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1983 DIGILAW 485 (ALL)

Kamla Sharma v. Commissioner

1983-07-26

GOPINATH, K.N.SINGH

body1983
JUDGMENT K.N. Singh, J. - By means of this petition under Article 226 of the Constitution the Petitioner has claimed relief for quashing the order of the Commissioner, Agra Division, Agra dated 16-10-1976 setting aside the Petitioner's promotion and appointment as a teacher in LT grade. 2. Municipal Board, Vrindaban, runs a Higher Secondary Institution for girls. The Petitioner and Smt. Namita Chatterji, Respondent No. 3, both were employed as Assistant Teachers in CT grade in the institution. On 9-12-1972 Brij Behari Lal Sharma, Vice President of the Board, who was acting President, passed an order promoting Smt. Namita Chatterji to LT grade in the vacancy caused by the resignation of Smt. Sudesh Arora. The Petitioner, made a representation to the President of the Board on 11-8-73 protesting against the promotion of Smt. Namita Chatterji to LT Grade on the ground that she was qualified while Smt. Namita Chatterji was not qualified for promotion to LT Grade. The President by his order dated 3-10-1973 held that Smt. Namita Chatterji was not qualified for LT Grade as he was not a trained teacher for teaching Hindi to High School classes. He reverted Smt. Namita Chatterji to her substantive post of Assistant Teacher in CT Grade and promoted the Petitioner to LT Grade with effect from 1-10-73. Smt. Namita Chatterji filed appeal against that order. The Commissioner, by his order dated 16th October 1976, allowed the appeal, set aside the order of the President of the Board and restored the order of the promotion of Smt. Namita Chatterji to LT Grade. Aggrieved the Petitioner has challenged the order of the Commissioner by means of this petition. 3. Learned Counsel for the Petitioner made two submissions before us: (1) the Commissioner had no jurisdiction to entertain or hear the appeal of Smt. Namita Chatterji as the State Government was the appellate authority; (2) Smt. Namita Chatterji was not qualified as she was not a trained teacher. She was thus not qualified to get LT grade. 4. It appears that the question of jurisdiction was raised before the Commissioner, whereupon he had referred the matter to the State Government for decision. The State Government, by its letter dated 16-7-1975, informed the Commissioner that under Rule 3(ii) of the Uttar Pradesh Municipal Servants Appeals Rules, 1967, the Commissioner was empowered to hear and decide the appeal. 4. It appears that the question of jurisdiction was raised before the Commissioner, whereupon he had referred the matter to the State Government for decision. The State Government, by its letter dated 16-7-1975, informed the Commissioner that under Rule 3(ii) of the Uttar Pradesh Municipal Servants Appeals Rules, 1967, the Commissioner was empowered to hear and decide the appeal. In pursuance of that advice the Commissioner heard and decided the appeal. We have examined the Uttar Pradesh Municipal Servants Appeal Rules, 1967. Rule 3(ii) confers jurisdiction on the Commissioner of the Division to hear appeal against an order of punishment passed against an employee of Municipal Board. But Rule 1(3) lays down that these rules shall apply to all servants of the Board in Uttar Pradesh except the servants appointed to the educational establishments of the Board. Thus the Rule itself makes an exception in case of servants employed in an educational establishment of a Municipal Board. These rules do not apply to those employed in educational establishment of the Municipal Board. 5. There are three classes of educational establishments in Municipal Boards in the State of Uttar Pradesh-(i) Primary School establishment; (ii) Junior High School establishment and (iii) Higher Secondary School establishment. Section 73 of U.P. Municipalities Act, 1916 lays down that the appointment of persons on the educational establishment of a board shall be made by such authority as may be specified in this behalf by the State Government, and different authorities may be specified for different classes of posts on the establishment. Sub-section (2) of Section 73 empowers the State Government to make rules regulating the recruitment, punishment, appeal and other conditions of service of persons appointed to the educational establishment of a board. The State Government, in exercise of its powers u/s 73 of U.P. Municipalities Act, 1916, has framed the U.P. Municipal Board Educational Establishment Service Rules, 1954 which regulate the service conditions of the persons employed in Junior High Schools and Primary Schools only. These rules also do not apply as the post of LT grade was to be filled in the Higher Secondary School of the Board. 6. The State Government has framed different set of rules relating to appointment and hearing of appeal of persons employed in Higher Secondary Schools, which have been published under the Notification dated August 8, 1966. These rules also do not apply as the post of LT grade was to be filled in the Higher Secondary School of the Board. 6. The State Government has framed different set of rules relating to appointment and hearing of appeal of persons employed in Higher Secondary Schools, which have been published under the Notification dated August 8, 1966. These rules specify the authorities in all Municipalities for purposes of appointment of persons to posts in Higher Secondary Schools maintained by Municipal Boards and also the authorities empowered to hear appeals. A copy of Notification has been annexed as Annexure 10 to the writ petition. According to the Notification, the President of the Board is the appointing authority in respect of the posts in Lecturer's grade and LT grade in the Higher Secondary Schools maintained by Municipal Boards. According to these rules, appeals against the order of reduction in rank shall lie to the State Government. The Notification further provides that the aggrieved party may present appeal to the Prescribed Authority for being forwarded to the State Government, within thirty days of the communication of the order. The directions contained in the Notification aforesaid have been issued in exercise of powers conferred under Sub-section (1) of Section 73 of the U.P. Municipalities Act, 1916. 7. It is thus apparent that there are three sets of rules regulating the conditions of service of municipal employees. Out of the three sets of rules, only the rules was notified by the Notification dated 8-8-1966 apply to municipal employees engaged in the Higher Secondary School establishment of the Board. In view of specific provision in the rule, there is no room for any doubt that appeal against an order of reversion of a teacher employed in a Higher Secondary School maintained by the Board lies to the State Government, and not to the Commissioner. The State Government's advice to the Commissioner as contained in its letter dated 16-7-1975 was totally misconceived. The Commissioner had no jurisdiction to bear or dispose of the appeal filed by Smt. Namita Chatterji, instead the State Government was the competent authority to hear and decide the appeal. The State Government's advice to the Commissioner as contained in its letter dated 16-7-1975 was totally misconceived. The Commissioner had no jurisdiction to bear or dispose of the appeal filed by Smt. Namita Chatterji, instead the State Government was the competent authority to hear and decide the appeal. In this view of the matter, there was utter lack of jurisdiction in the Commissioner, and he had no authority in law to set aside the order of the President of the Municipal Board, or to promote Smt. Namita Chatterji to LT grade. 8. The Petitioner's contention on the question of limitation is also well-founded. According to the Notification dated August 6, 1966, an appeal must be filed within 30 days from the date of communication of the order. In the instant case, the order appealed against was passed on 3-10-1973, and the appeal against that order was filed by Smt. Namita Chatterji on 16-11-1973 beyond thirty days. 9. Since the Commissioner's impugned order is liable to be quashed on the above findings, we do not consider it necessary to enter into the controversy relating to the educational qualification of the Respondent No. 3. 10. We accordingly allow the writ petition and quash the Commissioner's order dated 16-10-1976. The Petitioner is entitled to her costs.