- (1.) D. K. Seth, J. In this case pursuant to the inquiry held by the petitioner against respondent No. 2, punishment in the form of stoppage of increment was awarded to respondent No. 2, who is a teacher, governed under U P. Intermediate Education Act, 1921. The said punishment was sent for approval to the District Inspector of Schools, Jaunpur, respondent No. 1, who by order dated 22-9-1986 held that the punishment having been inflicted without obtain ing prior approval, cannot be sustained. It is this order, which has been im pugned in the present writ petition by the petitioner Committee of Manage ment.
(2.) IT is contended by the learned counsel for the petitioner that under Regulation 31 of the Regulations framed under U. P. Intermediate Education Act, 1921, stoppage of increment is not a punishment, as enumerated in the said regulation which prescribed four punishments, which are distinctly other than the punishment of stoppage of increment, which is specified in Regulation 33 as separate punishment. Therefore, stoppage of increment is not subject to approval under Regulation 31. He also refers to Section 21 of U. P. Secondary Education Service Commission and Selection Board Act, 1932 and points out that the said section also does not include stoppage of increment and repeats four punishments, as prescribed under Regulation 31. However, though stoppage of increment was also included in the said Section 21, by way of amendment in 1993 but the said amended provisions do not have any retrospective effect and as such, cannot be applied in the case of the petitioner who was punished in the year 1987. Learned counsel for the respondent No. 2 submits that in view of Section 16-G of the U. P. Intermediate Education Act prior approval is neces sary because stoppage of increments amounts to diminution of emoluments as specified therein and the regulation cannot have any overriding effect in respect of substantive section. It appears that Section 16-O does not say anything about the stopp age of increment. In sub-section (3) which reads as under : "16-G. Conditions of service of Heads of Institutions, teachers and other employees.- (1 ). . . . . ,. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2 ). . . . . . . . . . . . . . (3) (a) No Principal, Headmaster or teacher may be discharged or removed or dismissed from service or reduced in rank or subjected to any diminution in emoluments, or served with notice of termi nation of service except with the prior approval in writing of the Inspector. The decision of the Inspector shall be communicated within the period to be prescribed by regulations. (b) The Inspector may approve or disapprove or reduce or enhance the punishment or approve or disapprove of the notice for termi nation of service proposed by the management. Provided that in the cases of punishment, before passing orders, Inspec tor shall give an opportunity to the Principal, the Headmaster or the teacher to show cause within a fortnight of the receipt of the notice why the proposed punishment should not be inflicted. (c) Any party may prefer an appeal to the Regional Deputy Director of Education, against an order of the Inspector under clause (b) whether passed before or after the commencement of U. P. Intermediate Education (Sanshodhan) Adhiniyam, 1966 within one month from the date of communication of the order to that party and the Regional Deputy Director may, after such further enquiry, if any, as he considers necessary, confirm, set aside or modify the order, add the order passed by the Regional Deputy Director shall be final. In the case the order under appeal was passed by the very person holding the office of Regional Deputy Director while acting as Inspector, the appeal shall be transferred by the order of the Director to some other Regional Deputy Director for decision and the provisions of this clause shall apply in relation to decision by that other Regional Deputy Director as if the appeal had been preferred to himself. (d) All appeals preferred under clause (c) as it stood before the date of commencement of the Uttar Pradesh Intermediate Education (Sanshodhan) Adhiniyam, 1965 and pending decisions immediate ly before the said date shall be decided by the Regional Deputy Director Education in accordance with clause (c) as substituted by the said Adhiniyam. A reading of Regulation 31 shows that the said regulations has in fact incor porated four punishments as specified in Section 16-G (3) of the U. P. Inter mediate Education Act and specified that approval is necessary in respect of those four punishments. Therefore, there is no inconsistency between Sec tion 16-G and Regulation 31. By reason of specification of punishment of stoppage of increment in Regulation 33 of the said regulations it clearly implies that punishment of stoppage of increment is clearly a distinct punishment from the four punishments indicated in Section 16-G (3) of the Act and Regulation 31 of the Regulations. It is not possible to accept the contention of learned counsel for the respondent No 2 that stoppage of increment is in effect dimi nution of emoluments and that there cannot be any other interpretation of the said punishment by way of stoppage of increment. Inasmuch as diminution of emoluments, which means reduction in the pay whereas stoppage of incre ment does not operate as reduction of pay but it prohibits grant of future increments either permanently or temporarily. If the same would have meant diminution of emoluments, in that event there would not have been any neces sity of incorporating the said punishments in Regulation 33 separately. By no stretch of imagination stoppage of increment can be included in Section 16-G or Regulation 31 of the Regulations, according to the scheme of the Act or the Regulation. Section 21 of U. P. Secondary Education Service Commission and Selections Board Act, 1982 also prescribes the same four punishments, as are enumerated in Section 16-G (3) and Regulation 31. It does not include the punishments prescribed in Regulation 33 though the regulation was framed long before the enactment of 1982 Act. The very fact that the said punish ment has been brought within the scope of Section 21 of the 1982 Act by way of amendment in 1993 clearly indicates that the Legislature never intended to include prohibition or prior approval in respect of the punishment prescribed under Regulation 33. But the inclusion of the said punishment in Section 21 by way of Amendment made in 1933 cannot affect the punishment inflicted on the respondent No. 2 in 1987, No where the Amending Act No. 1 of 1993 it has been intended to have retrospective operation. In that view of the matter the said Section 21 as amended in 1993 cannot be attracted in the present case, which is governed by Section 21 as stood prior to the amendment. Sec tion 21 prior to amendment did not include that punishment by way of stop page of increments. Therefore there is no necessity of obtaining prior approval in respect of awarding punishment under Regulation 33.
(3.) IN the present case punishment having been awarded in the year 1987 under Regulation 33, the view taken by the respondent No. 1 that prior approval is necessary, cannot be sustained and, therefore, the said order dated 24-1-1987 contained in Annexure 11 to the writ petition, cannot be sustained and is quashed. Regulation 33 (2) prescribes that an appeal shall lie to the Inspector/ Regional Inspectress within thirty days of the communication of the order to the employee against the order passed under Regulation 33 (1) of the said Re gulation. The order was in favour of the respondent No. 2 and was challeng ed in this petition which was pending for along time. Therefore, there was no scope for the respondent No. 2 for preferring any appeal. In the facts and circumstances of the case the respondent No. 2 shall be entitled to prefer an appeal under Regulation 33 (2) to the appropriate authority within a period of one month from date. If such an appeal is preferred the concerned authority, shall decide the same on merit and shall not dismiss the appeal on the ground of limitation or any other technical ground. The appellate authority shall go into the merits of the case including the facts and decide the same after afford ing adequate opportunity to either of the parties. The order of punishment shall be subject to the decision that might be taken in the appeal. Until the appeal is disposed of service of the respondent No. 2 shall not be interferred with or disturbed.;