Allahabad High Court
Smt. Shashi Kala Singh vs District Inspector Of Schools, ... on 30 August, 2000
Equivalent citations: 2000(4)AWC2732, (2000)3UPLBEC2327
JUDGMENT S.R. Singh, J.
1. Premlal Singhania Kanya Inter College, Siswa Bazar, Mahrajganj is a recognised Intermediate College, the affairs of which are husbanded by the Committee of Management constituted under and in accordance with the provisions of the U. P. Intermediate Education Act. 1921 (In short the 'Act'). Though recognised under the Act, the college has not yet been brought within the purview of the U. P. High School and Intermediate (Payment of Salary to Teachers and other Employees) Act, 1971 and recognition accorded to the Institution is sans financial aid (Vityavihin). The posts of teachers including Principal have not yet been sanctioned and the management has to fend on its own resources for payment of salary to teachers who. It would appear, have been appointed under Section 7AA of the Act. One of the conditions for recognition as contained in the order dated 16.1.1997 is "Niyamanusar Ek Yogya Pradhancharya Kee Niyukta Kee Jaye". This condition in the recognition order being Annexure-1 to the supplementary-affidavit, may lead to an inference that the post of Principal should be deemed to have been created by order dated 16.1.1997 itself but in the absence of specific pleading and arguments in this regard, it would be but proper to forbear from expressing any opinion on this point.
2. The petitioner herein was appointed vide letter dated 29.6.1995, the Principal of the college to which the District Inspector of Schools accorded approval vide letter dated 21.6.1997 in the scale of Rs. 2,000-3,500 with effect from 1.7.1995 and attested the signatures of the petitioner as Principal of the Institution. It would transpire that a dispute surfaced in which the two rival committees locked horns, each claiming to be the validly elected Committee of Management. The matter escalated to the level of the Regional Joint Director of Education who by his order dated 19.1.2000 tilted the scale in favour of the Committee of Management of which Dr. Amar Chand Kediya was elected Manager. As a sequel to the said order, the signature of Dr. Amar Chand Kediya, as Manager of the Institution, came to be attested by the District Inspector of Schools on 20.1.2000 and on 21.1.2000, the petitioner was placed under suspension. The petitioner canvassed the validity of the order dated 21.1.2000 by means of Writ Petition No. 10660 of 2000. The said writ petition, it is alleged, was taken up on 8.3.2000 but the same was deferred to 9.3.2000 owing to the strike by lawyers of the High Court. It would appear that the petitioner preferred another writ petition being Writ No. 9268 of 2000 for appropriate direction interdicting the respondents therein from interfering with the working of the petitioner as Principal of the Institution. The writ petition came to be filed on the premises that the suspension of the petitioner having not been approved within 60 days, the order of suspension lapsed automatically in view of Section 16G (7) of the Act. The writ petition was finally disposed of by judgment and order dated 27.4.2000 (Annexure-8 to the petition). A question arose in the said writ petition as to "whether the petitioner's suspension would be approved or not"? The Court, inter alia, held : "It is also desirable that the District Inspector of Schools should pass an order one way or the other on his own discretion without being influenced by any observation made in this order after 31.5.2000 in order to enable the petitioner to conduct the examination as Centre Superintendent so that the examination may not be disturbed." It was made clear by the Court that "In case no order is passed by the District Inspector of Schools within one month from May 31, 2000 despite a certified copy of the judgment is produced before him within three weeks from date in that event it will be deemed that the suspension has not been approved by the District Inspector of Schools and deemed to have expired on the expiry of March 21, 2000". Before any order could be passed by the District Inspector of Schools pursuant to above directions of this Court, the services of the petitioner came to be terminated vide order dated 29.6.2000 pursuant to decision allegedly taken by the Committee of Management on 27.6.2000. However, as a sequel to the direction contained in the judgment dated 27.4.2000 of this Court, the District Inspector of Schools took up the matter and passed the order impugned herein holding that in financially unaided (Vityavihin) colleges, appointment of teachers and employees are although not required to be approved, the appointment being of part- time nature, yet the services of the part-time teachers are not liable to be terminated by the Management in arbitrary manner and in breach of the canons of natural Justice. The Management was held to be entitled to terminate the services of part-time teachers/employees but in accordance with the procedure established by law. The District Inspector of Schools by order impugned herein rejected the representation of the petitioner without testing the validity of the order terminating the services of the petitioner on the anvil of principles aforestated.
3. I have heard Sri Ashok Khare for the petitioner, standing counsel for the respondent No. 1 and Sri V.K. Shukla and Sri R. C. Dwivedi for the respondent Nos. 2 and 3. The respondents' counsel did not propose to file any counter-affidavit in the case and the writ petition is being disposed of finally at the motion hearing stage itself.
4. It has been urged by Sri Ashok Khare that the District Inspector of Schools having held that the services of part-time teachers appointed under Section 7AA of the Act, cannot be terminated by the Management in an arbitrary manner without following the principles of natural justice, ought to have examined whether the petitioner's services were terminated in violation of the principles of natural justice as embodied in regulations 36 and 37 of Chapter-Ill of the Regulations ; the impugned order passed by the District Inspector of Schools is impaired by error of law inasmuch as the District Inspector of Schools failed to advert himself to the question as to whether the services of the petitioners were terminated in accordance with the procedure established by law and in consonance with the rules of natural justice ; and Section 16G (3) (a) which inhibits termination of services "except with prior approval in writing of the Inspector" has to be imported for its application on all fours in relation to part-time teachers as well. On behalf of the respondent, it has been submitted that Section 16G of the Act and regulations 36 and 37 of Chapter III of the Regulations have no application to part-time teachers whose services are governed by Section 7AA of the Act read with the G. O. No. 6522/15-8-3065/85 Shiksha (8) Anubhag, Lucknow dated October 15, 1986, a copy of which has been annexed as Annexure-3 to the supplementary- affidavit.
5. I have devoted my anxious consideration to the submissions made across the bar. Section 7AB excludes applicability of the provisions of the U. P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act. 1971 and those of the U. P. Secondary Education Selection Board Act, 1982 but does not exclude the applicability of Section 16G of the Act. Sub-section (1) of Section 16G explicitly envisages that every person employed in a recognised Institution would be governed by such condition of service as may be prescribed by Regulations and any agreement between the Management and such employees in so far as it is incongruous with the provisions of the Act or with the Regulations shall operate in vacuum. Sub-section (3) prohibits dismissal, removal, discharge from service or reduction in rank or diminution in emoluments and service of notice of termination except with the prior approval in writing of the District Inspector of Schools. Sub-section (4) of Section 7AA of the Act provides that no part-time teacher shall be employed unless he possesses such minimum qualifications as may be prescribed. Appendix A to regulation 1 of Chapter II of the Regulations prescribes the qualifications for appointment of the Head of an Institution and other teachers. The same qualifications are prescribed for part-time teachers too. Part-time teachers are, however, paid "such honorarium as may be fixed by the State Government by general or special order in this behalf." This is clear from Section 7AA of the Act which reads as under :
"7AA. Employment of part-time teachers or part-time instructors.--(1) Notwithstanding anything contained in this Act, the management of an institution may, from its own resources, employ.
(i) as an interim measure part-time teachers for imparting instructions in any subject or group of subjects or for a higher class for which recognition is given or in any section of an existing class for which permission is granted under Section 8A ;
(ii) part-time instructors to impart instructions in moral education or any trade or craft under socially useful productive work or vocational course.
(2) No recognition shall be given and no permission shall be granted under section 7A, unless the Committee of Management furnishes such security in cash or by way of Bank guarantee to the Inspector as may be specified by the State Government from time to time.
(3) No part-time teacher shall be employed in an institution unless such conditions may be specified by the State Government by order in this behalf are complied with.
(4) No part-time teacher or part-time instructor shall be employed unless he possesses such minimum qualifications as may be prescribed.
(5) A part-time teacher or a part-time instructor shall be paid such honorarium as may be fixed by the State Government by general or special order in this behalf.
(6) Nothing in this Act shall preclude a person already serving as a teacher in an institution from being employed as a part-time teacher or a part-time instructor under Section 7AA."
Appointment of a part-time teacher under Section 7AA in an institution, which has been given vityavihin recognition, is not required to be made in the manner prescribed by Section 16F of the Act and the regulations made thereunder. But that by itself does not lend support to the interpretation that the part-time teachers appointed under Section 7AA of the Act could be given tertiary treatment and dealt with in arbitrary fashion by the Management. An element of public interest is involved both in the appointment and termination of services of such teachers in that the duties and functions of such teachers have the complexion of public nature. No person having requisite qualification prescribed in Appendix 'A' to regulation 1 of Chapter II of the Act can be appointed a part-time teacher under Section 7AA of the Act and once a teacher is appointed under Section 7AA, he acquires a right to be dealt with reasonably by the management. The principle contained in Section 16G (3) (a) of Chapter III of the Regulations made under the Act, being of regulatory nature, would be attracted even in relation to a part-time teacher appointed under Section 7AA of the Act and by this reckoning, obligation is cast upon the District Inspector of Schools to ensure that such teachers are not dealt with by the Management in antagonism of the principles of natural justice. It would be contrary to 'public policy' and 'public interest' to clothe the Management of an 'Institution' with unfettered power to terminate the services of part-time teachers who perform as much public function as regularly appointed teachers. Even the District Inspector of Schools was of the view that the Management could not terminate the services of part-time teacher arbitrarily and in breach of the canons of natural justice but he failed to examine whether in the present case, the Management acted arbitrarily and in violation of the rules of natural Justice which are embodied in Regulations 36 and 37 of Chapter III of the Regulations made under the Act. The non-obstante clause-'notwithstanding'-in Section 7AA overrides the provisions of the Act in so far as method of appointment of part-time teachers and instructors is concerned. In my opinion. It does not exclude the applicability of Section 16G of the Act and related provisions of the Regulations. Section 16E (10) of the Act will also be attracted in appropriate cases, e.g., where the appointee does not possess the requisite qualification, the appointment will be liable to be cancelled by competent authority. Though there is no need for creation of posts of part-time teachers, employment of part-time teachers too is 'Niyamit' (regular) subject to certain conditions as visualised by condition No. 4 of the G. O. dated 13.10.1986. Since prior approval of the District Inspector of Schools as visualised by Section 16G (3) of the Act has not been obtained, and the validity of the decision of the Management has not been examined on the anvil of canons of justice and fair play, the order impugned herein cannot be sustained.
6. Before parting with the case. I would like to observe that the question whether the post of Principal will also come under the provisions of Section 7AA of the Act is left open to be decided by the District Inspector of Schools and the parties are given liberty to have their say on the point before the District Inspector of Schools who will examine the question keeping in mind clause 5 of the recognition order dated 16.1.1997. Appointment in the instant case was made not on a fixed honorarium but in a given scale of pay, i.e., Rs. 2,000-3,500. In case, it is found that the post of Principal would be deemed to have been created in view of clause 5 of the recognition order, whole complexion of appointment would be changed, the post of Principal in that event will go out of the purview of Section 7AA of the Act and will have to be filled in accordance with the provision of the U. P. Secondary Education Service Selection Boards Act. 1982.
7. As a result of foregoing discussion, the petition succeeds and is allowed. The impugned order is quashed. The District Inspector of Schools is directed to take appropriate decision in the matter afresh in accordance with law and in the light of the observations made in the judgment.