- (1.) This petition under Article 226 of the Constitution of India has been filed fay Bansidhar Sharma who was appointed a Lecturer in the Mansadin Shukla Intermediate College, Lucknow on 16th July, 1963 and was confirmed on that post in 1964. It is admitted that the College is governed by the provisions of the Intermediate Education Act, hereinafter referred to as the Act, and the Regulations framed thereunder. The management of the College is vested in a Managing Committee, opposite party No. 4, of which opposite party No. 5 is the Manager and opposite party No. 6 is the Principal of the College. The petitioner was suspended by the Manager of the College by order dated May 18, 1967, (Annexure-3 of the petition). On 19-5-1968 the Managing Committee, opposite party No. 4, passed a resolution proposing the termination of petitioner's services as a measure of punishment on charges framed against him. This resolution was forwarded by the Managing Committee for approval to the District Inspector of Schools, Lucknow, opposite party No. 2 on June 4, 1968 under Section 16-G of the Act. But before approval of the District Inspector of Schools could be obtained, the Managing Committee stopped payment of subsistence allowance to the petitioner with effect from the date of the resolution viz., 19-5-1968 treating the petitioner's services as already terminated with effect from the same date and an entry to that effect was also made in the College Pay Roll against the name of the petitioner. The petitioner contends that termination of his services by the Managing Committee without obtaining prior approval of the District Inspector of Schools under Section 16-G of the Act was illegal and invalid in law. By letter dated 23-7-68 the petitioner represented to the Manager of the College that subsistence allowance was not being paid to him and if his services were not terminated then orders may be passed for payment of the allowance to him. Copy of this was endorsed to opposite parties Nos. 1 and 2. The Manager did not reply to this representation; whereupon the petitioner made similar representation to the District Inspector of Schools, opposite party No. 2. By letter dated 10th October, 1968, the District Inspector of Schools, opposite party No. 2, declined to accord approval to the resolution on the ground that it has already been implemented in breach of Section 16-G of the Act (Annexure 14 of the petition). The Managing Committee appealed against this order to Deputy Director of Education, opposite party No.1, who decided the same by order dated 14-2-1968 (Annexure-15 of the petition) observing that the matter had been disposed of by the District Inspector of Schools on a technical view of the matter and directing him to consider whether the charges levelled against the petitioner stood substantiated and to decide the matter afresh. The District Inspector of Schools by order dated 29-9-69 again disapproved the resolution for termination of petitioner's services and ordered a lesser penalty directing that the petitioner shall be reinstated on his post and paid full salary for the period of suspension except from December 14, 1966 to March 31, 1967; one increment of the petitioner will be stopped with cumulative effect and the suspension period except December 14, 1966 to March 31, 1967 was not to be accounted towards the petitioner's pension and the period from December 14, 1966 to March 31, 1967 was to be treated without pay. The petitioner was further directed to be given a warning to work with due care in future (Annexure-17 of the petition). Both the petitioner and the Managing Committee appealed subsequently against this order to the Deputy Director of Education, opposite party No. 1, who disposed of both the appeals by an order dated 12-2-1970 (Annexure-19 of the petition). The petitioner's appeal was dismissed. The appeal of the Managing Committee was allowed and the resolution of the Managing Committee dated 19-5-1968 terminating the petitioner's services was approved.
(2.) The. petitioner challenges validity of the order of the Deputy Director of Education, dated 12-2-1970, of which Annexure-19 is a copy, as well as the order of the District Inspector of Schools, dated 29-9-1969 of which Annexure-17 is a copy and prays that certiorari be issued quashing both these orders. The petitioner also prays for mandamus commanding the opposite parties to treat the petitioner as still a Lecturer in Mathematics without break and further to direct opposite party No. 4 to pay the full salary including dearness allowance along with earned increments to the petitioner with effect from May 15, 1967. The validity of the approval of the resolution by the Deputy Director of Education (Annexure-19) is challenged on the ground that the Managing Committee, opposite party No. 4, had implemented the proposed termination of petitioner's services with effect from May 19, 1968 without obtaining prior approval of the District Inspector of Schools in violation of Section 16-G of the Act. The order of punishment by the District Inspector of Schools is challenged on the ground that he had no jurisdiction to impose any lesser penalties after the order of termination has already been implemented.
(3.) No counter-affidavit was filed in this case on behalf of the Managing Committee, opposite party No. 4, the Manager, opposite party No. 5 and the Principal of the College, opposite party No. 6. A joint counter-affidavit was filed on behalf of the Deputy Director of Education, opposite party No. 1 and the District Inspector of Schools, opposite party No. 2. At the time of arguments also no one came forward to defend the petition on behalf of opposite parties 4 to 6 and only Sri Umesh Chandra argued the appeal for opposite parties 1 and 2. In so far as the relief of certiorari with regard to the order of the Deputy Director of Education (Annexure-19) is concerned the question that arises in this petition is whether the Deputy Director of Education had jurisdiction to accord approval of the resolution of the Managing Committee proposing termination of the petitioner's services on the facts placed before this Court. It is well established that the Managing Committee had passed a resolution in its meeting of 19-5-1968 proposing termination of the petitioner's services and that this resolution was forwarded for approval to the District Inspector Schools on June 4, 1968. Averment to this effect made in para 24 of this petition is admitted in para 20 of the counter-affidavit of opposite parties 1 and 2. Para 25 of the writ petition further contains the averment that the Managing Committee, opposite party No. 4, stopped payment of petitioner's subsistence allowance with effect from 19-5-68 treating the petitioner's services as already terminated with effect from the said date and entry to this effect was also made in the College pay roll against the petitioner's name. The opposite party in the counter-affidavit has pleaded ignorance about this averment and no one has come forward on behalf of the Managing Committee to refute these allegations. This part of the petitioner's case is substantiated by the contents of Annexure-14 and the letter of the District Inspector of Schools to the Manager of the College. In this letter the District Inspector of Schools spoke of the resolution of the Managing Committee dated 19-5-1968 proposing termination of the petitioner's services and the same being forwarded to him for approval and also refers to a letter of the Managing Committee dated 17-8-1968 where it was admitted that payment of suspension allowance of the petitioner had been stopped. It is clear from these facts that although the Managing Committee in its meeting of 19-5-1968 passed a resolution proposing termination of services of the petitioner, that resolution was treated as a resolution terminating the petitioner's services forthwith and the services of the petitioner were actually treated as terminated forthwith after passing of the resolution and the suspension allowance was suspended and a note made in his service record to the effect that his services have been terminated. The resolution of May 19, 1968 passed against the petitioner is reproduced in para 40 (sic) of the petition. The petitioner claims to have come to know of the terms of this resolution from the memorandum of appeal filed by the Managing Committee before opposite party No. 1. In para 32 of the counter-affidavit the opposite parties did not contest that the resolution was passed by opposite party No. 4 in terms given in para 40 of the petition, although they were in a position to dispute it if the resolution was contained in the memorandum of appeal of opposite party No. 4. I am, therefore, entitled to proceed on the basis that the resolution was passed in the language in which it is reproduced in para 40 of the writ petition. The resolution reads as follows: "It is noted that Sri B. D. Sharma, Lecturer, (under suspension) has been extended all facilities and opportunities to submit his defence and to appear for oral enquiry but he has failed either to submit any defence during the last sixteen months or appear for oral enquiry before the Inquiry Officer. An opportunity was also given to him to appear before the Managing Committee today for oral hearing but he has not cared to come today also. The Committee is of the opinion that the charges which are very grave, stand fully established and the recommendations of the Inquiry Officer regarding removal of Shri B. D. Sbarma may be enforced according to Rules and a report sent to the District Inspector of Schools Lucknow for approval." It appears, therefore, that the Managing Committee resolved that the petitioner should be removed from service and directed that the order of removal should be enforced and the fact reported to the District Inspector of Schools for approval. The resolution in substance, therefore, was one for removal of the petitioner and for reporting the fact to the District Inspector of Schools. In other words the Managing Committee had resolved that removal of B. D. Sharma should be effected before a report of this fact is sent to the Inspector of Schools and, therefore, the clear implication was that removal of the petitioner should be effected prior to moving the District Inspector of Schools for approval. If it amounted merely to a proposal for removal of B. D. Sharma then the resolution would not have directed enforcement of the recommendation for removal and instead would have directed that the proposal for his removal should be sent to the District Inspector of Schools for approval. The fact that the resolution directed the submission of a report to the District Inspector of Schools and not the submission of a proposal for approval appears to be amenable only to the interpretation that the Committee had resolved to remove the petitioner from service prior to the approval of the District Inspector of Schools. This interpretation of the resolution is supported by the twin circumstances that the suspension allowance of the petitioner was stopped with effect from the date of passing of the resolution and an entry was made in the service record of the petitioner to the effect that his services had been terminated. It is in this way that the recommendation for removal appears to have been enforced, as required by the resolution. After stoppage of the allowance the petitioner actually sent a representation to the Manager drawing his attention to the fact that the payment of his allowance had been stopped and soliciting an order of payment in case his services had not been treated as terminated. If there was any substance in the submission made in arguments for the opposite parties that the petitioner's allowance may have been suspended under a mistake or without authority of the Managing Committee then a note in the petitioner's service record that his services had been terminated would not have been made and when the petitioner moved the Manager by representation, orders would have been passed by the Managing Committee with the clarification that the petitioner was not being removed from service unless approval of the District Inspector of Schools was obtained. In substance and in effect, therefore, the resolution was one for removal of the petitioner from service with immediate effect Section 16-G (3) (a) contains a prohibition against the discharge, removal or dismissal from service of a Principal, Headmaster or a teacher except with prior approval in writing of the Inspector. The above facts clearly disclose removal of the petitioner from service by the Managing Committee without prior approval of the Inspector, which was clearly in breach of this provision and, therefore illegal. Section 16-G (3) of the Act has been enacted to protect a Principal, Headmaster or a teacher against high-handedness by the Committee of Management and, therefore, they have been prohibited from discharging, removing or dismissing from service the Principal, Headmaster or teacher without obtaining prior approval of the Inspector. When this prohibition has been disregarded and contravened, the question arises whether the management of educational institutions can ask for approval after the removal or dismissal of the teacher has been actually effected. The answer must clearly be in the negative. The Inspector has no jurisdiction to approve the removal, discharge or dismissal of a Principal, Headmaster or teacher if it has already been made without obtaining prior approval. This is so because Section 16-G (3) (a) uses the phrase 'prior approval' of the Inspector and not just 'approval'.' If the word 'prior' was not there then approval to the action of the Managing Committee could be accorded by the Inspector or the Deputy Director of Education even subsequent to the act of the Managing Committee, but because Section 16-G provides for prior approval, approval cannot be granted subsequently. If the Principal, Headmaster or teacher has already been discharged, removed or dismissed or a notice of termination has been issued to him by the Managing Committee the Inspector is confronted with a fait accompli and there is nothing left to approve. As in my view the petitioner had already been removed from service, the Deputy Director of Education had no jurisdiction left in him to accord approval to the resolution which was forwarded by opposite party No. 4. Consequently, his order of which Annexure-19 is a copy is invalid in law in so far as it disposed of appeal of opposite party No. 4.;