Arya Kanya Pathashala v. Manorama Devi Agnihotri — 1971 DIGILAW 273 (ALL)

JUDGMENT S.N. Dwivedi, J. - In this case we are concerned with the office of the Head Mistress in the Arya Kanya Pathshala, Higher Secondary School, Pilibhit. The office was vacant. Smt. Manorama Devi Agnihotri, the first respondent, was appointed to the office by the managing committee of the institution. She was appointed by an order of the Manager of the institution dated June 23, 1964. By a subsequent order dated July 9, 1965, her service was terminated. Against the order of termination she filed a writ petition in this Court. The petition was allowed and the order was quashed. Hence this appeal by the institution. 2. The learned single Judge found that the order terminating her service was made without obtaining the approval of the Inspectress of Schools. Counsel for the appellant has submitted that as the first respondent had not been validly appointed, no approval of the Inspectress of Schools was needed in her case. This argument was also raised before the learned Judge. But he did not accept it. 3. The institution is governed by the provisions of the Intermediate Education Act, 1921 (hereinafter called the Act) . Sec. 16-F (1) , in so far as it is material to this case, provides : "............ no person shall be appointed as a Principal, Headmaster or teacher of any recognised institution unless he :- (a) possesses the prescribed qualifications or has been exempted under Sub-sec. (1) of Sec. 16-E; (b) has been recommended by selection committee constituted under Sub. Sec. (2) or (3), as the case may be, of the said section and approved, in the case of Principal or Headmaster by the Regional Deputy Director, Education, and in the case of a teacher by the Inspector ........................." Sub-Sec. (2) of Sec. 16-F provides for the mode of selection and the approval. It also states that the Inspector or the Regional Deputy Director, Education, as the case may be, shall give his approval within two weeks of the receipt of the relevant papers from the institution. It also states that the Inspector or the Regional Deputy Director, Education, as the case may be, shall give his approval within two weeks of the receipt of the relevant papers from the institution. If he fails to accord his approval within the said period, the approval "shall be deemed to have been accorded." Sec. 16-G (3) provides that no Principal, Headmaster or teacher 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 Inspector. 4. The fate of this appeal hinges on the construction of the aforesaid provisions of Sec. 16-F and Sec. 16-G. Admittedly the service of the first respondent was terminated without obtaining prior approval in writing of the Inspectress. Prima facie, there seems to be contravention of the provisions of Sec. 16-F (3) (a) . But on a careful scrutiny of the aforesaid two provisions we are of opinion that the breach of the provisions of Sec. 16-G (3) (a) will not avail the respondent. 5. Sec 16-F(l) provides that no person shall be appointed as a Principal unless, inter alia, the selected candidate for the post has been approved by the Regional Deputy Director, Education. Two expressions in Sub-Sec. (1) are significant. The first expression is "shall be appointed"; the second is "unless he has been approved." These two expressions show that the act of approval should precede the act of appointment. In some context the word "approved" may mean ratification. But in Sub-Sec (I) the word "approval" would not mean ratification as it is the condition precedent for appointment of a person as the Principal of an institution. There it means permission of prior approval. 6. We think that Sec. 16-F (1) is mandatory and not directory. The section is expressed in a prohibitory language "no person shall be appointed as a Principal unless he has been approved by the Regional Deputy Director, Education." Secondly, the object of the section is to ensure higher academic standards in an institution. An efficient teaching staff of an institution will improve the academic standards. It is well known that before Sec. 16-F was introduced into the Act, managers and managing committees of private institutions in this State could not appoint an efficient teaching staff on account of favouritism and nepotism. An efficient teaching staff of an institution will improve the academic standards. It is well known that before Sec. 16-F was introduced into the Act, managers and managing committees of private institutions in this State could not appoint an efficient teaching staff on account of favouritism and nepotism. In the result educational standards suffered. So the legislature introduced Sec. 16-F. A check was put on the powers of managers and managing committees to appoint the teaching staff. The check was the prior approval of the Regional Deputy Director, Education in case of the Principal, and the Inspector in case of a teacher. Those officers are expected to act impartially and fairly. The high importance of the object of Sec. 16-F (1) cannot be gainsaid. If the section is construed as directory, the object will largely be frustrated. 7. Our view is also suggested by Sub-sec. (2) of Sec. 16-F. As already stated, it provides that the Inspector or the Regional Deputy Director, Education, as the case may be, shall give his approval within two weeks of the receipt of the relevant papers. If the approval is not accorded within the said period, it "shall be deemed to have been accorded." As Sub-Sec. (1) of Sec. 16-F puts a ban on appointment without prior approval, Sub-Sec. (2) ensures a quick approval and, failing quick approval, an irrebuttable presumption that approval has been accorded. The quick approval and the irrebuttable presumption are designed to ensure a quick appointment so that the education of students may not suffer unnecessarily. If the legislature had intended that appointment may precede approval, we fail to understand the legislative anxiety for a quick approval and the provision for an irrebuttable presumption. 8. Considering the language and object of Sec. 16-F (1) and its context, we are of opinion that it is mandatory. If a person is appointed as the Principal of an institution without prior approval of the Regional Deputy Director, Education, the appointment is, in the eye of law, no appointment at all. In the State of Punjab v. Jagdip Singh, A.I.R. 1964 S.C. 521, certain persons were appointed as Tahsildars in the State of Pepsu. Later they were confirmed as Tahsildars although there were no posts on which they could be confirmed. The State of Pepsu was subsequently merged in the State of Punjab. The State of Punjab than cancelled the order of confirmation. Later they were confirmed as Tahsildars although there were no posts on which they could be confirmed. The State of Pepsu was subsequently merged in the State of Punjab. The State of Punjab than cancelled the order of confirmation. The order was challenged in court. By majority the Supreme Court sustained the order. It was held that as there were no posts to which there could be an appointment, the appointment was illegal. It was further held that when, on account of the appointment being illegal, the order is subsequently cancelled there would be no breach of the provisions of Article 311 (2) of the Constitution. 9. At page 524 of the report the Supreme Court observed : "The order .......... confirming the respondents as permanent Tahsildars must, therefore, be held to be wholly void." At page 525 of the report, the Supreme Court further observed :- "In our opinion where a Government servant has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give he will not in law be deemed to have been validly appointed to the post or given the particular status." In the instant case the first respondent was appointed without prior approval. Accordingly the appointment was void. Although he has been acting as Head Mistress of the institution without prior approval, it cannot be deemed that she was holding office of the Head Mistress. Her appointment without the prior approval of the Regional Deputy Director, Education will not, in view of the Supreme Court's observation, be deemed to confer the status of the Head Mistress on her. 10. Section 16-G (3) provides for prior approval of the Inspector of Schools before the Principal of an institution is discharged from service. Admittedly there was no prior approval of the Inspectress of Schools. So the argument on behalf of the first respondent is that she was illegally discharged from service. But we think that Sec. 16-G (3) will apply only to a case where the Principal or the teacher has been validly appointed in confirmity with the provisions of Sec. 16-F. As in the instant case the first respondent had not been appointed in conformity with the said provision, Sec. 16-G(3) will not be attracted. 11. But we think that Sec. 16-G (3) will apply only to a case where the Principal or the teacher has been validly appointed in confirmity with the provisions of Sec. 16-F. As in the instant case the first respondent had not been appointed in conformity with the said provision, Sec. 16-G(3) will not be attracted. 11. It appears that after asking her to act as Head Mistress, the manager of the Institution sent the relevant papers to the Inspectress of Schools for approval. The Inspectress of School returned the papers informing that the papers should be sent to the Regional Deputy Director, Education for approval. The papers were, for reasons not known, not sent to the Regional Deputy Director, Education, and the first respondent was discharged from service. It is submitted that as the approval of the Regional Deputy Director, Education could not be obtained on account of the mistake of the institution, it cannot profit by its own wrong. We are unable to accept this argument for we have already held that Sec. 16-G (3) will not apply to a case where the appointment is made in breach of the provisions of Sec. 16-F (1) . 12. The learned single Judge has held that the word "approved" in Sec. 16-F (1) means subsequent approval. He has relied on, Shakir Husain v. Chandoo Lal, AIR 1931 Allahabad 567. That decision is based on a provision of law with the language and object radically different from the language and object of Sec. 16-F (1). It is, therefore, of little assistance in the present case. We have already indicated that the language of Sec. 16-F (1) shows that the word "approved" means prior approval and not subsequent approval. 13. We cannot conclude this case without remarking that the manager of the institution had acted in complete violation of the provisions of Sec. 16-F (1) when it appointed the first respondent to the post of the Head Mistress without prior approval of the Regional Deputy Director, Education. We hope that in future no appointment of the Head Mistress or a teacher of the institution shall be made until prior approval has been obtained. 14. The appeal is allowed and the judgment of the learned single Judge is set aside. The Writ Petition is dismissed. But as the appellant is responsible for this litigation, no costs are granted.