Allahabad High Court
Dr. Dinesh Kumar Sharma vs State Of U.P. And 4 Others on 23 August, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:169576 Court No. - 35 Case :- WRIT - A No. - 10593 of 2023 Petitioner :- Dr. Dinesh Kumar Sharma Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Kamal Kumar Kesherwani,Vimal Chandra Mishra Counsel for Respondent :- CSC,Pankaj Rai Hon'ble Vikas Budhwar,J.
Heard Sri Vimal Chandra Mishra along with Sri Kamal Kumar Kesherwani, learned counsel for the petitioner, Sri P.K. Shahi, the learned Addl. Chief Standing Counsel, who appears for Respondents 1 to 4 as well as Sri Pankaj Rai, who appears for the fifth respondent.
The case of the writ petitioner is that the fifth respondent, Janta Inter College, Kharkhauda, District Meerut is a recognized institution under the provisions of U.P. Intermediate Education Act, 1921 and the provisions of U.P. Act No.5 of 1982 as well as U.P. Act No. 24 of 1971 stand applicable.
It is further the case of the writ petitioner that he armed with the academic qualification in M.Sc. in Physics subject, B.Ed. M.Ed and Ph.D. in education subject applied in recruitment exercise sought to be conducted by the U.P. Secondary Education Service Selection Board and he was selected as the Principal and he was accorded joining in the fifth respondent-institution on 31.01.1999. As per the writ petitioner, he was placed under suspension on 22.08.2017 by the fifth respondent-Committee of Management. A charge sheet was also served upon the writ petitioner containing as many as 18 charges. It is further the case of the writ petitioner that the approval was accorded by the fourth respondent, District Inspector of Schools, Meerut on 24.10.2017, since the order of the approval was passed without giving opportunity to the writ petitioner, the same was recalled by District Inspector of Schools, Meerut on 25.10.2017. Since the writ petitioner was not being accorded the joining and the benefits which he is claimed to be entitled to be conferred with, he preferred Writ-A No.55198 of 2017, Dr. Dinesh Kumar Sharma vs. State of U.P. and others, which came to be disposed off by this Court on 21.11.2017, order whereof is being quoted hereinunder:
"Heard learned counsel for the parties.
Petition is being finally decided, on consent of the parties, without calling for the counter affidavit as per Rule of the Court.
Petitioner is a regularly appointed Principal in Janta Inter College, Kharkhauda, District Meerut, an intermediate institution in grant-in-aid of the State. Provisions of Intermediate Education Act, 1921 and Regulations framed thereunder is applicable upon the Institution. Petitioner was placed under suspension on 22 August 2017 by the fourth respondent, Management of the Institution. It is urged that the suspension order in terms of Section 16-G(7) was approved by the third respondent, District Inspector of Schools on 24 October 2017, however, the said order, on the application of the petitioner, was recalled on 25 October 2017 having been passed without giving opportunity to the petitioner.
Learned counsel appearing for the fourth respondent would not dispute the fact that the recall order was not assailed by the Management. It is sought to be urged that proceedings under Section 16-G(8) of the Intermediate Education Act, is pending, therefore, the Management has not assailed the order.
It is in this backdrop, learned counsel for the petitioner would submit that the scope of sub-clause (7) and (8) are entirely different. The Management is not aggrieved by the conduct of the third respondent in not passing any order under sub-clause (7), therefore, he would urge that after lapse of sixty days from the passing of the suspension order petitioner is entitled to reinstatement on the post. Full Bench in Chandra Bhushan Mishra vs. District Inspector of Schools, Deoria [1995 (1) UPLBEC 460], has held as follows:
"(1) An order of suspension of the Head or a teacher of an institution does not lapse even if not approved by the Inspector within sixty days from the date of such order and it merely ceases to operate and becomes effective again after it is approved by the Inspectors.
(2) The writ petition filed before this Court under article 226 of the constitution of india against an order of D. I. O. S. passed under Section 16-G (7) of the Act does not become infructuous after the; expiry of sixty days from the date of the order of suspension and this Court has fall power to pass appropriate order and issues appropriate direction is such matter."
In view of the proposition of law, learned counsel for the petitioner would urge that after the lapse of sixty days the suspension order has become inoperative, which has not been challenged by the Management, therefore, the petitioner is entitled to be reinstated.
This proposition of law is not being disputed by the learned counsel for the fourth respondent and the learned Standing Counsel, however, they would urge that the disciplinary proceedings commenced against the petitioner be directed to be completed expeditiously.
In regard thereto, on consent, the writ petition is being finally disposed of with the following directions:
i.) third and fourth respondent, District Inspector of Schools, Meerut and Committee of Management, respectively, is directed to reinstate the petitioner as Principal of the Institution forthwith;
ii.) petitioner undertakes to cooperate with the disciplinary proceedings pending against him."
As per the writ petitioner, pursuant to the order dated 21.11.2017 passed in Writ-A No. 55198 of 2017, the writ petitioner was reinstated in services on 25.11.2017 on the post of Principal. However, in the meantime, it appears there happened to be certain audit objections which compelled the Committee of Management of the institution in question to initiate proceedings under Section 156(3) of CrPC for lodging of the criminal proceedings under Sections 408 and 420 IPC. A first information report was lodged and thereafter on 25.01.2018, the writ petitioner was suspended.
Challenging the order of the suspension dated 25.01.2018, the writ petitioner preferred Writ-A No.5790 of 2018, Dr. Dinesh Kumar Sharma vs. State of U.P. and others in which on 28.02.2018, the following order was passed :
"Order on the Amendment Application Application is allowed.
Learned counsel for the petitioner is permitted to carry out the necessary amendment within the course of the day.
Order on the Writ Petition Heard Shri Nand Lal Pandey, learned counsel for the petitioner, learned Standing Counsel appearing on behalf of respondent nos. 1,2 and 3 and Shri Vinod Kumar Singh, learned counsel appearing on behalf of respondent no.4.
Petitioner has approached this Court aggrieved by the suspension order dated 25.1.2018 passed by the respondent no.4 , Committee of Management, Janta Inter College, Kharkhauda, District Meerut.
The arguments of the learned counsel for the petitioner is that on the basis of audit objection regarding irregular payment in the purchase of Chemical etc., for the institution, petitioner was suspended by the order dated 22.8.2017 and inquiry was instituted against him. Since approval of the suspension was not granted within sixty days from the date of the order of the Committee of Management he approached this court by way filing Writ Petition No. 55198 of 2017, which was disposed of by order dated 21.11.2017 directing the District Inspector of Schools, Meerut and Committee of Management to reinstate the petitioner as Principal of the institution and petitioner was directed to cooperate with the disciplinary proceedings pending against him.
In pursuance of the above order of this Court dated 21.11.2017, petitioner has been reinstated in service by order dated 25.11.2017 on the post of Principal and he is working.
Learned counsel for the petitioner has argued that regarding audit objections, the District Audit and Accounts Officer, Meerut disposed of the objections on 30.1.2017 and held that dispute of audit objection stands removed.
Learned counsel for the petitioner points out that audit objection, which was removed by the Audit and Accounts Officer, was accepted by the Committee of Management by resolution dated 21.2.2017.However petitioner was suspended on 22.8.2017 and charge no.6 framed therein is regarding the same audit objection which was set aside by the Audit and Account Officer and accepted by the Committee of Management by resolution dated 21.2.2017. Regarding charge no.6 and other charges, the disciplinary inquiry is pending and has not been concluded as yet.
Learned counsel for the petitioner has pointed out that a member of the Committee of Management has filed application under section 156(3) Cr.P.C. before the Magistrate concerned and criminal case under Sections 408 and 420 I.P.C. has been registered against him in pursuance of the order of the Magistrate.
Learned counsel for the petitioner has further argued that disciplinary inquiry is pending against the petitioner regarding the same charges since February 2017 and First Information Report has been lodged in pursuance of the order dated 20.1.2018 regarding same charges on 24.1.2018. The argument is that impugned suspension order is malafide and passed on the basis of criminal proceedings initiated by the member of the Committee of Management which is illegal. Only Secretary of the Committee of Management is competent to initiate any legal proceedings against the petitioner and not any ordinary member of the Committee of Management.
Shri Vinod Kumar Singh, learned counsel for the respondent no.4 has relied upon the judgement of Govind Swarup Pandey Vs. The Authorised Controller, Adarsh Inter College, Manikpur, Banda and another, 1981 UPLBEC, 17 and argued that against the impugned suspension order petitioner has alternative remedy under section 16-G(7) of U.P. Intermediate Education Act, 1921 and petitioner should exhaust the same before approaching this Court.
It is clear from the facts and documents on record that impugned order of suspension has not been passed on the basis of any subsequent event of misconduct after initiation of earlier proceedings by the Committee of Management. The inquiry is already under progress and has not been concluded despite the order of this Court dated 21.11.2017.
The suspension order is based only on the First Information Report lodged against the petitioner in pursuance of the order of the Chief Judicial Magistrate, Meerut under Section 156(3) Cr.P.C.Therefore it is clear that suspension order has been passed after creating grounds by way of proceedings under section 156(3) Cr.P.C.
In view of the above facts the impugned suspension order dated 25.1.2018 passed by the respondent no.4 shall be kept in abeyance till the conclusion of the disciplinary inquiry against the petitioner.
The writ petition stands disposed of finally with the aforesaid direction."
It is the further case of the writ petitioner that on 08.03.2018, the financial and the administrative powers of the writ petitioner were stripped off, which led him to file Writ-A No. 9537 of 2018, Dr. Dinesh Sharma vs. State of U.P. and others, in which on 09.04.2018, following order was passed:
"Petitioner is the Principal of Janta Inter College, Kharkhauda, District Meerut. He was placed under suspension by the Committee of Management on 22.8.2017. The suspension order was not approved within 60 days, and consequently, the Committee of Management filed in Writ Petition No.55198 of 2017, which was disposed of on 21st November, 2017 directing the Inspector to pass appropriate orders. No orders, however, were passed by the Inspector in the matter. Since the Committee of Management was not permitting the petitioner to work even after expiry of 60 days, the petitioner approached this Court by way of Writ Petition No.5790 of 2018, which was disposed of finally on 28.2.2018 by passing following orders:-
"It is clear from the facts and documents on record that impugned order of suspension has not been passed on the basis of any subsequent event of misconduct after initiation of earlier proceedings by the Committee of Management. The inquiry is already under progress and has not been concluded despite the order of this Court dated 21.11.2017.
The suspension order is based only on the First Information Report lodged against the petitioner in pursuance of the order of the Chief Judicial Magistrate, Meerut under Section 156(3) Cr.P.C.Therefore it is clear that suspension order has been passed after creating grounds by way of proceedings under section 156(3) Cr.P.C.
In view of the above facts the impugned suspension order dated 25.1.2018 passed by the respondent no.4 shall be kept in abeyance till the conclusion of the disciplinary inquiry against the petitioner.
The writ petition stands disposed of finally with the aforesaid direction."
After the aforesaid order has been passed, the Committee of Management apparently has concluded the enquiry proceedings and the matter has been referred to Board for its approval under Section 21 of the Act of 1982. Admittedly the matter is pending before the Board. In between an order has been passed by the Committee of Management restraining the petitioner from exercising his administrative and financial powers. It is this order dated 8th March, 2018 by which the petitioner feels aggrieved and has approached this Court. Learned counsel submits that order of the Committee of Management is in teeth of the earlier order passed by this Court in Writ Petition No.5790 of 2018 and is otherwise not referable to exercise of any statutory provision whereunder such a power could be exercised.
Learned Standing Counsel has been heard on behalf of respondent nos.1, 2 and 3, whereas Sri A.K. Yadav appears for the respondent no.5.
Considering the nature of the order proposed to be passed today, notices need not be issued to respondent no. 4, and the writ petition is being disposed of, at this stage itself.
Considering the facts and circumstances, noticed above, this writ petition stands disposed of permitting the petitioner to approach respondent no.3, alongwith certified copy of this order. The concerned respondent shall ensure that petitioner is allowed to function in accordance with law, keeping in view the orders passed by this Court in Writ Petition No.5790 of 2018. Once the suspension order has been disapproved, the petitioner is entitled to continue. Unless the punishment order is approved by the Board in terms of Section 21, the respondents would not be justified in interfering with the working of petitioner. An appropriate decision shall be taken by the Inspector, after affording opportunity of hearing to respondent no.4, within a period of six weeks from the date of presentation of certified copy of this order. It would also be appropriate to observe that the Board shall proceed to accord consideration to the decision taken by the Committee of Management, in accordance with law."
Post remand, another order has been passed on 13.09.2018 by the District Inspector of Schools, Meerut, fourth respondent, whereby the order dated 08.03.2018 was maintained against which the writ petitioner preferred Writ-A No.22068 of 2018, Dr. Dinesh Kumar Sharma vs. State of U.P. and others, in which on 31.10.2018, this Court passed the following order:
"This is virtually a third round of litigation which petitioner has to indulge in apparently due adamant attitude of the committee of management. An order of suspension was passed against the petitioner which was not approved. In view of Section 16 -A (7) of the U.P. Intermediate Education Act, the order of suspension, therefore, ceased to exist yet petitioner was not allowed to join. It was, at this stage, that first Writ Petition No. 5790 of 2018 came to be filed and the same was disposed of vide following orders passed on 28.2.2018:-
"Application is allowed.
Learned counsel for the petitioner is permitted to carry out the necessary amendment within the course of the day.
Order on the Writ Petition.
Heard Shri Nand Lal Pandey, learned counsel for the petitioner, learned Standing Counsel appearing on behalf of respondent nos. 1,2 and 3 and Shri Vinod Kumar Singh, learned counsel appearing on behalf of respondent no.4.
Petitioner has approached this Court aggrieved by the suspension order dated 25.1.2018 passed by the respondent no.4 , Committee of Management, Janta Inter College, Kharkhauda, District Meerut.
The arguments of the learned counsel for the petitioner is that on the basis of audit objection regarding irregular payment in the purchase of Chemical etc., for the institution, petitioner was suspended by the order dated 22.8.2017 and inquiry was instituted against him. Since approval of the suspension was not granted within sixty days from the date of the order of the Committee of Management he approached this court by way filing Writ Petition No. 55198 of 2017, which was disposed of by order dated 21.11.2017 directing the District Inspector of Schools, Meerut and Committee of Management to reinstate the petitioner as Principal of the institution and petitioner was directed to cooperate with the disciplinary proceedings pending against him.
In pursuance of the above order of this Court dated 21.11.2017, petitioner has been reinstated in service by order dated 25.11.2017 on the post of Principal and he is working.
Learned counsel for the petitioner has argued that regarding audit objections, the District Audit and Accounts Officer, Meerut disposed of the objections on 30.1.2017 and held that dispute of audit objection stands removed.
Learned counsel for the petitioner points out that audit objection, which was removed by the Audit and Accounts Officer, was accepted by the Committee of Management by resolution dated 21.2.2017.However petitioner was suspended on 22.8.2017 and charge no.6 framed therein is regarding the same audit objection which was set aside by the Audit and Account Officer and accepted by the Committee of Management by resolution dated 21.2.2017. Regarding charge no.6 and other charges, the disciplinary inquiry is pending and has not been concluded as yet.
Learned counsel for the petitioner has pointed out that a member of the Committee of Management has filed application under section 156(3) Cr.P.C. before the Magistrate concerned and criminal case under Sections 408 and 420 I.P.C. has been registered against him in pursuance of the order of the Magistrate.
Learned counsel for the petitioner has further argued that disciplinary inquiry is pending against the petitioner regarding the same charges since February 2017 and First Information Report has been lodged in pursuance of the order dated 20.1.2018 regarding same charges on 24.1.2018. The argument is that impugned suspension order is malafide and passed on the basis of criminal proceedings initiated by the member of the Committee of Management which is illegal. Only Secretary of the Committee of Management is competent to initiate any legal proceedings against the petitioner and not any ordinary member of the Committee of Management.
Shri Vinod Kumar Singh, learned counsel for the respondent no.4 has relied upon the judgement of Govind Swarup Pandey Vs. The Authorised Controller, Adarsh Inter College, Manikpur, Banda and another, 1981 UPLBEC, 17 and argued that against the impugned suspension order petitioner has alternative remedy under section 16-G(7) of U.P. Intermediate Education Act, 1921 and petitioner should exhaust the same before approaching this Court.
It is clear from the facts and documents on record that impugned order of suspension has not been passed on the basis of any subsequent event of misconduct after initiation of earlier proceedings by the Committee of Management. The inquiry is already under progress and has not been concluded despite the order of this Court dated 21.11.2017.
The suspension order is based only on the First Information Report lodged against the petitioner in pursuance of the order of the Chief Judicial Magistrate, Meerut under Section 156(3) Cr.P.C.Therefore it is clear that suspension order has been passed after creating grounds by way of proceedings under section 156(3) Cr.P.C.
In view of the above facts the impugned suspension order dated 25.1.2018 passed by the respondent no.4 shall be kept in abeyance till the conclusion of the disciplinary inquiry against the petitioner.
The writ petition stands disposed of finally with the aforesaid direction.
Despite the order passed by this Court, petitioner was not allowed to function as Principal on the ground that disciplinary action has already been concluded and resolution of removal has been forwarded to the Board under Section 21 of the Act.
The second Writ Petition No. 9537 of 2018, therefore, came to be filed which was disposed of on 9.4.2018 by following orders:-
"Petitioner is the Principal of Janta Inter College, Kharkhauda, District Meerut. He was placed under suspension by the Committee of Management on 22.8.2017. The suspension order was not approved within 60 days, and consequently, the Committee of Management filed in Writ Petition No.55198 of 2017, which was disposed of on 21st November, 2017 directing the Inspector to pass appropriate orders. No orders, however, were passed by the Inspector in the matter. Since the Committee of Management was not permitting the petitioner to work even after expiry of 60 days, the petitioner approached this Court by way of Writ Petition No.5790 of 2018, which was disposed of finally on 28.2.2018 by passing following orders:-
"It is clear from the facts and documents on record that impugned order of suspension has not been passed on the basis of any subsequent event of misconduct after initiation of earlier proceedings by the Committee of Management. The inquiry is already under progress and has not been concluded despite the order of this Court dated 21.11.2017.
The suspension order is based only on the First Information Report lodged against the petitioner in pursuance of the order of the Chief Judicial Magistrate, Meerut under Section 156(3) Cr.P.C.Therefore it is clear that suspension order has been passed after creating grounds by way of proceedings under section 156(3) Cr.P.C.
In view of the above facts the impugned suspension order dated 25.1.2018 passed by the respondent no.4 shall be kept in abeyance till the conclusion of the disciplinary inquiry against the petitioner.
The writ petition stands disposed of finally with the aforesaid direction."
After the aforesaid order has been passed, the Committee of Management apparently has concluded the enquiry proceedings and the matter has been referred to Board for its approval under Section 21 of the Act of 1982. Admittedly the matter is pending before the Board. In between an order has been passed by the Committee of Management restraining the petitioner from exercising his administrative and financial powers. It is this order dated 8th March, 2018 by which the petitioner feels aggrieved and has approached this Court. Learned counsel submits that order of the Committee of Management is in teeth of the earlier order passed by this Court in Writ Petition No.5790 of 2018 and is otherwise not referable to exercise of any statutory provision whereunder such a power could be exercised.
Learned Standing Counsel has been heard on behalf of respondent nos.1, 2 and 3, whereas Sri A.K. Yadav appears for the respondent no.5.
Considering the nature of the order proposed to be passed today, notices need not be issued to respondent no. 4, and the writ petition is being disposed of, at this stage itself.
Considering the facts and circumstances, noticed above, this writ petition stands disposed of permitting the petitioner to approach respondent no.3, alongwith certified copy of this order. The concerned respondent shall ensure that petitioner is allowed to function in accordance with law, keeping in view the orders passed by this Court in Writ Petition No.5790 of 2018. Once the suspension order has been disapproved, the petitioner is entitled to continue. Unless the punishment order is approved by the Board in terms of Section 21, the respondents would not be justified in interfering with the working of petitioner. An appropriate decision shall be taken by the Inspector, after affording opportunity of hearing to respondent no.4, within a period of six weeks from the date of presentation of certified copy of this order. It would also be appropriate to observe that the Board shall proceed to accord consideration to the decision taken by the Committee of Management, in accordance with law".
Learned counsel for the petitioner submits that the District Inspector of Schools has virtually sat over the orders passed by this Court in the previous two writ petitions and has passed the order impugned approving the action of the committee of management in denying administrative and financial powers to the petitioner on the ground that the smooth functioning of the institution would be adversely affected. It would be relevant to note that the charge of financial impropriety originated from certain audit objection, which has already been removed. The subsequent selections are based upon an application moved under Section 156 (3) Cr. P. C. by a member of the general body which substantially refers to the allegations in respect of which an audit objection had already been raised. The allegations, otherwise, would prima-facie not be sufficient to dislodge administrative and financial power of the principal when there exists no such provision in the Act,permitting the committee of management to do so. The salary is being paid out of the State exchequer. The Committee of management of the institution seems to be content that salary is released to the Principal without asking him to perform work of Principal. The order of the District Inspector of Schools, therefore, prima-facie found to be unsustainable in law.
Notice on behalf of respondent nos. 1,2 and 4 is accepted by the learned Standing Counsel. Sri A.K. Yadav is present on behalf of respondent no. 6. Sri Vinod Kumar Singh has entered appearance on behalf of respondent No. 5 Issue notice to respondent no. 3. Steps by registered speed post be taken within a week. All the respondents may file counter affidavit within six weeks. Rejoinder affidavit may be filed within two weeks thereafter.
List thereafter.
Untill further orders of this Court, effect and operation of the impugned order dated 13.9.2018 passed by the District Inspector of Schools, Meerut shall be kept in abeyance. The petitioner shall be allowed to perform all functions that are required to be discharged by the Principal as he is being paid salary by the State exchequer for the post. No policy decision, however, would be taken by the petitioner and all financial transactions would be subject to audit at the end of the year and its report would be submitted to the District Inspector of Schools. The Board, in the meantime, shall also proceed to take a final decision upon the resolution of the Committee of Management of the institution under Section 21 of the Act. The continuance of the petitioner shall be subject to the final decision to be taken by the Board under Section 21 of the Act of 1982 upon the resolution of the Committee of the Management."
It is the also the case of the fifth respondent that despite the fact that vide order dated 31.10.2018 in proceedings in Writ-A No.22068 of 2018, the writ petitioner was forbidden to take any policy decision and only permitted to perform all the functions, which are to be discharged by the Principal, but certain acts and omissions were committed by the writ petitioner, which were detrimental to the interest of the institution in question, so the Committee of Management of the institution in question, fifth respondent thereafter proceeded to pass an order dated 13.03.2023 placing the writ petitioner under suspension. A charge sheet was also served upon the writ petitioner dated 27.03.2023 containing as many as 17 charges. The writ petitioner claims to have preferred Writ-A No. 8100 of 2023, Dr. Dinesh Kumar Sharma Vs. State of U.P. and others challenging the suspension, in which on 09.05.2023, the following order was passed:-
"Learned counsel for the petitioner states that although the order of suspension has been challenged in this petition, but the matter is pending before the District Inspector of Schools to take a call in the light of the provisions as contained under Section 16-G (7) of the Intermediate Education Act, 1921.
Shri Pankaj Rai, learned counsel appearing for the Committee of Management, submits that the petitioner can pursue the matter before the District Inspector of Schools and the writ, at this stage, is quite premature.
Learned Standing Counsel also submits that petitioner may approach the authority.
In my considered view, once the matter is pending before the District Inspector of Schools and the parties have already been heard in the matter, let the District Inspector of Schools pass appropriate order.
It will be open for either of the parties to challenge the order, if they are aggrieved.
With the aforesaid liberty, the petition is consigned to record, at this stage."
Now, according to the writ petitioner, by virtue of the order dated 12.05.2023 passed by the fourth respondent, District Inspector of Schools, Meerut, the order dated 13.03.2023 placing the writ petitioner under suspension has been approved.
Questioning the order dated 12.05.2023 passed by the fourth respondent, District Inspector of Schools, Meerut as well as the suspension order dated 13.03.2023 of the fifth respondent, Committee of Management, the writ petitioner preferred the present writ petition.
This Court entertained the writ petition on 11.07.2023 while seeking response from the respondents and thereafter now, counter affidavits have been filed by the learned Addl. Chief Standing Counsel who appears for Respondents 1 to 4 and Sri Pankaj Rai, who appears for Respondent no.5. Rejoinder affidavit has been filed by the writ petitioner to both the counter affidavits.
Learned counsels for the writ petitioner while assailing the order dated 12.05.2023 passed by the District Inspector of Schools, Meerut approving the suspension order dated 13.03.2023 have sought to argue that the very basis of passing of the suspension order itself is not only actuated by malafides, but also illegal as it tantamounts to victimizing the writ petitioner. He submits that earlier also, the writ petitioner was placed under suspension on 22.08.2017 and then this Court came to the rescue of the writ petitioner, then a novel method was adopted, pursuant whereto, the financial and administrative powers have been stripped off and when the said attempt was also not allowed to be succeeded at the end of the Committee of Management, then now, the impugned suspension order dated 13.03.2023 has been passed which has been approved by the District Inspector of Schools, Meerut on 12.05.2023. Additionally, it is being sought to be argued that the order approving the suspension, in fact, goes into the merits of the charges, which is thoroughly impermissible in a proceeding where the District Inspector of Schools, Meerut was enjoined to take a conscious decision with regard to either approve or disapprove the suspension order, thus he could not have touched the merits of the charges, which ultimately, is to be tested post-conduction of the disciplinary proceedings and passing of a punitive order, which would be put to scrutiny before the Board in terms of Section 21 of U.P. Act no.5 of 1982.
The submission is that the entire exercise so sought to be accorded is illegal. It has come on record in the counter affidavit with relation to the charge sheet issued earlier, the enquiry was conducted and the papers have been submitted way back in the year 2018 before the Board in terms of Section 21 of U.P. Act No. 5 of 1982, however, due to non-functioning of the Board, the matter is not being given a logical end.
Sri Pankaj Rai, learned counsel for the fifth respondent, Committee of Management on the other hand submits that with relation to the charge sheet issued earlier post-appointment of the enquiry officer, the enquiry proceedings have been concluded and there is already a resolution of the Committee of Management for dispensing of the services of the writ petitioner, however, due to non-functioning of the Board itself the matter is not being given a logical end. However, he submits that the suspension order dated 13.03.2023 has been issued in the background of the fresh events attributable to the conduct of the writ petitioner while functioning as the Principal of the institution in question, as he has committed misconducts (acts and omissions) unbecoming of the Principal of the institution in question, which warranted the issuance of the suspension order and also service of the charge sheet which contains grave and serious charges. He further submits that the protection accorded in the earlier spell of litigation at the instance of the writ petitioner is only confined to the events, which took place at that point of time and the said orders cannot be allowed to be extended in the facts of the present case, particularly, when the misconduct alleged is post-passing of the order. He however, in his usual fairness submits that though the District Inspector of Schools, Meerut could not have touched the merit of the charges, as reflected in the charge-sheet while approving or disapproving the suspension order, but according to him, the facts and circumstances occasioned doing the same. He further submits that in case, this Court is of the opinion that the order of the District Inspector of Schools, Meerut is suffering from the said shortcomings then the matter be remitted back to the District Inspector of Schools, Meerut to decide the matter afresh. However, in case, the writ petitioner is allowed to continue as the Principal of the institution in question, then it will tantamount to jeopardizing the entire image and the interest of the institution in question.
Sri P.K. Shahi, learned Addl. Chief Standing Counsel, who appears for Respondents 1 to 4 has adopts the submission of Sri Pankaj Rai, however, he submits that let a fresh exercise be undertaken by the District Inspector of Schools, Meerut.
I have heard learned counsel for the parties and perused the records carefully.
Undisputedly, the writ petitioner is a Principal of the institution in question. A charge sheet is already on record as Annexure-3 at Page-75 of the paper book containing as many as 18 charges. It is also not in dispute that the enquiry proceeding was initiated and the writ petitioner was also placed under suspension on 22.08.2017. The order approving the suspension order was ultimately set aside and the petitioner was reinstated in services. However, in the meantime, post-occasioning of certain audit objections coupled with the lodging of the FIR against the writ petitioner, the writ petitioner was placed under suspension on 25.01.2018, which led to filing of the writ petition by the writ petitioner and the same was also set aside. However, since according to the Committee of Management of the institution in question, the writ petitioner was committing acts and omissions unbecoming of the Principal of the institution in question in perpetuity so initially on 08.03.2019, the financial and the administrative powers of the petitioner was stripped off, which occasioned the writ petitioner to prefer a writ petition, wherein the writ petitioner on 09.04.2018 in Writ-A No.9537 of 2018 was allowed to function as a Principal in question and thereafter on 13.09.2018 again the said order was reiterated in which on 31.10.2018, this Court in Writ-A No.22068 of 2018, only permitted the writ petitioner to perform normal functions and not to take any policy decisions in that regard. However, in the wake of allegations forthcoming the writ petitioner was placed under suspension on 13.03.2023, approval whereof has been granted by the order impugned. Since the order passed by the District Inspector of Schools, Meerut, fourth respondent, adverts to merit of the charges which is not permissible in view of the law laid down in Tej Narain Singh Vs. State of U.P. and others reported in 2008(7) ADJ 108 (DB), the order cannot be sustained in the eyes of law. In view of the specific directions contained in the order dated 31.10.2018, Writ-A No.22068 of 2018, Dr. Dinesh Kumar Sharma vs. State of U.P. and others, the writ petitioner was directed to perform only functions, which are required to be discharged by the Principal, and be paid salary through the State Exchequer and no policy decision decision would be taken and all financial transactions would be subject to Audit at the end of year. At this juncture, Sri Kamal Kumar Kesherwani along with Sri Vimal Chandra Mishra appearing for the writ petitioner has made a statement at Bar that let an exercise be undertaken by the District Inspector of Schools, Meerut, fourth respondent, to decide the issue afresh and till the disposal of the issue with regard to approval/ disapproval of the suspension of the writ petitioner, the writ petitioner would not perform the duties of the Principal of the institution in question, but be allowed to enjoy the status and the benefits attached thereto. Thus in peculiar facts and circumstances of the case and bearing in mind the issue in question coupled with the order dated 31.10.2018 passed in Writ-A No.22068 of 2018, Dr. Dinesh Kumar Sharma Vs. State of U.P. and others as well as the proposals sent by the Committee of Management of the institution seeking approval from the Board under Section 21 of the U.P. Act No. 25 of 1982 for dispensation of the services of the writ petitioner, the writ petitioner is being decided on the following terms:-
(a) The order dated 12.5.2023 passed by the fourth respondent, District Inspector of Schools, Meerut is set aside;
(b) The matter stands remitted back to the fourth respondent, District Inspector of Schools, Meerut to decide the issue with regard to the proposal of the fifth respondent, Committee of Management for placing the writ petitioner under suspension afresh;
(c) The parties shall appear before the fourth respondent, District Inspector of Schools, Meerut on 30.08.2023, on which date the parties shall exchange their versions, if they seek to do so.
(d) Thereafter the matter will be placed on 06.09.2023 for hearing.
(e) The orders be passed by 15.09.2023 by the District Inspector of Schools, Meerut, the fourth respondent.
(f) Since a statement has been made by the learned counsel for the writ petitioners that till the passing of the fresh orders in relation to the proposal of suspension of the writ petitioner on the post of Principal, the writ petitioner though will enjoy the status of the Principal, but he would not perform any official work in that regard.
The fourth respondent, District Inspector of Schools, Meerut shall endeavour to pass an order strictly in accordance with law within the time stipulated hereinabove.
In view of the argument raised by the parties and the stand taken by them, the writ petition stands disposed off.
Order Date :- 23.8.2023 N.S.Rathour