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Case Number

Civil Misc. Writ Petition 11672 of 2006

Attorney(S)

D. Kumar
Kharag Singh for the Petitioner Pramod Kumar Bharawaj
Vinod Sinha
C.S.C. for the Respondents.

Judges

Hon’ble Mr. Justice Arvind Kumar Tripathi

Acts

Rule 15 of the Uttar Pradesh Recognised Basic Schools (Junior High Schools)(Recruitment and Conditions of Service of Teachers) Rules, 1978 (hereinafter referred to as "Rules 1978").
Rule 16 of Rules 1978, the provision of disciplinary proceedings of U.P. Basic Education Staff, Rules 1973 (hereinafter referred to as "Rules 1973")
Rule 16 of Uttar Pradesh Recognised Basic Schools (Junior High Schools)(Recruitment and Conditions of Service of Teachers) Rules, 1978.
rule in Rule 16 of U.P.Recognised Basic Schools (Junior High School) (Recruitment and Condition of Service of Teachers) Rules, 1978.
Rule 12 of U.P. Recognised Basic Schools (Recruitment and Conditions of Service of Teachers) Rules,
Uttar Pradesh Basic Educational Staff Rules, 1973 Rules 5
Rule 16 of 1978 Rules read with Rule 12 of 1975 Rules.
Rule 5 of U.P.Basic Educational Staff Rule 1973
Rules, 1978. In Rule 16 of the said Rules,
ARTICLE 14 CONSTITUTION OF INDIA
Rule 5 of the rule 1973
Rule 2 (6) of 1975 Rules
Rule 12 of 1975 Rules
Rule 16 of 1978 Rules
Rule 15 of Rules 1978,
Rule 16 of the Rules
Rule 2 (g), the Rules

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The petitioner was appointed as an Assistant Teacher in 1995 and was selected as a Tribhasha Sahayak Adhyapak in 1997. There was no antecedent complaint recorded against his work and conduct in the opinion's narration. The petitioner was suspended by an order dated 10.05.2002 (suspension order) without disclosure of reasons or charges. A letter dated 25.05.2002 sought a reply to alleged charges; the petitioner submitted a reply (the record reflects a reply dated 27.05.2001 in the text). A charge sheet dated 03.06.2002, served by the Committee of Management (respondent No. 3), accused the petitioner of beating and misbehaving with students. The petitioner submitted another reply on 08.07.2002 and adduced evidence in defence, but the petitioner states that no further communication regarding the enquiry was given and no opportunity for hearing was afforded. Subsistence allowance was not paid.

The writ petition was filed seeking (i) a writ of mandamus directing reinstatement as Assistant Teacher, (ii) payment of arrears of salary, and (iii) continuance of salary payments as they fall due. The petition was later amended, with the Court's permission, to include a prayer for a writ in the nature of certiorari to quash an impugned dismissal order passed by the Manager of the Institution (identified in the opinion by an annexure) and an order of approval by the Basic Shiksha Adhikari (B.S.A.) dated 08.05.2003 (both annexed to the record). The opinion also records a version that the dismissal order was passed on 16.04.2003 and subsequently approved on 08.05.2003 by the District Basic Education Officer, Bulandshahar.

Legal Issues Presented

Whether an alternative remedy in the form of an appeal exists against the order of approval passed by the District Basic Education Officer, by virtue of the interplay between Rule 16 of the Uttar Pradesh Recognised Basic Schools (Junior High Schools) Rules, 1978 ("Rules 1978") and the disciplinary provisions of the Uttar Pradesh Basic Educational Staff Rules, 1973 ("Rules 1973").
Whether the dismissal order was valid where (a) no opportunity of hearing was provided to the petitioner (a question of compliance with the principles of natural justice / audi alteram partem and Article 14 of the Constitution), and (b) the prior approval of the District Basic Education Officer (as required by Rule 15 of Rules 1978) was not obtained before passing the dismissal order.

Arguments of the Parties

Petitioner's Arguments

The petitioner described his appointment history (1995 appointment; 1997 selection as Tribhasha Sahayak Adhyapak) and asserted that there was no complaint against his conduct prior to suspension.
He was suspended on 10.05.2002 without the disclosure of reasons and charges; subsequent communications required a reply, which he provided (dates appear in the record), and he produced evidence in defence.
No opportunity for hearing was afforded to him during the enquiry; he received no subsistence allowance.
The petitioner contended that the dismissal order (dated in the record as 16.04.2003 in one place and identified elsewhere as 16.05.2003) was passed without the prior written approval of the District Basic Education Officer as mandated by Rule 15 of Rules 1978; this rendered the dismissal unlawful and liable to be set aside.
He contended that the disciplinary provisions of Rules 1973 were applicable but that the appeal provision (Rule 5 of Rules 1973) is not part of the disciplinary proceedings invoked by respondents in this matter; therefore he argued there was no effective alternative remedy of appeal in the facts of this case. He relied on the Division Bench decision in Ram Nayan Shukla v. The District Basic Education Officer, Gorakhpur, 1981 UPLBEC 127.

Respondent / Standing Counsel's Arguments

The Standing Counsel accepted that the requirement of prior approval before dismissal (Rule 15 of Rules 1978) is not disputed.
He argued that Rule 16 of Rules 1978 makes applicable the disciplinary provisions of the U.P. Basic Education Staff Rules, 1973 (Rules 1973), and that there is therefore an alternative statutory remedy of appeal (under Rule 5 of Rules 1973) against the order of approval passed by the District Basic Education Officer; on this point he relied on a subsequent Division Bench judgment, Committee of Management, Baba Sobha Mani Laghu Madhyamik Vidyalaya, Chero Bharti, Deoria v. Director of Education (Basic)/Chairman, U.P. Basic Shiksha Parishad (2007-LAWS(ALL)-3-52).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ram Nayan Shukla v. The District Basic Education Officer, Gorakhpur, 1981 UPLBEC 127	Interpreted Rule 16 of Rules 1978 and Rule 12 of 1975 Rules in relation to availability of appeal; observed that Rule 16 makes certain Rules applicable but concluded, in that case, that an alternative remedy of appeal was not available under the invoked rules.	The opinion quotes paras 6–10 of this decision to show the prior reasoning that led to the view that an alternative remedy was not available; the Court then notes that in Ram Nayan Shukla Rule 5 of Rules 1973 was not brought to the Court's notice in that case, thereby limiting the scope of that decision for present purposes.
Baba Sobha Mani Laghu Madhyamik Vidyalaya, Chero Bharti, Deoria v. Director of Education (Basic)/Chairman, U.P. Basic Shiksha Parishad (2007-LAWS(ALL)-3-52)	Considered whether the right of appeal under the 1973 Rules extends to managements/appointing authorities or is confined to teachers and employees; held that the right to appeal under the 1973 Rules is conferred on teachers and employees and not on the management in respect of actions disapproved by the Basic Education Officer.	The Standing Counsel relied upon this decision to argue for the existence of an alternative remedy; the Court considered the decision when assessing the availability and scope of statutory appeals applicable by reason of Rule 16 of Rules 1978.
Committee of Management, Janta Vidyalaya Athilapura, District Ballia v. Basic Shiksha Adhikari Ballia, 1996 (3) ESC 160	Clarified that Rule 16 of the 1978 Rules makes applicable the provisions of the 1973 Rules (including the appeal provision in Rule 5); held that Rule 5 of Rules 1973 provides for a right of appeal and identified the Chairman of the Board as the prescribed appellate authority in that context.	The Court relied on this decision to conclude that Rule 5 of the 1973 Rules is applicable by way of reference in Rule 16 of Rules 1978 and that, accordingly, there exists a statutory alternative remedy in the form of an appeal (subject to the limitations found in other authorities).

Court's Reasoning and Analysis

(Presented in the sequence used by the Court in the opinion.)

The Court first considered the preliminary contention about the availability of an alternative statutory remedy. The petitioner relied on Ram Nayan Shukla to argue that no alternative remedy existed; the Standing Counsel relied on later Division Bench authority (Baba Sobha Mani) to contend that an appeal remedy does exist under the rules by virtue of Rule 16 of Rules 1978 and the applicability of Rules 1973.
The Court examined the authorities. It noted that in Ram Nayan Shukla Rule 5 of Rules 1973 was not placed before the Court in that case, and therefore that decision could not be treated as resolving the present question definitively. The Court further considered the later precedents (including Janta Vidyalaya Athilapura and Baba Sobha Mani) which clarified the relationship between Rule 16 of Rules 1978 and the Rules 1973.
On the textual and precedential material, the Court concluded that Rule 16 of Rules 1978 makes the provisions of the 1973 Rules applicable by reference and that Rule 5 of Rules 1973 (providing for appeal) is therefore applicable in such disciplinary matters; the appellate authority in that framework is identified in the schedule to the 1973 Rules (and in the cited authority as the Chairman of the Board in a comparable case). Thus, the Court found there is a statutory alternative remedy of appeal.
The Court nevertheless emphasised the settled principle that the mere existence of an alternative remedy does not amount to an absolute bar to relief under Article 226 of the Constitution (the Court cited the legal context that after the deletion of Clause (3) of Article 226 alternative remedies are not an absolute bar). The Court therefore proceeded to consider the merits.
On the merits, the Court found two distinct statutory and fundamental infirmities in the impugned dismissal:
- Violation of principles of natural justice: the petitioner was not afforded an opportunity of hearing in the alleged enquiry (a breach of audi alteram partem), thereby engaging Article 14 considerations as to fair treatment.
- Non-compliance with the mandatory procedural requirement of prior approval: Rule 15 of Rules 1978 requires the prior written approval of the District Basic Education Officer before discharge, removal, dismissal or reduction of a Headmaster or assistant teacher of a recognised school; the Court held that "prior approval" means approval obtained before the dismissal order is passed, and a subsequent approval cannot validate an earlier dismissal passed without prior approval.
Applying those principles to the record, the Court observed that the dismissal order (recorded in the opinion as passed on 16.04.2003 in one place and elsewhere identified by the parties as 16.05.2003) preceded the purported approval dated 08.05.2003 by the District Basic Education Officer. Because the dismissal was passed without prior approval and without affording the petitioner a hearing, the Court found violation of mandatory statutory provisions and the principles of natural justice.
Consequently, the Court determined that the impugned dismissal order and the subsequent approval were contrary to the statute and the requirements of natural justice; therefore they could not stand.

Holding and Implications

Core Holding: The writ petition is allowed; the impugned dismissal order and the approval are quashed; the petitioner shall be reinstated in service and is entitled to salary and other benefits in accordance with law.

Direct consequences for the parties:

The impugned dismissal order (as recorded in the opinion) and the subsequent approval by the District Basic Education Officer are quashed for non-compliance with the mandatory requirement of prior approval under Rule 15 of Rules 1978 and for failure to afford a hearing (violation of natural justice).
The petitioner is reinstated and is entitled to salary and other benefits in accordance with law.
The Management Committee is at liberty to initiate fresh proceedings and pass any appropriate order in accordance with law (i.e., compliant with procedural requirements and principles of natural justice).
No order as to costs was made by the Court.

Broader implications: The opinion reasons on the interplay between Rule 16 of Rules 1978 and the Rules 1973 (including Rule 5 of Rules 1973) and confirms that there is a statutory right of appeal by reference. However, the Court proceeded to exercise supervisory jurisdiction under Article 226 because it found material violations on the merits; the opinion does not purport to lay down a broader novel precedent beyond the application of established authorities cited in the judgment.

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Harpal Singh v. State Of U.P. And Others

Heard learned counsel for the petitioner, learned Standing Counsel and perused the record.

Present writ petition has been filed with a prayer to issue a writ of mandamus commanding the respondents to reinstate the petitioner on the post of Assistant Teacher and to pay the entire arrears of salary and continue to pay the current salary as and when falls due. Subsequently, the petition and prayer was amended when amendment application was allowed with permission of the order of the Court dated 6.8.2004 and prayer was added to issue writ in the nature of certiorari quashing the impugned dismissal order dated 16.5.2003 passed by Manager of the Institution and the order dated 8.5.2003 passed by respondent no. 2 Basic Shiksha Adhikari, Bulandshahar (Annexure 2 and 3 respectively).

Counsel for the petitioner submitted that the petitioner was appointed as Assistant Teacher in the year 1995 and in the year 1997 he was selected for Tribhasha Sahayak Adhyapak. There was no complaint against the work and conduct of the petitioner of any kind. Subsequently, the petitioner was suspended vide order dated 10.5.2002 without disclosing any reason and charges. Thereafter the letter dated 25.5.2002 was issued to the petitioner to file reply to the charges mentioned therein. The petitioner submitted his reply on 27.5.2001. Nothing was found against the petitioner, however, the respondent No. 3, Committee of management served the charge sheet dated 3.6.2002 stating therein that the petitioner has beaten the students and misbehaved with them. Again the reply was submitted against the charge sheet on 8.7.2002 and also adduced evidence in support of his defence. Thereafter the petitioner has not heard anything regarding the enquiry and no opportunity for hearing was given. Subsistence allowance was not paid to the petitioner. Since there was no option, hence, the writ petition was filed. When the reply was submitted, the application of the parents of the students were also filed to the effect that the petitioner has never punished them nor misbehaved. Subsequently, in the counter affidavit filed by one Rajesh Kumar Singh, Principal, on behalf of the respondent No. 3 Committee of Management, it was informed that the petitioner was dismissed from service and the same was approved by Basic Siksha Adhikari (hereinafter referred to as "B.S.A.") by the order dated 08.5.2003. Thereafter the petition and prayer was amended with permission of the Hon'ble Court and the dismissal and approval was also challenged.

Counsel for the petitioner further contended that the enquiry report, if any, was behind back of the petitioner no opportunity of hearing was afforded and apart from that the dismissal order dated 16.4.2003 was without approval of the B.S.A. The prior approval was required in view of the Rule 15 of the Uttar Pradesh Recognised Basic Schools (Junior High Schools)(Recruitment and Conditions of Service of Teachers) Rules, 1978 (hereinafter referred to as "Rules 1978"). But in the present case there was no prior approval hence the order of dismissal as well as the subsequent alleged approval is against the provision. Hence, in view of the fact, the same was liable to be set aside.

Learned Standing Counsel submitted that in the present case in view of the Rule 16 of Rules 1978, the provision of disciplinary proceedings of U.P. Basic Education Staff, Rules 1973 (hereinafter referred to as "Rules 1973") is applicable and hence, there is alternative remedy of filing appeal against the order of approval passed by the District Basic Education Officer, hence this petition is not maintainable. However, as far as the provision for prior approval before order of dismissal is concerned, this provision is not disputed.

Considered the submissions of counsel for the parties. As far as the objection regarding whether there is alternative remedy or not, counsel for the petitioner submitted that the provision of rules 1973 which relates to the disciplinary proceedings is applicable. However, as far as the appeal as provided in Rule 5 is concerned, that is not part of the disciplinary proceeding. Hence, that will not be applicable and there is no alternative remedy of appeal. He has relied the judgment of Division Bench of this Court in Ram Nayan Shukla Vs. The District Basic Education Officer, Gorakhpur, 1981 UPLBEC 127.

The Standing counsel submitted that in view of the subsequent Division Bench judgment of this Court in the case of Committee of Management, Baba Sobha Mani Laghu Madhyamik Vidyalaya, Chero Bharti, Deoria Vs. Director of Education (Basic)/Chairman, U.P.Basic Shiksha Parishad, Lucknow 2007-LAWS(ALL)-3-52 and there is an alternative remedy of appeal. However, Standing Counsel has not disputed the prior approval before by the District Basic Education Officer, order of dismissal is passed.

Paragraphs 6 to 10 of the judgment of the Division Bench of this Court in the case of Ram Nayan Shukla (Supra) are quoted herein below:

"6. A perusal of the above would show that Rule 16 makes applicable to the teachers of a "recognised school", as defined in Rule 2 (g), the Rules applicable to the teachers of a Basic School established or maintained by the Board. So far as disciplinary proceedings are concerned.

7. Rule 12 of 1975 Rules reads as follows:-

"12. Appeal against the orders of the District Basic Education Officer-

A teacher or the management feeling aggrieved from an order under Rule 11 passed by the District Basic Education Officer may within thirty days from the date of communication of such order, appeal to the Board and the order passed in such appeal by the Board or persons authorised by the Board shall be final".

8. Rule 11 refers to an order dismissing, removing or terminating the services of a teacher of a recognised school. The expression 'recognised school' is defined in Rule 2 (6) of 1975 Rules as follows:-

"2. (a) "Recognised School" means any junior Basic School, not being an institution belonging to or wholly maintained by the Board or any local body, recognised by the Board before the commencement of these rules imparting education from Classes I to V"

9. Now since Rule 12 of 1975 Rules does not apply to Schools established or maintained by the Board and Rule 16 of 1978 Rules speaks of rules relating to schools established or maintained by the Board, it cannot be successfully urged that the petitioner had an alternative remedy of appeal under Rule 16 of 1978 Rules read with Rule 12 of 1975 Rules.

10. Further, now after the deletion of Clause (3) of Article 226 of the Constitution, alternative remedy is not an absolute bar. In the instant case as have heard counsel for both the parties at length with regard to the merits of the case. It would, therefore, not be expedient to throw out the case on the ground of alternative remedy even if the petitioner has an alternative remedy under some rules or regulations not referred to us."

In case of Ram Nayan Shukla, the Rule 5 of U.P.Basic Educational Staff Rule 1973 was not brought to notice of the Court, which is applicable, in view of the reference of aforesaid rule in Rule 16 of U.P.Recognised Basic Schools (Junior High School) (Recruitment and Condition of Service of Teachers) Rules, 1978.

As far as the right of appeal is concerned this was directly considered in the judgment of Committee of Management, Baba Sobha Mani Laghu Madhyamik Vidyalaya Vs. Director of Education (Basic). Para 8 of the aforesaid case is quoted herein below:

" 8. A perusal of said Rule goes to show that right to appeal has only been conferred on teachers and employees. These Rules are applicable to the employees of the Board as well as teachers and other employees of the institution which are managed and administered by U.P. Basic Education Board directly. They are not institutions managed privately by the Committee of Management constituted under their own bye-laws and for this reason the Rules do not contain any provision conferring any right of appeal on the management and such right has only been provided to the employees and teachers. Provision of appeal contained in 1973 Rules, have been made applicable to 1978 Rules by way of reference. Since, the rule which has been borrowed by way of reference does not confer any right of appeal on the appointing authority, no right of appeal would be available to the Committee of Management under 1978 Rules, against an order of Basic Education Officer disapproving the action taken by the management imposing punishment upon Headmaster and teachers of the institution."

This question was again considered in the case of Committee of Management Janta Vidyalaya Athilapura, District Ballia Vs Basic Shiksha Adhikari Ballia 1996 (3) ESC 160. Para 3 and 4 of the aforesaid judgment is reproduced herein below:

"3. On examination of the materials, it appear that reference to Rule 12 of U.P. Recognised Basic Schools (Recruitment and Conditions of Service of Teachers) Rules, 1975 was erroneous. The appropriate rule is Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers, Rules, 1978. In Rule 16 of the said Rules, it is provided that in respect of disciplinary proceedings and the punishment to be inflicted in such proceedings a Headmaster or assistant teachers, as the case may be, of a recognised school shall be governed by the rules applicable to Headmaster and assistant teacher of a Basic School established or maintained by the Board. Rule 16 of the Rules is applicable to Headmaster or assistant teacher of recognised Junior High School. Therefore, rule applicable to Headmaster or assistant teacher of Junior High School is Uttar Pradesh Basic Educational Staff Rules, 1973 Rules 5 whereof makes the provisions of appeal. As provided in the Schedule to the said Rules, in this case the prescribed appellate authority is the Chairman of the Board.

4. On consideration of the entire matter, we are of the view that the appellant should prefer an appeal to the aforementioned appellate authority by 31st August, 1996 and the appeal should be disposed of expeditiously. To cut out the delay, we further direct that the appellant and respondent No. 2 will appear before the Board personally or through their representative on 4th September, 1996 and the appellate authority will dispose of the appeal on merits by 31st October, 1996. It would be open to the respondent No.2 to file an application seeking interim order regarding payment of his salary and if such an application is filed, the appellate authority will consider the same and dispose it of expeditiously in accordance with law. It is ordered, accordingly, the special appeal is disposed of."

In view of the aforesaid judgment it is clear that the provisions of rule 1973 are applicable on reference made in Rule 16 of Uttar Pradesh Recognised Basic Schools (Junior High Schools)(Recruitment and Conditions of Service of Teachers) Rules, 1978. Since there is a statutory provision of appeal and in view of the aforesaid Division Bench judgments, Rule 5 of the rule 1973 is applicable, hence, there is an alternative remedy of filing appeal, however, as far as the relief to be granted in the writ petition under Article 226, is concerned, it is well settled that alternative remedy is no absolute bar. The present petition is of the year 2006. In the present case, the order of dismissal is against the provision. In the alleged enquiry, no opportunity was given hence there is violation of principle of natural justice. Observance of principle of natural justice is requirement of Article 14 of the Constitution of India since there is violation of rule of audi alteram partam, hence, there is no observance and compliance of requirement of Article 14. Apart from that as far as the order of dismissal is concerned, there was no prior approval by the District Basic Education Officer. In view of the provision under Rule 15 of Rules 1978, the prior approval of the District Basic Education Officer is required. Rule 15 is reproduced herein below:

" Termination of Service - No Headmaster or assistant teacher of a recognised school may be discharged or removed or dismissed from service or reduced in rank or subjected to any diminution in emoluments or served with notice of termination of service except with the prior approval in writing of the District Basic Education Officer."

(Emphasised).

Provided that in case of Headmaster or assistant teacher of a minority institution where the approval of the District Basic Education Officer shall not be necessary.

In the present case, there is no dispute that the present institution is not a minority institution and it is a recognised basic school imparting education from class VI to VIII. If there is a specific provision in the statute that the prior approval of the District Basic Education Officer is required then prior approval means the approval in between the proceeding for dismissal and the order of dismissal is passed. If there is no prior approval, then the subsequent approval will not validate the order of removal and dismissal.

In the present case, admittedly, the order of dismissal was passed without affording opportunity and without approval of the District Basic Education Officer. The order of dismissal was passed on 16.4.2003 and subsequently approval was granted on 8.5.2003 by the District Basic Education Officer, Bulandshahar. In view of the fact, there is violation of mandatory provisions. Hence, the impugned dismissal order and approval being against the statute are hereby quashed. The petitioner shall be reinstated in service and he is entitled for the salary and other benefits, in accordance with law. However, the Management Committee is free to take fresh appropriate action and to pass a fresh order in accordance with law.

Accordingly, the present writ petition is allowed.

No order as to cost.

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Harpal Singh v. State Of U.P. And Others

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondent / Standing Counsel's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Harpal Singh v. State Of U.P. And Others

Comments