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1966 DIGILAW 518 (ALL)

Ram Achal Singh v. Deputy Director of Education

1966-12-02

SATISH CHANDRA

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JUDGMENT Satish Chandra, J. - This is a petition under Article 226 of the Constitution. It prays, inter alia. that the order dated 30th March, 1966 passed by the Deputy Director Education dismissing the applicant's appeal be quashed. 2. The applicant, it appears. was appoint ed as Head Master of the Shivaji Higher Secondary School with effect from 7th October, 1961. On or about 11th November, 1964 a charge-sheet was sent by the management of the school to the petitioner. The petitioner was suspended by a resolution of the management committee dated 13th December, 1964. The matter was then referred to the District Inspector of Schools for his approval. By its order dated 11th June, 1965 the District Inspector of Schools approved the termination of the petitioner's services. The petitioner thereupon filed an appeal on 7-7-1965 to the Regional Appellate Committee. During the pendency of the appeal, it appears, that the relevant provisions were amended and the appellate power was conferred on the Regional Deputy Director of Education. In view of that provision the appeal came before the Regional Deputy Director of Education IVth Region, the first respondent, who dismissed it by his order dated 30th March, 1966. In paragraph 47 of the petition it has been stated that the first respondent did not inform the petitioner of the date of hearing of the appeal and decided the appeal ex parte. The first respondent has not filed any counter-affidavit to controvert these averments. The District Inspector of Schools likewise has not filed any counter-affidavit. A counter-affidavit has been filed by the third respondent, namely the Committee of Management of the school. It has also not controverted these allegations. It has only said that these averments are denied for want of knowledge. For the third respondent it has been urged that paragraph 47 of the petition has not been sworn on personal knowledge, but on perusal of papers, and as such they should not be relied upon. The swearing clause of the affidavit does appear to be a little vague, but, in view of the fact that none of the respondents has really controverted these allegations I feel that the contents of paragraph 47 contain a correct statement of facts. 3. The question, therefore, is whether the applicant was entitled to any oral hearing of the appeal. The swearing clause of the affidavit does appear to be a little vague, but, in view of the fact that none of the respondents has really controverted these allegations I feel that the contents of paragraph 47 contain a correct statement of facts. 3. The question, therefore, is whether the applicant was entitled to any oral hearing of the appeal. Reliance has been placed for the petitioner on Regulation 89 and 90 of the Regulations framed under the U. P. Education Act, 1921. Regulation 89 say that the President shall call for the necessary papers from the Inspector or the Regional Inspectress and ensure that they are received before the "hearing" starts. Regulation 90 requires the President to fix dates for "hearing" of the appeal. The proviso says that whenever a date is fixed in the absence of any party, at least one week's notice should be given to that party, unless otherwise agreed upon by both the parties. These Regulations clearly make out that the petitioner had a right of hearing. He had a right of notice of the date of hearing, and, if no such notice was given, the order deciding the appeal will clearly be in contravention of these statutory Regulations. 4. For the third respondent it has been urged that these Regulations are ultra vires the rule making powers conferred by Section 15 of the U. P. Education Act, which authorises the Board to make regulations for the purpose of carrying into effect the provisions of the Act. 5. Section 16-G clause (3) of the Act deals with discharge, removal or dismissal of a Principal or a Head Master or a teacher. Clause (c) of this provision, provides for an appeal against the order of an Inspector. It provides that the appellate authority may, after such enquiry, if any, as he considers necessary, confirm, set aside or modify the order. It has been urged that the Act only requires the appellate authority to hold such further enquiry as he considers necessary. He can confirm, set aside or modify the orders even without any further enquiry. It provides that the appellate authority may, after such enquiry, if any, as he considers necessary, confirm, set aside or modify the order. It has been urged that the Act only requires the appellate authority to hold such further enquiry as he considers necessary. He can confirm, set aside or modify the orders even without any further enquiry. Therefore, the regulations which make it incumbent upon the appellate authority to fix a date for the hearing of the appeal and give its-notice to the par-ties even if no further enquiry is contemplated, are beyond the purview of clause (C) and are ultra vires the regulation making powers of the Board. I am not impressed by this submission. A provision for fixing and notifying dates of hearing is not necessarily related to any further enquiry by the appellate authority. It is equally relevant for deciding the appeal. Even if no further enquiry is intended or held, the appeal has nonetheless, to be disposed of. The Act makes a provision for an appeal. It does not lay down the procedure which is to be followed in deciding the appeal. The procedure that may be followed, is a matter, relevant to "carrying into effect", the provision of an appeal. The Regulations 83 to 98 lay down the procedure that is to be followed in deciding the appeal, and they carry into effect the provision of appeal made by the Act. They are intra vires the regulation making power conferred by Section 15 of the Act. 6. The petitioner was entitled to notice of the date fixed for hearing the appeal. The Regional Deputy Director has not come forward to inform the Court whether he fixed any date and if so whether he gave any notice of the date to any of the parties. On the materials before me it has to be accepted that the petitioner was not given any notice of the hearing of the appeal. The Regional Deputy Director was not authorised to decide the appeal ex parte, without giving notice of the date fixed for its hearing. The impugned order, therefore, contravenes the provisions of the Regulations and is, invalid. 7. In this view it is unnecessary to deal with the other points mentioned in the petition. 8. In the result the petition succeeds and is allowed. The impugned order, therefore, contravenes the provisions of the Regulations and is, invalid. 7. In this view it is unnecessary to deal with the other points mentioned in the petition. 8. In the result the petition succeeds and is allowed. The impugned order passed by the first respondent, Deputy Director of Education dated 30th March, 1966 is quashed. The matter is sent back to him for deciding the applicant's appeal in accordance with law. Under the circumstances, it is not necessary to quash the earlier orders of the Inspector or of the Committee as prayed in the petition. Relief B can also not be granted and it cannot be directed that the petitioner be treated as a Principal of the College. Under the circumstances the parties shall bear their own costs. stay order is discharged.