Allahabad High Court
Basic Shiksha Adhikari vs Ram Shankar And 3 Ors. on 28 May, 2013
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 34 Case :- SECOND APPEAL No. - 438 of 2013 Appellant :- Basic Shiksha Adhikari Respondent :- Ram Shankar And 3 Ors. Counsel for Appellant :- K. Shahi,Vishnu Kr. Singh Counsel for Respondent :- A.K. Rai,Sharad Chandra,V.K. Singh Hon'ble Sudhir Agarwal,J.
1. Heard Sri K. Shahi, learned counsel for the appellant and Sri S.P. Gupta, learned Advocate General assisted by Sri P.P. Chaudhary, Advocate for respondent no. 4.
2. This appeal has been preferred by District Basic Education Officer, Etawah against the judgments and decree dated 29.01.2010 passed in Original Suit No. 94 of 1988 and 17.01.2013 passed in Civil Appeal No. 50 of 2011.
3. The suit was instituted by respondents no. 1 and 2 impleading State of U.P. through Collector, Etawah as defendant no. 1, District Basic Education Officer, Etawah as defendant no. 2 and Sri Sant Vinoba Madhyamik Vidyalaya, Jhindua, District Etawah, (hereinafter referred to as the "institution") as defendant no. 3.
4. The plaintiffs instituted aforesaid suit for declaration and permanent injunction against defendants. The suit was decreed with the declaration that defendants shall treat the date of appointment of plaintiffs in the institution as 13.07.1977 and they are working as permanent teacher since then and entitled for all consequential benefits since 01.07.1985. The defendants were also restrained by granting permanent injunction that they shall not interfere in the functioning and working of plaintiffs.
5. Thereagainst it appears that the State of U.P. as well as Basic Education Officer, Etawah both preferred Civil Appeal No. 50 of 2011 which has been decided by Additional District Judge, Court No. 6, Etawah vide judgment and decree dated 17.01.2013. The Lower Appellate Court has dismissed the appeal.
6. Now only one of the defendant-appellant, i.e., Basic Education Officer, Etawah has come to prefer this appeal under Section 100 C.P.C. impleading plaintiffs and other defendants including State of U.P. as proforma respondents. Further the appeal has been preferred through a private counsel, namely, Sri K. Shahi, Advocate.
7. Learned Standing Counsel on the very first day made a preliminary objection about maintainability of appeal whereupon this Court passed following order on 01.05.2013:
"1. The question which has arisen in this matter is regarding maintainability of this appeal at the instance of District Basic Education Officer, Etawah particularly when the financial liability is that of State and State of U.P., a party before courts below, has not chosen to come in appeal. It is in these circumstances, the first question arisen in this matter is, regarding maintainability of appeal at the instance of District Basic Education Officer, Etawah.
2. Let State of U.P. should come forward with a clear affidavit sworn by Secretary, Basic Education, U.P., Lucknow stating, whether an appeal can be filed before this Court by District Basic Education Officer on his own without any permission of State and without the matter being examined by State; as also, by impleading State of U.P. as one of the respondent. It will also explain, whether District Basic Education Officer is an independent officer in the matter of Basic Education to act on his own manner and if this is so, whether the State Government provides fund to him to be spent at his own discretion without any control or supervision by State of U.P. On this aspect the Principal Secretary, Law and Legal Rememberancer shall also clarify position by filing separate affidavit.
3. Learned Standing Counsel who is representing respondent no. 4 is directed to send a copy of this order to Secretary, Basic Education and Principal Secretary, Law and Legal Rememberancer so that they may file their affidavit in this regard within two weeks.
4. List this matter for further hearing on the question of maintainability of appeal on 16.05.2013.
5. A copy of this order shall be made available to learned Standing Counsel by today itself for information and compliance.
8. Pursuant thereto two affidavits have been filed today. One by Sri Sunil Kumar, Principal Secretary, Basic Education, Government of U.P., Lucknow and another by Sri Shashi Kant Pandey, Principal Secretary, Law, Government of U.P., Lucknow.
9. In both the affidavits they have replied the queries made by this Court and have stated very categorically that a District Basic Education Officer cannot file an appeal on behalf of State against any decree or order against State without permission of State. Where any part of the order is exclusively against the officer concerned in his individual capacity, for example some costs or damages from his own pocket and not from the funds of State has been directed to be paid, he can file appeal on his own without permission. It is also said that in no manner the District Basic Education Officer can file appeal on behalf of State and he cannot indirectly file appeal for or on behalf of by merely impleading State of U.P. as proforma party. Next it is submitted that when some statute requires an authority to exercise a statutory power at his own discretion, the State Government has no occasion to interfere with such discretion since statutory authority has to exercise power independently. However, in the instant case, the District Basic Education Officer has no independent authority to file any appeal on behalf of State. Lastly, it is said that no funds are provided by State Government to be utilized by District Basic Education Officer at his discretion. The State Government may provide funds for any designated action, directed to be done or performed by District Basic Education Officer, whereupon the State Government has full control and supervision over District Basic Education Officer. In the present case no permission has been sought before filing appeal from State Government and none has been granted by State Government till date.
10. When confronted to the aforesaid statements of Principal Secretary, Law and Principal Secretary, Basic Education, Sri Shahi, learned counsel appearing for appellant stated that under the Basic Education Act and Rules and Regulations framed thereunder, the Basic Education Officer is also an ex-officio secretary of certain committees of Basic Education Board and, therefore, the counsel representing Basic Education Board, can represent a Basic Education Officer for filing a case before the Court and in such matters he can also file case by impleading State of U.P. as respondent.
11. In this case the first question is, whether the appeal in question in view of the above facts and circumstances, is maintainable or not.
12. It cannot be doubted that appeal has not been filed by defendant-appellant in his individual capacity. It is in his official capacity and for the official acts done by him which were subject matter of scrutiny before courts below. It also cannot be doubted that while challenging the Trial Court's judgment and decree before Lower Appellate Court, the State Government joined District Basic Education Officer as an appellant but the State of U.P. has chosen not to challenge the Lower Appellate Court's judgment by filing second appeal. This appeal has been preferred only by District Basic Education Officer, Etawah without any permission from the State Government. In view of the clear stand taken by Secretaries of Government, it cannot be doubted that this appeal by District Basic Education Officer is incompetent. He has no authority to file this appeal by impleading State of U.P. as one of the respondent and without permission of the State Government.
13. Besides, the District Basic Education Officer is an officer appointed by State Government and is a holder of Civil Post. He is not an officer of Basic Education Board which is a statutory autonomous body in which various officials may have certain capacity to function in the Board or its Committees etc. but that will not make District Basic Education Officer as an officer of the Board. He is not an officer appointed by the Board or under the control of Basic Education Board. For all purposes he is an officer subordinate to State Government, under the administrative and disciplinary control of Secretary, Basic Education, U.P. Government.
14. It is really strange that a District Basic Education Officer could have proceeded directly, without taking care of getting approval etc. from the State Government. Moreover the Secretary, Basic Education has no knowledge or control over such matters, is also surprising. When asked from learned Advocate General, in what circumstances this appeal has been preferred, he states that it has been filed only by appellant in his own capacity. This shows strange and precarious state of affairs in the State where superior officer is not aware of the acts and omissions on the part of subordinate official and also not willing to know about it. He lacks interest and leave everything at the discretion of field officers. He ought to have taken care or precaution to see, whether subordinate officials are performing their functions validly and in accordance with law or not. This shows total inaction, apathy and laxity on the part of Principal Secretary, Basic Education also his incapacity in keeping subordinate officials within the frame work of law.
15. Let an inquiry be made by Principal Secretary, Basic Education as to how the present appellant has acted in this matter and that too by engaging a counsel not appointed by State of U.P. but by one appointed by Basic Education Board. He shall also make an inquiry to find out in how many such matters, other Basic Education Officers are behaving in similar manner and how much funds from State Exchequer, they have consumed, without knowledge or permission from State of U.P.
16. The Principal Secretary, Law is also directed to find out as to in how many matters, cases are being contested by various authorities of State without seeking any permission from Law Department and, if so, what action has been taken by Law Department in such matters.
17. After making such inquiry and taking appropriate action, as directed above, both the above Principal Secretaries, shall submit report before this Court, but not later than a period of six months. This case shall be listed only for this purpose i.e. perusal of compliance report on 02.12.2013.
18. Since I have already found that this appeal as instituted is not maintainable at the instance of District Basic Education Officer, Etawah, for the reasons and subject to directions, stated above, the appeal is dismissed as not maintainable.
19. No costs.
Order Date :- 28.05.2013 AK