U. P. Intermediate Education Act. 1921 and Regulations 55 to 62 under Chapter III of the Regulations framed under the said Act. It was further contended on behalf of the Committee of Management of National Public Inter College, Jalalabad and Committee of Management of Janta Inter College. Lachera, district Muzaffarnagar that the transfer order could not be effected in view of the provisions of U, P. Secondary Education Services Commission and Selection Boards Act, 1982. It was further argued on behalf of respondent No, 3 that the concurrence of the institution where transfer was proposed was must and since there was no concurrence, the transfer order was bad. Learned single Judge held that there was no concurrence of the management of National Public Inter College. Jalalabad, district Muzaffarnagar for transferring the petitioner from Janta Inter College, Lachera district Muzaffarnagar. He further held that even if Section 16G of the aforesaid Act applies. Regulation 59 of the Regulations framed under the aforesaid Act prohibits such transfer in the absence of the concurrence of the institution where a transfer is proposed. Therefore, the transfer was illegal. The writ petition was dismissed but the petitioner was given liberty to approach the appropriate authority. The petitioner has challenged this order of the learned single Judge by means of the present special appeal.
8. Here the ground of attack is that the learned single Judge has completely ignored the case of the petitioner that in compliance of the order of the District Inspector of Schools, he had Joined the college at Jalalabad, therefore, principle of estoppel applied in this rase. His further contention is that the District Inspector of Schools has no authority to review his order on the dictate of the Deputy Director of Education as has been done in this case. Admittedly, the petitioner was a teacher in C.T. grade, therefore, provisions of U. P. Intermediate Education Act and Regulations 55 to 62 framed under the aforesaid Act will govern the services oi the petitioner.
9. After hearing learned counsel for the parties at length, we arc of the opinion that the only point to be determined before the learned single Judge was as to whether the transfer order passed by the District Inspector of Schools dated 3.1.1991 was legal and in accordance with law. Learned counsel for the appellant has placed reliance on Section 16G of the U. P. Intermediate Education Act whereas learned counsel for the respondent has placed reliance on Regulation 59 of Chapter III of the Regulations framed under the said Act. Relevant portion of Section and Regulation are quoted hereinbelow ;
"16G. Conditions of services of Head of Institutions, teachers and other employees.--(1) Every person employed in a recognised Institution shall be governed by such conditions of service as may be prescribed by Regulations and any agreement between the management and such employee insofar as it is inconsistent with the provisions of this Act or with the Regulations shall be void.
(2) Without prejudice to the generality of the powers conferred by sub-section (1), the Regulations may provide for-
(a) the period of probation, the conditions of confirmation and the procedure and conditions for promotion and punishment (including suspension pending or in contemplation of inquiry or during the pendency of investigation, inquiry or trial in any criminal case for an offence involving moral turpitude)] and the emoluments for the period of suspension and termination of service with notice ;
(b) the scales of pay, and payment of salaries ;
(c) transfer of service from one recognised institution to another ;
(d) grant of leave and Provident Fund and other benefits ; and
(e) maintenance of record of work and service."
"Regulation 59.--The transfer of an employee will be permissible subject to the conditions that (i) the Management of the institution where the applicant is serving is willing to release him and (ii) the Management of the new institution to which the applicant has applied for transfer is willing to accept him :
Provided that the transfer application of a person against whom disciplinary enquiry is pending shall not be considered ;
Provided further that an employee shall be allowed in the new institution the same salary as he was drawing in the former institution."
10. From a perusal of the aforesaid provisions, it is apparent that the concurrence of the two institutions for the transfer is a must and the finding has been recorded by the learned single Judge that there is nothing to show that any such concurrence of the management of National Public Inter College. Jalalabad, district Muzaffarnagar was obtained. The transfer order is lead which is prohibited by Regulation 59 of Chapter III of the Regulations framed under the aforesaid Act.
11. We agree with the view taken by the learned single Judge. We are also of the opinion that as transfer was not in accordance with the Statute and even if the order was Implemented which was against the Statute, there cannot be any estoppel against the Statute. So far as the opportunity of hearing is concerned, the petitioner himself has stated in the writ petition that he made representation to the District Inspector of Schools on 2.4.1991 and on 3.4.1991 and also made representation to the Committee, of Management, National Public Inter College, Jalalabad, district Muzaffarnagar for salary. He again made representation on 21.4.1991 to the Deputy Director of Education, Region I, Meerut. Nothing has been shown by the petitioner that the order transferring him from Janta Inter College. Lachera to National Public Inter College. Jalalabad, was in accordance with Regulation 59 of the Regulations framed under the aforesaid Act and there was any concurrence of the two colleges. The order passed by the District Inspector of Schools on 30.3.1991 cannot be said to be illegal. Therefore, neither the principle of estoppel applies in this case nor any rule of natural justice has been violated. We accordingly do not find any error in the judgment of the learned single Judge.
12. The special appeal fails and is dismissed. There shall be no order as to costs.