Citation Codes

Equivalent Citations

citation codes

Case Number

Civil Misc. Writ Petition No. 6108 of 1974

Attorney(S)

B.B.P. Singh

Judges

Yashoda Nandan
K.N Seth
K.C Agrawal, JJ.

Acts

provisions of the U. P. Intermediate Education Act (hereinafter referred to as the Act)
provisions of Rule 143 of the Educational Code.
Rule 143 (i) of the Educational Code of Uttar
Rule 143 (i) of the Education Code

See more information ...

Smart Summary

Summary of the Opinion (Full Bench)

Factual and Procedural Background

The dispute concerns respondent No. 6, Chandrika Lal, who was employed as a librarian-cum-clerk at Maharajganj Inter-College, Maharajganj, District Azamgarh. Because of a conflict between two factions of the Society that ran the College, rival committees both claimed to be the duly elected Committee of Management, which produced civil litigation and an interim injunction. This Court, in Civil Revision No. 697 of 1963, appointed a Receiver to manage the College and exercise the powers of the Committee of Management pending the suit. The Sub-Divisional Magistrate, Sagari, acting as Receiver, framed charges against respondent No. 6, suspended him, and ultimately concluded that he merited termination. The Receiver sought the District Inspector of Schools' approval under the impression approval was required; the District Inspector directed removal of respondent No. 6 from service (rather than dismissal). Respondent No. 6 appealed to the Deputy Director of Education; that appeal was initially dismissed in default but was later reviewed and allowed by the Deputy Director, who directed respondent No. 6's reinstatement. During respondent No. 6's suspension and appeal pendency, the petitioner, Magan Ram Yadav, was appointed librarian (first temporarily and then on probation, later confirmed). Following the Deputy Director's order, the District Inspector directed that the petitioner's services be terminated and respondent No. 6 reinstated. The petitioner moved this Court under Article 226 seeking quashing of the orders of the Deputy Director of Education and the District Inspector of Schools and for relief against his termination.

The case reached a Full Bench because a Division Bench believed that the earlier decision in Manager, Shanta Nand Swatantra Bharat Inter-College v. Kamla Rai (1972 All LJ 933) needed reconsideration in view of an apparent conflict with Dhata Intermediate College v. Brahma Nand Singh (1976 All LJ 499).

Legal Issues Presented

Whether the Receiver (exercising the powers of the Committee of Management of a recognised institution) was required under the U.P. Intermediate Education Act or the Regulations (specifically Rule 143(i) of the Educational Code) to seek the approval of the District Inspector of Schools before dismissing or removing a librarian/clerical staff member.
Whether Rule 143(i) of the Educational Code is of statutory force such that an order of the District Inspector of Schools approving or withholding approval to a proposed dismissal/removal is appealable to the Deputy Director of Education.
Whether the proceedings before the District Inspector of Schools and the appellate order of the Deputy Director of Education could be sustained where the Receiver had acted (or purported to act) with the powers of the Committee of Management.

Arguments of the Parties

Petitioner's Arguments

The Receiver, acting with the powers of the Committee of Management of a recognised institution, was not required under the U.P. Intermediate Education Act or the Regulations (including Rule 143(i)) to seek the approval of the District Inspector of Schools before dismissing or removing a librarian.
Section 16-G of the Act required approval of the District Inspector of Schools before termination of a teacher or head of an institution, but it did not impose the same requirement for a librarian/clerical staff.
Consequently, proceedings before the District Inspector of Schools and the appellate order by the Deputy Director of Education directing reinstatement of respondent No. 6 were without jurisdiction and could not adversely affect the petitioner's confirmed appointment.
Reliance was placed on Dhata Intermediate College v. Brahma Nand Singh, which held that Rule 143(i) was a mere executive instruction and not a statutory rule.

Respondent No. 6's Arguments

Respondent No. 6 supported the Deputy Director's order of reinstatement by relying on the Division Bench decision in Manager, Shanta Nand Swatantra Bharat Inter-College v. Kamla Rai (1972 All LJ 933), which was understood to hold that Rule 143(i) required the Managing Committee to obtain the District Inspector of Schools' approval for dismissal/removal of clerical staff, and that such approval operated like an appealable order enabling a second appeal to the Deputy Director.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Manager, Shanta Nand Swatantra Bharat Inter-College v. Kamla Rai (1972 All LJ 933)	Interpreted Rule 143(i) of the Educational Code as requiring Managing Committee to obtain District Inspector's approval for dismissal/removal of clerical staff, and treated such approval as tantamount to an order giving rise to a right of second appeal to the Deputy Director.	The Full Bench recorded dissent from that decision insofar as it was intended to hold that Rule 143(i) had statutory force creating a right of appeal; the Bench found it was not persuaded that Shanta Nand should have the effect of preventing a Committee (or Receiver acting as Committee) from terminating a clerk without District Inspector's approval.
Dhata Intermediate College v. Brahma Nand Singh (1976 All LJ 499)	Held that Rule 143(i) of the Education Code was a mere executive instruction and not a statutory rule (i.e., it did not have statutory force to create a right of appeal).	The Full Bench expressly agreed with this decision and treated it as correctly decided; it relied upon Dhata to conclude that Rule 143(i) did not authorize an appeal to the Deputy Director from an order of the District Inspector in the circumstances of this case.
Muslim Association, Kanpur v. Hamid Hussain (Second Appeal No. 831 of 1970, decided 25-2-1972)	Used in Dhata Intermediate College as supporting authority for the proposition that certain Code provisions/instructions lacked statutory force.	The Full Bench noted that Dhata placed reliance on this earlier Division Bench decision and accepted the reasoning of Dhata which in turn relied on Muslim Association; the Full Bench aligned with that chain of authority.
Het Ram v. Collector of Ali-garh, AIR 1941 All 355	Principle cited: a right of appeal against an order sanctioned by law requires statutory authority and cannot be founded on mere executive directions.	The court cited this case to support the proposition that a right of appeal must have statutory authority, and therefore cannot be created merely by executive instructions such as Rule 143(i) if that rule is non-statutory.
Soorajmull Nagarmull v. State of West Bengal, AIR 1963 SC 393	Principle cited: corroborating authority that a right of appeal requires statutory foundation and cannot be based solely on executive instructions.	The court relied on this authority alongside Het Ram to reinforce its conclusion that Rule 143(i), if merely executive, cannot found a statutory appeal to the Deputy Director of Education.

Court's Reasoning and Analysis

The Full Bench began by observing that the case required reconsideration because of an apparent conflict between two Division Bench decisions (Shanta Nand and Dhata). It reviewed the submissions that the Receiver, exercising the powers of the Committee of Management of a recognised college, was not bound by any statutory requirement to seek the District Inspector of Schools' approval before terminating the services of a librarian/clerical employee.

The Bench examined the competing authorities. It noted that the Division Bench in Shanta Nand had interpreted Rule 143(i) of the Educational Code as imposing a requirement to obtain the District Inspector's approval and creating a consequent right of second appeal to the Deputy Director. By contrast, the Bench in Dhata Intermediate College had held that Rule 143(i) was only an executive instruction and lacked statutory force.

After consideration, the Full Bench stated that the Dhata decision was a well-considered case and expressed respectful agreement with it. The Bench recorded a specific dissent from the Shanta Nand decision insofar as that decision was taken to mean that paragraph 143(i) of the Educational Code had statutory force rendering the Committee of Management powerless to terminate clerical staff without the District Inspector's approval and creating a statutory appeal to the Deputy Director.

Applying the conclusion that Rule 143(i) is not statutory in character, the Bench held that a Receiver (having all powers of the Committee of Management) could independently decide to terminate or otherwise determine the services of respondent No. 6 without seeking the District Inspector's approval. The Bench reasoned that a right of appeal requires statutory authority and cannot be founded on executive directions alone, citing Het Ram v. Collector of Ali-garh and Soorajmull Nagarmull v. State of West Bengal as supporting authorities for that legal principle.

Consequently, the proceedings before the District Inspector of Schools and the purported exercise of appellate power by the Deputy Director of Education (acting under Rule 143) were held to be unsustainable in the circumstances. The orders of both the District Inspector and the Deputy Director that reinstated respondent No. 6 and terminated the petitioner's services were liable to be quashed.

Holding and Implications

Core Ruling: The writ petition is allowed; the Court quashed the order of the Deputy Director of Education dated 5th September 1974 and the order of the District Inspector of Schools (including the consequential order directing reinstatement of respondent No. 6 and termination of the petitioner's services).

Direct consequences and practical implications set out by the Court (as stated in the opinion):

The orders of the District Inspector of Schools and of the Deputy Director of Education, insofar as they purported to exercise jurisdiction under Rule 143 to affect the services of the petitioner or to reinstate respondent No. 6, cannot be sustained and are quashed.
The record did not show that the Receiver's decision to terminate respondent No. 6 had been communicated to him; therefore, it remains open to the Receiver, or if a proper Committee of Management has since come into existence, to that Committee to take such action as it may deem proper on the basis of the Receiver's findings and decision, without interference by respondent No. 1 (District Inspector) or respondent No. 3 (Deputy Director).
Parties were directed to bear their own costs, and any interim orders were vacated.

The Bench explicitly recorded its agreement with Dhata Intermediate College v. Brahma Nand Singh and its dissent from the Shanta Nand decision insofar as the latter was understood to treat Rule 143(i) as statutory and as creating a right of appeal to the Deputy Director of Education.

Show full summary ...

Magan Ram Yadava v. Deputy Director Of Education And Others

1. When this writ petition, which should normally have been decided by a Division Bench, came up for hearing, the Bench hearing it was of the opinion that the decision of this Court in Manager, Shanta Nand Swatantra Bharat Inter-College v. Kamla Rai, (1972 All LJ 933) needed reconsideration by a larger Bench since it was not in accord with another Division Bench decision of this Court in Dhata Intermediate College v. Brahma Nand Singh, (1976 All LJ 499) and that is how this case happens to be before this Full Bench.

2. The material facts giving rise to this case are that respondent No. 6, Chandrika Lal, was employed as a librarian-cum-clerk at the Maharajganj Inter-College, Maharajganj, Dist. Azamgarh (hereinafter referred to as the College). During the relevant period because there was a conflict between two sections of the members of the Society running the College, two rival bodies of persons were claiming to be the duly elected Committee of Management thereof. This led to a civil litigation between the two rival Committees of Management and an interim order of injunction therein came up to this Court in Civil Revision No. 697 of 1963. While deciding the Civil Revision, Hon'ble K.B. Asthana, J. (as he then was) passed an order directing appointment of a Receiver to manage the affairs of the College and to exercise the powers of the Committee of Management till such time as the suit itself was decided. As a consequence of this order, the Sub-Divisional Magistrate, Sagari, commenced functioning as the Receiver of the College and exercising the powers of its Committee of Management he framed certain charges against respondent No. 6 and pending enquiries into, suspended him from service. Ultimately the Receiver came to the conclusion that respondent No. 6 merited the punishment of termination from service. Under the impression that the approval - of the District Inspector of Schools was needed before the services of respondent No. 6 could be terminated, he sought such approval and sent the papers to the District Inspector of Schools. The District Inspector of Schools under the impression that the Receiver had proposed the punishment of dismissal from service of respondent No. 6 while agreeing that he deserved to be punished directed that he be removed from service instead of being dismissed therefrom. Aggrieved by the order of the District Inspector of Schools, respondent No. 6 filed an appeal before the Deputy Director of Education of the Region concerned. The Deputy Director of Education dismissed the appeal for default of respondent No. 6. Thereupon respondent No. 6 applied for review of the order passed by the Deputy Director of Education on the ground that there was no power in him to dismiss the appeal in default which should have been decided on merit even if the appellant was absent. The Dy. Director of Education accepted the contention of respondent No, 6 and reviewed his earlier order and allowed the appeal of respondent No. 6 filed against the order of the District Inspector of Schools and directed his reinstatement to service. It may be mentioned here that during the proceedings before the District Inspector of Schools and in the appeal filed by respondent No. 6 the petitioner Magan Ram Yadav was not a party. During the period respondent No. 6 was under suspension and out of employment in consequence of the order passed by the District Inspector of Schools and during the pendency of the appeal before the Deputy Director of Education, the petitioner was appointed as librarian of the College first on a temporary and subsequently on probation. According to the petitioner during this period he completed his period of probation satisfactorily and was confirmed as the librarian of the College. In consequence of the order of reinstatement of respondent No. 6 passed by the Deputy Director of Education, the District Inspector of Schools directed that the services of the petitioner Magan Ram Yadav be terminated and respondent No. 6 be reinstated to the post. Respondent No. 6 claims that as a result of the order of the District Inspector of Schools, he rejoined the service of the College as a librarian on the 7th October, 1974. Aggrieved by the order passed by the Deputy Director of Education on the appeal of respondent No. 6 and the consequential order of the District Inspector of Schools directing his reinstatement, the petitioner moved this Court under Art. 226 of the Constitution praying in substance for quashing the order of the Regional Deputy Director of Education and that of the District Inspector of Schools directing reinstatement of respondent No. 6 of the service and termination of his own service in consequence.

3. When this petition came up for hearing before a Division Bench of this Court, it was urged, as it has been before us, that the Receiver appointed by this Court who was functioning as the Committee of Management of a recognised institution was not required either under the provisions of the U. P. Intermediate Education Act (hereinafter referred to as the Act) or the Regulations framed thereunder to seek the approval of the District Inspector of Schools before either dismissing or removing from service a librarian. It was contended that while Section 16-G of the Act required approval of the District Inspector of Schools before the services of a teacher or head of an institution could be terminated either by dismissal or otherwise there was no requirement under the Act or the Regulations acting as an impediment to the Committee of Management ordering the dismissal or removal from service of a librarian. It was urged that since there Was no statutory requirement requiring the Receiver to seek approval of the District Inspector of Schools to his decision to terminate the services of respondent No. 6, proceedings before the District Inspector of Schools as well as the appellate order by the Deputy Director of Education directing reinstatement of respondent No. 6 to the service of the College were without jurisdiction and of no legal consequences as far as the services of the petitioner, who had been appointed on probation and subsequently confirmed on his post was concerned.

4. Learned counsel for respondent No. 6 supported the order passed by the Deputy Director of Education allowing his appeal and directing his reinstatement to the service by placing reliance on the Division Bench decision of this Court in Manager, Shanta Nand Swatantra Bharat Inter-College v. Kamala Rai (supra). In this case a Division Bench of this Court took the view that Rule 143 (i) of the Educational Code of Uttar Pradesh, 1958 edition required the Managing Committee to obtain the approval of the District Inspector of Schools to a decision for dismissal, removal or suspension of the services of a person on the clerical staff of a recognised College and that if the Inspector of Schools approves the proposal of the Managing Committee the order of approval would be tantamount to passing an order in an appeal against the clerk concerned and in such an event the clerk has a right of second appeal before the Deputy Director under the provisions of the Code adverted to above. If the view taken in this decision is correct, no legal exception can be taken to the proceedings before the District Inspector of Schools and the appellate order passed by the Deputy Director of Education, who have been impleaded as respondents in the writ petition.

5-6. On the other hand, learned counsel representing the petitioner placed reliance on another Division Bench decision of this Court in Dhata Intermediate College v. Brahma Nand Singh (supra) in which after considering certain earlier decisions of this Court, it was held that Rule 143 (i) of the Education Code was a mere executive instruction and could not be given the status of a statutory rule. In support of this view, reliance was placed on a Division Bench decision of this Court in Muslim Association, Kanpur v. Hamid Hussain (Second Appeal No. 831 of 1970 decided on 25-2-1972)* Though the decision in Manager, Shanta Nand Swatantra Bharat Inter-College v. Kamla Rai (supra) was noticed by the Bench deciding Dhata Intermediate College v. Brahma Nand Singh, it did not either specifically agree or disagree with the views expressed therein but it has been clearly held therein, as already stated, that Rule 143 (i) of the Education Code was not statutory in character. The judgment of this Court in the case of Dhata Intermediate College is a well considered one and we do not consider it necessary to burden this judgment by repeating the reasons given therein in support of the conclusion arrived at. As adverted to earlier, it has placed reliance for its conclusion on a earlier Division Bench case decided by this Court. We are in respectful agreement with the view expressed in Dhata Intermediate College v. Brahma Nand Singh. Before the Bench which decided Manager, Shanta Nand Swatantra Bharat Inter-College v. Kamla Rai, it was not urged that paragraph 143 (i) of the Educational Code, U. P. had any statutory force and hence could not create a right of appeal. With due deference to the learned Judges who decided Manager, Shanta Nand Swatantra Bharat Inter-College v. Kamla Rai, we record our dissent therefrom, if it was intended to lay down therein that by virtue of paragraph 143 (i) of the Educational Code, U. P. the Committee of Management of a College recognised under the Act was powerless to pass an order terminating the services of a member of the clerical staff without the approval of the District Inspector of Schools and that an order of the District Inspector of Schools according or withholding approval to such proposed action was appealable to the Deputy Director of Education.

7. In this view of the matter, the conclusion is inescapable that the Receiver appointed by this Court who had all the powers of the Committee of Management of the College concerned could independently of any approval or otherwise of the District Inspector of Schools take a decision to terminate the services of respondent No. 6 or to determine his services otherwise. It is further clear that the order of the District Inspector of Schools could not be the subject-matter of an appeal at the instance of respondent No. 6 under the provisions of Rule 143 of the Educational Code. A right of appeal against an order sanctioned by law is plainly one that requires statutory authority and cannot be founded on executive directions (See Het Ram v. Collector of Ali-garh, AIR 1941 All 355; Soorajmull Nagarmull v. State Of West Bengal ., AIR 1963 SC 393).

8. In this view of the matter, neither the proceedings before the District Inspector of Schools nor the order passed by the Deputy Director of Education purporting to be exercising a power of appeal against the order passed by the District Inspector of Schools the consequential order passed by the District Inspector of Schools directing reinstatement of respondent No. 6 and the termination of the services of the petitioner can be sustained.

9. For the reasons given above, we allow this writ petition, quash the order of the Deputy Director of Education dated 5th Sept., 1974 and the order of the District Inspector of Schools which was subject-matter of appeal before the Deputy Director of Education as well as the order of the District Inspector of Schools directing reinstatement to service of respondent No. 6 and the termination of the services of the petitioner. From the material on record before us it does not appear that the decision of the Receiver to terminate the services of respondent No. 6 was given effect to by its being communicated to him. It will now be open to the Receiver or in the event of a proper Committee of Management having come into existence in the meanwhile to such Committee of Management to take such action as it may deem proper on the basis of the findings recorded by the Receiver and the decision incorporated by him therein without any interference by respondent No. 1 or by respondent No. 3. In the circumstances of the case, parties shall bear their own costs. Interim orders, if any, are hereby vacated.

Magan Ram Yadava v. Deputy Director Of Education And Others

Summary of the Opinion (Full Bench)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondent No. 6's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Magan Ram Yadava v. Deputy Director Of Education And Others

Comments