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C/M NEHRU INTER COLLEGE THRU' MANAGER RADHA KRISHNA CHATURVE versus STATE OF U.P. THRU' SECRETARY, (SECONDARY EDU.) AND OTHERS

High Court of Judicature at Allahabad

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C/M Nehru Inter College Thru' Manager Radha Krishna Chaturve v. State Of U.P. Thru' Secretary, (Secondary Edu.) And Others - WRIT - A No. 30034 of 2006 [2007] RD-AH 6679 (12 April 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved on  04.04.2007

Delivered on 12.04.2007

Civil Misc. Writ Petition No. 30034 of 2006

Committee of Management

Sri Nehru Inter College, Auraiya  

Versus

State of U.P. and others

&

Civil Misc. Writ Petition No. 63241 of 2006

(Converted as Application No. 245428 of 2006)

Sri Avadh Narain Tripathi  

Versus

State of U.P. and others

&

Civil Misc. Writ Petition No. 5575 of 2007

Committee of Management

Sri Nehru Inter College, Auraiya  

Versus

State of U.P. and others

Hon'ble V.K.Shukla,J.

In the district of Auriaya there is recognized educational institution as per the provision as contained in U.P. Act No. II of 1921. In the said institution Avadh Narain Tripathi has been performing and discharging duties as Officiating Principal. On 16.11.2003 he has been sought to be placed under suspension by the Managing Committee of the institution for dereliction of the duties, financial irregularities and indiscipline etc. Sub-Committee was constituted which issued charge sheet on 14.12.2003. District Inspector of Schools on 01.01.2004 disapproved the suspension order on the ground that disciplinary proceedings it has already been held in the past and there is already proposal of dismissal pending before U.P. Secondary Education Services Selection Board, for approval. Said order dated 01.01.2004 was subject matter of challenge in Civil Misc. Writ Petition No. 2228 of 2004. Said order was set aside by this Court on 22.01.2004, and District Inspector of Schools was directed to take fresh decision. It has been contended and stated that Sub-Committee constituted for holding the inquiry submitted its report on 02.04.2004 and thereafter vide resolution dated 09.05.2004 Managing Committee resolved to dismiss service of Officiating Principal and papers relating to the same was sent to the District Inspector of Schools on 10.05.2004 for being sent to U.P. Secondary Education Services Selection Board. District Inspector of Schools did not forward the papers to the U.P. Secondary Education Services Selection Board then complaint was made, by Managing Committee thereafter U.P. Secondary Education Services Selection Board on 09.06.2004 asked the District Inspector of Schools to send the papers but in stead of sending the papers, District Inspector of Schools  passed order disapproving the suspension order of Officiating Principal. At this juncture Civil Misc. Writ Petition No. 23413 of 2004 had been filed before this Court which was allowed on 08.12.2005 and the District Inspector of Schools was directed to reconsider the matter afresh in the light of the directives issued by this Court. Thereafter District Inspector of Schools disapproved the suspension on 29.04.2006. Against the said disapproval order Civil Misc. Writ Petition No. 30034 of 2006 had been filed wherein this Court on 26.05.2006 passed following order which is being quoted below:

The impleadment application is allowed. Necessary correction shall be made by the petitioner during the course of the day.

Sri Yogish Kumar Saxena appears for respondent no. 3 and has filed a short counter affidavit. He may file a detail counter within three weeks. Sri A.K. Yadav, the learned counsel for the newly impleaded respondent no. 4 is allowed three weeks' time to file counter affidavit. The learned counsel for the respondent nos. 1 and 2 may file counter affidavit within four weeks. List on 10.07.2006. In the meantime the Selection Board is directed to take a final decision in the matter and decide the controversy one way or the other.

Till the next date of listing operation of the impugned order dated 29.04.2006 passed by District Inspector of Schools (Annexure 8 to the writ petition) shall remain stayed.

The suspension order was passed on 1.12.2003. Inquiry proceedings were initiated and the same was completed and the papers were forwarded by the District Inspector of Schools of the Selection Board on 22.12.2005. The suspension order has been revoked by the District Inspector of Schools by the impugned order on the ground that certain papers had not been forwarded to the selection Board. In the opinion of the Court, primafacie, when the disciplinary proceedings were completed there was no question of revocation of the suspension order or disapproving the suspension order, as alleged, by the learned counsel for the respondent no. 4."

Pursuant to the interim order passed by this Court proceedings were to be undertaken before U.P. Secondary Education Services Selection Board and in fact proceedings had been commenced as dates were fixed for 12.10.2006 18.12.2006 and 12.01.2007 respectively. In the meantime managerial dispute was decided by this Court in Civil Misc. Writ Petition No.69344 of 2006 wherein this Court on 04.01.2007 passed following order which is being quoted below:

1.The order dated 7.12.2006 passed by the Joint Director of Education is set aside.

2.The alleged elections of the Committee of Management;  one said to have been held on 3.12.2006 by the petitioner and the other said to have been held on 27.12.2006 by Respondent no.4, are both set aside.

3.The District Inspector of Schools shall appoint an Authorized Controller to manage the affairs of the institution within two weeks from the date of filing of a certified copy of this order before him.

4.The Authorized Controller so appointed shall thereafter finalize the list of members of the general body within six weeks thereafter, after deciding the objections of the parties concerned and shall then hold the elections of the Committee of Management in terms of the Scheme of Administration of the institution within two months of the finalization of list of members of the general body, and forward the papers relating to the said election to the District Inspector of Schools within a week thereafter.

5.The District Inspector of Schools shall in turn forward the papers to the Joint Director of Education for appropriate decision of the Regional Committee in terms of the Government Order dated 19.12.2000.

6.The Regional Committee shall pass reasoned order in accordance with law, within six weeks and the charge of the institution shall then be handed over to the recognized Committee of Management and consequently, the appointment of the Authorized Controller shall come to an end."

Against the said order Special Appeal has been filed but no interim order has been passed. Committee of Management of the institution concealed this fact  that there is earlier directives of this Court to U.P. Secondary Education Services Selection Board for concluding the proceedings preferred Civil Misc. Writ Petition no. 5575 of 2007 wherein this Court passed following order on 02.02.2007 which is being quoted below:

"Standing counsel accepts notice on behalf of respondent no. 1.

Issue notice to respondent no. 2 fixing 9th March, 2007 as the date for appearance. Petitioner to take steps within one weeks from today. All the respondents may file counter affidavit by the next date fixed.

List on the date fixed.

It is contended that respondent no. 2 was employed as Officiating Principal of Nehru Inter College, Auraiya. He was subjected to disciplinary proceedings on various charges by the Committee of Management. After completion of the departmental enquiry, as resolution was passed proposing major penalty against respondent no. 2. In accordance with Section 21 of the U.P. Secondary Education Services Selection Board Act, 1982, the papers were transmitted to the U.P. Secondary Education Services Selection Board for necessary prior approval. Such action was taken against respondent no. 2 by the Committee of Management of which Sri Radha Krishna Chaturvedi was the Manager. The matter is pending before the U.P. Secondary Education Services Selection Board.

In the meantime a dispute dispute between two rival claimants of the Committee of Management arose which resulted in Writ Petition No. 69344 of 2006 being filed before this Court. On 04.02.2007 the Hon'ble Court has directed the Regional Level committee to pass a fresh order within six weeks from the date of certified copy of this order is filed before it and to handover charge, to the committee, which may be so recognized in terms of the order to be passed by the Regional Level Committee.

Counsel for the petitioner submits that in absence of a Committee of Management being recognized, no body is authorized to represent the same and therefore, the U.P. Secondary Education Services Selection Board must await the decision of the Regional Level Committee as directed by this Court under the order dated 04.01.2007, referred to above.

Petitioner has made out a prima facie case for grant of interim order.

Till the next date of listing U.P. Secondary Education Services Selection Board shall not pass any final order on the papers submitted by the Committee of Management qua the proposed punishment."      

In both the aforesaid two writ petitions counter affidavit has been filed on behalf of Officiating Principal of the institution contending therein that entire charges are bogus, false and fabricated and further last undisputed election has been held in December, 1997 and thereafter no election of the Committee of Management has been found to be valid by the competent educational authority and in the year 2000 Authorized Controller had been appointed to manage the affairs of the institution and thereafter as tenure of Authorised Controller has been extended without opportunity of hearing then Civil Misc. Writ Petition No. 3842 of 2003, had been filed where interim order was passed and on the strength of the same petitioner continued as Manager. Claim of election held in the year 2000 has never been adjudicated. In this background it has been contended that entire proceedings are of no consequence. Rejoinder affidavit has also been filed disputing the averments in counter affidavit. Supplementary affidavit has also been filed. Civil Misc. Writ Petition No. 63241 of 2006 had been filed by the petitioner claiming salary. This Court on 22.11.2006 mentioned that said petitioner be treated as an application in the pending writ petition. Consequently all these matter have been clubbed together and are being taken up together, with the consent of the parties.

Sri A.K. Singh learned counsel for the petitioner contended with vehemence that order passed District Inspector of Schools revoking the order of suspension is unjustifiable order and as such said order is liable to be quashed.

Sri Y.K. Saxena, Advocate on the other hand contended that said suspension order has not been approved as such petitioner is entitled for full salary and as there was delay in sending papers rightly suspension order has been revoked as such writ petition  filed by the petitioner's Committee of Management is liable to be dismissed.

After respective arguments have been advanced factual position which is emerging is to the effect that Avadh Narain Tripathi was sought to be placed under suspension. Said suspension till date has not been approved and on two occasions the District Inspector of Schools has proceeded to pass order. On 01.01.2004 the District Inspector of Schools has disapproved the said resolution which was set aside by this Court in Civil Misc. Writ Petition No. 2228 of 2004 and the matter was directed to be decided afresh. District Inspector of Schools again on 17.06.2004 disapproved the suspension and said order was again subject matter of challenge in Civil Misc. Writ Petition No. 23413 of 2004, which was allowed on 08.12.2005 and again District Inspector of Schools was directed to reconsider the matter and thereafter fresh order has been passed on 29.04.2006. Order in question reflects that Committee of Management of the institution has passed resolution on 09.05.2004 of dismissal and submitted papers on 10.05.2004 and thereafter on 22.12.2005 the papers have been transmitted to U.P. Secondary Education Services Selection Board alongwith the records forwarded, service record and character roll was not there, in this regards District Inspector of Schools had been writing letter, and said letters had been replied by Manager on 13.09.2004 by contending that said records are with Awadh Narain Tripathi, and permission be accorded for lodging F.I.R. Letter to the similar effect has been written again on 12.12.2005. Contention of petitioner has been right from beginning that service record and character roll was in possession of Officiating Principal. District Inspector of Schools has not at all adverted himself on this aspect of the matter. However on subsequent occasion duplicate service book has been supplied by the Officiating Principal himself to District Inspector of Schools  as it is evident from the letter sent by the Officiating Principal of the Institution himself on 20.06.2006 and referred to in the order of District Inspector of Schools dated 22.06.2006. Contention of the petitioner is that said two papers were in possession of Officiating Principal as such petitioners could not have been held for causing delay whatsoever in the matter. No objective consideration has been done by District Inspector of Schools and in mechanical manner the District Inspector of Schools has disapproved the suspension which is unsustainable as such order dated 29.04.2006 passed by District Inspector of Schools, Auraiya is hereby quashed and set aside District Inspector of Schools, Auraiya, is directed to pass fresh order strictly in the light of observation made on earlier occasion and strictly within the parameter provided for under Section 16(G)(5) (a)(b)and (c) of U.P. Act No. II of 1921.

Now coming to the next question of payment of salary when suspension order has not been approved. Undisputed position which is emerging is to the effect that though the suspension order has  been passed on 16.11.2003 but till date aforesaid suspension order has not been approved. This Court in the case of Committee of Management Vs. Deputy Director of Education reported in 1992 (2) UPLBEC 1325 has taken the view that once order of suspension is not approved within sixty days net effect of the same would be that the incumbent will be entitled to function as Headmaster and receive his remuneration. Said judgment has been followed and approved in the case of Committee of Management Vs. District Inspector of Schools, Deoria reported in 1994 (23) ALR 334. In case of Chandra Bhushan Mishra Vs. District Inspector of Schools and others reported in 1995 (1) UPLBEC 460(F.B) it has been held that if order of suspension has not been approved within 60 days or approval has been refused in writing, it would mean that such order of suspension ceases to exist in eyes of law after expiry of 60 days. Full Bench of this Court further held that the power of the District Inspector of Schools to approve such suspension after 60 days is not lost. However, if approval is granted subsequently by the District Inspector of Schools the suspension would revive from the date of the approval is granted. Meaning thereby that for the interregnum period i.e. the period between the date when 60 days expired and the date approval is granted in writing, it would be presumed that the order of suspension did not exist in the eyes of law. Accordingly for this interregnum period concerned incumbent would be entitled for full salary as well as for being permitted to continue in the Office.

This aspect of the matter has again been reiterated by this Court in Civil Misc. Writ Petition No. 72443 of 2005 decided on 01.08.2006 (The Committee of Management, vidya Bhawan Inter College, Araul Kanpur Nagar Vs. State of U.P. and others), as follows:

This leads us to the issue as to whether the Principal of the institution would be entitled to his full salary for the back period commencing from the date 60 days expired from the date the order of suspension was  passed in the facts and circumstances of the case.

Section 16(g) (1) of the U.P. Intermediate Education Act provides that no order of suspension   shall remain in operation after expiry of 60 days, except  when approved in writing by the District Inspector of Schools. The aforesaid Section 16 (g) (1) has been subject matter of consideration in the Full Bench Judgement of this Court reported in 1995 (1) UPLBEC 460 in the case of Chandra Bhushan Mishra Vs. District Inspector of Schools & Others. The   Full Bench of this Court has held that  if the order of suspension has not been approved within 60 days or refused approval in writing, it would mean that such order of suspension ceases to exist in eyes of law after expiry of 60 days. Full Bench of this Court further held that the power of the District Inspector of Schools to approve such suspension after 60 days is not lost. However, if approval is granted subsequently by the District Inspector of Schools, the suspension would revive from the date the approval is granted. Meaning thereby that for the interregnum  i.e. the period between the date when 60 days expired and the date approval is granted  in writing, it is presumed that the order of suspension was not existing in the eye of law.  Accordingly for this interregnum period Principal or teacher cornered is entitled to  payment of full salary as well as for being permitted to continue in the office.

    The legal position in that regard has also been explained by the Court in the judgment reported in  1992 (2) UPLBEC 132 and 1994 (23) ALR 334.

  In the facts of the case, there is no order of District Inspector of Schools approving the suspension of the Principal of the institution. Consequently the order of suspension passed by the Committee of Management ceases to exist in the eyes of law after expiry of 60 days of its being communicated and therefore, the principal of the institution becomes entitled for full salary for the period subsequents to expiry of 60 days form the date he was placed under suspension. Accordingly it is provided that the principal of the institution shall be entitled to his full salary for the period the order of suspension was non-existent in the eyes of law i.e. 28th August, 2005 till the conclusion of the proceedings by the U.P. Secondary Education Services Selection Board as directed herein above.

Till such decision by the U.P. Secondary Education Services Selection Board as aforesaid, the Principal of the institution shall be entitled to his full salary, it shall be open to the Committee of Management of the institution to take work or not to take work  of the post of principal from the petitioner.

Here in the present case also till date there is no approval of District Inspector of Schools to the suspension of the Principal of the Institution. Consequently order of suspension passed by Committee of Management ceased to be in existence in the eyes of law after expiry of 60 days of its communication and thereafter Principal of the institution becomes entitled for full salary for the period subsequent to expiry of 60 days from the date he has been placed under suspension. In this background as matter has been remitted back to the District Inspector of Schools to consider the matter of approval of suspension of the Principal and till date there is no approval then from the period starting from it communication of suspension after expiry of 60 days till approval is not accorded, Officiating Principal shall be entitled to full salary, as such application in this regard is disposed of on  the said term.

Any decision to impose punishment taken by the Committee of Management is of no consequently till approval is taken by the U.P. Secondary Education Services Selection Board in term of Section 21 of U.P. Act No. V of 1982. This Court had already passed an order for taking decision by U.P. Secondary Education Services Selection Board on 26.05.2006 on the said resolution and three dates were fixed and thereafter concealing said fact further proceedings were got stayed by obtaining interim order. As on date suspension order has not be approved and fresh decision is to be taken by the District Inspector of Schools once again. As far as U.P. Secondary Education Services Selection Board is concerned, U.P. Secondary Education Services Selection Board has to take decision and delay in such matter is not solicited and it is hereby directed that from the date of presentation of certified copy of this order within ten weeks decision be taken on the resolution passed by Committee of Management in accordance with law without granting any unnecessary adjournment and whatever decision is so taken same be communicated to the parties concerned. During this period it would be open to the management, whosoever has been running and managing the affairs of the institution, either to take work not to take work of officiating Principal from Awadh Narain Tiwari but salary shall be paid as per observation made above.

In term of the observations/direction made above Civil Misc. Writ Petition No. 30034 of 2006 is allowed. Civil Misc. Writ Petition No. 63241 of 2006 (which is being treated as an Application No. 245428 of 2006) is disposed of and Civil Misc. Writ Petition No. 5575 of 2007 is dismissed.

No orders as to cost.

Dated :12th April, 2007

  Dhruv


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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