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2021 DIGILAW 1614 (ALL)

Krishna Nand Singh v. State of U. P.

2021-12-22

PRAKASH PADIA

body2021
JUDGMENT : Prakash Padia, J. 1. Heard counsel for the parties. 2. The petitioner has preferred the present petition inter-alia with the following prayer: ''(i) Issue a writ or direction or pass an order in the nature of MANDAMUS commanding the respondent No. 2 and 3 to pass an appropriate order on the complaint/representation dated 7.9.2021 submitted by the petitioner and take appropriate action against the guilty and take other measures as per the law, as early as possible and within such time frame, which this Hon'ble Court may deem fit and proper in the circumstances of the case.'' 3. Facts in brief as contained in the present writ petition are that institution in question namely Jangli Baba Intermediate College Gadwar District Ballia is a recognized Intermediate College, the same is on the grant in aid list by the State Government and all the teachers and employees are getting their salary from the State Exchequer as per the provisions of the U.P. High Schools And Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971. 4. Certain post of Assistant Teachers fell vacant in the Institution in the year 1998. An application was submitted by the Committee of Management before the District Inspector of Schools seeking prior permission to fill up the vacant post. 5. Vide order dated 4.2.1998, the Joint Director of Education declined to give permission to fill up the post to the Committee of Management. Aggrieved against the aforesaid order passed by the Joint Director of Education, the Committee of Management filed a Writ Petition No. 23443 of 1998 (C/M Jangali Baba Intermediate College vs. State of U.P. and Others) before this Court. The aforesaid writ petition was finally disposed of with a direction to the Director of Education, U.P. Lucknow to look into the matter and pass appropriate orders after taking into consideration the grievances of the petitioner and after providing opportunity of hearing within a period of one month. Pursuant to the aforesaid order, a decision has been taken by the Director of Education on 23.7.1998. By the aforesaid order, the Director of Education (Secondary) U.P. Lucknow rejected the claim set up by the Management. Pursuant to the aforesaid order, a decision has been taken by the Director of Education on 23.7.1998. By the aforesaid order, the Director of Education (Secondary) U.P. Lucknow rejected the claim set up by the Management. Thereafter another writ petition was filed by the respondent No. 6 namely Ram Ji Singh before this Court in the year 1999 in which directions were given by this Court on 22.2.1999 by which District Inspector of Schools was directed to decide the matter in accordance with law. Pursuant to the order passed by this Court dated 22.2.1999, an order was passed by the District Inspector of Schools Ballia on 27.5.2003 by which financial approval was granted by him in respect of the payment of salary to the respondent No. 6. Pursuant to the aforesaid order, the respondent No. 6 was paid his salary for the month of May, 2003 to August, 2003. Thereafter another order was passed by him on 25.6.2005 by which petitioner started getting his salary regularly. 6. It is argued that against the aforesaid illegal payment, certain complaints were made before the Director of Education (Secondary) by one Rajesh Kumar Singh on 12.4.2007 but till date no decision has been taken on the same. After expiry of more than 14 years, a fresh complaint has been made by the present petitioner before the Director of Education (Secondary) U.P. Lucknow 7.9.2021. In the aforesaid complaint, it is stated that the respondent No. 6 is getting his salary without any legal basis. In this view of the matter, it is argued that mandamus be issued directing the educational authorities to pass appropriate orders on the complaint/representation of the petitioner dated 7.9.2021. It is further argued that another representation was submitted by the petitioner on the same date before the District Magistrate, Ballia. On the said representation, directions were issued by the District Magistrate, Ballia to the District Inspector of Schools, Ballia to inquire the matter and do the needful. 7. A preliminary objection has been raised by Shri Anand Kumar Pandey, learned counsel appearing on behalf of respondent No. 6 that present petition is not at all maintainable in view of the fact that petitioner does not fall within the definition of person aggrieved. 7. A preliminary objection has been raised by Shri Anand Kumar Pandey, learned counsel appearing on behalf of respondent No. 6 that present petition is not at all maintainable in view of the fact that petitioner does not fall within the definition of person aggrieved. It is further argued that the respondent No. 6 is getting his salary regularly since May, 2003 pursuant to the order passed by the District Inspector of Schools, Ballia and he is going to retire very soon. It is further argued that the order passed by the District Inspector of Schools, Ballia was never challenged by any person till date. 8. In response to the same it is argued by the counsel for the petitioner that present petition is fully maintainable under Article 226 of the Constitution of India due to the fact that : 1. Petitioner is a Citizen of India. 2. Petitioner is a social worker. 3. Petitioner is tax payer. 9. When query was made by the Court that enquiring about the nature of social work which is undertaken by the petitioner, no suitable reply was provided. Apart from the same nothing has been stated in the writ petition that regarding the nature and extent of social work undertaken by the petitioner. 10. From perusal of the record, it is clear that financial approval was granted by the District Inspector of Schools, Ballia in favour of the respondent No. 6 initially on 27.5.2003 and thereafter on 25.6.2005 and since then the respondent No. 6 is getting his salary from the State Exchequer. 11. It is further argued by the counsel for the respondent No. 6 that the age of respondent No. 6 is about 62 years and he is going to be superannuated from school. It is further argued that no illegality or irregularity what so ever has been committed by the appointing authorities in respect of appointment of the respondent No. 6. It is further argued that District Magistrate has absolutely no role what so ever to make any kind of inquiry in respect of appointment of teachers and employees in the educational institutions. 12. Heard learned counsel for the parties and perused the record. 13. It is further argued that District Magistrate has absolutely no role what so ever to make any kind of inquiry in respect of appointment of teachers and employees in the educational institutions. 12. Heard learned counsel for the parties and perused the record. 13. Insofar as the preliminary objection raised by the counsel for the respondent No. 1 is concerned, the law has already been laid down by the Hon'ble Supreme Court in the case of Jasbhai Motibhai Desai vs. Rashan Kumar, 1976 (1) SCC 671 . Insofar as the present petitioner is concerned, he is only a complainant and the complaint was first time filed by him in the year 2021 regarding payment of salary in favour of respondent No. 6 since 2003. Nothing has been stated in the writ petition or the entire representation regarding delay in filing the complaint by the petitioner against respondent No. 6. 14. In paragraph 13 of the aforesaid judgment, the word ''Aggrieved person'' has been dealt with. It is stated that the expression ''Aggrieved person'' denotes an elastic and to extent, an elusive concept. It cannot be confined with the bounds of a rigid exact and comprehensive definition. Paragraph Nos. 13 and 48 of the Jasbhai Motibhai Desai (supra) are reproduced below: ''13. This takes us to the further question: Who is an ''aggrieved person'' and what are the qualifications requisite for such a status? The expression ''aggrieved person'' denotes an elastic, and, to an extent, an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. At best, its feature can be described a broad tentative manner. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest and the nature and extent of the prejudice or injury suffered by him. English Courts have sometimes put a restricted and sometimes a wide construction on the expression ''aggrieved person.'' However, some general tests have been devised to ascertain whether an applicant is eligible for this category so as to have the necessary locus-standi or 'standing' to invoke certiorari jurisdiction. 48. In the light of the above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a legal right. 48. In the light of the above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully affect his title to something. He has not been subjected to a legal wrong. He has suffered no legal grievance. He has no legal peg for a justiciable claim to hang on. Therefore he is not a 'person aggrieved' and has no locus-standi to challenge the grant of the No Objection Certificate.'' 15. It reveals from perusal of the record that no legal rights of the petitioner have been denied or deprived. He has not sustained any injury to any legal protected interest by payment of salary in favour of the respondent No. 6. Therefore he is not a ''person aggrieved'' and he has no locus-standi to challenge the payment of salary. 16. Apart from the same, it is clear from the record that no action has been taken by the petitioner from the year 2003 till 2021. When the respondent No. 6 is going to retire after about 18 years, a compliant has been made and no explanation was given either in the writ petition or in the representation regarding delay in filing the complaint by the petitioner against respondent No. 6. 17. Insofar as the complaint made by the petitioner before the District Magistrate is concerned, the instructions issued on the same day by him, i.e. on 7.9.2021. 18. The question, that calls for determination is as to whether the District Magistrate has any power to issue directions to Educational Authorities under Statutes, which are self-contained Act. 19. The issue in question has enormous practical implication. The institution is govern by the provisions of Intermediate Education Act, 1921 (hereinafter referred to as the Act), the regulations framed thereunder and the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971. 20. I find it helpful to have a bird eye view of both the Acts to find out the true intention of the Legislature. 21. In the U.P. Intermediate Education Act, 1921, various sections defines the authorities under the Act. 20. I find it helpful to have a bird eye view of both the Acts to find out the true intention of the Legislature. 21. In the U.P. Intermediate Education Act, 1921, various sections defines the authorities under the Act. Under Section 2 (aaa) ''Director'' means the Director of Education, Uttar Pradesh and it includes an Additional Director of Education; 2 (dd) defines ''Regional Deputy Director of Education'' means the Deputy Director of Education in charge of a region and includes an officer authorized by the State Government to perform all or any of the duties of a Regional Deputy Director. The Superintendent and Invigilator are defined under Section 2. Section 3 of the Act deals with the constitution of the Board. The Board comprises several officers such as Director, State Council of Educational Research and Training, Uttar Pradesh, Lucknow, Additional Director of Education, the Director, Bureau of Psychology, Allahabad one Professor of a Degree College, one Professor of a Engineering College, one Professor of Agricultural University, one Professor of Medical College (all nominated by the State Government), Head of Institution, Teachers, Principal etc. It is aforesaid persons who constitute the Board, the District Magistrate is not even an ex officio member. 22. Section 7 of the Act enumerates various powers of the Board. Section 9 (4) of the Act enjoins that the State Government shall have power to issue directions in case where in its opinion immediate action is required. Section 16-D envisages that the Director has the authority to make inspection of any recognised institution and if he finds certain defects mentioned under the section, he may point out the same to the committee of management to remove such defects, failing which a penal action of appointment of a authorised controller can be taken by the State Government, (ii) of sub-section 3 of 16-D provides that if a non-teaching staff is appointed in contravention of the provisions of this Act or the regulations it may be one of the ground for appointment of the Authorized Controller. 23. 23. From the detail procedure provided under 16 -D of the Act it emerges that the Director can only send report to the State Government, whereupon the State Government after affording opportunity to the concerned institution passes the order of appointment of the authorised controller or if it is satisfied that the cause shown by the institution is sufficient it may drop the proceedings. 24. A close look at the gamut of the Scheme of the Act instantly brings out that the District Magistrate is a foreign authority under the Scheme. There is no reference of the District Magistrate in the entire Scheme of the Act. 25. In case the institution receives aid out of the State Fund the provisions of the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act 1971 (hereinafter referred to Act No. 24 of 1971), a close look at the Scheme of the said Act No. 24 of 1971 also establishes that like U.P. Intermediate Education Act, 1921 under this Act also the District Magistrate has not been assigned any role. The Regional Deputy Director of Education and the District Inspector of Schools are authorities to pass orders/directions against the erring managements. The order passed by those authorities are appealable; under Section 7 and under Section 8 revision lies to the State Government. Again in this Act also there is no reference of the District Magistrate under any provisions of the Act. 26. Keeping the above Statutory provisions in the mind I am driven to the conclusion that the District Magistrate has no authority under the Act, 1921 or Act No. 24 of 1971 to take a decision in respect of appointment or salary of teaching or non-teaching staff. 27. Professor De Smith, in his Principles of Judicial Review 1999 Edition, Page 240 has aptly said: ''an authority entrusted with a discretion must not, in the purported exercise of its discretion, act under the dictation of another body or person. In at least two Commonwealth cases, licensing bodies were found to have taken decision on the instructions of the heads of Government who were prompted by extraneous motives. In at least two Commonwealth cases, licensing bodies were found to have taken decision on the instructions of the heads of Government who were prompted by extraneous motives. But, as less colourful cases illustrate, it is enough to show that a decision which ought to have been based on the exercise of independent judgment was dictated by those not entrusted with the power to decide, although it remains a question of fact whether the repository of discretion abdicated it in the face of external pressure.'' 28. Professor Wade in his Administrative Law, 7th Edition has dealt with ''Surrender, Abdication, Dictation'' and ''Power in the wrong hands'' in the following words: ''Closely akin to delegation, and scarcely distinguishable from it in some cases, is any arrangement by which a power conferred upon one authority is in substance exercised by another. The proper authority may share its power with someone else, or may allow someone else to dictate to it by declining to act without their consent or by submitting to their wishes or instructions. The effect then is that the discretion conferred by Parliament is exercised, at least in part, by the wrong authority, and the resulting decision is ultra vires and void. So strict are the Courts in applying this principle that they condemn some administrative arrangements which must seem quite natural and proper to those who make them.... Ministers and their departments have several times fallen foul of the same rule, no doubt equally to their surprise....'' 29. This paragraph of Professor Wade has been applied by the Supreme Court in the case of Anirudhsinhji Karansinhji Jadeja vs. State of Gujarat, (1995) 5 SCC 302 . 30. The said judgment has been followed by the Supreme Court in the case of Tarlochan Dev Sharma vs. State of Punjab, (2001) 6 SCC 260 , in following terms: ''16.............No Government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. In Anirudhsinhji Jadeja this Court has held that a statutory authority vested with jurisdiction must exercise it according to its own discretion; discretion exercised under the direction or instruction of some higher authority is failure to exercise discretion altogether. Observations of this Court in Purtabpore Co. Ltd are instructive and apposite. In Anirudhsinhji Jadeja this Court has held that a statutory authority vested with jurisdiction must exercise it according to its own discretion; discretion exercised under the direction or instruction of some higher authority is failure to exercise discretion altogether. Observations of this Court in Purtabpore Co. Ltd are instructive and apposite. Executive Officers may in exercise of their statutory discretion take into account considerations of public policy and in some context, policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but they are not absolved from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for instructions by a superior to bind them. As already stated, we are not recording, for want of adequate material, any positive finding that the impugned order was passed at the behest of or dictated by someone else than its author. Yet we have no hesitation in holding that the impugned order betrays utter non-application of mind to the facts of the case and the relevant law. The manner in which the power under Section 22 has been exercised by the competent authority is suggestive of betrayal of the confidence which the State Government reposed in the Principal Secretary in conferring upon him the exercise of drastic power like removal of President of a Municipality under Section 22 of the Act. To say the least, what has been done is not what is expected to be done by a senior official like the Principal Secretary of a wing of the State Government. We leave it at that and say no more on this issue.'' 31. In the case of Purtabpore Co. Ltd. vs. Cane Commissioner of Bihar, (1969) 1 SCC 308 , the matter was in respect of exercise of power by the Cane Commissioner under the provisions of Sugar Cane (Control) Order,1966. Clause 6 of the order enjoins the Cane Commissioner to reserve the area in favour of the sugar mill subject to fulfillment of the certain conditions made under the statutory provisions. The Chief Minister of the State issued direction to the Cane Commissioner to divide the reserved area into two portions and allot one portion to the Sugar Mill/respondent No. 5 therein. The Cane Commissioner in compliance of the direction of the Chief Minister divided the reserved area into two portion. The Chief Minister of the State issued direction to the Cane Commissioner to divide the reserved area into two portions and allot one portion to the Sugar Mill/respondent No. 5 therein. The Cane Commissioner in compliance of the direction of the Chief Minister divided the reserved area into two portion. The order of the Cane Commissioner was challenged on the ground that the Cane Commissioner without application of mind had carried out the directions of the Chief Minister, thus he had abdicated his authority under the Act. The Supreme Court set aside the order of the Cane Commissioner on the ground that Clause 6 (1) is a statutory power and the said Clause empowers the Commissioner alone to take the decision in the light of the Scheme of the Statutory provisions. The Supreme Court held that Clause 6 (1) is a Statutory power and he alone could have exercised that power. The Supreme Court further observed while exercising that power the Commissioner cannot abdicate his responsibility in favour of the State Government or the Chief Minister. The Court expressed its displeasure and observed that it was not proper for the Chief Minister to have interfere with the functions of the Cane Commissioner. 32. The Hon'ble Apex Court in re: Joint Action Committee of Air Line Pilots' Association of India (A.L.P.A.I.) and Others vs. Director General of Civil Aviation and Others, (2011) 5 SCC 435 , vide Paras 26 and 27 has considered the controversy relating to competence of passing any order and held that only the competent authority can pass such orders. 8. The Paras 26 and 27 are reproduced herein under: ''26. The contention was raised before the High Court that the Circular dated 29.5.2008 has been issued by the authority having no competence, thus cannot be enforced. It is a settled legal proposition that the authority which has been conferred with the competence under the statute alone can pass the order. No other person, even a superior authority, can interfere, with the functioning of the Statutory Authority. In a democratic set up like ours, persons occupying key positions are not supposed to mortgage their discretion, volition and decision making authority and be prepared to give way to carry out commands having no sanctity in law. No other person, even a superior authority, can interfere, with the functioning of the Statutory Authority. In a democratic set up like ours, persons occupying key positions are not supposed to mortgage their discretion, volition and decision making authority and be prepared to give way to carry out commands having no sanctity in law. Thus, if any decision is taken by a statutory authority at the behest or on suggestion of a person who has no statutory role to play, the same would be patently illegal. (Vide: Purtabpur Co. Ltd. vs. Cane Commissioner of Bihar, Chandrika Jha vs. State of Bihar, Tarlochan Dev Sharma vs. State of Punjab and Manohar Lal vs. Ugrasen). 27. Similar view has been reiterated by this Court in Commissioner of Police, Bombay vs. Gordhandas Bhanji, Bahadursinh Lakhubhai Gohil vs. Jagdishbhai M. Pradesh Kamalia and Pancham Chand and Others vs. State of Himachal observing that an authority vested with the power to act under the statute alone should exercise its discretion following the procedure prescribed therein and interference on the part of any authority upon whom the statute does not confer any jurisdiction, is wholly unwarranted in law. It violates the constitutional scheme.'' (Emphasis supplied) 33. The principle which can be discerned from the above mentioned judgments of the Supreme Court is that if a statute impose a duty on an authority he must exercise that power independently and personally without any supervisory control of some other authority. Even a superior authority cannot interfere in his decision which he has to take personally. And he should not be guided by any other person/authority. 34. In the above facts and circumstances, the District Magistrate has no absolutely power to interfere in the matter in any way and he is restrained to do anything further in the matter. 35. In view of the above discussion, this Court is of the opinion that the present petition lacks merits and same is liable to be dismissed with costs. 36. Accordingly, the present writ petition is dismissed with costs.