Allahabad High Court
Madan Kumar & Others vs D.M., Auraiya & Others on 13 March, 2013
Author: Pradeep Kumar Singh Baghel
Bench: Pradeep Kumar Singh Baghel
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 19 Case :- WRIT - A No. - 17325 of 1999 Petitioner :- Madan Kumar & Others Respondent :- D.M., Auraiya & Others Petitioner Counsel :- A.K. Singh,D. Kumar,Yashpal Chaturvedi Respondent Counsel :- C.S.C. ............. Hon'ble Pradeep Kumar Singh Baghel,J.
The petitioners are Class IV employees in an Intermediate College, they are aggrieved by the orders passed by the District Magistrate Auraiya dated 12.2.99 and 26.2.99 whereby the District Magistrate had issued a direction to the District Inspector of Schools to stop their salaries on the ground that their appointments are illegal.
The basic facts pertinent to issue in question may be stated as follows:-
Sri Janta Inter College, Ajeetmal is an Intermediate College recognised by the Board of High School and Intermediate Education. It receives aid out of State Fund. The provisions of the U.P. Intermediate Education Act, 1921, the regulations framed thereunder and the U.P. High Schools and Intermediate College (Payment of Salaries of the Teachers and other Employees) Act, 1971 are applicable to the institution.
It is stated that in the institution there are 31 sanctioned posts of Class IV employees. The committee of management after obtaining the permission of the District Inspector of Schools, issued an advertisement on 1.3.1998 in local daily 'Dainik Etawah Mail' inviting applications for appointment against those vacant posts. The petitioners in response to the said advertisement applied for the said post. It is stated that the selection committee was constituted and petitioners were were found suitable for appointment as a Class IV employee. The District Inspector of Schools accorded the approval for the appointment of the petitioners by order dated 8th December, 1998 (copy of which is Annexure-4 to the writ petition). The petitioners started working in the said institution and they were being paid their salaries.
In the meantime one of the member of the committee of management made a complaint to the District Magistrate that in the aforesaid College 12 illegal appointments have been made by the committee of management in collusion with the office of the District Inspector of Schools against the non existent posts. The District Magistrate took cognizance of the said complaint and he issued a direction to the District Inspector of Schools, Auraiya by means of impugned order dated 12.2.1999 to stop the salaries of the petitioners and make inquiry with regard to the allegations of illegal appointment of the petitioners. Aggrieved by the said order the petitioners preferred this writ petition.
At the time of moving of this writ petition on 26.4.1999, this Court granted interim protection to the petitioners for their continuance and for their payment of salaries. It is stated at the Bar that in compliance thereof the petitioners are still working and they are receiving their salaries regularly.
A counter affidavit has been filed by the respondents. The stand taken in the said affidavit is that according to survey 1987-88 there are only 22 sanctioned post in the institution and appointment of the petitioners were made in illegal manner without their being any sanctioned post for their appointment and the petitioner on the basis of concealment of material facts obtained interim order dated 26.4.1999 from this Court. Communication of the Direction of Education dated 20.9.2003 has been brought on the record by means of counter affidavit wherein it is stated that it appears that there are 22 post of Class IV as such the petitioners appointment have been made against non existent post therefore they are not entitled for salary and a direction was issued to the District Inspector of Schools to file a counter affidavit in the pending writ petition.
I have heard Sri Devendra Kumar learned counsel for the petitioner and learned Standing Counsel.
Learned counsel for the petitioners submits that District Magistrate has no power under Intermediate Act to pass the order to stop the salaries of the petitioners. It was sought to be argued that under the Payment of Salaries Act (Act No. 5 of 1971) the District Inspector of Schools alone is empowered to exercise his power to withhold the salaries of teachers.
He has drawn the attention of the Court to a communication of the District Inspector of Schools dated 12.3.1999 to District Magistrate, wherein he has recorded that appointment of the petitioners is legal and within the sanctioned strength. He strenuously urged that District Inspector of Schools had approved the appointment of the petitioners and that has not been cancelled/recalled and it still stand.
Learned Standing submits that the District Magistrate had received complaint from the member of committee of management and being head of the district it was his duty to pass an appropriate order, if he finds that there was irregularity in an institution. In this case the District Magistrate having satisfied that the appointments were illegal he passed the appropriate orders.
The question, that calls for determination is as to whether the District Magistrate has any power to issue directions to Educational Authorities under Statutes, which are self-contained Act. The District Magistrate in the present case has issued a positive direction to the District Inspector of Schools to stop the salaries of the petitioners. He has recorded his satisfaction about petitioners illegal appointments.
The issue in question has enormous practical implication. The institution is govern by the provisions of Intermediate Education Act, 1921 (hereinafter referred to as the Act), the regulations framed thereunder and the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971.
I find it helpful to have a bird eye view of both the Acts to find out the true intention of the Legislature.
In the U.P. Intermediate Education Act,1921, various sections defines the authorities under the Act. Under section 2 (aaa) "Director" means the Director of Education, Uttar Pradesh and it includes an Additional Director of Education; 2 (dd) defines "Regional Deputy Director of Education" means the Deputy Director of Education in charge of a region and includes an officer authorized by the State Government to perform all or any of the duties of a Regional Deputy Director. The Superintendent and Invigilator are defined under section 2. Section 3 of the Act deals with the constitution of the Board. The Board comprises several officers such as Director , State Council of Educational Research and Training , Uttar Pradesh, Lucknow, Additional Director of Education, the Director, Bureau of Psychology, Allahabad one Professor of a Degree College, one Professor of a Engineering College, one Professor of Agricultural University,one Professor of Medical College (all nominated by the State Government), Head of Institution, Teachers, Principal etc. It is aforesaid persons who constitute the Board, the District Magistrate is not even an ex officio member.
Section 7 of the Act enumerates various powers of the Board. Section 9 (4) of the Act enjoins that the State Government shall have power to issue directions in case where in its opinion immediate action is required. Section 16- D envisages that the Director has the authority to make inspection of any recognised institution and if he finds certain defects mentioned under the section, he may point out the same to the committee of management to remove such defects, failing which a penal action of appointment of a authorised controller can be taken by the State Government, (ii) of subsection 3 of 16-D provides that if a non-teaching staff is appointed in contravention of the provisions of this Act or the regulations it may be one of the ground for appointment of the Authorized Controller.
From the detail procedure provided under 16 -D of the Act it emerges that the Director can only send report to the State Government, whereupon the State Government after affording opportunity to the concerned institution passes the order of appointment of the authorised controller or if it is satisfied that the cause shown by the institution is sufficient it may drop the proceedings.
A close look at the gamut of the Scheme of the Act instantly brings out that the District Magistrate is a foreign authority under the Scheme. There is no reference of the District Magistrate in the entire Scheme of the Act.
In case the institution receives aid out of the State Fund the provisions of the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act 1971 (hereinafter referred to Act No. 24 of 1971), a close look at the Scheme of the said Act No. 24 of 1971 also establishes that like U.P. Intermediate Education Act, 1921 under this Act also the District Magistrate has not been assigned any role. The Regional Deputy Director of Education and the District Inspector of Schools are authorities to pass orders/directions against the erring managements. The order passed by those authorities are appealable; under section 7 and under section 8 revision lies to the State Government. Again in this Act also there is no reference of the District Magistrate under any provisions of the Act.
Against backdrop of those statutory provisions the order of the District Magistrate in the present case can be analysed. The District Magistrate by a communication dated 12.2.1999 to the District Inspector of Schools issued a direction that till his further order the salaries of all the twelve petitioners shall be stopped. He has further directed that after an enquiry within a week the District Inspector of Schools may apprise the District Magistrate about the action taken by him. Consequent upon, the District Inspector of Schools submitted a report dated 12.3.1999 (Annexure-VI to the writ petition) to the District Magistrate that there was no illegality in the appointment of the petitioners and he has given the detail facts with regard to sanction of the post and he has also recorded his satisfaction that the procedures have been validly followed. The District Inspector of Schools sought permission from the District Magistrate for the payment of salaries of the petitioners. When the District Magistrate did not revoke his earlier order of stopping salaries of the petitioners, it led to file present writ petition.
Keeping the above Statutory provisions in the mind I am driven to the conclusion that the District Magistrate has no authority under the Act,1921 or Act No.24 of 1971 to take a decision in respect of appointment or salary of teaching or non-teaching staff.
Professor De Smith, in his Principles of Judicial Review 1999 Edition, page 240 has aptly said :-
"an authority entrusted with a discretion must not, in the purported exercise of its discretion, act under the dictation of another body or person. In at least two Commonwealth cases, licensing bodies were found to have taken decision on the instructions of the heads of government who were prompted by extraneous motives. But, as less colourful cases illustrate, it is enough to show that a decision which ought to have been based on the exercise of independent judgment was dictated by those not entrusted with the power to decide, although it remains a question of fact whether the repository of discretion abdicated it in the face of external pressure."
Professor Wade in his Administrative Law, 7th Edition has dealt with "Surrender, Abdication, Dictation" and "Power in the wrong hands" in the following words :-
"Closely akin to delegation, and scarcely distinguishable from it in some cases, is any arrangement by which a power conferred upon one authority is in substance exercised by another. The proper authority may share its power with someone else, or may allow someone else to dictate to it by declining to act without their consent or by submitting to their wishes or instructions. The effect then is that the discretion conferred by Parliament is exercised, at least in part, by the wrong authority, and the resulting decision is ultra vires and void. So strict are the courts in applying this principle that they condemn some administrative arrangements which must seem quite natural and proper to those who make them....
Ministers and their departments have several times fallen foul of the same rule, no doubt equally to their surprise...."
This paragraph of Professor Wade has been applied by the Supreme Court in the case of Anirudhsinhji Karansinhji Jadeja v. State of Gujarat, (1995) 5 SCC 302.
The said judgment has been followed by the Supreme Court in the case of Tarlochan Dev Sharma v. State of Punjab, (2001) 6 SCC 260 in following terms:-
"16.............No government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. In Anirudhsinhji Jadeja this Court has held that a statutory authority vested with jurisdiction must exercise it according to its own discretion; discretion exercised under the direction or instruction of some higher authority is failure to exercise discretion altogether. Observations of this Court in Purtabpore Co. Ltd are instructive and apposite. Executive Officers may in exercise of their statutory discretion take into account considerations of public policy and in some context, policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but they are not absolved from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for instructions by a superior to bind them. As already stated, we are not recording, for want of adequate material, any positive finding that the impugned order was passed at the behest of or dictated by someone else than its author. Yet we have no hesitation in holding that the impugned order betrays utter non-application of mind to the facts of the case and the relevant law. The manner in which the power under Section 22 has been exercised by the competent authority is suggestive of betrayal of the confidence which the State Government reposed in the Principal Secretary in conferring upon him the exercise of drastic power like removal of President of a Municipality under Section 22 of the Act. To say the least, what has been done is not what is expected to be done by a senior official like the Principal Secretary of a wing of the State Government. We leave it at that and say no more on this issue."
In the case of Purtabpore Co. Ltd. v. Cane Commissioner of Bihar , (1969) 1 SCC 308 the matter was in respect of exercise of power by the Cane Commissioner under the provisions of Sugar Cane (Control) Order,1966. Clause 6 of the order enjoins the Cane Commissioner to reserve the area in favour of the sugar mill subject to fulfillment of the certain conditions made under the statutory provisions. The Chief Minister of the State issued direction to the Cane Commissioner to divide the reserved area into two portions and allot one portion to the Sugar Mill/respondent no.5 therein. The Cane Commissioner in compliance of the direction of the Chief Minister divided the reserved area into two portion. The order of the Cane Commissioner was challenged on the ground that the Cane Commissioner without application of mind had carried out the directions of the Chief Minister, thus he had abdicated his authority under the Act. The Supreme Court set aside the order of the Cane Commissioner on the ground that Clause 6 (1) is a statutory power and the said Clause empowers the Commissioner alone to take the decision in the light of the Scheme of the Statutory provisions. The Supreme Court held that Clause 6 (1) is a Statutory power and he alone could have exercised that power. The Supreme Court further observed while exercising that power the Commissioner cannot abdicate his responsibility in favour of the State Government or the Chief Minister. The Court expressed its displeasure and observed that it was not proper for the Chief Minister to have interfere with the functions of the Cane Commissioner.
The Supreme Court recently again had occasion to deal with the same issue in the case of Joint Action Committee of Air Line Pilots' Association of India (ALPAI) v. Director General of Civil Aviation, (2011) 5 SCC 435. The Supreme Court held in paragraph 26 and paragraph 28:-
"26................It is a settled legal proposition that the authority which has been conferred with the competence under the statute alone can pass the order. No other person, even a superior authority, can interfere with the functioning of the statutory authority. In a democratic set-up like ours, persons occupying key positions are not supposed to mortgage their discretion, volition and decision-making authority and be prepared to give way to carry out commands having no sanctity in law. Thus, if any decision is taken by a statutory authority at the behest or on suggestion of a person who has no statutory role to play, the same would be patently illegal."
28. In view of the above, the legal position emerges that the authority who has been vested with the power to exercise its discretion alone can pass the order. Even a senior official cannot provide for any guideline or direction to the authority under the statute to act in a particular manner."
Reference may be made to the following judgment of the Supreme Court also :- Commissioner of Police v. Gordhandas Bhanji, reported AIR 2010 SC 2210; Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Makalia reported AIR 2004 SC 1159.
The principle which can be discerned from the above mentioned judgments of the Supreme Court is that if a statute impose a duty on an authority he must exercise that power independently and personally without any supervisory control of some other authority. Even a superior authority cannot interfere in his decision which he has to take personally. And he should not be guided by any other person/authority.
Applying the above principal in the case in hand I find that District Inspector of Schools has completely surrendered his statutory power to the District Magistrate. His letter dated 12.3.1999 to the District Magistrate seeking his guidance in the matter demonstrably established that he abdicated his power to the District Magistrate who is alien to the both Acts viz Act No. II of 1921 and Act No.24 of 1971. Therefore, the order of District Magistrate is ultra vires and without jurisdiction.
Relevant would it be to mention that District Inspector of Schools has not cancelled or recalled the approval order dated 8.12.1998. I find that submission of the learned counsel for the petitioner in this regard deserved to be accepted.
In view of the conspectus of the aforesaid facts and circumstances I am of the considered view that order of the District Magistrate dated 12.2.1999 and 26.2.1999 stopping the salaries of the petitioners are unsustainable. It needs to be set aside. Accordingly, orders of the District Magistrate dated 12.2.1999 and 26.2.1999 are set aside.
Writ petition is allowed.
The petitioners shall continue as if the impugned orders have not been passed at all.
No order as to costs.
Order Date :- 13.3.2013 ssm