Ram Swaroop Tyagi And Others vs State Of U.P. Thru' Principal ...
2013 Latest Caselaw 1368 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 10
 

 
Case :- WRIT - C No. - 52696 of 2007
 

 
Petitioner :- Ram Swaroop Tyagi and others
 
Respondent :- State Of U.P. Thru' Principal Secretary And Others
 
Petitioner Counsel :- K. Ajit
 
Respondent Counsel :- C.S.C.,Ajay Kr. Sharma,Arvind Srivastava-Iii,Bhola Nath Yadav,Pramod Bhardwaj
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Heard Sri K.Ajit, learned counsel for petitioners, learned Standing Counsel for the State, Sri Bhola Nath Yadav, learned counsel appearing for respondents no.2 to 4 and Sri Ajay Kumar Sharma, learned counsel appearing for respondent no.5-Committee of Management of Nehru Kisan Vidyalaya Junior High School, Nakud, Saharanpur.

Nehru Kisan Vidyalaya Shiksha Parishad, Nakud, Saharanpur runs a Junior High School in the name of Nehru Kisan Vidyalaya Junior High School, Nakud, Saharanpur. Initially, the institution was recognized in the name of Shri Nehru Primary Pathshala, Nakud and later on, the institution was raised to the level of Junior High School in the year 1966 and the provisional recognition was granted to Nehru Kisan Vidyalaya Junior High Schol, Nakud, Saharanpur on 24.11.1966. The said provisional recognition continued on year to year basis till the institution was ultimately granted permanent recognition on 04.11.1977.

Under challenge in the instant writ petition is the notification dated 24.09.2007 issued by the Secretary, Uttar Pradesh Basic Shiksha Parishad, whereby the decision of Uttar Pradesh Basic Shiksha Parishad to de-recognize the institution in question has been communicated.

Learned counsel for the petitioners vehemently attacking the impugned decision of Basic Shiksha Parishad whereby institution has been de-recognized, has submitted that impugned decision is absolutely illegal and in derogation of the provisions contained in Section 12 of the Uttar Pradesh Basic Education Act, 1972 (hereinafter referred to as 'Act'). According to learned counsel for petitioners, an institution can be de-recognized by the Basic Shiksha Parishad only on reference to the said effect being made by Director, Basic Education to the Parishad. In support of his submission, he has referred to Section 12 of the Act, which is quoted herein below:-

"12. Control over Basic Schools-(1) The Director may from time to time, inspect or cause to be inspected any basic school [ * * *] and also the records and proceedings of the local body concerning or connected with discharge of the functions of the local body in respect of basic education.

[(2) The Director may direct the management of a basic school to remove any defect or deficiency found on inspection or otherwise.

(3) If the management of a basic school fails to comply with any direction made under sub-section (2) the Director may, after considering the explanation or representation, if any, given or made by the management, refer the case to the Board for withdrawal of recognition of such school.

(4)On receipt of a recommendation under sub-section (3) in respect of any basic school, the Board may withdraw the recognition of that school. ]"

According to learned counsel for petitioners in case of failure by the Management of a Basic School to comply with any directions issued by the Director, the Director can refer the matter to Basic Shiksha Parishad for withdrawal of recognition, that too, after considering the explanation or representation made by the Management. He has categorically stated that admittedly in this case no such reference as is required to be made under Section 2 (3) of the Act was ever made and the impugned decision by the Basic Shiksha Parishad has been taken only on the report/letter dated 22.06.2007 submitted by the Basic Shiksha Adhikari, Saharanpur.

Sri Ajit, learned counsel for petitioners taking aid of the provisions contained in Section 12 of the Act has argued that scheme of Section 12 of the Act for de-recognizing a basic school does not envisage any report or letter to be submitted by the Basic Shiksha Adhikari on which Parishad can act upon; rather it is the Director on whose reference under sub-section 3 of Section 12 of the Act, decision to de-recognize any basic school can be taken by Basic Shiksha Parishad.

On the other hand, learned counsel appearing for Basic Shiksha Parishad has raised a preliminary objection as regards the maintainability of the writ petition on behalf of the petitioners, who are teachers in the institution. He has further submitted that the impugned decision is not referable to Section 12 of the Act, rather it has been taken by Basic Shiksha Parishad in exercise of its power conferred on it under Rule 14 of the Uttar Pradesh Recognized Basic Schools (Recruitment and Conditions of Service of Teachers and Other Conditions) Rules, 1975 (hereinafter referred to as 'Rules, 1975) which have been framed under Section 19 of Uttar Pradesh Basic Education Act, 1972. He submits submitted that the recognition of Basic School can be withdrawn under Section 12 of the Act by the Parishad only in case of non-compliance of some directives issued by the Director of Basic Education. He has further stated that in the instant case since there is no allegation of non-compliance of any directives issued by the Director, as such the impugned order is not referable to Section 12 of the Act and the impugned decision by the Basic Shiksha Parishad has been taken in its power vested in it under Rule 14 of the Rules, 1975.

Sri Ajay Kumar Sharma, learned counsel appearing for the Committee of Management has refrained from stating any thing about the impugned order, rather he has only stated that the petitioners who are teachers in the institution, in the garb of challenging the order which is impugned in the instant writ petition are trying to consolidate their case regarding the dispute relating to their service in the institution.

Dealing with the preliminary objection raised by learned counsel appearing for the Basic Shiksha Parishad to the effect that the decision of de-recognition which is under challenge in the instant petition cannot be permitted to be challenged by the petitioners for the reason that they being teachers cannot be said to be aggrieved persons and hence, on their instance, the writ petition is not maintainable, learned counsel for the petitioners has placed reliance on a judgement of this Court reported in 2000 (2) A.W.C. 1150, Committee of Management, Navli Inter College, Navli vs Raj Narain Singh and others and has stated that the petitioners being teachers in the institution have sufficient interest in the matter so as to maintain the instant writ petition.

As regards the judgement of Committee of Management, Navli Inter College, Navli (supra) relied upon by the learned counsel for petitioners, it may be noticed that in the said case, an attempt was made by the college management to upgrade the institution upto intermediate level and further to finish the primary school where the petitioners in the said case were employed teachers. The writ petition filed by the petitioners in the aforesaid matter was allowed by the Hon'ble Single Judge and thereafter Special Appeal was preferred by the Committee of Management which was dismissed by a Division Bench of this Court observing therein inter alia that in the circumstances, the Court is unable to certify that the learned Judge was in error in passing the judgement on the petition of ten primary school teachers.

In the aforesaid case of Committee of Management, Navli Inter College, Navli (supra), action which was challenged by the teachers of the primary section of the institution was the attempt to abolish the primary section of the institution. Though, it is the prerogative of the Committee of Management to run any institution or abandon the same but in the facts and circumstances of the case, the Hon'ble Single Judge held that the petition on behalf of the petitioners, who were teachers of primary school was maintainable. The view expressed by the Hon'ble Single Judge was affirmed by the Division Bench of this Court.

In the instant case, though the order under challenge is the decision of de-recognition of the institution by Basic Shiksha Parishad but teachers being employed in the institution have sufficient interest and hence, the writ petition on behalf of them is to be held to be maintainable in view of the judgement of this Court in the case of Committee of Management, Navli Inter College, Navli (supra).

For yet another reason, the Court holds that writ petition is maintainable and the reason is, though the impugned order de-recognizes the school being run by the Committee of Management but throwing the interest of the students at bay, the Committee of Management has not assailed the same in any forum.

In view of these circumstances and also in view of the aforesaid Division Bench judgement of this Court, I am of the considered view that the writ petition on behalf of the petitioners is maintainable.

Now coming to the other argument of learned counsel for Basic Shiksha Parishad that the impugned decision taken by the Basic Shiksha Parishad is not referable to Section 12 of the Act, rather it has been passed in exercise of power conferred on Basic Shiksha Parishad under Rule 14 of the Rules, 1975, it is to be examined as to whether the impugned decision can be said to have been passed under Section 12 of the Act or not.

A perusal of the impugned decision contained in the notification dated 24.09.2007 issued by the Secretary, Uttar Pradesh Basic Shiksha Parishad reveals that the said decision by Basic Shiksha Parishad has been taken on the basis of report/letter of Basic Shiksha Adhikari, Saharanpur dated 22.06.2007. From the said letter, it appears that Basic Shiksha Adhikari reported that in the financial year 2006-2007 the amount of scholarship sent to the institution by the social welfare department of the State of Uttar Pradesh for 25 students belonging to the category of Scheduled Caste was not disbursed. The said letter further states that for speedy disbursement of scholarship to the students, direction was given by means of letter dated 22.06.2007 to the Principal and the Manager of Institution for opening up a joint bank account and accordingly disbursement of scholarship be made. However, no interest was taken by the Manager or Principal to disburse the scholarship.

It also appears that the impugned decision relies on some inquiry report submitted by the Assistant Basic Shiksha Adhikari, Nakud wherein it has been allegedly stated that the teachers in the institution are negligent in discharging their duties and further that they do not take any interest in teaching. The report of Assistant Basic Shiksha Adhikari, Nakud and the letter/report dated 22.06.2007 sent by the Basic Shiksha Adhikari appear to have been considered by the Parishad in its meeting dated 22.08.2007 and on that basis the decision has been taken to de-recognize the institution purportedly under Section 12 (3) of the Act.

The scheme of Section 12 of the Act confers power of visitation on the Director who is legally permitted to cause inspection from time to time of any basic school. Sub-section 2 of Section 12 of the Act empowers the Director to issue directions to the management of an institution to remove any defect or deficiency, if found on inspection or otherwise. Sub-section 3 of Section 12 of the Act is attracted only in case of failure on the part of management of institution to comply with the directions issued under sub section 2 of Section 12 of the Act, that is to say in case the management fails to comply with the directives issued by the Director under sub section 2, then in that event Director is empowered to make reference to Basic Shiksha Parishad for withdrawal of recognition of the school after providing an opportunity to the Committee of Management to submit explanation or representation.

From a perusal of the impugned order/notification challenged in the instant writ petition, it is clear that in the instant case, the Director never undertook any visit to the institution, neither did he cause any inspection to be carried out. The impugned decision also does not anywhere reflects that any direction by the Director was ever issued to remove any defect or deficiency found in any inspection. In absence of the ingredients of sub sections 1 & 2 of Section 12 of the Act not being fulfilled, the question of taking any decision by the Basic Shiksha Parishad under sub section 3 of Section 12 does not arise at all.

In view of the aforesaid discussion, the Court holds that impugned decision taken by the Basic Shiksha Adhikari is not referable to Section 12 (3) of the Act though impugned notification dated 24.09.2007 says so.

As regards the submission made by learned counsel for Basic Shiksha Parishad that the instant case falls under Rule 14 of the Rules, 1975, I think it appropriate to quote the aforesaid Rule, which runs as under:-

"14.Withdrawal of recognition- Where the Board is satisfied that any breach of the provisions of the Act or these rules has been committed in respect of any recognised school, the Board may, after affording an opportunity of being heard to the managing body or other person managing such school, withdraw its recognition."

The aforequoted Rule 14 empowers the Basic Shiksha Parishad to withdraw the recognition of a basic school on its satisfaction about some breach of provision of the Act or Rules, 1975. The decision to withdraw the recognition under Rule 14 of the Rules, 1975 could have been taken by the Basic Shiksha Parishad only after affording an opportunity of being heard to the managing body or other person of the institution. The impugned decision as communicated by the impugned notification dated 24.09.2007 nowhere states as to which provision of Basic Education Act 1972 or which provision of the Rules, 1975, has been breached. Further, it also does not indicate in any manner that any opportunity of being heard, as envisaged in Rule 14 of the Rules, 1975, was ever provided to the managing body or any other person managing the school. In absence of any finding recorded in the impugned order regarding breach of provisions of the Act or the Rules, 1975, no such order, in my view, withdrawing the recognition of the school in question, could have been passed by the Basic Shiksha Parishad. Further, admittedly since in the instant case, no opportunity of hearing was given to managing body of the school, hence, the impugned decision is not only in violation of the principles of natural justice but the same is also in derogation of the provisions of Rule 14 of the Rules 1975.

For the reasons given and discussions made above, I have no hesitation to hold that the impugned decision is violative of Rule 14 of the Rules, 1975 and is absolutely illegal and is not liable to be sustained.

As regards the submission of learned counsel for Committee of Management that the instant writ petition is nothing but a camouflage created by the petitioners seeking a kind of umbrella in relation to their service dispute, since no such issue in the instant petition has arisen, hence, the Court refrains from making any observation regarding service dispute of the petitioners.

In the result, the writ petition deserves to be allowed.

Accordingly, the writ petition is allowed. The impugned notification/order dated 24.09.2007 regarding withdrawal of recognition of the institution in question issued by the Secretary, Uttar Pradesh Basic Shiksha Parishad, Allahabad and the decision taken by the Basic Shiksha Parishad in its meeting dated 22.08.2007 withdrawing the recognition, are hereby quashed.

However, there will be no order as to cost.

Order Date :- 26.4.2013

Renu/-