# Basic Shiksha Adhikari, Etawah v. Ram Shankar and Ors

- **Citation:** (2013) 2 ILRA 601
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-05-28
- **Case number:** Second Appeal No. 438 of 2013
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/basic-shiksha-adhikari-etawah-v-ram-shankar-and-ors-42597
- **Pages:** 4

## Headnote

Code of Civil Procedure. - Section 100Second Appeal-by the Basic Education
officer-without seeking permission from
Secretary Basic Education-although before
trail Court as well as Lower Appellate
Court state Govt. was very well one of the
opposite
party-when
state
govt.
not
choose
to
file
Second
Appeal-Basic
Education officer working under control of
state authority- a govt. servant and officer
not working under Basic Education Boardprincipal secretary Basic Education to hold
enquiry and submit report within specified
period-appeal
dismissed
as
not
maintainable.

Held: Para-15
Let an inquiry be made by Principal
Secretary, Basic Education as to how the
present appellant has acted in this matter
and that too by engaging a counsel not
appointed by State of U.P. but by one
appointed by Basic Education Board. He
shall also make an inquiry to find out in
how many such matters, other Basic
Education Officers are behaving in similar
manner and how much funds from State
Exchequer, they have consumed, without
knowledge or permission from State of
U.P.

## Text

2 All] Basic Shiksha Adhikari Etawah Vs. Ram Shankar and Ors.
601

13. In the result, I do not find error
in the order. Consequently the Review
petition stands dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.05.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Second Appeal No. 438 of 2013

Basic Shiksha Adhikari, Etawah Appellant
Versus
Ram Shankar and Ors. ...Respondents

Counsel for the Appellant:
Sri K. Shahi, Sri Vishnu Kr. Singh

Counsel for the Respondents:
A.G., Sri P.P. Chaudhary
Sri A.K. Rai, Sri Sharad Chandra
Sri V.K. Singh

Code of Civil Procedure. - Section 100Second Appeal-by the Basic Education
officer-without seeking permission from
Secretary Basic Education-although before
trail Court as well as Lower Appellate
Court state Govt. was very well one of the
opposite
party-when
state
govt.
not
choose
to
file
Second
Appeal-Basic
Education officer working under control of
state authority- a govt. servant and officer
not working under Basic Education Boardprincipal secretary Basic Education to hold
enquiry and submit report within specified
period-appeal
dismissed
as
not
maintainable.

Held: Para-15
Let an inquiry be made by Principal
Secretary, Basic Education as to how the
present appellant has acted in this matter
and that too by engaging a counsel not
appointed by State of U.P. but by one
appointed by Basic Education Board. He
shall also make an inquiry to find out in
how many such matters, other Basic
Education Officers are behaving in similar
manner and how much funds from State
Exchequer, they have consumed, without
knowledge or permission from State of
U.P.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri K. Shahi, learned
counsel for the appellant and Sri S.P.
Gupta, learned Advocate General assisted
by Sri P.P. Chaudhary, Advocate for
respondent no. 4.

2. This appeal has been preferred by
District Basic Education Officer, Etawah
against the judgments and decree dated
29.01.2010 passed in Original Suit No. 94
of 1988 and 17.01.2013 passed in Civil
Appeal No. 50 of 2011.

3. The suit was instituted by
respondents no. 1 and 2 impleading State
of U.P. through Collector, Etawah as
defendant no. 1, District Basic Education
Officer, Etawah as defendant no. 2 and
Sri Sant Vinoba Madhyamik Vidyalaya,
Jhindua, District Etawah, (hereinafter
referred to as the "institution") as
defendant no. 3.

4. The plaintiffs instituted aforesaid
suit
for
declaration
and
permanent
injunction against defendants. The suit
was decreed with the declaration that
defendants
shall
treat
the
date
of
appointment of plaintiffs in the institution
as 13.07.1977 and they are working as
permanent teacher since then and entitled
for all consequential benefits since
01.07.1985. The defendants were also
restrained
by
granting
permanent
injunction that they shall not interfere in
the functioning and working of plaintiffs.

5. Thereagainst it appears that the
State of U.P. as well as Basic Education
602 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Officer, Etawah both preferred Civil
Appeal No. 50 of 2011 which has been
decided by Additional District Judge,
Court No. 6, Etawah vide judgment and
decree dated 17.01.2013. The Lower
Appellate Court has dismissed the appeal.

6. Now only one of the defendantappellant, i.e., Basic Education Officer,
Etawah has come to prefer this appeal
under Section 100 C.P.C. impleading
plaintiffs and other defendants including
State of U.P. as proforma respondents.
Further the appeal has been preferred
through a private counsel, namely, Sri K.
Shahi, Advocate.

7. Learned Standing Counsel on the
very first day made a preliminary
objection about maintainability of appeal
whereupon this Court passed following
order on 01.05.2013:

"1. The question which has arisen in
this matter is regarding maintainability of
this appeal at the instance of District
Basic
Education
Officer,
Etawah
particularly when the financial liability is
that of State and State of U.P., a party
before courts below, has not chosen to
come
in
appeal.
It
is
in
these
circumstances, the first question arisen in
this matter is, regarding maintainability
of appeal at the instance of District Basic
Education Officer, Etawah.

2. Let State of U.P. should come
forward with a clear affidavit sworn by
Secretary,
Basic
Education,
U.P.,
Lucknow stating, whether an appeal can
be filed before this Court by District
Basic Education Officer on his own
without any permission of State and
without the matter being examined by
State; as also, by impleading State of U.P.
as one of the respondent. It will also
explain, whether District Basic Education
Officer is an independent officer in the
matter of Basic Education to act on his
own manner and if this is so, whether the
State Government provides fund to him to
be spent at his own discretion without any
control or supervision by State of U.P. On
this aspect the Principal Secretary, Law
and Legal Rememberancer shall also
clarify
position
by
filing
separate
affidavit.

3. Learned Standing Counsel who is
representing respondent no. 4 is directed
to send a copy of this order to Secretary,
Basic Education and Principal Secretary,
Law and Legal Rememberancer so that
they may file their affidavit in this regard
within two weeks.

4. List this matter for further hearing
on the question of maintainability of
appeal on 16.05.2013.

5. A copy of this order shall be made
available to learned Standing Counsel by
today
itself
for
information
and
compliance.

8. Pursuant thereto two affidavits
have been filed today. One by Sri Sunil
Kumar,
Principal
Secretary,
Basic
Education, Government of U.P., Lucknow
and another by Sri Shashi Kant Pandey,
Principal Secretary, Law, Government of
U.P., Lucknow.

9. In both the affidavits they have
replied the queries made by this Court and
have stated very categorically that a
District Basic Education Officer cannot
file an appeal on behalf of State against
any decree or order against State without
permission of State. Where any part of the
order is exclusively against the officer
concerned in his individual capacity, for
example some costs or damages from his
2 All] Basic Shiksha Adhikari Etawah Vs. Ram Shankar and Ors.
603
own pocket and not from the funds of
State has been directed to be paid, he can
file
appeal
on
his
own
without
permission. It is also said that in no
manner the District Basic Education
Officer can file appeal on behalf of State
and he cannot indirectly file appeal for or
on behalf of by merely impleading State
of U.P. as proforma party. Next it is
submitted that when some statute requires
an authority to exercise a statutory power
at
his
own
discretion,
the
State
Government has no occasion to interfere
with such discretion since statutory
authority
has
to
exercise
power
independently. However, in the instant
case, the District Basic Education Officer
has no independent authority to file any
appeal on behalf of State. Lastly, it is said
that no funds are provided by State
Government to be utilized by District
Basic Education Officer at his discretion.
The State Government may provide funds
for any designated action, directed to be
done or performed by District Basic
Education Officer, whereupon the State
Government
has
full
control
and
supervision over District Basic Education
Officer. In the present case no permission
has been sought before filing appeal from
State Government and none has been
granted by State Government till date.

10. When confronted to the aforesaid
statements of Principal Secretary, Law
and Principal Secretary, Basic Education,
Sri Shahi, learned counsel appearing for
appellant stated that under the Basic
Education Act and Rules and Regulations
framed thereunder, the Basic Education
Officer is also an ex-officio secretary of
certain committees of Basic Education
Board
and,
therefore,
the
counsel
representing Basic Education Board, can
represent a Basic Education Officer for
filing a case before the Court and in such
matters he can also file case by
impleading State of U.P. as respondent.

11. In this case the first question is,
whether the appeal in question in view of
the above facts and circumstances, is
maintainable or not.

12. It cannot be doubted that appeal
has not been filed by defendant-appellant
in his individual capacity. It is in his
official capacity and for the official acts
done by him which were subject matter of
scrutiny before courts below. It also
cannot be doubted that while challenging
the Trial Court's judgment and decree
before Lower Appellate Court, the State
Government
joined
District
Basic
Education Officer as an appellant but the
State of U.P. has chosen not to challenge
the Lower Appellate Court's judgment by
filing second appeal. This appeal has been
preferred only by District Basic Education
Officer, Etawah without any permission
from the State Government. In view of the
clear stand taken by Secretaries of
Government, it cannot be doubted that
this appeal by District Basic Education
Officer is incompetent. He has no
authority to file this appeal by impleading
State of U.P. as one of the respondent and
without
permission
of
the
State
Government.

13. Besides, the District Basic
Education Officer is an officer appointed
by State Government and is a holder of
Civil Post. He is not an officer of Basic
Education Board which is a statutory
autonomous body in which various
officials may have certain capacity to
function in the Board or its Committees
etc. but that will not make District Basic
Education Officer as an officer of the
604 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Board. He is not an officer appointed by
the Board or under the control of Basic
Education Board. For all purposes he is an
officer subordinate to State Government,
under the administrative and disciplinary
control of Secretary, Basic Education,
U.P. Government.

14. It is really strange that a District
Basic Education Officer could have
proceeded directly, without taking care of
getting approval etc. from the State
Government. Moreover the Secretary,
Basic Education has no knowledge or
control over such matters, is also
surprising. When asked from learned
Advocate General, in what circumstances
this appeal has been preferred, he states
that it has been filed only by appellant in
his own capacity. This shows strange and
precarious state of affairs in the State
where superior officer is not aware of the
acts and omissions on the part of
subordinate official and also not willing to
know about it. He lacks interest and leave
everything at the discretion of field
officers. He ought to have taken care or
precaution to see, whether subordinate
officials are performing their functions
validly and in accordance with law or not.
This shows total inaction, apathy and
laxity on the part of Principal Secretary,
Basic Education also his incapacity in
keeping subordinate officials within the
frame work of law.

15. Let an inquiry be made by Principal
Secretary, Basic Education as to how the
present appellant has acted in this matter and
that too by engaging a counsel not appointed
by State of U.P. but by one appointed by
Basic Education Board. He shall also make an
inquiry to find out in how many such matters,
other Basic Education Officers are behaving
in similar manner and how much funds from
State Exchequer, they have consumed,
without knowledge or permission from State
of U.P.

16. The Principal Secretary, Law is also
directed to find out as to in how many
matters, cases are being contested by various
authorities of State without seeking any
permission from Law Department and, if so,
what action has been taken by Law
Department in such matters.

17. After making such inquiry and
taking appropriate action, as directed
above,
both
the
above
Principal
Secretaries, shall submit report before this
Court, but not later than a period of six
months. This case shall be listed only for
this purpose i.e. perusal of compliance
report on 02.12.2013.

18. Since I have already found that this
appeal as instituted is not maintainable at the
instance of District Basic Education Officer,
Etawah, for the reasons and subject to
directions, stated above, the appeal is
dismissed as not maintainable.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 3177 Of 2006

Sri Vishnu Kumar ...Petitioner
Versus
Judge Small Causes Court Jhansi and
Ors. ...Respondents

Counsel for the Petitioner:
Sri Ravi Kant, Sri S.K. Garg

Counsel for the Respondents:
Sri
B.N.
Singh,
Sri
Ashish
Gupta