High Court
Case Details
Neutral Citation No. - 2023:AHC:146564 Court No. - 35 Case :- WRIT - A No. - 6040 of 2023 Petitioner :- Committee Of Management C.L.M. Inter College Jani And Another Respondent :- District Inspector Of School And 2 Others Counsel for Petitioner :- Indra Raj Singh,Adarsh Singh Counsel for Respondent :- C.S.C.,Archana Jha,Krishna Mohan Singh,Pragati,Shaili Ganguly Connected With Case :- WRIT - A No. - 11214 of 2023 Petitioner :- Ashok Kumar Tyagi Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Krishna Mohan Singh Counsel for Respondent :- C.S.C.,Indra Raj Singh Hon'ble Vikas Budhwar,J. Heard Sri Indra Raj Singh, learned counsel for the writ petitioner in leading writ petition bearing Writ - A No. 6040 of 2023 and as learned counsel for the respondent no.3 in Writ A No. 11214 of 2023, the connected writ petition, Sri Shailendra Singh, learned Standing Counsel for respondent no. 1 and 2 in leading as well as in the connected writ petition and Sri Krishna Mohan Singh, learned counsel appearing for the third respondent in the leading writ petition and as learned counsel for the petitioner in the connected writ petition. With the consent of the parties, the writ petition is being decided at this stage without seeking further response from the parties, as the counsel for the parties have agreed that they do not propose to file any further affidavit in the writ petitions. The case of the writ petitioners are that there is an Intermediate College known as C.L.M. Inter College, Jani, Meerut, which is duly recognised under the U.P. Intermediate Education Act, 1921 and is governed under the provisions of the U.P. Act No. 24 of 1971, U.P. Act No. 5 of 1982 and the Rules framed thereunder. Petitioner no.1 claims to be a valid Committee of Management and petitioner no. 2 claims to be the duly elected Manager of the institution. It is the further case of the writ petitioners in the leading writ petition that the third respondent, Ashok Kumar Tyagi, son of Sri Prakash Tyagi, who was holding the post of an officiating Principal of the institution since 14.09.2018 committed certain misconduct, which was unbecoming of an officiating Principal of the institution in question. Thus, pursuant to the resolution of the Committee of Management of the institution in question, dated 20.01.2023, the third respondent was placed under suspension pending inquiry. It is further the case of the writ petitioner in the leading writ petition, the papers pertaining to grant of approval of the
Legal Reasoning
suspension of the third respondent was transmitted to the first respondent, District Inspector of Schools, Meerut on 31.01.2023.
Decision
It is further the case of the writ petitioners that on 29.01.2023, the third respondent was served with a charge sheet enabling him to submit his reply to the charge sheet. As per the pleadings set-forth in the writ petition, the third respondent in the leading writ petition submitted an incomplete reply to the charge sheet on 21.02.2023. The third respondent further submitted an application dated 06.03.2023 before the first respondent, District Inspector of Schools, Meerut with regard to revocation of the suspension order dated 20.01.2023, on which the first respondent, District Inspector of Schools, Meerut issued notices dated 13.03.2023 followed on 15.03.2023 for conduction of hearing on 17.03.2023. As per the writ petitioners, they submitted their written objection on 17.03.2023 and prayed for according approval to the suspension order dated 20.01.2023. In paragraph no.9 of the writ petition, it is further asserted that the inquiry committee so constituted post charge sheet tendered his inquiry report on 17.03.2023 before the Disciplinary Authorities holding the third respondent to be guilty with respect to the charges. However, on 18.03.2023 the first respondent, District Inspector of Schools, Meerut proceeded to pass an order, whereby it disapproved the suspension of the third respondent dated 20.01.2023. Challenging the order dated 18.03.2023, passed by the first respondent, District Inspector of Schools, Meerut disapproving the suspension of the third respondent, the writ petitioners (Committee of Management and its Manager) preferred the leading writ petition. This Court on 05.04.2023 while entertaining the leading writ petition passed the following orders :- "Respondents are allowed four weeks' time to file counter affidavit. Rejoinder affidavit, if any, may be filed within two weeks' thereafter. List this case on 17.05.2023. Pendency of this petition will not come in the way of conducting disciplinary proceeding and bringing the same to its logical end and respondent no. 2 is directed to cooperate in disciplinary proceedings." Since, the writ petitioner in the leading writ petition was not accorded interim protection by this Court, so the third respondent in the leading writ petition, Sri Ashok Kumar Tyagi, son of Sri Prakash Tyagi preferred Writ A No. 11214 of 2013, while impleading the Committee of Management as a respondent claiming relief for according permission to function and discharge his duties as officiating Principal and to accord salary. In the connected writ petition, an order has been appended as Annexure No. 9 at Page No. 47 of the paper book, reference whereof has been made in Paragraph No. 18 of the connected writ petition depicting that on 18.04.2023, the Committee of Management of the institution in question passed a resolution terminating the services of Sri Ashok Kumar Tyagi and thereafter papers were forwarded to the District Inspector of Schools, Meerut for being forwarded to the U.P. Secondary Education Service Selection Board. However, the District Inspector of Schools, Meerut on 31.05.2023 declined to forward the papers submitted by the Committee of Management on the ground that it had already disapproved the suspension order dated 18.03.2023, thus there was no justification to forward the papers. A writ petition was filed by the Committee of Management challenging the order dated 31.05.2023 in Writ - A No. 10207 of 2023, which came to be allowed on 15.06.2023 setting aside the order dated 31.05.2023 with a direction that the District Inspector of Schools, Meerut shall forward papers to the U.P. Secondary Education Service Selection Board for the purposes of taking decision on the question of approval with regard to the resolution dated 18.04.2023, terminating the services of Sri Ashok Kumar Tyagi. The same is quoted herein under :- 1. Heard Sri Indra Raj Singh, learned counsel for the petitioner, learned Standing Counsel for the State- respondents, Sri K.K. Chand, learned counsel for the respondent no.2 and Sri Krishna Mohan Singh, learned counsel for the respondent no.4. 2. The respondent no.4 was working as an Officiating Principal in C.L.M. Inter College, Jani, Meerut. He was suspended on 20.01.2023 in contemplation of an inquiry. Then papers for approval of suspension were forwarded by the Committee of Management to the District Inspector of Schools, who passed an order dated 18.03.2023 disapproving the suspension order with a further direction that the respondent no.4 shall cooperate in the inquiry proceedings and that the Committee of Management is free to hold inquiry. 3. It is contended that after holding due inquiry, the Committee has passed a Resolution dated 18.04.2023 terminating the services of the respondent no.4 and thereafter forwarded the papers to the District Inspector of Schools, Meerut for further forwarding to the U.P. Secondary Education Services Selection Board. 4. This writ petition is directed against the order dated 31.05.2023 whereby the District Inspector of Schools, Meerut has declined to forward the papers submitted by the Committee of Management on the ground that he has already disapproved the suspension order on 18.03.2023 and, therefore, there is no justification for forwarding the papers to the Board. 5. The learned counsel for the petitioner has placed reliance upon Section 21 of U.P. Secondary Education Services Selection Board Act, 1982 which clearly provides that management shall not dismiss any teacher or remove him from service except with prior approval of the Board. Further reliance has been placed on Regulation 6 of U.P. Secondary Education Services & Commission (Procedure for Approval of Punishment) Regulations, 1985, which reads as follows:- "6. Inspector to forward the papers. - The Inspector shall ensure that the documents are complete as required in Regulation 5 and shall forward the same ordinarily within 30 days from the date of receipt of the papers in the first instance from the management. He may point out the defects, if any, in the proceedings of the Management." 6. Therefore, the submission is that the District Inspector of Schools is under statutory obligation to forward the documents to the Board within 30 days from the date of receipt of papers from the Management. 7. Learned Standing Counsel as well as learned counsel for the respondent no.4 have vehemently argued that the action of the Committee of Management in suspending the respondent no.4 has been found to be malicious and invalid and, therefore, it was revoked by the District Inspector of Schools. It is further submitted that despite revocation of the suspension order, the respondent no.4 is not being permitted to perform his duties in the institution. It has further been contended that once the status of respondent no.4 is that of an Officiating Principal not under suspension, there is no justification to forward the papers to the Board as termination is always dependent upon suspension which has already been revoked. 8. Having heard the learned counsel for the parties, I find that suspension and termination are two different things and even if the suspension was revoked on 18.03.2023, the District Inspector of Schools himself had permitted for holding of inquiry by the Committee of Management. 9. Neither Act nor the Rules or Regulations contain any restriction on forwarding papers either by the Committee of Management to the District Inspector of Schools or by the District Inspector of Schools to the Board, rather there is a clear mandate in the aforesaid provisions of law under which District Inspector of Schools is bound to forward the papers to the Board. 10. In view of the above, I find that the order impugned dated 31.05.2023 is not sustainable and is liable to be quashed. 11. The writ petition is allowed. The order impugned dated 31.05.2023 is hereby quashed. 12. A writ of mandamus is issued to the District Inspector of Schools to forward the papers submitted by the Committee of Management to the U.P. Secondary Education Services Selection Board within a period of two weeks from the date a certified copy of this order is produced before the District Inspector of Schools. 13. It is open for the respondent no.4 to make his submission regarding inquiry proceedings etc. before the Board when the matter reaches to the Board for approval purpose. 14. It is also open for the respondent no.4 to agitate any other grievance before appropriate forum." Both the aforesaid writ petitions have been consolidated together and have been heard and are being decided by a common order. Sri Indra Raj Singh, learned counsel for the writ petitioners has sought to argue that the order dated 18.03.2023, passed by the District Inspector of Schools, Meerut proceeds on misconception of facts and law, though the photocopy of the said order runs to six and a half pages but in the discussion part, paragraph no.6 a finding has been recorded by the District Inspector of Schools, Meerut that Sri Ashok Kumar Tyagi has been suspended, while discharging the duties as the officiating Principal and the inquiry proceedings are underway, however, he had not given his complete reply and had not participated in the inquiry which he ought to have done as per the Rules and he has also not cooperated with inquiry, since the Committee of Management in question has not taken final decision, thus the suspension order cannot be approved. Sri Indra Raj Singh, thus submits that the said reasons are not valid reasons, so as to disapprove the suspension order, particularly when as per the own showing as depicted in the order in question, it is the fault of the delinquent, namely, Sri Ashok Kumar Tyagi in not participating in the inquiry and for that purpose, the writ petitioners Committee of Management cannot be said to be at fault. He further submits that what was to be seen by the District Inspector of Schools, Meerut is the fact as to whether the act of the Committee of Management to place the delinquent under suspension was valid or not in the background of the seriousness of the charges and the further fact that it is not a case of victimisation of the delinquent at the ends of the Committee of Management. Submission is thus, that the District Inspector of Schools, Meerut has borrowed something which is foreign to service jurisprudence and the said reason cannot be said to be a valid reason in the eyes of law, as the said order though shown to be a lengthy even in fact shows total non application of mind and non observance of the parameters of law as envisaged under the statute itself. Sri K.M. Singh, who appears for the officiating Principal (Ashok Kumar Tyagi) on the other hand submits that might be the order dated 18.03.2023 is not happily worded but it shows that the delinquent has been targeted and he has been victimised. He further submits that now it is not a case, wherein the matter should be remanded back, as on 18.04.2023, the Committee of Management has resolved to terminate the services of the writ petitioner and the papers were not being forwarded by the District Inspector of Schools, Meerut, then the writ petitioner in the leading writ petition has challenged the order dated 31.05.2023 and consequent to the allowing of the writ petition bearing Writ A No. 10207 of 2023 on 15.06.2023, now, the matter itself is pending under Section 21 of the Act, 1982 before the Board, U.P. Secondary Education Services Selection Board and due to non presence of the members of the Board, his case is being lingered on and he is being made to scapegoat without any fault. According to Sri K.M. Singh, learned counsel for Sri Ashok Kumar Tyagi, the writ petitioner be reinstated in service and the same should be subject to the final orders to be passed under Section 21 of Act 1982. In this regard, he seeks to rely upon the judgment in the case of Committee of Management, Vidya Bhawan Inter College, Kanpur Nagar and Another vs. State of U.P. reported in 2006 (4) ESC 2895 (All) and case of Committe of Management, Sri Nehru Inter College, Auraiya vs State of U.P. reported in 2007 (3) ESC 2048. Sri Indra Raj Singh, who appears for the writ petitioners, Committee of Management on the other hand submits that might be the Board is not functioning, the same cannot be a ground to reinstate the delinquent, particularly when the matter is with the Board itself and due to non functioning of the same, the delinquent cannot be granted any benefit, which even otherwise is not liable to be extended in view of the resolution of the Committee of Management. Sri Indra Raj Singh, learned counsel for the writ petitioners has relied upon the order of this Court dated 26.04.2023, passed in Special Appeal No. 248 of 2023 (Committee of Management, Sanatan Dharm Inter College vs. Manoj Kumar Sindhu and Others. Sri Shailendra Singh, learned Standing Counsel, who appears for the official respondents in both the writ petitions, on the other hand submits that according to the instructions received by him, the Members of the Board are not available but as soon as they are available, suitable decision will be taken in that regard, as per the statutory mandate contained under - Section 21 of the Act, 1982. I have heard the learned counsel for the parties and perused the record carefully. Undisputedly, the writ petitioner in the connected writ petition, namely Ashok Kumar Tyagi was an officiating Principal, who was placed under suspension on 20.01.2023. On 28.01.2023, charge sheet was issued to him containing as many as four charges, which also included the charges of financial misappropriation. Sri Ashok Kumar Tyagi tendered his reply to the charge sheet and thereafter an inquiry committee was constituted and in the meantime by virtue of the order dated 18.03.2023, the suspension was disapproved by the District Inspector of Schools, Meerut. It is also come on record that pursuant to the completion of the disciplinary proceedings, a resolution was passed by the Committee of Management on 18.04.2023 terminating the services of the writ petitioner. Parties are also in agreement that the District Inspector of Schools, Meerut did not forward the papers submitted by the Committee of Management to the Commission and passed an order dated 31.05.2023, declining to forward the paper to the U.P. Secondary Education Services Selection Board. The said order was challenged by the Committee of Management in Writ A No. 10207 of 2023, which was allowed on 15.06.2023 requiring the District Inspector of Schools, Meerut to forward the papers submitted by the Committee of Management, with regard to the resolution dated 18.04.2023, terminating the services of Sri Ashok Kumar Tyagi to the Commission within two weeks. It is also not being disputed before this Court that the U.P. Secondary Education Services Selection Board is not functioning on account of non availability of members. Now, a question arises what would be the status of the writ petitioner in the connected writ petition, Sri Ashok Kumar Tyagi. Whether he would enjoy the benefits of an officiating Principal without there being any disqualification of being suspended or dismissed from the services. As per the pleadings set forth in both the petitions, it is evident that the suspension order dated 20.01.2023 has been disapproved by the District Inspector of Schools, Meerut on 18.03.2023, which is impugned in the leading writ petition. Further, the chain of events did not stop here, but the Committee of Management of the institution in question happens to proceed further while passing a resolution for termination of the services of Sri Ashok Kumar Tyagi on 18.04.2023 after concluding the inquiry proceedings. Even, further the matter is before the U.P. Secondary Education Services Selection Board to take decision for approval or disapproval with regard to the termination of the services of Sri Ashok Kumar Tyagi. Before delving further into the said issue, it would be apposite to quote Section 16-G of the U.P. Intermediate Education Act, 1921:- "(1) Every person employed in a recognized institution shall be governed by such conditions of service as may be prescribed by regulations and any agreement between the management and such employee insofar as it is inconsistent with the provisions of this Act or with the regulations shall be void. (2)…………………………………………………………………………………………. (3)………………………………………………………………………………………… (4) ………………………………………………………………………………………. (5) No Head of Institution or teacher shall be suspended by the management, unless in the opinion of the management-- (a) the charges against him are serious enough to merit his dismissal, removal or reduction in rank; or (b) his continuance in office is likely to hamper or prejudice the conduct of disciplinary proceedings against him; or (c) any criminal case for an offence involving moral turpitude against him is under investigation, inquiry or trial. (6) Where any Head of Institution or teacher is suspended by the Committee of Management, it shall be reported to the Inspector within thirty days from the date of the commencement of the Uttar Pradesh Secondary Education Laws (Amendment) Act, 1975, in case the order of suspension was passed before such commencement, and within seven days from the date of the order of suspension in any other case, and the report shall contain such particulars as may be prescribed and be accompanied by all relevant documents. (7) No such order of suspension shall, unless approved in writing by the Inspector, remain in force for more than sixty days from the date of commencement of the Uttar Pradesh Secondary Education Laws (Amendment) Act, 1975, or as the case may be, from the date of such order, and the order of the Inspector shall be final and shall not be questioned in any Court." Section 21 of the U.P. Intermediate Education Act, 1921 reads as follows :- "21. Restriction on dismissal etc. of teachers. - The Management shall not, except with the prior approval of the] [Board] dismiss any teacher or remove him from service or serve on him any notice of removal from service, or reduce him in rank or reduce his emoluments or withhold his increment for any period (whether temporarily or permanently) and any such thing done without prior approval shall be void." The order impugned in the leading writ petition while disapproving the suspension of Sri Ashok Kumar Tyagi on the ground that the inquiry against him is going on, Sri Ashok Kumar Tyagi has not submitted his reply / response before the inquiry committee and he is also not participating in the inquiry proceedings. However, since no final decision has been taken by the Committee of Management, thus the suspension order needs to be disapproved. The aforesaid finding recorded by the District Inspector of Schools, Meerut while disapproving the suspension of Sri Ashok Kumar Tyagi is patently mis-conceived besides out of context and cannot be said to be a valid reason to disapprove the suspension. As a matter of fact, what was required to be done at the instance of the District Inspector of Schools, Meerut was to prima facie form an opinion about the gravity of the charges, which were reflected in the charge sheet, so as to arrive at a conclusion as to whether the delinquent was entitled to be reinstated or not. The District Inspector of Schools, Meerut was further enjoined under law to accord prima facie satisfaction to the core in fundamental issue that the delinquent is not occasioning any victimisation or harassment that too intentionally by the Committee of Management of the institution in question. The District Inspector of Schools, Meerut in its order, which is under challenge, has recorded a finding that Sri Ashok Kumar Tyagi was not participating in the inquiry proceedings and he had not submitted his version before the inquiry committee. However, since the inquiry was not completed, thus Sri Ashok Kumar Tyagi was entitled to be reinstated and the suspension order was disapproved in this regard. The finding recorded by the District Inspector of Schools, Meerut is totally irrelevant besides being totally non existent insofar as it pertains to a task, which is to be undertaken by the District Inspector of Schools, Meerut, while taking a decision with regard to approving or disapproving the suspension order. Notably, the delinquent cannot gain a premium on his own fault, lethargy and apathy so as to put the Committee of Management under disadvantage once no reasons are forthcoming in the order that there was any fault of Committee of Management or the inquiry committee. In that regard, another facet, which needs to be considered at this stage is the fact that once a resolution has been passed by the Committee of Management resolving to terminate the services of the delinquent and the matter is pending before the U.P. Secondary Education Service Selection Board for approving the same, then what would be the status of the delinquent in that regard. Section 21 of the U.P. State Intermediate Education Act, 1982 itself provides that the management shall not except with the prior approval of the Board dismiss any teacher or remove him from service or serve on him any notice of removal from service or reduce him in rank or reduce his emoluments or withhold the increments for any period (whether temporarily or permanently) and the same cannot be done without prior approval and any such thing done without such prior approval shall be void. Thus, the legislature while engrafting Section 21 of the Act, 1982 had taken a special care that before passing any punitive order, approval is mandatory and in case approval is not being taken, then the said punitive order will be void. In the wake of the provisions contained under Section – 21 of the 1982, Act, the resolution of the Committee of Management dated 18.04.2023 resolving to terminate the services of Sri Ashok Kumar Tyagi is simply a proposal and until and unless approval is granted it has no detrimental value against the delinquent. Meaning thereby that the relationship of the delinquent, namely, Sri Ashok Kumar Tyagi with the Committee of Management of the institution in question subsists and he cannot be said to be inflicted with any punishment order, so as to discard him from service. Once, Section - 21 of the 1982, Act comes to the rescue of Sri Ashok Kumar Tyagi, then he would be deemed to be in service, however what would be his status, whether he would be treated to be a suspended teacher or not, would depend upon the fate of the order dated 18.03.2023, whereby the District Inspector of Schools, Meerut has disapproved the suspension order. Since, the order dated 18.03.2023, passed by the District Inspector of Schools, Meerut does not deal with the necessary ingredients, which are required to be considered as to whether the delinquent is to remain under suspension or not in the wake of the fact that a finding has been recorded that the delinquent did not participate in the proceeding and he did not submit his reply before the inquiry committee, thus in the opinion of the Court, the order of the District Inspector of Schools, Meerut, dated 18.03.2023 needs to be set aside, while remitting the matter back to it to pass a fresh order strictly in accordance with law after forming an opinion as to whether in the present facts of the case, suspension order needs to be approved or disapproved. Accordingly, the order dated 18.03.2023 is set aside. The matter is remitted back to the District Inspector of Schools, Meerut to decide afresh after hearing the Committee of Management and Sri Ashok Kumar Tyagi. The said exercise is to be undertaken within a period of two months from the date of the production of certified copy of the order. Since, the order of the District Inspector of Schools, Meerut disapproving the suspension of Sri Ashok Kumar Tyagi, son of Prakash Tyagi has been set aside and the matter has been remitted back to the District Inspector of Schools, Meerut to decide afresh, thus the relief sought in the connected Writ Petition No. 11214 of 2023 (Ashok Kumar Tyagi vs. State of U.P. and 2 Others) to permit him to function and discharge the duty of officiating Principal in the institution in question and to pay current salary cannot be granted at this stage, however the relief so claimed by the writ petitioner would be subject to the final orders to be passed by the District Inspector of Schools, Meerut. With the aforesaid observation, both the writ petitions stands disposed of. Order Date :- 19.7.2023 S Rawat Digitally signed by :- SHOBHIT RAWAT High Court of Judicature at Allahabad