THE STATE OF U.P. THROUGH SPECIAL SECRETARY (BASIC EDUCATION) AND 3 OTHERS V. THE COMMITTEE OF MANAGEMENT SRI DURGA JI PURVA MADHYAMIK BALIKA JAMIN AND ANOTHER

SPLA/25/2021

AI Insights

The case involves six intra-court appeals arising from a common judgment and order passed by a learned Single Judge, which quashed the actions taken by the Commissioner of Azamgarh Division and the State Government regarding the appointments of teachers in various Junior High Schools. The appellants, including the State of U.P. and the District Basic Education Officer, challenged the appointments approved by the Basic Shiksha Adhikari (BSA) on grounds of procedural irregularities. The learned Single Judge found that the Commissioner and the State Government acted beyond their jurisdiction as defined by the relevant Acts and Rules governing basic education in U.P. The appeals were heard together due to the interconnected nature of the writ petitions.

• Counselvise Citation: [2021] 140 COUNSELVISE.COM (IT) 726633 (HC-UTTAR_PRADESH)
• Appeal Type: Others
• Pronouncement Date: 27-08-2021
• Assessment Year: misc
• Other Referred Cases: Manohar Lal (Dead) By Lrs. vs Ugrasen (Dead) By Lrs. & Ors, Dipak Babaria V. State of Gujarat, R & B Falcon (A) Pvt Ltd. V Commissioner of Income Tax
• Laws Referred To: Basic Education Act, 1972, U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Services of Teachers) Rules, 1978, U.P. Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: KUNWAR PARIHAR; HRITUDHWAJ SAHI; INDRA SINGH; SHIVENDU OJHA
• Assessee Lawyers: RAJIV SINGH
• Keywords: Appointment; Assistant Teacher; Enquiry Report; Grant-in-Aid; Jurisdiction; Statutory scheme; Headmaster; Basic Shiksha Adhikari
• Section: 6; 12; 19; 4; 2(b)

Judgement Text

"1 RESERVED AFR Court No. - 40 Case :- SPECIAL APPEAL No. - 25 of 2021 Appellant :- The State Of U.P. Through Special Secretary (Basic Education) And 3 Others Respondent :- The Committee Of Management Sri Durga Ji Purva Madhyamik Balika Jamin And Another Counsel for Appellant :- Rajiv Singh Counsel for Respondent :- Kunwar Bhaskar Parihar With Case :- SPECIAL APPEAL DEFECTIVE No. - 225 of 2021 Appellant :- State Of U.P. And 3 Others Respondent :- Rajni Rai And Another Counsel for Appellant :- Rajiv Singh Counsel for Respondent :- Hritudhwaj Pratap Sahi With Case :- SPECIAL APPEAL DEFECTIVE No. - 234 of 2021 Appellant :- District Basic Education Officer And 3 Others Respondent :- Suman Kala Devi And Another Counsel for Appellant :- Rajiv Singh Counsel for Respondent :- Indra Raj Singh With Case :- SPECIAL APPEAL DEFECTIVE No. - 238 of 2021 Appellant :- State Of U.P. And 4 Others Respondent :- The Committee Of Management Sri Krishnanand Smarak Junior High School And Another Counsel for Appellant :- Rajiv Singh Counsel for Respondent :- Shivendu Ojha With Case :- SPECIAL APPEAL DEFECTIVE No. - 241 of 2021 Appellant :- State Of U.P. And 3 Others Respondent :- The Committee Of Management Kuba Purva Madhyamik Vidyalaya And Another Counsel for Appellant :- Rajiv Singh Counsel for Respondent :- Kunwar Bhaskar Parihar 2 And with Case :- SPECIAL APPEAL DEFECTIVE No. - 255 of 2021 Appellant :- State Of U.P. And 3 Others Respondent :- The Committee Of Management Sarswati Junior High School And Another Counsel for Appellant :- Rajiv Singh Counsel for Respondent :- Kunwar Bhaskar Parihar Hon'ble Manoj Misra,J. Hon'ble Dinesh Pathak,J. (Delivered by Hon'ble Manoj Misra, J.) 1. These six intra-court appeals arise from a common judgment and order dated 14.10.2020 of a learned Single Judge passed in six connected writ petitions, namely, Writ A No. 5540 of 2020; Writ A No. 5795 of 2020; Writ A No. 5831 of 2020; Writ A No. 5743 of 2020; Writ A No. 5592 of 2020; and Writ A No. 5582 of 2020. 2. As the aforementioned writ petitions were decided by a common order, with the consent of the learned counsel for the parties, these appeals were heard together and are being decided by a common judgment and order. 3. Briefly stated the facts giving rise to these intra-court appeals are that in the district of Azamgarh, appointments on the post of Headmaster/Assistant Teacher in various Junior High Schools on the grant-in-aid list of the State were made and approved by the Basic Shiksha Adhikari, Azamgarh (for short BSA). Questioning their appointment on various grounds, complaints made to the Commissioner of Azamgarh Division (for short the Commissioner) were entertained and the Commissioner set up a four-member Inquiry Committee that prepared a report on 28.1.2020 which was forwarded to the Commissioner by letter dated 29.01.2020 of the Additional Commissioner (Administration) i.e., the Chairman of the Inquiry Committee. The report was thereafter sent to the State 3 Government. The Special Secretary of the State Government, vide letter/order dated 17.02.2020 addressed to the Assistant Director of Education (Basic), Azamgarh Division, Azamgarh, directed that a first information report be lodged against the officers, employees (teachers) and managers of the concerned institutions. Acting on the letter/order dated 17.02.2020, the BSA separately issued show cause notices to the management of the institutions calling upon them to submit a reply as to why the selection/approval with regard to the appointments be not cancelled. In addition to above, on 27.06.2020 letters were issued by the BSA to the Finance and Accounts Officers (for short the Accounts Officer) attached to its office to stop payment of salary to all those appointees whose appointment procedure was found faulty in the report dated 28.01.2020. 4. Writ A Nos. 5540 of 2020; 5743 of 2020; 5795 of 2020; and 5831 of 2020 giving rise to Special Appeal Nos. 25 of 2021; Special Appeal (Defective) No. 238 of 2021; Special Appeal (Defective) No. 255 of 2021; and Special Appeal (Defective) No. 241 of 2021, respectively, were filed by the management of those Junior High Schools who were aggrieved with the Enquiry Report dated 28.01.2020 (forwarded on 29.1.2020), the order dated 17.02.2020 and the show cause notice. Whereas, Writ A Nos. 5582 of 2020 and 5592 of 2020 giving rise to Special Appeal (Defective) No. 225 of 2021 and Special Appeal (Defective) No. 234 of 2021, respectively, were filed by those teachers who were aggrieved with the direction seeking stoppage of their salary. 5. The common ground taken in all the six writ petitions before the learned Single Judge was that basic education including recruitment and payment of salary of teachers related thereto, particularly, those working in institutions on grant in aid 4 list of the State, is governed by statutes and the rules framed thereunder. It was urged that appointment of teachers in a recognized junior high school, receiving grant-in-aid from the State, is to be made in accordance with the provisions of U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Services of Teachers) Rules, 1978 (for short 1978 Rules) which are framed and notified by the State Government in exercise of its power under Section 19 of the Basic Education Act, 1972 (for short 1972 Act) and the salary of such teachers is paid under the provisions of U.P. Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 (for short 1978 Act). Neither in the 1978 Rules nor under the 1972 Act or 1978 Act, the Commissioner has a role to play. In the statutory scheme, the Commissioner has no supervisory role over the institutions including their staff/teachers/management and, therefore, the enquiry set up by him was without jurisdiction. Thus, the consequential report is of no consequence and could not be made basis of any further action. Similarly, the order passed by the Commissioner appointing an enquiry committee in respect of appointment of teachers, duly approved by the BSA under the provisions of the 1978 Rules, was completely void and any action flowing from the report of such an Inquiry Committee is void and liable to be quashed. 6. The learned Single Judge after examining the scheme of 1972 Act, 1978 Rules and 1978 Act concluded that the provisions of the aforesaid Acts and the Rules conferred powers on specified authorities other than the Commissioner or other administrative officers therefore, setting up an enquiry committee by the Commissioner, the report of the Inquiry Committee and the consequential direction of the State 5 Government based on that report being in the teeth of the provisions of the Acts and the Rules were all liable to be quashed. Likewise, the show cause notice and salary stoppage order, not being an outcome of independent exercise of power but the dictate of officers not falling in the hierarchy of educational authorities contemplated by the Act and the Rules, were also liable to be quashed. Thus, all the six petitions were allowed by the learned Single Judge. 7. Aggrieved by the decision of the learned Single Judge, the State is in appeal. 8. We have heard Sri M.C. Chaturvedi, learned senior counsel, assisted by Sri Rajiv Singh, learned Standing Counsel, in all the appeals, for the appellants; Sri R.K. Ojha, learned senior counsel, assisted by Sri Kunwar Bhaskar Parihar and Sri Shivendu Ojha for the respondents in Special Appeal No. 25 of 2021, Special Appeal (Defective) No. 255 of 2021, Special Appeal (Defective) No. 241 of 2021 and Special Appeal (Defective) No. 238 of 2021; Sri Indraraj Singh for the respondents in Special Appeal (Defective) No. 234 of 2021; and Sri H.P. Shahi for the respondents in Special Appeal (Defective) No. 225 of 2021. 9. The submissions of the learned counsel for the appellants is that assuming that the Commissioner of a Division does not have a place in the hierarchy of educational authorities as per the scheme of the Acts (supra) and the Rules (supra) but, section 12 of the 1972 Act confers power on the Director to inspect or cause to be inspected any basic school and, under sub-section (2) thereof, he may direct the management of a basic school to remove any defect/deficiency found on inspection or 'otherwise'. The term 'otherwise' used in sub- section (2) is of significance and enables the Director to take 6 information from various other sources also, to initiate and take action contemplated under the Acts and the Rules. Sub-section (3) of section 12 of the 1972 Act empowers the Director to refer the case to the Board for withdrawal of recognition of such school if management of basic school fails to comply with the direction made under sub-section (2). It is submitted that section 13 of the 1972 Act envisages control by the State Government by providing that the Board shall carry out such directions as may be issued to it from time to time by the State Government for the efficient administration of the Act. As 1978 Rules are framed and notified in exercise of power conferred upon the State Government by section 19 of 1972 Act, any information received by the State Government in respect of violation of the provisions of 1972 Act or 1978 Rules, could be passed on to the authorities to ensure proper administration of the provisions of the 1972 Act therefore, it cannot be said that the Commissioner held no jurisdiction to direct for an enquiry. It is submitted that even assuming that Commissioner held no jurisdiction to bind the educational authorities with the report submitted by the Inquiry Committee set up under its directions, even then the educational authorities were empowered to take notice of the report and proceed further in accordance with law. It was urged that by quashing the report, the notice issued in pursuance of the report and the order issued by the State Government, the learned Single Judge has closed the doors to scrutinize the legality and validity of the appointment that is, whether the appointments were made by following the procedure prescribed by the 1978 Rules. 10. In addition to above, it was urged on behalf of the appellants that section 4 of the 1978 Act empowers the Education Officer to inspect or cause to be inspected any 7 institution or call for such information and records from its management with regard to payment of salaries to its teachers or employees or give its management any direction for the observance of such canons of financial propriety including any direction for retrenchment of any teacher or employee for prohibition of any wasteful expenditure, as he thinks fit. It is urged that the BSA is the Education Officer as per the definition under Section 2 (b) of the 1978 Act. Thus, the show cause notices impugned in the writ petitions, issued by the BSA, were referable to Section 4 of the 1978 Act and were not liable to be quashed at the threshold. More so, when the BSA was authorised to issue notice to the management calling for its explanation in respect of irregularity in the appointment of teachers in the institutions concerned. It is submitted that the impugned judgment and order of the learned Single Judge fails to take notice of the relevant provisions of the 1972 Act, the 1978 Act and the 1978 Rules therefore, the same is liable to be set aside. 11. Per contra, on behalf of the management, it was urged by Sri R.K. Ojha that neither the 1972 Act nor the 1978 Act contemplates a role for the Commissioner to examine the validity of the appointments approved by the Basic Education Officer. Thus, the setting up of an enquiry committee by him is a void act with no statutory backing. Accordingly, the learned Single Judge was justified in quashing the order/notice impugned in the writ petition. In the alternative, it was submitted on behalf of the respondents that if any irregularity in appointments had been noticed, the same could be reported to the Director or to the Board to act in accordance with the provisions of law. But, issuance of notice at the dictates of the State authorities, having no place in the statutory scheme 8 governing basic education, is completely unjustified and has rightly been quashed by the learned Single Judge. 12. On behalf of teachers (respondents in Special Appeal (Defective) Nos. 225 of 2021 and 234 of 2021), it was urged by Sri Indraraj Singh and Sri H.P. Shahi that the appointments were made in accordance with the 1978 Rules and had received approval of the BSA and so long the appointments are not cancelled by a procedure known to law there could be no stoppage of salary. Therefore, the judgment of the learned Single Judge in that regard calls for no interference. 13. We have considered the rival submissions and have perused the record carefully. 14. Before we proceed to weigh the rival submissions, we may notice the reasoning of the learned Single Judge in the impugned judgment. 15. The learned Single Judge placed reliance on a decision of the Apex Court in Manohar Lal (Dead) By Lrs. vs Ugrasen (Dead) By Lrs. & Ors (2010) 11 SCC 557, wherein, after noticing various decisions, the apex court had concluded as follows: “Therefore, the law on the question can be summarised to the effect that no higher authority in the hierarchy or an appellate or revisional authority can exercise the power of the statutory authority nor can the superior authority mortgage its wisdom and direct the statutory authority to act in a particular manner. If the appellate or revisional authority takes upon itself the task of the statutory authority and passes an order, it remains unenforceable for the reason that it 9 cannot be termed to be an order passed under the Act.” 16. The legal principle forming the basis of the decision of the Apex Court in Manohar Lal’s case (supra) is well settled. The principle is that when the administration is governed by a statutory scheme, it has to be carried in the manner provided therein and through such authorities who have been conferred powers thereunder. That is, if the law requires that a particular thing should be done in a particular manner it must be done in that way and none other. Following this principle in Dipak Babaria V. State of Gujarat, (2014) 3 SCC 502, the Apex Court, in paragraph 72, observed: “The State cannot ignore the policy intent and procedure contemplated by the statute…It is not merely the end but the means which are of equal importance, particularly if they are enshrined in the legislative scheme. The minimum that was required was an enquiry at the level of the Collector who is the statutory authority. Dictating him to act in a particular manner on the assumption by the Minister that it is in the interest of industrial development would lead to a breach of the mandate of statute framed by the legislature.” 17. Applying the above legal principle and upon finding that in the scheme of the 1972 Act and 1978 Rules a separate set of authorities have been conferred powers and the Commissioner finds no place in that statutory scheme, the learned Single Judge justifiably held that the Commissioner exceeded its jurisdiction and powers by directing an enquiry and, similarly, the Secretary Education, without independently applying his 10 mind, erred in issuing a command to the educational authorities to straight away lodge a first information report and to act in a particular manner. To this extent, the order of the learned Single Judge being well founded on settled legal principles calls for no interference. However, what has been overlooked by the learned Single Judge is, whether the impugned report doubting the validity of the appointments on the ground that the procedure prescribed for appointments was not followed, could be treated as an information to form basis for initiation of a proper enquiry within the framework of the Acts (i.e. 1972 Act and 1978 Act) and the Rules. In this context, the learned counsel for the State has submitted that the doors to examine irregularities in the appointment ought not to have been closed. We find substance in this submission of the appellant’s counsel. We, therefore, now proceed to examine the statutory scheme of the 1972 Act and the 1978 Act to find out as to in what manner the validity of such appointments could be tested once approval to them was accorded by the BSA. 18. The 1972 Act is an Act to provide for the establishment of a Board of basic education and for the matters connected therewith. Section 2 (b) defines basic education as education up to class eighth. Section 19 empowers the State Government to make rules for carrying out the purposes of the Act. Clause (c) of sub-section (2) of Section 19 of the 1972 Act specifically provides that rules may provide for the recruitment, and the conditions of service of the persons appointed, to the posts of teachers and other employees of basic schools recognised by the Board. 1978 Rules framed under the 1972 Act provide for the procedure as well as qualification for appointment of teachers to such schools. Sub -rule (5) of Rule 10 casts a duty upon the BSA, before granting approval to the appointment, to 11 be satisfied that the candidates recommended by the Selection Committee possess the minimum qualifications prescribed for the post and that the procedure laid down in the Rules for the selection of Head Master or Assistant Teacher, as the case may be, has been duly followed. No doubt, there is no power of review of the order of approval once accorded. But, it is well settled, where an appointee does not possess the minimum qualifications prescribed by a statutory rule, the appointment would be void and can be questioned at any stage. Similarly, where appointments are obtained by a procedure not known to law or by following a procedure which is in flagrant violation of the statutory provisions, it can be questioned at any stage. More over, the BSA, under section 4 of the 1978 Act, is empowered to inspect or cause to be inspected any institution or call for records from its management with regard to the payment of salaries to its teachers or employees or give its management any direction for the observance of such canons of financial propriety (including any direction for retrenchment of any teacher or employee for prohibition of any wasteful expenditure) as he thinks fit. For enforcement of a direction issued under section 4 of the 1978 Act, procedure is prescribed under section 6 thereof. Likewise, section 12 of the Act, 1972 envisages control of the Director over Basic Schools. As a junior high school is a basic school within the meaning of section 2(b) of the 1972 Act, it cannot be said that the Director has no control over it. Further, sub-section (2) of section 12 provides that the Director may direct the management of a basic school to remove any defect or deficiency found on inspection or otherwise. The term 'otherwise' in P. Ramanatha Aiyar’s Advanced Law Lexicon has been attributed different meaning in different contexts. One of them is “by other like 12 means; contrarily; different from that to which it relates; in a different manner; in another way; in any other way; differently in other respects in different respects; in some other like capacity.” The above meaning attributed to the term otherwise has been adopted by the Apex Court in its decision in the case of R & B Falcon (A) Pvt Ltd. V Commissioner of Income Tax, (2008) 12 SCC 466. What we find from the above is that the term “otherwise” as it occurs in sub-section (2) of section 12 of the 1972 Act is of wide import and it can include information which may have been received from sources other than inspection. Hence, in our view, the report that was forwarded by the Commissioner, though may not form the basis for the action as directed, but it could very well be treated as an information justifying initiation of an enquiry and consequential action that is otherwise permissible under the statutory scheme of the 1972 Act and 1978 Act. 19. As the learned Single Judge while allowing the writ petitions has not left it open for the educational authorities empowered under the 1972 Act and 1978 Act to examine the validity of the appointments under the provisions of the Act and the Rules framed thereunder, we are of the view that the judgment and order of the learned Single Judge is liable to be modified to that extent. 20. We, therefore, partly allow Special Appeal No. 25 of 2021; Special Appeal (Defective) No. 238 of 2021; Special Appeal (Defective) No. 255 of 2021; and Special Appeal (Defective) No. 241 of 2021 and modify the judgment and order of the learned Single Judge dated 14.10.2020 to the extent indicated below:- “The enquiry report dated 28/29.01.2020 as well as the order of the State Government 13 dated 17.02.2020 though, would not be binding on the educational authorities but may be taken as an information to initiate a fresh proceeding within the framework and the scheme of the 1972 Act and 1978 Act. Similarly, the order dated 17.02.2020 will not be treated as a binding direction to lodge the FIR but if the educational authority by applying its own independent mind is of the opinion that there is sufficient material reflecting commission of cognizable offence then it would be free to report such offence.” 21. The order of the learned Single Judge quashing the orders stopping the payment of salary is affirmed subject to the liberty to examine the legality/propriety of the appointments given above. Special Appeal (Defective) No. 225 of 2021 and Special Appeal (Defective) No. 234 of 2021 are disposed off accordingly. Order Date :- 27.08.2021 Sunil Kr Tiwari "