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1991 DIGILAW 526 (ALL)

Committee of Management, Sarvodaya Intermediate College v. District Inspector of Schools

1991-04-02

OM PRAKASH

body1991
JUDGMENT Om Prakash, J. - Petitioners seek quashing of the order dated 20-8-1990 (Annexure "3" to the writ petition) passed by the District Inspector of Schools, Bulandshahr (for short "D.I.O.S."), Respondent No. 1, and a writ of mandamus directing the Respondents not to interfere in the working of the Petitioner No. 2 as Principal of the Sarvodaya Intermediate College, Banboi, Bulandshahr. 2. The back-drop of the impugned order dated 20-8-1990 (Annexure "3" to the writ petition) is that the Respondent No. 2, who was the Principal of the aforesaid College, was suspended by the order dated 17-7-1990 (Annexure "I" to the writ petition) by Sri Surendra Singh, the then Manager of the Committee of Management. Thereafter he addressed a letter dated 18-7-1990 to D.I.O.S. informing him that in place of the Respondent No. 2, who was suspended, the Petitioner no 2 being the senior lecturer was appointed as acting Principal to attend to the urgent matters and requesting him to attest the signatures of the Petitioner No. 2. The D.I.O.S. by the order dated 23-7-1990 passed on the letter dated 18-7-90 (Annexure "2") itself attested the signatures of the Petitioner No. 2 clearly stating that such attestation was done only for the purpose of Board's fee and Transfer Certificates. Thereafter by tie impugned order dated 20-8-1990 (Annexure "3" to the writ petition), the D.I.O.S. cancelled the attestation with immediate effect. 3. The submission of Sri S.N. Srivastava, learned Counsel for the Petitioners, is that by the order dated 23-7-1990 passed on the letter Annexure "2", the suspension of the Respondent No. 2 would be deemed to have been approved by the D.I.O.S. and by the impugned order (Annexure "3" to the writ petition) the approval deemed to have been accorded by the order dated 23-7-90 cannot be cancelled or evoked. It is urged by him that the impugned order dated 20-8-1990 is nothing but a deemed disapproval of the deemed approval dated 23-7-1990 (Annexure "2"). To elaborate his submissions Sri Srivastava submits that if no approval is given by the D.I.O.S., then the suspension order would become inoperative only after the expiry of 60 days within the meaning of Sub-section (7) of Section 16-G of the U.P. Intermediate. Education Act, 1921 (briefly, 'the Act, 1921') and that by the impugned order statutory period of 60 days cannot be curtailed. Education Act, 1921 (briefly, 'the Act, 1921') and that by the impugned order statutory period of 60 days cannot be curtailed. In short has submission is that the impugned order having been passed within 60 days is illegal and that approval once given cannot be revoked by a non-speaking order and the impugned order being the one stands vitiated on that ground as well. There is yet another submission to assail the validity of the impugned order that it was passed at the behest of one Sri Jeel Singh, who not being validly elected as Manager was merely a stranger. It is, therefore, urged that the impugned order having been passed at the instance of a stranger in vitiated in law. 4. The submission of Sri A.D. Prabhakar, learned Counsel for the Respondent No. 2, is that the suspension order (Annexure "1" to the writ petition) was never approved by the Respondent No. 1 and, therefore, that ceased to operate on the expiry of 60 days under Sub-section (1) of Section 16-G of the Act, 1921. He further submits that the law does not contemplate deemed approval of suspension order and that the deemed approval, if any, being no approval in the eye of law is not required to be set aside by the D.I.O.S. at any stage and, therefore, the impugned order (Annexure "3" to the writ petition) cannot be construed as deemed disapproval of the order dated 23-7-1990 passed on the letter Annexure "2". He submits that signatures of the Petitioner No. 2 were attested on the request of the Mananer, Sri Surendra Singh, for a limited purpose and limited period and that the D.I.O.S. was at liberty to cancel that ad hoc arrangement at any time. 5. The question for consideration is whether the suspension order (Annexure "1" to the writ petition) was ever approved by the D.I.O.S. Subsection (6) of Section 16-G of the Act, 1921, so far as material, states: where any head of the institution or teacher is suspended by the Management, it shall be reported to the Inspector within seven days from the date of the order of suspension and the report shall contain such particulars as may be prescribed and accompany all relevant documents. Sub-section (7) of Section 16-G says that no such order of suspension shall, unless approved in writing by the Inspector, remain in force for more than 60 days from the date of such order. Sub-section (8) states that if at any time the Inspector is satisfied that the disciplinary proceedings against the head of the institution or teacher are being delayed for no fault of him, the Inspector may, after affording an opportunity to the Management to make representations, revoke an order of suspension passed under this Section. 6. Sub-section (6) of Section 16-G enjoins upon the Management to report the order of suspension to the Inspector within 7 days from the date of the order of suspension and to disclose in the report all the particulars as prescribed and to enclose therewith all relevant documents, if the suspension order was not passed before the commencement of the Uttar Pradesh Secondary Education Laws (Amendment) Act, 1975, in which case suspension has to be reported to the Inspector within 30 days, which is not the case here. Suspension of any incumbent is a serious onslaught on his service and, therefore, the legislature has enacted Sub-section (5) and Sub-section (6). Whereas the former states the circumstances in which the suspension may be ordered, the latter regulates the procedure of suspension in order to prevent any misuse of such power on the part of the Management and at the same time to protect the services of incumbents. This is why it is mandatory for the Management to report the suspension order to the Inspector within the prescribed time and sead with the report full particulars as prescribed and all the relevant documents, so that the Inspector may make sure that suspension is not ordered on any flimsy and other grounds, except those prescribed under Sub-section (5). The Inspector can ascertain all this only when he is supplied all the requisite particulars and the relevant documents. Unless they are laid before him within the prescribed time, he cannot apply his mind and cannot accord approval objectively, as envisaged by subsection (7), which circumscribe operational fime limit of the suspension, unless approved by the Inspector within 60 days. Sub-section (7) declares that no order of suspension shall, unless approved in writing by the Inspector, remain in force for more than 60 days from the date of such order. Sub-section (7) declares that no order of suspension shall, unless approved in writing by the Inspector, remain in force for more than 60 days from the date of such order. From the words "unless approved in writing" the intention of the legislature is clear that if the Inspector wants to accord approval, then that has to be given only in writing and not otherwise and it implies that approval in writing can be accorded only objectively and not whimsically or capriciously by the Inspector. Firstly, the Inspector is required to go into the entire material accompanying the report of the Management, which is enjoined upon by Sub-section (6) to send a report disclosing all material particulars and enclosing therewith all relevant documents. It is embedded in the scheme of Sub-section (6) that the Inspector should apply his mind fully to the report and all the accompanying material documents. After applying his mind, he may accord approval, but only in writing and in no other manner. Again the legislature wanted to ensure that the disciplinary proceedings should not be prolonged and, therefore, the Inspector is empowered under Sub-section (8) to revoke the suspension in case he is satisfied that the proceedings are delayed for no fauit of the incumbents. 7. A valid approval can be accorded by the Inspector only in the aforesaid manner and none else. The question is whether the aforesaid procedure has been followed for according any approval in this case and whether any approval was recorded by the Inspector. It is urged by Sri Prabhakar that the Management merely reported the matter of suspension and no requisite particulars and relevant documents were sent to him for his perusal. From the report (Annexure "2" to the writ petition), it is abundantly clear that only a seniority list was enclosed therewith by the Manager. No particulars, as prescribed, and the relevant documents having been sent to the Inspector, it must be held that there was no material before the Inspector to consider the question of approval and, therefore, he could not have accorded any approval as envisaged by Sub-section (7) of Section 16-G of the Act, 1921. Sub-section (7) requires that approval can be given only in writing and it should be unequivocal, unambiguous and in specific terms. Sub-section (7) requires that approval can be given only in writing and it should be unequivocal, unambiguous and in specific terms. The approval under this provision may be given only after applying the mind to the materials, as referred to in Sub-section (6), and nit subjectively by the Inspector. When no material, as envisaged by Sub-section (6), was sent to the Inspector, no inference can be drawn that the Inspector gave any approval after having applied his mind to the relevant materials. In this case, there was no valid approval whatsoever as contemplated by law. 8. Then the question is whethere there was any deemed approval by the Inspector and, if so, whether law can take any cognizance of that. The scheme pf Section 16-G of the Act, 1921, rules out the possibility of any deemed approval and even if it is assumed to have been accorded as contended by the Petitioners, still, however, it would of no avail to I hem, as approval can legally be given only in the manner prescribed in sub section (7) of Section 16-G of the Act, 1921. 9. Sri Srivastava has unduly emphaised on the order dated 23-7-1990 parsed on the report. Annexure "2" to the writ petition. Let us see the true import and character of this order. Sri Surendra Singh, the then Manager, after having passed the suspension order (Annexure "1" to the writ petition) reported the matter 10 the D.I.O.S. and requested him to attest the signature of the Petitioner No. 2, who may act as acting Principal for urgent matters. Thereupon, the D.I.O.S. passed the order dated 23-7-90 attesting the signatures of Petitioner No. 2, but clearly stating that such attestation would be relevant only for the purpose of Board's fee and Transfer Certificates. So the idea behind attestation was to permit the Petitioner No. 2 to act as acting Principal only for limited purpose, which the D.I.O.S. considered of utmost urgent nature. The Petitioner No. 2 was not appointed as a full-fledged acting Principal, but was conferred power only of limited nature. Law does not envisage such arrangement, but it was made by the D.I.O.S. as he considered it to be expedient. The Petitioner No. 2 was not appointed as a full-fledged acting Principal, but was conferred power only of limited nature. Law does not envisage such arrangement, but it was made by the D.I.O.S. as he considered it to be expedient. In no case can the order dated 23-7-1990 be construed as a deemed approval and even if it is so construed, it cannot partake the character of approval as envisaged by Sub-section (7) of Section 16-G and, therefore, Sri Srivastava cannot make any capital out of it. 10. No valid approval having been accorded, the Respondent No. 2, who was not permitted to discharge official duties owing to suspension order, had become entitled to act as the Principal soon after the expiry of sixty days and, there after no mandamus can issue as prayed by the Petitioners even if the impugned order Annexure "3" is assumed to be invalid. So the controversy of invalidity of impugned order after sixty days from the date of suspension becomes wholly academic. 11. For the foregoing reasons, there is no need to go into the question whether impugned order Annexure "3" is vitiated on the grounds; that it is a non speaking order and that it was passed at the behest of a stranger, namely, Sri Jeet Singh. This controversy survived only so long as the suspension remained in force. The order dated 23-7-1990 passed on Annexure "2" attesting the signatures of the Petitioner No. 2 which clothed the Petitioner No. 2 to act as Principal for limited purpose and period, in any case had collapsed immediately after the expiry of sixty days for want of 'timely approval-dialysis'. 12. As a matter of fact, the Petitioner No. 2 could not have continued beyond sixty days but for the interim order dated 11-9-1990. 13. The petition, therefore, fails and is dismissed. The interim order dated 11-9-1990 will stand vacated forthwith.