Allahabad High Court
Smt. Vibha Singh vs State Of U P And 3 Others on 14 December, 2023
Author: Manoj Kumar Gupta
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:236730-DB
Court No. - 21
Case :- SPECIAL APPEAL DEFECTIVE No. - 687 of 2023
Appellant :- Smt. Vibha Singh
Respondent :- State Of U P And 3 Others
Counsel for Appellant :- Sankalp Narain,Rajesh Kumar,Samarath Singh,Sr. Advocate
Counsel for Respondent :- C.S.C.,Ram Prakash Srivastava
Hon'ble Manoj Kumar Gupta,Acting Chief Justice
Hon'ble Kshitij Shailendra,J.
1. The appeal is reported to be beyond time by 128 days.
2. Although respondent No. 3 has filed counter affidavit to the delay condonation application but Shri Pramod Jain, learned Senior Counsel appearing for respondent No. 4 has no serious objection in case the delay is condoned. Even otherwise, we find that the explanation furnished in the affidavit is satisfactory.
3. Accordingly, in the interest of justice, delay is condoned.
4. Office is directed to allot regular number to the instant appeal.
Order Date :- 14.12.2023
Mukesh Kr.
(Kshitij Shailendra,J.) (Manoj Kumar Gupta,A.C.J.)
Neutral Citation No. - 2023:AHC:236730-DB
Case :- SPECIAL APPEAL DEFECTIVE No. - 687 of 2023
Appellant :- Smt. Vibha Singh
Respondent :- State Of U P And 3 Others
Counsel for Appellant :- Sankalp Narain,Rajesh Kumar,Samarath Singh,Sr. Advocate
Counsel for Respondent :- C.S.C.,Ram Prakash Srivastava
Hon'ble Manoj Kumar Gupta,Acting Chief Justice
Hon'ble Kshitij Shailendra,J.
1. The instant intra-court appeal is directed against order dated 10.04.2023, whereby, learned Single Judge has dismissed the writ petition of the appellant (Writ-A No. 66868 of 2010) on the ground of availability of alternative remedy.
2. The appellant was Principal in a minority institution. She challenged the order of dismissal from service dated 30.10.2010 passed by the Manager, Shri Digambar Jain Kanya Inter College, Saharanpur and the resolution of the Committee of Management of the same day. The writ petition was duly entertained and the parties exchanged their pleadings. When the matter was listed before the Court after exchange of pleadings, on objection raised by counsel for respondent No. 4 that the petitioner had an alternative remedy, writ petition was dismissed on the said ground.
3. Learned counsel for the appellant contended that the order of learned Single Judge is manifestly illegal inasmuch as the appellant had no remedy of appeal available to her. Moreover, after exchange of pleadings, the writ petition should have been heard on merits.
4. Shri Pramod Jain, learned Senior Counsel appearing for respondent No. 4 tried to submit that the appeal would lie to the Regional Deputy Director of Education (now Joint Director of Education) as per Clause (c) of sub-section 3 of Section 16-G of U.P. Intermediate Education Act, 1921 and therefore the order of learned Single Judge is perfectly legal.
5. Learned counsel for the appellant submitted that the said provision is not attracted to the facts of the instant case inasmuch as the institution in question is a minority institution and as per the judgment of Supreme Court in C/M St. John Inter College vs. Girdhari Singh and others, reported in AIR 2001 SC 1891, Section 16-G(3) would not get attracted to a minority institution where no prior approval of the Inspector is required for terminating the service of Principal or teaching staff. It is urged that consequently there was also no order of Inspector in existence approving or disapproving the dismissal order. The appeal under clause (c) is maintainable against the order of Inspector which admittedly was not in existence. Therefore, the dismissal of the appeal on the ground of alternative remedy is erroneous in law. The relevant portion of sub-section (3) of Section 16-G is extracted below:
"(3) (a) No Principal, Headmaster or teacher may be discharged or removed or dismissed from service or reduced in rank or subjected to any diminution in emolutions, or served with notice of termination of service except with the prior approval in writing of the Inspector. The decision of the Inspector shall be communicated within the period to be prescribed by regulations.
(b) The Inspector may approve or disapprove or reduce or enhance the punishment or approve or disapprove of the notice for termination of service proposed by the management :
Provided that in the cases of punishment, before passing orders, Inspector shall give an opportunity to the Principal, the Headmaster or the teacher to show cause within a fortnight of the receipt of the notice why the proposed punishment should not be inflicted.
(c) Any party may prefer an appeal to the Regional Deputy Director, Education, against an order of the Inspector under clause (b), whether passed before or after the commencement of the Uttar Pradesh Intermediate Education (Sanshodhan) Adhiniyam, 1966, within one month from the date of communication of the order to that party, and the Regional Deputy Director may, after such further enquiry, if any, as he considers necessary, confirm, set aside or modify the order, and the order passed by the Regional Deputy Director shall be final. In the case the order under appeal was passed by the very person holding the office of Regional Deputy Director, while acting as Inspector, the appeal shall be transferred by the order of the Director to some other Regional Deputy Director for decision, and the provisions of this clause shall apply in relation to decision by that other Regional Deputy Director as if the appeal had been preferred to himself."
6. Indisputably, there is no order of Inspector in the instant case approving or disapproving the dismissal order. Consequently, clause (c) would also not be attracted whereunder an appeal is contemplated before the Regional Deputy Director of Education (now Joint Director of Education) against an order of Inspector passed under clause (b). Moreover, as contended by learned counsel for the appellant, the Supreme Court in C/M St. John Inter College (supra) has held that the Managing Committee of minority institution exercises full control over its employees and it does not require prior permission of Competent Authority in case of termination of their services.
7. At this stage, Shri Pramod Jain, counsel for respondent No. 4 submitted that in pursuance of order of this Court dismissing the writ petition on the ground of availability of alternative remedy, the appellant had preferred the appeal before the Joint Director of Education and it has also been dismissed by order dated 22.08.2023. We have perused the said order. The appeal has been dismissed on the ground of delay of twelve years and five months during which period the writ petition remained pending. It is not an order on merits. Moreover, as noted above, the appeal though preferred was itself not maintainable. If we do not interfere with the order of learned Single Judge, the appellant would be rendered remediless. Therefore, in our opinion dismissal of the appeal on the ground of limitation would have no effect on the instant appeal.
8. Having regard to the above discussion, we set aside the order of learned Single Judge dated 10.04.2023 and restore the writ petition to its original number for being decided on merits in accordance with law.
9. In the result, the instant appeal stands allowed to the extent indicated above.
10. No order as to costs.
Order Date :- 14.12.2023
Mukesh Kr.
(Kshitij Shailendra,J.) (Manoj Kumar Gupta,A.C.J.)
