Allahabad High Court
Manoj Kumar, Principal (Terminated) vs State Of U.P. Thru' Secretary, Mini. Of ... on 17 April, 2015
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment reserved on 01.4.2015 Judgment delivered on 17.4.2015 Case :- WRIT - A No. - 39866 of 2006 Petitioner :- Manoj Kumar, Principal (Terminated) Respondent :- State Of U.P. Thru' Secretary, Mini. Of Education And Others Counsel for Petitioner :- Viqar Ahmed Ansari,N.L.Pandey,S.K. Rai, Shesh.Kumar Counsel for Respondent :- C.S.C.,Anurag Khanna Hon'ble Mahesh Chandra Tripathi,J.
1. Heard Shri Shesh Kumar, learned counsel for the petitioner and learned Additional Chief Standing Counsel for State respondents. Shri Anurag Khanna appears for Committee of Management, Krishak Bharti Inter College through its Manager-respondent nos.3 & 4.
2. By means of present writ petition, the petitioner has prayed for quashing the order dated 25.1.2006 passed by respondent no.4 by which the services of the petitioner had been terminated. He has further prayed for a direction commanding the respondents to permit him to continue as Principal in Krishak Bharti Inter College, Post Bhojpur, Kheri, District Bijnor, U.P.
3. Brief facts giving rise to the present writ petition are that Krishak Bharti Inter College, Post Bhojpur, Kheri, District Bijnor, U.P (in short, the institution) is a recognized and un-aided educational institution governed by the provisions of U.P. Intermediate Education Act, 1921 (in short, the Act of 1921). The affair of the institution was managed as per provisions contained in the Scheme of Administration framed in exercise of powers vested under Section 16-A of the Act of 1921. The Scheme of Administration of the institution has been duly approved by the Joint Director of Education, Moradabad.
4. The petitioner was appointed on 04.8.1995 as Assistant Teacher in the said institution, which was a recognized institution till Junior High School. Later on in the year 2008 it was recognized upto High School and in the year 2002 it was recognized upto Intermediate level. On 13.4.1997 the petitioner was promoted as Principal of the aforesaid institution. The promotion was approved by the signatures duly attested by the District Inspector of Schools, Bijnor. The letter dated 13.8.1999, by which the appointment of the petitioner was approved by the District Inspector of Schools, has been brought on record as Annexure No.2 to the writ petition. It has also been averred in the writ petition that on 25.4.2005 the Manager of the institution had given character and integrity certificate to the petitioner.
5. It has been averred that the petitioner being Principal made some complaint against the Committee of Management alleging financial irregularities on 07.5.2005. On the very next day i.e. 8.5.2005 the Manager of the institution had placed the petitioner under suspension on the allegation of moral turpitude. Thereafter the Committee of Management submitted the requisite papers before the District Inspector of Schools, Bijnor for approval. Against the suspension order dated 08.5.2005 the petitioner had earlier preferred a Writ Petition No.52355 of 2005 in which a specific ground was taken in para-15 of the writ petition that the suspension was not approved by the District Inspector of Schools and in response the counter affidavit had been filed by the District Inspector of Schools and the said averment had been responded as need no comment, which shows that the suspension was not approved by the District Inspector of Schools. After exchange of the affidavit, when the said writ petition was taken on 20.4.2006, learned counsel for the respondent nos. 3 and 4 had informed to the Court that the services of the petitioner had already been terminated. In view of the statement given the said writ petition was dismissed as infructuous and now by means of present writ petition the said termination order has been assailed.
6. Learned counsel for the petitioner submitted that even if the institution is unaided (Vitt Vihin), a permanent Principal of the recognized institution, which was earlier upgraded as Intermediate and as such, his services stand absorbed as permanent Teacher and as such his services could not be terminated. He further submitted that the petitioner, even for assuming, is a part time teacher, the regulations framed under the Act of 1921 are fully applicable to such teachers by virtue of Section 16-G (1) of the Act of 1921. The services of every employee in recognized institution shall be governed by such conditions of service as are prescribed by the regulations.
7. Learned counsel for the petitioner submitted that in the present institution, the provisions of Payment of Salaries Act, 1971 and U.P. Secondary Education Service Selection Board Act, 1982 are not applicable but at the same time the legislature had added Section 7AA, which was inserted by U.P. Act No.18 of 1987, making provision for employment of part time teachers or part time instructor. It provides, inter alia, that 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 permission is granted under Section 7-A; (ii) part time instructors to impart instructions in moral education or any trade or craft under socially or useful productive work of vocational course. Sub-sections (2) to (5) lay down pre-conditions for appointment of a part time teacher. In sub-section (6) of Section 7-AA is provided that nothing in the Act shall preclude a person already serving as a teacher in an institution from being employed as part time teacher or a part time instructor under Section 7-AA. In this connection a provision in the Regulations framed under the Intermediate Education Act is relevant. In Regulation 19 under Chapter II of the Regulations it is laid down that where any person is appointed as, or any promotion is made on any post of head of institution or teacher in contravention of the provisions of this Chapter or against any post other than a sanctioned post, the Inspector shall decline to pay salary and other allowances, if any, to such person where the institution is covered by the provisions of the U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 and in other case shall decline to give grant for the salary and allowance in respect of such person. At this stage it is relevant to note that as the statement of the object of the Act States the statute was enacted to establish a Board to take the place of the Allahabad University in regulating and supervising the system of High School and Intermediate Education in the United Provinces, and to prescribe courses therefore.
8. Learned counsel for the petitioner submitted that sub-section (3) of Section 16-G of the Act of 1921 provides that no principal, headmaster, teacher may be discharged or removed or dismissed from the services or reduced in rank or subjected to any diminution in emoluments or served a notice of termination of service except with prior approval of the Inspector. The decision of the Inspector shall be communicated within a period to be prescribed in the regulations. In case no approval has been accorded by the District Inspector of Schools or the management had not taken any approval from the District Inspector of Schools, the termination order cannot be sustained. Sub-section (b) (iii) of Section 16-G also provides that in case of punishment before passing the order, the Inspector shall also give an opportunity to the Principal to show cause within fortnight of the receipt of the notice as to why the punishment should not be inflicted.
9. Learned counsel for the petitioner vehemently submitted that in the present matter, the District Inspector of Schools had neither given any notice to the petitioner to afford an opportunity or to show cause and as such, he had no knowledge about the said termination order and as such the termination order passed by the respondent no.4 is arbitrary, against the settled principle of law as no approval had been taken from the District Inspector of Schools nor at any point of time the District Inspector of Schools had accorded approval to the termination of the services of the petitioner.
10. Learned counsel for the petitioner also submitted that the story of moral turpitude had been concocted by the management. In this regard, the reliance has been placed on a notarized affidavit dated 5.4.2006 filed by the father of Km. Shikha, who was the student in the institution, and it is alleged that the petitioner had misbehaved with her. In the notarized affidavit, Km. Shikha had refuted all the allegations, which were levelled by the management and categorically stated that she was major. The Principal of the institution (the petitioner) had neither misbehaved with her nor he had given any ring as alleged in the suspension order. The notarized affidavit has also been brought on record as Annexure No.7 to the writ petition. The present termination order cannot be sustained on both grounds firstly same is contrary to the provisions of the Act of 1921, and secondly the allegations, which were levelled against the petitioner, could not be sustained in the eyes of law.
11. Learned counsel for the petitioner has also placed his reliance to a Division Bench judgment of this Court in Special Appeal No.1501 of 2007 (Shreyaskar Tripathi vs. State of UP and ors) decided on 26.11.2010. The relevant paragraph nos. 28, 29 and 30 of the judgment are reproduced hereinafter:-
28.The recognition under Section 2 (d) of the Act means recognition for the purposes of preparing candidates for admission to the board examination. Section 5 (12) provides that the institution receiving recognition without grant in aid will adopt Section 7AA of the Act in totality. Such teachers, however, are required to possess the qualifications given in Chapter II. The teachers can be appointed only against a post for which approval has been given by the Director of Education. Even in respect of teachers appointed under Section 7AA, purportedly on part time basis the State Government under Section 7AA-3 can and has prescribed service conditions under Government Order No.1443/15-7-01-1(191)/2000 dated 10.8.2001. These provide that teachers in such educational institutions will be called part time teachers. The minimum age of such teachers will be 21 years on the 1st July of the calender year in which they are appointed. Clause-3 provides that for appointment, the teachers must possess the qualification mentioned in Regulation-1 of Chapter-II of the Act. The Government Order, thereafter, prescribes the selection procedure by advertisement in atleast two newspapers having wide circulation in the locality giving 15 days' time for making application by a Committee consisting of Chairman of the Managing Committee; Manager or member nominated by Manager; Principal of the school and a subject specialist nominated by the Managing Committee as members. The disqualifications are given in Clause-5. Clause-6 provides that minimum wages will be paid in accordance with the Minimum Wages Act to such part time teacher by the management form its own source. Para 7 provides for the provident fund and life insurance scheme in which part of the contribution will be given by the management. Clause 8 and 9 provide for disciplinary proceedings and termination of the services and Clause 10 provides for resignation of which Clause 10 (b) provides that where the Secondary Education Board ceases the recognition of any subject or any section or for any other reason ceases the post of pat time teacher, the management can terminate the services of such part time teacher by giving him one month's notice or one month's pay.
29. By a letter issued by the Director of Education, Madhyamik U.P. Lucknow dated 22.11.2006 to all the Regional Joint Directors of Education and District Inspector of Schools of the State in respect of unaided but recognised colleges it is provided with reference to Government Order dated 10th August, 2001 (Supra) that the elections of the Committee of Management of these secondary schools should be made in accordance with the Scheme of Administration. The part time teachers in these schools should be appointed after selection in accordance with the procedure prescribed in Government Order dated 10.8.2001 and that they should be paid their prescribed monetary benefits by the management from its own sources. The disciplinary proceeding and conditions of service should also be regulated in accordance with the Government Order dated 10.8.2001, and that wherever any teacher is aggrieved by termination of his services or any decision taken by the management, an appeal may be preferred to the District Inspector of Schools, who shall decide the same on merits. The decision of the District Inspector of Schools will be enforced on the institutions in accordance with the provisions of the U.P. Intermediate Education Act, 1921. The Director of Education has further provided in para 5 and 6 of his letter dated 22.11.2006 that all such institutions should be regularly inspected and that department shall ensure that the institution is following the prescribed curriculum and the course books. The District Inspector of Schools is also required to keep the details of such part time teachers in the unaided secondary schools, in his office.
30. The conditions of the recognition of the unaided educational institutions, not only provides for recognition for the purpose of preparing candidates for admission to the Board Examination but also various other provisions including the service conditions of the part time teachers appointed in such colleges under Section 7AA. The prescription of minimum age, qualification, method of appointment, constitution of selection committee, disqualification, emoluments, prescription of provident fund and life insurance schemes, disciplinary action, termination of services and provisions of an appeal to DIOS, and the enforcement of the orders of DIOS, resignation and termination of services with one month's notice or one month's pay, if the Board ceases recognition of any subject or any section, clearly indicate that the recognition by the Board is not only for preparing the candidates for Board Examination but also to provide for other regulatory measures including the service conditions of the teachers. The Government Order dated 10th August, 2001, as explained by the circular of the Director of Education Madhyamik dated 22.11.2006 issued under Section 7AA (3) of the Act, regulate the service conditions of part time teachers."
12. Shri Shesh Kumar, learned counsel for the petitioner submitted that the writ petition is maintainable on the ground that it is recognized by the Board of High School and Intermediate to which all the provisions of UP Intermediate Education Act, 1921 and the regulations framed thereunder are applicable.
13. Per contra, learned Additional Chief Standing Counsel has taken a categorical stand in the matter through the counter affidavit that the present institution is unaided institution and as such, the Salaries Act, 1971 is not applicable to the institution and as such, there is no control of the Government upon the institution except recognition and examinations of the Board according to the Government Order dated 10.8.2001. The relevant paras of the counter affidavit is reproduced herein below:-
"4. That in reply to the contents of para no.4 of the writ petition, it is submitted that 'Krishak Bhartiya Inter College' Bhojpur Kheri, District Bijnor (hereinafter referred as to institution only) is unaided institution and as such Payment of Salaries Act, 1971 is not applicable to the institution and there is no control of Government upon the institution except recognition & examinations of Boards according to Government Order dated 10.8.2001."
14. Shri Anurag Khanna, learned counsel appearing for the contesting respondents has raised a preliminary objection regarding maintainability of the present writ petition on the ground that a writ petition under Article 226 of Constitution of India is maintainable against the State, and the authority exercises powers of the State. Since the institution in question is un-aided institution, it is not State or instrumentality of the State. The institution is a private body and as such it is not performing any public duty. The writ petition is not maintainable and is liable to be dismissed in view of judgment of a Full Bench of this Court in N.K. Gandhi vs. Director of Education (Secondary) U.P. Lucknow and ors (2005) 3 UPLBEC 2185.
15. Shri Anurag Khanna, learned counsel for the respondents has also placed his reliance to the Government Order dated 10.8.2001, which has been issued by the State Government for a part time teacher serving in an unaided institution and as such their services are governed by the said Government order, which clearly provides for an alternative forum to the petitioner to approach to the District Inspector of schools against the impugned termination order.
16. Shri Anurag Khanna, learned counsel for the respondents has further raised objections that the status of the petitioner is liable to be governed under Section 7AA of the Act of 1921. He also submitted that even a Principal of the unaided institution is to be placed under Section 7AA of the Act of 1921, and as such the provisions of Section 16G (i) and (iii) would not be applicable on the petitioner and Section 16G (i) and (iii) of the Act of 1921 is only applicable to the aided institution.
17. Shri Anurag Khanna, learned counsel for the respondents submitted that the services of the petitioner had never been approved by the District Inspector of Schools and only the concocted and false/frivolous complaint was made against the management and the same was ante dated. In this behalf the District Inspector of Schools had made an enquiry into the matter and nothing adverse had come out against the management or office bearers of the Committee of Management. The allegation of moral turpitude, which was levelled against the petitioner, was very serious and the management had only informed regarding suspension of the petitioner to the District Inspector of Schools but as such the same was not required. In the present matter, the disciplinary action had been taken against the petitioner in consonance with the principles of natural justice and at every stage, the fullest opportunity had been afforded to the petitioner. Therefore, as such the order impugned is sustainable.
18. In Aley Ahmad Abdi vs. District Inspector of Schools, Allahabad and others (1976) SWC 731 a Full Bench of this Court held that the provisions of the U.P. Intermediate Education Act, 1921 and regulations are applicable to every recognised institution whether receiving grant-in-aid or not. The institutions, which are recognised, are governed by the provisions of the Act, even if they are not receiving any grant-in-aid from the State Government. He has relied upon judgments in Shiksha Prasar Samiti, Babhanan, District Gonda vs. State of UP and others 1986 UPLBEC 477; Smt. Shashi Kala Singh vs. District Inspector of Schools, Maharajganj and others 2000 (4) A.W.C. 2732; Dharmendra Pal Dwivedi vs. the District Inspector of Schools, Bulandshahr and another 2000 (4) E.S.C. 2263 (All.); Brahma Dayal Mehta vs. Senior Personnel Executive, India Drugs and Pharmaceuticals Ltd (1990) 3 UPLBEC 1570; Km. Shamim Fatima vs. The Manager, Bal Vidyalaya Montessori School & others 1994 HVD (Alld) Vol.IV 143; Smt. Satyawati Verma vs. U.P. State Electricity Board and another 1998 (1) A.W.C. 681; and Chandrika Prasad Gupta and others vs. State of U.P. and others 2000 (2) A.W.C. 960 in support of his submission.
19. A writ petition under Art.226 of the Constitution is maintainable against the State, and authorities exercising powers of the State, statutory body, and instrumentality or agency of the state, a company financed and owned by the State, private body run substantially on State funding, a private body discharging public duty or public obligations of public nature and person or a body under liability to discharge any function under any statute, to compel it to perform statutory functions. A writ of mandamus may also be issued to any person or authority performing public duty owing positive obligation to the affected party. The Supreme Court as long back as in 1976 in Executive Committee of Vaish Degree College, Shamli & Ors. Vs. Laxmi Narain & Ors., (1976) 2 SCC 58, held that writ petition is maintainable against the Committee of Management of a society running an educational institution discharging statutory duties. Unlike a cooperative society or a society, which is not regulated or required to perform any statutory functions, an educational institution even if it is run by private society, admitted to the privileges of the U.P. Intermediate Education Act, 1921 by virtue of its recognition is required to perform statutory duties, and is thus amenable to a writ jurisdiction of the High Court under Art.226 of the Constitution of India. The benefits and privileges of the recognition under Section 7 of the Act are not confined only to prepare the students for admission to the Board Examination. These include as discussed above the requirement to follow the curriculum, course books, appointment of teachers in proportion to the number of subjects for which recognition has been granted, in the ratio of the number of students as well as service conditions of the teachers under the Government Order dated 10th August, 2001. These service conditions include essential qualifications, method of appointment, constitution of selection committee, benefits of service, disciplinary action which includes termination of services, resignation and appeal to DIOS. The Board can also give directions to the private institutions to terminate services of teachers, if any subject or any section is to be closed under its directions. Apart from these statutory functions, the recognised unaided educational institutions are also required to provide for free and compulsory education, if it has received any benefits from the State, and even otherwise on the reimbursement per child of the expenditure fixed in accordance with the provisions of the Act. The recognised but unaided schools were always under obligations to provide education, which is fundamental right of every child, now recognised specifically under Art.21A, and enforced by the Right to Free and Compulsory Education under the Act of 2009. The judgment in M. K. Gandhi (Supra) was rendered in respect of Delhi Public School recognised by the Central Board of Secondary Education, which was a society having its own bye-laws. Further in General Manager, Kisan Sahkari Chini Mill Ltd. Vs. Satrughan Nishad, (2003) 8 SCC 639, the mill was held to be cooperative society registered under the U.P. Cooperative Societies act, 1965 with no control of the State in its functioning much less a deep and pervasive one. In Army School, Gorakhpur Vs. Smt. Shilpi Paul, 2005 (1) ESC (Alld.) 342 the army school was not held to be State under Art.12 of the Constitution, as it was run by welfare society.
20. I find substance in the submission of Shri Shesh Kumar, learned counsel for the petitioner, that the present educational institution is recognized under the Act of 1921 and even if it is un-aided, it has to carry out several statutory functions. The teachers of such institutions have statutory conditions of service prescribed under the Government order dated 10.8.2001 issued in exercise of powers under Section 7AA (3) of the Act of 1921. In the present scenario, once the legislature has enacted Article 21-A of Constitution of India, by which every right had been conferred in favour of the children for free and compulsory education and as such, under Right of Children to Free and Compulsory Education Act, 2009, all schools, educational institutions including unaided schools and institutions are under statutory obligation to provide education to children. Therefore, in the present context, it is hard to believe that even though the legislature has enacted Article 21-A of Constitution of India, then the argument advanced by Mr. Anurag Khanna cannot be sustained and the writ petition is very much maintainable.
21. It is admitted to both the parties that the institution is recognized but unaided institution under the Act of 1921. The provisions of Payment of Salaries Act, 1971 and U.P. Secondary Education Service Commission Act, 1982 are not applicable to the teachers of the institution. The management pays the salary from its own sources and fees are realised from the students. The service conditions of a teacher in the institution are to be regulated in accordance with the orders issued under Section 7AA of the Act of 1921 and as such the Government Order dated 10.8.2001, which had been issued for regulating the service conditions of teachers in unaided institution are fully applicable to the present institution.
22. Section 7 of the said Act, enumerates power of the Board. In sub-section (4) thereof one of the powers vested in the Board is to recognise institutions for the purposes of its examinations. In Section 7-A, which was substituted in the statute by amendment with effect from 14.10.1986 by U.P. Act No. 18 of 1987, it is laid down that notwithstanding anything contained in clause (4) of Section 7 (a) the Board may, with the prior approval of the State government, recognise an institution in any new subject or group of subjects or for a higher class; (b) the Inspector may permit an Institution to open a new section in an existing class. Section 7AA, which was inserted by U.P. Act No.18 of 1987 makes provisions for employment of part time teachers or part time instructor. The details have already been referred in the preceding paragraphs.
23. It is apparent that once the institution has taken a specific plea that the petitioner was only a part time Principal, and his approval was never taken by the District Inspector of Schools, then the services of the petitioner are to be regulated under Section 7AA and the Division Bench of this Court in Shreyaskar Tripathi's case (supra) has categorically held in paragraph-39 that "Regulations framed thereunder and the Government Order dated 10th August, 2001, will be applicable to such Principal/Head Master or teachers. As such, the service conditions of Principal/Head Master or teachers of recognized and unaided institutions are to be governed under Government Order dated 10.8.2001, which was issued in exercise of statutory powers under Section 7AA (3) of the Act of 1921.
24. In the aforesaid facts and circumstances, the petitioner has got efficacious alternative remedy to approach the District Inspector of Schools, Bijnor in pursuance to the Government Order dated 10.8.2001 for redressal of his grievance. The matter is pending since the year 2006. Therefore, it is expected that the appropriate decision would be taken by the District Inspector of Schools within a period of three months from the date of production of a certified copy of this order, after affording the fullest opportunity to all the contesting parties.
25. With the aforesaid directions, the writ petition is disposed of.
Order Date :- 17.4.2015 RKP