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2010 DIGILAW 899 (ALL)

Committee of Management Gopal Balak Junior High School, Shobhapur, Meerutand Others v. State of U. P. and Others

2010-03-17

DILIP GUPTA

body2010
Hon'ble Dilip Gupta, J. - The petitioners have sought the quashing of the order dated 6th March, 2010 passed by the Joint Director of Education by which an Authorized Controller has been appointed under Section 6(3) of the U.P. Junior High School (Payment of Salary of Teachers & Other Employees) Act, 1978 (hereinafter referred to as the 'Act'). 2. The records of the writ petition indicate that by the letter dated 3rd June, 2009, the District Basic Education Officer, Meerut made a recommendation to the Joint Director of Education for appointment of an Authorized Controller under Section 6(3) of the Act to manage the affairs of the two Institutions. The Joint Director of Education then issued a show-cause notice dated 26th June, 2009 to the petitioners to submit a reply on the four charges mentioned in the letter. The petitioners submitted a reply on 9th July, 2009 denying all the four charges. The Joint Director of Education then forwarded the same to the Assistant Director of Education (Basic) on 21 st July, 2009 to conduct an inquiry into the matter and to submit a report. The Assistant Director of Education (Basic) sent two communications dated 2nd March, 2010 and 5th March, 2010 to the Joint Director of Education. By the former communication the Assistant Director of Education (Basic) pointed out that the power to appoint the Authorized Controller is with the Joint Director of Education but by the latter letter the Assistant Director of Education (Basic) pointed out that earlier the District Basic Education Officer, Meerut had made recommendation on 3rd June, 2009 for appointment of an Authorized Controller and he was also reiterating the said recommendation. On the basis of the communications received from the Assistant Director of Education (Basic), the Joint Director of Education, Meerut Region Meerut passed the order dated 6th March, 2010 for appointment of an Authorized Controller under Section 6(3) of the Act. 3. It is the contention of Sri G.K. Singh, learned counsel appearing for the petitioners that the order dated 6th March, 2010 deserves to be set aside as it does not contain reasons for appointing the Authorized Controller and in support of his contention, he has placed reliance upon the decision of this Court in Committee of Management, Sahid Sansmaran Inter College, Sherpur and another v. Deputy Director of Education, Varanasi and another, 1993ALJ 318. 4. 4. Learned Standing Counsel appears for respondents while Sri P.K. Rai, has filed a Caveat Application on behalf of the son of a teacher and has also filed his Vakalatnama on behalf of a teacher. Learned counsel state that it will not be necessary to file the counter affidavit and the petition may be disposed of at this stage. They, however, submit that the impugned order does not suffer from any infirmity and in any case the petitioners can file an appeal under Section 7 of the Act against the order passed by the Joint Director of Education. 5. I have carefully considered the submissions advanced by learned counsel for the parties. 6. Though it is correct that an appeal lies under Section 7 of the Act and the Appellate Authority also has the power to grant an interim order but a perusal of the order indicates that no reasons whatsoever have been indicated in the impugned order for appointment of the Authorized Controller. The impugned order only mentions that the Authorized Controller under Section 6(3) of the Act should be appointed since such a recommendation has been made. 7. In Committee of Management, Sahid Sansmaran Inter College (supra), a learned Judge of this Court examined as to whether an order passed under Section 6(3) of the Act, which does not contain any reason can be sustained and also whether a writ petition can be entertained inspite of the statutory alternative remedy being available to the petitioners under Section 7 of the Act and in this connection the Court observed as follows: "However, the submissions made by the learned counsel for the petitioner that the impugned order stands vitiated on account of absence of reasons and on account of violation of the principles of natural justice appears to have some force. In the present case a perusal of the Scheme of UP. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees), Act, 1971 (U.P. Act No. 24/71) and the provisions contained therein do not provide for either specifically or by necessary implication the exclusion of the application of the rules of natural justice. The absence of reasons in support of the conclusion reached by the respondent No. 1 in the impugned order is, therefore, fatal. The absence of reasons in support of the conclusion reached by the respondent No. 1 in the impugned order is, therefore, fatal. So far as the question of availability of alternative remedy is concerned, the counsel for the petitioner has urged that this cannot come in the way of granting relief by this Court. Reliance has been placed in this connection on the decision of Hon'ble Supreme Court in the case of M/s. Baburam Prakash Chandra Maheswari v. Antarim Zila Parishad, AIR 1969 SC 556 ; wherein it has been observed as follows:-........But it should be remembered that the rule of exhaustion of statutory remedies before a writ is granted is a rule of self-imposed limitation a rule of policy, and discretion rather than a rule of law and the Court may, therefore, in exceptional cases issue a writ such as a writ of certiorari notwithstanding the fact that the statutory remedies have not been exhausted....... It was further observed as below: ..........There are at least two well recognised exceptions to the doctrine with regard to the exhaustion of statutory remedies. The doctrine has no application in a case where the impugned order had been made in violation of the principles of natural justice........ 8. In the present petition the impugned order does not give any reason for appointment of the Authorized Controller under Section 6(3) of the Act. In view of the aforesaid decision of this Court, the order dated 6th March, 2010 passed by the Joint Director of Education deserves to be set aside and is, accordingly, set aside. It shall, however, be open to the Joint Director of Education to pass a fresh order in accordance with law. 9. The writ petition is allowed to the extent indicated above.