Allahabad High Court
Committee Of Management, Rehbar-E-Aam ... vs The District Inspector Of Schools, Dr. ... on 14 December, 2007
Author: D.P. Singh
Bench: D.P. Singh
JUDGMENT D.P. Singh, J.
1. Heard counsel for the petitioner, learned Standing Counsel for the State-respondent and Sri Irshad Ali for respondent No. 4.
2. Pleadings are complete and with the consent of the counsel for the parties, this petition is being finally disposed off under the rules of the court.
3. The writ petition No. 21656 of 2001 is directed against an order dated 21.5.2001 by which the District Inspector of Schools has held that the respondent No. 4 was entitled to function as the Principal of the institution and his resignation from the post was vitiated and inoperative.
4. Rehbar-e-Aam Muslim Inter College, Kanth in district Moradabad (here-in-after referred to as the Institution) is a duly recognized Intermediate college and is a minority institution within the meaning of Article 30 of the Constitution of India and Section 16(FF) of the U.P. Intermediate Education Act. The institution was initially a Junior High School which was granted temporary recognition in 1983 but was converted to permanent recognition in 1986. The respondent No. 4 was working as the Headmaster in the Junior High School 'and his appointment was also approved on 28.3.1991 by Basic Shiksha Adhikari. It was upgraded to the High School level vide order of the Regional Secretary, Madhyamik Shiksha Parishad dated 24.9.1993 but without any financial assistance. The respondent No. 4 was also appointed and approved as its Principal vide approval order dated 1.11.1994 of the so upgraded institution which was subsequently permitted to run Intermediate classes and the respondent No. 4 became the Principal of the institution and his signature was approved and countersigned by the District Inspector of Schools and the Authorized Controller who was managing the institution till the year 2000 when the present petitioner Management was elected. In the meantime, it was found that certain records were manipulated and there was large scale financial irregularity and therefore he was asked to explain the same. Without submitting the accounts, the respondent No. 4 sent his resignation letter dated 8.3.2001 to the Management which was considered in the meeting of Committee of Management on 12.3.2001 and was duly accepted. Temporary charge was given to Smt. Abida Begum on 13.3.2001 till regular arrangement and her signatures were also attested by the Inspector. It appears that the respondent No. 4 made a complaint on 8.3.2001 (the date of resignation) followed by another complaint on 13.3.2001 about his alleged resignation in pursuance of which the District Inspector of Schools issued notice to the petitioner and the petitioner submitted a detailed reply in pursuance of the said notice dated 30.4.2001 which has led to the passing of the impugned order.
5. An interim order was passed in this petition on 30.5.2001 directing the parties to maintain status quo. However, the District Inspector of Schools vide order dated 29.6.2001 directed the Management neither give the officiating charge to respondent No. 4 nor to Smt. Abida Begum and to appoint another person. Smt. Abida Begum filed connected writ petition No. 24548 of 2001 where an interim order was passed on 9.7.2001 staying the aforesaid order and directing the parties to maintain status quo in view of the order dated 30.5.2001. In pursuance thereof, the District Inspector of Schools vice his order dated 6.8.2001 cancelled the order dated 29.6.2001 and allowed Smt. Abida Begum to discharge the duties of the Officiating Principal. This order is subject matter of connected writ petition No. 36673 of 2001 where the aforesaid order dated 6.8.2001 was stayed till further orders vide order of this Court dated 21.11.2001. However, in spite of the aforesaid order, Shahbuddin was not allowed to function and the Regional Joint Director of Education, in pursuance of clarification sought by the District Inspector of Schools, passed an order dated 22.7.2002 holding that Smt. Abida Begum was officiating on the date of the status quo order passed by this Court and directed the District Inspector of Schools to take appropriate action. In consequence thereof, the District Inspector of Schools attested her signature on 1.8.2007 which is subject matter of connected writ petition No. 42798 of 2002.
6. Counsel for the parties agree that the result of the connected petitions would depend upon the decision of the lead petition No. 21656 of 2001, the said petition was heard as the leading petition and the decision in the other connected petitions would abide by the decision.
7. The only argument urged on behalf of the petitioner is that the order of the District Inspector of Schools disapproving the acceptance of the resignation was void because he had no such power in view of the fact that the institution was a minority institution. He has relied upon the judgment of the Apex Court rendered in the case of Committee of Management, St. John Inter College v. Girdhari Singh and Ors. 2001 (3) S.C.C. 443.
8. There is no dispute that it is a minority institution and as such the provisions of Section 16-G(3) of the U.P. Intermediate Education Act or Section 21 of the U.P. Act No. 5 of 1982 do not apply to the institution and therefore the ratio rendered in St. John Inter College's case to the aforesaid effect are fully applicable to the present case. However, in that very case the Apex Court has held that the right to administer under Article 30 of the Constitution will not confer a right to maladminister the institution and the State has a right to regulate the functioning of the institution to make it more conducive and effective vehicle of education for the minority community, in the following words:
Article 30 of the Constitution confers right on a minority community to establish and administer educational institutions of their choice. The rights emanated from Article 30 are the right to establish an institution and right to administer it. The right to administer engrafted under Article 30 would not however confer a right to maladminister as was held by this Court in the case of Bhihar State Madarsa Board v. Madarasa Hanafia . Even though, Article 30 does not lay down any limitation upon the right of a minority to administer its educational institutions, but that right cannot be said to be absolute, as was held by this Court in the case of St. Xavier's College v. State of Gujrat and further the rights must be subject to reasonable regulations, as was held by this Court in All Saints College v. Govt. of Andhra Pradesh consistent with the national interest. Regulations, therefore could always be made to maintain educational character and standard of institution and for that purpose to lay down qualifications or conditions of service, to ensure orderly, efficient and sound administration and to prevent maladministration, to ensure efficiency and discipline of the institution and for several other objectives, which would be for the benefits of the institution and which would not offend the right engrafted under Article 30. It would always be permissible to frame regulations so long as the regulations do not restrict the right of administration of the minority community but facilitate and ensure better and more effective exercise of that right for the benefit of the institution. But such a regulatory provision will cease to be regulation where power conferred upon the appropriate authority is uncanalised or unreasonable. Regulations also cannot go to the extent of annihilating the right guaranteed by Article 30(1). The Regulation made for achieving competence of teachers or maintenance of discipline in the conditions of service or providing for an appeal against the order of termination and the like would not be held to be violative of the right to administer enshrined under Article 30 of the Constitution but nonetheless if the said provisions confer an authority on a body which is uncanalised or unreasonable or there is no guiding principle, then the same cannot be upheld. In this view of the matter, the State could impose regulations even upon a minority institution, which would be in consonance with Article 30(1) and such regulation must be reasonable and must be regulative of the educational character of the institution and conductive to making the institution an effective vehicle of education for the minority community. When any regulatory measure is assailed, it would be obligatory for the Court to find out as to whether the provision in fact secures a reasonable balance between ensuring a standard of excellence of the institution and of preserving the right of the minority to administer the institution as a minority institution, as was held by this Court in the case of St. Xavier's College v. State of Gujarat (Supra) but such regulatory provision if found to have offended the provisions of Article 14, then the same has to be struck down, as was indicated in the case of Frank, Anthony Employees' Association v. Union of India AIR 1987 SC 311.
9. Chapter III Regulations 26, 29 and 30 of the Regulations framed under the Intermediate Education Act regulate the procedure of termination and resignation of an employee of an institution, irrespective of its status, which are quoted below:
26. (1) The services of a permanent employee may be terminated by giving him three months' notice or three month's pay in lieu thereof, on the ground of the abolition of the post which the employee is holding. The abolition may be due to one of the following reasons:
(a) Retrenchment decided upon for reasons of financial stringency.
(b) Abolition of a subject.
© Abolition of section or class.
(2) For the purpose of computing the period of notice mentioned in Clause (1) or for determining the amount to be paid in lieu thereof the period of summer vacation shall be excluded.
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30. No employee shall be allowed to resign if disciplinary proceedings are pending against him unless specifically permitted by the Managing Committee to do so.
10. A bare perusal of the aforesaid regulations show that it does not impinge upon the right of the community to manage its minority institution but it only seeks to regulate the procedure for resignation and termination in the interest of the institution, students and teachers at large. The Management can terminate the services of the permanent employee by giving him three months notice or pay in lieu thereof under regulation 26 but regulation 29 places an obligation upon an employee with regard to his resignation. The import of Regulation 29(1) is to ensure the smooth running of the institution during the period the examinations are to be held, but though under Clause 4 the Management has been authorized to exempt the incumbent from the requirement of notice, no such power with respect to waiver of notice pay or from requirement of Clause (1) in this regulation has been given. A Division Bench of our Court in Shiv Raj Singh v. Sri Devji Mal Asha Ram Paliwal and Ors. 1982 U.P.L.B.E.C 476 has held that the proviso to Regulation 29 is in positive term and is mandatory in nature and that the resignation will not become effective for three months unless the employee pays the three months pay in lieu of notice in the following words:
Now what would be the situation in case an employee may not have indicated either of the modes i.e. he neither gives payment of three months' pay nor expressly gives three months notice. In our opinion in such case where the employee has not exercised his discretion by not actually paying the three months pay or giving the 3 months notice of resignation as required by Regulation 29 read with Regulation 26, the resignation cannot be termed as a valid resignation before the expiry of three months from the date of lodging of the resignation letter itself. The resignation would be deemed to be ineffective before the expiry of three months from the date on which the resignation was lodged with the management.
11. There is nothing on record to show that any notice was given but contrary to it, it is the management's case that the resignation was lodged on 2.3.2001 and was immediately accepted. As held in Shiv Raj Singh's case, such a resignation was ab initio void.
However, it is urged on behalf of the petitioner that the District Inspector of Schools had no power to sit in appeal over the decision of the management. It is apparent from the order that the District Inspector of Schools was not acting as the appellate authority, but it was only deciding the complaint of the respondent that he was forced to resign by the management. It heard the management and found the story of the voluntary resignation incorrect. Assuming for the sake of argument that the District Inspector of Schools did not have even this limited power, there is no escape from the requirement of Regulation 29. Court is not obliged to set aside an order if it can be supported on other grounds than that taken in the impugned order. The petitioner has miserably failed to justify their action in dispensing with the service of the respondent.
12. For the reasons given hereinabove:
(a) No interference is required in writ petition No. 21656 of 2001 under Article 226 of the Constitution of India. Rejected.
(b) For the same reasons the writ petition No. 24548 of 2001 also fails and is rejected.
(c) For the reasons given above, connected petition Nos. 36673 of 2001 and 42798 of 2002 are hereby allowed and the impugned orders dated 6.8.2001, 22.7.2002 and 1.8.2007, respectively, are hereby quashed.
(d) No order as to cost.