S.R.Alam,A.C.J. and Krishna Murari, J. - (1.) THIS special appeal has been preferred under Chapter VIII, Rule 5 of the Rules of the Court against the judgment of the Hon'ble single Judge dated 11.1.2007 passed in Civil Misc. Writ Petition No. 38875 of 1996.
(2.) AT the outset, Sri R. S. Misra, learned counsel appearing for respondent No. 3 raised a preliminary objection about the maintainability of appeal under Chapter VIII, Rule 5 of the Rules of the Court on the ground that the order impugned in the writ petition was passed in exercise of appellate jurisdiction under Section 12 of the U. P. Recognized Basic School (Recruitment and Conditions of Service of Teachers and other Conditions) Rules, 1975 (hereinafter referred to as 1975 Rules) and thus the special appeal would not lie under the Rules of the Court. In support of the above preliminary objection reliance has been placed on a Division Bench judgment of this Court in the case of Sita Ram v. District Inspector of Schools and others, 1994 (1) UPLBEC 24. On the other hand, learned counsel for the appellant submitted that the services of contesting respondent No. 3 are governed by U. P. Recognized Basic School (Junior High School Recruitment and Conditions of Services of Teachers) Rules, 1978 (hereinafter referred to as 1978 Rules). He further submitted that under 1978 Rules, no appeal is provided against the order of Basic Shiksha Adhikari refusing to grant approval to the order of termination and thus the appeal would be maintainable. It has further been submitted that even though the Committee of Management filed an appeal before the Director of Education (Basic), the same cannot be treated as a statutory appeal and any decision thereon is non est. It has further been submitted that in the absence of any statutory appeal having been provided under the Rules, the appeal filed by the Committee of Management under wrong advice at best can be treated to be a representation and any decision thereon cannot be said to have trappings of judgment or award of a Tribunal or statutory arbitrator made under the purported exercise of jurisdiction under any U. P. Act or any Central Act with respect to the matters enumerated in the State List or concurrent list in the seventh schedule of the Constitution, hence special appeal would be maintainable. We have given our anxious considerations to the submissions made on behalf of rival parties. Chapter VIII, Rule 5 of the Rules of the Court provides for special appeal before a Division Bench from the judgment of learned single Judge. The said provision reads as under : "5. Special Appeal.-An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award (a) of a Tribunal, Court or statutory arbitrary made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the concurrent list in the Seventh Schedule to the Constitution or (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge."
(3.) THUS, the answer to the question of maintainability of the present special appeal depends upon the availability of the right to appeal at the behest of the Committee of Management against order or decision of Basic Shiksha Adhikari denying approval to the punishment awarded to the headmaster or teacher of the institution in question. The preliminary objection raised on behalf of contesting respondent No. 3 regarding maintainability of the appeal is based on Rule 12 of 1975 Rules, which confers a right to appeal on the teachers as well as management against the order of the District Basic Education Officer. A perusal of 1975 Rules goes to show that the same are applicable to Junior Basic School which has been defined under the definition clause as an institution other than high schools or intermediate colleges imparting education upto Class V. Admittedly, the institution in question is a recognised Junior High School managed by a private management and is imparting education to boys and girls from Class VI to Class VIII. 1978 Rules defines Junior High School as an institution other than High School or Intermediate College imparting education to boys and girls or both from Class VI to Class VIII (inclusive). Since, the institution is imparting education from Class VI to Class VIII as such is covered under the definition of institution as contained in 1978 Rules and obviously would be governed by said Rules. Rules 16 of 1978 Rules provides for disciplinary proceedings and reads as under : "16. Disciplinary proceedings. -In respect of disciplinary proceedings and the punishment to be inflicted in such proceedings a Headmaster or Assistant Teacher as the case may be, of a recognized school shall be governed by the rules applicable to Headmaster and Assistant Teacher of a Basic School established or maintained by the Board." ;