# C/M, and others v. Director of Education(Education) and others

- **Citation:** (2001) 2 ILRA 98
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001-01-17
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-and-others-v-director-of-education-education-and-others-39762
- **Pages:** 7

## Text

2All] C/M, and others V. Director of Education(Education) and others

98
11. Now a days, so many things
happen in Court but the Judge should
preserve
his
equanimity
and
even
overlook remarks and conduct which may
be unjustified. If he does so it will
enhance his dignity and respect in society.

12. In Rex v. Commissioner of
Police of the Metropolis, (1968)2 QB
150 at 154, Lord Denning observed -

"Let me say at once that we will
never use this jurisdiction as a means to
uphold our own dignity. That must rest on
surer foundations. Nor will we use it to
suppress those who speak against us. We
do not fear criticism, nor do we resent it.
For there is something far more important
at stake. It is no less than freedom of
speech itself.

'It is the right of every man, in
Parliament or out of it, in the press or over
the broadcast, to make fair comment, even
outspoken comment, on matters of public
interest. Those who comment can deal
faithfully with all that is done in a court of
justice. They can say that we are
mistaken, and our decisions erroneous,
whether they are subject to appeal or not.
All we would ask is that those who
criticise us will remember that from the
nature of our office, we cannot reply to
their criticisms. We cannot enter into
public controversy. Still less into political
controversy. We must rely on our conduct
itself to be its own vindication."

13. We would like to go further than
Lord Denning and say that often the court
should overlook even unfair, malicious
and totally unjustified remarks. The
person making such remarks often wants
publicity for himself, and by ignoring
them the Court denies him the publicity
which he wants.

14. On the facts and circumstances
of the case we set aside the impugned
orders dated 17.1.2001, passed by the
A.C.J.M.-II, Basti as well as of the
C.J.M., Basti, and quash the proceedings
under section 228 I.P.C. The petition is
allowed Smt. Usha Pandey shall be
released forthwith.

15.

However,
none
of
the
observations made in this judgment shall
be treated as any adverse remark against
the learned A.C.J.M.-II, Basti or the
learned C.J.M., Basti and they shall not be
placed on their confidential record. We
also direct that the case under section 125
Cr.P.C.
must
be
decided
very
expeditiously but by some Judge other
than the A.C.J.M.-II, Basti.

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By the Court

1. The question that arises for
consideration in this petition is whether
amendment
in
the
Scheme
of
Administration under section 16-A(5) of
the U.P. Intermediate Education Act 1921
can be made only by the Director of
Education or by the Regional Joint
Director of Education as well ? And what
should be the term of Committee of
Management of an institution in absence
of any period prescribed under the Act or
Regulations framed under it ?

2. Baheri Education Society, Baheri,
District Bareilly is a society registered
under the Society Registration Act 1860
and it runs and manages an education
institution known as Mahatma Gandhi
Memorial Inter College, Baheri, District
Bareilly
(in
brief
institution).
The
institution
has
a
Scheme
of
Administration approved on 7.8.1986 by
the Deputy Director of Education, District
Bareilly. In the Scheme of Administration
in clause 9 it is provided that the term of
committee of management would be three
years. It further provided that the term of
every office bearer would continue till
next election but such period would not
be more than one month i.e. three years
one
month.
The
committee
of
management of the institution was elected
on 16.2.1997, Shri Gajendra Singh elected
as Manager and the Deputy District
Magistrate Baheri was to be ex-officio
President. The District Inspector of
Schools,
Bareilly
(in
brief
DIOS)
recognised the election on 9.4.1997. The
management lodged First Information
Report against the officiating principal Sri
Jasmel Singh on 26.11.1998 under section
406 I.P.C. The ex-officio president did
not convene the meeting, therefore, the
manager,
convened
the
meeting
for
24.1.1999 in which Sri Jasmel Singh was
suspended. The management submitted
the papers to the DIOS for approval. The
suspension was not approved.

3. On 20.5.1999 the general body of
the society passed a resolution for
enhancing the term of the committee of
management from three years to five
years. The resolution was sent to the
Regional Joint Director of Education (in
brief
RJDE)
on
11.12.1999
for
amendment in clause 9 of the Scheme of
Administration. This resolution of the
2All] C/M, and others V. Director of Education(Education) and others

100
management is not on record. But it
admittedly was rejected on 28.1.2000 by
the RJDE. The reason for rejection of the
resolution, as mentioned in the order, is
that many complaints had been received
against the committee of management and
the matter of lodging the First Information
Report against the management was
pending consideration before the DIOS,
therefore,
the
application
of
the
management for enhancing the term of the
committee of management from three
years to five years was not proper.

4. Shri Ashok Khare the learned
counsel for the petitioner has vehemently
urged that while exercising powers under
section 16-A(5) of the U.P. Intermediate
Education Act 1921 (in brief the Act) the
RJDE could not reject the resolution
because some complaints were pending
against the committee of management. He
could only consider the validity of
resolution sent by the committee of
management and if there was no defect in
it he had to extend the term from three
years to five years. According to the
learned counsel the order rejecting the
resolution
was passed on irrelevant
considerations.

5. On the other hand, Shri S.N.
Srivastava the learned standing counsel
appearing for respondents no. 1 to 5 and
Shri Sheo Kumar Singh the learned
counsel for the appearing for respondent
no. 6 have urged that in view of Division
Bench decision of this court in Mangla
Prasad Inter College, Society, Allahabad
and another v. Director of Education,
Allahabad and others 2000 (2) UPLBEC
1418,
the
proposal
sent
by
the
management to the RJDE was not
maintainable as power to amend the
scheme of administration vests in the
Director.
Since
no
resolution
for
amendment
in
the
Scheme
of
Administration was filed before the
Director of Education, therefore, the
resolution for amendment in the Scheme
of Administration was rightly rejected by
the RJDE.

6. Section 16-I of the Act lays down
that the Director with the approval of the
State Government could delegate all or
any of the powers under the Act to an
officer or officers who are not below the
rank of Deputy Director of Education.
The Director in exercise of this power
delegated the powers conferred on him,
with
the
approval
of
the
State
Government, under Sections 16-A(5), 16B
and
16-C
by
notification
dated
23.9.1959
on
Deputy
Directors
of
Education
of
seven
regions.
By
notification dated 1.10.1964,28.8.1970
and 30.9.1961 three more regions and
posts of Regional Deputy Director of
Education were created at Nainital,
Faizabad and Jhansi. Subsequently, more
new regions were created. The Act was
amended by U.P. (Amendment) Act No. 1
of 1981 and Section 16-CCC and Third
Schedule were added in the Act. The
Schedule laid down the principles on
which the authorities could grant approval
to a Schemes of Administration. In the
light
of
these
principles
the
State
Government
issued
a
G.O.
dated
13.2.1981 that the existing Schemes of
Administration of the institutions be
revised and amended on democratic
principles and necessary directions be
issued by the Director to the officers for
implementing the directions mentioned in
the Government Order. In compliance of
G.O. dated 13.2.1981 the Additional
Director of Education (Secondary) U.P.
Allahabad issued a letter on 30/31.3.1981
INDIAN LAW REPORTS ALLAHABAD SERIES [2001

101
directing the Regional Deputy Director of
Education to ensure compliance of G.O.
dated
13.2.1981
and
Schemes
of
Administration of institutions be amended
within the stipulated period. The period of
six months fixed by G.O. dated 13.2.1981
was extended by U.P. Ordinance no. 30 of
1983 and later on by Intermediate
Education (Amendment) Act 1984 the
period of six months mentioned in Section
16-CCC of the Act was substituted as
three years. In the supplementary counter
affidavit
filed
by
Shri
Mitra
Lal,
Additional
Director
of
Education
(Secondary), U.P., Allahabad it is stated
that framing of Model Scheme of
Administration was deliberated upon at
various levels of the State Government
and Deputy Director of Education U.P.
(School Management) sent on 5.3.1960 a
Model Scheme of Administration to all
the regions. But the Director decided not
to
thrust
a
Model
Scheme
of
Administration on the institutions and it
was decided to leave the management free
to frame their own scheme according to
their needs which were not inconsistent
with the provisions of the Act and
Regulations.
Along
with
the
two
supplementary counter affidavits filed by
the respondents it is clear that the various
institutions in the State have framed their
Schemes
providing
for
periodical
elections and in some schemes the term is
three years one month, in others three
years four months etc. Only in Agra
Region the term for holding periodical
election is four years one month.

7. The power of approval of Scheme
of Administration was exercised by
Regional Deputy Director of Education in
pursuance of notification dated 25.1.1984.
The State Government on 12.12.1995
issued G.O. no. 2477/-15-10-959 (II)/94
by which thirteen posts of RJDE were
created and distribution of work between
Regional Deputy Director of Education
and RJDE was made. The RJDE were
given the administrative powers with
regard to leave, transfer, appointment,
probation etc. The G.O. dated 12.12.1995
did not confer any power on the RJDE to
exercise powers under section 16-A(5) of
the Act. The powers under 16-A(5)
remained with the Regional Deputy
Director of Education and Scheme of
Administration was to be approved and
any amendment in it could be made by the
Regional Deputy Director of Education.
Another order was issued on 19.12.1997
by the State Government which further
bifurcated
the
distribution
of
work
between the RJDE and Regional Deputy
Director
of
Education
but
power
amending the Scheme of Administration
remained with the Regional Deputy
Director
of
Education.
The
State
Government in exercise of its power
under clause (dd) of section 2 of the Act
issued a notification by which all the
RJDE were conferred powers of the
Regional Deputy Director of Education.
The notification no. 1014/15-7-1998,
published in U.P. Gazette, Extra, Para 4,
Section (ka), dated 17th March, 1998 is
extracted below :-

"In exercise of the powers under
clause
(dd)
of
Section
2
of
the
Intermediate Education Act, 1921, U.P.
Act No. II of 1921) the Government is
pleased to authorise all the Regional Joint
Directors, Education to perform all the
duties of Regional Deputy Director,
Education under the said Act."

8. From the date the notification was
issued the RJDE, therefore, became
entitled to approve or disapprove or
2All] C/M, and others V. Director of Education(Education) and others

102
amend the Scheme of Administration. The
notification mentioned above and Section
16-I were not brought to the notice of
Division Bench in Mangla Prasad Inter
College,
Society,
Allahabad(supra),
therefore, this decision is not of any help
to the respondents. It is, thus, clear that
the RJDE had power to amend the
Scheme of Administration under Section
16-A(5) of Act.

9. The next question is whether the
Regional Joint Director of Education
could enhance the term of Committee of
Management from three years to five
years? Under the Act or Regulations the
term of Committee of Management has
not been prescribed. Third Schedule to the
Act only prescribes periodical elections. If
the term for holding periodical elections
has not been provided by the Act, then it
could be only on democratic principles. In
Civil Misc. Writ Petition No. 38932 of
1996 Committee of Management, Lal
Babu Baijal Memorial Inter College, and
others v. The Director of Education
Madhyamik, Lucknow and others this
court on 10.12.1996 passed an order that
the Director should take a decision for
enhancing the term of Committee of
Management from three years to five
years. The Director of Education referred
the matter to the State Government. The
State Government by its letter dated
19.12.1997 informed the Director that
under section 16-CCC of the Act there is
no provision that the term of Committee
of Management would be three years and
Chapter-I Regulation 14-(a) provides for
proper and effective functioning of the
Committee of Management but it no
where provides either in the Act or
Regulation, the term of Committee of
Management. And the Director should
take a decision at his end in compliance of
the order of the court. In pursuance of this
letter of the State Government the
Director issued a circular on 30.3.1998 to
all the RJDE that the term of Committee
of Management could be enhanced from
three years to five years. And if any
Committee of Management makes a
request
for
enhancing the term of
Committee of Management the RJDE can
examine the resolution and if satisfied,
approve amendment in the scheme of
administration enhancing the term of
Committee of Management from three
years to five years. In pursuance of the
decision
of
the
Director
where
a
Committee of Management applied for
amendment
in
the
Scheme
of
Administration to extend the term fixed
by the Scheme of Administration for
holding periodical election, the RJDE
could
amend
the
Scheme
of
Administration and enhance the term
from three years to five years. The reason
for such extension from three years to five
years has been given in the first
supplementary counter affidavit filed by
Shri Mitra Lal, Additional Director of
Education (Secondary) U.P., Allahabad.
In paragraph 21 it has been mentioned
that since under the Act there was no term
prescribed for Committee of Management
and in Societies Registration Act 1860 the
term of society is five years, therefore, in
order to keep the term of Executive Body
of the Society running the institution in
consonance with the term of Committee
of Management of the institution the term
of five years was recommended. It is,
thus, clear that neither this court nor the
government or the department has treated
three years as fixed period. The term of
Committee of Management has been
extended up to five years. The rationale
for such extension has been explained by
the department. It cannot be said to be
INDIAN LAW REPORTS ALLAHABAD SERIES [2001

103
arbitrary.
Therefore,
the
period
of
Committee of Management from three
years to five years could be extended by
the RJDE.

10. The next question is whether the
Regional Joint Director of Education
could reject the resolution sent by
Committee of Management for enhancing
the term from three years to five years?
The RJDE has to be satisfied that the
provisions of Act and Regulations have
been compiled and the amendment sought
is not inconsistent with the provisions of
the Act or Regulations. Once he is
satisfied that the amendment sought by
the Committee of Management is legal,
he cannot refuse to amend the Scheme of
Administration. The last election of
petitioners, Committee of Management
was held on 16.2.1997. On 27.5.1999 the
Committee of Management resolved to
amend the Scheme of Administration
from three years to five years and papers
were forwarded to RJDE for approval.
The RJDE by his order dated 28.1.2000
refused
to
amend
the
Scheme
of
Administration on the ground that there
were complaints against the institution
and the DIOS was contemplating to lodge
a First Information Report, therefore, it
would not be proper to extend the term of
Committee of Management. The RJDE
had to be satisfied as to whether the
amendment sought was in accordance
with provision of Act or Regulations or
not. He could not refuse to amend the
Scheme of Administration on any other
consideration. If there were complaints
against the institution and the RJDE was
satisfied that the complaints were such
that it warranted action against the
institution
or
the
Committee
of
Management he has ample powers under
the Act to proceed against the institution
or the management. But he could not
refuse amendment. The RJDE in rejecting
the resolution on the ground that an F.I.R.
was in contemplation acted on irrelevant
considerations. If the RJDE is required to
be satisfied about the conduct of the
Committee of Management then it will
defeat the purpose of amendment in the
Scheme of Administration and would
confer arbitrary powers on the RJDE to
pick
and
chose
a
Committee
of
Management for granting approval to
amendment
for
enhancing
the
term
prescribed
in
the
Scheme
of
Administration.
In
absence
of
any
guideline for extension the RJDE was
only required to be satisfied about
compliance of the Act and Regulation. He
could not consider the conduct of
Committee of Management. Therefore the
order of RJDE passed on 28.1.2000
cannot be maintained.

11. In the result this writ petition
succeeds and is allowed. The order dated
28.1.2000 passed by Regional Joint
Director of Education Annexure-5 to the
writ petition is quashed. The Regional
Joint Director of Education is directed to
extend
the
term
of
Committee
of
Management from three years to five
years from the date it was elected, within
a period of one month from the date a
certified copy of this order is produced
before him.

Parties shall bear their own costs.
2All] Sahdev Singh V. U.P. Public Service Tribunal and others

104
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By the Court

1. The petitioner was a police
constable. He was appointed on 31.1.1976
and was confirmed on that post. In the
night of 25.1.1993 he was found having
consumed liquor. He was charge sheeted
and after enquiry he was dismissed from
service. His appeal was also rejected and
his claim petition before the U.P. Public
Service Tribunal was also dismissed.
Hence this petition.

2. A perusal of the impugned order
of the Tribunal shows that the petitioner
has stated that he has nothing to say in his
defence nor he has to produce any witness
but he has prayed for forgiveness and
assured that he will not commit such act
again in future. In these circumstances we
are of the opinion that a lenient view
should be taken against the petitioner and
some lessor punishment should be given
to him. As Portia said in Shakespeare's
'Merchant of Venice', Justice should be
tempered
with
mercy.
In
the
circumstances we are of the opinion that
although the petitioner does deserve some
punishment
but
the
punishment
of
dismissal is too harsh. Hence we set aside
the impugned orders dated 3.6.1997,
31.10.1993 and 30.7.1993 and we direct
that the petitioner shall be reinstated in
service but he will be given only 25% of
the back salary from the date of dismissal
to the date of reinstatement and he shall
be
reinstated
within
a
month
of
production of a certified copy of this
order before the S.S.P. Saharanpur. We
further warn the petitioner not to commit
such act in future. It is made clear that the
petitioner will get continuity of service.

The petition is partly allowed.