Yashodanandan, H.N.Seth, J. - (1.) THE erstwhile Managing Committee of petitioner no. 2 passed a resolution for dismissal of respondent no. 1 on 28th September, 1975. THE relevant papers were sent to the District Inspector of Schools on 28th September, 1975 itself for his approval to the proposed dismissal of respondent no. 1. THEse papers were received by the District Inspector of Schools, according to the petitioner, on the same date. THE District Inspector of Schools passed no order at any stage either approving the dismissal of respondent no. 1 or refusing to approve it. In the meanwhile an Authorised Controller was appointed to manage the affairs of the College concerned. By an order dated 11th March, 1976 the Authorised Controller directed respondent no. 1 to continue as the Principal of the College and take over charge of that post. THE petitioner prays for a writ or direction or order in the nature of certiorari quashing the order of the Authorised Controller dated 11th March, 1976 and also for an order or writ in the nature of mandamus directing respondent no. 2- the Authorised Controller-not to give effect to the aforesaid order.
(2.) LEARNED counsel appearing for the petitioner has made only one submission in support of this petition. He oontended that by reason of Section 16-G (3) (a) of the U.P. Intermediate Education Act, 1921--hereinafter referred to as the Act-read with Regulation 44 of the Regulations framed thereunder, it is mandatory for the District Inspector of Schools to decide whether the proposed dismissal from services of a Principal, Head master or teacher, as the case might be, deserved approval or not and to communicate his decision to the management within six weeks of receipt of the complete papers in connection with the proposal. Since in the instant case he failed to act within the time prescribed, the order of dismissal stood automatically approved and Respondent No. 2 was powerless to render it inoperative. LEARNED counsel for the petitioner has placed reliance on Section 16-G (3)(a) of the Act, read with Regulation 44. Section 16-G (3) (a) referred to above is in the following words :- "No Principal, Head master 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 termination 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." Regulation 44 on which reliance has been placed by the learned counsel for the petitioner is as follows :- "The Inspector or Regional Inspec-tress shall communicate his or her decision to the management within six weeks of the receipt of its proposal in complete form for action mentioned in sub-section (3) (a) of Section 16-G of the Act. If incomplete papers are received from the management, the approving officer shall require it to re-submit its proposal in complete form within two weeks, and the period of six weeks prescribed in this regulation shall be reckoned from the date on which complete papers are received by the approving officer. These papers shall either be sent by registered post or by special messanger". The contention is wholly misconceived, disregards other relevant provisions of the Act and is based on a confused understanding of the principles of interpretation counsel apparently had in mind. The expression 'mandatory' often used in Juristic Parlance as a synonym for the words 'obligatory' or 'imperative' in contradistinction to the expression 'directory' conveys only two well established legal concepts. If a duty cast by the legislature is held to be mandatory, it follows that in the event of an omission to perform it the party affected has a legal right to compel its performance. In that sense it may be readily conceded that if the District Inspector of Schools in any given case fails to act within the time prescribed by Regulation 44, the management concerned has the right to move the Court by appropriate legal proceedings to compel him to act. The only other sense in which that word is sometimes used is effectively expressed by Lord Penzance in Howard v. Bodington, (1877) (2) P.D. 203 in the following words :- "Now the distinction between matters that are directory and matters that are imperative is well known to us all in the common language of the courts at Westminister. I am not sure that it is the most fortunate language that could have been adopted to express the idea that it is intended to convey; but still that is the recognised language, and I propose to adhere to it. The real question in all these cases is this : A thing has been ordered by the legislature to te done. What is the consequence if it is not done ? In the case of statutes that are said to be imperative, the Courts have decided that if it is not done the whole thing fails, and the proceedings that follow upon it are all void. On the other hand, when the courts hold a provision to be mandatory or directory, they say that, although such provision may not have been complied with, the subsequent proceedings do not fail. Still, whatever the language, the idea is a perfectly distinct one." Though in 1877 Lord Penzance used the word 'mandatory' as a synonymous with 'directory' and as an antonym of the word 'impertive', since then the expressions 'mandatory' and 'imperative' have come to be used as synonyms and antonyms of the word 'directory' and it is in this sense that counsel for the petitioner apparently urged that Section 16-G (3) (a) read with Regulation 44 is mandatory. As held by Lord Penzance if a mandatory or imperative duty "is not done the whole thing fails, and the proceedings that follow upon it are all void." The rule of construction discussed in Howard v. Bodington is not to the effect that if a mandatory duty is not performed, the actions that follow become legally sanctified and this is exactly what would result if we were to accept the contention of the petitioners' counsel. Petitioner No. 1 passed a resolution proposing the dismissal from service of Respondent No. 1. The District Inspector of Schools failed to approve or disapprove the proposed action within the period prescribed by Regulation 44. According to Section 16-G (3) (a) "No Principal, Headmaster or teacher may be discharged or removed or dismissed from service......, or served with notice of termination of service except with prior approval in writing of the Inspector ........." (emphasis supplied). The dismissal or removal from service or notice of termination of service must follow and cannot precede the approval of the Inspector and is ineffective in its absence. If we were to accept the contention that the duty of the Inspector to act within the time prescribed in regulation 44 is mandatory, applying the principle of construction pressed in aid, the inevitable conclusion would be that any termination of service by the management following such an omission by the Inspector would be void. Counsel for the petitioners would, however, have (?) us held that if there is a breach of what is described as a mandatory duty on the part of the Inspector to act within the time prescribed by Regulation 44, the termination of service of Respondent No. 1 acquired validity. This is evidently unacceptable and runs counter to the very principle relied on for that interpretation. The object' of Section 16-G (3) (a) of the Act is to provide protection to Principals, Headmasters and teachers against unjustified penalities by the management. Any construction that defeats the legislative intent cannot be countenanced unless the language of the Statute is compulsive "and no such consideration arises in the present case. Clauses (b) and (c) of sub-section (3) of Section 16-G which run as follows in fact militate against the view canvassed ;- "(b) The Inspector may approve or disapprove or reduce or enhance the punishment or approve or disapprove of the notice for termination of service proposed by the management. Provided that in the cases of punishment, before passing orders, Inspector 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, Education, against an order of the Inspector under clause (b), whether passed before or after the commencement of the Uttar Pradesh 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, and the order passed by the Regional Deputy Director shall be final. In 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." The proviso to clause (b) ensures a right of hearing to the concerned Principal, Headmaster or teacher. If the contention of the counsel for the petitioners were to prevail, the Inspector's inaction would defeat this valuable right. Clause (c) quoted above gives a right of appeal to the affected Principal, Headmaster or teacher and its exercise is to be within one month of the communication of the Inspector's order. This clearly indicates that what is contemplated is a written and positive approval of the proposed action by the management. Acceptance of the contention that there is automatic approval would result in defeating this right also. The legislature could never have intended defeat of such valueable rights conferred by itself by an official's laziness and inaction. We have consequently no difficulty in holding that Regulation 44 is not mandatory in the sense under discussion.
(3.) WHERE the legislature intended a specific consequence to follow inaction within a prescribed time by the authority concerned, it has so provided for in the Act itself. For instance in subsection (7) of section 16-G of the Act it is enacted that :- "No such order of suspension shall, unless approved in writing by the Inspector, remain in force for more than sixty days from the date of commencement of the Uttar Pradesh Secondary Education Laws (Amendment) Act, 1975, or as the case may be, from the date of such order............" Thus if the Inspector omits to accord approval in writing within the time prescribed, the order of suspension becomes automatically inoperative. Section 16-G (3) (a) read with Regulation 44 on the other hand, does not make any provision to the effect that if the Inspector fails to act within the prescribed period the proposal of dismissal or removal from service or notice of termination of service which under the law can only follow approval by the Inspector stands automatically approved. In our view a specific period has been provided for in Regulation 44 within which an Inspector must pass an order approving or disapproving the proposed punishment only with a view to impress the Inspector with a sense of urgency.;