Harpal Singh vs State Of U.P. And Others
2012 Latest Caselaw 3950 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
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.